FREEPORT-McMoRan COPPER & GOLD INC.
and
MELLON SECURITIES TRUST COMPANY,
As Depositary
and
HOLDERS OF DEPOSITARY RECEIPTS
__________________________
DEPOSIT AGREEMENT
__________________________
Dated as of July 25, 1994
TABLE OF CONTENTS
Page
Parties 1
Recitals 1
ARTICLE I
DEFINITIONS
"Certificate of Designations" 1
"Certificate of Incorporation" 2
"Company" 2
"Corporate Office" 2
"Deposit Agreement" 2
"Depositary" 2
"Depositary Share" 2
"Depositary's Agent" 3
"New York Office" 3
"Receipt" 3
"record holder" 3
"Registrar" 3
"Securities Act" 3
"Stock" 3
ARTICLE II
FORM OF RECEIPTS, DEPOSIT OF STOCK,
EXECUTION AND DELIVERY, TRANSFER, SURRENDER
AND REDEMPTION AND REPURCHASE OF RECEIPTS
SECTION 2.01 Form and Transfer of Receipts. 3
SECTION 2.02 Deposit of Stock; Execution and Delivery of
Receipts in Respect Thereof 4
SECTION 2.03 Redemption and Repurchase of Stock 5
SECTION 2.04 Register of Transfer of Receipts 8
SECTION 2.05 Combination and Split-ups of Receipts 9
SECTION 2.06 Surrender of Receipts and Withdrawal of Stock 9
SECTION 2.07 Limitations on Execution and Delivery,
Transfer, Split-up, Combination and Surrender
of Receipts and Withdrawal or Deposit of
Stock 10
SECTION 2.08 Lost Receipts, etc 11
SECTION 2.09 Cancellation and Destruction of Surrendered
Receipts 11
ARTICLE III
CERTAIN OBLIGATIONS OF HOLDERS OF RECEIPTS AND THE COMPANY
SECTION 3.01 Filing Proofs, Certificates and Other
Information 12
SECTION 3.02 Payment of Taxes or Other Governmental Charges 12
SECTION 3.03 Withholding 12
SECTION 3.04 Representations and Warranties as to Stock 13
ARTICLE IV
THE STOCK, NOTICES
SECTION 4.01 Cash Distributions 13
SECTION 4.02 Distributions Other Than Cash 13
SECTION 4.03 Subscription Rights, Preferences or Privileges 14
SECTION 4.04 Notice of Dividends, Fixing of Record Date for
Holders of Receipts 15
SECTION 4.05 Voting Rights 16
SECTION 4.06 Changes Affecting Stock and Reclassifications,
Recapitalizations, etc. 16
SECTION 4.07 Reports 16
SECTION 4.08 Lists of Receipt Holders 17
ARTICLE V
THE DEPOSITARY, THE DEPOSITARY'S AGENTS,
THE REGISTRAR AND THE COMPANY
SECTION 5.01 Maintenance of Offices, Agencies, Transfer
Books by the Depositary; the Xxxxxxxxx 00
SECTION 5.02 Prevention or Delay in Performance by the
Depositary, the Depositary's Agents, the
Registrar or the Company 18
SECTION 5.03 Obligations of the Depositary, the
Depositary's Agents, the Registrar and the
Company 18
SECTION 5.04 Resignation and Removal of the Depositary,
Appointment of Successor Depositary 20
SECTION 5.05 Corporate Notices and Reports 21
SECTION 5.06 Deposit of Stock by the Company 22
SECTION 5.07 Indemnification by the Company 22
SECTION 5.08 Fees, Charges and Expenses 22
ARTICLE VI
AMENDMENT AND TERMINATION
SECTION 6.01 Amendment 23
SECTION 6.02 Termination 23
ARTICLE VII
MISCELLANEOUS
SECTION 7.01 Counterparts 24
SECTION 7.02 Exclusive Benefits of Parties 24
SECTION 7.03 Invalidity of Provisions 24
SECTION 7.04 Notices 25
SECTION 7.05 Depositary's Agents 26
SECTION 7.06 Holders of Receipts Are Parties 26
SECTION 7.07 Governing Law 26
SECTION 7.08 Headings 26
TESTIMONIUM 26
SIGNATURES 26
EXHIBIT A A-1
DEPOSIT AGREEMENT
DEPOSIT AGREEMENT, dated as of July 25, 1994 among Freeport-
McMoRan Copper & Gold Inc., a Delaware corporation, Mellon
Securities Trust Company, a New York Trust Company, 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 the
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 I
DEFINITIONS
The following definitions shall apply to the respective
terms (in the singular and plural forms of such terms) used in
this Deposit Agreement and the Receipts:
"Certificate of Designations" shall mean the Certificate of
Designations establishing and setting forth the rights,
preferences, privileges and limitations of the Stock.
"Certificate of Incorporation" shall mean the Certificate of
Incorporation, as amended and restated from time to time, of the
Company.
"Company" shall mean Freeport-McMoRan Copper & Gold Inc., a
Delaware corporation, and its successors.
"Corporate Office" shall mean the office of the Depositary
in Ridgefield Park, New Jersey 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 85 Challenger Road.
"Deposit Agreement" shall mean this agreement, as the same
may be amended, modified or supplemented from time to time.
"Depositary" shall mean Mellon Securities Trust Company, 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. The Depositary
Shares, at any time, shall represent in the aggregate an interest
in the number of shares of Stock then deposited with the
Depositary hereunder. Each Depositary Share, at any time, shall
represent a number of shares of Stock equal to the quotient
obtained by dividing the number of shares of Stock then deposited
with the Depositary hereunder by the number of Depositary Shares
then issued and outstanding, initially an interest in 0.025
shares of Stock represented by each Depositary Share. Each
Depositary Share shall represent 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, redemption,
voting and liquidation rights contained in the Certificate of
Designations, and to the benefits of all obligations and duties
of the Company in respect of the Stock under the Certificate of
Designations and the Certificate of Incorporation.
"Depositary's Agent" shall mean an agent appointed by the
Depositary as provided, and for the purposes specified, in
Section 7.05.
"New York Office" shall mean the office maintained by the
Depositary in the Borough of Manhattan, The City of New York,
which at the date of this Deposit Agreement is located at 000
Xxxxxxxx.
"Receipt" shall mean a Depositary Receipt executed and
delivered hereunder, in substantially the form of Exhibit A
hereto, evidencing Depositary Share or Shares, as the same may be
amended from time to time in accordance with the provisions
hereof.
"record holder" or "holder" as applied to a Receipt shall
mean the person in whose name a Receipt is registered on the
books maintained by or on behalf of the Depositary for such
purpose.
"Registrar" shall mean any bank or trust company appointed
to register ownership and transfers of Receipts as herein
provided.
"Securities Act" shall mean the Securities Act of 1933, as
amended.
"Stock" shall mean shares of the Company's Silver-
Denominated Preferred Stock, par value $0.10 per share.
ARTICLE II
FORM OF RECEIPTS, DEPOSIT OF STOCK,
EXECUTION AND DELIVERY, TRANSFER, SURRENDER
AND REDEMPTION AND REPURCHASE OF RECEIPTS
SECTION 2.01. Form and Transfer of Receipts. Receipts shall
be engraved or printed or lithographed on steel-engraved borders
and shall be substantially in the form set forth in Exhibit A
annexed to this Deposit Agreement, with appropriate insertions,
modifications and omissions, as hereinafter provided. Receipts
shall be executed by the Depositary by the manual signature of a
duly authorized officer 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 officer 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 investment
securities in general; 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 2.02. Deposit of Stock; Execution and Delivery of
Receipts in Respect Thereof. Subject to the terms and conditions
of this Deposit Agreement, the Company or any holder of Stock may
deposit such Stock under this Deposit Agreement by delivery to
the Depositary of a certificate or certificates for the Stock to
be deposited, properly endorsed or accompanied, if required by
the Depositary, by a properly executed instrument of transfer in
form satisfactory to the Depositary, together with (i) all such
certifications as may be required by the Depositary in accordance
with the provisions of this Deposit Agreement and (ii) a written
order of the Company or such holder, as the case may be,
directing the Depositary to execute and deliver to or upon the
written order of the person or persons stated in such order a
Receipt or Receipts for the number of Depositary Shares
representing such deposited Stock.
Upon receipt by the Depositary of a certificate or
certificates for Stock to be deposited hereunder, together with
the other documents specified above, the Depositary shall, as
soon as transfer and registration can be accomplished, present
such certificate or certificates to the registrar and transfer
agent of the Stock for transfer and registration in the name of
the Depositary or its nominee of the Stock being deposited.
Deposited Stock shall be held by the Depositary in an account to
be established by the Depositary at the Corporate Office.
Upon receipt by the Depositary of a certificate or
certificates for Stock to be deposited hereunder, together with
the other documents specified above, the Depositary, subject to
the terms and conditions of this Deposit Agreement, shall execute
and deliver, to or upon the order of the person or persons named
in the written order delivered to the Depositary referred to in
the first paragraph of this Section 2.02, 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 2.03. Redemption and Repurchase of Stock. (a)
Except as provided in subsection (b) below in connection with the
annual redemption of shares of Stock, whenever the Company shall
redeem shares of Stock in accordance with the Certificate of
Designations, it shall (unless otherwise agreed in writing with
the Depositary) give the Depositary in its capacity as Depositary
not less than 5 business days' prior notice of the proposed date
of the mailing of a notice of redemption of Stock and the
simultaneous redemption of the Depositary Shares representing the
Stock to be redeemed and of the number of such shares of Stock
held by the Depositary to be redeemed. The Depositary shall, as
directed by the Company in writing, mail, first class postage
prepaid, notice of the redemption of Stock and the proposed
simultaneous redemption of the Depositary Shares representing the
Stock to be redeemed not less than 30 and not more than 60 days
prior to the date fixed for redemption of such Stock and
Depositary Shares, to the record holders 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. 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. The Company shall provide the
Depositary with such notice, and each such notice shall state:
the method for determining the amount payable per Depositary
Share; the redemption date; the number of Depositary Shares to be
redeemed; and shall call upon each holder of Depositary Shares to
surrender, on the redemption date and at the place or places
designated by the Company, the Receipts evidencing Depositary
Shares to be redeemed. On the date of any such redemption the
Depositary shall surrender the certificate or certificates held
by the Depositary evidencing the number of shares of Stock to be
redeemed in the manner specified in the notice of redemption of
Stock provided by the Company pursuant to the Certificate of
Designations. The Depositary shall, thereafter, redeem the number
of Depositary Shares representing such redeemed Stock upon the
surrender of Receipts evidencing such Depositary Shares in the
manner provided in the notice sent to record holders of Receipts.
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 upon
the surrender of the certificate or certificates therefor by the
Depositary as described in the preceding paragraph), 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 cash payable upon redemption upon surrender of such Receipts)
shall, to the extent of such Depositary Shares, cease and
terminate. The foregoing shall be subject further to the terms
and conditions of the Certificate of Designations.
If fewer than all of the Depositary Shares evidenced by a
Receipt are called for redemption, the Depositary will deliver to
the holder of such Receipt upon its surrender to the Depositary,
together with the redemption price (to be paid in the form of
cash) 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.
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 except as provided in
the immediately preceding paragraph of this Section 2.03.
Whenever the Company shall be required to make an offer to
repurchase Depositary Shares representing Stock in accordance
with the Certificate of Designations, it shall give the
Depositary in its capacity as Depositary not less than 5 business
days' prior notice of the required date of the mailing of a
notice of the repurchase offer. The Depositary shall, as directed
by the Company in writing, mail, first class postage prepaid,
notice of the relevant terms of the repurchase offer, as provided
by the Company, including: (i) that such notice is being given
pursuant to a repurchase offer, (ii) the number of Depositary
Shares and Stock for which the offer is being made, (iii) the
method for determining the amount payable per Depositary Share,
(iv) the last date, which shall not be less than 30 nor more than
60 days after the date of such notice, by which a holder must
elect to accept the repurchase offer, (v) the procedures that
such holder must follow to exercise its rights and (vi) the
procedures for withdrawing an election.
The Depositary shall, thereafter, receive from each holder
electing to have Depositary Shares repurchased pursuant to the
repurchase offer in accordance with the instructions in the
notice, the holder's Depositary Share certificates, with an
appropriate form duly completed prior to the repurchase date.
Holders will be entitled to withdraw an election by a written
notice of withdrawal delivered to the Depositary prior to the
close of business on the repurchase date. The notice of
withdrawal shall state the number of Depositary Shares and the
certificate numbers to which the notice of withdrawal relates and
the number of Depositary Shares and certificate numbers, if any,
which remain subject to election. In case the aggregate number of
Depositary Shares offered for repurchase by the holders exceeds
the amount of Depositary Shares which the Company has offered to
repurchase pursuant to the repurchase offer, the Depositary
Shares to be repurchased shall be selected by the Depositary on a
pro rata basis at the direction of the Company. The Depositary
shall, at the direction of the Company, cause payment to be
mailed or delivered to each tendering holder as promptly as
reasonably practicable after the repurchase date, in the amount
of the repurchase price, and any unpurchased Depositary Shares to
be returned to the holder thereof. The foregoing is subject
further to the terms and conditions of the Certificate of
Designations.
(b) Whenever the Company shall make an annual redemption of
shares of Stock in accordance with the Certificate of
Designations, it shall (unless otherwise agreed in writing with
the Depositary) give the Depositary in its capacity as Depositary
not less than 5 business days' prior notice of the proposed date
of the mailing of a notice of redemption of Stock of the number
of such shares of Stock held by the Depositary to be redeemed.
The Depositary shall, as directed by the Company in writing,
mail, first class postage prepaid, notice of the redemption of
Stock not less than 30 and not more than 60 days prior to the
date fixed for the record holders of the Receipts evidencing the
Depositary Shares at the addresses of such holders as the same
appear on the records of the Depositary. The Company shall
provide the Depositary with such notice, and each such notice
shall state: the amount and the method for determining the amount
payable per Depositary Share; the number of shares of Stock to be
redeemed; the aggregate number of shares of Stock outstanding
after such redemption; and the number of shares of Stock
represented by each Depositary Share after such redemption. The
Depositary Shares shall not be redeemed as a result of the annual
redemption of shares of Stock as provided for in the Certificate
of Designations and referred to in this subsection (b); instead,
the aggregate amount paid to the Depositary in respect of such
annual redemption shall be distributed as nearly as possible pro
rata among the holders of Receipts in accordance with Section
4.01 as if such amount were a distribution on the Stock.
SECTION 2.04. 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 2.05. 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 2.06. Surrender of Receipts and Withdrawal of
Stock. (a) Except as provided in Section 2.06(b) or upon
termination of this Deposit Agreement as provided in Section
6.02, no holder of a Receipt or Receipts shall have the right to
withdraw any of the shares of Stock represented by such Receipts.
(b) Notwithstanding Section 2.06(a), the Company shall have
the right to withdraw any or all of the stock (but only in whole
shares of Stock) represented by the Depositary Shares and all
money and other property, if any, represented by such Depositary
Shares by surrendering the Receipt or Receipts evidencing such
Depositary Shares at the Corporate Office, the New York Office or
at such other office as the Depositary may designate for such
withdrawals (and cancellation of the surrendered Receipts as
provided in Section 2.09). After such surrender, without
unreasonable delay, the Depositary shall deliver to the Company
the whole number of shares of Stock and all such money and other
property, if any, represented by the Depositary Shares evidenced
by the Receipt or Receipts so surrendered for withdrawal. If the
Receipt or Receipts delivered by the Company 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 the Company, or
(subject to Section 2.04) upon its 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.
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
Company such delivery may be made, without unreasonable delay, at
such other place as may be designated by the Company.
For purposes of determining the number of Depositary Shares
outstanding on any dividend payment date for purposes of Section
4(b) of the Certificate of Designations, the Receipts
representing Depositary Shares acquired by the Company on or
prior to such dividend payment date and not theretofore delivered
to the Depositary for withdrawal and cancellation shall be deemed
to be outstanding.
SECTION 2.07. Limitations on Execution and Delivery,
Transfer. Split-up, Combination and Surrender of Receipts and
Withdrawal or Deposit of Stock. As a condition precedent to the
execution and delivery, registration of transfer, split-up,
combination, or surrender of any Receipt, the delivery of any
distribution thereon 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 property of the Company being issued
upon 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, or the registration of
transfer, split-up, combination or surrender 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 2.08. Lost Receipts, etc, In case any Receipt shall
be mutilated or destroyed or lost or stolen, the Depositary shall
execute and deliver a Receipt of like form and tenor in exchange
and substitution for such mutilated Receipt or in lieu of and in
substitution for such destroyed, lost or stolen Receipt unless
the Depositary has notice that such Receipt has been acquired by
a bona fide purchaser; provided, however, that the holder thereof
provides the Depositary with (i) evidence satisfactory to the
Depositary of such destruction, loss or theft of such Receipt, of
the authenticity thereof and of his ownership thereof, (ii)
reasonable indemnification satisfactory to the Depositary or the
payment of any charges incurred by the Depositary in obtaining
insurance in lieu of such indemnification and (iii) payment of
any expense (including fees, charges and expenses of the
Depositary) in connection with such execution and delivery.
SECTION 2.09. Cancellation, and Destruction of Surrendered
Receipts. All Receipts surrendered to the Depositary or any
Depositary's Agent shall be cancelled by the Depositary. Except
as prohibited by applicable law or regulation, the Depositary is
authorized to destroy such Receipts so cancelled. If at any time
all of the shares of Stock have been redeemed as a result of the
annual redemption of Stock provided for in the Certificate of
Designations, all Receipts outstanding shall be cancelled by the
Depositary.
ARTICLE III
CERTAIN OBLIGATIONS OF HOLDERS
OF RECEIPTS AND THE COMPANY
SECTION 3.01. 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 or
redemption 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 3.02. 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 or 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 (including any distribution of proceeds from any
redemption of the Stock) may be withheld and any part or all of
the Stock or other property 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 3.03. Withholding. The Depositary shall act as the
tax withholding agent for any payments, distributions made with
respect to the Depositary Shares and Receipts, and the Stock. 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 3.04. 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 IV
THE STOCK, NOTICES
SECTION 4.01. Cash Distributions. Whenever the Depositary
shall receive any cash dividend or other cash distribution
(including any distribution of proceeds from any redemption of
the Stock) 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 4.02. 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. 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 4.03. Subscription Rights, Preferences or
Privileges. If the Company shall at any time offer or cause to be
offered to the persons in whose names 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 4.04. Notice of Dividends, Fixing of Record Date
for Holders of Receipts. Whenever (i) any cash dividend or other
cash distribution (including any distribution of proceeds from
any redemption of the Stock) 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 any election
on the part of the Company to call for the redemption of, any
shares of Stock, the Depositary shall in each such instance fix a
record date (which shall be the same date as the record date
fixed by the Company with respect to the Stock) for the
determination of the holders of Receipts (x) who shall be
entitled to receive such dividend, distribution, rights,
preferences or privileges or the net proceeds of the sale
thereof, or (y) who shall be entitled to give instructions for
the exercise of voting rights at any such meeting or to receive
notice of such meeting or of such redemption.
SECTION 4.05. 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 Designations, to instruct the
Depositary as to the exercise of the voting rights pertaining to
the Stock represented by their respective Depositary Shares and
(iii) a brief statement as to the manner in which such
instructions may be given. Upon the written request of a holder
of a Receipt on such record date, the Depositary shall endeavor
insofar as practicable to vote or cause to be voted the Stock
represented by the Depositary Shares evidenced by such Receipt in
accordance with the instructions set forth in such request. The
Company hereby agrees to take all reasonable action that may be
deemed necessary by the Depositary in order to enable the
Depositary to vote such Stock or cause such Stock to be voted. In
the absence of specific instructions from the holder of a
Receipt, the Depositary will abstain from voting to the extent of
the Stock represented by the Depositary Shares evidenced by such
Receipt.
SECTION 4.06. 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 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 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 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 4.07. Reports. The Company or, at the option of the
Company, the Depositary shall forward to the holders of Receipts
any reports and communications received from the Company that are
received by the Depositary as the holder of Stock.
SECTION 4.08. Lists of Receipt Holders. Promptly upon
request from time to time by the Company, the Depositary shall
furnish to it a list, as of a recent date, of the names,
addresses and holdings of Depositary Shares of all persons in
whose names Receipts are registered on the books of the
Depositary. At the expense of the Company, the Company shall have
the right to inspect transfer and registration records of the
Depositary, any Depositary's Agent or the Registrar, take copies
thereof and require the Depositary, any Depositary's Agent or the
Registrar to supply copies of such portions of such records as
the Company may request.
ARTICLE V
THE DEPOSITARY, THE DEPOSITARY'S AGENTS,
THE REGISTRAR AND THE COMPANY
SECTION 5.01. 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, split-up, combination and redemption 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, 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, acting as transfer agent and Registrar,
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, split-up, combination or redemption of such
Receipts, such Depositary Shares or such Stock as may be required
by law or applicable stock exchange regulations.
SECTION 5.02. Prevention or Delay in Performance by the
Depositary, the Depositary's Agents, the Registrar or the
Company. Neither the Depositary nor any Depositary's Agent nor
the Registrar nor the Company shall incur any liability to any
holder of any Receipt, if by reason of any provision of any
present or future law or regulation thereunder of the United
States of America or of any other governmental authority or, in
the case of the Depositary, the Registrar or any Depositary's
Agent, by reason of any provision, present or future, of the
Certificate of Incorporation or the Certificate of Designations
or, in the case of the Company, the Depositary, the Registrar or
any Depositary's Agent, by reason of any act of God or war or
other circumstances beyond the control of the relevant party, the
Depositary, any Depositary's Agent, the Registrar or the Company
shall be prevented or forbidden from doing or performing any act
or thing that the terms of this Deposit Agreement provide shall
be done or performed; nor shall the Depositary, any Depositary's
Agent, the Registrar or the Company incur any liability to any
holder of a Receipt (i) by reason of any nonperformance or delay,
caused as aforesaid, in the performance of any act or thing that
the terms of this Deposit Agreement provide shall or may be done
or performed, or (ii) by reason of any exercise of, or failure to
exercise, any discretion provided for in this Deposit Agreement
except, in the case of the Depositary, any Depositary's Agent or
the Registrar, if any such exercise or failure to exercise
discretion is caused by its negligence or bad faith.
SECTION 5.03. 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 or Receipts that in its
opinion may involve it in expense or liability, unless indemnity
satisfactory to it against all expense and liability be furnished
as often as may be required.
Neither the Depositary nor any Depositary's Agent nor 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 nor the Registrar shall be deemed to be an
"issuer" of the Stock, the Depositary Shares, or the Receipts or
other securities issued upon exchange 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 and the Registrar are
acting only in a ministerial capacity; provided, however, that
the Depositary agrees to comply with all information reporting
and withholding requirements applicable to it under law or this
Deposit Agreement in its capacity as Depositary.
Neither the Depositary (or its officers, directors,
employees or agents) nor any Depositary's Agent nor the Registrar
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 jurisdiction of its incorporation, 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 5.04. 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 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, 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 60 days,
the resigning or removed Depositary may petition a court of
competent jurisdiction to appoint a successor depositary. Every
successor depositary shall execute and deliver to its predecessor
and to the Company an instrument in writing accepting its
appointment hereunder, and thereupon such successor depositary,
without any further act or deed, shall become fully vested with
all the rights, powers, duties and obligations of its predecessor
and for all purposes shall be the Depositary under this Deposit
Agreement, and such predecessor, upon payment of all sums due it
and on the written request of the Company, shall promptly execute
and deliver an instrument transferring to such successor all
rights and powers of such predecessor hereunder, shall duly
assign, transfer and deliver all rights, title and interest in
the Stock and any moneys or property held hereunder to such
successor and shall deliver to such successor a list of the
record holders of all outstanding Receipts. Any successor
depositary shall promptly mail notice of its appointment to the
record holders of Receipts.
Any corporation into or with which the Depositary may be
merged, consolidated or converted shall be the successor of such
Depositary without the execution or filing of any document or any
further act. Such successor depositary may execute the Receipts
either in the name of the predecessor depositary or in the name
of the successor depositary.
SECTION 5.05. Corporate Notices and Reports. The Company
agrees that it will deliver to the Depositary, and, the
Depositary will, promptly after receipt thereof, transmit to the
record holders of Receipts, in each case at the address recorded
in the Depositary's books, copies of all notices and reports
(including financial statements) required by law, by the rules of
any national securities exchange upon which the Stock, the
Depositary Shares or the Receipts are listed or by the
Certificate of Incorporation and the Certificate of Designations
to be furnished by the Company to holders of Stock. Such
transmission will be at the Company's expense and the Company
will provide the Depositary with such number of copies of such
documents as the Depositary may reasonably request. In addition,
the Depositary will transmit to the record holders of Receipts at
the Company's expense such other documents as may be requested by
the Company.
SECTION 5.06. 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 5.07. 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 not in excess of one outside 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 5.08. Fees, Charges and Expenses. No fees, charges
and expenses of the Depositary or any Depositary's Agent
hereunder or of any Registrar shall be payable by any person
other than the Company, except for any taxes and other
governmental charges and except as provided in this Deposit
Agreement. If, at the request of a holder of a Receipt, the
Depositary incurs fees, charges or expenses for which it is not
otherwise liable hereunder, such holder or other person will be
liable for such fees, charges and expenses. All other fees,
charges and expenses of the Depositary and any Depositary's Agent
hereunder and of any Registrar (including, in each case,
reasonable fees and expenses of counsel) incident to the
performance of their respective obligations hereunder will be
paid from time to time upon consultation and agreement between
the Depositary and the Company as to the amount and nature of
such fees, charges and expenses.
ARTICLE VI
AMENDMENT AND TERMINATION
SECTION 6.01. 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; provided, however, that no such amendment that shall
materially and adversely alter the rights of the holders of
Receipts shall be 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 and
unless such amendment shall have been approved by the holders of
at least a majority of the Depositary Shares outstanding. In no
event shall any amendment impair the right, subject to the
provisions of Sections 2.03, 2.06 and 2.07 and Article III, of
any owner of any Depositary Shares upon termination of this
Deposit Agreement 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 6.02. 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 deliver the Stock and any money and
other property represented by Receipts, without liability for
interest thereon, upon surrender thereof by the holders thereof.
At any time after the expiration of two years from the date of
termination, the Depositary may sell Stock then held hereunder at
public or private sale, at such places and upon such terms as it
deems proper and may thereafter hold in a segregated account the
net proceeds of any such sale, together with any money and other
property held by it hereunder, without liability for interest,
for the benefit, pro rata in 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 New York Stock Exchange, Inc.
ARTICLE VII
MISCELLANEOUS
SECTION 7.01. 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 7.02. 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 7.03. 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 7.04. 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 0000 Xxxxxxx Xx., Xxx
Xxxxxxx, Xxxxxxxxx 00000, Attention: Secretary, 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.
Except as provided in the next paragraph, 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.
In addition, whenever the Certificate of Designations
requires any notice to be published, the Depositary will, if
requested by the Company, cause such notice to be published in
the manner directed by the Company.
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 7.05. 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 7.06. 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 7.07. Governing Law. This Deposit Agreement and the
Receipts and all rights hereunder and thereunder and provisions
hereof and thereof shall be governed by, and construed in
accordance with, the law of the State of New York without giving
effect to principles of conflict of laws.
SECTION 7.08. 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.
IN WITNESS WHEREOF, Freeport-McMoRan Copper & Gold Inc. and
Mellon Securities Trust Company 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.
FREEPORT-McMoRan COPPER & GOLD INC.
Attest:
By:________________________________
By:_________________________
Authorized Officer
MELLON SECURITIES TRUST COMPANY
Attest:
By:_________________________ By:________________________________
Authorized Officer
