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EXHIBIT 4.9
XXXXXX INDUSTRIES, INC.
and
[______________________________],
As Depositary
and
HOLDERS OF DEPOSITARY RECEIPTS
______________
FORM OF DEPOSIT AGREEMENT*
______________
Dated as of [__________]
* Complete or modify the provisions of this Form as appropriate to reflect the
terms of the Depositary Shares and Depositary Receipts.
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TABLE OF CONTENTS
Page
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Parties . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
Recitals . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
ARTICLE 1.
DEFINITIONS
"Certificate of Incorporation" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
"Certificate of Designation" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
"Common Stock" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
"Company" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
"Corporate Office" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
"Deposit Agreement" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
"Depositary" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
"Depositary Share" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
"Depositary's Agent" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
"New York Office" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
"Receipt" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
"record holder" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
"Registrar" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
"Securities Act" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
"Stock" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
ARTICLE 2.
FORM OF RECEIPTS, DEPOSIT OF STOCK,
EXECUTION AND DELIVERY, TRANSFER, SURRENDER,
REDEMPTION AND CONVERSION OF RECEIPTS
SECTION 2.1 Form and Transfer of Receipts. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
SECTION 2.2 Deposit of Stock; Execution and Delivery of Receipts in Respect Thereof. . . . . . . . . . . . . . 3
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. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
SECTION 2.9 Cancellation and Destruction of Surrendered Receipts. . . . . . . . . . . . . . . . . . . . . . . . 9
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ARTICLE 3.
CERTAIN OBLIGATIONS OF HOLDERS
OF RECEIPTS AND THE COMPANY
SECTION 3.1 Filing Proofs, Certificates and Other Information. . . . . . . . . . . . . . . . . . . . . . . . . 9
SECTION 3.2 Payment of Taxes or Other Governmental Charges. . . . . . . . . . . . . . . . . . . . . . . . . . . 9
SECTION 3.3 Withholding. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
SECTION 3.4 Representations and Warranties as to Stock. . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
ARTICLE 4.
THE STOCK, NOTICES
SECTION 4.1 Cash Distributions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
SECTION 4.2 Distributions Other Than Cash . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
SECTION 4.3 Subscription Rights, Preferences or Privileges. . . . . . . . . . . . . . . . . . . . . . . . . . 11
SECTION 4.4 Notice of Dividends, Fixing of Record Date for Holders of Receipts . . . . . . . . . . . . . . . 11
SECTION 4.5 Voting Rights . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
SECTION 4.6 Changes Affecting Stock and Reclassifications, Recapitalizations, etc. . . . . . . . . . . . . . 12
SECTION 4.7 Reports . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
SECTION 4.8 Lists of Receipt Holders . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
ARTICLE 5.
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 . . . . . . . . 13
SECTION 5.2 Prevention or Delay in Performance by the Depositary, the Depositary's Agents, the
Registrar or the Company . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
SECTION 5.3 Obligations of the Depositary, the Depositary's Agents, the Registrar and the
Company . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
SECTION 5.4 Resignation and Removal of the Depositary, Appointment of Successor Depositary . . . . . . . . . 15
SECTION 5.5 Corporate Notices and Reports . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16
SECTION 5.6 Deposit of Stock by the Company . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16
SECTION 5.7 Indemnification by the Company . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16
SECTION 5.8 Fees, Charges and Expenses . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16
ARTICLE 6.
AMENDMENT AND TERMINATION
SECTION 6.1 Amendment . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17
SECTION 6.2 Termination . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17
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ARTICLE 7.
MISCELLANEOUS
SECTION 7.1 Counterparts . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18
SECTION 7.2 Exclusive Benefits of Parties . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18
SECTION 7.3 Invalidity of Provisions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18
SECTION 7.4 Notices . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18
SECTION 7.5 Depositary's Agents . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19
SECTION 7.6 Holders of Receipts Are Parties . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19
SECTION 7.7 Governing Law . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19
SECTION 7.8 Headings . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19
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DEPOSIT AGREEMENT
DEPOSIT AGREEMENT, dated as of [________], among Xxxxxx
Industries, Inc., a Delaware corporation, [_________________________________],
a [________] banking corporation, as Depositary, and all holders from time to
time of Receipts issued hereunder.
W I T N E S S E T H:
WHEREAS, 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
WHEREAS, 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 1.
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 Incorporation" shall mean the Restated
Certificate of Incorporation, as amended and restated from time to time, of the
Company.
"Certificate of Designation" shall mean the Certificate of
Designation establishing and setting forth the rights, preferences, privileges
and limitations of the Stock.
"Common Stock" shall mean the Company's Common Stock, par
value $.10 per share.
"Company" shall mean Xxxxxx Industries, Inc., a Delaware
corporation, and its successors.
"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.
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"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 Designation, and to the
benefits of all obligations and duties of the Company in respect of the Stock
under the Certificate of Designation 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 7.05.
"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
a 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.
"Stock" shall mean shares of the Company's [name of series]
Preferred Stock, $.10 par value per share.
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ARTICLE 2.
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 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.
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
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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 2.02, 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 or other securities in accordance with the
Certificate of Designation, 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
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
__________________________________
* This section to be modified to discuss specific redemption or
conversion terms of the Stock, if any.
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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
Designation) 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 Section [ ] of the Certificate of Designation. 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
Designation) to be used to calculate the number of shares of Common Stock or
other securities deliverable upon redemption; whether the Company is exercising
any option to deliver shares of Common Stock or other securities in lieu of any
cash consideration pursuant to Section [ ] of the Certificate of Designation
and the Current Market Price to be used to calculate the number of such shares
or other securities; 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 or
other securities 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 or other securities 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 Section [ ] of the
Certificate of Designation. 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 or
other securities to convert or redeem such number of Depositary Shares
(including, in the event that the Company elects pursuant to Section [ ] of the
Certificate of Designation to exercise any option to deliver shares of Common
Stock or other securities in lieu of any cash consideration payable on the
Effective Date (as defined in the Certificate of Designation) 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
Designation)), 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 Section [ ] of the Certificate of
Designation) as instructed and calculated by the Company. In case fewer than
all the outstanding
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Depositary Shares are to be redeemed, the Depositary Shares to be redeemed
shall be selected by the Depositary by lot, on a pro rata basis or such other
equitable method as shall be approved by the Company and the Depositary.
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 or
other securities 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 or other securities at a
rate equal to [ ] of the number of shares of Common Stock or other
securities delivered, and the holders thereof shall be entitled to [ ] of the
cash, if any, payable, in respect of the shares of Stock pursuant to the
Certificate of Designation. The foregoing shall be subject further to the terms
and conditions of the Certificate of Designation.
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 or other securities 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 or other securities and all of such shares
of Common Stock or other securities 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 or other securities 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 3.02, be distributed or made available for
distribution to such record holders that would otherwise receive fractional
interests in such shares of Common Stock or other securities.
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 2.03.
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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, but holders of such whole shares of Preferred Stock
will not thereafter be entitled to deposit such Preferred Stock hereunder or to
receive Depositary Shares thereafter. 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 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 2.04) 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.
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
__________________________________
* This Section to be modified to reflect any restrictions on withdrawal of
underlying securities.
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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.
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
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(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 cancelled by the Depositary. Except as prohibited by applicable law or
regulation, the Depositary is authorized to destroy such Receipts so cancelled.
ARTICLE 3.
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 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 4.06, 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 or other
securities 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
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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.
ARTICLE 4.
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 3.02, distribute to record holders of
Receipts on the record date fixed pursuant to Section 4.04 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 3.02,
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 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.
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The net proceeds of any such sale shall, subject to Section 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.
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 4.01 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 the mandatory conversion of, or any election
on the part of the Company to call for the redemption of, any shares
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16
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 4.04 will be entitled, subject to any
applicable provision of law, the Certificate of Incorporation or the
Certificate of Designation, 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.
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
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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 5.
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.
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
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Incorporation or the Certificate of Designation 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.
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
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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 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
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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.
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 Designation 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
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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.
ARTICLE 6.
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 2.03, 2.06 and 2.07 and
Article 3, 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 5.04.
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
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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 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 5.07 and 5.08. In the event this Deposit Agreement is
terminated, the Company hereby agrees to use its best efforts to list the
underlying Stock on the American Stock Exchange, Inc.
ARTICLE 7.
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 000
Xxxx Xxxxxx Xxxx, Xxxxx 0000, Xxxxxxx, Xxxxx 00000, Attention: President, or at
any other place to which the Company may have transferred its principal
executive office.
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.
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23
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 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
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.
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24
IN WITNESS WHEREOF, Xxxxxx Industries, 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.
XXXXXX INDUSTRIES, INC.
By:________________________________
Authorized Officer
Attest:
__________________________ [_______________________]
By:________________________________
Authorized Signatory
Attest:
__________________________
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EXHIBIT A
DEPOSITARY RECEIPT
FOR
DEPOSITARY SHARES
EACH REPRESENTING [ ] OF A SHARE OF
[______________________________________________]
PREFERRED STOCK
OF
XXXXXX INDUSTRIES, 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 [ ] of a
share of [____________________________] Preferred Stock, $.10 par value (the
"Stock"), of Xxxxxx Industries, 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 Designation establishing the rights, preferences, privileges and limitations
of the Stock (the "Certificate of Designation"), 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
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TO THE VALIDITY, GENUINENESS OR SUFFICIENCY OF ANY STOCK AT ANY TIME DEPOSITED
WITH THE DEPOSITARY UNDER THE DEPOSIT AGREEMENT OR OF THE 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 [_________] (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 Designation, 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 Designation) 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 Section [ ] of the Certificate of Designation. 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 Section [ ] of the
Certificate of Designation. 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
__________________________________
* This section to be modified to discuss specific redemption or conversion
terms of the Stock, if any.
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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 or other securities to convert or redeem such number
of Depositary Shares (including, in the event that the Company elects pursuant
to Section [ ] of the Certificate of Designation to exercise any option to
deliver shares of Common Stock or other securities in lieu of any cash
consideration payable on the Effective Date (as defined in the Certificate of
Designation) of any Merger or Consolidation, a number of shares of Common Stock
or other securities equal to such cash consideration (as determined in the
manner set forth in the Certificate of Designation)), 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 or other
securities pursuant to Section [ ] of the Certificate of Designation). 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 or other securities 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 or other securities at a rate equal to [ ]
of the number of shares of Common Stock or other securities delivered, and the
holders thereof shall be entitled to [________] of the cash, if any, payable,
in respect of the shares of Stock pursuant to the Certificate of Designation.
The foregoing is subject further to the terms and conditions of the Certificate
of Designation. 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 or other securities 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.
(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, 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
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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 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
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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 4.06 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 or other securities 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 2.03, 2.06
and 2.07 and Article 3 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.
(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
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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 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
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law, the Certificate of Incorporation or the Certificate of Designation, 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
Designation 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
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
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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 5.04 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 5.07 and 5.08 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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