Exhibit 4.9
OHIO CASUALTY CORPORATION,
__________________________, As Depositary,
AND
THE HOLDERS FROM TIME TO TIME OF
THE DEPOSITARY RECEIPTS DESCRIBED HEREIN
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FORM OF
DEPOSIT AGREEMENT
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Dated as of [DATE]
TABLE OF CONTENTS
Page
ARTICLE I DEFINITIONS
ARTICLE II FORM OF RECEIPTS, DEPOSIT OF STOCK, EXECUTION AND DELIVERY, TRANSFER, SURRENDER AND
REDEMPTION OF RECEIPTS
Section 2.1 Form and Transfer of Receipts..........................................................2
Section 2.2 Deposit of Stock; Execution and Delivery of Receipts in Respect Thereof................3
Section 2.3 Redemption of Stock....................................................................4
Section 2.4 Registration of Transfer of Receipts...................................................5
Section 2.5 Split-Ups and Combinations of Receipts; Surrender of Receipts and Withdrawal of Stock..6
Section 2.6 Limitations on Execution and Delivery, Transfer, Surrender and Exchange of Receipts....7
Section 2.7 Lost Receipts, Etc.....................................................................7
Section 2.8 Cancellation and Destruction of Surrendered Receipts...................................8
ARTICLE III CERTAIN OBLIGATIONS OF HOLDERS OF RECEIPTS AND THE COMPANY
Section 3.1 Filing Proofs, Certificates and Other Information......................................8
Section 3.2 Payment of Taxes or Other Governmental Charges.........................................8
Section 3.3 Warranty as to Stock...................................................................8
ARTICLE IV THE DEPOSITED SECURITIES; NOTICES
Section 4.1 Cash Distributions.....................................................................9
Section 4.2 Distribution Other than Cash, Rights, Preferences or Privileges........................9
Section 4.3 Subscription Rights, Preferences or Privileges........................................10
Section 4.4 Notice of Dividends, Etc.; Fixing of Record Date for Holders of Receipts..............11
Section 4.5 Voting Rights.........................................................................11
Section 4.6 Changes Affecting Deposited Securities and Reclassifications, Recapitalization, Etc...11
Section 4.7 Inspection of Reports.................................................................12
Section 4.8 Lists of Receipt Holders..............................................................12
ARTICLE V THE DEPOSITARY, THE DEPOSITARY'S AGENTS, THE REGISTRAR AND THE
COMPANY
Section 5.1 Maintenance of Offices, Agencies and Transfer Books By the Depositary; Registrar......13
Section 5.2 Prevention of or Delay in Performance By the Depositary, The Depositary's Agents, the
Registrar or the Company..............................................................13
Section 5.3 Obligations of the Depositary, the Depositary's Agents, the Registrar and the Company.14
Section 5.4 Resignation and Removal of the Depositary; Appointment of Successor Depositary........15
Section 5.5 Corporate Notices and Re..............................................................15
Section 5.6 Indemnification By the Company........................................................16
Section 5.7 Charges and Expenses..................................................................16
Section 5.8 Tax Compliance........................................................................16
ARTICLE VI AMENDMENT AND TERMINATION
Section 6.1 Amendment.............................................................................17
Section 6.2 Termination...........................................................................17
ARTICLE VII MISCELLANEOUS
Section 7.1 Counterparts..........................................................................18
Section 7.2 Exclusive Benefit of Parties..........................................................18
Section 7.3 Invalidity of Provisions..............................................................18
Section 7.4 Notices...............................................................................18
Section 7.5 Depositary's Agents...................................................................19
Section 7.6 Holders of Receipts are Parties.......................................................19
Section 7.7 Governing Law.........................................................................19
Section 7.8 Inspection of Deposit Agreement.......................................................19
Section 7.9 Headings..............................................................................19
DEPOSIT AGREEMENT dated as of [DATE], among OHIO CASUALTY
CORPORATION, an Ohio corporation (the "Company"), __________, a __________
corporation (the "Depositary"), and the holders from time to time of the
Receipts described herein.
WHEREAS, it is desired to provide, as hereinafter set forth in
this Deposit Agreement, for the deposit of shares of [Serial Preferred Stock],
of the Company with the Depositary for the purposes set forth in this Deposit
Agreement and for the issuance hereunder of Receipts evidencing Depositary
Shares in respect of the Stock so deposited; and
WHEREAS, the Receipts are to be substantially in the form of
Exhibit A annexed hereto, with appropriate insertions, modifications and
omissions, as hereinafter provided in this Deposit Agreement;
NOW, THEREFORE, in consideration of the premises contained
herein and such other good and valuable consideration, receipt of which is
hereby acknowledged, the parties hereto agree as follows:
ARTICLE I
DEFINITIONS
The following definitions shall for all purposes, unless
otherwise indicated, apply to the respective terms used in this Deposit
Agreement:
"Certificate" shall mean the Restated Articles of
Incorporation of the Company filed with the Secretary of State of the State of
Ohio establishing the Stock as a series of preferred stock of the Company.
"Company" shall mean Ohio Casualty Corporation, an Ohio
corporation, and its successors.
"Deposit Agreement" shall mean this Deposit Agreement, as
amended or supplemented from time to time in accordance with the terms hereof.
"Depositary" shall mean __________, and any successor as
Depositary hereunder.
"Depositary Shares" shall mean Depositary Shares, each
representing [ ] of a share of Stock and evidenced by a Receipt.
"Depositary's Agent" shall mean an agent appointed by the
Depositary pursuant to Section 7.5.
"Depositary's Office" shall mean the principal office of the
Depositary, at which at any particular time its depositary receipt business
shall be administered.
"Receipt" shall mean one of the depositary receipts
substantially in the form set forth as Exhibit A annexed hereto, issued
hereunder, whether in definitive or temporary form evidencing the number of
Depositary Shares held of record by the holder of such Depositary Shares.
"Record Holder," as applied to a Receipt, shall mean the
individual entity or person in whose name a Receipt is registered on the books
of the Depositary or any register of any Registrar maintained for such purpose.
"Registrar" shall mean any bank or trust company which shall
be appointed by the Depositary to register ownership and transfers of Receipts
as herein provided and which may include the Depositary.
"Stock" shall mean shares of the Company's [______ Serial
Preferred Stock, ____ par value per share].
"Transfer Agent" shall mean the Registrar.
ARTICLE II
FORM OF RECEIPTS, DEPOSIT OF STOCK, EXECUTION AND DELIVERY,
TRANSFER, SURRENDER AND REDEMPTION OF RECEIPTS
Section 2.1 Form and Transfer of Receipts.
Definitive Receipts shall be engraved or printed or
lithographed on steel-engraved borders and shall be substantially in the form
set forth in Exhibit A annexed to this Deposit Agreement, with appropriate
insertions, modifications and omissions, as hereinafter provided. Pending the
preparation of definitive Receipts, the Depositary, upon the written order of
the Company delivered in compliance with Section 2.2, shall execute and deliver
temporary receipts which shall be printed, lithographed, typewritten or
otherwise substantially of the tenor of the definitive Receipts in lieu of which
they are issued and with such appropriate insertions, omissions, substitutions
and other variations as the persons executing such Receipts may determine, as
evidenced by their execution of such Receipts. If temporary Receipts are issued,
the Company and the Depositary will cause definitive Receipts to be prepared
without unreasonable delay. After the preparation of definitive Receipts, the
temporary Receipts shall be exchangeable for definitive Receipts upon surrender
of the temporary Receipts at the Depositary's Office, without charge to the
holder. Upon surrender for cancellation of any one or more temporary Receipts,
the Depositary shall execute and deliver in exchange therefor definitive
Receipts representing the same number of Depositary Shares as represented by the
surrendered temporary Receipt or Receipts registered in the name (and only the
name) of the holder of the temporary Receipt. Such exchange shall be made at the
Company's expense and without any charge therefor to the holder. Until so
exchanged, the temporary Receipts shall in all respects be entitled to the same
benefits under this Deposit Agreement, and with respect to the Stock, as
definitive Receipts.
Receipts shall be executed by the Depositary by the manual
signature of a duly authorized signatory of the Depositary; provided, that such
signature may be a facsimile if a Registrar for the Receipts (other than the
Depositary) shall have been appointed and such Receipts are countersigned by
manual signature of a duly authorized signatory of the Registrar. No Receipt
shall be entitled to any benefits under this Deposit Agreement or be valid or
obligatory for any purpose unless it shall have been executed manually by a duly
authorized signatory of the Depositary or, if a Registrar for the Receipts
(other than the Depositary) shall have been appointed, by manual or facsimile
signature of a duly authorized signatory of the Depositary and countersigned
manually by a duly authorized signatory of such Registrar. The Depositary shall
record on its books each Receipt so signed and delivered as hereinafter
provided. Receipts bearing the manual or facsimile signatures of individuals who
were at any time proper officers of the Depositary or the Registrar, as the case
may be, shall constitute adequate signatures hereunder, notwithstanding that
such individuals or any of them have ceased to hold such offices prior to the
delivery of such Receipt or did not hold such offices on the date of delivery of
such Receipts.
Receipts shall be in denominations of any number of whole
Depositary Shares.
Receipts may be endorsed with or have incorporated in the text
thereof such legends or recitals or changes not inconsistent with the provisions
of this Deposit Agreement as may be required by the Depositary or required to
comply with any applicable law or any regulation or with the rules and
regulations or any securities exchange upon which the Stock, the Depositary
Shares or the Receipts may be listed or to conform with any usage with respect
thereto, or to indicate any special limitations or restrictions to which any
particular Receipts are subject.
Title to Depositary Shares evidenced by a Receipt which is
properly endorsed, or accompanied by a properly executed instrument of transfer,
shall be transferable by delivery with the same effect as in the case of a
negotiable instrument; provided, however, that until transfer of a Receipt shall
be registered on the books of the Depositary as provided in Section 2.4, the
Depositary may, notwithstanding any notice to the contrary, treat the record
holder thereof at such time as the absolute owner thereof for the purpose of
determining the person entitled to distributions of dividends or other
distributions with respect to the Stock or to any notice provided for in this
Deposit Agreement and for all other purposes.
The Depositary shall not lend any Stock deposited hereunder.
Section 2.2 Deposit of Stock; Execution and Delivery of Receipts in
Respect Thereof.
Subject to the terms and conditions of this Deposit Agreement,
the Company or any other person authorized by the Company, as notified in
writing to the Depositary, may from time to time deposit shares of the Stock
under this Deposit Agreement by delivery to the Depositary of a certificate or
certificates for the Stock to be deposited. Such certificate or certificates
representing the Stock shall be properly endorsed or accompanied, if required by
the Depositary, by a duly executed instrument of transfer or endorsement, in
form satisfactory to the Depositary, together with such certifications as may be
required by the Depositary in accordance with the provisions of this Deposit
Agreement, and together with a written order of the Company, directing the
Depositary to execute and deliver to the person or persons named in such order,
a Receipt or Receipts evidencing in the aggregate the number of Depositary
Shares representing such deposited Stock.
All Stock deposited by the Company with the Depositary shall
be held by the Depositary at the Depositary's Office or at such other place or
places as the Depositary shall determine.
Upon receipt by the Depositary of a certificate or
certificates for Stock deposited with the Depositary by the Company in
accordance with the provisions of this Section, together with the other
documents required as above specified, and upon recordation of the Stock on the
books of the Company in the name of the Depositary or its nominee, the
Depositary shall execute and deliver to the person or persons named in the
written order delivered to the Depositary a Receipt or Receipts, evidencing in
the aggregate the number of Depositary Shares representing the Stock so
deposited. Such Receipt or Receipts shall be registered by the Depositary or the
Registrar in such name or names as may be requested by the person or persons as
specified in the written order. The Depositary shall execute and deliver such
Receipts at the Depositary's Office or such other offices, if any, as such
person may designate. Delivery at other offices shall be at the risk and expense
of the person requesting such delivery. The Depositary may not execute and
deliver Receipts pursuant to this Section prior to receipt of Stock.
Other than in the case of splits, combinations or other
reclassifications affecting the Stock, or in the case of dividends or other
distributions of Stock, if any, there shall be deposited hereunder not more than
___________ shares of Stock.
Section 2.3 Redemption of Stock.
Whenever the Company shall be permitted and shall elect to
redeem shares of Stock in accordance with the provisions of the Certificate, it
shall (unless otherwise agreed to in writing with the Depositary) give or cause
to be given to the Depositary not less than 40 nor more than 70 days' notice of
the date of such proposed redemption of Stock and of the number of such shares
held by the Depositary to be so redeemed and the applicable redemption price,
which notice shall be accompanied by a certificate from the Company stating that
such redemption of Stock is in accordance with the provisions of the
Certificate. On the date of such redemption, provided that the Company shall
then have paid or caused to be paid in full to the Depositary the redemption
price of the Stock to be redeemed, plus an amount equal to any accrued and
unpaid dividends thereon to the date fixed for redemption, in accordance with
the provisions of the Certificate, Depositary shall redeem the number of
Depositary Shares representing such Stock. The Depositary shall mail notice of
the Company's redemption of Stock and the proposed simultaneous redemption of
the number of Depositary Shares representing the Stock to be redeemed by
first-class mail, postage prepaid, not less than 30 and not more than 60 days
prior to the date fixed for redemption of such Stock and Depositary Shares (the
"Redemption Date"), to the record holders of the Receipts evidencing the
Depositary Shares to be so redeemed, at the addresses of such holders as they
appear on the records of the Depositary on the ____ day prior to the date of
such notice; but neither failure to mail any such notice of redemption of
Depositary Shares to one or more such holders nor any defect in any notice of
redemption of Depositary Shares to one or more such holders shall affect the
sufficiency of the proceedings for redemption as to other holders. Each such
notice shall state: (i) the Redemption Date; (ii) the number of Depositary
Shares to be redeemed and, if less than all the Depositary Shares to be
redeemed, the number of such Depositary Shares held by such holder to be so
redeemed; (iii) the redemption price; (iv) the place or places where Receipts
evidencing Depositary Shares are to be surrendered for payment of the redemption
price; and (v) the dividends in respect of the Stock represented by the
Depositary Shares to be redeemed will cease to accumulate on such Redemption
Date. In case less than all the outstanding Depositary Shares are to be
redeemed, the Depositary Shares to be so redeemed shall be selected by lot or
pro rata (as nearly as may be) as may be determined by the Depositary or any
other method which may be determined by the Depositary in its sole discretion to
be equitable.
Notice having been mailed by the Depositary as aforesaid, from
and after the Redemption Date (unless the Company shall have failed to provide
the funds necessary to redeem the Stock evidenced by the Depositary Shares
called for redemption), (i) dividends in respect of the shares of Stock so
called for redemption shall cease to accrue from and after such date, (ii) the
Depositary Shares being redeemed from such proceeds shall be deemed no longer to
be outstanding, (iii) all rights of the holders of Receipts evidencing such
Depositary Shares (except the right to receive the redemption price) shall, to
the extent of such Depositary Shares, cease and terminate and, (iv) upon
surrender in accordance with such redemption notice of the Receipts evidencing
any such Depositary Shares called for redemption (properly endorsed or assigned
for transfer, if the Depositary shall so require), such Depositary Shares shall
be redeemed by the Depositary at a redemption price per Depositary Share equal
to [ ] [ ]% of the redemption price per share paid in respect of the shares of
Stock plus all money and other property, if any, represented by such Depositary
Shares, including all amounts paid by the Company in respect of dividends which
on the Redemption Date have accumulated on the shares of Stock to be so redeemed
and have not theretofore been paid.
If fewer than all the Depositary Shares evidenced by a Receipt
are called for redemption, the Depositary will deliver to the holder of such
Receipt upon its surrender to the Depositary, together with the redemption
payment, a new Receipt evidencing the Depositary Shares evidenced by such prior
Receipt and not called for redemption. The Depositary shall remit to the Company
any funds deposited by or for the account of the Company for the purpose of
redeeming any Depositary Shares that the holders thereof have failed to redeem
after two years from the date of such deposit, without further action necessary
on the part of the Company.
Section 2.4 Registration of Transfer of Receipts.
Subject to the terms and conditions of this Deposit Agreement,
the Registrar, on behalf of the Depositary, shall register on its books from
time to time transfers of Receipts upon notice to the Registrar by the
Depositary of any surrender of a Receipt for transfer by the holder in person or
by duly authorized attorney, which Receipt in each case must be properly
endorsed or accompanied by a properly executed instrument of transfer. Upon
surrender of a properly endorsed Receipt or Receipts, accompanied by a properly
executed instrument of transfer, the Depositary shall execute a new Receipt or
Receipts evidencing the same aggregate number of Depositary Shares as those
evidenced by the Receipt or Receipts surrendered and deliver such new Receipt or
Receipts to or upon the order of the transferee named in the endorsement or
instrument of transfer.
Section 2.5 Split-Ups and Combinations of Receipts; Surrender of
Receipts and Withdrawal of Stock.
Upon surrender of a Receipt or Receipts at the Depositary's
Office or at such other offices as it may designate for the purpose of effecting
a split-up or combination of such Receipt or Receipts, and subject to the terms
and conditions of this Deposit Agreement, the Depositary shall execute and
deliver a new Receipt or Receipts to the holder thereof or to such holder's
order in the denominations requested, evidencing the aggregate number of
Depositary Shares evidenced by the Receipt or Receipts surrendered. The
Depositary shall give prompt notice of such action and the certificate numbers
to the Registrar, if applicable, for the purpose of recording such split-up or
consolidation.
Any holder of a Receipt or Receipts representing any number of
whole shares of Stock may (unless the related Depositary Shares have previously
been called for redemption) withdraw the number of whole shares of Stock
underlying such Depositary Shares and all money and other property, if any,
represented thereby by surrendering such Receipt or Receipts, at the
Depositary's Office or at such other offices as the Depositary may designate for
such withdrawals. Thereafter, without unreasonable delay, the Depositary shall
deliver to such holder, or to the person or persons designated by such holder as
hereinafter provided, the number of whole shares of Stock and all money and
other property, if any, represented by the Receipt or Receipts so surrendered
for withdrawal, but holders of such whole shares of Stock will not thereafter be
entitled to deposit such Stock hereunder or to receive Depositary Shares
therefor. If a Receipt or Receipts delivered by the holder to the Depositary in
connection with such withdrawal shall evidence a number of Depositary Shares in
excess of the number of Depositary Shares representing the number of whole
shares of Stock to be so withdrawn, the Depositary shall at the same time, in
addition to such number of whole shares of Stock and such money and other
property, if any, to be so withdrawn, deliver to such holder, or (subject to
Sections 2.04 and 3.02) upon his order, a new Receipt evidencing such excess
number of Depositary Shares not withdrawn. Delivery of the Stock and money and
other property, if any, being withdrawn may be made by the delivery of such
certificates, documents of title and other instruments as the Depositary may
deem appropriate.
If the Stock and the money and other property, if any, being
withdrawn are to be delivered to a person or persons other than the record
holder of the Receipt or Receipts being surrendered for withdrawal of Stock,
such holder shall execute and deliver to the Depositary a written order so
directing the Depositary, and the Depositary may require that the Receipt or
Receipts surrendered by such holder for withdrawal of such shares of Stock be
properly endorsed in blank or accompanied by a properly executed instrument of
transfer in blank.
Delivery of the Stock and the money and other property, if
any, represented by Receipts surrendered for withdrawal shall be made by the
Depositary at the Depositary's Office, except that, at the request, risk and
expense of the holder surrendering such Receipt or Receipts and for the account
of the holder thereof, such delivery may be made at such other place as may be
designated by such holder.
Section 2.6 Limitations on Execution and Delivery, Transfer, Surrender
and Exchange of Receipts.
As a condition precedent to the execution and delivery,
registration of transfer, split-up, combination, surrender or exchange of any
Receipt, the Depositary, any of the Depositary's Agents or the Company may
require payment to it of a sum sufficient for the payment (or, in the event that
the Depositary or the Company shall have made such payment, the reimbursement to
it) of any charges or expenses payable by the holder of a Receipt pursuant to
Section 5.7, may require the production of evidence satisfactory to it as to the
identity and genuineness of any signature; and may also require compliance with
the rules and regulations of any governmental body, any stock exchange or
applicable self-regulatory body, including without limitation, the National
Association of Securities Dealers, Inc. (the "NASD") or such regulations, if
any, as the Depositary or the Company may establish consistent with the
provisions of this Deposit Agreement.
The deposit of Stock may be refused, the delivery of Receipts
against Stock deposited with the Depositary may be suspended, the registration
of transfer of Receipts may be refused and the registration of transfer,
surrender or exchange of outstanding Receipts may be suspended (i) during any
period when the register of stockholders of the Company is closed with respect
to the Stock or (ii) if any such action is deemed necessary or advisable by the
Depositary, any of the Depositary's Agents or the Company at any time or from
time to time because of any requirement of law or of any government or
governmental body or commission, stock exchange or the NASD or under any
provision of this Deposit Agreement.
Section 2.7 Lost Receipts, Etc.
If any mutilated Receipt is surrendered to the Depositary, the
Depositary may, in its discretion, execute and deliver in exchange therefor a
new Receipt of like form and tenor in exchange and substitution for such
mutilated Receipt. In case any Receipt shall be destroyed, lost or stolen, the
Depositary shall execute and deliver a Receipt to the holder thereof of like
form and tenor in exchange and substitution for such destroyed, lost or stolen
Receipt, upon (i) the filing by the holder thereof with the Depositary of
evidence satisfactory to the Depositary of such destruction or loss or theft of
such Receipt, of the authenticity thereof and of such holder's ownership thereof
and (ii) the holder's furnishing the Depositary with reasonable indemnification
satisfactory to the Depositary and the Company.
Section 2.8 Cancellation and Destruction of Surrendered Receipts.
All Receipts surrendered to the Depositary or any Depositary's
Agent shall be cancelled by the Depositary. Except as prohibited by applicable
law or regulation, the Depositary is authorized to destroy all Receipts so
cancelled.
ARTICLE III
CERTAIN OBLIGATIONS OF HOLDERS OF RECEIPTS AND THE COMPANY
Section 3.1 Filing Proofs, Certificates and Other Information.
Any holder of a Receipt may be required from time to time to
file such proof of residence, or other matters or other information, to obtain
such guarantees of signature, to execute such certificates and to make such
representations and warranties consistent with the terms of the Stock as the
Depositary or the Company may reasonably deem necessary or proper. The
Depositary or the Company may withhold the delivery, or delay the registration
of transfer, redemption or exchange, of any Receipt or the withdrawal of the
Stock represented by the Depositary Shares evidenced by any Receipt and the
delivery of all money or other property, if any, represented by the Depositary
Shares represented by such Receipt or the distribution of any dividend or other
distribution or the sale of any rights or of the proceeds thereof until such
proof or other information is filed or such certificates are executed or such
representations and warranties are made.
Section 3.2 Payment of Taxes or Other Governmental Charges.
Holders of Receipts shall be obligated to make payments to the
Depositary of certain charges and expenses, as provided in Section 5.7.
Registration of transfer of any Receipt or any withdrawal of Stock and all money
or other property, if any, represented by the Depositary Shares evidenced by
such Receipt may be refused until any such payment due is made, and any
dividends, interest payments or other distributions may be withheld or any part
of or all the Stock or other property represented by the Depositary Shares
evidenced by such Receipt and not theretofore sold may be sold for the account
of the holder thereof (after attempting by reasonable means to notify such
holder prior to such sale), and such dividends, interest payments or other
distributions or the proceeds of any such sale may be applied to any payment of
such charges or expenses, the holder of such Receipt remaining liable for any
deficiency.
Section 3.3 Warranty as to Stock.
The Company hereby represents and warrants to the Depositary
that the Stock, when issued, will be validly issued, fully paid and
nonassessable. Such representation and warranty shall survive the deposit of the
Stock and the issuance of Receipts.
ARTICLE IV
THE DEPOSITED SECURITIES; NOTICES
Section 4.1 Cash Distributions.
Whenever the Depositary shall receive any cash dividend or
other cash distribution with respect to the Stock, the Depositary shall, subject
to Sections 3.1 and 3.2, distribute to record holders of Receipts on the record
date fixed pursuant to Section 4.4 the pro rata portion, as nearly as
practicable, of such dividend or distribution applicable to the number of
Depositary Shares evidenced by the Receipts held by such holders; provided,
however, that in case the Company or the Depositary shall be required to
withhold and shall withhold any monies from any cash dividend or other cash
distribution in respect of the Stock an amount on account of taxes, the
distribution in respect of Depositary Shares shall be reduced accordingly. The
Depositary shall distribute or make available for distribution, as the case may
be, only such amount, however, as can be distributed without attributing to any
holder of Depositary Shares a fraction of one cent, and any balance not so
distributable shall be held by the Depositary (without liability for interest
thereon) and shall be added to and be treated as part of the next succeeding
distribution to record holders of Receipts then outstanding.
Section 4.2 Distribution Other than Cash, Rights, Preferences or
Privileges.
Whenever the Depositary shall receive any property (including
securities) for distribution in a form other than cash, with respect to the
Stock, the Depositary shall, subject to Sections 3.1 and 3.2, distribute to
record holders of Receipts on the record date fixed pursuant to Section 4.4 the
pro rata portion, as nearly as practicable of such property (including
securities) received by it applicable to the number of Depositary Shares
evidenced by the Receipts held by such holders, in any manner that the
Depositary may deem equitable and practicable for accomplishing such
distribution. If in the opinion of the Depositary such distribution cannot be
made proportionately among such record holders, or if for any other reason
(including any requirement that the Company or the Depositary withhold an amount
on account of taxes) the Depositary deems, after consultation with the Company,
such distribution not to be feasible, the Depositary may, with the approval of
the Company, adopt such method as it deems equitable and practicable for the
purpose of effecting such distribution, including the sale of the property thus
received, or any part thereof, in a commercially reasonable manner. The net
proceeds of any such sale shall, subject to Sections 3.1 and 3.2, be distributed
or made available for distribution, as the case may be, by the Depositary to
record holders of Receipts as provided by Section 4.1 in the case of a
distribution received in cash. The Depositary shall not make any distribution of
such securities unless the Company shall have provided an opinion of counsel
stating that such securities have been registered under the Securities Act of
1933 or do not need to be registered.
Section 4.3 Subscription Rights, Preferences or Privileges.
If the Company shall at any time offer or cause to be offered
to the persons in whose names Stock is recorded on the books of the Company any
rights, preferences or privileges to subscribe for or to purchase any securities
or any rights, preferences or privileges of any other nature, such rights,
preferences or privileges shall in each such instance be made available by the
Depositary to the record holders of Receipts, pro rata in proportion to the
Stock represented by the Depositary Shares evidenced by such Receipt, in such
manner as the Depositary may determine, either by the issue to such record
holders of warrants representing such rights, preferences or privileges or by
such other method as may be approved by the Depositary in its discretion with
the approval of the Company; provided, however, that (i) if at the time of issue
or offer of any such rights, preferences or privileges the Depositary determines
that it is not lawful or (after consultation with the Company) not feasible to
make such rights, preferences or privileges available to holders of Receipts by
the issue of warrants or otherwise, or (ii) if and to the extent so instructed
by holders of Receipts who do not desire to exercise such rights, preferences or
privileges, then the Depositary, in its discretion (with the approval of the
Company, in any case where the Depositary has determined that it is not feasible
to make such rights, preferences or privileges available), may, if applicable
laws or the terms of such rights, preferences or privileges permit such
transfer, sell such rights, preferences or privileges at public or private sale,
at such place or places and upon such terms as it may deem proper. The net
proceeds of any such sale shall, subject to Sections 3.1 and 3.2, be distributed
by the Depositary to the record holders of Receipts entitled thereto as provided
by Section 4.1 in the case of a distribution received in cash. The Depositary
shall not make any distribution of any such rights, preferences or privileges
unless the Company shall have provided an opinion of counsel stating that such
rights, preferences or privileges have been registered under the Securities Act
of 1933 or do not need to be registered.
If registration under the Securities Act of 1933 of the
securities to which any rights, preferences or privileges relate is required in
order for holders of Receipts to be offered or sold the securities to which such
rights, preferences or privileges relate, the Company agrees with the Depositary
that it will file promptly a registration statement pursuant to such Act with
respect to such rights, preferences or privileges and securities and use its
best efforts and take all steps available to it to cause such registration
statement to become effective sufficiently in advance of the expiration of such
rights, preferences or privileges to enable such holders to exercise such
rights, preferences or privileges. In no event shall the Depositary make
available to the holders of Receipts any right, preference or privilege to
subscribe for or to purchase any securities unless and until such registration
statement shall have become effective, or unless the offering and sale of such
securities to such holders are exempt from registration under the provisions of
such Act.
If any other action under the laws of any jurisdiction or any
governmental or administrative authorization, consent or permit is required in
order for such rights, preferences or privileges to be made available to holders
of Receipts, the Company agrees with the Depositary that the Company will use
its best efforts to take such action or obtain such authorization, consent or
permit sufficiently in advance of the expiration of such rights, preferences or
privileges to enable such holders to exercise such rights, preferences or
privileges.
Section 4.4 Notice of Dividends, Etc.; Fixing of Record Date for
Holders of Receipts.
Whenever any cash dividend or other cash distribution shall
become payable or any distribution of property (including securities) other than
cash shall be made, or if rights, preferences or privileges shall at any time be
offered, with respect to Stock, or whenever the Depositary shall receive notice
of (i) any meeting at which holders of Stock are entitled to vote or of which
holders of Stock are entitled to notice, or (ii) any election on the part of the
Company to redeem any shares of Stock, the Depositary shall in each such
instance fix a record date (which shall be the same date as the record date
fixed by the Company with respect to the Stock) for the determination of the
holders of Receipts who shall be entitled to receive such dividend,
distribution, rights, preferences or privileges or the net proceeds of the sale
thereof, or to give instructions for the exercise of voting rights at any such
meeting, or to receive notice of such meeting or for any other appropriate
reasons.
Section 4.5. Voting Rights.
Upon receipt of notice of any meeting at which the holders of
Stock are entitled to vote, the Depositary shall, as soon as practicable
thereafter, mail to the record holders of Receipts a notice which shall contain
(i) such information as is contained in such notice of meeting and (ii) a
statement that the holders may, subject to any applicable restrictions, instruct
the Depositary as to the exercise of the voting rights pertaining to the amount
of Stock represented by their respective Depositary Shares (including an express
indication that instructions may be given to the Depositary to give a
discretionary proxy to a person designated by the Company) and a brief statement
as to the manner in which such instructions may be given. Upon the written
request of the holders of Receipts on the applicable record date, the Depositary
shall endeavor insofar as practicable, to vote or cause to be voted, in
accordance with the instructions set forth in such requests, the maximum number
of whole shares of Stock represented by the Depositary Shares evidenced by all
Receipts as to which any particular voting instructions are received. The
Company hereby agrees to take all action which may be deemed necessary by the
Depositary in order to enable the Depositary to vote such Stock or cause such
Stock to be voted. In the absence of specific instructions from the holder of a
Receipt, the Depositary will either vote the Shares or abstain from voting in
accordance with applicable stock exchange rules on which the Shares may be
listed (but, at its discretion, not from appearing at any meeting with respect
to such Stock unless directed to the contrary by the holders of all the
Receipts) to the extent of the Stock represented by the Depositary Shares
evidenced by such Receipt.
Section 4.6 Changes Affecting Deposited Securities and
Reclassifications, Recapitalization, Etc.
Upon any change in par or stated value or liquidation
preference, split-up, combination or any other reclassification of the Stock, or
upon any recapitalization, reorganization, merger, amalgamation or consolidation
to which the Company is a party or sale of all or substantially all of the
Company's assets, the Depositary may in its discretion with the approval of, and
shall upon the instructions of, the Company, and (in either case) in such manner
as to retain as nearly as possible the percentage ownership interest in the
Stock of holders of the Receipts immediately prior to such event, (i) make such
adjustments in (x) the fraction of an interest represented by one Depositary
Share in one share of Stock and (y) the ratio of the redemption price per
Depositary Share to the redemption price of a share of Stock, in each case, as
may be necessary fully to reflect the effects of such change in par or stated
value or liquidation preference, split- up, combination or other
reclassification of Stock, or of such recapitalization, reorganization, merger,
amalgamation or consolidation or sale and (ii) treat any securities which shall
be received by the Depositary in exchange for or upon conversion of or in
respect of the Stock as new deposited securities so received in exchange for or
upon conversion or in respect of such Stock. In any such case the Depositary may
in its discretion, with the approval of the Company, execute and deliver
additional Receipts, or may call for the surrender of all outstanding Receipts
to be exchanged for new Receipts specifically describing such new deposited
securities.
Anything to the contrary herein notwithstanding, holders of
Receipts shall have the right from and after the effective date of any such
change in par or stated value or liquidation preference, split-up, combination
or other reclassification of the Stock or any such recapitalization,
reorganization, merger, amalgamation or consolidation or sale to the extent that
holders of Stock had the right, prior to or on the applicable effective date, to
convert, exchange or surrender the Stock represented thereby only into or for,
as the case may be, the kind and amount of shares of stock and other securities
and property and cash into which such Stock might have been exchange or
surrendered immediately prior to the effective date of such transaction.
Section 4.7. Inspection of Reports.
The Depositary shall transmit to the record holders of
Receipts, at the addresses of such record holders as set forth on the books of
the Depositary, and shall make available for inspection by holders of Receipts
at the Depositary's Office, and at such other places as it may from time to time
deem advisable, any reports and communications received from the Company which
are received by the Depositary as the holder of Stock.
Section 4.8. Lists of Receipt Holders.
Promptly upon request from time to time by the Company, the
Depositary shall furnish to it a list, as of a recent date, of the names and
addresses of all persons in whose names Receipts are registered on the books of
the Depositary and the amount of Stock represented thereby.
ARTICLE V
THE DEPOSITARY, THE DEPOSITARY'S AGENTS, THE REGISTRAR AND THE COMPANY
Section 5.1. Maintenance of Offices, Agencies and Transfer Books By the
Depositary; Registrar.
Upon execution of this Deposit Agreement, the Depositary shall
maintain, at the Depositary's Office, facilities for the execution and delivery,
registration and registration of transfer, surrender and exchange of Receipts,
and at the offices of the Depositary's Agents, if any, facilities for the
delivery, registration of transfer, surrender and exchange of Receipts and the
deposit and withdrawal of Stock, all in accordance with the provisions of this
Deposit Agreement.
The Depositary shall, with the approval of the Company,
appoint a Registrar for registration of the Receipts or the Depositary Shares in
accordance with any requirements of any applicable stock exchange on which the
Receipts or the Depositary Shares are listed. Such Registrar (which may be the
Depositary if so permitted by the requirements of such exchange) may be removed
and a substitute registrar appointed by the Depositary upon the request or with
the approval of the Company. If the Receipts, the Depositary Shares or the Stock
are listed on one or more other stock exchanges, the Depositary will, at the
request of the Company, arrange such facilities for the delivery, registration,
registration of transfer, surrender and exchange of such Receipts, such
Depositary Shares or such Stock as may be required by law or applicable stock
exchange regulation.
The Registrar shall keep books at the Depositary's Office for
the registration and registration of transfer of Receipts or at such other place
as shall be approved by the Company and of which the holders of Receipts shall
have reasonable notice, which books at all reasonable times shall be open for
inspection by the record holders of Receipts; provided, that any such holder
requesting to exercise such right shall certify to the Registrar that such
inspection shall be in compliance with the [insert appropriate State law] and
for a proper purpose reasonably related to such person's rights as an owner of
Depositary Shares evidenced by the Receipts.
The Depositary may cause the Registrar to close such books, at
any time or from time to time, when the register of stockholders of the Company
is closed with respect to the Stock or when such action is deemed necessary or
advisable by the Depositary or any Depositary's Agent because of any requirement
of law or of any government, governmental body or commission, stock exchange or
any applicable self-regulatory body, including without limitation, the NASD.
Section 5.2. Prevention of or Delay in Performance By the Depositary,
The Depositary's Agents, the Registrar or the Company.
Neither the Depositary nor any Depositary's Agent nor any
Registrar nor the Company shall incur any liability to any holder of any Receipt
if by reason of any provision of any present or future law, or regulation
thereunder, of the United States of America or of any other governmental
authority or, in the case of the Depositary, the Depositary's Agent or the
Registrar, by reason of any provision, present or future, of the Company's
Restated Articles of Incorporation or by reason of any act of God or war or
other circumstance beyond the control of the relevant party, the Depositary, the
Depositary's Agent, the Registrar or the Company shall be prevented, delayed or
forbidden from doing or performing any act or thing which the terms of this
Deposit Agreement provide shall be done or performed; nor shall the Depositary,
any Depositary's Agent, any Registrar or the Company incur any liability or be
subject to any obligation (i) by reason of any nonperformance or delay, caused
as aforesaid, in the performance of any act or thing which the terms of this
Deposit Agreement provide shall or may be done or performed, or (ii) by reason
of any exercise of, or failure to exercise, any discretion provided for in this
Deposit Agreement except, in case of any such exercise or failure to exercise
discretion not caused as aforesaid, if caused by the negligence or willful
misconduct of the party charged with such exercise or failure to exercise.
Section 5.3. Obligations of the Depositary, the Depositary's Agents,
the Registrar and the Company.
Neither the Depositary nor any Depositary's Agent nor any
Registrar nor the Company shall be under any obligation to appear in, prosecute
or defend any action, suit or other proceeding in respect of the Stock, the
Depositary Shares or the Receipts which in its opinion may involve it in expense
or liability unless indemnity satisfactory to it against all expense and
liability be furnished as often as may be required.
Neither the Depositary nor any Depositary's Agent nor any
Registrar nor the Company shall be liable for any action or any failure to act
by it in reliance upon the written advice of legal counsel or accountants, any
holder of a Receipt or any other person believed by it in good faith to be
competent to give such information. The Depositary, any Depositary's Agent, any
Registrar and the Company may each rely and shall each be protected in acting
upon any written notice, request, direction or other document believed by it to
be genuine and to have been signed or presented by the proper party or parties
specified in this Deposit Agreement.
The Depositary shall not be responsible for any failure to
carry out any instruction to vote any of the shares of Stock or for the manner
or effect of any such vote made, as long as any such action or non-action is in
good faith. The Depositary undertakes, and any Registrar shall be required to
undertake, to perform such duties and only such duties as are specifically set
forth in this Deposit Agreement using its best efforts and in good faith. The
parties hereto acknowledge that no implied covenants or obligations shall be
read into this Depositary Agreement against the Depositary or any Registrar. The
Depositary will indemnify the Company against any liability that may arise out
of acts performed or omitted by the Depositary or the Depositary's Agents due to
its or their negligence or willful misconduct. The Depositary, the Depositary's
Agents, and any Registrar may own and deal in any class of securities of the
Company and its affiliates and in Receipts. The Depositary may also act as
transfer agent or registrar of any of the securities of the Company and its
affiliates.
Section 5.4. Resignation and Removal of the Depositary;
Appointment of Successor Depositary.
The Depositary may at any time resign as Depositary hereunder
by notice of its election so to do delivered to the Company, such resignation to
take effect upon the appointment of a successor Depositary and its acceptance of
such appointment as hereinafter provided.
The Depositary may at any time be removed by the Company by
notice of such removal delivered to the Depositary, such removal to take effect
upon the appointment of a successor Depositary and its acceptance of such
appointment as hereinafter provided.
In case at any time the Depositary acting hereunder shall
resign or be removed, the Company shall, within 60 days after the delivery of
the notice or resignation or removal, as the case may be, appoint a successor
Depositary, which shall be a bank or trust company having its principal office
in the United States of America and having a combined capital and surplus of at
least $50,000,000. If no successor Depositary shall have been so appointed and
have accepted appointment within 60 days after delivery of such notice, the
resigning or removed Depositary may petition any court of competent jurisdiction
for the appointment of a successor Depositary. Every successor Depositary shall
execute and deliver to its predecessor and to the Company an instrument in
writing accepting its appointment hereunder, and agreeing to become a party to
this Deposit Agreement and thereupon such successor Depositary, without any
further act or deed, shall become fully vested with all the rights, powers,
duties and obligations of its predecessor and for all purposes shall be the
Depositary under this Deposit Agreement, and such predecessor, upon payment of
all sums due it and on the written request of the Company, shall execute and
deliver an instrument transferring to such successor all rights and powers of
such predecessor hereunder, shall duly assign, transfer and deliver all right,
title and interest in the Stock and any moneys or property held hereunder to
such successor, and shall deliver to such successor a list of the record holders
of all outstanding Receipts. Any successor Depositary shall promptly mail notice
of its appointment to the record holders of Receipts.
Any corporation or other entity into or with which the
Depositary may be merged, consolidated or converted or to which the Depositary
may sell all or substantially all of its assets shall be the successor of such
Depositary without the execution or filing of any document or any further act,
and notice thereof shall not be required hereunder. Such successor Depositary
may authenticate the Receipts in the name of the predecessor Depositary or in
the name of the successor Depositary.
Section 5.5. Corporate Notices and Reports.
The Company agrees that it will deliver to the Depositary and
the Depositary will, promptly after receipt thereof, transmit to the record
holders of Receipts, in each case at the addresses furnished to it pursuant to
Section 4.8, all notices and reports (including without limitation financial
statements) required by law, by the rules of any national securities exchange
upon which the Stock, the Depositary Shares or the Receipts are listed or by the
Company's Restated Articles of Incorporation to be furnished by the Company to
holders of Stock. Such transmission will be at the Company's expense and the
Company will provide the Depositary with such number of such documents as the
Depositary may reasonably request.
Section 5.6. Indemnification By the Company.
The Company shall indemnify the Depositary, any Depositary's
Agent and any Registrar against, and hold each of them harmless from, any loss,
liability or expense (including the costs and expenses of defending itself and
reasonable counsel fees) which may arise out of (a) acts performed or omitted in
connection with this Deposit Agreement and the Receipts (i) by the Depositary,
any Registrar or any of their respective agents (including any Depositary's
Agent), except for any liability arising out of negligence or bad faith on the
respective parts of any such person or persons, or (ii) by the Company or any of
its agents, or (b) the offer, sale or registration of the Receipts, the
Depositary Shares or the Stock pursuant to the provisions hereof.
Section 5.7. Charges and Expenses.
The Company shall pay all transfer and other taxes and
governmental charges arising solely from the existence of the depositary
arrangements hereunder. The Company shall pay all charges of the Depositary in
connection with the initial deposit of the Stock and the initial issuance of the
Depositary Shares, redemption of the Stock at the option of the Company and all
withdrawals of shares of the Stock by owners of Depositary Shares. All other
transfer and other taxes and governmental charges shall be at the expense of
holders of Depositary Shares. If, at the request of a holder of Receipts, the
Depositary incurs charges or expenses for which it is not otherwise liable
hereunder, such holder will be liable for such charges and expenses. All other
charges and expenses of the Depositary and any Depositary's Agent hereunder and
of any Registrar (including, in each case, reasonable fees and expenses of
counsel) incident to the performance of their respective obligations hereunder
will be paid upon consultation and agreement between the Depositary and the
Company as to the amount and nature of such charges and expenses. The Depositary
shall present its statement for charges and expenses to the Company once every
three months or at such other intervals as the Company and the Depositary may
agree.
Section 5.8. Tax Compliance.
(a) The Depositary, on its own behalf and on behalf of the Company,
will comply with all applicable certification, information reporting and
withholding (including "backup" withholding) requirements imposed by applicable
tax laws, regulations or administrative practice with respect to (i) any
payments made with respect to the Depositary Shares or (ii) the issuance,
delivery, holding, transfer, redemption or exercise of rights under the Receipts
or the Depositary Shares. Such compliance shall include, without limitation, the
preparation and timely filing of required returns and the timely payment of all
amounts required to be withheld to the appropriate taxing authority or its
designated agent.
(b) The Depositary shall comply with any direction received from the
Company with respect to the application of such requirements to particular
payments or holders or in other particular circumstances, and may for purposes
of this Deposit Agreement rely on any such direction in accordance with the
provisions of Section 5.3 hereof.
(c) The Depositary shall maintain all appropriate records documenting
compliance with such requirements, and shall make such records available on
request of the Company or to its authorized representatives.
ARTICLE VI.
AMENDMENT AND TERMINATION
Section 6.1. Amendment.
The form of the Receipts and any provisions of this Deposit
Agreement may at any time and from time to time be amended by agreement between
the Company and the Depositary in any respect which they may deem necessary or
desirable; provided, however, that no such amendment which would materially and
adversely alter the rights of the holders of Receipts shall be effective unless
such amendment shall have been approved by the holders of Receipts evidencing at
least a [majority] of the Depositary Shares then outstanding. Every holder of an
outstanding Receipt at the time any such amendment becomes effective, or any
transferee of such holder, shall be deemed, by continuing to hold such Receipt,
or by reason of the acquisition thereof, to consent and agree to such amendment
and to be bound by the Deposit Agreement as amended thereby.
Section 6.2. Termination.
This Deposit Agreement may be terminated by the Company or the
Depositary only after (i) all outstanding Depositary Shares shall have been
redeemed pursuant to Section 2.3 or (ii) there shall have been made a final
distribution in respect of the Stock in connection with any liquidation,
dissolution or winding up of the Company and such distribution shall have been
distributed to the holders of Receipts evidencing the Depositary Shares pursuant
to Section 4.1 or 4.2, as applicable.
Upon the termination of this Deposit Agreement, the parties
hereto shall be discharged from all obligations under this Deposit Agreement
except for their respective obligations under Sections 5.3, 5.6 and 5.7.
ARTICLE VII.
MISCELLANEOUS
Section 7.1. Counterparts.
This Deposit Agreement may be executed in any number of
counterparts, and by each of the parties hereto on separate counterparts, each
of which counterparts, when so executed and delivered, shall be deemed an
original, but all such counterparts taken together shall constitute one and the
same instrument.
Section 7.2. Exclusive Benefit of Parties.
This Deposit Agreement is for the exclusive benefit of the
parties hereto, and their respective successors hereunder, and shall not be
deemed to give any legal or equitable right, remedy or claim to any other person
whatsoever.
Section 7.3. Invalidity of Provisions.
In case any one or more of the provisions contained in this
Deposit Agreement or in the Receipts should be or become invalid, illegal or
unenforceable in any respect, the validity, legality and enforceability of the
remaining provisions contained herein or therein shall in no way be affected,
prejudiced or disturbed thereby.
Section 7.4. Notices.
Any and all notices to be given to the Company hereunder or
under the Receipts shall be in writing and shall be deemed to have been duly
given if personally delivered or sent by mail or telegram, telecopy or telex
confirmed by letter, addressed to the Company at 0000 Xxxxxx Xxxx, Xxxxxxxxx,
Xxxx 00000, telephone: (000) 000-0000, telecopy: (000) 000-0000, to the
attention of the Office of the Secretary, or at any other address of which the
Company shall have notified the Depositary in writing.
Any and all notices to be given to the Depositary hereunder or
under the Receipts shall be in writing and shall be deemed to have been duly
given if personally delivered or sent by mail or by telegram, telecopy or telex
confirmed by letter, addressed to the Depositary at the Depositary's Office, at
[ ], telephone _________, telecopy ________, or at any other address of which
the Depositary shall have notified the Company and the record holders of the
Receipts in writing.
Any and all notices to be given to any record holder of a
Receipt hereunder or under the Receipts shall be in writing and shall be deemed
to have been duly given if personally delivered or sent by mail or by telegram,
telecopy or telex confirmed by letter, addressed to such record holder at the
address of such record holder as it appears on the books of the Depositary, or
if such holder shall have filed with the Depositary a written request that
notices intended for such holder be mailed to some other address, at the address
designated in such request.
Delivery of a notice sent by mail or by telegram, telecopy or
telex shall be deemed to be effected at the time when a duly addressed letter
containing the same (or a confirmation thereof in the case of a telegram,
telecopy or telex message) is deposited, postage prepaid, in a post office
letter box. The Depositary or the Company may, however, act upon any telegram,
telecopy or telex message received by it from the other or from any holder of a
Receipt, notwithstanding that such telegram, telecopy or telex message shall not
subsequently be confirmed by letter or as aforesaid.
Section 7.5. Depositary's Agents.
The Depositary may from time to time appoint Depositary's
Agents to act in any respect for the Depositary for the purposes of this Deposit
Agreement and may at any time appoint additional Depositary's Agents and vary or
terminate the appointment of such Depositary's Agents. The Depositary will
notify the Company of any such action.
Section 7.6. Holders of Receipts are Parties.
By acceptance of delivery of the Receipts, the holder of any
such Receipt from time to time shall be deemed to have agreed to become a party
to this Deposit Agreement and to be bound by all of the terms and conditions
hereof and of the Receipts to the same extent as though such person executed
this Deposit Agreement.
Section 7.7. Governing Law.
THIS DEPOSIT AGREEMENT AND THE RECEIPTS AND ALL RIGHTS
HEREUNDER AND THEREUNDER AND PROVISIONS HEREOF AND THEREOF SHALL BE GOVERNED BY,
AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK (WITHOUT
REFERENCE TO APPLICABLE CONFLICTS OF LAWS PROVISIONS).
Section 7.8. Inspection of Deposit Agreement.
Copies of this Deposit Agreement shall be filed with the
Depositary and the Depositary's Agents and shall be open to inspection during
business hours at the Depositary's Office and the respective offices of the
Depositary's Agent, if any, by any holder of a Receipt.
Section 7.9. Headings.
The headings of articles and sections in this Deposit
Agreement and in the form of the Receipt set forth in Exhibit A hereto have been
inserted for convenience only and are not to be regarded as a part of this
Deposit Agreement or the Receipts or to have any bearing upon the meaning or
interpretation of any provision contained herein or in the Receipts.
IN WITNESS WHEREOF, the Company and the Depositary have duly
executed this Deposit Agreement as of the day and year first above set forth,
and all holders of Receipts shall become parties hereto by and upon acceptance
by them of delivery of Receipts issued in accordance with the terms hereof.
OHIO CASUALTY CORPORATION
Attested by
_________________________ By:_________________________
Name:
Title:
[SEAL]
[ ], as Depositary
Attested by:
__________________________ By:_________________________
Name:
Title:
[SEAL]
Exhibit A
[FORM OF FACE OF RECEIPT]
TEMPORARY RECEIPT - Exchangeable for Definitive Engraved Receipt When Ready for
Delivery
NUMBER
DEPOSITARY SHARES
CERTIFICATE FOR NOT MORE THAN ________ DEPOSITARY SHARES TDR
DEPOSITARY RECEIPT FOR DEPOSITARY SHARES, REPRESENTING
[SERIAL PREFERRED STOCK] OF OHIO CASUALTY CORPORATION
CUSIP________
INCORPORATED UNDER THE LAWS OF THE STATE OF OHIO (SEE REVERSE FOR CERTAIN
DEFINITIONS)
_______________________________, as Depositary (the "Depositary"), hereby
certifies that ____________________ is the registered owner of ________________
DEPOSITARY SHARES ("Depository Shares"), each Depositary Share representing
_____________ of one share of [insert title of stock],
____________________________________________) (the "Stock"), of Ohio Casualty
Corporation, an Ohio corporation (the "Company"), on deposit with the
Depositary, subject to the terms and entitled to the benefits of the Deposit
Agreement dated as of [DATE] (the "Deposit Agreement"), between the Company and
the Depositary. By accepting this Depositary Receipt the holder hereof becomes a
party to and agrees to be bound by all the terms and conditions of the Deposit
Agreement. This Depositary Receipt shall not be valid or obligatory for any
purpose or entitled to any benefits under the Deposit Agreement unless it shall
have been executed by the Depositary by the manual signature of a duly
authorized officer or, if executed in facsimile by the Depository, countersigned
by a Registrar in respect of the Depositary Receipts by the manual signature of
a duly authorized officer thereof.
Dated: Countersigned:
______________ ______________________
Depositary Registrar
By:___________ By:___________________
Authorized Officer Authorized Officer
[FORM OF REVERSE OF RECEIPT]
OHIO CASUALTY CORPORATION
OHIO CASUALTY CORPORATION WILL FURNISH WITHOUT CHARGE TO EACH
RECEIPT HOLDER WHO SO REQUESTS A COPY OF THE DEPOSIT AGREEMENT AND A STATEMENT
OR SUMMARY OF THE POWERS, DESIGNATIONS, PREFERENCES AND RELATIVE, PARTICIPATING,
OPTIONAL OR OTHER SPECIAL RIGHTS OF EACH CLASS OF STOCK OR SERIES THEREOF WHICH
THE COMPANY IS AUTHORIZED TO ISSUE AND OF THE QUALIFICATIONS, LIMITATIONS OR
RESTRICTIONS OF SUCH PREFERENCES AND/OR RIGHTS. ANY SUCH REQUEST IS TO BE
ADDRESSED TO THE TRANSFER AGENT NAMED ON THE FACE OF THIS RECEIPT.
The following abbreviations when used in the inscription on
the face of this receipt shall be construed as though they were written out in
full according to applicable laws or regulations.
TEN COM - as tenants in common
TEN ENT - as tenants by the entireties Act
JT TEN - as joint tenants with right
of survivorship and not as
tenants in common
UNIF GIFT MIN ACT ________ Custodian _______
(Cust) (Minor)
Under Uniform Gifts to Minors Act ______________
(State)
Additional abbreviations may also be used though not in the above list For value
received,_______________ hereby sells, assigns and transfers unto
PLEASE INSERT SOCIAL SECURITY OR OTHER
IDENTIFYING NUMBER OF ASSIGNEE
PLEASE PRINT OR TYPEWRITE NAME AND ADDRESS INCLUDING POSTAL ZIP CODE OF ASSIGNEE
_________________________________________ Depositary Shares represented by the
within Receipt, and do hereby irrevocably constitute and appoint
________________________________________ Attorney to transfer the said
Depositary Shares on the books of the within-named Depositary with full power of
substitution in the premises
[DATE]
NOTICE: The signature to the assignment must correspond with the name
as written upon the face of this Receipt in every particular, without
alteration or enlargement or any change whatever.
(GUARANTEE OF SIGNATURE/S)
Authorized Signature____________________________
Name and Title__________________________________
Dated __________________________________________
Name of Firm:___________________________________
Notice: If applicable, all signatures on this assignment must be guaranteed by
a firm that is a member of a registered national securities exchange of
the National Association of Securities Dealers, Inc., or by a
commercial bank or trust company having an office or correspondent in
the United States (an "Eligible Institution"). However, signatures need
not be guaranteed if this assignment is made for the account of an
Eligible Institution.
