EXHIBIT 4-d
[Form of Deposit Agreement]
SBC COMMUNICATIONS INC.,
[NAME OF DEPOSITARY BANK], as Depositary,
and
THE HOLDERS FROM TIME TO TIME OF
THE DEPOSITARY RECEIPTS DESCRIBED HEREIN
Deposit Agreement
relating to [insert designation]
Preferred Stock of SBC Communications Inc.
Dated as of ,
TABLE OF CONTENTS
Page
----
PARTIES.......................................................................1
RECITALS......................................................................1
Article I
Definitions
Certificate...................................................................2
Company.......................................................................2
Depositary....................................................................2
Depositary's Agent............................................................2
Depositary Shares.............................................................2
Depositary's Office...........................................................2
Preferred Stock...............................................................2
Receipt.......................................................................2
Record holder.................................................................3
Registrar.....................................................................3
Stock.........................................................................3
Article II
Form of Receipts, Deposit of Preferred Stock, Execution and
Delivery, Transfer, Surrender and Redemption of Receipts
SECTION 2.01. Form and Transfer of Receipts.................................3
SECTION 2.02. Deposit of Preferred Stock; Execution and Delivery of
Receipts in Respect Thereof...................................4
SECTION 2.03. Redemption of Preferred Stock.................................5
SECTION 2.04. Registration of Transfer of Receipt...........................6
SECTION 2.05. Split-ups and Combinations of Receipts; Surrender of
Receipts and Withdrawal of Preferred Stock....................6
SECTION 2.06. [Conversion and Exchange of Preferred Stock...................7
SECTION 2.07. Limitations on Execution and Delivery, Transfer, Surrender
and Exchange of Receipts......................................7
SECTION 2.08. Lost Receipts, etc............................................8
SECTION 2.09. Cancellation and Destruction of Surrendered Receipts..........8
Article III
Certain Obligations of Holders
of Receipts and the Company
SECTION 3.01. Filing Proofs, Certificates and Other Information.............8
SECTION 3.02. Payment of Taxes or Other Governmental Charges................8
SECTION 3.03. Warranty as to Preferred Stock................................9
-i-
Page
----
Article IV
The Deposited Securities; Notices
SECTION 4.01. Cash Distributions............................................9
SECTION 4.02. Distributions Other than Cash, Rights, Preferences or
Privileges....................................................9
SECTION 4.03. Subscription Rights, Preferences or Privileges...............10
SECTION 4.04. Notice of Dividends, etc.; Fixing of Record Date for
Holders of Receipts..........................................11
SECTION 4.05. Voting Rights................................................11
SECTION 4.06. Changes Affecting Deposited Securities and
Reclassifications, Recapitalizations, etc....................11
SECTION 4.07. Inspection of Reports........................................12
SECTION 4.08. Lists of Receipt Holders.....................................12
SECTION 4.09. Tax and Regulatory Compliance................................12
SECTION 4.10. Withholding..................................................12
Article V
The Depositary, the Depositary's Agents,
the Registrar and the Company
SECTION 5.01. Maintenance of Offices, Agencies and Transfer Books by
the Depositary; Registrar....................................13
SECTION 5.02. Prevention of or Delay in Performance by the Depositary,
the Depositary's Agents, the Registrar or the Company........13
SECTION 5.03. Obligations of the Depositary, the Depositary's Agents,
the Registrar and the Company................................14
SECTION 5.04. Resignation and Removal of the Depositary; Appointment
of Successor Depositary......................................14
SECTION 5.05. Corporate Notices and Reports................................15
SECTION 5.06. Indemnification by the Company...............................15
SECTION 5.07. Charges and Expenses.........................................16
Article VI
Amendment and Termination
SECTION 6.01. Amendment....................................................16
SECTION 6.02. Termination..................................................16
Article VII
Miscellaneous
SECTION 7.01. Counterparts.................................................17
SECTION 7.02. Exclusive Benefit of Parties.................................17
SECTION 7.03. Invalidity of Provisions.....................................17
SECTION 7.04. Notices......................................................17
SECTION 7.05. Depositary's Agents..........................................18
SECTION 7.06. Holders of Receipts Are Parties..............................18
SECTION 7.07. Governing Law................................................18
SECTION 7.08. Inspection of Agreement......................................18
SECTION 7.09. Headings.....................................................18
TESTIMONIUM..................................................................17
-ii-
Page
----
SIGNATURES...................................................................17
EXHIBIT A: Form of Depositary Receipt
-iii-
DEPOSIT AGREEMENT dated as of , , among SBC Communications Inc., a
Delaware corporation (the "Company"), [NAME OF DEPOSITARY BANK], a , as
depositary (the "Depositary"), and the holders from time to time of the Receipts
described herein.
WHEREAS, it is desired to provide, as hereinafter set forth in this
Agreement, for the deposit of [insert designation of preferred shares], $1.00
par value (the "Preferred Stock"), of the Company with the Depository for the
purposes set forth in this Agreement and for the issuance hereunder of Receipts
(as defined below) evidencing Depositary Shares (as defined below) in respect of
the Preferred Stock so deposited; and
WHEREAS, the Receipts are to be substantially in the form of Exhibit A
hereto, with appropriate insertions, modifications and omissions, as hereinafter
provided in this Agreement;
NOW, THEREFORE, the parties hereto agree as follows:
ARTICLE I
DEFINITIONS
The following definitions shall for all purposes, unless otherwise
indicated or the context otherwise, apply to the respective terms used in this
Agreement:
"Certificate" shall mean the statement filed with the Secretary of
State of the State of Delaware establishing the Preferred Stock as a series of
preferred shares of the Company.
"Company" shall mean SBC Communications Inc., a Delaware corporation,
and its successors.
"Depositary" shall mean __________, a __________, and any successor as
Depositary hereunder.
"Depositary's Agent" shall mean an agent appointed by the Depositary
pursuant to Section 7.05.
"Depositary Shares" shall mean Depositary Shares, each representing
[SPECIFY FRACTION] of a share of Preferred Stock and evidenced by a Receipt.
"Depositary's Office" shall mean the principal office of the depositary
in [LOCATION], at which at any particular time its depositary receipt business
shall be administered.
"Preferred Stock" shall mean __________.
"Receipt" shall mean one of the Depositary Receipts issued hereunder,
whether in definitive or temporary form.
"Record holder" as applied to a Receipt shall mean the person in whose
name a Receipt is registered on the books of the Depositary maintained for such
purpose.
-2-
"Registrar" shall mean any bank or trust company that shall be
appointed to register ownership and transfers of Receipts as herein provided.
"Stock" shall mean shares of the Company's [insert designation of
preferred stock], $1 par value per share.
ARTICLE II
FORM OF RECEIPTS, DEPOSIT OF PREFERRED STOCK,
EXECUTION AND DELIVERY, TRANSFER, SURRENDER AND
REDEMPTION OF RECEIPTS
SECTION 2.01. Form and Transfer of Receipts. Definitive Receipts
shall be engraved or printed or lithographed on steel-engraved borders and shall
be substantially in the form set forth in Exhibit A hereto, with appropriate
insertions, modifications and omissions, as hereinafter provided. Pending the
preparation of definitive Receipts, the Depositary, upon the written order of
the Company or any holder of Preferred Stock, as the case may be, delivered for
deposit in compliance with Section 2.02, shall execute and deliver temporary
Receipts which are printed, lithographed, typewritten, mimeographed or otherwise
substantially of the tenor of the definitive Receipts in lieu of which they are
issued and with such appropriate insertions, omissions, substitutions and other
variations as the persons executing such Receipts may determine, as evidenced by
their execution of such Receipts. If temporary Receipts are issued, the Company
and the Depositary will cause definitive Receipts to be prepared without
unreasonable delay. After the preparation of definitive Receipts, the temporary
Receipts shall be exchangeable for definitive Receipts upon surrender of the
temporary Receipts at an office described in the second to last paragraph of
Section 2.02, without charge to the holder. Upon surrender for cancellation of
any one or more temporary Receipts, the Depositary shall execute and deliver in
exchange therefor definitive Receipts representing the same number of Depositary
Shares as represented by the surrendered temporary Receipt or Receipts. Such
exchange shall be made at the Company's expense and without any charge therefor.
Until so exchanged, the temporary Receipts shall in all respects be entitled to
the same benefits under this Agreement, and with respect to the Preferred Stock
deposited hereunder, as definitive Receipts.
Receipts shall be executed by the Depositary by the manual signature of
a duly authorized officer of the Depositary; provided, however, that such
signature may be a facsimile if a Registrar for the Receipts (other than the
Depositary) shall have been appointed and such Receipts are countersigned by
manual signature of a duly authorized officer of the Registrar. No Receipt shall
be entitled to any benefits under this Agreement or be valid or obligatory for
any purpose unless it shall have been executed manually by a duly authorized
officer of the Depositary or, if a Registrar for the Receipts (other than the
Depositary) shall have been appointed, by manual or facsimile signature of a
duly authorized officer of the Depositary and countersigned manually by a duly
authorized officer of such Registrar. The Depositary shall record on its books
each Receipt so signed and delivered as hereinafter provided.
Except as the Depositary may otherwise determine, Receipts shall be in
denominations of any number of whole Depositary Shares.
Receipts may be endorsed with or have incorporated in the text thereof
such legends or recitals or changes not inconsistent with the provisions of this
Agreement as may be required by the Depositary or required to comply with any
applicable law or any regulation
-3-
thereunder or with the rules and regulations of any securities exchange upon
which the Preferred Stock, the Depositary Shares or the Receipts may be listed
or to conform with any usage with respect thereto, or to indicate any special
limitations or restrictions to which any particular Receipts are subject.
Title to Depositary Shares evidenced by a Receipt 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 until transfer of a Receipt shall be
registered on the books of the Depositary as provided in Section 2.04, 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 Agreement and for all other
purposes.
SECTION 2.02. Deposit of Preferred Stock; Execution and Delivery of
Receipts in Respect Thereof. Subject to the terms and conditions of this
Agreement, the Company or any holder of Preferred Stock may from time to time
deposit shares of Preferred Stock under this Agreement by delivery to the
Depositary of (i) a certificate or certificates for the shares of Preferred
Stock to be deposited, properly endorsed or accompanied, if required by the
Depositary, by a duly executed instrument of transfer or endorsement, in form
satisfactory to the Depositary, (ii) all certifications as may be required by
the Depositary in accordance with the provisions of this Agreement, and (iii) 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 shares of Preferred Stock.
Upon receipt by the Depositary of a certificate or certificates for the
shares of Preferred Stock deposited in accordance with the provisions of this
Section, together with the other documents required, and upon registration of
such shares of Preferred Stock on the books of the Company in the name of the
Depositary or its nominee, the Depositary, subject to the terms and conditions
of this 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, a Receipt or Receipts for the number of
Depositary Shares representing such shares of Preferred Stock and registered in
such name or names as may be requested by such person or persons.
Certificates in the name of the Depositary for the deposited shares of
Preferred Stock shall be held by the Depositary at the Depositary's Office or at
such other place or places as the Depositary shall determine.
The Depositary shall execute and deliver such Receipt or Receipts at
the Depositary's Office or such other offices, if any, as the Depositary may
designate. Delivery at other offices shall be at the risk and expense of the
person requesting such delivery.
Other than in the case of splits, combinations or other
reclassifications affecting the Preferred Stock, or in the case of dividends or
other distributions of Preferred Stock, if any, there shall be deposited
hereunder not more than [NUMBER] shares of Preferred Stock.
SECTION 2.03. Redemption of Preferred Stock. Whenever the Company
shall elect to redeem shares of Preferred Stock deposited hereunder in
accordance with the provisions of the Certificate, if the Certificate provides
for such redemption, it shall (unless otherwise agreed
-4-
in writing with the Depositary) give the Depositary not less than 40 nor more
than 70 days' notice of the date of such proposed redemption of the Preferred
Stock, which notice shall be accompanied by a certificate from the Company
stating that such redemption of the Preferred Stock is in accordance with the
provisions of the Certificate. Such notice, if given more than 60 days prior to
the redemption date, shall be in addition to the notice required to be given for
redemption pursuant to the Certificate. On the date of such redemption, provided
that the Company shall then have paid in full to the Depositary the redemption
price of any deposited shares of Preferred Stock to be redeemed, plus any
accrued and unpaid dividends thereon, the Depositary shall redeem the number of
Depositary Shares representing such shares of Preferred Stock. The Depositary
shall mail notice of such redemption and the proposed simultaneous redemption of
the number of Depositary Shares representing the deposited shares of Preferred
Stock to be redeemed, first-class postage prepaid, not less than 30 and not more
than 60 days prior to the date fixed for redemption of such Preferred Stock and
Depositary Shares (the "Redemption Date"), to the record holders of the Receipts
evidencing the Depositary Shares to be so redeemed, at the addresses of such
holders as they appear on the records of the Depositary; but neither failure to
mail any such notice to one or more such holders nor any defect in any notice to
one or more such holders shall affect the sufficiency of the proceedings for
redemption as to other holders. Each such notice shall state: (i) the Redemption
Date; (ii) the number of Depositary Shares to be redeemed and, if less than all
the Depository Shares held by any such holder are to be redeemed, the number of
such Depositary Shares held by such holder to be so redeemed; (iii) the
redemption price; (iv) the place or places where Receipts evidencing Depositary
Shares are to be surrendered for payment of the redemption price; and (v) that
dividends in respect of the shares of Preferred Stock represented by the
Depositary Shares to be redeemed will cease to accumulate and that conversion
rights, if any, in respect thereof will terminate at the close of business on
such Redemption Date. In case less than all the outstanding Depositary Shares
are to be redeemed, the Depositary Shares to be so redeemed shall be selected by
lot or pro rata as may be determined by the Depositary to be equitable.
Notice having been mailed by the Depositary as aforesaid, from and
after the Redemption Date (unless the Company shall have failed to redeem the
deposited shares of Preferred Stock to be redeemed by it as set forth in the
Company's notice provided for in the preceding paragraph) all dividends in
respect of the deposited shares of Preferred Stock so called for redemption
shall cease to accumulate, the Depositary Shares being redeemed from such
proceeds shall be deemed no longer to be outstanding, all rights of the holders
of Receipts evidencing such Depositary Shares (except the right to receive the
redemption price) shall, to the extent of such Depositary Shares cease and
terminate and, upon surrender in accordance with such notice of the Receipts
evidencing any such Depositary Shares (properly endorsed or assigned for
transfer, if the Depositary shall so require), such Depositary Shares shall be
redeemed by the Depositary at a redemption price per Depositary Share equal to
[SPECIFY FRACTION] of the redemption price per share paid in respect of the
redeemed deposited shares of Preferred Stock plus all money and other property,
if any, represented by such Depositary Shares, including all amounts paid by the
Company in respect of dividends which on the Redemption Date have accumulated on
the shares of Preferred Stock to be so redeemed and have not theretofore been
paid.
If less than all the Depositary Shares evidenced by a single Receipt
are called for redemption, the Depositary will deliver to the holder of such
Receipt upon its surrender to the Depositary a new Receipt evidencing the
Depositary Shares evidenced by such prior Receipt and not called for redemption,
together with the redemption payment.
-5-
SECTION 2.04. Registration of Transfer of Receipt. Subject to the
terms and conditions of this Agreement, the Depositary shall register on its
books from time to time transfers of Receipts upon any surrender thereof by the
holder in person or by duly authorized attorney, properly endorsed or
accompanied by a properly executed instrument of transfer. Thereupon the
Depositary shall execute a new Receipt or Receipts evidencing the same aggregate
number of Depositary Shares as those evidenced by the Receipt or Receipts
surrendered and deliver such new Receipt or Receipts to or upon the order of the
person entitled thereto.
SECTION 2.05. Split-ups and Combinations of Receipts; Surrender of
Receipts and Withdrawal of Preferred Stock. Upon surrender of a Receipt or
Receipts at the Depositary's Office or at such other offices as it may designate
for the purpose of effecting a split-up or combination of such Receipt or
Receipts, and subject to the terms and conditions of this Agreement, the
Depositary shall execute and deliver a new Receipt or Receipts in the authorized
denomination or denominations requested, evidencing the aggregate number of
Depositary Shares evidenced by the Receipt or Receipts surrendered.
Any holder of a Receipt or Receipts representing a whole number of
deposited shares of Preferred Stock may withdraw such shares of Preferred Stock
and all money and other property, if any, represented thereby by surrendering
such Receipt or Receipts at the Depositary's Office or at such other offices as
the Depositary may designate for such withdrawals. Thereafter, without
unreasonable delay, the Depositary shall deliver to such holder, or to the
person or persons designated by such holder as hereinafter provided the number
of shares of Preferred Stock and all money and other property, if any,
represented by the Receipt or Receipts so surrendered for withdrawal, but
holders of such shares of Preferred Stock will not thereafter be entitled to
deposit such shares of Preferred Stock hereunder or to receive Depositary Shares
therefor. If a Receipt 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 deposited Depositary Shares representing the number of shares of
Preferred Stock to be so withdrawn, the Depositary shall at the same time, in
addition to such number of shares of Preferred Stock and such money and other
property, if any, to be so withdrawn, deliver to such holder, or (subject to
Section 2.03) upon his order, a new Receipt evidencing such excess number of
Depositary Shares. Delivery of the shares of Preferred Stock and 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.
If the shares of Preferred Stock and the money and other property, if
any, being withdrawn are to be delivered to a person or persons other than the
record holder of the Receipt or Receipts being surrendered for withdrawal of the
Preferred 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 Preferred Stock be appropriately endorsed or accompanied by a properly
executed instrument of transfer.
Delivery of the shares of Preferred Stock and the money and other
property, if any, represented by Receipts surrendered for withdrawal shall be
made by the Depositary at the Depositary's Office, except that, at the request,
risk and expense of the holder surrendering such Receipt or Receipts and for the
account of the holder thereof, such delivery may be made at such other place as
may be designated by such holder.
-6-
SECTION 2.06. [Conversion and Exchange of Preferred Stock. Upon a
conversion or exchange of the Depositary Shares the Depositary shall convert or
exchange all of the Depositary Shares on the day that the related Preferred
Stock is so converted or exchanged. The Company hereby agrees to deposit with
the Depositary the other preferred stock, common stock or other securities into
which the Preferred Stock is to be converted or for which it will be exchanged.
Further, the Company agrees to accept the delivery of Receipts for the purpose
of effecting conversions or exchanges of the Preferred Stock utilizing the
procedures set forth for delivery of certificates for the Preferred Stock
pursuant to Section 2.02 hereof and in accordance with the terms and conditions
of the Preferred Stock as provided in the Certificate. If the Depositary Shares
represented by a Receipt are to be converted or exchanged in part only, a new
Receipt or Receipts will be issued by the Depositary for the Depositary Shares
not to be converted or exchanged. For this purpose, a holder of a Receipt or
Receipts must surrender such Receipt or Receipts to the Company, in care of the
Depositary at its office together with a duly completed and executed notice of
conversion. In all cases the foregoing shall be conditioned upon compliance in
full by the holders with the terms and conditions of the Preferred Stock as
provided in the Certificate and of this Deposit Agreement. The Company and the
Depositary will thereafter effect the cancellation of each Receipt surrendered
for such conversion or exchange and of the related Preferred Stock as provided
in the Certificate and this Deposit Agreement.
Except as further specified in the Certificate, the exchange or
conversion rate per Depositary Share will be equal to (i) the exchange rate or
conversion rate per share of Preferred Stock, multiplied by the fraction of a
share of Preferred Stock represented by one Depositary Share; (ii) plus the
total amount of money and any other property represented by the Depositary
Shares; and (iii) including all amounts paid by the Company for accrued and
unpaid dividends on the Preferred Stock on the exchange or conversion date.]
SECTION 2.07. Limitations on Execution and Delivery, Transfer,
Surrender and Exchange of Receipts. As a condition precedent to the execution
and delivery, registration of transfer, split-up, combination, surrender or
exchange of any Receipt, the Depositary, any of the Depositary's Agents or the
Company may require payment to it of a sum sufficient for the payment (or, in
the event that the Depositary or the Company shall have made such payment, the
reimbursement to it) of any charges or expenses payable by the holder of a
Receipt pursuant to Section 5.07, may require the production of evidence
satisfactory to it as to the identity and genuineness of any signature and may
also require compliance with such regulations, if any, as the Depositary or the
Company may establish consistent with the provisions of this Agreement.
The deposit of shares of Preferred Stock may be reused, the delivery of
Receipts against Preferred Stock may be suspended, the registration of transfer
of Receipts may be refused and the registration of transfer, surrender or
exchange of outstanding Receipts may be suspended (i) during any period when the
register of shareholders of the Company is closed or (ii) if any such action is
deemed necessary or advisable by the Depositary, any of the Depositary's Agents
or the Company at any time or from time to time because of any requirement of
law or of any government or governmental body or commission or under any
provisions of this Agreement.
-7-
SECTION 2.08. Lost Receipts, etc. In case any Receipt shall be
mutilated, destroyed, lost or stolen, the Depositary in its discretion may
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, upon (i) the filing by the holder
thereof with the Depositary of evidence satisfactory to the Depositary of such
destruction or loss or theft of such Receipt, of the authenticity thereof and of
his or her ownership thereof, and (ii) the furnishing of the Depositary with
reasonable indemnification satisfactory to it.
SECTION 2.09. Cancellation and Destruction of Surrendered Receipts.
All Receipts surrendered to the Depositary or any Depositary's Agent shall be
cancelled by the Depositary. Except as prohibited by applicable law or
regulation, the Depositary is authorized to destroy all Receipts so cancelled.
ARTICLE III
CERTAIN OBLIGATIONS OF HOLDERS
OF RECEIPTS AND THE COMPANY
SECTION 3.01. Filing Proofs, Certificates and Other Information.
Any holder of a Receipt may be required from time to time to file such proof of
residence, or other matters or other information, to 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 the delivery, or delay the registration of transfer, redemption or
exchange, of any Receipt or the withdrawal of the Shares of Preferred Stock
represented by the Depositary Shares evidenced by any Receipt or the
distribution of any dividend or other distribution or the sale of any rights or
of the proceeds thereof until such proof or other information is filed or such
certificates are executed or such representations and warranties are made.
SECTION 3.02. Payment of Taxes or Other Governmental Charges.
Holders of Receipts shall be obligated to make payments to the Depositary of
certain charges and expenses, as provided in Section 5.07. Registration of
transfer of any Receipt or any withdrawal of shares of Preferred Stock and all
money or other property, if any, represented by the Depositary Shares evidenced
by such Receipt may be refused until any such payment due is made, and any
dividends, interest payments or other distributions may be withheld or any part
of or all the shares of Preferred Stock or other property represented by the
Depositary Shares evidenced by such Receipt and not theretofore sold may be sold
for the account of the holder thereof (after attempting by reasonable means to
notify such holder prior to such sale), and such dividends, interest payments or
other distributions or the proceeds of any such sale may be applied to any
payment of such charges or expenses, the holder of such Receipt remaining liable
for any deficiency.
SECTION 3.03. Warranty as to Preferred Stock. The Company hereby
represents and warrants that the shares of Preferred Stock, when issued, will be
validly issued, fully paid and nonassessable. Such representation and warranty
shall survive the deposit of any shares of Preferred Stock and the issuance of
Receipts.
-8-
ARTICLE IV
THE DEPOSITED SECURITIES; NOTICES
SECTION 4.01. Cash Distributions. Whenever the Depositary shall
receive any cash dividend or other cash distribution on deposited shares of
Preferred Stock, the Depositary shall, subject to Sections 3.01 and 3.02,
distribute to record holders of Receipts on the record date fixed pursuant to
Section 4.04 such amounts of such dividend or distribution 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 to withhold and shall withhold
from any cash dividend or other cash distribution in respect of the Preferred
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
holder of Depositary Shares a fraction of one cent, and any balance not so
distributable shall be held by the Depositary (without liability for interest
thereon) and shall be added to and be treated as part of the next sum received
by the Depositary for distribution to record holders of Receipts then
outstanding.
SECTION 4.02. Distributions Other than Cash, Rights, Preferences or
Privileges. Whenever the Depositary shall receive any distribution other than
cash, rights, preferences or privileges upon deposited shares of Preferred
Stock, the Depositary shall, subject to Sections 3.01 and 3.02, distribute to
record holders of Receipts on the record date fixed pursuant to Section 4.04
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 may deem equitable and practicable for accomplishing such
distribution. If in the opinion of the Depositary such distribution cannot be
made proportionately among such record holders, or if for any other reason
(including any requirement that the Company or the Depositary withhold an amount
on account of taxes) the Depositary deems, after consultation with the Company,
such distribution not to be feasible, the Depositary may, with the approval of
the Company, adopt such method as it deems equitable and practicable for the
purpose of effecting such distribution, including the sale (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 Sections 3.01 and 3.02, be distributed or made
available for distribution, as the case may be, by the Depositary to record
holders of Receipts as provided by Section 4.01 in the case of a distribution
received in cash. The Company shall not make any distribution of such securities
unless the Company shall have provided an opinion of counsel stating that such
securities have been registered under the Securities Act of 1933 or do not need
to be registered.
SECTION 4.03. Subscription Rights, Preferences or Privileges. If
the Company shall at any time offer or cause to be offered to the persons in
whose names the shares of Preferred Stock are recorded on the books of the
Company any rights, preferences or privileges to subscribe for or to purchase
any securities or any rights, preferences or privileges of any other nature,
such rights, preferences or privileges shall in each such instance be made
available by the Depositary to the record holders of Receipts in such manner as
the Depositary may determine, either by the issue to such record holders of
warrants representing such rights, preferences or privileges or by such other
method as may be approved by the Depositary in its discretion with the approval
of the Company; provided, however, that (i) if at the time of issue or offer of
any such rights, preferences or privileges
-9-
the Depositary determines that it is not lawful or (after consultation with the
Company) not feasible to make such rights, preferences or privileges available
to holders of Receipts by the issue of warrants or otherwise, or (ii) if and to
the extent so instructed by holders of Receipts who do not desire to exercise
such rights, preferences or privileges, then the Depositary, in its discretion
(with the approval of the Company, in any case where the Depositary has
determined that it is not feasible to make such rights, preferences or
privileges available), may, if applicable laws and the terms of such rights,
preferences or privileges permit such transfer, sell such rights, preferences or
privileges at public or private sale, at such place or places and upon such
terms as it may deem proper. The net proceeds of any such sale shall, subject to
Sections 3.01 and 3.02, be distributed by the Depositary to the record holders
of Receipts entitled thereto as provided by Section 4.01 in the case of a
distribution received in cash. The Company shall not make any distribution of
any such rights, preferences or privilege unless the Company shall have provided
an opinion of counsel stating that such rights, preferences or privileges have
been registered under the Securities Act of 1933 or do not need to be
registered.
If registration under the Securities Act of 1933 of the securities to
which any rights, preferences or privileges relate is required in order for
holders of Receipts to be offered or sold the securities to which such rights,
preferences or privileges relate, the Company agrees with the Depositary that it
will file promptly a registration statement pursuant to such Act with respect to
such rights, preferences or privileges and securities and use its best efforts
and take all steps available to it to cause such registration statement to
become effective sufficiently in advance of the expiration of such rights,
preferences or privileges to enable such holders to exercise such rights,
preferences or privileges. In no event shall the Depositary make available to
the holders of Receipts any right, preference or privilege to subscribe for or
to purchase any securities unless and until such a registration statement shall
have become effective, or unless the offering and sale of such securities to
such holders are exempt from registration under the provisions of such Act.
If any other action under the laws of any jurisdiction or any
governmental or administrative authorization, consent or permit is required in
order for such rights, preferences or privileges to be made available to holders
of Receipts, the Company agrees with the Depositary that the Company will use
its best efforts to take such action or obtain such authorization, consent or
permit sufficiently in advance of the expiration of such rights, preferences or
privileges to enable such holders to exercise such rights, preferences or
privileges.
SECTION 4.04. Notice of Dividends, etc.; Fixing of Record Date for
Holders of Receipts. Whenever any cash dividend or other cash distribution shall
become payable or any distribution other than cash shall be made, or if rights,
preferences or privileges shall at any time be offered, with respect to the
Preferred Stock, or whenever the Depositary shall receive notice of any meeting
at which holders of shares of Preferred Stock are entitled to vote or of which
holders of shares of Preferred Stock are entitled to notice, or whenever the
Depositary and the Company shall decide it is appropriate, 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 Preferred Stock) for the
determination of the holders of Receipts who shall be entitled to receive such
dividend, distribution, rights, preferences or privileges or the net proceeds of
the sale thereof, or to give instructions for the exercise of voting rights at
any such meeting, or who shall be entitled to notice of such meeting or for any
other appropriate reasons.
SECTION 4.05. Voting Rights. Upon receipt of notice of any meeting
at which the holders of shares of Preferred Stock are entitled to vote, the
Depositary shall, as soon as practicable thereafter, mail to the record holders
of Receipts a notice which shall contain (i) such information as is contained in
such notice of meeting and (ii) a statement that the holders may, subject to any
applicable restrictions, instruct the Depositary as to the exercise of the
voting rights
-10-
pertaining to the number of shares of Preferred Stock represented by their
respective Depositary Shares (including an express indication that instructions
may be given to the Depositary to give a discretionary proxy to a person
designated by the Company) and a brief statement as to the manner in which such
instructions may be given. Upon the written request of the holders of Receipts
on the relevant record date, the Depositary shall endeavor insofar as
practicable to vote or cause to be voted, in accordance with the instructions
set forth in such requests, the maximum whole number of shares of Preferred
Stock represented by the Depositary Shares evidenced by all Receipts as to which
any particular voting instructions are received. The Company hereby agrees to
take all action which may be deemed necessary by the Depositary in order to
enable the Depositary to vote such shares of Preferred Stock or cause such
shares of Preferred Stock to be voted. In the absence of specific instructions
from the holder of a Receipt, the Depositary will abstain from voting (but, at
its discretion, not from appearing at any meeting with respect to such shares of
Preferred Stock unless directed to the contrary by the holders of all the
Receipts) to the extent of the number of shares of Preferred Stock represented
by the Depositary Shares evidenced by such Receipt.
SECTION 4.06. Changes Affecting Deposited Securities and
Reclassifications, Recapitalizations, etc. Upon any change in par or stated
value, split-up, combination or any other reclassification of the Preferred
Stock, or upon any recapitalization, reorganization, merger, amalgamation or
consolidation affecting the Company or to which it is a party, the Depositary
may in its discretion with the approval of, and shall upon the instructions of,
the Company, and (in either case) in such manner as the Depositary may deem
equitable, (i) make such adjustments as are certified by the Company in (x) the
fraction of any interest represented by one Depositary Share in one share of
Preferred Stock, and (y) the ratio of the redemption price per Depositary Share
to the redemption price per share of Preferred Stock, in each case as may be
necessary fully to reflect the effects of such changes in par or stated value,
split-up, combination or other reclassification of the Preferred Stock, or of
such recapitalization, reorganization, merger, amalgamation or consolidation,
and (ii) treat any securities which shall be received by the Depositary in
exchange for or upon conversion of or in respect of deposited shares of
Preferred Stock as new deposited securities so received in exchange for or upon
conversion or in respect of such shares of Preferred Stock. In any such case the
Depositary may in its discretion, with the approval of the Company, execute and
deliver additional Receipts, or may call for the surrender of all outstanding
Receipts to be exchanged for new Receipts specifically describing such new
deposited securities. Anything to the contrary herein notwithstanding, holders
of Receipts shall have the right from and after the effective date of any such
change in par or stated value, split-up, combination or other reclassification
of the Preferred Stock or any such recapitalization, reorganization, merger,
amalgamation or consolidation to surrender such Receipts to the Depositary with
instructions to convert, exchange or surrender the shares of Preferred Stock
represented thereby only into or for, as the case may be, the kind and amount of
shares of Preferred Stock and other securities and property and cash into which
the Preferred Stock represented by such Receipts might have been converted or
for which such Preferred Stock might have been exchanged or surrendered
immediately prior to the effective date of such transaction.
SECTION 4.07. Inspection of Reports. The Depository shall make
available for inspection by holders of Receipts at the Depositary's Office, and
at such other places as it may from time to time deem advisable, any reports and
communications received from the Company which are received by the Depositary as
the holder of Preferred Stock.
SECTION 4.08. 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,
-11-
addresses and holdings of Depositary Shares of all persons in whose names
Receipts are registered on the books of the Depositary.
SECTION 4.09. Tax and Regulatory Compliance. The Depositary shall
be responsible for (i) preparation and mailing of form 1099s (or successor
forms) for all open and closed accounts, (ii) foreign tax withholding, (iii)
withholding of tax on dividends payable to eligible holders of Receipts, (iv)
mailing W-9 forms (or successor forms) to new holders of Receipts without a
certified taxpayer identification number, (v) processing certified W-9 forms (or
successor forms), (vi) preparation and filing of state information returns, and
(vii) escheatment services.
SECTION 4.10. Withholding. Notwithstanding any other provision of
this Deposit Agreement, in the event that the Depositary determines that any
distribution in property is subject to any tax that the Depositary is obligated
to withhold, the Depositary may, after consultation with the Company, dispose of
all or a portion of such property in such amounts and in such manner as the
Depositary deems necessary and practicable to pay such taxes, by public or
private sale at such place or places and upon such terms as it shall deem proper
after consultation with the Company, and the Depositary shall distribute the net
proceeds of any such sale or the balance of any such property after deduction of
such taxes to the holders of Receipts entitled thereto in proportion to the
number of Depositary Shares held by them respectively.
ARTICLE V
THE DEPOSITARY, THE DEPOSITARY'S AGENTS,
THE REGISTRAR AND THE COMPANY
SECTION 5.01. Maintenance of Offices, Agencies and Transfer Books
by the Depositary; Registrar. The Depositary shall have its principal office in
the United States of America and shall have a combined capital and surplus of at
least $50,000,000. Upon execution of this Agreement, the Depositary shall
maintain at the Depositary's Office facilities for the execution and delivery,
registration and registration of transfer, surrender and exchange of Receipts,
and at the offices of the Depositary's Agents, if any, facilities for the
delivery, registration of transfer, surrender and exchange of Receipts, all in
accordance with the provisions of this Agreement.
The Depositary shall keep books at the Depositary's Office for the
registration and registration of transfer of Receipts, which books at all
reasonable times shall be open for inspection by the record holders of Receipts;
provided, however, 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 interests as an owner of Depositary Shares
evidenced by Receipts.
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.
If the Receipts or the Depositary Shares evidenced thereby or the
Preferred Stock represented by such Depositary Shares shall be listed on the New
York Stock Exchange, the Depositary may, with the approval of the Company,
appoint a Registrar for registration of such Receipts or Depositary Shares in
accordance with any requirements of such Exchange. Such Registrar (which may be
the Depositary if so permitted by the requirements of such Exchange)
-12-
may be removed and a substituted registrar appointed by the Depositary upon the
request or with the approval of the Company. If the Receipts, the Depositary
Shares or the Preferred Stock shall be listed on one or more other stock
exchanges, the Depositary will, at the request of the Company, arrange such
facilities for the delivery, registration, registration of transfer, surrender
and exchange of the Receipts, the Depositary Shares or the Preferred Stock as
may be required by law or applicable stock exchange regulation.
SECTION 5.02. Prevention of or Delay in Performance by the
Depositary, the Depositary's Agents, the Registrar or the Company. Neither the
Depositary nor any Depositary's Agent nor any Registrar nor the Company shall
incur any liability to any holder of a Receipt if by reason of any provision of
any present or future law, or regulation thereunder, of the United States of
America or of any other governmental authority or, in the case of the
Depositary, the Depositary's Agent or the Registrar, by reason of any provision,
present or future, of the Company's Articles of Incorporation (including the
Certificate) or by reason of any act of God or war or other circumstance beyond
the control of the relevant party, the Depositary, the Depositary's Agent, the
Registrar or the Company shall be prevented or forbidden from, or subjected to
any penalty on account of, doing or performing any act or thing which the terms
of this Agreement provide shall be done or performed; nor shall the Depositary,
any Depositary's Agent, any 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 which the terms of this
Deposit Agreement provide shall or may be done or performed or (ii) by reason of
any exercise of, or failure to exercise, any discretion provided for in this
Agreement except, in case of any such exercise or failure to exercise discretion
not caused as aforesaid, if caused by the negligence or willful misconduct of
the party charged with such exercise or failure to exercise.
SECTION 5.03. Obligations of the Depositary, the Depositary's
Agents, the Registrar and the Company. Neither the Depositary nor any
Depositary's Agent nor any Registrar nor the Company assumes any obligation or
shall be subject to any liability under this Agreement to holders of Receipts
other than for its negligence or willful misconduct.
Neither the Depositary nor any Depositary's Agent nor any Registrar nor
the Company shall be under any obligation under this Agreement to appear in,
prosecute or defend any action, suit or other proceeding in respect of deposited
shares of Preferred Stock, the Depositary Shares or the Receipts 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 any Registrar nor
the Company shall be liable for any action or any failure to act by it in
reliance upon the written advice of legal counsel or accountants, or information
from any person presenting shares of Preferred Stock for deposit, any holder of
a Receipt or any other person believed by it in good faith to be competent to
give such information. The Depositary, any Depositary's Agent, any Registrar and
the Company may each rely and shall each be protected in acting upon any written
notice, request, direction or other document believed by it to be genuine and to
have been signed or presented by the proper party or parties.
Notwithstanding the first paragraph of this Section, the Depositary
shall not be responsible for any failure to carry out any instruction to vote
any of the deposited shares of Preferred Stock or for the manner or effect of
any such vote made, as long as any such action or nonaction is in good faith or
in accordance with this Agreement. The Depositary undertakes, and
-13-
any Registrar shall be required to undertake, to perform such duties and only
such duties as are specifically set forth in this Deposit Agreement, and no
implied covenants or obligations shall be read into this Deposit Agreement
against the Depositary or any Registrar. The Depositary will indemnify the
Company against any liability that may arise out of acts performed or omitted by
the Depositary or its agents due to its or their negligence or bad faith. The
Depositary, the Depositary's Agents and any Registrar may own and deal in any
class of securities of the Company and its affiliates and Receipts. The
Depositary may also act as transfer agent or registrar of any of the securities
of the Company and its affiliates.
SECTION 5.04. Resignation and Removal of the Depositary;
Appointment of Successor Depositary. The Depositary may at any time resign as
Depositary hereunder by notice of its election 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 Depository may at any time be removed by the Company by notice of
such removal delivered to the Depositary, such removal to take effect upon the
appointment of a successor Depositary and its acceptance of such appointment as
hereinafter provided.
In case at any time the Depositary acting hereunder shall resign or be
removed, the Company shall, within 60 days after the delivery of the notice of
resignation or removal, as the case may be, appoint a successor Depositary,
which shall be a bank or trust company having its principal office in the United
States of America and having a combined capital and surplus of at least
$50,000,000. If no successor Depositary shall have been so appointed and have
accepted appointment within 60 days after delivery of such notice, the resigning
or removed Depositary may petition any court of competent jurisdiction for the
appointment of a successor Depositary. Every successor Depositary shall execute
and deliver to its predecessor and to the Company an instrument in writing
accepting its appointment hereunder, and 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 Agreement, and such predecessor, upon payment of all
sums due it and on the written request of the Company, shall execute and deliver
an instrument transferring to such successor all rights and powers of such
predecessor hereunder, shall duly assign, transfer and deliver all right, title
and interest in the Preferred 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, and notice thereof shall
not be required hereunder. Such successor Depositary may authenticate the
Receipts in the name of the predecessor Depositary or in the name of the
successor Depositary.
-14-
SECTION 5.05. Corporate Notices and Reports. The Company agrees
that it will transmit to the record holders of Receipts, in each case at the
addresses furnished to it pursuant to Section 4.08, all notices and reports
(including without limitation financial statements) required by law, by the
rules of any national securities exchange upon which the Preferred Stock, the
Depositary Shares or the Receipts are listed or by the Company's Articles of
Incorporation (including the Certificate) to be furnished by the Company to
holders of shares of Preferred Stock. Such transmission will be at the Company's
expense.
SECTION 5.06. Indemnification by the Company. The Company shall
indemnify the Depositary, any Depositary's Agent and any Registrar against, and
hold each of them harmless from, any loss, liability or expense (including the
costs and expenses of defending itself) that may arise out of (i) acts performed
or omitted in connection with this Deposit Agreement and the Receipts (a) by the
Depositary, any Registrar or any of their respective agents (including any
Depositary's Agent), except for any liability arising out of negligence or bad
faith on the respective parts of any such person or persons, or (b) by the
Company or any of its agents, or (ii) the offer, sale or registration of the
Receipts or the Preferred Stock pursuant to the provisions hereof. The
obligations of the Company set forth in this Section 5.06 shall survive any
succession of any Depositary, Registrar or Depositary's Agent.
SECTION 5.07. Charges and Expenses. The Company shall pay all
transfer and other taxes and governmental charges in connection with the
existence of the depositary arrangements. The Company shall pay all charges of
the Depositary in connection with the initial deposit of the Preferred Stock and
the initial issuance of the Depositary Shares and redemption of the Preferred
Stock at the option of the Company. All other transfer and other taxes and
governmental charges shall be at the expense of holders of Depositary Shares.
If, at the request of a holder of Receipts, the Depositary incurs charges or
expenses for which it is not otherwise liable hereunder, such holder will be
liable for such charges and expenses. All other charges and expenses of the
Depositary and any Depositary's Agent hereunder and of any Registrar (including,
in each case, fees and expenses of counsel) incident to the performance of their
respective obligations hereunder will be paid upon consultation and agreement
between the Depositary and the Company as to the amount and nature of such
charges and expenses. The Depositary shall present its statement for charges and
expenses to the Company once every three months or at such other intervals as
the Company and the Depositary may agree.
ARTICLE VI
AMENDMENT AND TERMINATION
SECTION 6.01. Amendment. The form of the Receipts and any
provisions of this Agreement may at any time and from time to time be amended by
agreement between the Company and the Depositary in any respect which they may
deem necessary or desirable; provided, however, that no such amendment that
shall materially and adversely alter the rights of the holders of Receipts shall
be effective unless such amendment shall have been approved by the holders of at
least a majority of the Depositary Shares then outstanding. 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 Agreement as amended thereby.
SECTION 6.02. Termination. This Agreement may be terminated by the
Company or the Depositary only after (i) all outstanding Depositary Shares shall
have been
-15-
redeemed pursuant to Section 2.03; (ii) there shall have been made a final
distribution in respect of the Preferred Stock in connection with any
liquidation, dissolution or winding up of the Company and such distribution
shall have been distributed to the holders of Depositary Shares pursuant to
Section 4.01 or Section 4.02, as applicable; (iii) all outstanding Depositary
Shares shall have been converted into or exchanged for other securities; and
(iv) upon determination by the Company to terminate this Agreement. In the case
of a termination pursuant to (iv) above, the Depositary shall give notice or
termination to the holders of Depositary Shares not less than 30 days before the
termination date; and further, every holder shall upon surrender of its
Depositary Receipts to the Depositary be entitled to receive from the Depositary
the number of whole or fractional shares of the series of Preferred Stock that
such Depositary Receipts relate to.
Upon the termination of this 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 5.06 and
5.07. The Depositary's indemnity under Section 5.03 shall survive the
termination of this Agreement and the resignation or removal of such Depositary.
ARTICLE VII
MISCELLANEOUS
SECTION 7.01. Counterparts. This Agreement may be executed in any
number of counterparts, and by each of the parties hereto on separate
counterparts, each of which counterparts, when so executed and delivered, shall
be deemed an original, but all such counterparts taken together shall constitute
one and the same instrument.
SECTION 7.02. Exclusive Benefit of Parties. This 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 7.03. Invalidity of Provisions. In case any one or more of
the provisions contained in this 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 7.04. Notices. Any and all notices to be given to the
Company hereunder or under the Receipts shall be in writing and shall be deemed
to have been duly given if personally delivered or sent by mail or by telegram
or telex confirmed by letter, addressed to the Company at 000 X. Xxxxxxx Xxxxxx,
Xxx Xxxxxxx, Xxxxx 00000 to the attention of the Secretary, or at any other
address of which the Company shall have notified the Depositary in writing.
Any and all notices to be given to the Depositary hereunder or under
the Receipts shall be in writing and shall be deemed to have been duly given if
personally delivered or sent by mail or by telegram or telex confirmed by
letter, addressed to the Depositary at the Depositary's Office, at [ADDRESS OF
DEPOSITARY], or at any other address of which the Depositary shall have notified
the Company in writing.
Any and all notices to be given to any record holder of a Receipt
hereunder or under the Receipts shall be in writing and shall be deemed to have
been duly given if personally
-16-
delivered or sent by mail or by telegram or telex confirmed by letter, addressed
to such record holder at the address of such record holder as it appears on the
books of the Depositary, or if such holder shall have filed with the Depositary
a written request that notices intended for such holder be mailed to some other
address, at the address designated in such request.
Delivery of a notice sent by mail or by telegram or telex shall be
deemed to be effected at the time when a duly addressed letter containing the
same (or a confirmation thereof in the case of a telegram or telex message) is
deposited, postage prepaid, in a post office letter box. The Depositary or the
Company may, however, act upon any telegram or telex message received by it from
the other or from any holder of a Receipt, notwithstanding that such telegram or
telex message shall not subsequently be confirmed by letter or as aforesaid.
SECTION 7.05. Depositary's Agents. The Depositary may from time to
time appoint Depositary's Agents to act in any respect for the Depositary for
the purposes of this Agreement and may at any time appoint additional
Depositary's Agents and vary or terminate the appointment of such Depositary's
Agents. The Depositary will notify the Company of any such action.
SECTION 7.06. Holders of Receipts Are Parties. The holders of
Receipts from time to time shall be parties to this Agreement and shall be bound
by all of the terms and conditions hereof and of the Receipts by acceptance of
delivery thereof.
SECTION 7.07. Governing Law. This Agreement and the Receipts and
all rights hereunder and thereunder and provisions hereof and thereof shall be
governed by, and construed in accordance with, the laws of the State of
Delaware.
SECTION 7.08. Inspection of Agreement. Copies of this Agreement
shall be filed with the Depositary and the Depositary's Agents and shall be open
to inspection during business hours at the Depositary's Office and the
respective offices of the Depositary's Agents, if any, by an holder of a
Receipt.
SECTION 7.09. Headings. The headings of articles and sections in
this Agreement and in the form of the Receipt set forth in Exhibit A hereto have
been inserted for convenience only and are not to be regarded as a part of this
Agreement or the Receipts or have any bearing upon the meaning or interpretation
of any provision contained herein or in the Receipts.
-17-
IN WITNESS WHEREOF, the Company and the Depositary have duly executed
this 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.
SBC COMMUNICATIONS INC.
Attested by By
-------------------
-------------------
[SEAL]
[NAME OF DEPOSITARY], as
Depositary
Attested by By
-------------------
-------------------
[SEAL]
-18-
EXHIBIT A
[FORM OF DEPOSITARY RECEIPT]
CERTIFICATE FOR NOT MORE THAN ______________________DEPOSITARY SHARES
DEPOSITARY RECEIPT FOR DEPOSITARY SHARES,
REPRESENTING PREFERRED STOCK, SERIES ___ OF
SBC COMMUNICATIONS INC.
INCORPORATED UNDER THE LAWS OF THE STATE OF DELAWARE
Serial Number _______ Number of Depositary Shares ______
____________________, as Depositary (the "Depositary"), hereby certifies that
____________________ is the registered owner of _______________________________
DEPOSITARY SHARES ("Depositary Shares"), each Depositary Share representing
[____] of Preferred Stock, Series ___, $1 par value of SBC Communications Inc.,
a Delaware corporation (the "Corporation"), on deposit with the Depositary,
subject to the terms and entitled to the benefits of the Deposit Agreement dated
as of _______,2000, (the "Deposit Agreement") between the Corporation and the
Depositary. By accepting this Receipt the holder hereof becomes a party to and
agrees to be bound by all the terms and conditions of the Deposit Agreement.
This Receipt shall not be valid or obligatory for any purpose or entitled to any
benefits under the Deposit Agreement unless it shall have been executed by the
Depositary by the manual signature of a duly authorized officer and shall have
been countersigned manually by a Registrar or by the Depositary as Registrar in
respect of the Receipts by the manual signature of a duly authorized officer
thereof.
Dated:
----------------
COUNTERSIGNED AND REGISTERED:
-----------------------------
DEPOSITARY AND REGISTRAR
By:
-----------------------
Authorized Officer
[REVERSE OF FORM OF DEPOSITARY RECEIPT]
SBC COMMUNICATIONS INC.
SBC COMMUNICATIONS INC. WILL FURNISH WITHOUT CHARGE TO EACH
RECEIPTHOLDER WHO SO REQUESTS A COPY OF THE DEPOSIT AGREEMENT AND A STATEMENT OR
SUMMARY OF THE POWERS, DESIGNATIONS, PREFERENCES AND RELATIVE, PARTICIPATING,
OPTIONAL OR OTHER SPECIAL RIGHTS OF EACH CLASS OF STOCK OR SERIES THEREOF WHICH
THE CORPORATION IS AUTHORIZED TO ISSUE AND OF THE QUALIFICATIONS, LIMITATIONS OR
RESTRICTIONS OF SUCH PREFERENCES AND/OR RIGHTS. ANY SUCH REQUEST IS TO BE
ADDRESSED TO THE DEPOITARY NAMED ON THE FACE OF THIS RECEIPT.
The following abbreviations, when used in the inscription on the face of
this receipt, shall be construed as though they were written out in full
according to applicable laws or regulations:
TEN COM - as tenants in common
TEN ENT - as tenants by the entireties
JT TEN - as joint tenants with right of survivorship
and not as tenants in common
Additional abbreviations may also be used though not in the above list.
For value received, _____________________________________ hereby sell(s),
assign(s), and transfer(s) unto
-------------------------
(Name)
-------------------------
(Address)
-------------------------
(Address)
-------------------------
(City, State, Zip Code)
Depositary Shares represented by this Receipt, and do hereby irrevocably
constitute and appoint _____________ to transfer the said Depositary Shares on
the books of the above named Depositary with full power of substitution in the
premises.
Dated :
---------------------
NOTICE: The signature to this assignment must
correspond with the name as written upon the face of
this Receipt in every particular, without alteration
or enlargement or any change whatever.
