EXHIBIT 4.10
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JACOR COMMUNICATIONS, INC.
and
[_________________________________],
As Depositary
and
HOLDERS OF DEPOSITARY RECEIPTS
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DEPOSIT AGREEMENT
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Dated as of [____________], 199[_]
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TABLE OF CONTENTS
PAGE
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ARTICLE I
DEFINITIONS .............................. 1
ARTICLE II
FORM OF RECEIPTS, DEPOSIT OF STOCK,
EXECUTION AND DELIVERY, TRANSFER, SURRENDER,
REDEMPTION AND CONVERSION OF RECEIPTS.................. 3
SECTION 2.1. Form and Transfer of Receipts................................. 3
SECTION 2.2. Deposit of Stock; Execution and Delivery of Receipts in
Respect Thereof.......................................... 4
SECTION 2.3. Redemption and Conversion of Stock............................ 4
SECTION 2.4. Register of Transfer of Receipts.............................. 7
SECTION 2.5. Combination and Split-ups of Receipts ........................ 7
SECTION 2.6. Surrender of Receipts and Withdrawal of Stock ................ 7
SECTION 2.7. Limitations on Execution and Delivery, Transfer, Split-up,
Combination, Surrender and Exchange of Receipts and
Withdrawal or Deposit of Stock........................... 8
SECTION 2.8. Lost Receipts, etc............................................ 9
SECTION 2.9. Cancellation and Destruction of Surrendered Receipts.......... 9
ARTICLE III
CERTAIN OBLIGATIONS OF HOLDERS OF RECEIPTS
AND THE COMPANY............................ 9
SECTION 3.1. Filing Proofs, Certificates and Other Information............. 9
SECTION 3.2. Payment of Taxes or Other Governmental Charges................ 10
SECTION 3.3. Withholding .................................................. 10
SECTION 3.4. Representations and Warranties as to Stock ................... 10
ARTICLE IV
THE STOCK, NOTICES........................... 11
SECTION 4.1. Cash Distributions............................................ 11
SECTION 4.2. Distributions Other Than Cash................................. 11
SECTION 4.3. Subscription Rights, Preferences or Privileges ............... 12
SECTION 4.4. Notice of Dividends, Fixing of Record Date for Holders of
Receipts................................................. 12
SECTION 4.5. Voting Rights................................................. 13
SECTION 4.6. Changes Affecting Stock and Reclassifications,
Recapitalizations, etc. ................................. 13
SECTION 4.7. Reports....................................................... 14
SECTION 4.8. Lists of Receipt Holders...................................... 14
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ARTICLE V
THE DEPOSITARY, THE DEPOSITARY'S AGENTS,
THE REGISTRAR AND THE COMPANY..................... 14
SECTION 5.1. Maintenance of Offices, Agencies, Transfer Books by the
Depositary; the Registrar................................ 14
SECTION 5.2. Prevention or Delay in Performance by the Depositary, the
Depositary's Agents, the Registrar or the Company........ 15
SECTION 5.3. Obligations of the Depositary, the Depositary's Agents, the
Registrar and the Company................................ 15
SECTION 5.4. Resignation and Removal of the Depositary, Appointment of
Successor Depositary..................................... 17
SECTION 5.5. Corporate Notices and Reports................................. 18
SECTION 5.6. Deposit of Stock by the Company............................... 18
SECTION 5.7. Indemnification by the Company................................ 18
SECTION 5.8. Fees, Charges and Expenses.................................... 18
ARTICLE VI
AMENDMENT AND TERMINATION........................ 19
SECTION 6.1. Amendment..................................................... 19
SECTION 6.2. Termination................................................... 19
ARTICLE VII
MISCELLANEOUS.............................. 20
SECTION 7.1. Counterparts.................................................. 20
SECTION 7.2. Exclusive Benefits of Parties................................. 20
SECTION 7.3. Invalidity of Provisions...................................... 20
SECTION 7.4. Notices....................................................... 20
SECTION 7.5. Depositary's Agents........................................... 21
SECTION 7.6. Holders of Receipts Are Parties............................... 21
SECTION 7.7. Governing Law................................................. 21
SECTION 7.8. Headings...................................................... 21
EXHIBIT A ................................................................. A-1
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DEPOSIT AGREEMENT
DEPOSIT AGREEMENT, dated as of [________], 199[_], by and among Jacor
Communications, Inc., a Delaware corporation,
[_________________________________], a [________________], as Depositary, and
all holders from time to time of Receipts issued hereunder.
RECITALS
The Company desires to provide as hereinafter set forth in this Deposit
Agreement, for the deposit of shares of Stock with the Depositary, as agent for
the beneficial owners of the Stock, for the purposes set forth in this Deposit
Agreement and for the issuance hereunder of the Receipts evidencing Depositary
Shares representing an interest in the Stock so deposited; and
The Receipts are to be substantially in the form annexed as Exhibit A to
this Deposit Agreement, with appropriate insertions, modifications and
omissions, as hereinafter provided in this Deposit Agreement.
NOW, THEREFORE, in consideration of the premises contained herein, it is
agreed by and among the parties hereto as follows:
ARTICLE I
DEFINITIONS
The following definitions shall apply to the respective terms (in the
singular and plural forms of such terms) used in this Deposit Agreement and the
Receipts:
"CERTIFICATE OF DESIGNATIONS" shall mean the Certificate of Designations of
the Restated Certificate of Incorporation of the Company, as amended from time
to time, filed with the Secretary of State of the State of Delaware establishing
the Stock as a series of preferred stock of the Company.
"CERTIFICATE OF INCORPORATION" shall mean the Certificate of Incorporation,
as amended and restated from time to time, of the Company.
"COMMON STOCK" shall mean the Company's Common Stock, par value $.01 per
share.
"COMPANY" shall mean Jacor Communications, Inc., a Delaware corporation,
and its successors.
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"CORPORATE OFFICE" shall mean the office of the Depositary in [__________],
[______________] at which at any particular time its business in respect of
matters governed by this Deposit Agreement shall be administered, which at the
date of this Deposit Agreement is located at
[______________________].
"DEPOSIT AGREEMENT" shall mean this agreement, as the same may be amended,
modified or supplemented from time to time.
"DEPOSITARY" shall mean [_________________________________], as Depositary
hereunder, and any successor as Depositary hereunder.
"DEPOSITARY SHARE" shall mean the rights evidenced by the Receipts executed
and delivered hereunder, including the interests in Stock granted to holders of
Receipts pursuant to the terms and conditions of the Deposit Agreement. Each
Depositary Share shall represent an interest in [FRACTION] of a share of Stock
deposited with the Depositary hereunder and the same proportionate interest in
any and all other property received by the Depositary in respect of such share
of Stock and held under this Deposit Agreement. Subject to the terms of this
Deposit Agreement, each record holder of a Receipt evidencing a Depositary Share
or Shares is entitled, proportionately, to all the rights, preferences and
privileges of the Stock represented by such Depositary Share or Shares,
including the dividend, voting and liquidation rights contained in the
Certificate of Designations, and to the benefits of all obligations and duties
of the Company in respect of the Stock under the Certificate of Designations and
the Certificate of Incorporation.
"DEPOSITARY'S AGENT" shall mean an agent appointed by the Depositary as
provided, and for the purposes specified, in Section 7.5.
"NEW YORK OFFICE" shall mean the facility maintained by the Depositary in
the Borough of Manhattan, The City of New York for accepting, executing and
delivering Receipts and other instruments prior to processing such instruments
at the Corporate Office, which facility at the date of this Deposit Agreement is
located at [______________________].
"RECEIPT" shall mean a Depositary Receipt executed and delivered hereunder,
in substantially the form of Exhibit A hereto, evidencing Depositary Share or
Shares, as the same may be amended from time to time in accordance with the
provisions hereof.
"RECORD HOLDER" or "HOLDER" as applied to a Receipt shall mean the person
in whose name a Receipt is registered on the books maintained by or on behalf of
the Depositary for such purpose.
"REGISTRAR" shall mean any bank or trust company appointed to register
ownership and transfers of Receipts as herein provided.
"SECURITIES ACT" shall mean the Securities Act of 1933, as amended.
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"STOCK" shall mean shares of the Company's [__________________________]
Preferred Stock, [______] par value.
ARTICLE II
FORM OF RECEIPTS, DEPOSIT OF STOCK,
EXECUTION AND DELIVERY, TRANSFER, SURRENDER,
REDEMPTION AND CONVERSION OF RECEIPTS
SECTION 2.1. FORM AND TRANSFER OF RECEIPTS.
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. Receipts shall be executed by the
Depositary by the manual signature of a duly authorized signatory of the
Depositary; PROVIDED, HOWEVER, that such signature may be a facsimile if a
Registrar (other than the Depositary) shall have countersigned the Receipts 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 as provided in the
preceding sentence. The Depositary shall record on its books each Receipt
executed as provided above and delivered as hereinafter provided. Receipts
bearing the facsimile signature of anyone who was at any time a duly authorized
officer of the Depositary shall bind the Depositary, notwithstanding that such
officer has ceased to hold such office prior to the delivery of such Receipts.
Receipts may be issued in denominations of any number of whole Depositary
Shares. All Receipts shall be dated the date of their execution.
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 regulation or with the rules and regulations of any
securities exchange upon which the Stock or the Depositary Shares 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 by
reason of the date of issuance of the Stock or otherwise.
Title to any Receipt (and to the Depositary Shares evidenced by such
Receipt) that 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 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 or to any
notice provided for in this Deposit Agreement and for all other purposes.
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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 holder of Stock may deposit such Stock under this Deposit Agreement by
delivery to the Depositary of a certificate or certificates for the Stock to be
deposited, properly endorsed or accompanied, if required by the Depositary, by a
properly executed instrument of transfer in form satisfactory to the Depositary,
together with (i) all such certifications as may be required by the Depositary
in accordance with the provisions of this Deposit Agreement and (ii) a written
order of the Company or such holder, as the case may be, directing the
Depositary to execute and deliver to or upon the written order of the person or
persons stated in such order a Receipt or Receipts for the number of Depositary
Shares representing such deposited Stock.
Upon receipt by the Depositary of a certificate or certificates for Stock
to be deposited hereunder, together with the other documents specified above,
the Depositary shall, as soon as transfer and registration can be accomplished,
present such certificate or certificates to the registrar and transfer agent of
the Stock for transfer and registration in the name of the Depositary or its
nominee of the Stock being deposited. Deposited Stock shall be held by the
Depositary in an account to be established by the Depositary at the Corporate
Office.
Upon receipt by the Depositary of a certificate or certificates for Stock
to be deposited hereunder, together with the other documents specified above,
the Depositary, subject to the terms and conditions of this Deposit Agreement,
shall execute and deliver, to or upon the order of the person or persons named
in the written order delivered to the Depositary referred to in the first
paragraph of this Section 2.2, a Receipt or Receipts for the number of whole
Depositary Shares representing the Stock so deposited and registered in such
name or names as may be requested by such person or persons. The Depositary
shall execute and deliver such Receipt or Receipts at the New York Office,
except that, at the request, risk and expense of any person requesting such
delivery and for the account of such person, such delivery may be made at such
other place as may be designated by such person. In each case, delivery will be
made only upon payment by such person to the Depositary of all taxes and other
governmental charges and any fees payable in connection with such deposit and
the transfer of the deposited Stock.
The Company shall deliver to the Depositary from time to time such
quantities of Receipts as the Depositary may request to enable the Depositary to
perform its obligations under this Deposit Agreement.
SECTION 2.3. REDEMPTION AND CONVERSION OF STOCK.(*)
Whenever the Company shall elect to redeem or be required to convert shares
of Stock into shares of Common Stock in accordance with the Certificate of
Designations, the Company shall (unless otherwise agreed in writing with the
Depositary) give the Depositary in its capacity as Depositary not less than 5
business days' prior notice of the proposed date of the mailing of a notice of
redemption or conversion of Stock and the simultaneous redemption or conversion
of the
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Depositary Shares representing the Stock to be redeemed or converted and of the
number of such shares of Stock held by the Depositary to be redeemed or
converted. The Depositary shall, as directed by the Company in writing, mail,
first class postage prepaid, notice of the redemption or conversion of Stock and
the proposed simultaneous redemption or conversion of the Depositary Shares
representing the Stock to be redeemed or converted, not less than 30 and not
more than 60 days prior to the date fixed for redemption or conversion of such
Stock and Depositary Shares, to the record holders of the Receipts evidencing
the Depositary Shares to be so redeemed or converted, at the addresses of such
holders as the same appear on the records of the Depositary; PROVIDED, that if
the effectiveness of a Merger or Consolidation (as defined in the Certificate of
Designations) makes it impracticable to provide at least 30 days' notice, the
Depositary shall provide such notice as soon as practicable prior to such
effectiveness. Any such notice shall also be published in the same manner as
notices of redemption or conversion of Stock are required to be published
pursuant to the Certificate of Designations. Notwithstanding the foregoing,
neither failure to mail or publish any such notice to one or more such holders
nor any defect in any notice shall affect the sufficiency of the proceedings for
redemption or conversion. The Company shall provide the Depositary with such
notice, and each such notice shall state: the redemption or conversion date; the
number of Depositary Shares to be redeemed or converted; if fewer than all the
Depositary Shares held by any holder are to be redeemed, the number of such
Depositary Shares held by such holder to be so redeemed; in the case of a call
for redemption, the call price payable upon redemption and the Current Market
Price (as defined in the Certificate of Designations to be used to calculate the
number of shares of Common Stock deliverable upon redemption; whether the
Company is exercising any option to deliver shares of Common Stock in lieu of
any cash consideration pursuant to the Certificate of Designations and the
Current Market Price to be used to calculate the number of such shares; the
place or places where Receipts evidencing Depositary Shares to be redeemed or
converted are to be surrendered for redemption or conversion; whether the
Company is depositing with a bank or trust company on or before the redemption
or conversion date, the shares of Common Stock and cash, if any, payable by the
Company and the proposed date of such deposit; the amount of accrued and unpaid
dividends payable per share of Stock to be redeemed or converted to and
including such redemption or conversion date, as the case may be, and that
dividends in respect of the Stock represented by the Depositary Shares to be
redeemed or converted will cease to accrue on such redemption or conversion date
(unless the Company shall default in delivering shares of Common Stock and cash,
if any, at the time and place specified in such notice). On the date of any
such redemption or conversion, the Depositary shall surrender the certificate or
certificates held by the Depositary evidencing the number of shares of Stock to
be redeemed or converted in the manner specified in the notice of redemption or
conversion of Stock provided by the Company pursuant to the Certificate of
Designations. The Depositary shall, thereafter, redeem or convert the number of
Depositary Shares representing such redeemed or converted Stock upon the
surrender of Receipts evidencing such Depositary Shares in the manner provided
in the notice sent to record holders of Receipts; PROVIDED, that the Depositary
shall have received, upon surrendering such certificate or certificates as
aforesaid, a sufficient number of shares of Common Stock to convert or redeem
such number of Depositary Shares (including, in the event that the Company
elects pursuant to the Certificate of Designations to exercise any option to
deliver shares of Common Stock in lieu of any cash consideration payable on the
Effective Date (as defined in the Certificate of Designations) of
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any Merger or Consolidation, a number of shares of Common Stock equal to such
cash consideration (as determined in the manner set forth in the Certificate of
Designations)), plus any accrued and unpaid dividends payable with respect
thereto to and including the date of any such redemption or conversion and any
other cash consideration payable on the Effective Date of a Merger or
Consolidation (other than any dividends or other cash consideration payable on
the Effective Date of a Merger or Consolidation that the Company has elected to
pay in shares of Common Stock pursuant to the Certificate of Designations) as
instructed and calculated by the Company. In case fewer than all the
outstanding Depositary Shares are to be redeemed, the Depositary Shares to be
redeemed shall be selected by the Depositary by lot or on a pro rata basis.
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(*) This section to be modified to discuss specific redemption or
conversion terms of the Stock, if any.
Notice having been mailed by the Depositary as aforesaid, from and after
the redemption or conversion date (unless the Company shall have failed to
redeem or convert the shares of Stock to be redeemed or converted by it upon the
surrender of the certificate or certificates therefor by the Depositary as
described in the preceding paragraph), the Depositary Shares called for
redemption or subject to conversion shall be deemed no longer to be outstanding
and all rights of the holders of Receipts evidencing such Depositary Shares
(except the right to receive the shares of Common Stock and cash, if any,
payable upon redemption or conversion upon surrender of such Receipts) shall, to
the extent of such Depositary Shares, cease and terminate. Upon surrender in
accordance with said notice of the Receipts evidencing such Depositary Shares
(properly endorsed or assigned for transfer, if the Depositary shall so
require), such Depositary Shares shall be converted into or redeemed for shares
of Common Stock at a rate equal to [FRACTION] of the number of shares of Common
Stock delivered, and the holders thereof shall be entitled to [FRACTION] of the
cash, if any, payable, in respect of the shares of Stock pursuant to the
Certificate of Designations. The foregoing shall be subject further to the
terms and conditions of the Certificate of Designations.
If fewer than all of 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 shares of Common Stock
and all accrued and unpaid dividends to and including the date fixed for
redemption payable in respect of the Depositary Shares called for redemption, a
new Receipt evidencing the Depositary Shares evidenced by such prior Receipt and
not called for redemption.
To the extent that Depositary Shares are converted into or redeemed for
shares of Common Stock and all of such shares of Common Stock cannot be
distributed to the record holders of Receipts converted or called for redemption
without creating fractional interests in such shares, the Depositary may, with
the consent of the Company, adopt such method as it deems equitable and
practicable for the purpose of effecting such distribution, including the sale
(at public or private sale) of such shares of Common Stock at such place or
places and upon such terms as it may deem proper, and the net proceeds of any
such sale shall, subject to Section 3.2, be distributed or made available
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for distribution to such record holders that would otherwise receive fractional
interests in such shares of Common Stock.
The Depositary shall not be required (a) to issue, transfer or exchange any
Receipts for a period beginning at the opening of business 15 days next
preceding any selection of Depositary Shares and Stock to be redeemed and ending
at the close of business on the day of the mailing of notice of redemption of
Depositary Shares or (b) to transfer or exchange for another Receipt any Receipt
evidencing Depositary Shares called or being called for redemption, in whole or
in part, or subject to conversion except as provided in the second preceding
paragraph of this Section 2.3.
SECTION 2.4. REGISTER OF TRANSFER OF RECEIPTS.
Subject to the terms and conditions of this Deposit Agreement, the
Depositary shall register on its books from time to time transfers of Receipts
upon any surrender thereof at the Corporate Office, the New York Office or such
other office as the Depositary may designate for such purpose, by the record
holder in person or by a duly authorized attorney, properly endorsed or
accompanied by a properly executed instrument of transfer, together with
evidence of the payment of any transfer taxes as may be required by law. Upon
such surrender, the Depositary shall execute a new Receipt or Receipts and
deliver the same to or upon the order of the person entitled thereto evidencing
the same aggregate number of Depositary Shares evidenced by the Receipt or
Receipts surrendered.
SECTION 2.5. COMBINATION AND SPLIT-UPS OF RECEIPTS.
Upon surrender of a Receipt or Receipts at the Corporate Office, the New
York Office or such other office as the Depositary may designate for the purpose
of effecting a split-up or combination of Receipts, subject to the terms and
conditions of this Deposit Agreement, the Depositary shall execute and deliver a
new Receipt or Receipts in the authorized denominations requested evidencing the
same aggregate number of Depositary Shares evidenced by the Receipt or Receipts
surrendered; provided, however, that the Depositary shall not issue any Receipt
evidencing a fractional Depositary Share.
SECTION 2.6. SURRENDER OF RECEIPTS AND WITHDRAWAL OF STOCK.(*)
Any holder of a Receipt or Receipts may withdraw any or all of the Stock
(but only in whole shares of Stock) represented by the Depositary Shares
evidenced by such Receipts and all money and other property, if any, represented
by such Depositary Shares by surrendering such Receipt or Receipts at the
Corporate Office, the New York Office or at such other office as the Depositary
may designate for such withdrawals. After such surrender, without unreasonable
delay, the Depositary shall deliver to such holder, or to the person or persons
designated by such holder as hereinafter provided, the whole number of shares of
Stock and all such money and other property, if any, represented by the
Depositary Shares evidenced by the Receipt or Receipts so surrendered for
withdrawal. If the 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 whole
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Depositary Shares representing the whole number of shares of Stock to be
withdrawn, the Depositary shall at the same time, in addition to such whole
number of shares of Stock and such money and other property, if any, to be
withdrawn, deliver to such holder, or (subject to Section 2.4) upon his order, a
new Receipt or Receipts evidencing such excess number of whole Depositary
Shares. Delivery of the Stock and such money and other property being withdrawn
may be made by the delivery of such certificates, documents of title and other
instruments as the Depositary may deem appropriate, which, if required by the
Depositary, shall be properly endorsed or accompanied by proper instruments of
transfer.
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(*) This Section to be modified to reflect any restrictions on withdrawal
of underlying securities.
If the Stock and the money and other property 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 and that the
signature on such instrument of transfer be guaranteed by an eligible guarantor
institution (banks, stockbrokers, savings and loan associations and credit
unions with membership in an approved signature guarantee medallion program)
pursuant to Rule 17Ad-15 of the Securities Exchange Act of 1934, as amended.
The Depositary shall deliver the Stock and the money and other property, if
any, represented by the Depositary Shares evidenced by Receipts surrendered for
withdrawal, without unreasonable delay, at the office at which such Receipts
were surrendered, 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, without unreasonable delay, at such other place as
may be designated by such holder.
SECTION 2.7. LIMITATIONS ON EXECUTION AND DELIVERY, TRANSFER, SPLIT-UP,
COMBINATION, SURRENDER AND EXCHANGE OF RECEIPTS AND WITHDRAWAL OR DEPOSIT OF
STOCK.
As a condition precedent to the execution and delivery, registration of
transfer, split-up, combination, surrender or exchange of any Receipt, the
delivery of any distribution thereon or the withdrawal or deposit of Stock, the
Depositary, any of the Depositary's Agents or the Company may require any or all
of the following: (i) 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 tax or other governmental charge with respect
thereto (including any such tax or charge with respect to the Stock being
deposited or withdrawn or with respect to the Common Stock or other securities
or property of the Company being issued upon conversion or redemption); (ii)
production of proof satisfactory to it as to the identity and genuineness of any
signature; and (iii) compliance with such reasonable regulations, if any, as the
Depositary or the Company may establish not inconsistent with the provisions of
this Deposit Agreement.
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The deposit of Stock may be refused, the delivery of Receipts against Stock
or the registration of transfer, split-up, combination, surrender or exchange of
outstanding Receipts and the withdrawal of deposited Stock may be suspended (i)
during any period when the register of stockholders of the Company is closed,
(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, or under any provision of this Deposit Agreement, or (iii) with the
approval of the Company, for any other reason. Without limitation of the
foregoing, the Depositary shall not knowingly accept for deposit under this
Deposit Agreement any shares of Stock that are required to be registered under
the Securities Act unless a registration statement under the Securities Act is
in effect as to such shares of Stock.
SECTION 2.8. LOST RECEIPTS, ETC.
In case any Receipt shall be mutilated or destroyed or lost or stolen, the
Depositary shall execute and deliver a Receipt of like form and tenor in
exchange and substitution for such mutilated Receipt or in lieu of and in
substitution for such destroyed, lost or stolen Receipt unless the Depositary
has notice that such Receipt has been acquired by a bona fide purchaser;
provided, however, that the holder thereof provides the Depositary with (i)
evidence satisfactory to the Depositary of such destruction, loss or theft of
such Receipt, of the authenticity thereof and of his ownership thereof, (ii)
reasonable indemnification satisfactory to the Depositary or the payment of any
charges incurred by the Depositary in obtaining insurance in lieu of such
indemnification and (iii) payment of any expense (including fees, charges and
expenses of the Depositary) in connection with such execution and delivery.
SECTION 2.9. CANCELLATION AND DESTRUCTION OF SURRENDERED RECEIPTS.
All Receipts surrendered to the Depositary or any Depositary's Agent shall
be canceled by the Depositary. Except as prohibited by applicable law or
regulation, the Depositary is authorized to destroy such Receipts so cancelled.
ARTICLE III
CERTAIN OBLIGATIONS OF HOLDERS
OF RECEIPTS AND THE COMPANY
SECTION 3.1. FILING PROOFS, CERTIFICATES AND OTHER INFORMATION.
Any person presenting Stock for deposit or any holder of a Receipt may be
required from time to time to file such proof of residence or other information,
to execute such certificates and to make such representations and warranties as
the Depositary or the Company may reasonably deem necessary or proper. The
Depositary or the Company may withhold or delay the delivery of any Receipt, the
registration of transfer, redemption, conversion or exchange of any Receipt, the
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withdrawal of the Stock represented by the Depositary Shares evidenced by any
Receipt or the distribution of any dividend or other distribution until such
proof or other information is filed, such certificates are executed or such
representations and warranties are made.
SECTION 3.2. PAYMENT OF TAXES OR OTHER GOVERNMENTAL CHARGES.
If any tax or other governmental charge shall become payable by or on
behalf of the Depositary with respect to (i) any Receipt, (ii) the Depositary
Shares evidenced by such Receipt, (iii) the Stock (or fractional interest
therein) or other property represented by such Depositary Shares, or (iv) any
transaction referred to in Section 4.6, such tax (including transfer, issuance
or acquisition taxes, if any) or governmental charge shall be payable by the
holder of such Receipt, who shall pay the amount thereof to the Depositary.
Until such payment is made, registration of transfer of any Receipt or any
split-up or combination thereof or any withdrawal of the Stock or money or other
property, if any, represented by the Depositary Shares evidenced by such Receipt
may be refused, any dividend or other distribution may be withheld and any part
or all of the Stock or other property (including Common Stock received in
connection with a conversion or redemption of Stock) represented by the
Depositary Shares evidenced by such Receipt may be sold for the account of the
holder thereof (after attempting by reasonable means to notify such holder prior
to such sale). Any dividend or other distribution so withheld and the proceeds
of any such sale may be applied to any payment of such tax or other governmental
charge, the holder of such Receipt remaining liable for any deficiency.
SECTION 3.3. WITHHOLDING.
The Depositary shall act as the tax withholding agent for any payments,
distributions and exchanges made with respect to the Depositary Shares and
Receipts, and the Stock, Common Stock or other securities or assets represented
thereby (collectively, the "Securities"). The Depositary shall be responsible
with respect to the Securities for the timely (i) collection and deposit of any
required withholding or backup withholding tax, and (ii) filing of any
information returns or other documents with federal (and other applicable)
taxing authorities.
SECTION 3.4. REPRESENTATIONS AND WARRANTIES AS TO STOCK.
In the case of the initial deposit of the Stock, the Company and, in the
case of subsequent deposits thereof, each person so depositing Stock under this
Deposit Agreement shall be deemed thereby to represent and warrant that such
Stock and each certificate therefor are valid and that the person making such
deposit is duly authorized to do so. Such representations and warranties shall
survive the deposit of the Stock and the issuance of Receipts therefor.
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ARTICLE IV
THE STOCK, NOTICES
SECTION 4.1. CASH DISTRIBUTIONS.
Whenever the Depositary shall receive any cash dividend or other cash
distribution on the Stock, the Depositary shall, subject to Section 3.2,
distribute to record holders of Receipts on the record date fixed pursuant to
Section 4.4 such amounts of such sum as are, as nearly as practicable, in
proportion to the respective numbers of Depositary Shares evidenced by the
Receipts held by such holders; provided, however, that in case the Company or
the Depositary shall be required by law to withhold and does withhold from any
cash dividend or other cash distribution in respect of the Stock an amount on
account of taxes, the amount made available for distribution or distributed 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 owner 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 sum received by the
Depositary for distribution to record holders of Receipts then outstanding.
SECTION 4.2. DISTRIBUTIONS OTHER THAN CASH.
Whenever the Depositary shall receive any distribution other than cash,
rights, preferences or privileges upon the Stock, the Depositary shall, subject
to Section 3.2, distribute to record holders of Receipts on the record date
fixed pursuant to Section 4.4 such amounts of the securities or property
received by it as are, as nearly as practicable, in proportion to the respective
numbers of Depositary Shares evidenced by the Receipts held by such holders, in
any manner that the Depositary and the Company may deem equitable and
practicable for accomplishing such distribution. If, in the opinion of the
Company after consultation with the Depositary, such distribution cannot be made
proportionately among such record holders, or if for any other reason (including
any tax withholding or securities law requirement), the Depositary deems, after
consultation with the Company, such distribution not to be feasible, the
Depositary may, with the approval of the Company which approval shall not be
unreasonably withheld, adopt such method as it deems equitable and practicable
for the purpose of effecting such distribution, including the sale (at public or
private sale) of the securities or property thus received, or any part thereof,
at such place or places and upon such terms as it may deem proper. The net
proceeds of any such sale shall, subject to Section 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.
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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 registered 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 in such manner as the Company shall
instruct (including by the issue to such record holders of warrants representing
such rights, preferences or privileges); provided, however, that (a) if at the
time of issue or offer of any such rights, preferences or privileges the Company
determines and instructs the Depositary that it is not lawful or feasible to
make such rights, preferences or privileges available to some or all holders of
Receipts (by the issue of warrants or otherwise) or (b) if and to the extent
instructed by holders of Receipts who do not desire to exercise such rights,
preferences or privileges, the Depositary shall then, in each case, and if
applicable laws or the terms of such rights, preferences or privileges so
permit, sell such rights, preferences or privileges of such holders 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 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.
If registration under the Securities Act of the securities to which any
rights, preferences or privileges relate is required in order for holders of
Receipts to be offered or sold such securities, the Company shall promptly file
a registration statement pursuant to the Securities 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 the Securities Act.
If any other action under the law 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 reasonable
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, FIXING OF RECORD DATE FOR HOLDERS OF
RECEIPTS.
Whenever (i) any cash dividend or other cash distribution shall become
payable, or any distribution other than cash shall be made, or any rights,
preferences or privileges shall at any time be offered, with respect to the
Stock, or (ii) the Depositary shall receive notice of any meeting at which
holders of Stock are entitled to vote or of which holders of Stock are entitled
to notice or of
12
the mandatory conversion of, or any election on the part of the Company to call
for the redemption of, 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 (x) who shall be entitled to receive such dividend,
distribution, rights, preferences or privileges or the net proceeds of the sale
thereof, or (y) who shall be entitled to give instructions for the exercise of
voting rights at any such meeting or to receive notice of such meeting or of
such conversion or redemption.
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 be provided by the
Company and which shall contain (i) such information as is contained in such
notice of meeting, (ii) a statement that the holders of Receipts at the close of
business on a specified record date fixed pursuant to Section 4.4 will be
entitled, subject to any applicable provision of law, the Certificate of
Incorporation or the Certificate of Designations, to instruct the Depositary as
to the exercise of the voting rights pertaining to the Stock represented by
their respective Depositary Shares and (iii) a brief statement as to the manner
in which such instructions may be given. Upon the written request of a holder
of a Receipt on such record date, the Depositary shall endeavor insofar as
practicable to vote or cause to be voted the Stock represented by the Depositary
Shares evidenced by such Receipt in accordance with the instructions set forth
in such request. The Company hereby agrees to take all reasonable action that
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 abstain from
voting to the extent of the Stock represented by the Depositary Shares evidenced
by such Receipt.
SECTION 4.6. CHANGES AFFECTING STOCK AND RECLASSIFICATIONS,
RECAPITALIZATIONS, ETC.
Upon any split-up, consolidation or any other reclassification of Stock, or
upon any recapitalization, reorganization, merger, amalgamation or consolidation
affecting the Company or to which it is a party (other than a Merger or
Consolidation) or sale of all or substantially all of the Company's assets, the
Depositary shall treat any shares of stock or other securities or property
(including cash) that shall be received by the Depositary in exchange for or
upon conversion of or in respect of the Stock as new deposited property under
this Deposit Agreement, and Receipts then outstanding shall thenceforth
represent the proportionate interests of holders thereof in the new deposited
property 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 property.
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SECTION 4.7. REPORTS.
The Depositary shall make available for inspection by holders of Receipts
at the Corporate Office, the New York Office and at such other places as it may
from time to time deem advisable during normal business hours any reports and
communications received from the Company that 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, addresses and
holdings of Depositary Shares of all persons in whose names Receipts are
registered on the books of the Depositary. At the expense of the Company, the
Company shall have the right to inspect transfer and registration records of the
Depositary, any Depositary's Agent or the Registrar, take copies thereof and
require the Depositary, any Depositary's Agent or the Registrar to supply copies
of such portions of such records as the Company may request.
ARTICLE V
THE DEPOSITARY, THE DEPOSITARY'S AGENTS,
THE REGISTRAR AND THE COMPANY
SECTION 5.1. MAINTENANCE OF OFFICES, AGENCIES, TRANSFER BOOKS BY THE
DEPOSITARY; THE REGISTRAR.
Upon execution of this Deposit Agreement in accordance with its terms, the
Depositary shall maintain (i) at the New York Office facilities for the
execution and delivery, registration, registration of transfer, surrender and
exchange, split-up, combination, redemption and conversion of Receipts and
deposit and withdrawal of Stock and (ii) at the Corporate Office and at the
offices of the Depositary's Agents, if any, facilities for the delivery,
registration, registration of transfer, surrender and exchange, split-up,
combination, conversion and redemption of Receipts and deposit and withdrawal of
Stock, all in accordance with the provisions of this Deposit Agreement.
The Depositary shall keep books at the Corporate Office for the
registration and transfer of Receipts, 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 Depositary that
such inspection shall be for a proper purpose reasonably related to such
person's interest as an owner of Depositary Shares. The Depositary shall
consult with the Company upon receipt of any request for inspection. The
Depositary may close such books, at any time or from time to time, when deemed
expedient by it in connection with the performance of its duties hereunder.
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If the Receipts or the Depositary Shares evidenced thereby or the Stock
represented by such Depositary Shares shall be listed on one or more stock
exchanges, the Depositary shall, with the approval of the Company, appoint a
Registrar for registry of such Receipts or Depositary Shares in accordance with
the requirements of such exchange or exchanges. Such Registrar (which may be
the Depositary if so permitted by the requirements of such exchange or
exchanges) may be removed and a substitute registrar appointed by the Depositary
upon the request or with the approval of the Company. In addition, if the
Receipts, such Depositary Shares or such Stock are listed on one or more stock
exchanges, the Depositary will, at the request of the Company, arrange such
facilities for the delivery, registration, registration of transfer, surrender
and exchange, split-up, combination, redemption or conversion of such Receipts,
such Depositary Shares or such Stock as may be required by law or applicable
stock exchange regulations.
SECTION 5.2. PREVENTION 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 the 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 Registrar or any Depositary's Agent, by reason of any
provision, present or future, of the Certificate of Incorporation or the
Certificate of Designations or, in the case of the Company, the Depositary, the
Registrar or any Depositary's Agent, by reason of any act of God or war or other
circumstances beyond the control of the relevant party, the Depositary, any
Depositary's Agent, the Registrar or the Company shall be prevented or forbidden
from doing or performing any act or thing that the terms of this Deposit
Agreement provide shall be done or performed; nor shall the Depositary, any
Depositary's Agent, the Registrar or the Company incur any liability to any
holder of a Receipt (i) by reason of any nonperformance or delay, caused as
aforesaid, in the performance of any act or thing that 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 the case of the Depositary, any Depositary's Agent or the
Registrar, if any such exercise or failure to exercise discretion is caused by
its negligence or bad faith.
SECTION 5.3. OBLIGATIONS OF THE DEPOSITARY, THE DEPOSITARY'S AGENTS, THE
REGISTRAR AND THE COMPANY.
The Company assumes no obligation and shall be subject to no liability
under this Deposit Agreement or the Receipts to holders or other persons, except
to perform in good faith such obligations as are specifically set forth and
undertaken by it to perform in this Deposit Agreement. Each of the Depositary,
the Depositary's Agents and the Registrar assumes no obligation and shall be
subject to no liability under this Deposit Agreement or the Receipts to holders
or other persons, except to perform such obligations as are specifically set
forth and undertaken by it to perform in this Deposit Agreement without
negligence or bad faith.
15
Neither the Depositary nor any Depositary's Agent nor the Registrar nor the
Company shall be under any obligation to appear in, prosecute or defend any
action, suit or other proceeding with respect to Stock, Depositary Shares,
Receipts or Common Stock that 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 the Registrar nor the
Company shall be liable for any action or any failure to act by it in reliance
upon the advice of or information from legal counsel, accountants, any person
presenting Stock for deposit, any holder of a Receipt or any other person
believed by it in good faith to be competent to give such advice or information.
The Depositary, any Depositary's Agent, the 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.
The Depositary, the Registrar and any Depositary's Agent may own and deal
in any class of securities of the Company and its affiliates and in Receipts or
Depositary Shares. The Depositary may also act as transfer agent or registrar
of any of the securities of the Company and its affiliates.
It is intended that neither the Depositary nor any Depositary's Agent shall
be deemed to be an "issuer" of the Stock, the Depositary Shares, the Receipts or
the Common Stock issued upon conversion or redemption of the Stock under the
federal securities laws or applicable state securities laws, it being expressly
understood and agreed that the Depositary and any Depositary's Agent are acting
only in a ministerial capacity as Depositary for the Stock; provided, however,
that the Depositary agrees to comply with all information reporting and
withholding requirements applicable to it under law or this Deposit Agreement in
its capacity as Depositary.
Neither the Depositary (or its officers, directors, employees or agents)
nor any Depositary's Agent makes any representation or has any responsibility as
to the validity of the Registration Statement pursuant to which the Depositary
Shares are registered under the Securities Act, the Stock, the Depositary Shares
or any instruments referred to therein or herein, or as to the correctness of
any statement made therein or herein; provided, however, that the Depositary is
responsible for its representations in this Deposit Agreement.
The Depositary assumes no responsibility for the correctness of the
description that appears in the Receipts, which can be taken as a statement of
the Company summarizing certain provisions of this Deposit Agreement.
Notwithstanding any other provision herein or in the Receipts, the Depositary
makes no warranties or representations as to the validity, genuineness or
sufficiency of any Stock at any time deposited with the Depositary hereunder or
of the Depositary Shares, as to the validity or sufficiency of this Deposit
Agreement, as to the value of the Depositary Shares or as to any right, title or
interest of the record holders of Receipts in and to the Depositary Shares
except that the Depositary hereby represents and warrants as follows: (i) the
Depositary has been duly organized and is validly existing and in good standing
under the laws of the State of [____________], with full power, authority and
legal right under such law to execute, deliver and
16
carry out the terms of this Deposit Agreement; (ii) this Deposit Agreement has
been duly authorized, executed and delivered by the Depositary; and (iii) this
Deposit Agreement constitutes a valid and binding obligation of the Depositary,
enforceable against the Depositary in accordance with its terms, except as
enforcement thereof may be limited by bankruptcy, insolvency, reorganization or
other similar laws affecting enforcement of creditors' rights generally and
except as enforcement thereof is subject to general principles of equity
(regardless of whether enforcement is considered in a proceeding in equity or at
law). The Depositary shall not be accountable for the use or application by the
Company of the Depositary Shares or the Receipts or the proceeds thereof.
SECTION 5.4. RESIGNATION AND REMOVAL OF THE DEPOSITARY, APPOINTMENT OF
SUCCESSOR DEPOSITARY.
The Depositary may at any time resign as Depositary hereunder by written
notice via registered mail of its election to do so 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 written 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 45 days after the delivery of the notice of
resignation or removal, as the case may be, appoint a successor depositary,
which shall be a bank or trust company, or an affiliate of 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 a successor
depositary shall not have been appointed in 45 days, the resigning or removed
Depositary may petition a court of competent jurisdiction to appoint 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 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 promptly
execute and deliver an instrument transferring to such successor all rights and
powers of such predecessor hereunder, shall duly assign, transfer and deliver
all rights, 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 into or with which the Depositary may be merged,
consolidated or converted shall be the successor of such Depositary without the
execution or filing of any document or any further act. Such successor
depositary may execute the Receipts either in the name of the predecessor
depositary or in the name of the successor depositary.
17
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 address recorded in the Depositary's books,
copies of all notices and reports (including 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 Certificate of
Incorporation and the Certificate of Designations 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 copies of such documents
as the Depositary may reasonably request. In addition, the Depositary will
transmit to the record holders of Receipts at the Company's expense such other
documents as may be requested by the Company.
SECTION 5.6. DEPOSIT OF STOCK BY THE COMPANY.
The Company agrees with the Depositary that neither the Company nor any
company controlled by the Company will at any time deposit any Stock if such
Stock is required to be registered under the provisions of the Securities Act
and no registration statement is at such time in effect as to such Stock.
SECTION 5.7. INDEMNIFICATION BY THE COMPANY.
The Company agrees to indemnify the Depositary, any Depositary's Agent and
any Registrar against, and hold each of them harmless from, any liability, costs
and expenses (including reasonable fees and expenses of counsel) that may arise
out of or in connection with its acting as Depositary, Depositary's Agent or
Registrar, respectively, under this Deposit Agreement and the Receipts, except
for any liability arising out of negligence, bad faith or willful misconduct on
the part of any such person or persons.
SECTION 5.8. FEES, CHARGES AND EXPENSES.
No fees, charges and expenses of the Depositary or any Depositary's Agent
hereunder or of any Registrar shall be payable by any person other than the
Company, except for any taxes and other governmental charges and except as
provided in this Deposit Agreement. If, at the request of a holder of a
Receipt, the Depositary incurs fees, charges or expenses for which it is not
otherwise liable hereunder, such holder or other person will be liable for such
fees, charges and expenses. All other fees, 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 from time to
time upon consultation and agreement between the Depositary and the Company as
to the amount and nature of such fees, charges and expenses.
18
ARTICLE VI
AMENDMENT AND TERMINATION
SECTION 6.1. AMENDMENT.
The form of the Receipts and any provision 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 that they may deem necessary or desirable. Any
amendment that shall impose or increase any fees, taxes or charges payable by
holders of Receipts (other than taxes and other governmental charges, fees and
other expenses payable by holders pursuant to the terms hereof or of the
Receipts), or that shall otherwise prejudice any substantial existing right of
holders of Receipts, shall not become effective as to outstanding Receipts until
the expiration of 90 days after notice of such amendment shall have been given
to the record holders of outstanding Receipts. Every holder of an outstanding
Receipt at the time any such amendment becomes effective shall be deemed, by
continuing to hold such Receipt, to consent and agree to such amendment and to
be bound by this Deposit Agreement as amended thereby. In no event shall any
amendment impair the right, subject to the provisions of Sections 2.3, 2.6 and
2.7 and Article III, of any owner of any Depositary Shares to surrender the
Receipt evidencing such Depositary Shares with instructions to the Depositary to
deliver to the holder the Stock and all money and other property, if any,
represented thereby, except in order to comply with mandatory provisions of
applicable law.
SECTION 6.2. TERMINATION.
Whenever so directed by the Company, the Depositary will terminate this
Deposit Agreement by mailing notice of such termination to the record holders of
all Receipts then outstanding at least 30 days prior to the date fixed in such
notice for such termination. The Depositary may likewise terminate this Deposit
Agreement if at any time 45 days shall have expired after the Depositary shall
have delivered to the Company a written notice of its election to resign and a
successor depositary shall not have been appointed and accepted its appointment
as provided in Section 5.4.
If any Receipts shall remain outstanding after the date of termination of
this Deposit Agreement, the Depositary thereafter shall discontinue the transfer
of Receipts, shall suspend the distribution of dividends to the holders thereof
and shall not give any further notices (other than notice of such termination)
or perform any further acts under this Deposit Agreement, except as provided
below and that the Depositary shall continue to collect dividends and other
distributions pertaining to Stock, shall sell rights, preferences or privileges
as provided in this Deposit Agreement and shall continue to deliver the Stock
and any money and other property represented by Receipts, without liability for
interest thereon, upon surrender thereof by the holders thereof. At any time
after the expiration of two years from the date of termination, the Depositary
may sell Stock then held hereunder at public or private sale, at such places and
upon such terms as it deems proper and may thereafter hold in a segregated
account the net proceeds of any such sale, together with any money and other
property held by it hereunder, without liability for interest, for the benefit,
pro rata in
19
accordance with their holdings, of the holders of Receipts that have not
heretofore been surrendered. After making such sale, the Depositary shall be
discharged from all obligations under this Deposit Agreement except to account
for such net proceeds and money and other property. Upon the termination of
this Deposit Agreement, the Company shall be discharged from all obligations
under this Deposit Agreement except for its obligations to the Depositary, any
Depositary's Agent and any Registrar under Sections 5.7 and 5.8. In the event
this Deposit Agreement is terminated, the Company hereby agrees to use its best
efforts to list the underlying Stock on the New York Stock Exchange, Inc.
ARTICLE VII
MISCELLANEOUS
SECTION 7.1. COUNTERPARTS.
This Deposit Agreement may be executed by the Company and the Depositary in
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. Delivery of an executed
counterpart of a signature page to this Deposit Agreement by telecopier shall be
effective as delivery of a manually executed counterpart of this 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 Corporate Office and the New York Office and the respective offices
of the Depositary's Agents, if any, by any holder of a Receipt.
SECTION 7.2. EXCLUSIVE BENEFITS 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 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 by telegram or telex or telecopier confirmed by
letter, addressed to the Company at 00 X. XxxxxXxxxxx Xxxxxxxxx, 00xx Xxxxx,
Xxxxxxxxx, Xxxxxxxx 00000, Attention: Treasurer, or at any other place to which
the Company may have transferred its principal executive office.
20
Any 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 or telex or telecopier confirmed by
letter, addressed to the Depositary at the Corporate Office.
Any notices 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 or telex or telecopier
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 or telex or telecopier
shall be deemed to be effected at the time when a duly addressed letter
containing the same (or a duly addressed letter confirming an earlier notice in
the case of a telegram or telex or telecopier message) is deposited, postage
prepaid, in a post office letter box. The Depositary or the Company may,
however, act upon any telegram or telex or telecopier message received by it
from the other or from any holder of a Receipt, notwithstanding that such
telegram or telex or telecopier message shall not subsequently be confirmed by
letter as aforesaid.
SECTION 7.5. DEPOSITARY'S AGENTS.
The Depositary may, with the approval of the Company which approval shall
not be unreasonably withheld, from time to time appoint one or more Depositary's
Agents to act in any respect for the Depositary for the purposes of this Deposit
Agreement and may vary or terminate the appointment of such Depositary's Agents.
SECTION 7.6. HOLDERS OF RECEIPTS ARE PARTIES.
Notwithstanding that holders of Receipts have not executed and delivered
this Deposit Agreement or any counterpart thereof, the holders of Receipts from
time to time shall be deemed to be parties to this Deposit Agreement and shall
be bound by all of the terms and conditions, and be entitled to all of the
benefits, hereof and of the Receipts by acceptance of delivery of Receipts.
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 law of the State of New York without giving effect to
principles of conflict of laws.
SECTION 7.8. 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
21
regarded as a part of this Deposit Agreement or to have any bearing upon the
meaning or interpretation of any provision contained herein or in the Receipts.
IN WITNESS WHEREOF, Jacor Communications, Inc. and
[_________________________] 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.
JACOR COMMUNICATIONS, INC.
Attest:
By: By:
-------------------------------- --------------------------------
Authorized Officer
[ ]
----------------------------------
Attest:
By: By:
-------------------------------- --------------------------------
Authorized Signatory
22
EXHIBIT A
DEPOSITARY RECEIPT
FOR
DEPOSITARY SHARES
EACH REPRESENTING [FRACTION] OF A SHARE OF
[__________________________________] PREFERRED STOCK
OF
JACOR COMMUNICATIONS, INC.
(Incorporated under the Laws of the State of Delaware)
No.
[_________________________________] (the "Depositary") hereby certifies
that ____________ is the registered owner of ___________ Depositary Shares (the
"Depositary Shares"), each Depositary Share representing [FRACTION] of a share
of [____________________________] Preferred Stock, [____] par value (the
"Stock"), of Jacor Communications, Inc., a corporation duly organized and
existing under the laws of the State of Delaware (the "Company"), and the same
proportionate interest in any and all other property received by the Depositary
in respect of such shares of Stock and held by the Depositary under the Deposit
Agreement (as defined below). Subject to the terms of the Deposit Agreement,
each owner of a Depositary Share is entitled, proportionately, to all the
rights, preferences and privileges of the Stock represented thereby, including
the dividend, voting, liquidation and other rights contained in the Certificate
of Designations establishing the rights, preferences, privileges and limitations
of the Stock (the "Certificate of Designations"), copies of which are on file at
the office of the Depositary at which at any particular time its business in
respect of matters governed by the Deposit Agreement shall be administered,
which at the time of the execution of the Deposit Agreement is located at
[____________________________] (the "Corporate Office").
This Depositary Receipt ("Receipt") shall not be entitled to any benefits
under the Deposit Agreement or be valid or obligatory for any purpose unless
this Receipt shall have been executed manually or, if a Registrar for the
Receipts (other than the Depositary) shall have been appointed, by facsimile by
the Depositary by the signature of a duly authorized signatory and, if executed
by facsimile signature of the Depositary, shall have been countersigned manually
by such Registrar by the signature of a duly authorized signatory.
THE DEPOSITARY IS NOT RESPONSIBLE FOR THE VALIDITY OF ANY DEPOSITED STOCK. THE
DEPOSITARY ASSUMES NO RESPONSIBILITY FOR THE CORRECTNESS OF THE DESCRIPTION SET
FORTH IN THIS RECEIPT, WHICH CAN BE TAKEN AS A STATEMENT OF THE COMPANY
SUMMARIZING CERTAIN PROVISIONS OF THE DEPOSIT AGREEMENT. UNLESS EXPRESSLY SET
FORTH IN THE DEPOSIT AGREEMENT, THE DEPOSITARY MAKES NO WARRANTIES OR
REPRESENTATIONS AS TO THE VALIDITY, GENUINENESS OR SUFFICIENCY OF ANY STOCK AT
ANY TIME DEPOSITED WITH THE DEPOSITARY UNDER THE DEPOSIT AGREEMENT OR OF THE
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DEPOSITARY SHARES, AS TO THE VALIDITY OR SUFFICIENCY OF THE DEPOSIT AGREEMENT,
AS TO THE VALUE OF THE DEPOSITARY SHARES OR AS TO ANY RIGHT, TITLE OR INTEREST
OF THE RECORD HOLDERS OF THE DEPOSITARY RECEIPTS IN AND TO THE DEPOSITARY
SHARES.
The Company will furnish to any holder of this Receipt without charge, upon
request addressed to its executive office, a full statement of the designation,
relative rights, preferences and limitations of the shares of each authorized
class, and of each class of preferred stock authorized to be issued, so far as
the same may have been fixed, and a statement of the authority of the Board of
Directors of the Company to designate and fix the relative rights, preferences
and limitations of other classes.
This Receipt is continued on the reverse hereof and the additional
provisions therein set forth for all purposes have the same effect as if set
forth at this place.
Dated:
[ ],
-----------------------------
as Depositary and Registrar
By:
---------------------------
Authorized Signatory
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[FORM OF REVERSE
OF DEPOSITARY RECEIPT]
1. The Deposit Agreement. Depositary Receipts (the "Receipts"), of which
this Receipt is one, are made available upon the terms and conditions set forth
in the Deposit Agreement, dated as of [_________], 199[_] (the "Deposit
Agreement"), among the Company, the Depositary and all holders from time to time
of Receipts. The Deposit Agreement (copies of which are on file at the
Corporate Office, the office maintained by the Depositary in the Borough of
Manhattan, the City of New York which at the time of the execution of the
Deposit Agreement is located at [________________________] (the "New York
Office") and at the office of any agent of the Depositary) sets forth the rights
of holders of Receipts and the rights and duties of the Depositary. The
statements made on the face and the reverse of this Receipt are summaries of
certain provisions of the Deposit Agreement and are subject to the detailed
provisions thereof, to which reference is hereby made. In the event of any
conflict between the provisions of this Receipt and the provisions of the
Deposit Agreement, the provisions of the Deposit Agreement will govern.
2. Definitions. Unless otherwise expressly herein provided, all defined
terms used herein shall have the meanings ascribed thereto in the Deposit
Agreement.
3. Redemption and Conversion of Stock.(*) Whenever the Company shall
elect to redeem or be required to convert shares of Stock into shares of Common
Stock in accordance with the Certificate of Designations, it shall (unless
otherwise agreed in writing with the Depositary) give the Depositary in its
capacity as Depositary not less than 5 business days' prior notice of the
proposed date of the mailing of a notice of redemption or conversion of Stock
and the simultaneous redemption or conversion of the Depositary Shares
representing the Stock to be redeemed or converted and of the number of such
shares of Stock held by the Depositary to be redeemed or converted. The
Depositary shall, as directed by the Company in writing, mail, first class
postage prepaid, notice of the redemption or conversion of Stock and the
proposed simultaneous redemption or conversion of Depositary Shares representing
the Stock to be redeemed or converted, not less than 30 and not more than 60
days prior to the date fixed for redemption or conversion of such Stock and
Depositary Shares, to the record holders of the Receipts evidencing the
Depositary Shares to be so redeemed or converted, at the addresses of such
holders as the same appear on the records of the Depositary; provided, that if
the effectiveness of a Merger or Consolidation (as defined in the Certificate of
Designations) makes it impracticable to provide at least 30 days' notice, the
Depositary shall provide such notice as soon as practicable prior to such
effectiveness. Any such notice shall also be published in the same manner as
notices of redemption or conversion of the Stock are required to be published
pursuant to the Certificate of Designations. On the date of any such redemption
or conversion, the Depositary shall surrender the certificate or certificates
held by the Depositary evidencing the number of shares of Stock to be redeemed
or converted in the manner specified in the notice of redemption or conversion
of Stock provided by the Company pursuant to the Certificate of Designations.
The Depositary shall, thereafter, redeem or convert the number of
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Depositary Shares representing such redeemed or converted Stock upon the
surrender of Receipts evidencing such Depositary Shares in the manner provided
in the notice sent to record holders of Receipts; provided, that the Depositary
shall have received, upon surrendering such certificate or certificates as
aforesaid, a sufficient number of shares of Common Stock to convert or redeem
such number of Depositary Shares (including, in the event that the Company
elects pursuant to the Certificate of Designations to exercise any option to
deliver shares of Common Stock in lieu of any cash consideration payable on the
Effective Date (as defined in the Certificate of Designations) of any Merger or
Consolidation, a number of shares of Common Stock equal to such cash
consideration (as determined in the manner set forth in the Certificate of
Designations)), plus any accrued and unpaid dividends payable with respect
thereto to and including the date of any such redemption or conversion and any
other cash consideration payable on the Effective Date of a Merger or
Consolidation (other than any dividends or other cash consideration payable on
the Effective Date of a Merger or Consolidation that the Company has elected to
pay in shares of Common Stock pursuant to the Certificate of Designations). In
case fewer than all the outstanding Depositary Shares are to be redeemed, the
Depositary Shares to be redeemed shall be selected by the Depositary by lot or
on a pro rata basis. Notice having been mailed and published as aforesaid,
from and after the redemption or conversion date (unless the Company shall have
failed to redeem or convert the shares of Stock to be redeemed or converted by
it upon the surrender of the certificate or certificates therefor by the
Depositary as described above), the Depositary Shares called for redemption or
subject to conversion shall be deemed no longer to be outstanding and all rights
of the holders of Receipts evidencing such Depositary Shares (except the right
to receive the shares of Common Stock and cash, if any, payable upon redemption
or conversion upon surrender of such Receipts) shall, to the extent of such
Depositary Shares, cease and terminate. Upon surrender in accordance with said
notice of the Receipts evidencing such Depositary Shares (properly endorsed or
assigned for transfer, if the Depositary shall so require), such Depositary
Shares shall be converted into or redeemed for shares of Common Stock at a rate
equal to [FRACTION] of the number of shares of Common Stock delivered, and the
holders thereof shall be entitled to [FRACTION] of the cash, if any, payable, in
respect of the shares of Stock pursuant to the Certificate of Designations. The
foregoing is subject further to the terms and conditions of the Certificate of
Designations. If fewer than all of the Depositary Shares evidenced by this
Receipt are called for redemption, the Depositary will deliver to the holder of
this Receipt upon its surrender to the Depositary, together with shares of
Common Stock and all accrued and unpaid dividends to and including the date
fixed for redemption payable in respect of the Depositary Shares called for
redemption, a new Receipt evidencing the Depositary Shares evidenced by such
prior Receipt and not called for redemption.
-----------
(*) This section to be modified to discuss specific redemption or
conversion terms of the Stock, if any.
4. Surrender of Receipts and Withdrawal of Stock. Upon surrender of this
Receipt to the Depositary at the Corporate Office, the New York Office or at
such other offices as the Depositary may designate, and subject to the
provisions of the Deposit Agreement, the holder hereof is entitled to withdraw,
and to obtain delivery, without unreasonable delay, to or upon the order of such
holder, any or all of the Stock (but only in whole shares of Stock) and all
money and other property, if any, at the time represented by the Depositary
Shares evidenced by this Receipt; provided, however, that,
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in the event this Receipt shall evidence a number of Depositary Shares in excess
of the number of Depositary Shares representing the whole number of shares of
Stock to be withdrawn, the Depositary shall, in addition to such whole number of
shares of Stock and such money and other property, if any, to be withdrawn,
deliver, to or upon the order of such holder, a new Receipt or Receipts
evidencing such excess number of whole Depositary Shares.
5. Transfers, Split-ups, Combinations. Subject to Paragraphs 6, 7 and 8
below, this Receipt is transferable on the books of the Depositary upon
surrender of this Receipt to the Depositary at the Corporate Office or the New
York Office, or at such other offices as the Depositary may designate, properly
endorsed or accompanied by a properly executed instrument of transfer, and upon
such transfer the Depositary shall sign and deliver a Receipt or Receipts to or
upon the order of the person entitled thereto, all as provided in and subject to
the Deposit Agreement. This Receipt may be split into other Receipts or
combined with other Receipts into one Receipt evidencing the same aggregate
number of Depositary Shares evidenced by the Receipt or Receipts surrendered;
provided, however, that the Depositary shall not issue any Receipt evidencing a
fractional Depositary Share.
6. Conditions to Signing and Delivery, Transfer, etc., of Receipts. Prior
to the execution and delivery, registration of transfer, split-up, combination,
surrender or exchange of this Receipt, the delivery of any distribution hereon
or the withdrawal or deposit of Stock, the Depositary, any of the Depositary's
Agents or the Company may require any or all of the following: (i) 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 tax or
other governmental charge with respect thereto (including any such tax or charge
with respect to Stock being deposited or withdrawn or with respect to Common
Stock or other securities or property of the Company being issued upon
conversion or redemption); (ii) production of proof satisfactory to it as to the
identity and genuineness of any signature; and (iii) compliance with such
reasonable regulations, if any, as the Depositary or the Company may establish
not inconsistent with the Deposit Agreement. Any person presenting Stock for
deposit, or any holder of this Receipt, may be required to file such proof of
information, to execute such certificates and to make such representations and
warranties as the Depositary or the Company may reasonably deem necessary or
proper. The Depositary or the Company may withhold or delay the delivery of
this Receipt, the registration of transfer, redemption, conversion or exchange
of this Receipt, the withdrawal of the Stock represented by the Depositary
Shares evidenced by this Receipt or the distribution of any dividend or other
distribution until such proof or other information is filed, such certificates
are executed or such representations and warranties are made.
7. Suspension of Delivery, Transfer, etc. The deposit of Stock may be
refused and the delivery of this Receipt against Stock or the registration of
transfer, split-up, combination, surrender or exchange of this Receipt and the
withdrawal of deposited Stock may be suspended (i) during any period when the
register of stockholders of the Company is closed, (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, or under any
provision of the Deposit Agreement, or (iii) with the approval of the Company,
for any other reason. The Depositary shall not be required (a) to issue,
transfer or
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exchange any Receipts for a period beginning at the opening of business 15 days
next preceding any selection of Depositary Shares and Stock to be redeemed and
ending at the close of business on the day of the mailing of notice of
redemption of Depositary Shares or (b) to transfer or exchange for another
Receipt any Receipt evidencing Depositary Shares called or being called for
redemption, in whole or in part, or subject to conversion except as provided in
the last sentence of Paragraph 3.
8. Payment of Taxes or Other Governmental Charges. If any tax or other
governmental charge shall become payable by or on behalf of the Depositary with
respect to (i) this Receipt, (ii) the Depositary Shares evidenced by this
Receipt, (iii) the Stock (or fractional interest therein) or other property
represented by such Depositary Shares, or (iv) any transaction referred to in
Section 4.6, of the Deposit Agreement, such tax (including transfer, issuance or
acquisition taxes, if any) or governmental charge shall be payable by the holder
of this Receipt, who shall pay the amount thereof to the Depositary. Until such
payment is made, registration of transfer of this Receipt or any split-up or
combination hereof or any withdrawal of the Stock or money or other property, if
any, represented by the Depositary Shares evidenced by this Receipt may be
refused, any dividend or other distribution may be withheld and any part or all
of the Stock or other property (including Common Stock received in connection
with a conversion or redemption of Stock) represented by the Depositary Shares
evidenced by this Receipt may be sold for the account of the holder hereof
(after attempting by reasonable means to notify such holder prior to such sale).
Any dividend or other distribution so withheld and the proceeds of any such sale
may be applied to any payment of such tax or other governmental charge, the
holder of this Receipt remaining liable for any deficiency.
9. Amendment. The form of the Receipts and any provision of the Deposit
Agreement may at any time and from time to time be amended by agreement between
the Company and the Depositary in any respect that they may deem necessary or
desirable. Any amendment that shall impose or increase any fees, taxes or
charges payable by holders of Receipts (other than taxes and other governmental
charges, fees and other expenses payable by holders as provided herein or in the
Deposit Agreement), or that shall otherwise prejudice any substantial existing
right of holders of Receipts, shall not become effective as to outstanding
Receipts until the expiration of 90 days after notice of such amendment shall
have been given to the record holders of outstanding Receipts. The holder of
this Receipt at the time any such amendment becomes effective shall be deemed,
by continuing to hold this Receipt, to consent and agree to such amendment and
to be bound by the Deposit Agreement as amended thereby. In no event shall any
amendment impair the right, subject to the provisions of Paragraphs 3, 4, 6, 7
and 8 hereof and of Sections 2.3, 2.6 and 2.7 and Article III of the Deposit
Agreement, of the owner of the Depositary Shares evidenced by this Receipt to
surrender this Receipt with instructions to the Depositary to deliver to the
holder the Stock and all money and other property, if any, represented thereby,
except in order to comply with mandatory provisions of applicable law.
10. Fees, Charges and Expenses. The Company will pay all fees, charges
and expenses of the Depositary, except for taxes (including transfer taxes, if
any) and other governmental charges and such charges as are expressly provided
in the Deposit Agreement to be at the expense of persons depositing Stock,
holders of Receipts or other persons.
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11. Title to Receipts. It is a condition of this Receipt, and every
successive holder hereof by accepting or holding the same consents and agrees,
that title to this Receipt (and to the Depositary Shares evidenced hereby), when
properly endorsed or accompanied by a properly executed instrument of transfer,
is transferable by delivery with the same effect as in the case of a negotiable
instrument; provided, however, that the Depositary may, notwithstanding any
notice to the contrary, treat the record holder hereof at such time as the
absolute owner hereof for the purpose of determining the person entitled to
distribution of dividends or other distributions or to any notice provided for
in the Deposit Agreement and for all other purposes.
12. Dividends and Distributions. Whenever the Depositary shall receive
any cash dividend or other cash distribution on the Stock, the Depositary shall,
subject to the provisions of the Deposit Agreement, distribute to record holders
of Receipts such amounts of such sums as are, as nearly as practicable, in
proportion to the respective numbers of Depositary Shares evidenced by the
Receipts held by such holders; provided, however, that in case the Company or
the Depositary shall be required by law to withhold and does withhold from any
cash dividend or other cash distribution in respect of the Stock an amount on
account of taxes, the amount made available for distribution or distributed 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 owner 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 sum received by the
Depositary for distribution to record holders of Receipts then outstanding.
13. Subscription Rights, Preferences or Privileges. If the Company shall
at any time offer or cause to be offered to the persons in whose name Stock is
registered 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, subject to the provisions of the Deposit Agreement, be made
available by the Depositary to the record holders of Receipts in such manner as
the Company shall instruct.
14. Notice of Dividends, Fixing of Record Date. Whenever (i) any cash
dividend or other cash distribution shall become payable, or any distribution
other than cash shall be made, or any rights, preferences or privileges shall at
any time be offered, with respect to the Stock, or (ii) the Depositary shall
receive notice of any meeting at which holders of Stock are entitled to vote or
of which holders of Stock are entitled to notice or of the mandatory conversion
of, or any election on the part of the Company to call for redemption of, 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 (x) who
shall be entitled to receive such dividend, distribution, rights, preferences or
privileges or the net proceeds of the sale thereof, or (y) who shall be entitled
to give instructions for the exercise of voting rights at any such meeting or of
such meeting or to receive notice of such conversion or redemption.
15. 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
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Receipts a notice, which shall contain (i) such information as is contained in
such notice of meeting, (ii) a statement that the holders of Receipts at the
close of business on a specified record date determined as provided in Paragraph
14 will be entitled, subject to any applicable provision of law, the Certificate
of Incorporation or the Certificate of Designations, to instruct the Depositary
as to the exercise of the voting rights pertaining to the Stock represented by
their respective Depositary Shares, and (iii) a brief statement as to the manner
in which such instructions may be given. Upon the written request of a holder
of this Receipt on such record date the Depositary shall endeavor insofar as
practicable to vote or cause to be voted the Stock represented by the Depositary
Shares evidenced by this Receipt in accordance with the instructions set forth
in such request. The Company hereby agrees to take all reasonable action that
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 this Receipt, the Depositary will abstain from
voting to the extent of the Stock represented by the Depositary Shares evidenced
by this Receipt.
16. Reports, Inspection of Transfer Books. The Depositary shall make
available for inspection by holders of Receipts at the Corporate Office, the New
York Office and at such other places as it may from time to time deem advisable
during normal business hours any reports and communications received from the
Company that are received by the Depositary as the holder of Stock. The
Depositary shall keep books at the Corporate Office for the registration and
transfer of Receipts, which books at all reasonable times will be open for
inspection by the record holders of Receipts; provided that any such holder
requesting to exercise such right shall certify to the Depositary that such
inspection shall be for a proper purpose reasonably related to such person's
interest as an owner of Depositary Shares.
17. Liability of the Depositary, the Depositary's Agents, the Registrar
and the Company. Neither the Depositary nor any Depositary's Agent nor the
Registrar nor the Company shall incur any liability to any holder of this
Receipt, if by reason of any provision of any present or future law or
regulation thereunder of any governmental authority or, in the case of the
Depositary, the Registrar or any Depositary's Agent, by reason of any provision
present or future, of the Certificate of Incorporation or the Certificate of
Designations or, in the case of the Company, the Depositary, the Registrar or
any Depositary's Agent, by reason of any act of God or war or other
circumstances beyond the control of the relevant party, the Depositary, any
Depositary's Agent, the Registrar or the Company shall be prevented or forbidden
from doing or performing any act or thing that the terms of the Deposit
Agreement provide shall be done or performed; nor shall the Depositary, any
Depositary's Agent, the Registrar or the Company incur any liability to any
holder of this Receipt (i) by reason of any nonperformance or delay, caused as
aforesaid, in the performance of any act or thing that the terms of the 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 the Deposit
Agreement except, in the case of the Depositary, any Depositary's Agent or the
Registrar, if such exercise or failure to exercise discretion is caused by its
negligence or bad faith.
18. Obligations of the Depositary, the Depositary's Agents, the Registrar
and the Company. The Company assumes no obligation and shall be subject to no
liability under the Deposit Agreement or this Receipt to the holder hereof or
other persons, except to perform in good faith such
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obligations as are specifically set forth and undertaken by it to perform in the
Deposit Agreement. Each of the Depositary, the Depositary's Agents and the
Registrar assumes no obligation and shall be subject to no liability under the
Deposit Agreement or this Receipt to the holder hereof or other persons, except
to perform such obligations as are specifically set forth and undertaken by it
to perform in the Deposit Agreement without negligence or bad faith.
Neither the Depositary nor any Depositary's Agent nor the Registrar nor the
Company shall be under any obligation to appear in, prosecute or defend any
action, suit or other proceeding with respect to Stock, Depositary Shares or
Receipts or Common Stock that 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 the Registrar nor the
Company will be liable for any action or failure to act by it in reliance upon
the advice of or information from legal counsel, accountants, any person
presenting Stock for deposit, any holder of this Receipt or any other person
believed by it in good faith to be competent to give such advice or information.
19. Termination of Deposit Agreement. Whenever so directed by the
Company, the Depositary will terminate the Deposit Agreement by mailing notice
of such termination to the record holders of all Receipts then outstanding at
least 30 days prior to the date fixed in such notice for such termination. The
Depositary may likewise terminate the Deposit Agreement if at any time 45 days
shall have expired after the Depositary shall have delivered to the Company a
written notice of its election to resign and a successor depositary shall not
have been appointed and accepted its appointment as provided in Section 5.4 of
the Deposit Agreement. Upon the termination of the Deposit Agreement, the
Company shall be discharged from all obligations thereunder except for its
obligations to the Depositary, any Depositary's Agent and any Registrar under
Sections 5.7 and 5.8 of the Deposit Agreement.
If any Receipts remain outstanding after the date of termination of the
Deposit Agreement, the Depositary thereafter shall discontinue all functions and
be discharged from all obligations as provided in the Deposit Agreement, except
as specifically provided therein.
20. Governing Law. The Deposit Agreement and this Receipt and all rights
thereunder and hereunder and provisions thereof and hereof shall be governed by,
and construed in accordance with, the law of the State of New York without
giving effect to principles of conflict of laws.
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FORM OF ASSIGNMENT
FOR VALUE RECEIVED, the undersigned hereby sells, assigns and transfers
unto the within Receipt and all rights and interests represented by the
Depositary Shares evidenced thereby, and hereby irrevocably constitutes and
appoints his attorney, to transfer the same on the books of the within-named
Depositary, with full power of substitution in the premises.
Dated: Signature:
---------------------------
NOTE: The signature to this assignment must correspond with the name as written
upon the face of the Receipt in every particular, without alteration or
enlargement, or any change whatever.
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