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EXHIBIT 1
APACHE CORPORATION
AND
NORWEST BANK MINNESOTA, NATIONAL ASSOCIATION,
AS DEPOSITARY
AND
HOLDERS OF DEPOSITARY RECEIPTS
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DEPOSIT AGREEMENT
------------
DATED AS OF MAY ___, 1999
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TABLE OF CONTENTS
Page
ARTICLE I.
DEFINITIONS
"Automatic Conversion"...................................................................1
"Certificate of Designation".............................................................1
"Certificate of Incorporation"...........................................................1
"Common Stock"...........................................................................1
"Company"................................................................................1
"Corporate Office".......................................................................1
"Deposit Agreement"......................................................................2
"Depositary".............................................................................2
"Depositary Share".......................................................................2
"Depositary's Agent".....................................................................2
"Mandatory Conversion Date"..............................................................2
"Receipt"................................................................................2
"record holder" or "holder"..............................................................2
"Registrar"..............................................................................2
"Securities Act".........................................................................2
"Stock" .................................................................................2
ARTICLE II.
BOOK-ENTRY FORM; FORM OF RECEIPTS, DEPOSIT OF STOCK,
EXECUTION AND DELIVERY, TRANSFER
AND SURRENDER OF RECEIPTS
SECTION 2.1. Book Entry Form; Form and Transfer of Receipts............................3
SECTION 2.2. Deposit of Stock; Execution and Delivery of Receipts in
Respect Thereof...........................................................5
SECTION 2.3. Registration of Transfer of Receipts......................................6
SECTION 2.4. Combination and Split-ups of Receipts.....................................6
SECTION 2.5. Surrender of Receipts and Withdrawal of Stock.............................6
SECTION 2.6. Limitations on Execution and Delivery, Transfer, Split-up,
Combination and Surrender of Receipts and Withdrawal or
Deposit of Stock..........................................................7
SECTION 2.7. Lost Receipts, etc........................................................7
SECTION 2.8. Cancellation and Destruction of Surrendered Receipts......................7
SECTION 2.9. Conversion of Stock into Common Stock.....................................8
SECTION 2.10. Interchangeability of Book-Entry Receipts and Receipts
in Physical, Certificated Form............................................9
SECTION 2.11. Automatic Conversion of Stock............................................10
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ARTICLE III.
CERTAIN OBLIGATIONS OF HOLDERS OF RECEIPTS AND THE COMPANY
SECTION 3.1. Filing Proofs, Certificates and Other Information........................11
SECTION 3.2. Payment of Taxes or Other Governmental Charges...........................11
SECTION 3.3. Withholding..............................................................12
SECTION 3.4. Representations and Warranties as to Stock...............................12
SECTION 3.5. Covenants and Warranties as to Common Stock..............................12
ARTICLE IV.
THE STOCK, NOTICES
SECTION 4.1. Cash Distributions.......................................................12
SECTION 4.2. Distributions Other Than Cash............................................12
SECTION 4.3. Subscription Rights, Preferences or Privileges...........................13
SECTION 4.4. Notice of Dividends, Fixing of Record Date for Holders of Receipts.......14
SECTION 4.5. Voting Rights............................................................14
SECTION 4.6. Changes Affecting Stock and Reclassifications, Recapitalizations, etc....14
SECTION 4.7. Reports..................................................................15
SECTION 4.8. Lists of Receipt Holders.................................................15
ARTICLE V.
THE DEPOSITARY, THE DEPOSITARY'S AGENTS,
THE REGISTRAR AND THE COMPANY
SECTION 5.1. Maintenance of Offices, Agencies, Transfer Books by the Depositary;
the Registrar............................................................15
SECTION 5.2. Prevention or Delay in Performance by the Depositary, the
Depositary's Agents, the Registrar or the Company........................16
SECTION 5.3. Obligations of the Depositary, the Depositary's Agents, the
Registrar and the Company................................................16
SECTION 5.4. Resignation and Removal of the Depositary, Appointment of
Successor Depositary.....................................................18
SECTION 5.5. Corporate Notices and Reports............................................18
SECTION 5.6. Deposit of Stock by the Company..........................................19
SECTION 5.7. Indemnification by the Company...........................................19
SECTION 5.8. Fees, Charges and Expenses...............................................19
ARTICLE VI.
AMENDMENT AND TERMINATION
SECTION 6.1. Amendment................................................................19
SECTION 6.2. Termination..............................................................20
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ARTICLE VII.
MISCELLANEOUS
SECTION 7.1. Counterparts..................................................20
SECTION 7.2. Exclusive Benefits of Parties.................................21
SECTION 7.3. Invalidity of Provisions......................................21
SECTION 7.4. Notices.......................................................21
SECTION 7.5. Depositary's Agents...........................................21
SECTION 7.6. Holders of Receipts Are Parties...............................22
SECTION 7.7. Governing Law.................................................22
SECTION 7.8. Headings......................................................22
SIGNATURES...................................................................22
EXHIBIT A
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DEPOSIT AGREEMENT
DEPOSIT AGREEMENT, dated as of May ___, 1999, among Apache Corporation,
a Delaware corporation, Norwest Bank Minnesota, National Association, 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:
"Automatic Conversion" shall mean the conversion of Depositary Shares
into shares of Common Stock as described in Section 2.11 hereof.
"Certificate of Designation" shall mean the Certificate of
Designations, Preferences and Rights establishing and setting forth the rights,
preferences, privileges and limitations of the Stock, as filed with the
Secretary of State of the State of Delaware.
"Certificate of Incorporation" shall mean the Restated Certificate of
Incorporation, as amended and restated from time to time, of the Company.
"Common Stock" shall mean the Company's Common Stock, par value $1.25
per share.
"Company" shall mean Apache Corporation, a Delaware corporation, and
its successors.
"Corporate Office" shall mean the office of the Depositary in South St.
Xxxx, Minnesota, at which at any particular time its business in respect of
matters governed by this
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Deposit Agreement shall be administered, which at the date of this Deposit
Agreement is located at 000 Xxxxx Xxxxxxx Xxxxxxxx, Xxxxx Xx. Xxxx, Xxxxxxxxx
00000, Telephone: (000) 000-0000, Attention: Account Manager.
"Deposit Agreement" shall mean this agreement, as the same may be
amended, modified or supplemented from time to time.
"Depositary" shall mean (i) Norwest Bank Minnesota, National
Association and any of its successors and assigns, as Depositary hereunder, and
(ii) any successor as Depositary hereunder.
"Depositary Share" shall mean the rights evidenced by the Receipts
executed and delivered hereunder, including the interests in Stock granted to
holders of Receipts pursuant to the terms and conditions of the Deposit
Agreement. Each Depositary Share shall represent an interest in one-fiftieth
(1/50th) of one share of Stock deposited with the Depositary hereunder and the
same proportionate interest in any and all other property received by the
Depositary in respect of such share of Stock and held under this Deposit
Agreement. Subject to the terms of this Deposit Agreement, each record holder of
a Receipt evidencing a Depositary Share or Shares is entitled, proportionately,
to all the rights, preferences and privileges of the Stock represented by such
Depositary Share or Shares, including the dividend, voting and liquidation
rights contained in the Certificate of Designation, and to the benefits of all
obligations and duties of the Company in respect of the Stock under the
Certificate of Designation and the Certificate of Incorporation.
"Depositary's Agent" shall mean an agent appointed by the Depositary as
provided, and for the purposes specified, in Section 7.5.
"Mandatory Conversion Date" shall mean May ___, 2002.
"Receipt" shall mean a Depositary Receipt executed and delivered
hereunder, in substantially the form of Exhibit A hereto, evidencing a
Depositary Share or Shares, as the same may be amended from time to time in
accordance with the provisions hereof.
"record holder" or "holder" as applied to a Receipt shall mean the
person in whose name a Receipt is registered on the books maintained by or on
behalf of the Depositary for such purpose.
"Registrar" shall mean any 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 Automatically Convertible
Equity Securities, Conversion Preferred Stock, Series C, no par value per share.
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ARTICLE II.
BOOK-ENTRY FORM; FORM OF RECEIPTS, DEPOSIT OF STOCK,
EXECUTION AND DELIVERY, TRANSFER AND SURRENDER
OF RECEIPTS
SECTION 2.1. Book Entry Form; Form and Transfer of Receipts. The
Company and the Depositary shall make application to The Depository Trust
Company ("DTC") for acceptance of all or a portion of the Receipts for its
book-entry settlement system. The Company hereby appoints the Depositary acting
through any authorized officer thereof as its attorney-in-fact, with full power
to delegate, for purposes of executing any agreements, certifications or other
instruments or documents necessary or desirable in order to effect the
acceptance of such Receipts for DTC eligibility, including but not limited to,
the FAST Balance Certificate Agreement between the Depositary and DTC (the "FAST
Agreement"). So long as the Receipts are eligible for book-entry settlement with
DTC except as otherwise set forth herein, or unless otherwise required by law,
all Depositary Shares to be traded on the New York Stock Exchange with
book-entry Settlement through DTC shall be represented by a single receipt (the
"DTC Receipt") which shall be deposited with DTC (or its designee) evidencing
all such Depositary Shares and registered in the name of the nominee of DTC
(initially expected to be Cede & Co.). Norwest Bank Minnesota, National
Association and any of its successors and assigns or such other entity as is
agreed to by DTC may hold the DTC Receipt as custodian for DTC. During any
period in which any Depositary Shares are evidenced by the DTC Receipt except as
otherwise set forth herein, no person acquiring Depositary Shares traded on the
New York Stock Exchange with book-entry settlement through DTC shall receive or
be entitled to receive physical delivery of the Receipts evidencing such
Depositary Shares. Ownership of beneficial interests in the DTC Receipt shall be
shown on, and the transfer of such ownership shall be effected through, records
maintained by (i) DTC or its nominee for such DTC Receipt, or (ii) institutions
that have accounts with DTC.
If DTC subsequently ceases to make its book-entry settlement system
available for the Receipts, the Company may instruct the Depositary regarding
making other arrangements for book-entry settlement. In the event that the
Receipts are not eligible for, or it is no longer necessary to have the Receipts
available in book-entry form, the Depositary shall provide written instructions
to DTC to deliver to the Depositary for cancellation the DTC Receipt, and the
Company shall instruct the Depositary to deliver to the beneficial owners of the
Depositary Shares previously evidenced by the DTC Receipt definitive Receipts in
physical form evidencing such Depositary Shares. Such definitive Receipts shall
be in the form annexed hereto as Exhibit A with appropriate insertions,
modifications and omissions, as hereafter provided.
The beneficial owners of Depositary Shares shall, except as stated
above with respect to Depositary Shares in book-entry form represented by the
DTC Receipt, be entitled to receive Receipts in physical, certificated form as
herein provided.
The Receipts may be typewritten, in the case of the DTC Receipt, and
otherwise shall, upon notice by the Company to the Depositary, be definitive
Receipts which shall be engraved, printed or typewritten and shall be
substantially in the form set forth in Exhibit A annexed to this
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Deposit Agreement, with appropriate insertions, modifications and omissions, as
hereinafter provided. The DTC Receipt shall bear such legend or legends as may
be required by DTC in order for it to accept the Depositary Shares for its
book-entry settlement system.
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. Pending the preparation of definitive Receipts, the
Depositary, upon the written order of the Company delivered in accordance with
Section 2.2, shall execute and deliver temporary Receipts which shall be
printed, lithographed, typewritten, photocopied or otherwise substantially of
the tenor of the definitive Receipts in lieu of which they are issued and with
appropriate insertions, omissions, substitutions and other variations as the
persons executing such Receipts may determine are necessary for such temporary
Receipts, as evidenced by their execution of such temporary Receipts. If
temporary Receipts are issued, the Company and the Depositary will cause
definitive Receipts to be prepared without unreasonable delay; provided that, if
such temporary Receipts are global Receipts, definitive Receipts need not be
prepared until the Receipts cease to be held in global form. After the
preparation of definitive Receipts, the temporary Receipts shall be exchangeable
for definitive Receipts upon surrender of the temporary Receipts at the
Corporate Office or such other office as the Depositary may designate, without
charge to the holder. Upon surrender for cancellation of any one or more
temporary Receipts, the Depositary shall execute and deliver in exchange
therefor definitive Receipts representing the same number of Depositary Shares
as represented by the surrendered temporary Receipt or Receipts. Such exchange
shall be made at the Company's expense and without any charge therefor. Until so
exchanged, the temporary Receipts shall in all respects be entitled to the same
benefits under this Agreement, and with respect to the Stock, as definitive
Receipts.
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 paragraph. The Depositary shall record on
its books each Receipt executed as provided above and delivered as hereinafter
provided. Receipts bearing the manual or 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.
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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 2.2. Deposit of Stock; Execution and Delivery of Receipts in
Respect Thereof. Subject to the terms and conditions of this Deposit Agreement,
the Company or any holder of Stock may deposit such Stock under this Deposit
Agreement by delivery to the Depositary of a certificate or certificates for the
Stock to be deposited, properly endorsed or accompanied, if required by the
Depositary, by a properly executed instrument of transfer in form satisfactory
to the Depositary, together with (i) all such certifications as may be required
by the Depositary in accordance with the provisions of this Deposit Agreement
and (ii) a written order of the Company or such holder, as the case may be,
directing the Depositary to execute and deliver to or upon the written order of
the person or persons stated in such order a Receipt or Receipts for the number
of Depositary Shares representing such deposited Stock.
Subject to the terms and conditions of this Deposit Agreement, Stock
may also be deposited hereunder in connection with the delivery of Receipts to
represent distributions under Section 4.2 and upon exercise of the rights to
subscribe referred to in Section 4.3.
Upon receipt by the Depositary of a certificate or certificates for
Stock to be deposited hereunder, together with the other documents specified
above, the Depositary shall, as soon as transfer and registration can be
accomplished, present such certificate or certificates to the registrar and
transfer agent of the Stock for transfer and registration in the name of the
Depositary or its nominee of the Stock being deposited. Deposited Stock shall be
held by the Depositary in an account to be established by the Depositary at the
Corporate Office.
Upon receipt by the Depositary of a certificate or certificates for
Stock to be deposited hereunder, together with the other documents specified
above, the Depositary, subject to the terms and conditions of this Deposit
Agreement, shall execute and deliver, to or upon the order of the person or
persons named in the written order delivered to the Depositary referred to in
the first paragraph of this Section 2.2, a Receipt or Receipts for the number of
whole Depositary Shares representing the Stock so deposited and registered in
such name or names as may be requested by such person or persons. The Depositary
shall execute and deliver such Receipt or Receipts at the Corporate 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.
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SECTION 2.3. Registration 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, 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 2.4. Combination and Split-ups of Receipts. Upon surrender of a
Receipt or Receipts at the Corporate 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 2.5. Surrender of Receipts and Withdrawal of Stock.
(a) Except as provided in Section 2.5(b), 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 2.5(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, or at such other office as the
Depositary may designate for such withdrawals (and cancellation of the
surrendered Receipts as provided in Section 2.8). 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 2.3) 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
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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 8 of the Certificate of
Designation, 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 2.6. 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); (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 2.7. 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 2.8. Cancellation and Destruction of Surrendered Receipts. All
Receipts surrendered to the Depositary or any Depositary's Agent shall be
cancelled by the Depositary.
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Except as prohibited by applicable law or regulation, the Depositary shall, from
time to time, deliver such cancelled Receipts to the Company, who will retain
them in compliance with applicable regulations of the Securities and Exchange
Commission. Any Receipt evidenced in book-entry form shall be deemed cancelled
when the Depositary has caused the amount of Depositary Shares evidenced by the
DTC Receipt to be reduced in proportion to the number of Depositary Shares
evidenced by the surrendered Receipt.
SECTION 2.9. Conversion of Stock into Common Stock. Receipts may be
surrendered with written instructions to the Depositary to instruct the Company
to cause the conversion of any specified number of whole or fractional shares of
Stock represented by the Depositary Shares evidenced thereby into whole shares
of Common Stock at the conversion rate then in effect for the Stock (and,
therefore, for the Depositary Shares) specified in the Certificate of
Designation, as such conversion rate may be adjusted by the Company from time to
time as provided in the Certificate of Designation. Subject to the terms and
conditions of this Deposit Agreement and the Certificate of Designation, a
holder of a Receipt or Receipts evidencing Depositary Shares representing whole
or fractional shares of Stock may surrender such Receipt or Receipts at the
Corporate Office, or to such office as the Depositary may designate for such
purpose, or to such Depositary's Agents as the Depositary may designate for such
purpose, together with a notice of conversion duly completed and executed,
thereby directing the Depositary to instruct the Company to cause the conversion
of the number of shares or fractions thereof of underlying Stock specified in
such notice of conversion into shares of Common Stock, and an assignment of such
Receipt or Receipts to the Company, to any transfer agent for Depositary Shares
or in blank, duly completed and executed. Each optional conversion of Depositary
Shares will be effective immediately prior to the close of business on the date
on which the holder satisfies the requirements set forth in the foregoing
sentence. To the extent that a holder delivers to the Depositary for conversion
a Receipt or Receipts which in the aggregate are convertible into less than one
whole share of Common Stock, the holder shall receive an amount in cash in lieu
of such fractional shares of Common Stock as provided in the Certificate of
Designation. If more than one Receipt shall be delivered for conversion at one
time by the same holder, the number of whole shares of Common Stock issuable
upon conversion thereof shall be computed on the basis of the aggregate number
of Receipts so delivered.
Upon receipt by the Depositary of a Receipt or Receipts, together with
notice of conversion, duly completed and executed, directing the Depositary to
instruct the Company to cause the conversion of a specified number of shares or
fractions thereof of Stock and an assignment of such Receipt or Receipts to the
Company, to any transfer agent for the Depositary Shares or in blank, duly
completed and executed, the Depositary shall instruct the Company (i) to cause
the conversion of the Depositary Shares evidenced by the Receipts so surrendered
for conversion as specified in the written notice to the Depositary and (ii) to
cause the delivery to the holders of such Receipts of a certificate or
certificates evidencing the number of whole shares of Common Stock and the
amount of money, if any, to be delivered to the holders of Receipts surrendered
for conversion in payment of any accrued and unpaid dividends with respect to
such Depositary Shares and in lieu of fractional shares of Common Stock
otherwise issuable. The Company shall as promptly as practicable after receipt
thereof cause the delivery of (i) a certificate or certificates evidencing the
number of whole shares of Common Stock into which the Stock represented by the
Depositary Shares evidenced by such Receipt or Receipts has been
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converted, and (ii) any money or other property to which the holder is entitled.
Upon such conversion, the Depositary (i) shall deliver to the holder a Receipt
evidencing the number of Depositary Shares, if any, which such holder has
elected not to convert and evidencing the number of Depositary Shares, if any,
in excess of the number of Depositary Shares representing Stock which has been
so converted, (ii) shall cancel the Depositary Shares evidenced by Receipts
surrendered for conversion and (iii) shall deliver to the Company or its
transfer agent for the Stock for cancellation the shares of Stock represented by
the Depositary Shares evidenced by the Receipts so surrendered and so converted.
The record holder of Depositary Shares on any dividend payment record
date established by the Depositary pursuant to Section 4.4 shall be entitled to
receive the dividend payable with respect to such Depositary Shares on the
corresponding dividend payment date notwithstanding the subsequent conversion of
the shares of Stock to which such Depositary Shares relate. If a share of Stock
is converted between the record date with respect to any dividend payment on the
Stock and the next succeeding dividend payment date, any holder of Receipts
surrendered with instructions to the Depositary for conversion of the underlying
Stock shall pay to the Depositary an amount equal to the dividend payable on
such dividend payment date on the Depositary Shares represented by the Receipts
being surrendered for conversion. Any holder of Receipts on a dividend payment
record date who (or whose transferee) surrenders the Receipts with instructions
to the Depositary for conversion of the underlying Stock on the corresponding
dividend payment date will receive the dividend payable with respect to the
Depositary Shares underlying such Receipts and will not be required to include
payment of the amount of such dividend upon surrender of the Receipts for
conversion.
Upon the conversion of any shares of Stock for which a request for
conversion has been made by the holder of Depositary Shares representing such
shares, all dividends in respect of such Depositary Shares shall cease to
accrue, such Depositary Shares shall be deemed no longer outstanding, all rights
of the holder of the Receipt with respect to such Depositary Shares (except the
right to receive the Common Stock, any cash payable with respect to any
fractional shares of Common Stock as provided herein, any cash payable on
account of accrued dividends with respect to such Depositary Shares, and any
Receipts evidencing Depositary Shares not so converted) shall terminate, and the
Receipt evidencing such Depositary Shares shall be cancelled in accordance with
Section 2.8 hereof.
No fractional shares of Common Stock shall be issuable upon conversion
of Stock underlying the Depositary Shares. If any holder of Receipts surrendered
with instructions to the Depositary for conversion of the underlying Stock would
be entitled to a fractional share of Common Stock upon such conversion, the
Company shall cause to be delivered to such holder an amount in cash for such
fractional share as provided in the Certificate of Designation.
SECTION 2.10. Interchangeability of Book-Entry Receipts and Receipts in
Physical, Certificated Form. Subject to the terms and conditions of this Deposit
Agreement, upon receipt by the Depositary of written instructions from a DTC
participant on behalf of any person having a beneficial interest in Depositary
Shares evidenced by the DTC Receipt for the purpose of directing the Depositary
to execute and deliver a Receipt in physical, certificated form evidencing such
Depositary Shares, the Depositary shall follow the procedures set forth in the
FAST Agreement for the purpose of reducing the number of Depositary Shares
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evidenced by the DTC Receipt and, following such reduction, shall execute and
deliver to or upon the order of the person or persons named in such order a
Receipt or Receipts registered in the name or names requested by such person and
evidencing in the aggregate the number of Depositary Shares equal to the
reduction in the number evidenced by the DTC Receipt. The Depositary may require
in such written instructions any certification or representation as it shall
deem necessary to comply with applicable law.
Subject to the terms and conditions of this Deposit Agreement, upon
receipt by the Depositary of a Receipt or Receipts in physical, certificated
form, duly endorsed or accompanied by appropriate instruments of transfer, in
form satisfactory to the Depositary, including any required certifications, and
together with written instructions directing the Depositary to adjust its
records to reflect an increase in the aggregate amount of Depositary Shares
evidenced by the DTC Receipt (including, without limitation, information
regarding the DTC participant account to be credited with such increase), and
upon payment of the fees and expenses of the Depositary, the Depositary shall
cancel such Receipt or Receipts in physical, certificated form and shall follow
the procedures set forth in the FAST Agreement for the purpose of reflecting
such increase in the number of Depositary Shares evidenced by the DTC Receipt.
SECTION 2.11. Automatic Conversion of Stock. On the Mandatory
Conversion Date, as provided in the Certificate of Designation, provided that
the Company shall then have delivered to the Depositary the shares of Common
Stock and the aggregate amount of cash required to pay any accrued and unpaid
dividends on the Depositary Shares and for fractional share interests issuable
and payable upon Automatic Conversion of the Stock then deposited with the
Depositary, the Depositary shall convert (using such shares of Common Stock and
cash so delivered to it) each holder's Depositary Shares into the proportionate
number of whole shares of Common Stock and the proportionate amount of such cash
to which such holder is thereby entitled.
The Depositary shall, as directed by the Company, mail, first class
postage prepaid, notice of such Automatic Conversion of Stock and the proposed
simultaneous Automatic Conversion of the Depositary Shares, not less than five
and not more than 15 days prior to the Mandatory Conversion Date. Such notice
shall be mailed to each holder at the address of such holder as the same appears
on the records of the Depositary at the close of business on the second business
day immediately preceding the date on which the mailing of such notices is
commenced; but neither failure to mail any such notice to one or more holders
nor any defect in any notice shall affect the sufficiency of the proceedings for
Automatic Conversion. The Company shall provide the Depositary with such notice,
and each such notice shall state: the Mandatory Conversion Date; that all
outstanding Depositary Shares on the Mandatory Conversion Date will be
automatically converted into shares of Common Stock and the conversion rate at
which such Automatic Conversion shall occur; the amount of accrued and unpaid
dividends, if any, payable with respect to each Depositary Share to be so
converted; the place or places where Receipts to be so converted are to be
surrendered for conversion; that dividends in respect of the Stock represented
by the Depositary Shares to be so converted shall cease to accrue as of the
Mandatory Conversion Date; and such additional information as the Company in its
discretion deems appropriate.
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From and after the Mandatory Conversion Date, the Depositary Shares
automatically converted into shares of Common Stock shall be deemed no longer to
be outstanding and all rights of the holders of Receipts evidencing such
Depositary Shares (except the right to receive the shares of Common Stock and
any cash payable upon Automatic Conversion) shall, to the extent of such
Depositary Shares, cease and terminate. Upon surrender, in accordance with the
notice specified in the preceding paragraph, of the Receipts evidencing such
Depositary Shares (properly endorsed or assigned for transfer, if the Depositary
shall so require), the holders of such Receipts shall receive for each such
Depositary Share a number of shares of Common Stock equal to one fiftieth
(1/50th) of the number of shares of Common Stock and of the cash for accrued and
unpaid dividends delivered in respect of each share of automatically converted
Stock. The foregoing shall be subject further to the terms and conditions of the
Certificate of Designation.
ARTICLE III.
CERTAIN OBLIGATIONS OF HOLDERS
OF RECEIPTS AND THE COMPANY
SECTION 3.1. Filing Proofs, Certificates and Other Information. Any
person presenting Stock for deposit or any holder of a Receipt may be required
from time to time to file such proof of residence or other information, to
execute such certificates and to make such representations and warranties as the
Depositary or the Company may reasonably deem necessary or proper. The
Depositary or the Company may withhold or delay the delivery of any Receipt or
the registration of transfer of any Receipt, the withdrawal of the Stock
represented by the Depositary Shares evidenced by any Receipt or the
distribution of any dividend or other distribution until such proof or other
information is filed, such certificates are executed or such representations and
warranties are made.
SECTION 3.2. Payment of Taxes or Other Governmental Charges. If any tax
or other governmental charge shall become payable by or on behalf of the
Depositary with respect to (i) any Receipt, (ii) the Depositary Shares evidenced
by such Receipt, (iii) the Stock (or fractional interest therein) or other
property represented by such Depositary Shares, or (iv) any transaction referred
to in Section 4.6, such tax (including transfer, issuance or acquisition taxes,
if any) or governmental charge shall be payable by the holder of such Receipt,
who shall pay the amount thereof to the Depositary. Until such payment is made,
registration 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 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 3.3. 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 Depositary Shares, Receipts
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and Stock for the timely (i) collection and deposit of any required withholding
or backup withholding tax, and (ii) filing of any information returns or other
documents with federal (and other applicable) taxing authorities.
SECTION 3.4. Representations and Warranties as to Stock. In the case of
the initial deposit of the Stock, the Company and, in the case of subsequent
deposits thereof, each person so depositing Stock under this Deposit Agreement
shall be deemed thereby to represent and warrant that such Stock and each
certificate therefor are valid and that the person making such deposit is duly
authorized to do so. Such representations and warranties shall survive the
deposit of the Stock and the issuance of Receipts therefor.
SECTION 3.5. Covenants and Warranties as to Common Stock. The Company
covenants that it will keep reserved or otherwise available a sufficient number
of authorized and unissued shares of Common Stock or issued shares of Common
Stock held in its treasury, or both, to meet conversion requirements in respect
of the Stock and that it will give written notice to the Depositary of any
adjustments in the conversion price as set forth in the Certificate of
Designation. The Company represents and warrants that the Common Stock issued
upon conversion of Stock, when issued, will be validly issued, fully paid and
non-assessable. Such representation and warranty shall survive the conversion of
the Stock into such Common Stock.
ARTICLE IV.
THE STOCK, NOTICES
SECTION 4.1. Cash Distributions. Whenever the Depositary shall receive
any cash dividend or other cash distribution on the Stock, the Depositary shall,
subject to Section 3.2, distribute to record holders of Receipts on the record
date fixed pursuant to Section 4.4 such amounts of such sum as are, as nearly as
practicable, in proportion to the respective numbers of Depositary Shares
evidenced by the Receipts held by such holders; provided, however, that in case
the Company or the Depositary shall be required by law to withhold and does
withhold from any cash dividend or other cash distribution in respect of the
Stock an amount on account of taxes, the amount made available for distribution
or distributed in respect of Depositary Shares shall be reduced accordingly. The
Depositary shall distribute or make available for distribution, as the case may
be, only such amount, however, as can be distributed without attributing to any
owner of Depositary Shares a fraction of one cent and any balance not so
distributable shall be held by the Depositary (without liability for interest
thereon) and shall be added to and be treated as part of the next sum received
by the Depositary for distribution to record holders of Receipts then
outstanding.
SECTION 4.2. Distributions Other Than Cash. Whenever the Depositary
shall receive any distribution other than cash, rights, preferences or
privileges upon the Stock, the Depositary shall, subject to Section 3.2,
distribute to record holders of Receipts on the record date fixed pursuant to
Section 4.4 such amounts of the securities or property received by it as are, as
nearly as practicable, in proportion to the respective numbers of Depositary
Shares evidenced by the Receipts held by such holders, in any manner that the
Depositary and the Company may deem equitable and practicable for accomplishing
such distribution. If, in the
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opinion of the Company after consultation with the Depositary, such distribution
cannot be made proportionately among such record holders, or if for any other
reason (including any tax withholding or securities law requirement), the
Depositary deems, after consultation with the Company, such distribution not to
be feasible, the Depositary may, with the approval of the Company which approval
shall not be unreasonably withheld, adopt such method as it deems equitable and
practicable for the purpose of effecting such distribution, including the sale
(at public or private sale) of the securities or property thus received, or any
part thereof, at such place or places and upon such terms as it may deem proper.
The net proceeds of any such sale shall, subject to Section 3.2, be distributed
or made available for distribution, as the case may be, by the Depositary to
record holders of Receipts as provided by Section 4.1 in the case of a
distribution received in cash.
SECTION 4.3. Subscription Rights, Preferences or Privileges. If the
Company shall at any time offer or cause to be offered to the persons in whose
names Stock is registered on the books of the Company any rights, preferences or
privileges to subscribe for or to purchase any securities or any rights,
preferences or privileges of any other nature, such rights, preferences or
privileges shall in each such instance be made available by the Depositary to
the record holders of Receipts in such manner as the Company shall instruct
(including by the issue to such record holders of warrants representing such
rights, preferences or privileges); provided, however, that (a) if at the time
of issue or offer of any such rights, preferences or privileges the Company
determines and instructs the Depositary that it is not lawful or feasible to
make such rights, preferences or privileges available to some or all holders of
Receipts (by the issue of warrants or otherwise) or (b) if and to the extent
instructed by holders of Receipts who do not desire to exercise such rights,
preferences or privileges, the Depositary shall then, in each case, and if
applicable laws or the terms of such rights, preferences or privileges so
permit, sell such rights, preferences or privileges of such holders at public or
private sale, at such place or places and upon such terms as it may deem proper.
The net proceeds of any such sale shall be distributed by the Depositary to the
record holders of Receipts entitled thereto as provided by Section 4.1 in the
case of a distribution received in cash.
If registration under the Securities Act of the securities to which any
rights, preferences or privileges relate is required in order for holders of
Receipts to be offered or sold such securities, the Company shall promptly file
a registration statement pursuant to the Securities Act with respect to such
rights, preferences or privileges and securities and use its best efforts and
take all steps available to it to cause such registration statement to become
effective sufficiently in advance of the expiration of such rights, preferences
or privileges to enable such holders to exercise such rights, preferences or
privileges. In no event shall the Depositary make available to the holders of
Receipts any right, preference or privilege to subscribe for or to purchase any
securities unless and until such registration statement shall have become
effective or unless the offering and sale of such securities to such holders are
exempt from registration under the provisions of the Securities Act.
If any other action under the law of any jurisdiction or any
governmental or administrative authorization, consent or permit is required in
order for such rights, preferences or privileges to be made available to holders
of Receipts, the Company agrees with the Depositary that the Company will use
its reasonable best efforts to take such action or obtain such
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authorization, consent or permit sufficiently in advance of the expiration of
such rights, preferences or privileges to enable such holders to exercise such
rights, preferences or privileges.
SECTION 4.4. Notice of Dividends, Fixing of Record Date for Holders of
Receipts. Whenever (i) any cash dividend or other cash distribution shall become
payable, or any distribution other than cash shall be made or any rights,
preferences or privileges shall at any time be offered, with respect to the
Stock, or (ii) the Depositary shall receive notice of any meeting at which
holders of Stock are entitled to vote or of which holders of Stock are entitled
to notice, 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.
SECTION 4.5. Voting Rights. Upon receipt of notice of any meeting at
which the holders of Stock are entitled to vote, the Depositary shall, as soon
as practicable thereafter, mail to the record holders of Receipts a notice,
which shall be provided by the Company and which shall contain (i) such
information as is contained in such notice of meeting, (ii) a statement that the
holders of Receipts at the close of business on a specified record date fixed
pursuant to Section 4.4 will be entitled, subject to any applicable provision of
law, the Certificate of Incorporation or the Certificate of Designation, to
instruct the Depositary as to the exercise of the voting rights pertaining to
the Stock represented by their respective Depositary Shares and (iii) a brief
statement as to the manner in which such instructions may be given. Upon the
written request of a holder of a Receipt on such record date, the Depositary
shall endeavor insofar as practicable to vote or cause to be voted the Stock
represented by the Depositary Shares evidenced by such Receipt in accordance
with the instructions set forth in such request. The Company hereby agrees to
take all reasonable action that may be deemed necessary by the Depositary in
order to enable the Depositary to vote such Stock or cause such Stock to be
voted. In the absence of specific instructions from the holder of a Receipt, the
Depositary will abstain from voting to the extent of the Stock represented by
the Depositary Shares evidenced by such Receipt.
SECTION 4.6. Changes Affecting Stock and Reclassifications,
Recapitalizations, etc. Upon any 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 or sale
of all or substantially all the Company's assets affecting the Company or to
which it is a party, the Depositary may in its discretion with the approval of
the Company, and shall upon the specific instructions of the Company, (a) make
such adjustments in (i) the fraction of an interest represented by one
Depositary Share in one share of Stock and (ii) the ratio of the Optional
Conversion Rate and Exchange Rate per Depositary Share to the Optional
Conversion Rate and Exchange Rate of a share of Stock, in each case 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, combination or sale and
(b) treat any securities which shall be received by the Depositary in exchange
for or upon conversion of or in respect of the Stock as new deposited securities
under this Deposit Agreement, and Receipts then outstanding shall thenceforth
represent the new
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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 or 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, consolidation
or sale of substantially all the assets of the Company 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 cash into which the Stock
evidenced 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. The Company shall cause effective provision to be made in
the charter of the resulting or surviving corporation (if other than the
Company) for protection of such rights as may be applicable upon exchange of
such Stock for securities or property or cash of the surviving corporation in
connection with the transactions set forth above. The Company shall cause any
such surviving corporation (if other than the Company) expressly to assume the
obligations of the Company hereunder.
SECTION 4.7. 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 4.8. Lists of Receipt Holders. Promptly upon request from time
to time by the Company, the Depositary shall furnish to it a list, as of a
recent date, of the names, addresses and holdings of Depositary Shares of all
persons in whose names Receipts are registered on the books of the Depositary.
At the expense of the Company, the Company shall have the right to inspect
transfer and registration records of the Depositary, any Depositary's Agent or
the Registrar, take copies thereof and require the Depositary, any Depositary's
Agent or the Registrar to supply copies of such portions of such records as the
Company may request.
ARTICLE V.
THE DEPOSITARY, THE DEPOSITARY'S AGENTS,
THE REGISTRAR AND THE COMPANY
SECTION 5.1. Maintenance of Offices, Agencies, Transfer Books by the
Depositary; the Registrar. Upon execution of this Deposit Agreement in
accordance with its terms, the Depositary shall maintain (i) at the Corporate
Office facilities for the execution and delivery, registration, registration of
transfer, surrender, split-up and combination of Receipts and deposit and
withdrawal of Stock and (ii) at the offices of the Depositary's Agents, if any,
facilities for the delivery, registration, registration of transfer, surrender,
split-up and combination of Receipts and deposit and withdrawal of Stock, all in
accordance with the provisions of this Deposit Agreement.
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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 5.2. Prevention or Delay in Performance by the Depositary, the
Depositary's Agents, the Registrar or the Company. Neither the Depositary nor
any Depositary's Agent nor the Registrar nor the Company shall incur any
liability to any holder of any Receipt, if by reason of any provision of any
present or future law or regulation thereunder of the United States of America
or of any other governmental authority or, in the case of the Depositary, the
Registrar or any Depositary's Agent, by reason of any provision, present or
future, of the Certificate of Incorporation or the Certificate of Designation
or, in the case of the Company, the Depositary, the Registrar or any
Depositary's Agent, by reason of any act of God or war or other circumstances
beyond the control of the relevant party, the Depositary, any Depositary's
Agent, the Registrar or the Company shall be prevented or forbidden from doing
or performing any act or thing that the terms of this Deposit Agreement provide
shall be done or performed; nor shall the Depositary, any Depositary's Agent,
the Registrar or the Company incur any liability to any holder of a Receipt (i)
by reason of any nonperformance or delay, caused as aforesaid, in the
performance of any act or thing that the terms of this Deposit Agreement provide
shall or may be done or performed, or (ii) by reason of any exercise of, or
failure to exercise, any discretion provided for in this Deposit Agreement
except, in the case of the Depositary, any Depositary's Agent or the Registrar,
if any such exercise or failure to exercise discretion is caused by its gross
negligence or willful misconduct.
SECTION 5.3. Obligations of the Depositary, the Depositary's Agents,
the Registrar and the Company. The Company assumes no obligation and shall be
subject to no liability under this Deposit Agreement or the Receipts to holders
or other persons, except to perform in good faith such obligations as are
specifically set forth and undertaken by it to perform in this Deposit
Agreement. Each of the Depositary, the Depositary's Agents and the Registrar
assumes no obligation and shall be subject to no liability under this Deposit
Agreement or the Receipts to holders or other persons, except to perform such
obligations as are specifically set
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forth and undertaken by it to perform in this Deposit Agreement without gross
negligence or willful misconduct.
Neither the Depositary nor any Depositary's Agent nor the Registrar nor
the Company shall be under any obligation to appear in, prosecute or defend any
action, suit or other proceeding with respect to Stock, Depositary Shares or
Receipts or Common Stock that in its opinion may involve it in expense or
liability, unless indemnity satisfactory to it against all expense and liability
be furnished as often as may be required.
Neither the Depositary nor any Depositary's Agent nor the Registrar nor
the Company 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 conversion
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
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laws of the State of Minnesota, 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, and when executed
and delivered, each Receipt will constitute, a valid and binding obligation of
the Depositary, enforceable against the Depositary in accordance with its terms,
except as enforcement thereof may be limited by bankruptcy, insolvency,
reorganization or other similar laws affecting enforcement of creditors' rights
generally and except as enforcement thereof is subject to general principles of
equity (regardless of whether enforcement is considered in a proceeding in
equity or at law). The Depositary shall not be accountable for the use or
application by the Company of the Depositary Shares or the Receipts or the
proceeds thereof.
SECTION 5.4. Resignation and Removal of the Depositary, Appointment of
Successor Depositary. The Depositary may at any time resign as Depositary
hereunder by written notice via registered mail of its election to do so
delivered to the Company, such resignation to take effect upon the appointment
of a successor depositary and its acceptance of such appointment as hereinafter
provided.
The Depositary may at any time be removed by the Company by written
notice of such removal delivered to the Depositary, such removal to take effect
upon the appointment of a successor depositary and its acceptance of such
appointment as hereinafter provided.
In case at any time the Depositary acting hereunder shall resign or be
removed, the Company shall, within 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 5.5. Corporate Notices and Reports. The Company agrees that it
will deliver to the Depositary, and the Depositary will, promptly after receipt
thereof, transmit to
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the record holders of Receipts, in each case at the address recorded in the
Depositary's books, copies of all notices and reports (including financial
statements) required by law, by the rules of any national securities exchange
upon which the Stock, the Depositary Shares or the Receipts are listed or by the
Certificate of Incorporation and the Certificate of Designation to be furnished
by the Company to holders of Stock. Such transmission will be at the Company's
expense and the Company will provide the Depositary with such number of copies
of such documents as the Depositary may reasonably request. In addition, the
Depositary will transmit to the record holders of Receipts at the Company's
expense such other documents as may be requested by the Company.
SECTION 5.6. Deposit of Stock by the Company. The Company agrees with
the Depositary that neither the Company nor any company controlled by the
Company will at any time deposit any Stock if such Stock is required to be
registered under the provisions of the Securities Act and no registration
statement is at such time in effect as to such Stock.
SECTION 5.7. Indemnification by the Company. The Company shall
indemnify the Depositary for, and hold it harmless against, any loss, liability,
claim or expense ("Loss") arising out of or in connection with its duties under
this Deposit Agreement, including the reasonable costs and expenses of defending
itself against Loss, unless such Loss shall have been determined by a court of
competent jurisdiction to be a result of the Depositary's gross negligence or
willful misconduct. Anything to the contrary notwithstanding, in no event shall
the Depositary be liable for special, indirect, consequential or incidental loss
or damage of any kind whatsoever (including but not limited to lost profits),
even if the Depositary has been advised of the likelihood of such damages.
SECTION 5.8. Fees, Charges and Expenses. No fees, charges and expenses
of the Depositary or any Depositary's Agent hereunder or of any Registrar shall
be payable by any person other than the Company, except for any taxes and other
governmental charges and except as provided in this Deposit Agreement. If, at
the request of a holder of a Receipt, the Depositary incurs fees, charges or
expenses for which it is not otherwise liable hereunder, such holder or other
person will be liable for such fees, charges and expenses. All other fees,
charges and expenses of the Depositary and any Depositary's Agent hereunder and
of any Registrar (including, in each case, reasonable fees and expenses of
counsel) incident to the performance of their respective obligations hereunder
will be paid from time to time upon consultation and agreement between the
Depositary and the Company as to the amount and nature of such fees, charges and
expenses.
ARTICLE VI.
AMENDMENT AND TERMINATION
SECTION 6.1. Amendment. The form of the Receipts and any provision of
this Deposit Agreement may at any time and from time to time be amended by
agreement between the Company and the Depositary in any respect that they may
deem necessary or desirable; 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
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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 2.3,
2.5 and 2.6 and Article III, of any owner of any Depositary Shares to surrender
the Receipt evidencing such Depositary Shares with instructions to the
Depositary to deliver to the holder the Stock and all money and other property,
if any, represented thereby, except in order to comply with mandatory provisions
of applicable law.
SECTION 6.2. Termination. This Deposit Agreement may be terminated by
the Company or the Depositary only after (i) 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 Depositary Shares pursuant to Section 4.1 or 4.2,
as applicable, or (ii) each share of Stock shall have been converted into shares
of Common Stock.
If any Receipts shall remain outstanding after the date of termination
of this Deposit Agreement, the Depositary thereafter shall discontinue the
transfer of Receipts, shall suspend the distribution of dividends to the holders
thereof and shall not give any further notices (other than notice of such
termination) or perform any further acts under this Deposit Agreement, except as
provided below and that the Depositary shall continue to collect dividends and
other distributions pertaining to Stock, shall sell rights, preferences or
privileges as provided in this Deposit Agreement and shall continue to deliver
the Stock and any money and other property represented by Receipts, without
liability for interest thereon, upon surrender thereof by the holders thereof.
At any time after the expiration of two years from the date of termination, the
Depositary may sell Stock then held hereunder at public or private sale, at such
places and upon such terms as it deems proper and may thereafter hold in a
segregated account the net proceeds of any such sale, together with any money
and other property held by it hereunder, without liability for interest, for the
benefit, pro rata in accordance with their holdings, of the holders of Receipts
that have not heretofore been surrendered. After making such sale, the
Depositary shall be discharged from all obligations under this Deposit Agreement
except to account for such net proceeds and money and other property. Upon the
termination of this Deposit Agreement, the Company shall be discharged from all
obligations under this Deposit Agreement except for its obligations to the
Depositary, any Depositary's Agent and any Registrar under Sections 5.7 and 5.8.
ARTICLE VII.
MISCELLANEOUS
SECTION 7.1. Counterparts. This Deposit Agreement may be executed by
the Company and the Depositary in separate counterparts, each of which
counterparts, when so executed and delivered, shall be deemed an original, but
all such counterparts taken together shall constitute one and the same
instrument. Delivery of an executed counterpart of a signature page to this
Deposit Agreement by telecopier shall be effective as delivery of a manually
executed counterpart of this Deposit Agreement. Copies of this Deposit Agreement
shall be filed with the Depositary and the Depositary's Agents and shall be open
to inspection during business hours at the Corporate Office and the respective
offices of the Depositary's Agents, if any, by any holder of a Receipt.
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SECTION 7.2. Exclusive Benefits of Parties. This Deposit Agreement is
for the exclusive benefit of the parties hereto, and their respective successors
hereunder, and shall not be deemed to give any legal or equitable right, remedy
or claim to any other person whatsoever.
SECTION 7.3. Invalidity of Provisions. In case any one or more of the
provisions contained in this Deposit Agreement or in the Receipts should be or
become invalid, illegal or unenforceable in any respect, the validity, legality
and enforceability of the remaining provisions contained herein or therein shall
in no way be affected, prejudiced or disturbed thereby.
SECTION 7.4. Notices. Any notices to be given to the Company hereunder
or under the Receipts shall be in writing and shall be deemed to have been duly
given if personally delivered or sent by mail, or by telegram or telex or
telecopier confirmed by letter, addressed to the Company at 0000 Xxxx Xxx
Xxxxxxxxx, Xxxxx 000, Xxxxxxx, Xxxxx 00000-0000, Attention: Corporate 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 Designation 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 7.5. Depositary's Agents. The Depositary may, with the approval
of the Company which approval shall not be unreasonably withheld, from time to
time appoint one or more Depositary's Agents to act in any respect for the
Depositary for the purposes of this Deposit Agreement and may vary or terminate
the appointment of such Depositary's Agents.
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SECTION 7.6. Holders of Receipts Are Parties. Notwithstanding that
holders of Receipts have not executed and delivered this Deposit Agreement or
any counterpart thereof, the holders of Receipts from time to time shall be
deemed to be parties to this Deposit Agreement and shall be bound by all of the
terms and conditions, and be entitled to all of the benefits, hereof and of the
Receipts by acceptance of delivery of Receipts.
SECTION 7.7. Governing Law. This Deposit Agreement and the Receipts and
all rights hereunder and thereunder and provisions hereof and thereof shall be
governed by, and construed in accordance with, the law of the State of New York
without giving effect to principles of conflict of laws.
SECTION 7.8. Headings. The headings of articles and sections in this
Deposit Agreement and in the form of the Receipt set forth in Exhibit A hereto
have been inserted for convenience only and are not to be regarded as a part of
this Deposit Agreement or to have any bearing upon the meaning or interpretation
of any provision contained herein or in the Receipts.
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IN WITNESS WHEREOF, Apache Corporation and Norwest Bank Minnesota,
National Association, 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.
APACHE CORPORATION
Attest:
By: By:
----------------------------------- -----------------------------
Xxxxx X. Xxxxx Authorized Officer
Corporate Secretary
NORWEST BANK MINNESOTA, NATIONAL
ASSOCIATION, as Depositary
Attest:
By: By:
----------------------------------- -----------------------------
Authorized Officer
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EXHIBIT A
Unless this certificate is presented by an authorized representative of The
Depository Trust Company, a New York corporation ("DTC"), to the Company or its
agent for registration of transfer, exchange or payment, and any certificate
issued is registered in the name of Cede & Co. or in such other name as is
requested by an authorized representative of DTC (and any payment is made to
Cede & Co. or to such other entity as is requested by an authorized
representative of DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL in as much as the registered owner
hereof, Cede & Co., has an interest herein.
DEPOSITARY RECEIPT
FOR
DEPOSITARY SHARES
EACH REPRESENTING 1/50 OF A SHARE OF
AUTOMATICALLY CONVERTIBLE EQUITY SECURITIES,
CONVERSION PREFERRED STOCK, SERIES C
OF
APACHE CORPORATION
No. ____ CUSIP: 037411 60 0
Norwest Bank Minnesota, National Association (the "Depositary") hereby
certifies that Cede & Co. is the registered owner of
______________________________________________ (_________) Depositary Shares
(the "Depositary Shares"), each Depositary Share representing 1/50 of a share of
Automatically Convertible Equity Securities, Conversion Preferred Stock, Series
C, no par value (the "Stock"), of Apache Corporation, a corporation duly
organized and existing under the laws of the State of Delaware (the "Company"),
deposited with the Depositary and the same proportionate interest in any and all
other property received by the Depositary in respect of such shares of Stock and
held by the Depositary under the Deposit Agreement (as defined below). Subject
to the terms of the Deposit Agreement, each owner of a Depositary Share is
entitled, proportionately, to all the rights, preferences and privileges of the
Stock represented thereby, including the dividend, conversion, exchange, voting,
liquidation and other rights contained in the Certificate of Designations,
Preferences and Rights establishing the rights, preferences, privileges and
limitations of the Stock (the "Certificate of Designation"), copies of which are
on file at the office of the Depositary in The City of South St. Xxxx, at which
at any particular time its business in respect of matters governed by the
Deposit Agreement shall be administered, which at the time of the execution of
the Deposit Agreement is located at 000 Xxxxx Xxxxxxx Xxxxxxxx, Xxxxx Xx. Xxxx,
Xxxxxxxxx 00000 (the "Corporate Office").
This Depositary Receipt ("Receipt") shall not be entitled to any
benefits under the Deposit Agreement or be valid or obligatory for any purpose
unless this Receipt shall have been
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executed manually or, if a Registrar for the Receipts (other than the
Depositary) shall have been appointed, by facsimile by the Depositary by the
signature of a duly authorized officer and, if executed by facsimile signature
of the Depositary, shall have been countersigned manually by such Registrar by
the signature of a duly authorized officer.
THE DEPOSITARY IS NOT RESPONSIBLE FOR THE VALIDITY OF ANY DEPOSITED
STOCK. THE DEPOSITARY ASSUMES NO RESPONSIBILITY FOR THE CORRECTNESS OF THE
DESCRIPTION SET FORTH IN THIS RECEIPT, WHICH CAN BE TAKEN AS A STATEMENT OF THE
COMPANY SUMMARIZING CERTAIN PROVISIONS OF THE DEPOSIT AGREEMENT. UNLESS
EXPRESSLY SET FORTH IN THE DEPOSIT AGREEMENT, THE DEPOSITARY MAKES NO WARRANTIES
OR REPRESENTATIONS AS TO THE VALIDITY, GENUINENESS OR SUFFICIENCY OF ANY STOCK
AT ANY TIME DEPOSITED WITH THE DEPOSITARY UNDER THE DEPOSIT AGREEMENT OR OF THE
DEPOSITARY SHARES, AS TO THE VALIDITY OR SUFFICIENCY OF THE DEPOSIT AGREEMENT,
AS TO THE VALUE OF THE DEPOSITARY SHARES OR AS TO ANY RIGHT, TITLE OR INTEREST
OF THE RECORD HOLDERS OF THE DEPOSITARY RECEIPTS IN AND TO THE DEPOSITARY
SHARES.
The Company will furnish to any holder of this Receipt without charge,
upon request addressed to its executive office, a full statement of the
designation, relative rights, preferences and limitations of the shares of each
authorized class, and of each class of preferred stock authorized to be issued,
so far as the same may have been fixed, and a statement of the authority of the
Board of Directors of the Company to designate and fix the relative rights,
preferences and limitations of other classes.
This Receipt is continued on the reverse hereof and the additional
provisions therein set forth for all purposes have the same effect as if set
forth at this place.
Dated: ________________, 1999
NORWEST BANK MINNESOTA, NATIONAL ASSOCIATION,
as Depositary and Registrar
By: ____________________________________
Authorized Officer
Further Conditions and Agreements Forming Part of this Receipt Appear on the
Reverse Side.
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[REVERSE
OF DEPOSITARY RECEIPT]
1. The Deposit Agreement. Depositary Receipts (the "Receipts"),
of which this Receipt is one, are made available upon the terms and conditions
set forth in the Deposit Agreement, dated as of May ___, 1999 (the "Deposit
Agreement"), among the Company, the Depositary and all holders from time to time
of Receipts. The Deposit Agreement (copies of which are on file at the Corporate
Office and at the office of any agent of the Depositary) sets forth the rights
of holders of Receipts and the rights and duties of the Depositary. The
statements made on the face and the reverse of this Receipt are summaries of
certain provisions of the Deposit Agreement and are subject to the detailed
provisions thereof, to which reference is hereby made. In the event of any
conflict between the provisions of this Receipt and the provisions of the
Deposit Agreement, the provisions of the Deposit Agreement will govern.
2. Definitions. Unless otherwise expressly herein provided, all
defined terms used herein shall have the meanings ascribed thereto in the
Deposit Agreement.
3. Withdrawal of Stock Not Permitted. Holders of Receipts are not
entitled to receive any of the shares of Stock represented by such Receipts.
4. Transfers, Split-ups, Combinations. Subject to Paragraphs 6, 7
and 8 below, this Receipt is transferable on the books of the Depositary upon
surrender of this Receipt to the Depositary at the Corporate Office or at such
other offices as the Depositary may designate, properly endorsed or accompanied
by a properly executed instrument of transfer, and upon such transfer the
Depositary shall sign and deliver a Receipt or Receipts to or upon the order of
the person entitled thereto, all as provided in and subject to the Deposit
Agreement. This Receipt may be split into other Receipts or combined with other
Receipts into one Receipt evidencing the same aggregate number of Depositary
Shares evidenced by the Receipt or Receipts surrendered; provided, however, that
the Depositary shall not issue any Receipt evidencing a fractional Depositary
Share.
5. Conversion Rights. This Receipt may be surrendered with
written instructions to the Depositary to instruct the Company to cause the
conversion of any specified number of whole or fractional shares of Stock
represented by the Depositary Shares evidenced thereby into whole shares of
Common Stock at the conversion rate then in effect for the Stock (and,
therefore, for the Depositary Shares) specified in the Certificate of
Designation, as such conversion rate may be adjusted by the Company from time to
time as provided in the Certificate of Designation. Subject to the terms and
conditions of the Deposit Agreement and the Certificate of Designation, a holder
of a Receipt or Receipts evidencing Depositary Shares representing whole or
fractional shares of Stock may surrender such Receipt or Receipts at the
Corporate Office, or to such office as the Depositary may designate for such
purpose, or to such Depositary's Agents as the Depositary may designate for such
purpose, together with a notice of conversion duly completed and executed,
thereby directing the Depositary to instruct the Company to cause the conversion
of the number of shares or fractions thereof of underlying Stock specified in
such notice of conversion into shares of Common Stock, and an assignment of such
Receipt or Receipts to the Company, to any transfer agent for the Depositary
Shares or in blank duly completed and executed. To the extent that a holder
delivers to the Depositary for conversion a Receipt or Receipts which in the
aggregate are convertible into less than one whole share of Common
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Stock, the holder shall receive payment in lieu of such fractional share of
Common Stock as provided in the Certificate of Designation.
Upon receipt by the Depositary of a Receipt or Receipts, together with
notice of conversion, duly completed and executed, directing the Depositary to
instruct the Company to cause the conversion of a specified number of shares or
fractions thereof of Stock and an assignment of such Receipt or Receipts to the
Company, to any transfer agent for the Depositary Shares or in blank, duly
completed and executed, the Depositary shall instruct the Company (i) to cause
the conversion of the Depositary Shares evidenced by the Receipts so surrendered
for conversion as specified in the written notice to the Depositary and (ii) to
cause the delivery to the holders of such Receipts of a certificate or
certificates evidencing the number of whole shares of Common Stock, and the
amount of money, if any, to be delivered to the holders of Receipts surrendered
for conversion in payment of any accrued and unpaid dividends with respect to
such Depositary Shares and in lieu of fractional shares of Common Stock
otherwise issuable. The Company shall as promptly as practicable after receipt
thereof cause the delivery of (i) a certificate or certificates evidencing the
number of whole shares of Common Stock into which the Stock represented by the
Depositary Shares evidenced by such Receipt or Receipts has been converted, and
(ii) any money or other property to which the holder is entitled. Upon such
conversion, the Depositary (i) shall deliver to the holder a Receipt evidencing
the number of Depositary Shares, if any, which such holder has elected not to
convert and evidencing the number of Depositary Shares, if any, in excess of the
number of Depositary Shares representing Stock which has been so converted, (ii)
shall cancel the Depositary Shares evidenced by Receipts surrendered for
conversion and (iii) shall deliver to the Company or its transfer agent for the
Stock for cancellation the shares of Stock represented by the Depositary Shares
evidenced by the Receipts so surrendered and so converted.
The holder of Depositary Shares on any dividend payment record date
established by the Depositary shall be entitled to receive the dividend payable
with respect to such Depositary Shares on the corresponding dividend payment
date notwithstanding the subsequent conversion of the shares of Stock to which
such Depositary Shares relate. If a share of Stock is converted between the
record date with respect to any dividend payment on the Stock and the next
succeeding dividend payment date, any holder of Receipts surrendered with
instructions to the Depositary for conversion of the underlying Stock shall pay
to the Depositary an amount equal to the dividend payable on such dividend
payment date on the Depositary Shares represented by the Receipts being
surrendered for conversion. Any holder of Receipts on a dividend payment record
date who (or whose transferee) surrenders the Receipts with instructions to the
Depositary for conversion of the underlying Stock on the corresponding dividend
payment date will receive the dividend payable with respect to the Depositary
Shares underlying such Receipts and will not be required to include payment of
the amount of such dividend upon surrender of the Receipts for conversion.
Upon the conversion of any shares of Stock for which a request for
conversion has been made by the holder of Depositary Shares representing such
shares, all dividends in respect of such Depositary Shares shall cease to
accrue, such Depositary Shares shall be deemed no longer outstanding, all rights
of the holder of the Receipt with respect to such Depositary Shares (except the
right to receive the Common Stock, any cash payable with respect to any
fractional shares of Common Stock as provided herein, any cash payable on
account of accrued dividends with respect to such Depositary Shares, and any
Receipts evidencing Depositary Shares not so
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converted) shall terminate, and the Receipt evidencing such Depositary Shares
shall be cancelled.
6. Conditions to Signing and Delivery, Transfer, etc., of
Receipts. Prior to the execution and delivery, registration of transfer,
split-up, combination or surrender of this Receipt, the delivery of any
distribution hereon or deposit of Stock, the Depositary, any of the Depositary's
Agents or the Company may require any or all of the following: (i) payment to it
of a sum sufficient for the payment (or, in the event that the Depositary or the
Company shall have made such payment, the reimbursement to it) of any tax or
other governmental charge with respect thereto (including any such tax or charge
with respect to Stock being deposited or withdrawn); (ii) production of proof
satisfactory to it as to the identity and genuineness of any signature; and
(iii) compliance with such reasonable regulations, if any, as the Depositary or
the Company may establish not inconsistent with the Deposit Agreement. Any
person presenting Stock for deposit, or any holder of this Receipt, may be
required to file such proof of information, to execute such certificates and to
make such representations and warranties as the Depositary or the Company may
reasonably deem necessary or proper. The Depositary or the Company may withhold
or delay the delivery of this Receipt, the registration of transfer of this
Receipt, the withdrawal of the Stock represented by the Depositary Shares
evidenced by this Receipt or the distribution of any dividend or other
distribution until such proof or other information is filed, such certificates
are executed or such representations and warranties are made.
7. Suspension of Delivery, Transfer, etc. The registration of
transfer, split-up, combination or surrender of this Receipt may be suspended
(i) during any period when the register of stockholders of the Company is
closed, (ii) if any such action is deemed necessary or advisable by the
Depositary, any of the Depositary's Agents or the Company at any time or from
time to time because of any requirement of law or of any government or
governmental body or commission, or under any provision of the Deposit
Agreement, or (iii) with the approval of the Company, for any other reason.
8. Payment of Taxes or Other Governmental Charges. If any tax or
other governmental charge shall become payable by or on behalf of the Depositary
with respect to (i) this Receipt, (ii) the Depositary Shares evidenced by this
Receipt, (iii) the Stock (or fractional interest therein) or other property
represented by such Depositary Shares, or (iv) any transaction referred to in
Section 4.6 of the Deposit Agreement, such tax (including transfer, issuance or
acquisition taxes, if any) or governmental charge shall be payable by the holder
of this Receipt, who shall pay the amount thereof to the Depositary. Until such
payment is made, registration or transfer of this Receipt or any split-up or
combination hereof or any withdrawal of the Stock or money or other property, if
any, represented by the Depositary Shares evidenced by this Receipt may be
refused, any dividend or other distribution may be withheld and any part or all
of the Stock or other property represented by the Depositary Shares evidenced by
this Receipt may be sold for the account of the holder hereof (after attempting
by reasonable means to notify such holder prior to such sale). Any dividend or
other distribution so withheld and the proceeds of any such sale may be applied
to any payment of such tax or other governmental charge, the holder of this
Receipt remaining liable for any deficiency.
9. Amendment. The form of the Receipts and any provision of the
Deposit Agreement may at any time and from time to time be amended by agreement
between the
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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 Receipt 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 Paragraphs 3, 6, 7, and 8 hereof
and of Sections 2.3, 2.5 and 2.6 and Article III of the Deposit Agreement, of
the owner of the Depositary Shares evidenced by this Receipt to surrender this
Receipt with instructions to the Depositary to deliver to the holder the Stock
and all money and other property, if any, represented thereby, except in order
to comply with mandatory provisions of applicable law.
10. Fees, Charges and Expenses. The Company will pay all fees,
charges and expenses of the Depositary, except for taxes (including transfer
taxes, if any) and other governmental charges and such charges as are expressly
provided in the Deposit Agreement to be at the expense of persons depositing
Stock, holders of Receipts or other persons.
11. Title to Receipts. It is a condition of this Receipt, and
every successive holder hereof by accepting or holding the same consents and
agrees, that title to this Receipt (and to the Depositary Shares evidenced
hereby), when properly endorsed or accompanied by a properly executed instrument
of transfer, is transferable by delivery with the same effect as in the case of
investment securities in general; provided, however, that the Depositary may,
notwithstanding any notice to the contrary, treat the record holder hereof at
such time as the absolute owner hereof for the purpose of determining the person
entitled to distribution of dividends or other distributions or to any notice
provided for in the Deposit Agreement and for all other purposes.
12. Dividends and Distributions. Whenever the Depositary shall
receive any cash dividend or other cash distribution on the Stock, the
Depositary shall, subject to the provisions of the Deposit Agreement, distribute
to record holders of Receipts such amounts of such sums as are, as nearly as
practicable, in proportion to the respective numbers of Depositary Shares
evidenced by the Receipts held by such holders; provided, however, that in case
the Company or the Depositary shall be required by law to withhold and does
withhold from any cash dividend or other cash distribution in respect of the
Stock an amount on account of taxes, the amount made available for distribution
or distributed in respect of Depositary Shares shall be reduced accordingly. The
Depositary shall distribute or make available for distribution, as the case may
be, only such amount, however, as can be distributed without attributing to any
owner of Depositary Shares a fraction of one cent and any balance not so
distributable shall be held by the Depositary (without liability for interest
thereon) and shall be added to and be treated as part of the next sum received
by the Depositary for distribution to record holders of Receipts then
outstanding.
13. Subscription Rights, Preferences or Privileges. If the Company
shall at any time offer or cause to be offered to the persons in whose name
Stock is registered on the books of the Company any rights, preferences or
privileges to subscribe for or to purchase any securities or any rights,
preferences or privileges of any other nature, such rights, preferences or
privileges shall in each such instance, subject to the provisions of the Deposit
Agreement, be made available by the Depositary to the record holders of Receipts
in such manner as the Company shall instruct.
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34
14. Notice of Dividends, Fixing of Record Date. Whenever (i) any
cash dividend or other cash distribution shall become payable, or any
distribution other than cash shall be made, or any rights, preferences or
privileges shall at any time be offered, with respect to the Stock, or (ii) the
Depositary shall receive notice of any meeting at which holders of Stock are
entitled to vote or of which holders of Stock are entitled to notice, 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.
15. Voting Rights. Upon receipt of notice of any meeting at which
the holders of Stock are entitled to vote, the Depositary shall, as soon as
practicable thereafter, mail to the record holders of Receipts a notice, which
shall contain (i) such information as is contained in such notice of meeting,
(ii) a statement that the holders of Receipts at the close of business on a
specified record date determined as provided in Paragraph 14 will be entitled,
subject to any applicable provision of law, the Certificate of Incorporation or
the Certificate of Designation, to instruct the Depositary as to the exercise of
the voting rights pertaining to the Stock represented by their respective
Depositary Shares, and (iii) a brief statement as to the manner in which such
instructions may be given. Upon the written request of a holder of this Receipt
on such record date, the Depositary shall endeavor insofar as practicable to
vote or cause to be voted the Stock represented by the Depositary Shares
evidenced by this Receipt in accordance with the instructions set forth in such
request. The Company hereby agrees to take all reasonable action that may be
deemed necessary by the Depositary in order to enable the Depositary to vote
such Stock or cause such Stock to be voted. In the absence of specific
instructions from the holder of this Receipt, the Depositary will abstain from
voting to the extent of the Stock represented by the Depositary Shares evidenced
by this Receipt.
16. Reports, Inspection of Transfer Books. The Depositary will
transmit to the holders of Receipts copies of all notices and reports (including
all financial statements) received from the Company that are received by the
Depositary as the holder of Stock. 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 will be open for
inspection by the record holders of Receipts; provided that any such holder
requesting to exercise such right shall certify to the Depositary that such
inspection shall be for a proper purpose reasonably related to such person's
interest as an owner of Depositary Shares.
17. Liability of the Depositary, the Depositary's Agents, the
Registrar and the Company. Neither the Depositary nor any Depositary's Agent nor
the Registrar nor the Company shall incur any liability to any holder of this
Receipt, if by reason of any provision of any present or future law or
regulation thereunder of 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 Designation or, in the case
of the Company, the Depositary, the Registrar or any Depositary's Agent, by
reason of any act of God or war or other circumstances beyond the control of the
relevant party, the Depositary, any Depositary's Agent, the Registrar or the
Company shall be prevented or forbidden from doing or performing any act or
thing that the terms of the Deposit Agreement provide shall be done or
performed; nor shall the Depositary,
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35
any Depositary's Agent, the Registrar or the Company incur any liability to any
holder of this Receipt (i) by reason of any nonperformance or delay, caused as
aforesaid, in the performance of any act or thing that the terms of the Deposit
Agreement provide shall or may be done or performed or (ii) by reason of any
exercise of, or failure to exercise, any discretion provided for in the Deposit
Agreement except, in the case of the Depositary, any Depositary's Agent or the
Registrar, if such exercise or failure to exercise discretion is caused by its
gross negligence or willful misconduct.
18. Obligations of the Depositary, the Depositary's Agent, the
Registrar and the Company. The Company assumes no obligation and shall be
subject to no liability under the Deposit Agreement or this Receipt to the
holder hereof or other persons, except to perform in good faith such obligations
as are specifically set forth and undertaken by it to perform in the Deposit
Agreement. Each of the Depositary, the Depositary's Agents and the Registrar
assumes no obligation and shall be subject to no liability under the Deposit
Agreement or this Receipt to the holder hereof or other persons, except to
perform such obligations as are specifically set forth and undertaken by it to
perform in the Deposit Agreement without gross negligence or willful misconduct.
Neither the Depositary nor any Depositary's Agent nor the Registrar nor
the Company shall be under any obligation to appear in, prosecute or defend any
action, suit or other proceeding with respect to Stock, Depositary Shares or
Receipts or Common Stock that in its opinion may involve it in expense or
liability, unless indemnity satisfactory to it against all expense and liability
be furnished as often as may be required.
Neither the Depositary nor any Depositary's Agent nor the Registrar nor
the Company will be liable for any action or failure to act by it in reliance
upon the advice of or information from legal counsel, accountants, any person
presenting Stock for deposit, any holder of this Receipt or any other person
believed by it in good faith to be competent to give such advice or information.
19. Termination of Deposit Agreement. The Deposit Agreement may be
terminated by the Company or the Depositary upon or after the occurrence of any
of the following events: (i) 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; or (ii) each share of Stock shall have been converted into
shares of Common Stock. Upon the termination of the Deposit Agreement, the
Company shall be discharged from all obligations thereunder except for its
obligations to the Depositary, any Depositary's Agent and any Registrar under
Sections 5.7 and 5.8 of the Deposit Agreement.
If any Receipts remain outstanding after the date of termination of the
Deposit Agreement, the Depositary thereafter shall discontinue all functions and
be discharged from all obligations as provided in the Deposit Agreement, except
as specifically provided therein.
20. Governing Law. The Deposit Agreement and this Receipt and all
rights thereunder and hereunder and provisions thereof and hereof shall be
governed by, and construed in accordance with, the law of the State of New York
without giving effect to principles of conflict of laws.
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36
-----------------------------------
FORM OF ASSIGNMENT
FOR VALUE RECEIVED, the undersigned hereby sells, assigns and transfers
unto ______________________ the within Receipt and all rights and interests
represented by the Depositary Shares evidenced thereby, and hereby irrevocably
constitutes and appoints ______________________ his attorney, to transfer the
same on the books of the within-named Depositary, with full power of
substitution in the premises.
Dated: Signature:
------------------------- ----------------------------------
NOTE: The signature to this
assignment must correspond with
the name as written upon the face
of the Receipt in every
particular, without alteration or
enlargement, or any change
whatever.
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