FORD MOTOR COMPANY
FIRST CHICAGO TRUST COMPANY OF NEW YORK, As Depositary
AND
THE HOLDERS FROM TIME TO TIME OF
THE DEPOSITARY RECEIPTS DESCRIBED HEREIN
DEPOSIT AGREEMENT
Dated as of March 9, 1998
TABLE OF CONTENTS
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Page
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ARTICLE I
Definitions........................................................... 1
ARTICLE II
Form of Receipts, Deposit of Stock,
Execution and Delivery, Transfer,
Surrender and Redemption of Receipts
------------------------------------
SECTION 2.01. Form and Transfer of Receipts........................... 2
SECTION 2.02. Deposit of Stock; Execution and Delivery of Receipts
in Respect Thereof.................................. 3
SECTION 2.03. [Reserved].............................................. 4
SECTION 2.04. Registration of Transfer of Receipts.................... 4
SECTION 2.05. Split-ups and Combinations of Receipts;
Surrender of Receipts and Withdrawal of Stock......... 4
SECTION 2.06. Limitations on Execution and Delivery, Transfer,
Surrender and Exchange of Receipts.................... 5
SECTION 2.07. Lost Receipts, etc...................................... 5
SECTION 2.08. Cancellation and Destruction of Surrendered Receipts.... 5
SECTION 2.09. Conversion Rights....................................... 6
ARTICLE III
Certain Obligations of
Holders of Receipts and the Company
-----------------------------------
SECTION 3.01. Filing Proofs, Certificates and Other Information....... 8
SECTION 3.02. Payment of Charges and Expenses......................... 8
SECTION 3.03. Warranty as to Stock.................................... 8
SECTION 3.04. Warranty as to Receipts................................. 8
SECTION 3.05. Warranty as to Common Stock............................. 8
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ARTICLE IV
The Deposited Securities; Notices
--------------------------------- Page
SECTION 4.01. Cash Distributions...................................... 9
SECTION 4.02. Distributions of Securities or Property other than Cash,
Rights, Preferences or Privileges..................... 9
SECTION 4.03. Subscription Rights, Preference, or Privileges.......... 10
SECTION 4.04. Notice of Dividends, etc.; Record Date for Holders
of Receipts........................................... 11
SECTION 4.05. Voting Rights........................................... 11
SECTION 4.06. Changes Affecting Deposited Securities and
Reclassifications, Recapitalizations, etc.............. 11
SECTION 4.07. Delivery of Reports...................................... 12
SECTION 4.08. Lists of Receipt Holders................................. 12
SECTION 4.09. Withholding.............................................. 12
ARTICLE V
The Depositary, the Depositary's
Agents, the Registrar and the Company
-------------------------------------
SECTION 5.01. Maintenance of Offices, Agencies and Transfer Books
by the Depositary; Registrar.......................... 12
SECTION 5.02. Prevention of or Delay in Performance by the Depositary,
the Depositary's Agents, the Registrar or the Company.. 13
SECTION 5.03. Obligations of the Depositary, the Depositary's Agents,
the Registrar and the Company.......................... 13
SECTION 5.04. Resignation and Removal of the Depositary;
Appointment of Successor Depositary.................... 14
SECTION 5.05. Corporate Notices and Reports............................ 15
SECTION 5.06. Indemnification by the Company........................... 15
SECTION 5.07. Fees and Expenses........................................ 15
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Page
ARTICLE VI
Amendment and Termination
-------------------------
SECTION 6.01. Amendment................................................ 16
SECTION 6.02. Termination.............................................. 16
ARTICLE VII
Miscellaneous
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SECTION 7.01. Counterparts............................................. 17
SECTION 7.02. Exclusive Benefit of Parties............................. 17
SECTION 7.03. Invalidity of Provisions................................. 17
SECTION 7.04. Notices.................................................. 17
SECTION 7.05. Depositary's Agents...................................... 18
SECTION 7.06. Holders of Receipts Are Parties.......................... 18
SECTION 7.07. Governing Law............................................ 18
SECTION 7.08. Inspection of Deposit Agreement and Certificate.......... 18
SECTION 7.09. Headings................................................. 19
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DEPOSIT AGREEMENT dated as of March 9, 1998, among FORD MOTOR COMPANY,
a Delaware corporation, FIRST CHICAGO TRUST COMPANY OF NEW YORK, a New York
corporation, and the holders from time to time of the Receipts described herein.
WHEREAS, it is desired to provide, as hereinafter set forth in this Deposit
Agreement, for the deposit of shares of Series C Participating Stock, par value
$1.00 per share, of FORD MOTOR COMPANY with the Depositary for the purposes set
forth in this Deposit Agreement and for the issuance hereunder of Receipts
evidencing Depositary Shares each representing 1/1,000 of a share of Series C
Participating Stock so deposited; and
WHEREAS, the Receipts are to be substantially in the form of Exhibit A
annexed hereto, with appropriate insertions, modifications and omissions, as
hereinafter provided in this Deposit Agreement;
NOW, THEREFORE, in consideration of the premises, the parties hereto agree
as follows:
ARTICLE I
Definitions
-----------
The following definitions shall for all purposes, unless otherwise
indicated, apply to the respective terms used in this Deposit Agreement and the
Receipts:
"Certificate" shall mean the Certificate of the Designations, Powers,
Preferences and Relative, Participating or Other Rights, and the Qualifications,
Limitations or Restrictions Thereof filed with the Secretary of State of the
State of Delaware establishing the Stock as a series of preferred stock of the
Company.
"Common Stock" shall mean the common stock, par value $1.00 per share, of
the Company or any security into which the Common Stock may be converted.
"Company" shall mean Ford Motor Company, a Delaware corporation, and its
successors.
"Deposit Agreement" shall mean this Deposit Agreement, as amended or
supplemented from time to time.
"Depositary" shall mean First Chicago Trust Company of New York, a New York
corporation, and any successor as Depositary hereunder.
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"Depositary Shares" shall mean depositary shares, evidenced by Receipts
issued hereunder and constituted by the Stock deposited with the Depositary
hereunder. Each Depositary Share shall, as provided herein, represent 1/1,000 of
a share of Stock and be evidenced by a Receipt.
"Depositary's Agent" shall mean an agent appointed by the Depositary
pursuant to Section 7.05.
"Depositary's Office" shall mean the corporate trust office of the
Depositary in New York City, at which at any particular time its depositary
receipt business shall be administered.
"Notice of Conversion" shall have the meaning specified in Section 2.09.
"Receipt" shall mean one of the depositary receipts, substantially in the
form set forth as Exhibit A hereto, issued hereunder, whether in definitive or
temporary form and evidencing the number of Depositary Shares specified therein.
"Record holder" or "holder" as applied to a Receipt shall mean the person
in whose name a Receipt is registered on the books of the Depositary maintained
for such purpose.
"Registrar" shall mean the Depositary or such other bank or trust company
which shall be appointed to register ownership and transfers of Receipts as
herein provided.
"Securities Act" shall mean the Securities Act of 1933, as amended.
"Stock" shall mean shares of the Company's Series C Participating Stock,
par value $1.00 per share.
ARTICLE II
Form of Receipts, Deposit of Stock,
Execution and Delivery, Transfer,
Surrender and Redemption of Receipts
------------------------------------
SECTION 2.01. Form and Transfer of Receipts. Definitive Receipts shall be
substantially in the form set forth in Exhibit A annexed hereto, with
appropriate insertions, modifications and omissions, as hereinafter provided.
Receipts shall be executed by the Depositary by the manual signature of a duly
authorized officer of the Depositary; provided, that such signature may be a
facsimile if a Registrar for the Receipts (other than the Depositary) shall have
been appointed and such Receipts are countersigned by manual signature of a duly
authorized officer of the Registrar. No Receipt shall be entitled to any
benefits under this Deposit Agreement or be valid or obligatory for any purpose
unless it shall have been executed manually by a duly authorized officer of the
Depositary or, if a Registrar for the Receipts (other than the Depositary) shall
have been appointed, by manual or facsimile signature of a duly authorized
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officer of the Depositary and countersigned manually by a duly authorized
officer of such Registrar. The Depositary shall record on its books each Receipt
so signed and delivered as hereinafter provided.
Except as the Depositary may otherwise determine, Receipts shall be in
denominations of any number of whole Depositary Shares.
Receipts may be endorsed with or have incorporated in the text thereof such
legends or recitals or changes not inconsistent with the provisions of this
Deposit Agreement as may be required by the Depositary or required to comply
with any applicable law or any regulation thereunder or with the rules and
regulations of any securities exchange upon which the Stock, the Depositary
Shares or the Receipts may be listed or traded or to conform with any usage with
respect thereto, or to indicate any special limitations or restrictions to which
any particular Receipts are subject.
Title to Depositary Shares evidenced by a Receipt which is properly
endorsed or accompanied by a properly executed instrument of transfer shall be
transferable by delivery with the same effect as in the case of a negotiable
instrument; provided, however, that until transfer of a Receipt shall be
registered on the books of the Depositary as provided in Section 2.04, the
Depositary may, notwithstanding any notice to the contrary, treat the record
holder thereof at such time as the absolute owner thereof for the purpose of
determining the person entitled to distributions of dividends, distributions
upon redemption or other distributions, the exercise of conversion rights, the
exchange of Depositary Shares for Stock or any notice provided for in this
Deposit Agreement and for all other purposes.
SECTION 2.02 Deposit of Stock; Execution and Delivery of Receipts in
Respect Thereof. Subject to the terms and conditions of this Deposit Agreement,
the Company may from time to time deposit shares of the Stock under this Deposit
Agreement by delivery to the Depositary of a certificate or certificates for the
Stock to be deposited, properly endorsed or accompanied, if required by the
Depositary, by a duly executed instrument of transfer or endorsement, in form
satisfactory to the Depositary, together with all such certifications as may be
required by the Depositary in accordance with the provisions of this Deposit
Agreement, and together with a written order of the Company directing the
Depositary to execute and deliver to, or upon the written order of, the person
or persons stated in such order a Receipt or Receipts for the number of
Depositary Shares representing such deposited Stock.
Deposited Stock shall be held by the Depositary at the Depositary's Office
or at such other place or places as the Depositary shall determine.
Upon receipt by the Depositary of a certificate or certificates for Stock
deposited in accordance with the provisions of this Section, together with the
other documents required as above specified, and upon recordation of the Stock
on the books of the Company in the name of the Depositary or its nominee, the
Depositary, subject to the terms and conditions of this Deposit Agreement, shall
execute and deliver, to or upon the order of the person or persons named in the
written order delivered to the Depositary referred to in the first paragraph of
this Section, a Receipt or Receipts for the number of Depositary Shares
representing the Stock so deposited and registered in such name or names as may
be requested by such person or persons. The Depositary shall execute and deliver
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such Receipt or Receipts at the Depositary's Office or such other offices, if
any, as the Depositary may designate. Delivery at other offices shall be at the
risk and expense of the person requesting such delivery.
Other than in the case of splits, combinations or other reclassifications
affecting the Stock, or in the case of dividends or other distributions of
Stock, if any, there shall be deposited hereunder not more than the number of
shares constituting the Stock as set forth in the Certificate, as such may be
amended.
SECTION 2.03. [Reserved].
SECTION 2.04. Registration of Transfer of Receipts. Subject to the terms
and conditions of this Deposit Agreement, the Depositary shall register on its
books from time to time transfers of Receipts upon any surrender thereof by the
holder in person or by duly authorized attorney, properly endorsed or
accompanied by a properly executed instrument of transfer. Thereupon the
Depositary shall execute a new Receipt or Receipts evidencing the same aggregate
number of Depositary Shares as those evidenced by the Receipt or Receipts
surrendered and deliver such new Receipt or Receipts to or upon the order of the
person entitled thereto.
SECTION 2.05. Split-ups and Combinations of Receipts; Surrender of Receipts
and Withdrawal of Stock. Upon surrender by a holder of a Receipt or Receipts at
the Depositary's Office or at such other offices as it may designate for the
purpose of effecting a split-up or combination of such Receipt or Receipts, and
subject to the terms and conditions of this Deposit Agreement, the Depositary
shall execute and deliver a new Receipt or Receipts in the authorized
denomination or denominations requested, evidencing the aggregate number of
Depositary Shares evidenced by the Receipt or Receipts surrendered.
Any holder of a Receipt or Receipts representing any number of whole shares
of Stock or his duly authorized attorney may withdraw the Stock and all money
and other property, if any, represented thereby by surrendering such Receipt or
Receipts, at the Depositary's Office or at such other offices as the Depositary
may designate for such withdrawals; provided that a holder of a Receipt or
Receipts may not withdraw Stock (or money and other property represented
thereby) which has previously been called for redemption. Thereafter, without
unreasonable delay, the Depositary shall deliver or cause to be delivered to
such holder or to the person or persons designated by such holder as hereinafter
provided, the number of whole shares of Stock and all money and other property,
if any, represented by the Receipt or Receipts so surrendered for withdrawal,
but holders of such whole shares of Stock will not thereafter be entitled to
deposit such Stock hereunder or to receive Depositary Shares therefor. If a
Receipt 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 shares of Stock to
be so withdrawn, the Depositary shall at the same time, in addition to such
number of whole shares of Stock and such money and other property, if any, to be
so withdrawn, deliver to such holder, or upon his order, a new Receipt
evidencing such excess number of Depositary Shares. In no event will fractional
shares of Stock be distributed by the Depositary. Delivery of the Stock and
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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.
If the Stock and the money and other property being withdrawn are to be
delivered to a person or persons other than the record holder of the Receipt or
Receipts being surrendered for withdrawal of Stock, such holders 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 Stock be properly endorsed in blank or
accompanied by a properly executed instrument of transfer in blank.
Delivery of the Stock and the money and other property, if any, represented
by Receipts surrendered for withdrawal shall be made by the Depositary at the
Depositary's Office, except that, at the request, risk and expense of the holder
surrendering such Receipt or Receipts and for the account of the holder thereof,
such delivery may be made at such other place as may be designated by such
holder.
SECTION 2.06. Limitations on Execution and Delivery, Transfer, Surrender
and Exchange of Receipts. As a condition precedent to the execution and
delivery, registration of transfer, split-up, combination, surrender or exchange
of any Receipt, the Depositary, any of the Depositary's Agents or the Company
may require payment to it of a sum sufficient for the payment (or, in the event
that the Depositary or the Company shall have made such payment, the
reimbursement to it) of any charges or expenses payable by a holder of a Receipt
pursuant to this Deposit Agreement, may require the production of evidence
satisfactory to it as to the identity and genuineness of any signature (or the
authority of any signature) and may also require compliance with such
regulations, if any, as the Depositary or the Company may establish consistent
with the provisions of this Deposit Agreement.
The deposit of Stock may be refused, the delivery of Receipts against Stock
may be suspended, the registration of transfer of Receipts may be refused and
the registration of transfer, surrender or exchange of outstanding Receipts may
be suspended (i) during any period when the register of stockholders of the
Company is closed or (ii) if any such action is deemed necessary or advisable by
the Depositary, any of the Depositary's Agents or the Company at any time or
from time to time because of any requirement of law or of any government or
governmental body or commission or under any provision of this Deposit
Agreement.
SECTION 2.07. Lost Receipts, etc. In case any Receipt shall be mutilated,
destroyed, lost or stolen, the Depositary in its discretion may execute and
deliver a Receipt of like form and tenor in exchange and substitution for such
mutilated Receipt, or in lieu of and in substitution for such destroyed, lost or
stolen Receipt, upon (i) the filing by the holder thereof with the Depositary of
evidence satisfactory to the Depositary and the Company of such destruction or
loss or theft of such Receipt, of the authenticity thereof and of his or her
ownership thereof and (ii) the furnishing to the Depositary and the Company of
indemnification satisfactory to them.
SECTION 2.08. Cancellation and Destruction of Surrendered Receipts. All
Receipts surrendered to the Depositary or any Depositary's Agent shall be
cancelled by the Depositary. Except as prohibited by applicable law or
regulation, the Depositary is authorized to destroy all Receipts so cancelled.
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SECTION 2.09. Conversion Rights. Receipts may be surrendered with written
instructions to the Depositary to instruct the Company to cause the conversion
of any specified number of whole or fractional shares of Stock represented by
the Depositary Shares evidenced by such Receipts into a number of whole shares
of Common Stock at a conversion ratio of one share of Common Stock for each
Depositary Share. Subject to the terms and conditions of this Deposit Agreement
and the Certificate, a holder of a Receipt or Receipts evidencing Depositary
Shares representing whole or fractional shares of Stock may surrender such
Receipt or Receipts to the Depositary at the Depositary's Office or to such
office or to such Depositary's Agents as the Depositary may designate for such
purpose, together with a notice of conversion thereof duly completed and
executed (a "Notice of Conversion"), thereby directing the Depositary to
instruct the Company to cause the conversion of the number of shares or
fractions thereof of underlying Stock specified in such Notice of Conversion
into whole shares of Common Stock. In the event that a holder delivers to the
Depositary for conversion a Receipt or Receipts which in the aggregate are
convertible into less than one whole share of Common Stock or any number of
whole shares of Common Stock plus an excess constituting less than one whole
share of Common Stock, the holder shall receive payment in lieu of such
fractional shares of Common Stock otherwise issuable in accordance with the last
paragraph of this Section 2.09. If more than one Receipt shall be delivered for
conversion at one time by the same holder, the number of whole shares of Common
stock issuable upon conversion thereof shall be computed on the basis of the
aggregate number of Receipts so delivered.
Upon receipt by the Depositary of a Receipt or Receipts, together with a
Notice of Conversion, duly completed and executed, directing the Depositary to
instruct the Company to cause the conversion of a specified number of shares or
fractions thereof of Stock, the Depositary shall, on the date of receipt of such
Notice of Conversion, instruct the Company (i) to cause the conversion of the
Depositary Shares evidenced by the Receipts so surrendered for conversion as
specified in the written Notice of Conversion to the Depositary 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, and the
amount of money, if any, to be delivered to the holders of Receipts surrendered
for conversion in payment of any fractional shares of Common Stock otherwise
issuable. 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 Stock into which
the Stock represented by the Depositary Shares evidenced by such Receipt or
Receipts has been converted, and (ii) any money or other property to which the
holder or holders are entitled. The person or persons in whose name or names any
certificate or certificates for shares of Common Stock shall be issuable upon
such conversion shall be deemed to have become the holder or holders of record
of the shares represented thereby at the close of business on the date such
Receipt or Receipts shall have been surrendered to and a Notice of Conversion
received by the Depositary, unless the stock 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 stock transfer books are open. Upon such conversion, the Depositary (i)
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shall deliver to the holder a Receipt evidencing the number of Depositary
Shares, if any, which such holder has elected not to convert in excess of the
number of Depositary Shares representing Stock which has been so converted, (ii)
shall cancel the Depositary Shares evidenced by Receipts surrendered for
conversion and (iii) shall deliver for cancellation to the transfer agent for
the Stock the shares of Stock represented by the Depositary Shares evidenced by
the Receipts so surrendered and so converted.
Upon any conversion of the Stock underlying the Depositary Shares, no
allowance, adjustment or payment shall be made with respect to accrued dividends
upon such Stock.
Upon the mandatory conversion of the Stock in accordance with its terms,
each Depositary Share shall be deemed to have been automatically converted into
one share of Common Stock immediately prior to the close of business on the date
of such mandatory conversion, without any action on the part of the Company, the
Depositary or the holder or holders of the Depositary Shares. On and after the
date of such mandatory conversion, each Receipt representing Depositary Shares
shall be deemed to represent an equal number of shares of Common Stock and the
person or persons in whose name or names such Receipt is registered shall be
deemed to be, and shall be treated as and entitled to all the rights of, a
holder or holders of said number of shares of Common Stock. On and after the
date of such mandatory conversion, each Receipt shall be surrendered to the
Depositary, who shall in turn surrender such Receipt to the Company, whereupon
the Company shall issue a certificate or certificates representing shares of
Common Stock equal to the number of Depositary Shares represented by the Receipt
so surrendered; provided, however, that failure to so surrender such Receipt
shall not affect the status of the holder or holders thereof, on and after the
date of such mandatory conversion, as a holder or holders of the number of
shares of Common Stock.
Upon the conversion of any shares of Stock for which a Notice of
Conversion has been received by the Depositary, and upon the mandatory
conversion of any shares of Stock, all dividends in respect of Depositary Shares
representing such Stock shall cease to accrue, such Depositary Shares shall be
deemed no longer outstanding, all rights of the holder of the Receipt with
respect to such Depositary Shares (except the right to receive the Common Stock,
any cash payable with respect to any fractional shares of Common Stock as
provided herein and any cash payable on account of accrued dividends in respect
of the Stock so converted and any Receipts evidencing Depositary Shares not so
converted) shall terminate, and such Depositary Shares shall be cancelled in
accordance with Section 2.08 hereof.
No fractional shares of Common Stock shall be issuable upon conversion of
Stock underlying the Depositary Shares. If, except for the provisions of this
Section 2.09 and the Certificate, any holder of Receipts surrendered with
instructions to the Depositary for conversion of the underlying Stock would be
entitled to a fractional share of Common Stock upon such conversion, the Company
shall cause to be delivered to such holder an amount in cash for such fractional
share determined in accordance with the Certificate.
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ARTICLE III
Certain Obligations of
Holders of Receipts and the Company
-----------------------------------
SECTION 3.01. Filing Proofs, Certificates and Other Information. Any holder
of a Receipt may be required from time to time to file such proof of residence,
or other matters or other information, to execute such certificates and to make
such representations and warranties as the Depositary or the Company may
reasonably deem necessary or proper. The Depositary or the Company may withhold
the delivery, or delay the registration of transfer or conversion, of any
Receipt or the withdrawal of the Stock represented by the Depositary Shares
evidenced by any Receipt or the distribution of any dividend or other
distribution or the sale of any rights or of the proceeds thereof or the
exercise of any conversion rights as specified in Section 2.09 until such proof
or other information is filed or such certificates are executed or such
representations and warranties are made.
SECTION 3.02. Payment of Charges and Expenses. The Company shall be
obligated to make payments to the Depositary of certain charges and expenses, as
provided in Section 5.07, or provide evidence reasonably satisfactory to the
Depositary that such charges and expenses have been paid. Registration of
transfer of any Receipt, or any withdrawal of Stock and all money or other
property, if any, represented by the Depositary Shares evidenced by such Receipt
may be refused until any such payment due is made, and any dividends, interest
payments or other distributions may be withheld and such conversion rights may
be refused or any part of or all the Stock or other property represented by the
Depositary Shares evidenced by such Receipt and not theretofor sold may be sold
for the account of the holder thereof (after attempting by reasonable means to
notify such holder prior to such sale), and such dividends, interest payments or
other distributions or the proceeds of any such sale may be applied to any
payment of such charges or expenses, the holder of such Receipt remaining liable
for any deficiency.
SECTION 3.03. Warranty as to Stock. The Company hereby represents and
warrants that the Stock, when issued, will be duly authorized, validly issued,
fully paid and nonassessable. Such representation and warranty shall survive the
deposit of the Stock and the issuance of Receipts.
SECTION 3.04. Warranty as to Receipts. The Company hereby represents and
warrants that the Receipts, when issued, will represent legal and valid
interests in the Stock. Such representation and warranty shall survive the
deposit of the Stock and the issuance of Receipts.
SECTION 3.05. Warranty as to Common Stock. The Company hereby represents
and warrants that the Common Stock issued upon conversion of the Stock, when
issued, will be duly authorized, validly issued, fully paid and nonassessable.
Such representation and warranty shall survive the conversion of the Stock into
such Common Stock.
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ARTICLE IV
The Deposited Securities; Notices
---------------------------------
SECTION 4.01. Cash Distributions. Whenever the Depositary shall receive any
cash dividend or other cash distribution on the Stock (subject to the provisions
of Section 2.09 with respect to payments of cash to holders of Receipts in lieu
of fractional shares of Common Stock), the Depositary shall, subject to Sections
3.01 and 3.02, distribute to record holders of Receipts on the record date fixed
pursuant to Section 4.04 such amounts of such sum as are, as nearly as
practicable, in proportion to the respective numbers of Depositary Shares
evidenced by the Receipts held by such holders; provided, however, that in case
the Company or the Depositary shall withhold from any cash dividend or other
cash distribution in respect of the Stock represented 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 represented by such
Receipts subject to such withholding shall be reduced accordingly; provided
further, however, that if all Receipts outstanding are held by a single person,
the Depositary shall distribute any cash dividend or other cash distribution or
the Stock to such holder of Receipts by wire transfer of same day funds on the
date the funds are received by the Depositary, to an account such holder shall
have designated to the Depositary by written notice reasonably in advance of
such date. The Depositary shall distribute or make available for distribution,
as the case may be, only such amount, however, as can be distributed without
attributing to any holder of Depositary Shares a fraction of one cent, and any
balance not so distributable shall be held by the Depositary (without liability
for interest thereon) and shall be added to and be treated as part of the next
sum received by the Depositary for distribution to record holders of Receipts
then outstanding. In lieu of making a cash distribution on the Stock to
Depositary, the Company may, after consultation with the Depositary, elect to
make any such cash distribution directly to holders of Receipts on behalf of the
Depositary in accordance with this Section 4.01.
SECTION 4.02. Distributions of Securities or Property Other than Cash,
Rights, Preference or Privileges. Whenever the Depositary shall receive any
distribution of securities or property other than cash, rights, preferences or
privileges upon the Stock, the Depositary shall, subject to Sections 3.01 and
3.02, distribute to record holders of Receipts on the record date fixed pursuant
to Section 4.04 such amounts of the securities or property received by it as
are, as nearly as practicable, in proportion to the respective numbers of
Depositary Shares evidenced by the Receipts held by such holders. If in the
opinion of the Depositary after consultation with the Company such distribution
cannot be made proportionately among such record holders, 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 Sections 3.01 and 3.02, be
distributed or made available for distribution, as the case may be, by the
Depositary to record holders of Receipts as provided by Section 4.01 in the case
of a distribution received in cash. The Company shall not make any distribution
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of such securities or property to the Depositary and the Depositary shall not
make any distribution of such securities or property to the holders of Receipts
unless the Company shall have provided the Depositary an opinion of counsel
stating that such securities or property has been registered under the
Securities Act or do not need to be registered in connection with such
distributions.
SECTION 4.03. Subscription Rights, Preferences or Privileges. If the
Company shall at any time offer or cause to be offered to the persons in whose
names Stock is recorded on the books of the Company any rights, preferences or
privileges to subscribe for or to purchase any securities or any rights,
preferences or privileges of any other nature, such rights, preferences or
privileges shall in each such instance be made available by the Depositary to
the record holders of Receipts in such manner as the Depositary may determine,
either by the issue to such record holders of warrants representing such rights,
preferences or privileges or by such other method as may be deemed appropriate
by the Depositary in its discretion with the approval of the Company; provided,
however, that if at the time of issue or offer of any such rights, preferences
or privileges the Depositary determines that it is not lawful or (after
consultation with the Company) not feasible to make such rights, preferences or
privileges available to holders of Receipts by the issue of warrants or
otherwise, then the Depositary, in its discretion (with approval of the Company,
in any case where the Depositary has determined that it is not feasible to make
such rights, preferences or privileges available), may, if applicable laws or
the terms of such rights, preferences or privileges permit such transfer, sell
such rights, preferences or privileges at public or private sale, at such place
or places and upon such terms as it may deem proper. The net proceeds of any
such sale shall, subject to Sections 3.01 and 3.02, be distributed by the
Depositary to the record holders of Receipts entitled thereto as provided by
Section 4.01 in the case of a distribution received in cash.
If registration under the Securities Act of the securities to which any
rights, preferences or privileges relate is required in order for holders of
Receipts to be offered or sold the securities to which such rights, preferences
or privileges relate, the Company agrees with the Depositary that the Company
will file promptly a registration statement pursuant to such Act with respect to
such rights, preferences or privileges and securities and use its best efforts
and take all steps available to it to cause such registration statement to
become effective sufficiently in advance of the expiration of such rights,
preferences or privileges to enable such holders to exercise such rights,
preferences or privileges. In no event shall the Depositary make available to
the holders of Receipts any right, preference or privilege to subscribe for or
to purchase any securities unless and until such registration statement shall
have become effective, or unless the offering and sale of such securities to
such holders are exempt from registration under the provisions of the Securities
Act, and the Company shall have provided to the Depositary an opinion of counsel
to such effect.
If any other action under the laws of any jurisdiction or any governmental
or administrative authorization, consent or permit is required in order for such
rights, preferences or privileges to be made available to holders of Receipts,
the Company agrees with the Depositary that the Company will use its best
efforts to take such action or obtain such authorization, consent or permit
sufficiently in advance of the expiration of such rights, preferences or
privileges to enable such holders to exercise such rights, preferences or
privileges.
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SECTION 4.04. Notice of Dividends, etc.; Record Date for Holders of
Receipts. Whenever any cash dividend or other cash distribution shall become
payable or any distribution other than cash shall be made, or if rights,
preferences or privileges shall at any time be offered, with respect to Stock,
or whenever the Depositary shall receive notice of any meeting at which holders
of Stock are entitled to vote or of which holders of Stock are entitled to
notice, or whenever the Depositary and the Company shall decide it is
appropriate, the record date shall be the same time and 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 to receive such dividend,
distribution, rights, preferences or privileges or the net proceeds of the sale
thereof, or to give instructions for the exercise of voting rights at any such
meeting, or who shall be entitled to notice of such meeting, or for any other
reasons which the Company and the Depositary shall deem appropriate.
SECTION 4.05. Voting Rights. Upon receipt of notice of any meeting at which
the holders of Stock are entitled to vote, the Depositary shall, as soon as
practicable thereafter, mail to the record holders of Receipts a notice which
shall contain (i) such information as is contained in such notice of meeting and
(ii) a statement that the holders of Receipts at the close of business on the
relevant record date may, subject to any applicable restrictions, instruct the
Depositary as to the exercise of the voting rights pertaining to the amount of
Stock represented by their respective Depositary Shares (including an express
indication that instructions may be given to the Depositary to give a
discretionary proxy to a person designated by the Company) and a brief statement
as to the manner in which such instructions may be given. Upon the written
request of the holders of Receipts on the relevant record date, the Depositary
shall endeavor insofar as practicable to vote or cause to be voted, in
accordance with the instructions set forth in such requests, the maximum number
of shares of Stock represented by the Depositary Shares evidenced by all
Receipts as to which any particular voting instructions are received. The
Company hereby agrees to take all reasonable action which may be deemed
necessary by the Depositary in order to enable the Depositary to vote such Stock
or cause such Stock to be voted. In the absence of specific instructions from
the holder of a Receipt, the Depositary will abstain from voting (but, at its
discretion, not from appearing at any meeting with respect to such Stock unless
directed to the contrary by the holders of all the Receipts) to the extent of
the Stock represented by the Depositary Shares evidenced by such Receipt. The
Depositary shall not be required to exercise discretion in voting any Stock.
Holders of Receipts shall also be entitled to vote on certain amendments to
the Deposit Agreement pursuant to Section 6.01.
SECTION 4.06. Changes Affecting Deposited Securities and Reclassifications,
Recapitalizations, etc. Upon any change in par or stated value, split-up,
combination or any other reclassification of the Stock, or upon any
recapitalization, reorganization, merger, amalgamation or consolidation or sale
of all or substantially all of the Company's assets affecting the Company or to
which it is a party, the Depositary may in its discretion with the approval of,
and shall upon the instructions of, the Company, and (in either case) in such
manner as the Depositary may deem equitable, (i) make such adjustments as are
certified by the Company in the fraction of an interest represented by one
Depositary Share in one share of Stock as may be necessary fully to reflect the
effects of such change in par or stated value, split-up, combination or other
reclassification of Stock, or of such recapitalization, reorganization, merger,
-11-
amalgamation or consolidation or sale of all or substantially all of the
Company's assets and (ii) treat any securities which shall be received by the
Depositary in exchange for or upon conversion of or in respect of the Stock as
new deposited securities so received in exchange for or upon conversion or in
respect of such Stock. In any such case the Depositary may in its discretion,
with the approval of the Company, execute and deliver additional Receipts or may
call for the surrender of all outstanding Receipts to be exchanged for new
Receipts specifically describing such new deposited securities. Anything to the
contrary herein notwithstanding, holders of Receipts shall have the right from
and after the effective date of any such change in par or stated value,
split-up, combination or other reclassification of the Stock or any such
recapitalization, reorganization, merger, amalgamation or consolidation or sale
of all or substantially all of the Company's assets to surrender such Receipts
to the Depositary with instructions to convert, exchange or surrender the Stock
represented thereby only into or for, as the case may be, the kind and amount of
shares of stock and other securities and property and cash into which the Stock
represented by such Receipts might have been converted or for which such Stock
might have been exchanged or surrendered immediately prior to the effective date
of such transaction; provided, that in no event shall the Company be required to
deliver fractional shares of Common Stock.
SECTION 4.07. Delivery of Reports. The Depositary shall furnish to holders
of Receipts any reports and communications received from the Company which are
received by the Depositary as the holder of Stock.
SECTION 4.08. Lists of Receipt Holders. Promptly upon request from time to
time by the Company, the Depositary shall furnish to it a list, as of a recent
date specified by the Company, of the names, addresses and holdings of
Depositary Shares of all record holders of Receipts.
SECTION 4.09. 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
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.
ARTICLE V
The Depositary, the Depositary's
Agents, the Registrar and the Company
-------------------------------------
SECTION 5.01. Maintenance of Offices, Agencies and Transfer Books by the
Depositary; Registrar. Upon execution of this Deposit Agreement, the Depositary
shall maintain at the Depositary's Office, facilities for the execution and
delivery, registration and registration of transfer, surrender and exchange of
Receipts, and at the offices of the Depositary's Agents, if any, facilities for
the delivery, registration of transfer, surrender and exchange of Receipts, all
in accordance with the provisions of this Deposit Agreement.
-12-
The Depositary shall keep books at the Depositary's Office which shall
reflect the registration and registration of transfer of Receipts and split-ups
and combinations and conversions of Depositary Shares and which books at all
reasonable times shall be open for inspection by the record holders of Receipts;
provided that any such holder requesting to exercise such right shall certify to
the Depositary that such inspection shall be for a proper purpose reasonably
related to such person's interest as an owner of Depositary Shares evidenced by
the Receipts.
The Depositary may close such books only when the register of Stockholders
of the Company is closed.
The Depositary may, with the approval of the Company, appoint a Registrar
for registration of the Receipts or the Depositary Shares evidenced thereby. If
the Receipts or the Depositary Shares evidenced thereby or the Stock represented
by such Depositary Shares shall be listed on the New York Stock Exchange, the
Depositary will appoint a Registrar (acceptable to the Company) for registration
of such Receipts or Depositary Shares in accordance with any requirements of
such Exchange. Such Registrar (which may be the Depositary if so permitted by
the requirements of such Exchange) may be removed and a substitute registrar
appointed by the Depositary upon the request or with the approval of the
Company. If the Receipts, such Depositary Shares or the Stock are listed on one
or more other stock exchanges, the Depositary will, at the request of the
Company, arrange such facilities for the delivery, registration, registration of
transfer, surrender and exchange of such Receipts, such Depositary Shares or
such Stock as may be required by law or applicable stock exchange regulation.
SECTION 5.02. Prevention of or Delay in Performance by the Depositary, the
Depositary's Agents, the Registrar or the Company. Neither the Depositary nor
any Depositary's Agent nor 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 applicable governmental authority or, in the case of the
Depositary, the Depositary's Agent or the Registrar, by reason of any provision,
present or future, of the Company's Restated Certificate of Incorporation, as
amended (including the Certificate) or by reason of any act of God or war or
other circumstance beyond the control of the relevant party, the Depositary, the
Depositary's Agent, the Registrar or the Company shall be prevented or forbidden
from, or delayed in, or subjected to any penalty on account of, doing or
performing any act or thing which the terms of this Deposit Agreement provide
shall be done or performed; nor shall the Depositary, any Depositary's Agent,
any Registrar or the Company incur liability to any holder of a Receipt by
reason of any exercise of, or failure to exercise, any discretion provided for
in this Deposit Agreement except, in the case of any such exercise or failure to
exercise discretion not caused as aforesaid, if caused by the negligence,
willful misconduct or noncompliance with any requirement or standard the
Employee Retirement Income Security Act of 1974 on the part of the party charged
with such exercise or failure to exercise.
SECTION 5.03. Obligations of the Depositary, the Depositary's Agents, the
Registrar and the Company. Neither the Depositary nor any Depositary's Agent nor
any Registrar nor the Company assumes any obligation or shall be subject to any
liability under this Deposit Agreement to holders of Receipts other than for its
negligence or willful misconduct.
-13-
Neither the Depositary nor any Depositary's Agent nor any Registrar nor the
Company shall be under any obligation to appear in, prosecute or defend any
action, suit or other proceeding in respect of the Stock, the Depositary Shares
or the Receipts which in its opinion may involve it in expense or liability
unless indemnity satisfactory to it against all expense and liability be
furnished as often as may be required.
Neither the Depositary nor any Depositary's Agent nor any Registrar nor the
Company shall be liable for any action or any failure to act by it in reliance
upon the advice of legal counsel or accountants, or information from any person
presenting Stock for deposit, any holder of a Receipt or any other person
believed by it in good faith to be authorized or 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 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 5.06 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 shares of Stock or for the manner or effect of
any such vote made, as long as any such action or non-action is in good faith
and does not result from 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 Deposit Agreement against the Depositary or any Registrar. The Depositary,
the Depositary's Agents, and any Registrar may own and deal in any class of
securities of the Company and its affiliates and in Receipts. The Depositary may
also act as transfer agent or registrar of any of the securities
of the Company and its affiliates (including, without limitations, the Stock).
SECTION 5.04. Resignation and Removal of the Depositary; Appointment of
Successor Depositary. The Depositary may at any time resign as Depositary
hereunder by delivering notice of its election to do so to the Company, such
resignation to take effect upon the appointment of a successor Depositary and
its acceptance of such appointment as hereinafter provided.
The Depositary may at any time be removed by the Company by notice of such
removal delivered to the Depositary, such removal to take effect upon the
appointment of a successor Depositary and its acceptance of such appointment as
hereinafter provided.
In case at any time the Depositary acting hereunder shall resign or be
removed prior to the termination of this Deposit Agreement, 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
-14-
company having its principal office in the United States of America and having a
combined capital and surplus of at least $50,000,000. If no successor Depositary
shall have been so appointed and have accepted appointment within 60 days after
delivery of such notice, the resigning or removed Depositary may itself appoint
a successor Depositary or petition any court of competent jurisdiction for the
appointment of a successor Depositary. Every successor Depositary shall execute
and deliver to its predecessor and to the Company an instrument in writing
accepting its appointment hereunder, and thereupon such successor Depositary,
without any further act or deed, shall become fully vested with all the rights,
powers, duties and obligations of its predecessor and for all purposes shall be
the Depositary under this Deposit Agreement, and such predecessor, upon payment
of all sums due it and on the written request of the Company, shall execute and
deliver an instrument transferring to such successor all rights and powers of
such predecessor hereunder, shall duly assign, transfer and deliver all right,
title and interest in the Stock and any moneys or property held hereunder to
such successor, and shall deliver to such successor a list of the record holders
of all outstanding Receipts and such records, books and other information in its
possession relating thereto. Any successor Depositary shall promptly mail notice
of its appointment to the record holders of Receipts.
Any corporation into or with which the Depositary may be merged,
consolidated or converted shall be the successor of such Depositary without the
execution or filing of any document or any further act, and notice thereof shall
not be required hereunder. Such successor Depositary may authenticate the
Receipts in the name of the predecessor Depositary or in the name of the
successor Depositary.
SECTION 5.05. Corporate Notices and Reports. The Company agrees that it
will transmit to the record holders of Receipts, in each case at the addresses
furnished to it pursuant to Section 4.08, all notices and reports (including
without limitation financial statements) required by law or by the rules of any
national securities exchange upon which the Stock, the Depositary Shares or the
Receipts are listed, to be furnished to the record holders of Receipts. Such
transmission will be at the Company's expense.
SECTION 5.06. Indemnification by the Company. The Company shall indemnify
the Depositary, any Depositary's Agent and any Registrar against, and hold each
of them harmless from, any loss, liability or expense (including the costs and
expenses of defending itself) which may arise out of acts performed or omitted
in connection with this Deposit Agreement and the Receipts by the Depositary,
any Registrar or any of their respective agents (including any Depositary's
Agent), except for any liability arising out of negligence, willful misconduct
or bad faith on the respective parts of any such person or persons. The
obligations of the Company set forth in this Section 5.06 shall survive any
succession of any Depositary, Registrar or Depositary's Agent or termination of
this Deposit Agreement.
SECTION 5.07. Fees and Expenses. The Company shall pay all transfer and
other taxes and governmental charges arising solely from the existence of the
depositary arrangements. The Company shall pay all fees of the Depositary in
connection with the initial deposit of the Stock and the initial issuance of the
Depositary Shares, all withdrawals of shares of the Stock by owners of
Depositary Shares and all other duties performed by it under this Deposit
Agreement. All other transfer and other taxes and governmental charges shall be
-15-
at the expense of holders of Depositary Shares. 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 this performance of such
duties. Such holder will be liable for the charges and expenses related to such
performance. Except as otherwise provided herein, all other reasonable 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 paid by the
Company (except those expenses which are expressly provided herein to be paid by
such holders of the Depositary Shares). The Depositary shall present its
statement for fees and expenses to the Company once every three months or at
such other intervals as the Company and the Depositary may agree. The
obligations set forth in this Section 5.07 shall survive any succession of any
Depositary, Registrar or Depositary's Agent or termination of this Deposit
Agreement.
ARTICLE VI
Amendment and Termination
-------------------------
SECTION 6.01. Amendment. The form of the Receipts and any provisions of
this Deposit Agreement may at any time and from time to time be amended by
agreement between the Company and the Depositary in any respect which they may
deem necessary or desirable; provided, however, that no such amendment (other
than any change in the fees of any Depositary, Registrar or Transfer Agent)
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 Stock pursuant to the Certificate shall be
effective unless such amendment shall have been approved by the holders of at
least a majority (or, in the case of amendments relating to or affecting rights
to receive dividends or distributions, or voting or conversion rights of the
Depositary Shares, Receipts or Stock, two-thirds) of the Depositary Shares then
outstanding. 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 the Deposit Agreement
as amended thereby.
SECTION 6.02. Termination. This Deposit Agreement may be terminated by the
Company at any time upon not less than 60 days prior written notice to the
Depositary, in which case, upon a date that is not later than 30 days after the
date of such notice, the Depositary shall deliver or make available for delivery
to each record holder, upon surrender of the Receipt or Receipts held by each
record holder, such number of whole or fractional shares of Stock represented by
such Receipt or Receipts. If the record holder of any Receipt or Receipts shall
not have so surrendered such Receipt or Receipts in exchange for whole or
fractional shares of Stock on or prior to the effective date of termination of
this Agreement, such record holder shall for all purposes, including the payment
of dividends, be deemed to be a record holder of the appropriate number of whole
or fractional shares of Stock previously represented by such Receipt or Receipts
and shall thereafter surrender to the Company such Receipt or Receipts in
exchange for whole or fractional shares of Stock. Upon termination of this
Deposit Agreement, the Depositary shall surrender to the Company any whole or
fractional shares of Stock held by the Depositary and the Company shall hold
such Stock for the benefit of the record holder of Receipts which previously
represented such Stock.
-16-
This Agreement shall automatically terminate after (i) there shall have
been made a final distribution in respect of the Stock in connection with any
liquidation, dissolution or winding up of the Company and such distribution
shall have been distributed to the holders of Receipts pursuant to Section 4.01
or 4.02, as applicable or (ii) each share of Stock shall have been converted
into shares of Common Stock.
Upon the termination of this Deposit Agreement, the Company shall be
discharged from all obligations under this Deposit Agreement except for its
obligations to the Depositary, any Depositary's Agent and any Registrar under
Sections 5.06 and 5.07.
ARTICLE VII
Miscellaneous
-------------
SECTION 7.01. Counterparts. This Deposit Agreement may be executed in any
number of counterparts, and by each of the parties hereto on separate
counterparts, each of which counterparts, when so executed and delivered, shall
be deemed an original, but all such counterparts taken together shall constitute
one and the same instrument.
SECTION 7.02. Exclusive Benefit of Parties. This Deposit Agreement is for
the exclusive benefit of the parties hereto, including the holders of the
Receipts, and their respective successors hereunder, and shall not be deemed to
give any legal or equitable right, remedy or claim to any other person
whatsoever.
SECTION 7.03. Invalidity of Provisions. In case any one or more of the
provisions contained in this Deposit Agreement or in the Receipts should be or
become invalid, illegal or unenforceable in any respect, the validity, legality
and enforceability of the remaining provisions contained herein or therein shall
in no way be affected, prejudiced or disturbed thereby.
SECTION 7.04. Notices. Any and all notices to be given to the Company
hereunder or under the Receipts shall be in writing and shall be deemed to have
been duly given if personally delivered or sent by mail, or by facsimile
transmission confirmed by letter, addressed to the Company at:
Ford Motor Company
Xxx Xxxxxxxx Xxxx
Xxxxxxxx, Xxxxxxxx 00000
Attention: Secretary
Telephone No.: (000) 000-0000
Facsimile No.: (000) 000-0000
or at any other address of which the Company shall have notified the Depositary
in writing.
-17-
Any and all notices to be given to the Depositary hereunder or under the
Receipts shall be in writing and shall be deemed to have been duly given if
personally delivered or sent by mail, or by facsimile transmission confirmed by
letter, addressed to the Depositary at the Depositary's Office, at:
000 Xxxxxxxxxx Xxxxxxxxx
Xxxx Xxxxx 0000
Xxxxxx Xxxx, XX 00000
Attention: Xxxxxx X. XxXxxxxxx, Vice President
or at any other address of which the Depositary shall have notified the Company
in writing.
Any and all notices to be given to any record holder of a Receipt hereunder
or under the Receipts shall be in writing and shall be deemed to have been duly
given if personally delivered or sent by mail, or by facsimile transmission
confirmed by letter, addressed to such record holder at the address of such
record holder as it appears on the books of the Depositary or, if such holder
shall have filed with the Depositary a written request that notices intended for
such holder be mailed to some other address, at the address designated in such
request.
Delivery of a notice sent by mail or by facsimile transmission shall be
deemed to be effected at the time when a duly addressed letter containing the
same (or a confirmation thereof in the case of a facsimile transmission) is
deposited, postage prepaid, in a post office letter box. The Depositary or the
Company may, however, act upon any facsimile transmission received by it from
the other or from any holder of a Receipt, notwithstanding that such facsimile
transmission shall not subsequently be confirmed by letter or as aforesaid.
SECTION 7.05. 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.
The Company hereby also appoints the Depositary as Registrar and Transfer
Agent in respect of the Receipts and the Depositary hereby accepts such
appointments.
SECTION 7.06. Holders of Receipts Are Parties. The holders of Receipts from
time to time shall be parties to this Deposit Agreement and shall be bound by
and be entitled to the benefit of all of the terms and conditions hereof and of
the Receipts by acceptance of delivery thereof.
SECTION 7.07. Governing Law. This Deposit Agreement and the Receipts and
all rights hereunder and thereunder and provisions hereof and thereof shall be
governed by, and construed in accordance with, the laws of the State of New
York.
SECTION 7.08. Inspection of Deposit Agreement and Certificate. Copies of
this Deposit Agreement and the Certificate shall be filed with the Depositary
and the Depositary's Agents and shall be open to inspection during business
hours at the Depositary's Office and the respective offices of the Depositary's
Agents, if any, by any holder of a Receipt.
-18-
SECTION 7.09. Headings. The headings of articles and sections in this
Deposit Agreement have been inserted for convenience only and are not to be
regarded as a part of this Deposit Agreement or to have any bearing upon the
meaning or interpretation of any provision contained herein.
-19-
IN WITNESS WHEREOF, the Company and the 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.
FORD MOTOR COMPANY
By:/s/X. X. Xxxxxxxxx
-------------------------
X. X. Xxxxxxxxx
Secretary
FIRST CHICAGO TRUST COMPANY
OF NEW YORK
By:
-------------------------
Xxxxxx X. XxXxxxxxx
Vice President
-20-
EXHIBIT A
[FORM OF FACE OF DEPOSITARY RECEIPT]
DEPOSITARY RECEIPT FOR DEPOSITARY SHARES,
EACH REPRESENTING 1/1,000 OF A SHARE OF
SERIES C PARTICIPATING STOCK,
PAR VALUE $1.00 PER SHARE
FORD MOTOR COMPANY
Incorporated under the Laws of the State of Delaware
This Certificate is Transferable in New York
See Reverse for Certain Definitions
CERTIFICATE NUMBER SHARES
First Chicago Trust Company of New York, a corporation duly organized and
existing under the laws of the State of New York, as Depositary (the
"Depositary"), hereby certifies that ________________ is the registered owner of
__________ Depositary Shares ("Depositary Shares"), each Depositary Share
representing one one-thousandth (1/1,000) of a share of Series C Participating
Stock, par value $1.00 per share (the "Stock"), of Ford Motor Company, a
corporation duly organized and existing under the laws of the State of Delaware
(the "Company"). Subject to the terms of a Deposit Agreement (the "Deposit
Agreement") among the Depositary, the Company and holders of receipts for
Depositary Shares ("Receipts"), each owner of a Depositary Share is entitled,
proportionately, to all the powers, preferences and rights and the
qualifications, limitations or restrictions of such preferences and/or rights of
the Stock represented thereby, including dividends, voting, conversion, and
liquidation rights as set forth in the Restated Certificate of Incorporation of
the Company, as amended and supplemented by the Certificate of Designations (the
"Certificate of Designations") fixing the terms of the Stock filed with the
Secretary of State of the State of Delaware.
The Depositary will furnish without charge to any registered owner of
Depositary Shares who so requests, copies of the Restated Certificate of
Incorporation of the Company, Deposit Agreement and Certificate of Designations.
This Receipt shall not be valid or obligatory for any purpose, nor shall
the holder be entitled to any benefits under the Deposit Agreement, unless this
Receipt shall have been executed by manual signature of a duly authorized
officer of the Depositary, or, if a Registrar for the Receipts (other than the
Depositary) shall have been appointed, by manual or facsimile signature of a
duly authorized officer of the Depositary and, if executed by facsimile
signature of the Depositary, shall have been countersigned manually by a duly
authorized officer of the Registrar.
Dated:
-------------------- FIRST CHICAGO TRUST COMPANY OF
NEW YORK
(SEAL) Authorized Officer
[FORM OF REVERSE OF DEPOSITARY RECEIPT]
The Depositary will furnish without charge to any registered owner of
Depositary Shares who so requests, copies of the Restated Certificate of
Incorporation of the Company, Deposit Agreement and Certificate of Designations.
Any such request should be addressed to: Ford Shareholder Services, First
Chicago Trust Company of New York, 000 Xxxxxxxxxx Xxxxxxxxx, Xxxx Xxxxx 0000,
Xxxxxx Xxxx, XX 00000.
The following abbreviations, when used in the inscription on the face of
this certificate, 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______
TEN ENT - as tenants by the entireties (Cust) (Minor)
JT TEN - as joint tenants with right under Uniform Gifts to
of survivorship and not as Minors Act____________
tenants in common (State)
Additional abbreviations may also be used though not in the above list.
NOTICE OF CONVERSION
The undersigned holder of this Receipt for Depositary Shares hereby
irrevocably exercises the option to convert that number of shares of Series C
Participating Stock of the Company represented by __________ Depositary Shares
into shares of Common Stock of the Company in accordance with the terms of and
subject to the conditions of such participating stock, including the Certificate
of Designations in respect thereof and the Deposit Agreement, and directs that
the Common Stock deliverable upon such conversion be registered in the name of
and delivered together with a check in payment for any fractional shares of
Common Stock to the undersigned unless a different name has been indicated
below. If the shares of Common Stock are to be registered in the name of a
person other than the undersigned, the undersigned will pay all transfer and
similar taxes payable with respect thereto. If the number of shares of such
participating stock represented by the number of Depositary Shares set forth
above is less than the number of shares of such participating stock on deposit
in respect of this Receipt, the undersigned directs that the Depositary issue to
the undersigned, unless a different name is indicated below, a new Receipt
evidencing Depositary Shares for the balance of such participating stock not to
be converted.
Dated:
---------------------------- Signature________________________
NAME: Note: The signature to this Notice
---------------------------- of Conversion must correspond with
the name written upon the face of
this Receipt in every particular,
ADDRESS: without alternation or enlargement,
-------------------------- or any change whatever.
(Please print name and
address of Registered Holder)
NAME:
-----------------------------
ADDRESS:
--------------------------
(Please indicate other delivery
instructions if applicable)
ASSIGNMENT
For value received,_____________________, the undersigned, hereby sells,
assigns and transfers unto _______________________ (Please insert social
security or other identifying number of Assignee _______________________ ) the
within Receipt and all rights and interests represented by the Depositary Shares
evidenced thereby, and hereby irrevocably constitutes and appoints _____________
his attorney, to transfer the said Depositary Shares on the books of the
within-named Depositary, with full power of substitution in the premises.
Dated: Signature
----------------------- -------------------------------
Note: The signature to this Assignment
must correspond with the name as written
upon the face of this Receipt in every
particular, without alteration or
enlargement or any change whatever.
