EXHIBIT 4-d
MORGAN XXXXXXX, XXXX XXXXXX, DISCOVER & CO.,
THE BANK OF NEW YORK
AND
THE HOLDERS FROM TIME TO TIME OF
THE DEPOSITARY RECEIPTS DESCRIBED HEREIN
DEPOSIT AGREEMENT
Dated as of _________________, 199__
TABLE OF CONTENTS
Page
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ARTICLE 1
Definitions
Section 1.1. Definitions............................................ 1
ARTICLE 2
Form of Receipts, Deposit of Stock, Execution and Delivery,
Transfer, Surrender and Redemption of Receipts
Section 2.1. Form and Transfer of Receipts.......................... 2
Section 2.2. Deposit of Stock; Execution and Delivery of
Receipts in Respect Thereof........................... 4
Section 2.3. Registration of Transfer of
Receipts.............................................. 4
Section 2.4. Split-ups and Combinations of Receipts;
Surrender of Receipts and Withrawal of
Stock................................................. 5
Section 2.5. Limitations on Execution and Delivery,
Transfers, Surrender and Exchange of
Receipts.............................................. 6
Section 2.6. Lost Receipts, Etc..................................... 6
Section 2.7. Optional Redemption of Stock........................... 6
Section 2.8. Cancellation and Destruction of Surrendered
Receipts.............................................. 8
Section 3.1. Filing Proofs, Certificates and Other
Information........................................... 8
Section 3.2. Payment of Taxes or Other Governmental
Charges................................................ 8
Section 3.3. Warranty as to Stock.................................... 9
ARTICLE 4
The Deposited Securities; Notices
Section 4.1. Cash Distributions...................................... 9
Section 4.2. Distributions Other than Cash, Rights,
Preferences or Privileges.............................. 9
Section 4.3. Subscription Rights, Preferences or
Privileges............................................. 10
Section 4.4. Notice of Dividends, Etc.; Fixing Record
Date for Holders of Receipts........................... 11
Section 4.5. Voting Rights........................................... 11
Section 4.6. Changes Affecting Deposited Securities and
Reclassifications, Recapitalizations, etc.............. 12
Section 4.7. Delivery of Reports..................................... 13
Section 4.8. Lists of Receipt Holders................................ 13
ARTICLE 5
The Depositary, the Depositary's Agents, the Registrar and the Company
Section 5.1. Maintenance of Offices, Agencies and
Transfer Books by the Depositary;
Registrar.............................................. 13
Section 5.2. Prevention of or Delay in Performance by
the Depositary or the Company.......................... 14
Section 5.3. Obligation of the Depositary 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. Indemnification......................................... 16
Section 5.7. Charges and Expenses.................................... 17
ARTICLE 6
Amendment and Termination
Section 6.1. Amendment............................................... 18
Section 6.2. Termination............................................. 18
ARTICLE 7
Miscellaneous
Section 7.1. Counterparts............................................ 19
Section 7.2. Exclusive Benefit of Parties............................ 19
Section 7.3. Invalidity of Provisions................................ 20
Section 7.4. Notices................................................. 20
Section 7.5. Depositary's Agents..................................... 21
Section 7.6. Holders of Receipts Are
Parties................................................ 21
Section 7.7. Governing Law........................................... 21
Section 7.8. Inspection of Deposit
Agreement.............................................. 21
Section 7.9. Headings................................................ 21
EXHIBIT A -- Form of Receipt
DEPOSIT AGREEMENT dated as of__________________________,
199__ , among XXXXXX XXXXXXX, XXXX XXXXXX, DISCOVER & CO., a Delaware
corporation, THE BANK OF NEW YORK, a New York banking corporation, and the
holders from time to time of the Receipts described herein.
WHEREAS, it is desired to provide as hereinafter set forth
in this Deposit Agreement, for the deposit from time to time of shares of
[specify designation of Series of Preferred Stock], without par value,
stated value $_______ per share, of Xxxxxx Xxxxxxx, Xxxx Xxxxxx, Discover &
Co. with the Depositary for the purposes set forth in this Deposit
Agreement and for the issuance hereunder of Receipts evidencing Depositary
Shares in respect of the Stock so deposited; and
WHEREAS, the Receipts are to be substantially in the form of
Exhibit A annexed hereto, with appropriate insertions, modification and
omissions, as hereinafter provided in this Deposit Agreement;
NOW, THEREFORE, in consideration of the premises, the parties
hereto agree as follows:
ARTICLE 1
Definitions
Section 1.1. Definitions. The following definitions shall
for all purposes, unless otherwise indicated, apply to the respective terms
used in this Deposit Agreement:
"Certificate" shall mean the Certificate of Designation of
Preferences and Rights filed or to be filed with the Secretary of State of the
State of Delaware establishing the Stock as a series of preferred stock,
without par value, of the Company.
"Company" shall mean Xxxxxx Xxxxxxx, Xxxx Xxxxxx, Discover &
Co., a Delaware corporation, and its successors.
"Deposit Agreement" shall mean this Deposit Agreement, as
amended or supplemented from time to time.
"Depositary" shall mean The Bank of New York, or any successor
as Depositary hereunder.
"Depositary Shares" shall mean Depositary Shares, each
representing [specify fraction] share(s) of Stock and evidenced by a Receipt.
"Depositary's Agent" shall mean an agent appointed by the
Depositary pursuant to Section 7.5.
"Depositary's Office" shall mean the principal corporate trust
office of the Depositary in New York City, at which at any particular time its
depositary receipt business shall be administered.
"Holder" as applied to a Receipt shall mean the person in
whose name a Receipt is registered on the books of the Depositary
maintained for such purpose.
"Receipt" shall mean one of the Depositary Receipts,
substantially in the form set forth as Exhibit A hereto, issued hereunder,
whether in definitive or temporary form and evidencing the number of
Depositary Shares held of record by the holder of such Depositary Shares.
"Registrar" shall mean the Depositary or such other bank or
trust company that shall be appointed to register ownership and transfers of
Receipts as herein provided as well as to effect transfers and the
distribution of dividends with respect to the Stock.
"Securities Act" shall mean the Securities Act of 1933, as
amended.
"Stock" shall mean shares of the Company's _______________
Cumulative Preferred Stock, par value $0.01 per share, stated value
$_______________ per share.
ARTICLE 2
Form of Receipts, Deposit of Stock, Execution and Delivery, Transfer,
Surrender and Redemption of Receipts
Section 2.1. Form and Transfer of Receipts. Definitive
Receipts shall be engraved or printed or lithographed on steel-engraved
borders, with appropriate insertions, modifications and omissions, as
hereinafter provided. Pending the preparation of definitive Receipts, the
Depositary, upon the written order of the Company delivered in compliance
with Section 2.2, shall execute and deliver temporary Receipts that are
printed, lithographed, typewritten, mimeographed or otherwise substantially
of the tenor of the definitive Receipts in lieu of which they are issued
and with such appropriate insertions, omissions, substitutions and other
variations as the persons executing such Receipts may determine, as
evidenced by their execution of such Receipts. If temporary Receipts are
issued, the Company and the Depositary will cause definitive Receipts to be
prepared without unreasonable delay. After the preparation of definitive
Receipts, the temporary Receipts shall be exchangeable for definitive
Receipts upon surrender of the temporary Receipts at an office described in
the penultimate paragraph of Section 2.2, without charge to the holder.
Upon surrender for cancellation of any one or more temporary Receipts, the
Depositary shall execute and deliver in exchange therefor definitive
Receipts representing the same number of Depositary Shares as are
represented by the surrendered temporary Receipt or Receipts. Such
exchange shall be made at the Company's expense and without any charge
therefor. Until so exchanged, the temporary Receipts shall in all respects
be entitled to the same benefits under this Deposit Agreement, and with
respect to the Stock, as definitive Receipts.
Receipts shall be executed by the Depositary by the manual
or facsimile signature of a duly authorized signatory of the Depositary
and, if a Registrar for the Receipts shall have been appointed,
countersigned by the manual signature of a duly authorized signatory of the
Registrar; provided that no Receipt shall be entitled to any benefits under
this Deposit Agreement or be valid or obligatory for any purpose unless it
shall have been executed manually by a duly authorized signatory of the
Depositary or, if a Registrar for the Receipts shall have been appointed,
by facsimile signature of a duly authorized signatory of the Depositary and
countersigned manually by a duly authorized signatory of such Registrar.
The Depositary shall record on its books each Receipt so signed and
delivered as hereinafter provided.
Receipts shall be in denominations of any number of whole
Depositary Shares.
Receipts may be endorsed with or have incorporated in the text
thereof such legends or recitals or changes not inconsistent with the
provisions of this Deposit Agreement as may be required by the Depositary or
required to comply with any applicable law or any regulation thereunder or
with the rules and regulations of any securities exchange upon which the
Stock, the Depositary Shares or the Receipts may be listed or to conform with
any usage with respect thereto, or to indicate any special limitations or
restrictions to which any particular Receipts are subject.
Title to Depositary Shares evidenced by a Receipt that is
properly endorsed or accompanied by a properly executed instrument of transfer
shall be transferable by delivery with the same effect as in the case of a
negotiable instrument; provided, however, that until transfer of a Receipt
shall be registered on the books of the Depositary as provided in Section 2.3,
the Depositary may, notwithstanding any notice to the contrary, treat the
holder of record 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 may from time to time deposit shares of
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 duly executed
instrument of transfer or endorsement, in form satisfactory to the
Depositary, together with all such certifications as may be required by the
Depositary in accordance with the provisions of this Deposit Agreement, and
together with a written order of the Company directing the Depositary to
execute and deliver to, 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.
Deposited Stock shall be held by the Depositary at the
Depositary's office or at such other place or places as the Depositary shall
determine.
Upon receipt by the Depositary of a certificate or certificates
for Stock deposited in accordance with the provisions of this Section,
together with the other documents required as above specified, and upon
recordation of the Stock on the books of the Company in the name of the
Depositary or its nominee, the Depositary, 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, a Receipt or Receipts for
the number of 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 Depositary's Office or such other offices, if any, as the Depositary may
designate. Delivery at other offices shall be at the risk and expense of the
person requesting such delivery.
Other than in the case of splits, combinations or other
reclassifications affecting the Stock, or in the case of dividends or other
distributions of Stock, if any, there shall be deposited hereunder not more
than shares of Stock.
Section 2.3. Registration of Transfer of Receipts. Subject to
the terms and conditions of this Deposit Agreement, including payment of the
fees of the Depositary as provided in Section 5.7, the Depositary shall
register on its books from time to time transfers of Receipts upon any
surrender thereof by the holder in person or by duly authorized attorney,
properly endorsed or accompanied by a properly executed instrument of
transfer. Thereupon the Depositary shall execute a new Receipt or Receipts
evidencing the same aggregate number of Depositary Shares as those evidenced
by the Receipt or Receipts surrendered and deliver such new Receipt or
Receipts to or upon the order of the person entitled thereto.
Section 2.4. Split-ups and Combinations of Receipts;
Surrender of Receipts and Withdrawal of Stock. Upon surrender of a Receipt
or Receipts at the Depositary's Office or at such other offices as it may
designate for the purpose of effecting a split-up or combination of such
Receipt or Receipts, and subject to the terms and conditions of this
Deposit Agreement, the Depositary shall execute and deliver a new Receipt
or Receipts in the authorized denomination or denominations requested,
evidencing the aggregate number of Depositary Shares evidenced by the
Receipt or Receipts surrendered.
Any holder of a Receipt or Receipts representing any number
of whole shares of Stock may withdraw the Stock and all money and other
property, if any, represented thereby by surrendering such Receipt or
Receipts at the Depositary's Office or at such other offices as the
Depositary may designate for such withdrawals. Upon payment of the fees of
the Depositary for the withdrawal of Stock as provided in Section 5.7 and
payment of all taxes and without unreasonable delay, the Depositary shall
deliver to such holder or to the person or persons designated by such
holder as hereinafter provided, the number of whole shares of Stock and all
money and other property, if any, represented by the Depositary Shares
evidenced by the Receipt or Receipts so surrendered for withdrawal, but
holders of such whole shares of Stock will not thereafter be entitled to
deposit such Stock hereunder or to receive Depositary Shares therefor. If
a Receipt delivered by the holder to the Depositary in connection with such
withdrawal shall evidence a number of Depositary Shares in excess of the
number of Depositary Shares representing the number of whole shares of
Stock to be so withdrawn, the Depositary shall at the same time, in
addition to such number of whole shares of Stock and such money and other
property, if any, to be so withdrawn, deliver to such holder, or pursuant
to his order, upon payment of the fees of the Depositary for the withdrawal
of Stock as provided in Section 5.7 and payment of all taxes, a new Receipt
evidencing such excess number of Depositary Shares. Delivery of the Stock
and money and other property, if any, being withdrawn may be made by the
delivery of such certificates, documents of title and other instruments as
the Depositary may deem appropriate.
If the Stock and the money and other property, if any, being
withdrawn are to be delivered to a person or persons other than the holder of
the Receipt or Receipts being surrendered for withdrawal of Stock, such holder
shall execute and deliver to the Depositary a written order so directing the
Depositary and the Depositary may require that the Receipt or Receipts
surrendered by such holder for the withdrawal of such shares of Stock be
properly endorsed in blank or accompanied by a properly executed instrument
of transfer in blank.
Delivery of the Stock and the money and other property, if any,
represented by Receipts surrendered for withdrawal shall be made by the
Depositary at the Depositary's Office, except that, at the request, risk and
expense of the holder surrendering such Receipt or Receipts and for the
account of the holder thereof, such delivery may be made at such other place
as may be designated by such holder.
Section 2.5. Limitations on Execution and Delivery, Transfers,
Surrender and Exchange of Receipts. As a condition precedent to the execution
and delivery, registration of transfer, split-up, combination, surrender or
exchange of any Receipt, the Depositary, any of the Depositary's Agents or the
Company may require payment to it of a sum sufficient for the payment (or, in
the event that the Depositary or the Company shall have made such payment, the
reimbursement to it) of any charges or expenses payable by the holder of a
Receipt pursuant to Section 5.7, may require the production of evidence
satisfactory to it as to the identity and genuineness of any signature and may
also require compliance with such regulations, if any, as the Depositary or
the Company may establish consistent with the provisions of this Deposit
Agreement.
The deposit of Stock may be refused, the delivery of
Receipts against Stock may be suspended, the registration of transfer of
Receipts may be refused and the registration of transfer, surrender or
exchange of outstanding Receipts may be suspended (i) during any period
when the register of stockholders of the Company is closed or (ii) if any
such action is deemed necessary or advisable by the Depositary, any of the
Depositary's Agents or the Company at any time or from time to time because
of any requirement of law or of any government or governmental body or
commission or under any provision of this Deposit Agreement.
Section 2.6. Lost Receipts, Etc. In case any receipt shall
be mutilated, destroyed, lost or stolen, the Depositary in its discretion
may execute and deliver a Receipt of like form and tenor in exchange and
substitution for such mutilated Receipt upon cancellation thereof, or in
lieu of and in substitution for such destroyed, lost or stolen Receipt.
Before the Depositary shall execute and deliver a new Receipt in
substitution for a destroyed, lost or stolen Receipt, the holder thereof
shall have (i) filed with the Depositary (a) a request for such execution
and delivery before the Depositary has received notice that the Receipt has
been acquired by a bona fide purchaser and (b) a sufficient indemnity bond
(if so requested by the Depositary) and (ii) satisfied any other reasonable
requirements imposed by the Depositary.
Section 2.7. Optional Redemption of Stock. If the Company
shall elect to redeem shares of Stock pursuant to the Certificate, it shall
(unless otherwise agreed in writing with the Depositary) give the
Depositary not less than 45 days' notice of the date of such proposed
redemption of Stock and of the number of shares of Stock held by the
Depositary to be redeemed. On the date of such redemption, provided that
the Company shall then have paid in full to the Depositary the redemption
price (determined pursuant to the Certificate) of the Stock deposited with
the Depositary to be redeemed, the Depositary shall redeem (using the
proceeds of such redemption) the Depositary Shares relating to such Stock.
The Depositary shall mail, first class postage prepaid, notice of the
redemption of Stock and the proposed simultaneous redemption of the
Depositary Shares relating to the Stock to be redeemed, not less than 30
days and not more than 60 days prior to the date fixed for redemption of
such Stock and Depositary Shares (the "Redemption Date"), to the holders on
the record date fixed for such redemption pursuant to Section 4.4 of the
Receipts evidencing the Depositary Shares to be so redeemed, at the
addresses of such holders as the same appear on the records of the
Depositary; but neither failure to mail any such notice to one or more such
holders nor any defect in any notice shall affect the sufficiency of the
proceedings for redemption as to the other holders. The Company shall
provide the Depositary with such notice, and each such notice shall state:
(i) the record date for purposes of such redemption; (ii) the Redemption
Date; (iii) the number of Depositary Shares to be redeemed and, if fewer
than all the Depositary Shares held by any holder are to be redeemed, the
number of Depositary Shares held by such holder to be so redeemed; (iv)
the redemption price; (v) the place or places where Receipts evidencing
Depositary Shares to be redeemed are to be surrendered for payment of the
redemption price; and (vi) that dividends in respect of the Stock
represented by the Depositary Shares to be redeemed will cease to accrue at
the close of business on such Redemption Date. In case fewer than all the
outstanding Depositary Shares are to be redeemed, the Depositary Shares to
be redeemed shall be selected by lot or by any other substantially
equivalent method determined by the Depositary.
Notice having been mailed by the Depositary as aforesaid,
from and after the Redemption Date (unless the Company shall have failed to
redeem the shares of Stock to be redeemed by it as set forth in the
Company's notice provided for in the preceding paragraph) all dividends in
respect of the shares of Stock called for redemption shall cease to accrue,
the Depositary Shares called for redemption 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 redemption price) 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 redeemed at a
redemption price per Depositary Share equal to five (5) times the
redemption price per share paid in respect of shares of Stock pursuant to
the Certificate plus all money and other property, if any, represented by
such Depositary Shares, including all amounts paid by the Company in
respect of dividends that on the Redemption Date have accrued on the shares
of Stock to be so redeemed and that have not theretofore been paid. The
foregoing shall be subject further to the terms and conditions of the
Certificate.
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
payment of the redemption price for the Depositary Shares called for
redemption, a new Receipt evidencing the Depositary Shares evidenced by
such prior Receipt and not called for redemption.
Except as provided in the preceding paragraph of this
Section 2.7, the Depositary shall not be required to transfer or exchange
for another Receipt any Receipt evidencing Depositary Shares called or
being called for redemption in whole or in part.
The Depositary shall remit to the Company any funds
deposited by or for the account of the Company for the purpose of redeeming
any Depositary Shares that the holders thereof have failed to redeem after
two years from the date of such deposit, without further action necessary
on the part of the Company.
Section 2.8. Cancellation and Destruction of Surrendered
Receipts. All Receipts surrendered to the Depositary or any Depositary's
Agent shall be cancelled by the Depositary. Except as prohibited by
applicable law or regulation, the Depositary is authorized to destroy all
Receipts so cancelled.
ARTICLE 3
Certain Obligations of Holders of Receipts and the Company
Section 3.1. Filing Proofs, Certificates and Other
Information. Any holder of a Receipt may be required from time to time to
file such proof of residence, or other matters or other information, to
execute such certificates and to make such representations and warranties
as the Depositary or the Company may reasonably deem necessary or proper.
The Depositary or the Company may withhold the delivery, or delay the
registration of transfer, redemption or exchange, of any Receipt or the
withdrawal of the Stock represented by the Depositary Shares evidenced by
any Receipt or the distribution of any dividend or other distribution or
the sale of any property or rights or of the proceeds thereof until such
proof or other information is filed or such certificates are executed or
such representations and warranties are made.
Section 3.2. Payment of Taxes or Other Governmental
Charges. Holders of Receipts shall be obligated to make payments to the
Depositary of certain charges and expenses, as provided in Section 5.7.
Registration of transfer of any Receipt or any withdrawal of Stock and all
money or other property, if any, represented by the Depositary Shares
evidenced by such Receipt may be refused until any such payment due is
made, and any dividends, interest payments or other distributions may be
withheld or any part of or all the Stock or other property represented by
the Depositary Shares evidenced by such Receipt and not theretofore sold
may be sold for the account of the holder thereof (after attempting by
reasonable means to notify such holder prior to such sale), and such
dividends, interest payments or other distributions or the proceeds of any
such sale may be applied to any payment of such charges or expenses, the
holder of such Receipt remaining liable for any deficiency.
Section 3.3. Warranty as to Stock. The Company hereby
represents and warrants that the Stock, when issued, will be duly
authorized, validly issued, fully paid and nonassessable. Such
representation and warranty shall survive the deposit of the Stock and the
issuance of Receipts.
ARTICLE 4
The Deposited Securities; Notices
Section 4.1. Cash Distributions. Whenever the Depositary
shall receive any cash dividend or other cash distribution on Stock, the
Depositary shall, subject to Sections 3.1 and 3.2, distribute to holders of
Receipts on the record date fixed pursuant to Section 4.4 (net of the fees
of the Depositary as provided in Section 5.7 hereof) such amounts of such
dividend or distribution as are, as nearly as practicable, in proportion to
the respective numbers of Depositary Shares evidenced by the Receipts held
by such holders; provided, however, that in case the Company or the
Depositary shall be required to withhold and shall withhold from any cash
dividend or other cash distribution in respect of the Stock an amount on
account of taxes, the amount made available for distribution or distributed
in respect of Depositary Shares shall be reduced accordingly. The
Depositary shall distribute or make available for distribution, as the case
may be, only such amount, however, as can be distributed without
attributing to any holder of Depositary Shares a fraction of one cent, and
any balance not so distributable shall be held by the Depositary (without
liability for interest thereon) and shall be added to and be treated as
part of the next sum received by the Depositary for distribution to holders
of Receipts then outstanding.
Section 4.2. Distributions Other than Cash, Rights,
Preferences or Privileges. Whenever the Depositary shall receive any
distribution other than cash, rights, preferences or privileges upon Stock,
the Depositary shall, subject to Sections 3.1 and 3.2, distribute to
holders of Receipts on the record date fixed pursuant to Section 4.4 such
amounts of the securities or property received by it as are, as nearly as
practicable, in proportion to the respective numbers of Depositary Shares
evidenced by the Receipts held by such holders, in any manner that the
Depositary may deem equitable and practicable for accomplishing such
distribution. If in the opinion of the Depositary such distribution cannot
be made proportionately among such holders, or if for any other reason
(including any requirement that the Company or the Depositary withhold an
amount on account of taxes or governmental charges) the Depositary deems,
after consultation with the Company, such distribution not to be feasible,
the Depositary may, with the approval of the Company, adopt such method as
it deems equitable and practicable for the purpose of effecting such
distribution, including the sale (at public or private sale) of the
securities or property thus received, or any part thereof, at such place or
places and upon such terms as it may deem proper. The net proceeds of any
such sale shall, subject to Sections 3.1 and 3.2, be distributed or made
available for distribution, as the case may be, by the Depositary to such
holders of Receipts as provided by Section 4.1 in the case of a
distribution received in cash. The Company shall not make any distribution
of such securities unless the Company shall have provided an opinion of
counsel stating that such securities have been registered under the
Securities Act or do not need to be so registered.
Section 4.3. Subscription Rights, Preferences or
Privileges. If the Company shall at any time offer or cause to be offered
to the persons in whose names Stock is recorded on the books of the Company
any rights, preferences or privileges to subscribe for or to purchase any
securities or any rights, preferences or privileges of any other nature,
such rights, preferences or privileges shall in each such instance be made
available by the Depositary to the holders of Receipts in such manner as
the Depositary may determine, either by the issue to such holders of
warrants representing such rights, preferences or privileges or by such
other method as may be determined by the Depositary with the approval of
the Company; provided, however, that (i) if at the time of issue or offer
of any such rights, preferences or privileges the Depositary determines
that it is not lawful or (after consultation with the Company) not feasible
to make such rights, preferences or privileges available to holders of
Receipts by the issue of warrants or otherwise, or (ii) if and to the
extent so instructed by holders of Receipts who do not desire to exercise
such rights, preferences or privileges, then the Depositary may (with
approval of the Company in any case where the Depositary has determined
that it is not feasible to make such rights, preferences or privileges
available), if applicable laws or the terms of such rights, preferences or
privileges permit such transfer, sell such rights, preferences or
privileges at public or private sale, at such place or places and upon such
terms as it may deem proper. The net proceeds of any such sale shall,
subject to Sections 3.1 and 3.2, be distributed by the Depositary to the
holders of Receipts entitled thereto as provided by Section 4.1 in the case
of a distribution received in cash.
If registration under the Securities Act of the securities
to which any rights, preferences or privileges relate is required in order
for holders of Receipts to be offered or sold the securities to which such
rights, preferences or privileges relate, the Company agrees with the
Depositary that it will file promptly a registration statement pursuant to
such Act with respect to such rights, preferences or privileges and
securities and use its best efforts and take all steps available to it to
cause such registration statement to become effective sufficiently in
advance of the expiration of such rights, preferences or privileges to
enable such holders to exercise such rights, preferences or privileges. In
no event shall the Depositary make available to the holders of Receipts any
right, preference or privilege to subscribe for or to purchase any
securities unless and until such registration statement shall have become
effective, or unless the offering and sale of such securities to such
holders are exempt from registration under the provisions of the Securities
Act and the Company shall have provided to the Depositary an opinion of
counsel to such effect.
If any other action under the laws of any jurisdiction or
any governmental or administrative authorization, consent or permit is
required in order for such rights, preferences or privileges to be made
available to holders of Receipts, the Company agrees with the Depositary
that the Company will use its best efforts to take such action or obtain
such authorization, consent or permit sufficiently in advance of the
expiration of such rights, preferences or privileges to enable such holders
to exercise such rights, preferences or privileges.
Section 4.4. Notice of Dividends, Etc.; Fixing Record Date
for Holders of Receipts. Whenever any cash dividend or other cash
distribution shall become payable or any distribution other than cash shall
be made, or if rights, preferences or privileges shall at any time be
offered with respect to Stock, or whenever the Depositary shall receive
notice of (i) any meeting at which holders of Stock are entitled to vote or
of which holders of Stock are entitled to notice or (ii) any election on
the part of the Company to redeem any shares of Stock, or whenever the
Depositary and the Company shall decide it is appropriate, the Depositary
shall in each such instance fix a record date (which shall be the same date
as the record date fixed by the Company with respect to or otherwise in
accordance with the terms of the Stock) for the determination of the
holders of Receipts who shall be entitled to receive such dividend,
distribution, rights, preferences or privileges or the net proceeds of the
sale thereof, or to give instructions for the exercise of voting rights at
any such meeting, or who shall be entitled to notice of such meeting, or
whose Depositary Shares are to be redeemed or for any other appropriate
reasons.
Section 4.5. Voting Rights. Upon receipt of notice of any
meeting at which the holders of Stock are entitled to vote, the Depositary
shall, as soon as practicable thereafter, mail to the holders of Receipts
entitled thereto a notice that shall contain (i) such information as is
contained in such notice of meeting and (ii) a statement that such holders
may, subject to any applicable restrictions, instruct the Depositary as to
the exercise of the voting rights pertaining to the amount of Stock
represented by their respective Depositary Shares (including an express
indication that instructions may be given to the Depositary to give a
discretionary proxy to a person designated by the Company) and a brief
statement as to the manner in which such instructions may be given. Upon
the written request of the holders of Receipts on the relevant record date,
the Depositary shall endeavor insofar as practicable to vote or cause to be
voted, in accordance with the instructions set forth in such requests, the
maximum number of whole shares of Stock represented by the Depositary
Shares evidenced by all Receipts as to which any particular voting
instructions are received, provided that the Depositary receives such
instructions sufficiently in advance of such voting to enable it to so vote
or cause to be voted. 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 (but, in its discretion, not from
appearing at any meeting with respect to such Stock unless directed to the
contrary by the holders of all the Receipts) to the extent of the Stock
represented by the Depositary Shares evidenced by such Receipt.
Section 4.6. Changes Affecting Deposited Securities and
Reclassifications, Recapitalizations, etc. Upon any change in par or
stated value, split-up, combination or any other reclassification of the
Stock, or upon any recapitalization, reorganization, merger, amalgamation
or consolidation affecting the Company or to which it is a party, the
Depositary may in its discretion with the approval of, and shall upon the
instructions of, the Company, and (in either case) in such manner as the
Depositary may deem equitable, (i) make such adjustments as are certified
by the Company in the fraction of an interest represented by one Depositary
Share in one share of Stock as may be necessary fully to reflect the
effects of such change in par or stated value, split-up, combination or
other reclassification of Stock, or of such recapitalization,
reorganization, merger, amalgamation or consolidation and (ii) treat any
securities that shall be received by the Depositary in exchange for or upon
conversion of or in respect of the Stock as new deposited securities so
received in exchange for or upon conversion or in respect of such Stock.
In any such case the Depositary may in its discretion, with the approval of
the Company, execute and deliver additional Receipts or may call for the
surrender of all outstanding Receipts to be exchanged for new Receipts
specifically describing such new deposited securities. Anything to the
contrary herein notwithstanding, holders of Receipts shall have the right
from and after the effective date of any such change in par or stated
value, split-up, combination or other reclassification of the Stock or any
such recapitalization, reorganization, merger, amalgamation or
consolidation to surrender such Receipts to the Depositary with
instructions to convert, exchange or surrender the Stock represented
thereby only into or for, as the case may be, the kind and amount of shares
of stock and other securities and property and cash into which the Stock
represented by such Receipts might have been converted or for which such
Stock might have been exchanged or surrendered immediately prior to the
effective date of such transaction.
Section 4.7. Delivery of Reports. The Depositary shall
furnish to holders of Receipts 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 all
holders of Receipts.
ARTICLE 5
The Depositary, the Depositary's Agents,
the Registrar and the Company
Section 5.1. Maintenance of Offices, Agencies and Transfer
Books by the Depositary; Registrar. Upon execution of this Deposit
Agreement, the Depositary shall maintain at the Depositary's Office,
facilities for the execution and delivery, registration and registration of
transfer, surrender and exchange, split-up, combination and redemption of
Receipts and deposit and withdrawal of Stock, and at the offices of the
Depositary's Agents, if any, facilities for the delivery, registration of
transfer, surrender and exchange, split-up, combination 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 Depositary's Office
for the registration and registration of transfer of Receipts, which books
at all reasonable times shall be open for inspection by the 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 evidenced by the Receipts.
The Depositary may close such books, at any time or from
time to time, when deemed expedient by it in connection with the
performance of its duties hereunder.
The Depositary may, with the approval of the Company,
appoint a Registrar for registration of the Receipts or the Depositary
Shares evidenced thereby. If the Receipts or the Depositary Shares
evidenced thereby or the Stock represented by such Depositary Shares shall
be listed on the New York Stock Exchange, the Depositary will appoint a
Registrar (acceptable to the Company) for registration of such Receipts or
Depositary Shares in accordance with any requirements of such Exchange.
Such Registrar (which may be the Depositary if so permitted by the
requirements of such Exchange) may be removed and a substitute registrar
appointed by the Depositary upon the request or with the approval of the
Company. If the Receipts, such Depositary Shares or such Stock are listed
on one or more other stock exchanges, the Depositary will, at the request
of the Company, arrange such facilities for the delivery, registration,
registration of transfer, surrender and exchange of such Receipts, such
Depositary Shares or such Stock as may be required by law or applicable
stock exchange regulation.
Section 5.2. Prevention of or Delay in Performance by the
Depositary or the Company. Neither the Depositary 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 by
reason of any provision, present or future, of the Company's Restated
Certificate of Incorporation, as amended (including the Certificate) or of
the Depositary Shares or by reason of any act of God or war or other
circumstance beyond the control of the relevant party, the Depositary or
the Company shall be prevented or forbidden from, delayed in, or subjected
to any penalty on account of, doing or performing any act or thing which
the terms of this Deposit Agreement provide shall be done or performed; nor
shall the Depositary or the Company incur liability to any holder of a
Receipt (i) by reason of any nonperformance or delay, caused as aforesaid,
in the performance of any act or thing which the terms of this Deposit
Agreement shall 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 any such exercise or
failure to exercise discretion not caused as aforesaid, if caused by the
negligence or willful misconduct of the party charged with such exercise or
failure to exercise.
Where, by the terms of a distribution pursuant to Sections
4.1 or 4.2 of this Deposit Agreement, or an offering or distribution
pursuant to Section 4.3 of this Deposit Agreement, or for any other reason,
such distribution or offering may not be made available to holders of
Receipts, and the Depositary may not dispose of such distribution or
offering on behalf of such holders and make the net proceeds available to
such holders, then the Depositary shall not make such distribution or
offering, and shall allow any rights, if applicable, to lapse.
Section 5.3. Obligation of the Depositary and the Company.
Neither the Depositary nor the Company assumes any obligation or shall be
subject to any liability under this Deposit Agreement to holders of
Receipts except that each of them agrees (i) to use its best judgment and
good faith in the performance of such duties as are specifically set forth
in this Deposit Agreement and (ii) that it shall be liable for negligence
or willful misconduct in the performance of such duties as are specifically
set forth in this Deposit Agreement.
Neither the Depositary nor the Company shall be under any
obligation to appear in, prosecute or defend any action, suit or other
proceeding in respect of the Stock, the Depositary Shares or the Receipts
that in its opinion may involve it in expense or liability, unless
indemnity satisfactory to it against all expense and liability shall be
furnished as often as may be required.
Neither the Depositary nor the Company shall be liable for
any action or any failure to act by it in reliance upon the advice of legal
counsel or accountants, or information from 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
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 shall not be responsible for any failure to
carry out any instruction to vote any of the shares of Stock or for the
manner or effect of any such vote made, as long as any such action or non-
action is in good faith. The Depositary undertakes to perform such duties
and only such duties as are specifically set forth in this Deposit
Agreement, and no implied covenants or obligations shall be read into this
Deposit Agreement against the Depositary. The Depositary may also act as
transfer agent or registrar of any of the securities of the Company and its
affiliates.
The Depositary undertakes not to issue any Receipt other
than to evidence the Depositary Shares then on deposit with the Depositary.
The Depositary also undertakes not to sell (except as provided herein),
pledge or lend Depositary Shares held by it as Depositary.
No disclaimer of liability under the Securities Act is
intended by any provision of this Deposit Agreement.
Section 5.4. Resignation and Removal of the Depositary;
Appointment of Successor Depositary. The Depositary may at any time resign
as Depositary hereunder by delivering written notice of its election to do
so to the Company, such resignation to take effect upon the appointment of
a successor Depositary and its acceptance of such appointment as
hereinafter provided.
The Depositary may at any time be removed by the Company by
notice of such removal delivered to the Depositary, such removal to take
effect upon the appointment of a successor Depositary and its acceptance of
such appointment as hereinafter provided.
In case at any time the Depositary acting hereunder shall
resign or be removed, the Company shall, within 60 days after the delivery
of the notice of resignation or removal, as the case may be, appoint a
successor Depositary, which shall be a bank or trust company having its
principal office in the United States of America and having a combined
capital and surplus of at least $50,000,000. If no successor Depositary
shall have been so appointed and have accepted appointment within 60 days
after delivery of such notice, the resigning or removed Depositary may
petition any court of competent jurisdiction for the appointment of a
successor Depositary. Every successor Depositary shall execute and deliver
to its predecessor and to the Company an instrument in writing accepting
its appointment hereunder, and thereupon such successor Depositary, without
any further act or deed, shall become fully vested with all the rights,
powers, duties and obligations of its predecessor and for all purposes
shall be the Depositary under this Deposit Agreement, and such predecessor,
upon payment of all sums due it and upon the written request of the
Company, shall execute and deliver an instrument transferring to such
successor all rights and powers of such predecessor hereunder, shall duly
assign, transfer and deliver all right, title and interest in the Stock and
any moneys or property held hereunder to such successor, and shall deliver
to such successor a list of the holders of all outstanding Receipts and
such records, books and other information in its possession relating
thereto. Any successor Depositary shall promptly mail notice of its
appointment to the holders of Receipts.
Any corporation into or with which the Depositary may be
merged, consolidated or converted shall be the successor of such Depositary
without the execution or filing of any document or any further act, and
notice thereof shall not be required hereunder.
Section 5.5. Corporate Notices and Reports. The Company
agrees that it will transmit to the holders of Receipts, in each case at
the addresses furnished to it pursuant to Section 4.8, all notices and
reports (including without limitation financial statements) required by law
or by the rules of any national securities exchange upon which the Stock,
the Depositary Shares or the Receipts are listed, to be furnished to the
holders of Receipts. Such transmission will be at the Company's expense.
Section 5.6. Indemnification. The Company agrees to
indemnify the Depositary, its directors, employees, agents and affiliates
and any Depositary's Agent against, and hold each of them harmless from,
any liability or expense (including, but not limited to, the reasonable
fees and expenses of counsel) which may arise out of acts performed or
omitted in accordance with the provisions of this Deposit Agreement and of
the Receipts, as the same may be amended, modified or supplemented from
time to time, (i) by either the Depositary or a Depositary's Agent or their
respective directors, employees, agents and affiliates, except for any
liability or expense arising out of the negligence or bad faith of any of
them, or (ii) by the Company or any of its directors, employees, agents and
affiliates.
The Depositary agrees to indemnify the Company, its
directors, employees, agents and affiliates and hold them harmless from any
liability or expense (including, but not limited to, the reasonable fees
and expenses of counsel) which may arise out of acts performed or omitted
by the Depositary or a Depositary's Agent or their respective directors,
employees, agents and affiliates due to their negligence or bad faith. The
obligations set forth in this Section 5.6 shall survive the termination of
this Deposit Agreement and any succession or substitution of any
Depositary.
Any person seeking indemnification hereunder (an
"indemnified person") shall notify the person from whom it is seeking
indemnification in writing (the "indemnifying person") of the commencement
of any action or claim in respect of which indemnification may be sought
promptly after such indemnified person becomes aware of such commencement
(provided that the failure to make such notification shall not affect such
indemnified person's rights under this Section 5.6) and shall consult in
good faith with the indemnifying person as to the conduct of the defense of
such action or claim, which shall be reasonable in the circumstances. No
indemnified person shall compromise or settle any such action or claim
without the consent of the indemnifying person.
Section 5.7. Charges and Expenses. The Company shall pay
all transfer and other taxes and governmental charges arising solely from
the existence of the depositary arrangements. The Company shall pay all
charges of the Depositary in connection with the initial deposit of the
Stock and the initial issuance of the Depositary Shares, all withdrawals of
shares of the Stock by owners of Depositary Shares and the registration of
transfer of title to any Depositary Shares. All other transfer and other
taxes and governmental charges shall be at the expense of holders of
Depositary Shares. If, at the request of a holder of Receipts, the
Depositary incurs charges or expenses for which it or the Company is not
otherwise liable hereunder, such holder will be liable for such charges and
expenses. All other charges and expenses of the Depositary and any
Depositary's Agent hereunder and of any Registrar (including, in each case,
fees and expenses of counsel) incident to the performance of their
respective obligations hereunder will be paid by the Company upon
consultation and agreement between the Depositary and the Company as to the
amount and nature of such charges and expenses. The Depositary shall
present its statement for charges and expenses to the Company once every
three months or at such other intervals as the Company and the Depositary
may agree.
ARTICLE 6
Amendment and Termination
Section 6.1. Amendment. The form of the Receipts and any
provisions of this Deposit Agreement may at any time and from time to time
be amended by agreement between the Company and the Depositary in any
respect which they may deem necessary or desirable; provided, however, that
no such amendment which shall materially and adversely alter the rights of
the holders of Receipts shall be effective unless such amendment shall have
been approved by the holders of at least a majority of the Depositary
Shares then outstanding. Notwithstanding the foregoing, in no event may
any amendment impair the right of any holder of any Receipts, upon
surrender of such Receipts and subject to any conditions specified in this
Deposit Agreement, to receive shares of Stock and any money or other
property represented thereby, except in order to comply with mandatory
provisions of applicable law. Every holder of an outstanding Receipt at
the time any such amendment becomes effective in accordance with its terms
shall be deemed, by continuing to hold such Receipt, to consent and agree
to such amendment and to be bound by the Deposit Agreement as amended
thereby.
Section 6.2. Termination. This Deposit Agreement may be
terminated by the Company at any time upon not less than 60 days' prior
written notice to the Depositary, in which case, upon a date that is not
later than 30 days after the date of such notice, the Depositary shall
deliver or make available for delivery to holders of Receipts, upon
surrender of the Receipt or Receipts held by such holder, and upon payment
of any applicable taxes or governmental charges, such number of whole
shares of Stock represented by such Receipt or Receipts. The Depositary
may likewise terminate this Deposit Agreement by mailing notice of such
termination to the Company and the holders of all Receipts then outstanding
if at any time 60 days shall have expired after the Depositary shall have
delivered to the Company a written notice of its election to resign and a
successor depositary shall not have been appointed and accepted its
appointment as provided in Section 5.4. If the holder of any Receipt or
Receipts shall not have surrendered such Receipt or Receipts in exchange
for whole shares of Stock on or prior to the effective date of termination
of this Deposit Agreement, such holder shall for all purposes, including
the payment of dividends, be deemed to be a holder of the appropriate
number of whole shares of Stock previously represented by such Receipt or
Receipts and shall thereafter surrender to the Company such Receipt or
Receipts in exchange for whole shares of Stock.
If any Receipts shall remain outstanding after the date of
termination, the Depositary thereafter shall discontinue the registration
of transfers of Receipts, shall suspend the distribution of dividends to
the holders thereof, and shall not give any further notices or perform any
further acts under this Deposit Agreement, except that the Depositary shall
continue to collect dividends and other distributions pertaining to the
Stock, shall sell rights as provided in this Deposit Agreement, and shall
continue to deliver such Stock, together with any dividends or other
distributions received with respect thereto and the net proceeds of the
sale of any rights or other property, in exchange for Receipts surrendered
to the Depositary (after deducting, in each case, the fee of the Depositary
for the surrender of a Receipt, any expenses for the account of the holder
of such Receipt in accordance with the terms and conditions of this Deposit
Agreement, and any applicable taxes or governmental charges). At any time
after the expiration of one year from the date of termination, the
Depositary may sell such Stock then held hereunder and may thereafter hold
uninvested the net proceeds of any such sale, together with any other cash
then held by it hereunder, without liability for interest, for the pro rata
benefit of the holders which have not theretofore surrendered their
Receipts. After making such sale, the Depositary shall be discharged from
all obligations under this Deposit Agreement, except to account for such
net proceeds and other cash (after deducting, in each case, the fee of the
Depositary for the surrender of a Receipt, any expenses for the account of
the holder of such Receipt in accordance with the terms and conditions of
this Deposit Agreement, and any applicable taxes or governmental charges).
This Deposit Agreement shall automatically terminate after
there shall have been made a final distribution in respect of the Stock in
connection with any liquidation, dissolution or winding up of the Company
and such distribution shall have been distributed to the holders of
Receipts pursuant to Section 4.1 or 4.2, as applicable.
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 and any Depositary's Agent and
any Registrar under Sections 5.6 and 5.7.
ARTICLE 7
Miscellaneous
Section 7.1. Counterparts. This Deposit Agreement may be
executed in any number of counterparts, and by each of the parties hereto
on separate counterparts, each of which counterparts, when so executed and
delivered, shall be deemed an original, but all such counterparts taken
together shall constitute one and the same instrument.
Section 7.2. Exclusive Benefit of Parties. This Deposit
Agreement is for the exclusive benefit of the parties hereto, and their
respective successors hereunder, and shall not be deemed to give any legal
or equitable right, remedy or claim to any other person whatsoever.
Section 7.3. Invalidity of Provisions. In case any one or
more of the provisions contained in this Deposit Agreement or in the
Receipts should be or become invalid, illegal or unenforceable in any
respect, the validity, legality and enforceability of the remaining
provisions contained herein or therein shall in no way be affected,
prejudiced or disturbed thereby.
Section 7.4. Notices. Any and all notices to be given to
the Company hereunder or under the Receipts shall be in writing and shall
be deemed to have been duly given if personally delivered or sent by mail,
or by telegram or facsimile transmission confirmed by letter, addressed to
the Company at
0000 Xxxxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Telephone
No.: (000) 000-0000
or at any other address of which the Company shall have notified the
Depositary in writing.
Any and all notices to be given to the Depositary hereunder
or under the Receipts shall be in writing and shall be deemed to have been
duly given if personally delivered or sent by mail, or by telegram or
facsimile transmission confirmed by letter, addressed to the Depositary at
the Depositary's Office at 000 Xxxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, or
at any other address of which the Depositary shall have notified the
Company in writing.
Any and all notices to be given to any 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 facsimile transmission confirmed by letter, addressed to such
holder at the address of such 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
facsimile transmission shall be deemed to be effected at the time when a
duly addressed letter containing the same (or a confirmation thereof in the
case of a telegram or facsimile transmission) is deposited, first class
postage prepaid, in a post office letter box. The Depositary or the
Company may, however, without liability, act upon any telegram or facsimile
transmission received by it from the other or from any holder of a Receipt,
notwithstanding that such telegram or facsimile transmission shall not
subsequently be confirmed by letter or as aforesaid.
Section 7.5. Depositary's Agents. The Depositary may from
time to time appoint Depositary's Agents to act in any respect for the
Depositary for the purposes of this Deposit Agreement and may at any time
appoint additional Depositary's Agents and vary or terminate the
appointment of such Depositary's Agents. The Depositary will notify the
Company of any such action and shall remain responsible for the performance
of its obligations hereunder as if no Depositary Agent were appointed.
The Company hereby also appoints the Depositary as Registrar
and Transfer Agent in respect of the Receipts and the Depositary hereby
accepts such appointments.
Section 7.6. Holders of Receipts Are Parties. The holders
of Receipts from time to time shall be parties to this Deposit Agreement
and shall be bound by all of the terms and conditions hereof and of the
Receipts by acceptance of delivery thereof.
Section 7.7. Governing Law. This Deposit Agreement and the
Receipts and all rights hereunder and thereunder and provisions hereof and
thereof shall be governed by, and construed in accordance with, the laws of
the State of New York.
Section 7.8. Inspection of Deposit Agreement. Copies of
this Deposit Agreement shall be filed with the Depositary and the
Depositary's Agents and shall be open to inspection during business hours
at the Depositary's Office and the respective offices of the Depositary's
Agents, if any, by any holder of a Receipt.
Section 7.9. Headings. The headings of articles and
sections in this Deposit Agreement and in the form of the Receipt set forth
in Exhibit A hereto have been inserted for convenience only and are not to
be regarded as a part of this Deposit Agreement or the Receipts or to have
any bearing upon the meaning or interpretation of any provision contained
herein or in the Receipts.
IN WITNESS WHEREOF, the Company and the Depositary have duly
executed this 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 XXXXXXX, XXXX XXXXXX,
DISCOVER & CO.
By ___________________________________
Name:
Title:
THE BANK OF NEW YORK
By ___________________________________
Name:
Title:
EXHIBIT A
[FORM OF FACE OF RECEIPT]
NUMBER
DEPOSITARY SHARES
DRB
DEPOSITARY RECEIPT FOR DEPOSITARY SHARES,
REPRESENTING ___________% CUMULATIVE PREFERRED STOCK OF
XXXXXX XXXXXXX, XXXX XXXXXX, DISCOVER & CO.
CUSIP _________
INCORPORATED UNDER THE LAWS OF THE STATE OF DELAWARE. SEE REVERSE FOR CERTAIN
DEFINITIONS
THE BANK OF NEW YORK, as Depositary (the "Depositary"), hereby certifies that
is the registered owner of DEPOSITARY SHARES
("Depositary Shares"), each Depositary Share representing [specify fraction]
Cumulative Preferred Stock, without par value, stated value $______________
per share (the "Stock"), of Xxxxxx Xxxxxxx, Xxxx Xxxxxx, Discover & Co., a
Delaware corporation (the "Corporation"), on deposit with the Depositary,
subject to the terms and entitled to the benefits of the Deposit Agreement
dated as of ________________, 199__ (the "Deposit Agreement"), among the
Corporation, the Depositary and the holders from time to time of the
Depositary Receipts issued thereunder. By accepting this Depositary Receipt
the holder hereof becomes a party to and agrees to be bound by all the terms
and conditions of the Deposit Agreement. This Depositary Receipt shall not be
valid or obligatory for any purpose or entitled to any benefits under the
Deposit Agreement unless it shall have been executed by the Depositary by the
manual signature of a duly authorized signatory or, if executed in facsimile
by the Depositary, countersigned by a Registrar in respect of the Depositary
Receipts by the manual signature of a duly authorized signatory thereof.
Dated:
Countersigned and Registered:
THE BANK OF NEW YORK THE BANK OF NEW YORK
Registrar Depositary
By By
[FORM OF REVERSE OF RECEIPT]
XXXXXX XXXXXXX, XXXX XXXXXX, DISCOVER & CO.
THE CORPORATION WILL FURNISH WITHOUT CHARGE TO EACH RECEIPTHOLDER WHO SO
REQUESTS A COPY OF THE DEPOSIT AGREEMENT AND A COPY OR SUMMARY OF THE
CERTIFICATE OF THE DESIGNATIONS, POWERS, PREFERENCES AND RELATIVE,
PARTICIPATING, OPTIONAL OR OTHER RIGHTS, AND OF THE QUALIFICATIONS,
LIMITATIONS OR RESTRICTIONS THEREOF, OF THE STOCK OF THE CORPORATION. ANY
SUCH REQUEST IS TO BE ADDRESSED TO THE DEPOSITARY NAMED ON THE FACE OF THIS
RECEIPT.
The following abbreviations, when used in the instructions on the face of this
receipt, shall be construed as though they were written out in full according
to applicable laws or regulations.
TEN COM - as tenants in common UNIF GIFT MIN ACT - _____ Custodian _______
(Minor) (Cust)
TEN ENT - as tenants by the Under Uniform Gifts to Minors Act
entireties
JT TEN - as joint tenants __________________________
with right of (State)
survivorship
and not as tenants in
common
Additional abbreviations may also be used though not in the above list.
For value received, _______ hereby sell(s), assign(s) and transfer(s) unto
PLEASE INSERT SOCIAL SECURITY OR OTHER
IDENTIFYING NUMBER OF ASSIGNEE
___________________________________________________________________________
___________________________________________________________________________
PLEASE PRINT OR TYPEWRITE NAME AND ADDRESS, INCLUDING ZIP CODE, OF ASSIGNEE
___________________________________________________________________________
_________________________________ Depositary Shares represented by the
within Receipt, hereby irrevocably constituting and appointing
_________________________ Attorney to transfer the said Depositary Shares on
the books of the within named Depositary with full power of substitution in
the premises.
Dated: ______________
______________________________________________
NOTICE: The signature to the assignment must
correspond with the name as written upon the
face of this Receipt in every particular,
without alteration or enlargement or any change
whatever
