EXHIBIT 4(i)
DEPOSIT AGREEMENT
DEPOSIT AGREEMENT dated as of [ ] among BAY VIEW CAPITAL CORPORATION, a
Delaware corporation (the "Company"), and [NAME OF DEPOSITARY], a [ ], as
Depositary, and all holders from time to time of Receipts (as hereinafter
defined) issued hereunder.
WITNESSETH:
WHEREAS, it is desired to provide, as hereinafter set forth in this Deposit
Agreement, for the deposit of shares of the Company's Preferred Stock (as
hereinafter defined) with the Depositary (as hereinafter defined) for the
purposes set forth in this Deposit Agreement and for the issuance hereunder of
the Receipts (as hereinafter defined) evidencing Depositary Shares (as
hereinafter defined) representing fractional interests in the shares of
Preferred Stock deposited; and
WHEREAS, the Receipts are to be substantially in the form of Exhibit A
annexed 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
Section 1.1 The following definitions shall apply to the respective terms
(in the singular and plural forms of such terms) used in this Deposit Agreement
and the Receipts:
"Certificate of Designation" shall mean the [Certificate of Powers,
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Designations, Preferences and Rights] of the [ ]% Series [ ] [Cumulative]
[Redeemable] [Convertible] [Exchangeable] Preferred Stock of the Company,
setting forth the terms of the Preferred Stock, filed with the Secretary of
State of the State of Delaware, including any certificate subsequently filed
with the Secretary of State of the State of Delaware in accordance with the DGCL
and setting forth a statement that a specified decrease in the number of shares
of Preferred Stock has been authorized by the Company.
"Certificate of Incorporation" shall mean the amended certificate of
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incorporation, as the same may be further amended or restated from time to time,
of the Company, including all certificates of designation filed as part of such
certificate of incorporation.
"Company" shall mean Bay View Capital Corporation, a Delaware corporation,
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and its successors.
"Corporate Office" shall mean the corporate office of the Depositary at
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which at any particular time its business in respect of matters governed by this
Deposit Agreement shall be
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administered, which at the date of this Deposit Agreement is located at the
office of the Depositary's service agent [ ].
"DGCL" means the General Corporation Law of the State of Delaware, as in
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effect from time to time, or any successor thereto.
"Deposit Agreement" shall mean this agreement, as the same may be amended,
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modified or supplemented from time to time.
"Depositary" shall mean [Name of Depositary], a [ ], having its principal
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office in the United States and having a combined capital and surplus of at
least $50,000,000, and any successor as depositary hereunder, which successor
shall also have its principal office in the United States and a combined capital
and surplus of at least $50,000,000.
"Depositary Share" shall mean a fractional interest of [ ]th of a share of
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Preferred 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 Preferred Stock and held under this Deposit
Agreement, all as evidenced by the Receipts issued hereunder. Subject to the
terms of this Deposit Agreement, each owner of a Depositary Share representing
deposited Preferred Stock is entitled, proportionately with all other owners of
Depositary Shares representing deposited Preferred Stock, to all rights,
preferences and privileges of the Preferred Stock represented by such Depositary
Shares, including the dividend, voting, distribution, redemption and liquidation
rights contained in the Certificate of Designation and any other rights,
preferences and privileges contained in the Certificate of Incorporation.
"Depositary's Agent" shall mean an agent appointed by the Depositary as
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provided, and for the purposes specified, in Section 7.5.
"New York Office" shall mean the office maintained by the Depositary in the
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Borough of Manhattan, The City of New York for the execution and delivery,
transfer, surrender and exchange, split-up, combination[, exchange][,
conversion][, repurchase] and redemption of Receipts (and payment of amounts due
upon such redemption [or repurchase]), payment and distribution of all other
monies and property payable or distributable in respect of Receipts, and deposit
and withdrawal of Preferred Stock, which office at the date of this Deposit
Agreement is located at [ ].
"Preferred Stock" shall mean the Company's [ ]% Series [ ] [Cumulative]
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[Redeemable] [Convertible][Exchangeable] Preferred Stock, no par value per
share.
"Receipt" shall mean a depositary receipt issued hereunder to evidence one
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or more Depositary Shares, whether in definitive or temporary form,
substantially in the form (subject to Section 2.1) set forth as Exhibit A
hereto.
"record date" shall mean the date fixed pursuant to Section 4.4.
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"record holder" or "holder" as applied to a Receipt shall mean the person
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in whose name such Receipt is registered on the books maintained by the
Depositary for such purpose.
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"Registrar" shall mean [Name of Registrar] or any bank or trust company
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appointed to register ownership and transfers of Receipts or the Preferred
Stock, as the case may be, as herein provided.
"Securities Act" shall mean the Securities Act of 1933, as amended.
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"Transfer Agent" shall mean [Name of Transfer Agent] or any bank or trust
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company appointed to transfer the Receipts or the Preferred Stock, as the case
may be, as herein provided.
ARTICLE II
FORM OF RECEIPTS, DEPOSIT OF PREFERRED STOCK,
EXECUTION AND DELIVERY, TRANSFER,
SURRENDER AND REDEMPTION OF RECEIPTS
Section 2.1 Form and Transferability of Receipts. Definitive Receipts
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shall be engraved or printed or lithographed with steel-engraved borders
and underlying tint and shall be substantially in the form set forth in Exhibit
A annexed to this Deposit Agreement, with appropriate insertions, modifications
and omissions, as hereinafter provided. Pending the preparation of definitive
Receipts, the Depositary, upon the written order of the Company delivered in
compliance with Section 2.2, shall execute and deliver temporary Receipts which
may be printed, lithographed, typewritten, word-processed, mimeographed or
otherwise reproduced, substantially of the tenor of the definitive Receipts in
lieu of which they are issued and with such appropriate insertions, omissions,
substitutions and other variations as the persons executing such Receipts may
determine, as evidenced by their execution of such Receipts. If temporary
Receipts are issued, the Company and the Depositary will cause definitive
Receipts to be prepared without unreasonable delay. After the preparation of
definitive Receipts, the temporary Receipts shall be exchangeable for definitive
Receipts upon surrender of the temporary Receipts at the Corporate Office, the
New York Office and such additional offices, if any, 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 Deposit Agreement, and with respect to the
Preferred Stock deposited, as definitive Receipts.
Receipts shall be executed by the Depositary by the manual signature of a
duly authorized signatory of the Depositary, provided that such signature may be
a facsimile if a Registrar (other than the Depositary) shall have been appointed
and such Receipts are countersigned by manual signature of a duly authorized
signatory of the Registrar. No Receipt shall be entitled to any benefits under
this Deposit Agreement or be valid or obligatory for any purpose unless it shall
have been executed as provided in the preceding sentence. The Depositary shall
record on its books each Receipt executed as provided above and delivered as
hereinafter provided.
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Except as the Depositary may otherwise determine, Receipts shall be in
denominations of any number of whole Depositary Shares. All Receipts shall be
dated the date of their issuance.
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 Preferred Stock, the Depositary Shares or the
Receipts may be listed or to conform with any usage with respect thereto, or to
indicate any special limitations or restrictions to which any particular
Receipts are subject.
Title to any Receipt (and to the Depositary Shares evidenced by such
Receipt) that is properly endorsed or accompanied by a properly executed
instrument of transfer or endorsement shall be transferable by delivery with the
same effect as in the case of a negotiable instrument; provided, however, that
until a Receipt shall be transferred on the books of the Depositary as provided
in Section 2.4, 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 distribution of dividends or
other distributions, the exercise of any conversion rights or to any notice
provided for in this Deposit Agreement and for all other purposes.
Section 2.2 Deposit of Preferred Stock; Execution and Delivery of
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Receipts in Respect Thereof. Concurrently with the execution of this Deposit
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Agreement, the Company is delivering to the Depositary a certificate or
certificates, registered in the name of the Depositary and evidencing [number of
firm shares] shares of Preferred Stock, properly endorsed or accompanied, if
required by the Depositary, by a duly executed instrument of transfer or
endorsement, in form satisfactory to the Depositary. In the event that the over-
allotment option granted to the underwriters pursuant to the
[Underwriting/Purchase] Agreement dated [ ] between the Corporation, [Managing
Underwriter] and the other underwriters named therein is exercised in whole or
in part and the issuance of the Depositary Shares issuable upon exercise of such
option occurs after the date of this Agreement, the Company shall, on or prior
to the date of delivery of such Depositary Shares, deliver to the Depositary a
certificate or certificates, registered in the name of the Depositary and
evidencing the shares of Preferred Stock represented by such Depositary Shares
(which shall not exceed [number of option shares] shares of Preferred Stock in
the aggregate), properly endorsed or accompanied, if required by the Depositary,
by a duly executed instrument of transfer or endorsement, in form satisfactory
to the Depositary. Concurrently with each delivery of certificates, the Company
is delivering or shall deliver, as the case may be, to the Depositary (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
directing the Depositary to execute and deliver to, or upon the written or oral
order of, the person or persons stated in such order a Receipt or Receipts for
the Depositary Shares representing such deposited Preferred Stock. The
Depositary acknowledges receipt of the deposited Preferred Stock delivered on
the date of this Deposit Agreement and shall be deemed to acknowledge receipt of
any deposited Preferred Stock delivered after the date of this Deposit Agreement
in connection with any exercise of such over-allotment option, together in each
case with all related documentation, and agrees to hold such deposited Preferred
Stock in an account to be established by the Depositary at the Corporate Office
or at such other office as the
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Depositary shall determine. The Company hereby appoints [the Depositary] as the
Registrar, Transfer Agent and paying agent for the Preferred Stock in [City,
State of Corporate Office] and the Borough of Manhattan, The City of New York,
and the Depositary hereby accepts such appointment and, as such, will reflect
changes in the number of shares (including any fractional shares) of deposited
Preferred Stock held by it or any Depositary's Agent by notation, book-entry or
other appropriate method.
If required by the Depositary, Preferred Stock presented for deposit by the
Company at any time, whether or not the register of stockholders of the Company
is closed, shall also be accompanied by an agreement or assignment, or other
instrument satisfactory to the Depositary, that will provide for the prompt
transfer to the Depositary or its nominee of any dividend or right to subscribe
for additional Preferred Stock or to receive other property that any person in
whose name the Preferred Stock is or has been registered may thereafter receive
upon or in respect of such deposited Preferred Stock or in lieu thereof such
agreement of indemnity or other agreements as shall be satisfactory to the
Depositary.
Upon receipt by the Depositary of a certificate or certificates for
Preferred Stock deposited hereunder, together with the other documents specified
above, and upon registering such Preferred Stock in the name of the Depositary,
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 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 Preferred Stock so deposited and registered in such name
or names as may be requested by such person or persons. The Depositary shall
execute and deliver such Receipt or Receipts at the New York Office or, if
requested by the person requesting such delivery, at the Corporate Office,
except that, at the request, risk and expense of any person requesting such
delivery, such delivery may be made at such other place as may be designated by
such person.
Other than in the case of splits, combinations or other reclassifications
affecting the Preferred Stock, or in the case of dividends or other
distributions of Preferred Stock, if any, there shall be deposited hereunder not
more than the number of shares constituting the Preferred Stock as set forth in
the Certificate of Designation, as such may be amended from time to time.
The Company shall deliver to the Depositary from time to time such
quantities of Receipts as the Depositary may request to enable the Depositary to
perform its obligations under this Deposit Agreement.
Section 2.3 Optional Redemption of Preferred Stock for Cash[; Repurchase
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at Option of Holders]. Whenever the Company shall elect to redeem deposited
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shares of Preferred Stock for cash in accordance with the provisions of the
Certificate of Designation, it shall (unless otherwise agreed in writing with
the Depositary) give the Depositary not less than 60 days' prior written notice
of the date of such proposed redemption and of the number of such shares of
Preferred Stock held by the Depositary to be redeemed and the applicable
redemption price, as set forth in the Certificate of Designation, including the
amount, if any, of accrued and unpaid dividends (including, without limitation,
accumulated dividends, if any, for prior dividend periods) to the date of such
redemption. The Depositary shall mail, first-class postage prepaid, notice
furnished by the Company of the redemption of the Preferred Stock and the
proposed
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simultaneous redemption of the Depositary Shares representing the Preferred
Stock to be redeemed, not less than 30 and not more than 60 days prior to the
date fixed for redemption of such Preferred Stock and Depositary Shares (the
"cash redemption date"), to the holders of record at the close of business on
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the record date fixed for such notice pursuant to Section 4.4 hereof of the
Receipts evidencing the Depositary Shares to be so redeemed, at the addresses of
such holders as the same appear on the records of the Depositary, but neither
failure to mail any such notice to one or more such holders nor any defect in
any such notice shall affect the validity of the proceedings for redemption
except as to any holder to whom notice was defective or not given. The Company
shall provide the Depositary with such notice, and each such notice shall state:
(i) the cash redemption date; (ii) the cash redemption price; (iii) the number
of shares of deposited Preferred Stock and Depositary Shares to be redeemed;
(iv) the place or places (which shall [include/be in] the Borough of Manhattan,
The City of New York) where Receipts evidencing Depositary Shares to be redeemed
are to be surrendered for payment of the cash redemption price; (v) that
dividends on the shares of Preferred Stock represented by the Depositary Shares
to be redeemed will cease to accrue from and after such cash redemption date,
and (vi) if fewer than all the Depositary Shares evidenced by Receipts held by
any holder are to be redeemed, the number of such Depositary Shares held by such
holder to be so redeemed. If fewer than all the outstanding Depositary Shares
are to be redeemed, the Depositary Shares to be redeemed shall be selected pro
rata (as nearly as may be practicable without creating fractional Depositary
Shares) or by lot or by any other equitable method determined by the Company.
The Company shall also cause notice of redemption to be published in the Wall
Street Journal or, if such newspaper is not then being published, any other
daily newspaper of general circulation in The City of New York at least once a
week for two successive weeks commencing not less than 30 nor more than 60 days
prior to the cash redemption date.
In the event that notice of redemption has been made as described in the
immediately preceding paragraph and the Company shall then have paid in full to
the Depositary the cash redemption price (determined pursuant to the Certificate
of Designation) of the Preferred Stock deposited with the Depositary to be
redeemed (including any accrued and unpaid dividends (including, without
limitation, accumulated dividends, if any, for prior dividend periods) to the
date of redemption), the Depositary shall redeem, as of the same redemption date
as the Preferred Stock being so redeemed, the number of Depositary Shares
representing such Preferred Stock so called for redemption by the Company and
from and after the cash redemption date (unless the Company shall have failed to
redeem the shares of Preferred Stock to be redeemed by it as set forth in the
Company's notice provided for in the preceding paragraph and to pay all amounts
due upon such redemption) all dividends in respect of the shares of Preferred
Stock called for redemption shall cease to accrue, the Depositary Shares called
for redemption shall be deemed no longer to be outstanding and all rights of the
holders of Receipts evidencing such Depositary Shares (except the right to
receive the cash redemption price together with accrued and unpaid dividends
thereon [(including, without limitation, accumulated dividends, if any, for
prior dividend periods)], and any money or other property to which holders of
such Receipts were entitled upon such redemption) shall, to the extent of such
Depositary Shares, cease and terminate. Upon surrender in accordance with said
notice of the Receipts evidencing such Depositary Shares representing such
Preferred Stock so called for redemption (properly endorsed or assigned for
transfer, if the Depositary shall so require), such Depositary Shares shall be
redeemed at a cash redemption price per Depositary Share of $[ ], plus [ ]th
of the accrued and unpaid dividends (including, without limitation, accumulated
dividends, if any, for prior
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dividend periods), if any, payable on one share of Preferred Stock upon such
redemption, plus [ ]th of any other money and other property payable in respect
of one such share of Preferred Stock upon such redemption. The foregoing shall
be further subject to the terms and conditions of the Certificate of
Designation.
[Anything herein to the contrary notwithstanding, the holders of record of
Receipts evidencing Depositary Shares representing Preferred Stock at the close
of business on a record date for the payment of dividends on the Preferred Stock
will be entitled to receive the dividend payable with respect to the Preferred
Stock represented by the Depositary Shares evidenced by such Receipts on the
corresponding dividend payment date for the Preferred Stock notwithstanding the
redemption of such Preferred Stock or Depositary Shares after such record date
and on or prior to such dividend payment date or the Company's default in the
payment of the dividend due on such dividend payment date, in which case the
amount payable upon redemption of such Depositary Shares will not include any
amount in respect of such dividend (and the full amount of the dividend payable
for the applicable dividend period shall instead be paid on such dividend
payment date to the holders of record of such Receipts on such record date as
aforesaid).]
If fewer than all of the Depositary Shares evidenced by a Receipt are
called for redemption, the Depositary will deliver to the holder of such Receipt
upon its surrender to the Depositary, together with payment of the cash
redemption price for and all other amounts payable in respect of the Depositary
Shares called for redemption, a new Receipt evidencing the Depositary Shares
evidenced by such prior Receipt and not called for redemption.
[If applicable, insert provisions relating to repurchase of Receipts at the
option of holders.]
Section 2.4 Registration of Transfer of Receipts. The Company hereby
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appoints the Depositary as the Registrar, Transfer Agent and paying agent for
the Receipts in [City, State of Corporate Office] and the Borough of Manhattan,
The City of New York and the Depositary hereby accepts such appointment and, as
such, shall register on its books from time to time transfers of Receipts upon
any surrender thereof by the holder in person or by a duly authorized attorney,
properly endorsed or accompanied by a properly executed instrument of transfer
or endorsement. No service charge will be made for any registration of transfer
or exchange of Receipts, but the Company or the Depositary may require payment
of any transfer tax or similar governmental charge payable in connection
therewith. Upon such surrender, the Depositary shall execute a new Receipt or
Receipts and deliver the same to or upon the order of the person entitled
thereto evidencing the same aggregate number of Depositary Shares evidenced by
the Receipt or Receipts surrendered.
Section 2.5 Combinations and Split-ups of Receipts. Upon surrender of a
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Receipt or Receipts at the Corporate Office, the New York Office or such other
office as the Depositary may designate for the purpose of effecting a split-up
or combination of Receipts, subject to the terms and conditions of this Deposit
Agreement, the Depositary shall execute and deliver a new Receipt or Receipts in
the authorized denominations requested evidencing the same aggregate number of
Depositary Shares evidenced by the Receipt or Receipts surrendered.
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Section 2.6 Surrender of Receipts and Withdrawal of Preferred Stock. Any
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holder of a Receipt or Receipts evidencing Depositary Shares representing
deposited Preferred Stock may withdraw any or all of the deposited Preferred
Stock represented by the Depositary Shares evidenced by such Receipt or Receipts
and all money and other property, if any, represented by such Depositary Shares
by surrendering such Receipt or Receipts at the Corporate Office, the New York
Office or at such other office as the Depositary may designate for such
withdrawals, provided that a holder of a Receipt or Receipts may not withdraw
such Preferred Stock (or money and other property, if any, represented thereby)
which has previously been called for redemption. After such surrender, without
unreasonable delay, the Depositary shall deliver to such holder, or to the
person or persons designated by such holder as hereinafter provided, the number
of whole or fractional shares of such Preferred Stock and all such money and
other property, if any, represented by the Depositary Shares evidenced by the
Receipt or Receipts so surrendered for withdrawal, but, except as provided below
in this Section 2.6, holders of such whole or fractional shares of Preferred
Stock will not thereafter be entitled to deposit such Preferred Stock hereunder
or to receive Depositary Shares therefor. If the Receipt or Receipts delivered
by the holder to the Depositary in connection with such withdrawal shall
evidence a number of Depositary Shares in excess of the number of Depositary
Shares representing the number of whole or fractional shares of deposited
Preferred Stock to be withdrawn, the Depositary shall at the same time, in
addition to such number of whole or fractional shares of Preferred Stock and
such money and other property, if any, to be withdrawn, deliver to such holder
or (subject to Section 2.4) upon his order, a new Receipt or Receipts evidencing
such excess number of Depositary Shares. Delivery of such Preferred Stock and
such money and other property being withdrawn may be made by the delivery of
such certificates, documents of title and other instruments as the Depositary
may deem appropriate, which, if required by the Depositary, shall be properly
endorsed or accompanied by proper instruments of transfer.
If the deposited Preferred Stock and the money and other property being
withdrawn are to be delivered to a person or persons other than the record
holder of the Receipt or Receipts being surrendered for withdrawal of Preferred
Stock, such holder shall execute and deliver to the Depositary a written order
so directing the Depositary and the Depositary may require that the Receipt or
Receipts surrendered by such holder for withdrawal of such shares of Preferred
Stock be properly endorsed in blank or accompanied by a properly executed
instrument of transfer or endorsement in blank.
The Depositary shall deliver the deposited Preferred Stock and the money
and other property, if any, represented by the Depositary Shares evidenced by
Receipts surrendered for withdrawal at the New York Office or, if requested by
the holder surrendering such Receipt or Receipts, at the Corporate Office,
except that, at the request, risk and expense of the holder surrendering such
Receipt or Receipts and for the account of the holder thereof, such delivery may
be made at such other place as may be designated by such holder.
Section 2.7 Limitations on Execution and Delivery, Transfer, Split-up,
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Combination, Surrender and Exchange of Receipts. As a condition precedent to
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the execution and delivery, transfer, split-up, combination, surrender or
exchange of any Receipt[ or conversion [or exchange] right referred to in
Section 2.10,], 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
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reimbursement to it) of any transfer tax or similar governmental charge payable
with respect thereto (including any such tax or charge with respect to the
Preferred Stock being deposited or withdrawn[; provided, however, that, the
Company shall pay any documentary, stamp or similar issue or transfer tax or
other similar governmental charge due on the issuance of the Common Stock or
other securities upon such conversion [or exchange]; and provided, further that
the holder of such Receipt shall pay the amount of any tax or other governmental
charge resulting from the issuance of Common Stock (as defined in Section 2.10)
or such other securities in a name other than that of such holder)]; (ii)
production of proof satisfactory to it as to the identity and genuineness of any
signature (or the authority of any signature); and (iii) compliance with such
reasonable regulations, if any, as the Depositary or the Company may establish
consistent with the provisions of this Deposit Agreement or as may be required
by any securities exchange upon which the deposited Preferred Stock, the
Depositary Shares or the Receipts may be included for quotation or listed.
The deposit of Preferred Stock may be refused, the delivery of Receipts
against Preferred Stock may be suspended, the transfer of Receipts may be
refused, and the transfer, split-up, combination, surrender or exchange of
outstanding Receipts may be suspended [and the exercise of any conversion [or
exchange] right referred to in Section 2.10 may be suspended,] (i) during any
period when the register of stockholders of the Company is closed or (ii) if any
such action is deemed reasonably necessary or advisable by the Depositary, any
of the Depositary's Agents or the Company at any time or from time to time
because of any requirement of law or of any government or governmental body or
commission, or under any provision of this Deposit Agreement.
Section 2.8 Lost Receipts, etc. In case any Receipt shall be mutilated or
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destroyed or lost or stolen, the Depositary in its discretion may execute and
deliver a Receipt of like form and tenor in exchange and substitution for such
mutilated Receipt or in lieu of and in substitution for such destroyed, lost or
stolen Receipt, provided that the holder thereof provides the Depositary with
(i) evidence reasonably satisfactory to the Depositary of such destruction, loss
or theft of such Receipt, of the authenticity thereof and of his ownership
thereof and (ii) reasonable indemnification satisfactory to the Depositary and
the Company.
Section 2.9 Cancellation and Destruction of Surrendered Receipts. All
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Receipts surrendered to the Depositary or any Depositary's Agent shall be
cancelled by the Depositary. Except as prohibited by applicable law or
regulation, the Depositary is authorized to destroy such Receipts so cancelled.
Section 2.10 Conversion [or Exchange] of Preferred Stock into Common
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Stock [or Other Securities] [to be revised according to conversion/exchange
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rights]. It is understood and agreed that the Depositary Shares are not
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convertible into [or exchangeable for ]Common Stock, $.01 par value per share
("Common Stock"), of the Company or any other securities or property of the
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Company. Nevertheless, as a matter of convenience, the Company hereby agrees to
cause the Depositary to accept (or to cause the Company's conversion agent [or
exchange agent, as the case may be,] to accept) the delivery of Receipts for the
purpose of effecting conversions [or exchanges] of the Preferred Stock utilizing
the same procedures as those provided for delivery of Preferred Stock
certificates to effect such conversions [or exchanges] in accordance with the
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terms and conditions of the Certificate of Designations; provided, however, that
only whole Depositary Shares may be so submitted for conversion[ or exchange].
Receipts may be surrendered with written instructions to the Depositary to
instruct the Company to cause the conversion [or exchange] of any specified
number of whole [or fractional] shares of Preferred Stock that is represented by
the Depositary Shares evidenced by such Receipts into the number of whole shares
of Common Stock [or whole number of other securities of the Company] obtained by
dividing the aggregate liquidation preference of the total number of shares of
Preferred Stock represented by such Depositary Shares by the Conversion Price
(as such term is defined in the Certificate of Designations) [or Exchange Ratio
(as defined in the Certificate of Designations) then in effect], as such
Conversion Price [or Exchange Ratio] may be adjusted by the Company from time to
time as provided in the Certificate of Designations. Subject to the terms and
conditions of this Deposit Agreement and the Certificate of Designations, a
holder of a Receipt or Receipts evidencing Depositary Shares representing whole
or fractional shares of Preferred Stock may surrender such Receipt or Receipts
to the Depositary at the Corporate Office or to such office or to such
Depositary's Agents as the Depositary may designate for such purpose, together
with (i) a notice of conversion [or exchange] thereof, as the case may be, duly
completed and executed (a "Notice of Conversion[/Exchange]"), and (ii) any
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payment in respect of dividends required by the fifth paragraph of this Section
2.10, thereby directing the Depositary to instruct the Company to cause the
conversion [or exchange, as the case may be,] of the number of shares or
fractions thereof of underlying Preferred Stock specified in such Notice of
Conversion[/Exchange] into whole shares of Common Stock or a whole number of
other securities of the Company. In the event that a holder delivers to the
Depositary for conversion [or exchange] a Receipt or Receipts which in the
aggregate are convertible into[ or exchangeable for] less than (i) one whole
share of Common Stock or any number of whole shares of Common Stock plus an
excess constituting less than one whole share of Common Stock or (ii) one of
such securities or any whole number of such securities plus an excess
constituting less than one security, the holder shall receive payment in lieu of
such fractional shares of Common Stock or fractional number of such securities
otherwise issuable in accordance with the last paragraph of this Section 2.10.
If more than one Receipt shall be delivered for conversion[ or exchange, as the
case may be,] at one time by the same holder, the number of whole shares of
Common Stock or the whole number of such securities issuable upon conversion [or
exchange] thereof[, as the case may be,] shall be computed on the basis of the
aggregate number of Depositary Shares evidenced by the Receipts so delivered.
Upon receipt by the Depositary of one or more Receipts, together with a
duly completed and executed Notice of Conversion[/Exchange], the Depositary
shall, on the date of receipt of such Notice of Conversion[/Exchange], instruct
the Company (i) to cause the conversion [or exchange, as the case may be,] of
the Depositary Shares evidenced by the Receipts so surrendered for conversion
[or exchange] as specified in the Notice of Conversion[/Exchange] and (ii) to
cause the delivery to the holder or holders of such Receipts of a certificate or
certificates evidencing the number of whole shares of Common Stock or the whole
number of such securities and the amount of money, if any, to be delivered to
the holders of Receipts surrendered for conversion[ or exchange] in payment of
any fractional shares of Common Stock or of any fractional number of such
securities otherwise issuable, as the case may be. The Company shall, as
promptly as practicable after receipt thereof, cause the delivery to such holder
or holders of (i) a certificate or certificates evidencing the number of whole
shares of Common
10
Stock or the whole number of such securities into or for which the Preferred
Stock represented by the Depositary Shares evidenced by such Receipt or Receipts
has been converted [or exchanged, as the case may be, ]and (ii) any money or
other property to which the holder or holders are entitled. The person or
persons in whose name or names any certificate or certificates for shares of
Common Stock or for such securities shall be issuable upon such conversion [or
exchange, as the case may be, ]shall be deemed to have become the holder or
holders of record of the shares or securities represented thereby at the close
of business on the date such Receipt or Receipts shall have been surrendered to
and a Notice of Conversion[/Exchange] received by the Depositary, unless the
transfer books of the Company shall be closed on that date, in which event such
person or persons shall be deemed to have become such holder or holders of
record on the next succeeding day on which such transfer books are open. Upon
such conversion [or exchange,] 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[ or exchange] in excess of the number of Depositary
Shares representing Preferred Stock which has been so converted [or exchanged,
as the case may be, ](ii) shall cancel the Depositary Shares evidenced by
Receipts surrendered for conversion [or exchange, as the case may be, ]and (iii)
shall deliver for cancellation to the transfer agent for the Preferred Stock the
shares of Preferred Stock represented by the Depositary Shares evidenced by the
Receipts so surrendered and so converted[ or exchanged, as the case may be].
If any Preferred Stock convertible into [or exchangeable for] Common Stock
or other securities of the Company shall be called by the Company for
redemption, the Depositary Shares representing such Preferred Stock may be
converted into[ or exchangeable for] Common Stock or such securities as provided
in this Deposit Agreement until and including, but not after, the close of
business on the cash redemption date (as defined in Section 2.3) unless the
Company shall default in making payment of the redemption price. Upon receipt
by the Depositary of a Receipt or Receipts representing any Preferred Stock
called for redemption, together with a properly completed and executed Notice of
Conversion[/Exchange], the shares of Preferred Stock held by the Depositary
represented by such Depositary Shares as to which conversion[ or exchange, as
the case may be,] is requested shall be deemed to have been received by the
Company for such conversion[ or exchange].
Upon any conversion[ or exchange, as the case may be,] of the Preferred
Stock underlying the Depositary Shares, no allowance, adjustment or payment
shall be made with respect to accrued dividends upon such Preferred Stock,
except that if any holder of a Receipt surrenders such Receipt with instructions
to the Depositary for conversion[ or exchange] of the underlying Preferred Stock
evidenced thereby during the period between the opening of business on any
dividend record date and the close of business on the corresponding dividend
payment date (except shares called for redemption on a redemption date during
such period), such Receipt must be accompanied by a payment equal to the
dividend thereon, if any, which the holder of such Receipt is entitled to
receive on such dividend payment date in respect of the underlying Preferred
Stock to be converted[ or exchanged].
Upon the conversion[ or exchange] of any shares of Preferred Stock for
which a duly completed and executed Notice of Conversion[/Exchange] has been
received by the Depositary, 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
11
Depositary Shares (except the right to receive the Common Stock or other
securities of the Company, any cash payable with respect to any fractional
shares of Common Stock or fractional number of such securities, as the case may
be, as provided herein and any cash payable on account of accrued dividends in
respect of the Preferred Stock so converted[ or exchanged] and any Receipts
evidencing Depositary Shares not so converted[ or exchanged]) shall terminate,
and the Receipt evidencing such Depositary Shares shall be cancelled in
accordance with Section 2.9 hereof.
No fractional shares of Common Stock or fractional number of securities, as
the case may be, shall be issuable upon conversion[ or exchange] of Preferred
Stock underlying the Depositary Shares. If, except for the provisions of this
Section 2.10 and the Certificate of Designations, any holder of Receipts
surrendered to the Depositary for conversion[ or exchange] of the underlying
Preferred Stock would be entitled to a fractional share of Common Stock or a
fractional number of securities, as the case may be, upon such conversion[ or
exchange], the Company shall cause to be delivered to such holder an amount in
cash for such fractional share or security determined in accordance with the
Certificate of Designations.
[Notwithstanding the foregoing, if less than all of the Depositary Shares
are to be exchanged, the Depositary Shares to be exchanged will be selected by
the Depositary by lot or pro rata or other equitable method, in each case as may
be determined by the Company. If the Depositary Shares evidenced by a
Depositary Receipt are to be exchanged in part only, a new Depositary Receipt or
Receipts will be issued for any Depositary Shares not to be exchanged.]
ARTICLE III
CERTAIN OBLIGATIONS OF HOLDERS OF RECEIPTS AND THE COMPANY
Section 3.1 Filing Proofs, Certificates and Other Information. Any person
-------------------------------------------------
presenting Preferred Stock for deposit or any holder of a Receipt may be
required from time to time to file such proof of residence or other information,
to execute such certificates and to make such representations and warranties as
the Depositary or the Company may reasonably deem necessary or proper. The
Depositary or the Company may withhold or delay the delivery of any Receipt, the
transfer, redemption or exchange of any Receipt, the withdrawal of the deposited
Preferred Stock represented by the Depositary Shares evidenced by any Receipt,
the distribution of any dividend or other distribution or the sale of any rights
or of the proceeds thereof, [the exercise of any conversion or exchange right
referred to in Section 2.10 or the delivery of Common Stock or other securities
of the Company upon such conversion or exchange] until such proof or other
information is filed, such certificates are executed or such representations and
warranties are made.
Section 3.2 Payment of Fees and Expenses. Holders of Receipts shall be
----------------------------
obligated to make payments to the Depositary of certain fees and expenses, as
provided in Section 5.7, or to provide evidence reasonably satisfactory to the
Depositary that such fees and expenses have been paid. Until such payment is
made, transfer of any Receipt or any withdrawal of the Preferred Stock or money
or other property, if any, represented by the
12
Depositary Shares evidenced by such Receipt may be refused, any dividend or
other distribution on such Preferred Stock may be withheld, and any part or all
of the Preferred 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 a reasonable number
of days 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 fees or
expenses, the holder of such Receipt remaining liable for any deficiency.
Section 3.3 Representations and Warranties as to Preferred Stock. In the
----------------------------------------------------
case of the initial deposit of the Preferred Stock hereunder, the Company and,
in the case of subsequent deposits thereof, each person so depositing Preferred
Stock under this Deposit Agreement shall be deemed thereby to represent and
warrant that such Preferred Stock and each certificate therefor are valid and
that the person making such deposit is duly authorized to do so. The Company
hereby further represents and warrants that such Preferred Stock, when issued,
will be validly issued, fully paid and nonassessable. Such representations and
warranties shall survive the deposit of the Preferred Stock and the issuance of
Receipts.
Section 3.4 Representation and Warranty as to Receipts and Depositary
---------------------------------------------------------
Shares. The Company hereby represents and warrants that the Receipts, when
issued, will evidence legal and valid interests in the Depositary Shares and
each Depositary Share will represent a legal and valid [ ]th fractional interest
in a deposited share of Preferred Stock. Such representation and warranty shall
survive the deposit of the Preferred Stock and the issuance of Receipts.
Section 3.5 [Covenants and Representation and Warranty as to Common Stock.
--------------------------------------------------------------
In the event that the Depositary Shares evidence Preferred Stock convertible
into[ or exchangeable for] Common Stock, the Company covenants that it will give
written notice to the Depositary of any adjustments in the Conversion Price [or
Exchange Ratio] made pursuant to the Certificate of Designation. The Company
hereby represents and warrants that the Common Stock issuable upon conversion or
exchange of the Preferred Stock, when issued, will be duly authorized, validly
issued, fully paid and nonassessable. Such representation and warranty shall
survive the conversion or exchange of the Preferred Stock into such Common
Stock. [to be modified if convertible into or exchangeable for other securities
of the Company]
ARTICLE IV
THE PREFERRED STOCK; NOTICES
Section 4.1 Cash Distributions. Whenever the Depositary shall receive
------------------
any cash dividend or other cash distribution on the deposited Preferred Stock,
the Depositary shall, subject to Section 3.2 and the last sentence of this
Section 4.1, distribute to record holders of Receipts evidencing Depositary
Shares representing deposited Preferred Stock on the record date fixed pursuant
to Section 4.4 such amounts of such sums as are, as nearly as practicable, in
proportion to the respective numbers of such 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 shall withhold from any
cash dividend or other cash distribution in respect of the Preferred Stock
represented by the Depositary Shares which are evidenced by the Receipts held by
any holder an amount on account of taxes, the amount made available for
distribution or distributed in respect of Depositary Shares evidenced by such
Receipts shall be reduced accordingly. The Depositary shall distribute or make
available for distribution, as the case may
13
be, only such amount, however, as can be distributed without attributing to any
holder of Receipts 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 evidencing Depositary
Shares representing Preferred Stock then outstanding. Notwithstanding the
foregoing, if less than all of the outstanding Depositary Shares are to be
redeemed as contemplated by Section 2.3 hereof and the Depositary Shares to be
so redeemed are not selected pro rata, then only the holders of the Receipts
evidencing the Depositary Shares selected for redemption will be entitled to
receive the cash redemption price therefor or any other amounts payable upon
such redemption.
Section 4.2 Distributions Other Than Cash. Whenever the Depositary shall
-----------------------------
receive any distribution other than cash on the deposited Preferred Stock, the
Depositary shall, subject to Section 3.2 and the last sentence of Section 4.1,
distribute to record holders of Receipts evidencing Depositary Shares
representing deposited Preferred Stock on the record date fixed pursuant to
Section 4.4 such amounts of the securities or property received by the
Depositary in respect of the deposited Preferred Stock as are, as nearly as
practicable, in proportion to the respective numbers of such Depositary Shares
evidenced by the Receipts held by such holders in any manner that the Depositary
and the Company may deem equitable and practicable for accomplishing such
distribution. If, in the opinion of the Depositary after consultation with the
Company, such distribution cannot be made proportionately among such record
holders of Receipts evidencing Depositary Shares representing Preferred Stock or
if for any other reason (including any requirement that the Company or the
Depositary withhold an amount on account of taxes) the Depositary deems, after
consultation with the Company, such distribution not to be feasible, the
Depositary may, with the approval of the Company, adopt such method as it deems
equitable and practicable for the purpose of effecting such distribution,
including the sale (at public or private sale) of the securities or property
thus received or any part thereof, at such place or places and upon such terms
as it may deem proper. The net proceeds of any such sale shall, subject to
Section 3.2, be distributed or made available for distribution, as the case may
be, by the Depositary to record holders of the applicable Receipts as provided
by Section 4.1 in the case of a distribution received in cash. The Company
shall not make any distribution of such securities or property unless the
Company shall have provided to the Depositary an opinion of counsel stating that
such securities or property have been registered under the Securities Act or do
not need to be registered.
Section 4.3 Subscription Rights, Preferences or Privileges. If the
----------------------------------------------
Company shall at any time offer or cause to be offered to the persons in whose
names deposited Preferred 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, subject to the last sentence of Section 4.1, to the record holders
of Receipts evidencing Depositary Shares representing such Preferred Stock 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 upon advice of its legal
counsel that it is not lawful or feasible to make such rights, preferences or
privileges available to the holders of Receipts (by the issue of warrants or
otherwise) or (b) if and to the extent instructed by holders
14
of Receipts who do not desire to exercise such rights, preferences or
privileges, the Depositary shall then, if so instructed by the Company, 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, subject to Section 3.2, 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. The Company shall
not make any distribution of such rights, preferences or privileges unless the
Company shall have provided to the Depositary an opinion of counsel stating that
such rights, preferences or privileges have been registered under the Securities
Act or do not need to be registered.
If registration under the Securities Act of the securities to which any
rights, preferences or privileges relate is required in order for holders of
Receipts to be offered or sold the securities to which such rights, preferences
or privileges relate, the Company agrees that it will 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 as promptly as practicable and, in any event, sufficiently in advance
of the expiration of such rights, preferences or privileges to enable such
persons to exercise such rights, preferences or privileges. In no event shall
the Depositary make available to the holders of Receipts any right, preference
or privilege to subscribe for or to purchase any securities unless and until
such a registration statement shall have become effective and the Company shall
have provided to the Depositary an opinion of legal counsel to such effect or
unless the offering and sale of such securities to such persons are exempt from
registration under the provisions of the Securities Act and the Company shall
have provided to the Depositary an opinion of counsel to such effect.
If any other action under the law of any jurisdiction or any governmental
or administrative authorization, consent or permit is required in order for such
rights, preferences or privileges or related securities or any securities or
property referred to in Section 4.2 to be made available to holders of Receipts,
the Company agrees to take such action or obtain such authorization, consent or
permit prior to the distribution of such rights, preferences or privileges or
such securities or property referred to in Section 4.2, as the case may be, and
further agrees, in the case of any such related securities, to use its best
efforts to take such action or obtain such authorization, consent or permit as
promptly as practicable and, in any event, 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 any cash dividend or other cash distribution shall become
payable, any distribution other than cash shall be made, or any rights,
preferences or privileges shall at any time be offered with respect to the
deposited Preferred Stock, or whenever the Depositary shall receive notice of
(i) any meeting at which holders of such Preferred Stock are entitled to vote or
of which holders of such Preferred Stock are entitled to notice or (ii) any
election on the part of the Company to redeem any such shares of Preferred
Stock, the Depositary shall in each such instance fix a record date (which shall
be the same date as the record date fixed by the Company with respect to the
Preferred Stock, as the case may be) for the determination of the holders of
Receipts who shall be entitled (x) to receive such dividend, distribution,
rights, preferences or privileges or the
15
net proceeds of the sale thereof, or (y) to give instructions for the exercise
of voting rights at any such meeting or to receive notice of such meeting or
redemption.
Section 4.5 Voting Rights. Upon receipt of notice of any meeting at which
-------------
the holders of deposited Preferred Stock are entitled to vote, the Depositary,
as soon as practicable thereafter, shall 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, to instruct the Depositary as to the exercise of the voting
rights pertaining to the Preferred 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 (which shall be the same as the record date for the Preferred
Stock), the Depositary shall vote or cause to be voted the Preferred Stock
represented by the Depositary Shares evidenced by such Receipt in accordance
with the instructions set forth in such request. Each share of Preferred Stock
is entitled to [ ] votes and, accordingly, each Depositary Share is entitled to
one vote. 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 Preferred Stock or cause such Preferred 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 Preferred Stock represented by the
Depositary Shares evidenced by such Receipt. The Depositary shall not be
required to exercise discretion in voting any Preferred Stock represented by the
Depositary Shares evidenced by such Receipt.
Section 4.6 Changes Affecting Preferred Stock and Reclassifications,
--------------------------------------------------------
Recapitalization, etc. Upon any change in the liquidation preference, or upon
----------------------
any split-up, combination or any other reclassification of Preferred Stock, or
upon any recapitalization, reorganization, merger or consolidation affecting the
Company or to which it is a party or sale of all or substantially all of the
Company's assets, the Depositary shall, upon the instructions of the Company,
(i) make such adjustments in the fraction of an interest represented by one
Depositary Share in one share of Preferred Stock, purchase price per Depositary
Share to the redemption price or purchase price, as the case may be, of a share
of Preferred Stock, in each case as may be required to fully reflect the effects
of such change in liquidation preference, split-up, combination or other
reclassification of Preferred Stock, or of such recapitalization,
reorganization, merger, consolidation or sale and (ii) treat any shares of stock
or other securities or property (including cash) that shall be received by the
Depositary in exchange for or upon conversion of or in respect of the Preferred
Stock as new deposited property under this Deposit Agreement, and Receipts then
outstanding shall thenceforth represent the proportionate interests of holders
thereof in the new deposited property so received in exchange for or upon
conversion or in respect of such Preferred Stock. In any such case the
Depositary may, in its discretion, with the approval of the Company, execute and
deliver additional Receipts, or may call for the surrender of all outstanding
Receipts to be exchanged for new Receipts specifically describing such new
deposited property. Anything to the contrary herein notwithstanding, holders of
Receipts shall have the right from and after the effective date of any such
change in liquidation preference, split-up, combination or other
reclassification of the Preferred Stock or any such recapitalization,
reorganization, merger or consolidation or sale of all or substantially all the
assets of the Company, to surrender such Receipts to the Depositary with
instructions to convert, exchange or
16
surrender the Preferred Stock represented thereby only into or for, as the case
may be, the kind and amount of shares of stock and other securities and property
and cash into which the deposited Preferred Stock evidenced by such Receipts
might have been converted or for which such Preferred Stock might have been
exchanged or surrendered immediately prior to the effective date of such
transaction. The Company shall cause effective provision to be made in the
charter or other governing instruments of the resulting, surviving or transferee
entity (if other than the Company) for protection of such rights as may be
applicable upon exchange of the deposited Preferred Stock for securities or
property or cash of the surviving entity in connection with the transactions set
forth above. The Company shall cause any such surviving entity (if other than
the Company) expressly to assume the obligations of the Company hereunder, by
written instrument or agreement executed and delivered on or prior to the
effective date of such transaction.
Section 4.7 Inspection of Reports. The Depositary shall make available
---------------------
for inspection by holders of Receipts at the Corporate Office, the New York
Office and at such other places as it may from time to time deem advisable
during normal business hours any reports and communications received from the
Company that are both received by the Depositary as the holder of deposited
Preferred Stock and made generally available to the holders of the Preferred
Stock. In addition, the Depositary shall transmit certain notices and reports to
the holders of Receipts as provided in Section 5.5.
Section 4.8 List of Holders of Receipts. Promptly upon request from time
---------------------------
to time by the Company, the Depositary shall furnish to the Company a list, as
of a recent date specified by the Company, of the names, addresses and holdings
of Depositary Shares of all persons in whose names Receipts are registered on
the books of the Depositary.
Section 4.9 Tax and Regulatory Compliance. The Depositary shall be
-----------------------------
responsible for (i) preparation and mailing of Internal Revenue Service Forms
1099 for all open and closed accounts, (ii) foreign tax withholding, (iii) back-
up withholding (or any withholding as may be required at the then applicable
rate) on dividends paid and other distributions made to eligible holders of
Receipts, (iv) mailing Internal Revenue Service Forms W-9 to new holders of
Receipts without a certified taxpayer identification number, (v) processing
certified Internal Revenue Service Forms W-9, (vi) preparation and filing of
state information returns and (vii) escheatment services.
Section 4.10 Withholding. Notwithstanding any other provision of this
-----------
Deposit Agreement, in the event that the Depositary determines that any
distribution in property is subject to any tax which the Depositary is obligated
by law to withhold, the Depositary may dispose of all or a portion of such
property in such amounts and in such manner as the Depositary deems necessary
and practicable to pay such taxes, by public or private sale, and the Depositary
shall distribute the net proceeds of any such sale or the balance of any such
property after deduction of such taxes to the holders of Receipts entitled
thereto in proportion to the number of Depositary Shares held by them
respectively.
17
ARTICLE V
THE DEPOSITARY AND THE COMPANY
Section 5.1 Maintenance of Offices, Agencies and Transfer Books by the
----------------------------------------------------------
Depositary and the Registrar. The Depositary shall maintain (i) at the New York
----------------------------
Office facilities for the execution and delivery, transfer, surrender and
exchange, split-up, combination[, exchange] [, conversion] [, repurchase] and
redemption of Receipts (and payment of amounts due upon such redemption[ or
repurchase]) and for other payments and distributions in respect of the
Depositary Shares and the Receipts, and deposit and withdrawal of Preferred
Stock and (ii) at the Corporate Office and at the offices of the Depositary's
Agents, if any, facilities for the execution and delivery, transfer, surrender
and exchange, split-up, combination and redemption of Receipts (and payment of
amounts due upon such redemption) and for other payments and distributions in
respect of the Depositary Shares and the Receipts and deposit and withdrawal of
Preferred Stock, all in accordance with the provisions of this Deposit
Agreement. Without limitation to the foregoing provisions of this Section 5.1,
the Company shall at all times maintain a paying agent, Transfer Agent and
Registrar for the Receipts and the Preferred Stock in the Borough of Manhattan,
The City of New York.
The Depositary shall keep books at the Corporate Office for the
registration and transfer of Receipts, which books at all reasonable times shall
be open for inspection by the record holders of Receipts. The Depositary may
close such books, at any time or from time to time, when deemed expedient by it
in connection with the performance of its duties hereunder.
If the Receipts or the Depositary Shares evidenced thereby or the Preferred
Stock represented by such Depositary Shares shall be listed on the New York
Stock Exchange, Inc. or any other stock exchange, the Depositary shall, with the
approval of the Company, appoint a Registrar (acceptable to the Company) for
registration of such Receipts or Depositary Shares in accordance with the
requirements of such exchange. Such Registrar (which may be the Depositary if
so permitted by the requirements of such exchange) may be removed and a
substitute Registrar appointed by the Depositary upon the request or with the
approval of the Company. If the Receipts, such Depositary Shares or such
Preferred Stock are listed on one or more other stock exchanges, the Depositary
will, at the request and expense of the Company, arrange such facilities for the
delivery, transfer, surrender, redemption, purchase and exchange of such
Receipts, such Depositary Shares or such Preferred 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, any
-------------------------------------------------
Depositary's Agent, any 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, any Depositary's
Agent or any Registrar, by reason of any provision, present or future, of the
Certificate of Incorporation (including the Certificate of Designation) or, in
the case of the Company, the Depositary, any Depositary's Agent or any
Registrar, by reason of any act of God or war or other circumstance beyond the
control of the relevant party, the Depositary, any Depositary's Agent, any
Registrar or the Company shall be prevented or forbidden from doing or
18
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,
any Registrar or the Company incur any liability to any holder of a Receipt 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 by reason of any exercise of, or failure to
exercise, any discretion provided for in this Deposit Agreement.
Section 5.3 Obligations of the Depositary, the Depositary's Agents, the
-----------------------------------------------------------
Registrar and the Company. Neither the Depositary, any Depositary's Agent, any
-------------------------
Registrar nor the Company assumes any obligation or shall be subject to any
liability under this Deposit Agreement or any Receipt to holders of Receipts
other than from acts or omissions arising out of conduct constituting bad faith,
gross negligence or willful misconduct in the performance of such duties as are
specifically set forth in this Deposit Agreement.
Neither the Depositary, any Depositary's Agent, any Registrar nor the
Company shall be under any obligation to appear in, prosecute or defend any
action, suit or other proceeding with respect to the deposited Preferred Stock,
Depositary Shares or Receipts that in its reasonable 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 reasonably required.
Neither the Depositary, any Depositary's Agent, any Registrar nor the
Company shall be liable for any action or any failure to act by it in reliance
upon the written advice of legal counsel or accountants, or information provided
by any person presenting Preferred Stock for deposit, any holder of a Receipt or
any other person believed by it in good faith to be competent to give such
information. The Depositary, any Depositary's Agent, any Registrar and the
Company may each rely and shall each be protected in acting upon any written
notice, request, direction or other document believed by it in good faith to be
genuine and to have been signed or presented by the proper party or parties.
In the event the Depositary shall receive conflicting claims, requests or
instructions from any holders of Receipts, on the one hand, and the Company, on
the other hand, the Depositary shall be entitled to act on such claims, requests
or instructions received from the Company and shall be entitled to the full
indemnification set forth in Section 5.6 hereof in connection with any action so
taken.
The Depositary shall not be responsible for any failure to carry out any
instruction to vote any of the deposited Preferred Stock or for the manner or
effect of any such vote made, as long as any such action or non-action is in
good faith and does not result from gross negligence or willful misconduct of
the Depositary. The Depositary undertakes, and any Registrar shall be required
to undertake, to perform such duties and only such duties as are specifically
set forth in this Deposit Agreement, and no implied covenants or obligations
shall be read into this Agreement against the Depositary or any Registrar.
The Depositary, its parent, affiliates, or subsidiaries, any Depositary's
Agent, and any Registrar may own, buy, sell or deal in any class of securities
of the Company and its affiliates and in Receipts or Depositary Shares or become
pecuniarily interested in any transaction in which the Company or its affiliates
may be interested or contract with or lend money to or
19
otherwise act as fully or as freely as if it were not the Depositary or the
Depositary's Agent hereunder. The Depositary may also act as transfer agent or
registrar of any of the securities of the Company and its affiliates or act in
any other capacity for the Company or its affiliates.
It is intended that neither the Depositary nor any Depositary's Agent shall
be deemed to be an "issuer" of the securities under the federal securities laws
or applicable state securities laws, it being expressly understood and agreed
that the Depositary and any Depositary's Agent are acting only in a ministerial
capacity as Depositary for the deposited Preferred Stock; 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 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 deposited Preferred Stock,
the Depositary Shares, the Receipts (except its signature or countersignature
thereon) or any instruments referred to herein or therein, or as to the
correctness of any statement made herein or therein; provided, however, that the
Depositary is responsible for its representations in this Deposit Agreement and
for the validity of any action taken or required to be taken by the Depositary
in connection with this Deposit Agreement.
The Company agrees that it will register the deposited Preferred Stock and
the Depositary Shares in accordance with the applicable securities laws.
Section 5.4 Resignation and Removal of the Depositary; Appointment of
---------------------------------------------------------
Successor Depositary. The Depositary may at any time resign as Depositary
--------------------
hereunder by notice of its election to do so delivered to the Company, such
resignation to take effect upon the appointment of a successor depositary and
its acceptance of such appointment as hereinafter provided.
The Depositary may at any time be removed by the Company by notice of such
removal delivered to the Depositary, such removal to take effect upon the
appointment of a successor depositary and its acceptance of such appointment as
hereinafter provided.
In case at any time the Depositary acting hereunder shall resign or be
removed, the Company shall, within 60 days after the delivery of the notice of
resignation or removal, as the case may be, appoint a successor depositary,
which shall be a bank or trust company having its principal office in the United
States of America and having a combined capital and surplus of at least
$50,000,000. If a successor depositary shall not have been appointed in 60
days, the resigning 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 pursuant to which it shall agree to become the
depositary under this Agreement, 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
20
deliver all rights, title and interest in the deposited Preferred Stock and any
moneys or property held hereunder to such successor and shall deliver to such
successor a list of the record holders of all outstanding Receipts that may be
in the possession of the predecessor. Any successor depositary shall promptly
mail notice of its appointment to the record holders of Receipts whose names and
addresses have been furnished to such successor Depositary.
Any corporation, association or other entity 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 Notices, Reports and Documents. The Company agrees that it
------------------------------
will deliver to the Depositary, and the Depositary will, promptly after receipt
thereof, transmit to the record holders of Receipts, in each case at the
addresses 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 Preferred Stock, the Depositary Shares or the
Receipts are included for quotation or listed or by the Certificate of
Incorporation, the Company's by-laws or the Certificate of Designation to be
furnished by the Company to holders of the deposited Preferred Stock and, if
requested by the holder of any Receipt, a copy of this Deposit Agreement, the
form of Receipt, the Certificate of Designation and the form of Preferred Stock
certificate. 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 Indemnification by the Company. The Company agrees to
------------------------------
indemnify the Depositary, any Depositary's Agent and any Registrar against, and
hold each of them harmless from, any liability, costs and expenses (including
reasonable attorneys' fees) that may arise out of, or in connection with, its
acting as Depositary, Depositary's Agent or Registrar, respectively, under this
Deposit Agreement and the Receipts, except for any liability arising out of the
willful misconduct, gross negligence or bad faith on the part of any such person
or persons. The obligations of the Company set forth in this Section 5.6 shall
survive any succession of any Depositary, Registrar or Depositary's Agent or
termination of this Deposit Agreement.
Section 5.7 Fees, Charges and Expenses. No charges or expenses of the
--------------------------
Depositary or any Depositary's Agent hereunder shall be payable by any person,
except as provided in this Section 5.7. The Company shall pay all transfer and
other taxes and governmental charges arising solely from the existence of this
Deposit Agreement. The Company shall also pay all fees and expenses of the
Depositary in connection with the deposit of the Preferred Stock and the initial
issuance of the Depositary Shares evidenced by the Receipts, any redemption of
the Preferred Stock at the option of the Company, all withdrawals of the
Preferred Stock by holders of Depositary Shares, and in connection with all
other services provided, and all other duties performed, by the Depositary under
this Agreement. If a holder of Receipts requests the Depositary to perform
duties not required under this Deposit Agreement, the Depositary shall notify
the holder of the cost of the performance of such duties prior to the
performance thereof. Such holder will be liable for the charges and expenses
related to such performance. All other
21
fees and expenses of the Depositary and any Depositary's Agent hereunder and of
any Registrar (including, in each case, fees and expenses of counsel) incident
to the performance of their respective obligations hereunder will be promptly
paid as agreed between the Depositary and the Company from time to time. The
amount of the fees and expenses of the Depositary, any Depositary's Agent and
any Registrar which are payable by the Company pursuant to this Section 5.7
shall be as agreed upon by the Company and the Depositary, such Depositary's
Agent or such Registrar, as the case may be, from time to time. The Depositary
shall present its statement for fees and expenses to the Company every month or
at such other intervals as the Company and the Depositary may agree.
ARTICLE VI
AMENDMENT AND TERMINATION
Section 6.1 Amendment. The Receipts and any provision of this Deposit
---------
Agreement (including any provision of the form of Receipt attached as Exhibit A
hereto) 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 which (i) shall materially
and adversely alter the rights of the holders of Receipts or (ii) would be
materially and adversely inconsistent with the rights granted to the holders of
the Preferred Stock pursuant to the Certificate of Designation shall be
effective unless such amendment shall have been approved by the holders of
Receipts evidencing at least a majority of the Depositary Shares then
outstanding (or such greater proportion as may be required by the rules of any
securities exchange on which the Depositary Shares may be listed). In no event
shall any amendment impair the right, subject to the provisions of Section 2.6,
Section 2.7 and Article III hereof, of any holder of any Depositary Shares to
surrender the Receipt evidencing such Depositary Shares with instructions to the
Depositary to deliver to the holder the deposited Preferred Stock, together with
all money and other property, if any, represented thereby, except in order to
comply with mandatory provisions of applicable law. Every holder of an
outstanding Receipt at the time any such amendment becomes effective shall be
deemed, by continuing to hold such Receipt, to consent and agree to such
amendment and to be bound by this Deposit Agreement as amended thereby.
Section 6.2 Termination. This Deposit Agreement may be terminated by the
-----------
Company upon not less than 60 days' prior notice to the Depositary if the
holders of Receipts evidencing at least a majority of the outstanding Depositary
Shares consent to such termination, whereupon the Depositary shall deliver or
make available to each holder of a Receipt, upon surrender of the Receipt held
by such holder, such number of whole or fractional shares of deposited Preferred
Stock as are represented by the Depositary Shares evidenced by such Receipt,
together with any cash or other property held by the Depositary in respect of
such Receipt. This Deposit Agreement will automatically terminate if (i) all
outstanding Depositary Shares shall have been redeemed pursuant to Section
2.3[,] [or] (ii) [all outstanding shares of Preferred Stock shall have been
converted into[or exchanged for] shares of Common Stock or other securities of
the Company pursuant to Section 2.10, as the case may be, or (iii)] there shall
have been made a final distribution in respect of the deposited Preferred Stock
in connection with any liquidation, dissolution or winding up of the Company and
such distribution shall have been distributed to the holders of Receipts
entitled thereto.
22
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
Section 5.6 and Section 5.7.
ARTICLE VII
MISCELLANEOUS
Section 7.1 Counterparts. This Deposit Agreement may be executed in any
------------
number of counterparts, and by each of the parties hereto on separate
counterparts, each of which counterparts, when so executed and delivered, shall
be deemed an original, but all such counterparts taken together shall constitute
one and the same instrument. 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.
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 shall be or
become invalid, illegal or unenforceable in any respect, the validity, legality
and enforceability of the remaining provisions contained herein or therein shall
in no way be affected, prejudiced or disturbed thereby.
Section 7.4 Notices. Any and all notices to be given to the Company
-------
hereunder or under the Receipts shall be in writing and shall be deemed to have
been duly given if personally delivered or sent by mail, by overnight courier,
or by telegram or facsimile transmission confirmed by letter, addressed to the
Company at:
Bay View Capital Corporation
0000 Xxxxxxx Xxxxx
Xxx Xxxxx, Xxxxxxxxxx 00000
Attention: Xxxxxx X. Xxxx
Telephone No.: (000) 000-0000
or at any other address of which the Company shall have notified the Depositary
in writing.
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, by overnight courier, or by telegram or telex or
telecopier confirmed by letter, addressed to the Depositary at the Corporate
Office.
Any notices given to any record holder of a Receipt shall be in writing and
shall be deemed to have been duly given if personally delivered or sent by mail,
by overnight courier, 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 at its address provided to the Depositary
by the Company or, if such holder shall have filed with the Depositary in a
23
timely manner a written request that notices intended for such person be mailed
or delivered to some other address, at the address designated in such request.
Delivery of a notice sent by mail or by telegram or telex or telecopier
shall be deemed to be effected at the time when a duly addressed letter
containing the same (or a confirmation thereof 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 from time to time
-------------------
appoint Depositary's Agents to act in any respect for the Depositary for the
purposes of this Deposit Agreement and may at any time appoint additional
Depositary's Agents and vary or terminate the appointment of such Depositary's
Agents. The Depositary will notify the Company of any such action, except that
no such notice shall be required if the Depositary's Agent in question is [ ].
Section 7.6 Holders of Receipts Are Parties. 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 hereof and of the Receipts by
acceptance of delivery thereof.
Section 7.7 Governing Law. This Deposit Agreement and the Receipts and
-------------
all rights hereunder and thereunder and provisions hereof and thereof shall be
governed by, and construed in accordance with, the law of the State of New York
applicable to agreements made and to be performed in said State.
Section 7.8 Inspection of Deposit Agreement and Certificate of
--------------------------------------------------
Designation. Copies of this Deposit Agreement and the Certificate of Designation
-----------
shall be filed with the Depositary and the Depositary's Agents and shall be open
to inspection during business hours at the Corporate Office, the New York Office
and the respective offices of the Depositary's Agents, if any, by any holder of
any Receipt.
Section 7.9 Headings. The headings of articles and sections in this
--------
Deposit Agreement (including Exhibit A hereto) and in the Receipts have been
inserted for convenience only and are not to be regarded as a part of this
Deposit Agreement or the Receipts or to have any bearing upon the meaning or
interpretation of any provision contained herein or in the Receipts.
24
IN WITNESS WHEREOF, Bay View Capital Corporation and [Name of Depositary]
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.
BAY VIEW CAPITAL CORPORATION
By: ___________________________________
Name:
Title:
[NAME OF DEPOSITARY]
By: ___________________________________
Name:
Title:
25
EXHIBIT A
Form of Receipt
26
[FORM OF FACE OF RECEIPT]
The Company (as defined herein) will furnish to any holder hereof who so
requests and any other stockholder who so requests, without charge, the powers,
designations, preferences and relative, participating, optional or other special
rights of each class of stock or series thereof and the qualifications,
limitations or restrictions of such preferences and/or rights. The Company will
also furnish without charge to each holder hereof who so requests, without
charge, a copy of the Deposit Agreement (as defined below) and a copy of the
Certificate of Designation with respect to the Stock (as defined below) of the
Company. Any such request may be made to the Secretary of the Company at its
principal office or to the Depositary (as defined below).
DRC- This Depositary Receipt is transferable in
[City, State of Corporate Office] or New
York, New York.
See reverse for certain definitions.
DEPOSITARY RECEIPT FOR DEPOSITARY SHARES CUSIP
EACH REPRESENTING [ ]th OF A SHARE OF
[ ]% SERIES [ ][CUMULATIVE][REDEEMABLE][CONVERTIBLE][EXCHANGEABLE] PREFERRED
STOCK
OF
BAY VIEW CAPITAL CORPORATION
(a Delaware corporation)
[Name of Depositary], as Depositary (the "Depositary", which term includes
any successor depositary under the Deposit Agreement referred to below), hereby
certifies that ____________________________________ is the registered owner of
____________ DEPOSITARY SHARES ("Depositary Shares"), each Depositary Share
representing [ ]th of one share of [ ]% Series [ ][Cumulative][Redeemable]
[Convertible][Exchangeable] Preferred Stock, no par value per share (the
"Stock"), of Bay View Capital Corporation, a Delaware corporation (the
"Company", which term, as used herein, includes it successors), on deposit with
the Depositary, subject to the terms and entitled to the benefits of the Deposit
Agreement dated as of [ ] (as the same may be amended or supplemented from time
to time, the "Deposit Agreement") among the Company, the Depositary and the
holders from time to time of depositary receipts ("Receipts") issued thereunder.
By accepting this Receipt, the holder hereof becomes a party to and agrees to be
bound by all the terms and conditions of the Deposit Agreement. This Receipt
shall not be valid or obligatory for any purpose or entitled to any benefits
under the Deposit Agreement unless it shall have been executed by the Depositary
by the manual signature of a duly authorized signatory of the Depositary,
provided that, if a Registrar in respect of the Receipts (other than the
Depositary) shall have been appointed, then this Receipt may be signed by the
facsimile signature of a duly authorized signatory of the Depository so long as
it is countersigned by the manual signature of a duly authorized signatory of
such Registrar.
This Receipt is continued on the reverse hereof and the additional
provisions therein set forth (including, without limitation, those relating to
redemption) for all purposes have the same effect as if set forth at this place.
Dated:
[NAME OF DEPOSITARY],
as Depositary, Transfer Agent and Registrar
By: ___________________________
Authorized Signatory
27
[FORM OF REVERSE OF RECEIPT]
BAY VIEW CAPITAL CORPORATION
1. THE DEPOSIT AGREEMENT. Receipts, of which this Receipt is one, are
made available upon the terms and conditions set forth in the Deposit Agreement
(as defined on the face hereof). The Deposit Agreement (copies of which are on
file at the Corporate Office of the Depositary 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 in this summary of the Deposit Agreement shall have the meanings
ascribed thereto in the Deposit Agreement.
3. REDEMPTION OF STOCK. Whenever the Company shall elect to redeem shares
of Stock, it shall (unless otherwise agreed in writing with the Depositary) give
the Depositary not less than 60 days' notice of the date of such proposed
redemption and of the number of such shares of Stock held by the Depositary to
be redeemed and the applicable redemption price. The Depositary shall mail,
first-class postage prepaid, notice furnished by the Company of the redemption
of Stock and the proposed simultaneous redemption of Depositary Shares
representing the Stock to be redeemed, not less than 30 and not more than 60
days prior to the date fixed for redemption of such Stock and Depositary Shares,
to the holders of record at the close of business on the record date fixed for
such redemption pursuant to the Deposit Agreement of the Receipts evidencing the
Depositary Shares to be so redeemed, at the addresses of such holders as the
same appear on the records of the Depositary. Any such notice shall also be
published in the manner specified in the Deposit Agreement. On the date of such
redemption, the Depositary shall redeem the number of Depositary Shares
representing such Stock so called for redemption; provided, that the Company
shall then have paid in full to the Depositary the cash redemption price of the
Stock to be redeemed (including any accrued and unpaid dividends (including,
without limitation, accumulated dividends, if any, for prior dividend periods)
to the date of redemption). If fewer than all the outstanding Depositary Shares
are to be redeemed, the Depositary Shares to be redeemed shall be selected pro
rata or by lot or by any other equitable method determined by the Company.
Notice having been mailed as aforesaid, from and after the redemption date
(unless the Company shall have failed to redeem the shares of Stock to be
redeemed by it as set forth in the notice of redemption and to pay in full the
redemption price therefor (including accrued and unpaid dividends (including
accumulated dividends, if any, for prior dividend periods)), all dividends in
respect of the shares of Stock called for redemption shall cease to accrue, the
Depositary Shares called for redemption shall be deemed no longer to be
outstanding and all rights of the holders of Receipts evidencing such Depositary
Shares (except the right to receive the redemption price together with accrued
and unpaid dividends, if any, thereon (including, without limitation,
accumulated dividends, if any, for prior dividend periods) and any money or
other property to which holders of such Receipts were entitled upon
1
such redemption) shall, to the extent of such Depositary Shares, cease and
terminate. Upon surrender in accordance with said notice of the Receipts
evidencing such Depositary Shares (properly endorsed or assigned for transfer,
if the Depositary shall so require), such Depositary Shares shall be redeemed at
a cash redemption price per Depositary Share of $[ ], plus [ ]th of the accrued
and unpaid dividends (including, without limitation, accumulated dividends, if
any, for prior dividend periods), if any, payable on one share of Stock upon
such redemption, plus [ ]th of any other money and other property payable in
respect of one such share of Stock upon such redemption. The foregoing is
subject to the further terms and conditions of the Certificate of Designation
and the Deposit Agreement. If fewer than all of the Depositary Shares evidenced
by this Receipt are called for redemption, the Depositary will deliver to the
holder of this Receipt upon its surrender to the Depositary, together with the
cash redemption price, a new Receipt evidencing the Depositary Shares evidenced
by such prior Receipt and not called for redemption.
[Add Conversion/Exchange provision, if applicable]
4. SURRENDER OF RECEIPTS AND WITHDRAWAL OF STOCK. Upon surrender of this
Receipt to the Depositary at the Corporate Office or the New York Office or at
such other office as the Depositary may designate, and subject to the provisions
of the Deposit Agreement, the holder hereof is entitled to withdraw, and to
obtain delivery, without unreasonable delay, to or upon the order of such
holder, any or all of the Stock (in whole or fractional shares of Stock) and all
money and other property, if any, represented by the Depositary Shares evidenced
by this Receipt; provided, however, that, in the event this Receipt shall
evidence a number of Depositary Shares in excess of the number of Depositary
Shares representing the number of whole or fractional shares of deposited Stock
to be withdrawn, the Depositary shall at the same time, in addition to such
number of whole or fractional shares of Stock and such money and other property,
if any, to be withdrawn, deliver to or upon the order of such holder, a new
Receipt or Receipts evidencing such excess number of Depositary Shares.
5. TRANSFERS, SPLIT-UPS, COMBINATIONS. Subject to the Deposit Agreement,
this Receipt is transferable on the books of the Depositary upon surrender of
this Receipt by the holder hereof in person or by a duly authorized attorney to
the Depositary, properly endorsed or accompanied by a properly executed
instrument of transfer or endorsement, together with evidence of the payment of
any transfer taxes as may be required by law. Upon such surrender 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. Subject to the terms of the Deposit Agreement, this Receipt may be
split into other Receipts or combined with other Receipts into one Receipt
evidencing the same aggregate number of Depositary Shares evidenced by the
Receipt or Receipts surrendered; provided, however, that the Depositary shall
not issue any Receipt evidencing a fractional Depositary Share.
6. CONDITIONS TO SIGNING AND DELIVERY, TRANSFER, ETC. OF RECEIPTS. As a
condition precedent to the execution and delivery, transfer, split-up,
combination, surrender or exchange of this Receipt, 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 transfer tax or similar governmental charge with respect thereto
(including any such tax or charge with respect to the Stock being deposited or
withdrawn); (ii) production of proof
2
satisfactory to it as to the identity and genuineness of any signature (or the
authority of any signature); and (iii) compliance with such reasonable
regulations, if any, as the Depositary or the Company may establish consistent
with the provisions of the Deposit Agreement or as may be required by any
securities exchange upon which the deposited Stock, the Depositary Shares or the
Receipts may be included for quotation or listed.
7. SUSPENSION OF DELIVERY, TRANSFER, ETC. The deposit of Stock may be
refused, the delivery of this Receipt against Stock may be suspended, the
transfer of Receipts may be refused, and the transfer, split-up, combination,
surrender or exchange of this Receipt may be suspended (i) during any period
when the register of stockholders of the Company is closed or (ii) if any such
action is deemed reasonably 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.
8. AMENDMENT. The Receipts and any provision of the Deposit Agreement
(including any provision of the form of Receipt attached as an exhibit thereto)
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 which (i) shall materially
and adversely alter the rights of holders of Receipts or (ii) would be
materially and adversely inconsistent with the rights granted to the holders of
the Stock pursuant to the Certificate of Designation shall be effective unless
such amendment shall have been approved by the holders of at least two-thirds of
the Depositary Shares evidenced by Receipts then outstanding. The holder of
this Receipt at the time any such amendment becomes effective shall be deemed,
by continuing to hold this Receipt, to consent and agree to such amendment and
to be bound by the Deposit Agreement as amended thereby. In no event shall any
amendment impair the right, as provided in 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 deposited Stock
and all money and other property, if any, represented thereby, except in order
to comply with mandatory provisions of applicable law.
9. CHARGES AND EXPENSES. The Company will pay all transfer and other
taxes and governmental charges arising solely from the existence of the
depositary arrangement, except such charges as are expressly provided in the
Deposit Agreement to be at the expense of holders of Receipts.
10. TITLE TO RECEIPTS. Title to this Receipt (and to the Depositary
Shares evidenced hereby), when properly endorsed or accompanied by a properly
executed instrument of transfer or endorsement, is transferable by delivery with
the same effect as in the case of a negotiable instrument; provided, however,
that until this Receipt is transferred on the books of the Depositary as
provided in the Deposit Agreement, 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.
11. DIVIDENDS AND DISTRIBUTIONS. Whenever the Depositary shall receive
any cash dividend or other cash distribution on the deposited Stock, the
Depositary shall, subject to the
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provisions of the Deposit Agreement, distribute to record holders of Receipts
evidencing Depositary Shares representing the deposited Stock on the record date
fixed pursuant to the Deposit Agreement such amounts of such sums as are, as
nearly as practicable, in proportion to the respective numbers of such
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 shall withhold from any cash dividend or other cash distribution in
respect of the Stock represented by the Depositary Shares which are evidenced by
the Receipts held by any holder an amount on account of taxes, the amount made
available for distribution or distributed in respect of Depositary Shares
evidenced by such Receipts shall be reduced accordingly. The Depositary shall
distribute or make available for distribution, as the case may be, only such
amount, however, as can be distributed without attributing to any holder of
Receipts 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. Notwithstanding the
foregoing, if less than all of the outstanding Depositary Shares are to be
redeemed and the Depositary Shares to be so redeemed are not selected pro rata,
then only the record holders of the Receipts evidencing the Depositary Shares
selected for redemption will be entitled to receive the cash redemption price
therefor or any other amounts payable upon such redemption.
12. SUBSCRIPTION RIGHTS, PREFERENCES OR PRIVILEGES. If the Company shall
at any time offer or cause to be offered to the persons in whose names deposited
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 (including by the issue to such
record holders of warrants representing such rights, preferences and
privileges).
13. NOTICE OF DISTRIBUTIONS, FIXING OF RECORD DATE. Whenever any cash
dividend or other cash distribution shall become payable, any distribution other
than cash shall be made, or any rights, preferences or privileges shall at any
time be offered with respect to the deposited Stock, or whenever the Depositary
shall receive notice of (i) any meeting at which holders of such Stock are
entitled to vote or of which holders of such Stock are entitled to notice or
(ii) any election on the part of the Company to redeem any such shares of Stock,
the Depositary shall in each such instance fix a record date (which shall be the
same date as the record date fixed by the Company with respect to the Stock) for
the determination of the holders of Receipts who shall be entitled (x) to
receive such dividend, distribution, rights, preferences or privileges or the
net proceeds of the sale thereof, or (y) to give instructions for the exercise
of voting rights at any such meeting or to receive notice of such meeting or
whose Depositary Shares are to be so redeemed.
14. VOTING RIGHTS. Upon receipt of notice of any meeting at which the
holders of deposited Stock are entitled to vote, the Depositary, as soon as
practicable thereafter, shall 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 date fixed as
provided in the Deposit Agreement will be entitled, subject to any applicable
provisions of law, to instruct the
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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 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. The
Depositary shall not be required to exercise discretion in voting the Stock
represented by the Depositary Shares evidenced by this Receipt.
15. REPORTS, INSPECTION OF TRANSFER BOOKS. The Depositary shall transmit
to the record holders of Receipts at the addresses 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 included for quotation or
listed or by the Articles of Incorporation, the Company's by-laws or the
Certificate of Designation to be furnished by the Company to holders of the
deposited Stock that are received by the Depositary from the Company. The
Depositary shall keep books at the Corporate Office and the New York 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.
16. LIABILITY OF THE DEPOSITARY, THE DEPOSITARY'S AGENTS, THE REGISTRAR
AND THE COMPANY. Neither the Depositary, any Depositary's Agent, any 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, any Depositary's Agent or any Registrar, by reason of
any provision, present or future, of the Articles of Incorporation or the
Certificate of Designation or, in the case of the Company, the Depositary, any
Depositary's Agent or any Registrar, 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, any Registrar or the Company shall be prevented or forbidden
from doing or performing any act or thing that the terms of the Deposit
Agreement provide shall be done or performed; nor shall the Depositary, any
Depositary's Agent, any Registrar or the Company incur any liability to any
holder of this Receipt 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 by reason of any
exercise of, or failure to exercise, any discretion provided for in the Deposit
Agreement.
17. OBLIGATIONS OF THE DEPOSITARY'S AGENTS, THE REGISTRAR AND THE COMPANY.
Neither the Depositary, any Depositary's Agent, any Registrar nor the Company
assumes any obligation or shall be subject to any liability under the Deposit
Agreement or this Receipt to the holder hereof other than from acts or omissions
arising out of conduct constituting bad faith, gross negligence or willful
misconduct in the performance of such duties as are specifically set forth in
the Deposit Agreement.
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Neither the Depositary, any Depositary's Agent, any Registrar nor the
Company shall be under any obligation to appear in, prosecute or defend any
action, suit or other proceeding with respect to the deposited Stock, Depositary
Shares or Receipts that in its reasonable 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 reasonably required.
Neither the Depositary, any Depositary's Agent, any Registrar nor the
Company shall be liable for any action or any failure to act by it in reliance
upon the written advice of legal counsel or accountants, or information provided
by 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
information. The Depositary, any Depositary's Agent, any Registrar and the
Company may each rely and shall each be protected in acting upon any written
notice, request, direction or other document believed by it in good faith to be
genuine and to have been signed or presented by the proper party or parties.
18. TERMINATION OF DEPOSIT AGREEMENT. The Deposit Agreement may be
terminated by the Company upon not less than 60 days' prior notice to the
Depositary if the holders of Receipts evidencing a majority of the outstanding
Depositary Shares consent to such termination, whereupon the Depositary shall
deliver or make available to each holder of a Receipt, upon surrender of the
Receipt held by such holder, such number of whole or fractional shares of
deposited Stock as are represented by the Depositary Shares evidenced by such
Receipt, together with any cash or other property held by the Depositary in
respect of such Receipt. Upon the termination of the Deposit Agreement, the
Company shall be discharged of all obligations thereunder except for its
obligations to the Depositary, any Depositary's Agent and any Registrar under
Sections 5.6 and 5.7 of the Deposit Agreement.
19. 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 applicable to
agreements made and to be performed in said State.
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The following abbreviations when used in the instructions on the face of
this Receipt shall be construed as though they were written out in full
according to applicable laws or regulations.
TEN COM - as tenants in common UNIF GIFT MIN ACT - ________________ Custodian _______________
(Cust) (Minor)
TEN ENT - as tenants by the entireties
Under Uniform Gifts to Minors Act
JT TEN - as joint tenants with right
of survivorship and not as
tenants in common ____________________________
(State)
Additional abbreviations may also be used though not in the above list.
ASSIGNMENT
----------
For value received, _______________________________________________________
hereby sell(s), assign(s) and transfers) unto
PLEASE INSERT SOCIAL SECURITY OR OTHER IDENTIFYING NUMBER OF ASSIGNEE
Please Print Or Typewrite Name And Address Including Postal Zip Code Of Assignee
Depositary Shares represented by the within Receipt, and do(es) hereby
rrevocably constitute and appoint Attorney to transfer the said Depositary
Shares on the books of the within named Depositary with full power of
substitution in the premises.
Dated: ____________ Signed:_____________________________________
NOTICE: THE SIGNATURE TO THE ASSIGNMENT MUST
CORRESPOND WITH THE NAME AS WRITTEN
UPON THE FACE OF THIS RECEIPT IN EVERY
PARTICULAR, WITHOUT ALTERATION OR
ENLARGEMENT OR ANY CHANGE
WHATEVER
Signature(s) Guaranteed:
___________________________________________
THE SIGNATURE(S) SHOULD BE GUARANTEED BY AN
ELIGIBLE GUARANTOR INSTITUTION (BANKS,
STOCKBROKERS, SAVINGS AND LOAN
ASSOCIATIONS AND CREDIT UNIONS) WITH
MEMBERSHIP IN AN APPROVED SIGNATURE
GUARANTEE MEDALLION PROGRAM, PURSUANT TO
S.E.C. RULE 17Ad-15.
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