EXHIBIT 4(d)
-------------------------------------------------------------------------------
THE WASHINGTON WATER POWER COMPANY
and
THE BANK OF NEW YORK
As Depositary
---------------
DEPOSIT AGREEMENT
for
$12.40 PREFERRED STOCK, CONVERTIBLE SERIES L
---------------
Dated as of _______, 1998
-------------------------------------------------------------------------------
TABLE OF CONTENTS
PAGE
ARTICLE I.
DEFINITIONS
"ARTICLES OF AMENDMENT". . . . . . . . . . . . . . . . . . . . . . . . . 1
"COMMON STOCK" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
"COMPANY". . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
"CORPORATE OFFICE" . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
"DEPOSIT AGREEMENT". . . . . . . . . . . . . . . . . . . . . . . . . . . 2
"DEPOSITARY" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
"DEPOSITARY RECEIPT" . . . . . . . . . . . . . . . . . . . . . . . . . . 2
"DEPOSITARY SHARE" . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
"DEPOSITARY SUCCESSOR" . . . . . . . . . . . . . . . . . . . . . . . . . 2
"DEPOSITARY'S AGENT" . . . . . . . . . . . . . . . . . . . . . . . . . . 2
"NEW PREFERRED STOCK". . . . . . . . . . . . . . . . . . . . . . . . . . 2
"OPERATING GUIDELINES" . . . . . . . . . . . . . . . . . . . . . . . . . 2
"PERSON" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
"RECORD HOLDER". . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
"REGISTRAR". . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
"RESTATED ARTICLES OF INCORPORATION" . . . . . . . . . . . . . . . . . . 2
"SECURITIES ACT" . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
ARTICLE II.
FORM OF DEPOSITARY RECEIPTS, DEPOSIT OF NEW PREFERRED STOCK,
EXECUTION AND DELIVERY, TRANSFER,
SURRENDER AND CONVERSION OF DEPOSITARY RECEIPTS
SECTION 2.01. FORM AND TRANSFERABILITY OF DEPOSITARY RECEIPTS. . . . . . . . 3
SECTION 2.02. DEPOSIT OF NEW PREFERRED STOCK; EXECUTION AND
DELIVERY OF DEPOSITARY RECEIPTS IN RESPECT THEREOF . . . . . . 4
SECTION 2.03. CONVERSIONS OF NEW PREFERRED STOCK . . . . . . . . . . . . . . 4
SECTION 2.04. TRANSFER OF DEPOSITARY RECEIPTS. . . . . . . . . . . . . . . . 5
SECTION 2.05. COMBINATION AND SPLIT-UPS OF DEPOSITARY RECEIPTS . . . . . . . 6
SECTION 2.06. SURRENDER OF DEPOSITARY RECEIPTS AND WITHDRAWAL
OF NEW PREFERRED STOCK . . . . . . . . . . . . . . . . . . . . 6
SECTION 2.07. LIMITATIONS ON EXECUTION AND DELIVERY,
TRANSFER, SPLIT-UP, COMBINATION, SURRENDER AND
EXCHANGE OF DEPOSITARY RECEIPTS. . . . . . . . . . . . . . . . 7
SECTION 2.08. LOST DEPOSITARY RECEIPTS, ETC. . . . . . . . . . . . . . . . . 8
SECTION 2.09. CANCELLATION AND DESTRUCTION OF SURRENDERED
DEPOSITARY RECEIPTS. . . . . . . . . . . . . . . . . . . . . . 8
ARTICLE III.
CERTAIN OBLIGATIONS OF HOLDERS
OF DEPOSITARY RECEIPTS AND THE COMPANY
SECTION 3.01. FILING PROOFS, CERTIFICATES AND OTHER INFORMATION. . . . . . . 8
SECTION 3.02. PAYMENT OF TAXES OR OTHER GOVERNMENTAL CHARGES . . . . . . . . 8
SECTION 3.03. REPRESENTATIONS AND WARRANTIES AS TO NEW
PREFERRED STOCK. . . . . . . . . . . . . . . . . . . . . . . . 9
ARTICLE IV.
THE NEW PREFERRED STOCK, NOTICES
SECTION 4.01. CASH DISTRIBUTIONS . . . . . . . . . . . . . . . . . . . . . . 9
SECTION 4.02. DISTRIBUTIONS OTHER THAN CASH. . . . . . . . . . . . . . . . . 10
SECTION 4.03. SUBSCRIPTION RIGHTS, PREFERENCES OR PRIVILEGES . . . . . . . . 10
SECTION 4.04. NOTICE OF DIVIDENDS, FIXING OF RECORD DATE
FOR HOLDERS OF DEPOSITARY RECEIPTS . . . . . . . . . . . . . . 11
SECTION 4.05. VOTING RIGHTS. . . . . . . . . . . . . . . . . . . . . . . . . 11
SECTION 4.06. CHANGES AFFECTING NEW PREFERRED STOCK AND
RECLASSIFICATIONS, RECAPITALIZATIONS, ETC. . . . . . . . . . . 12
ARTICLE V.
THE DEPOSITARY AND THE COMPANY
SECTION 5.01. MAINTENANCE OF OFFICES, AGENCIES, TRANSFER
BOOKS BY THE DEPOSITARY; THE REGISTRAR . . . . . . . . . . . . 13
SECTION 5.02. LIABILITY OF THE DEPOSITARY, THE DEPOSITARY'S
AGENTS OR THE COMPANY. . . . . . . . . . . . . . . . . . . . . 14
SECTION 5.03. OBLIGATIONS OF THE DEPOSITARY, THE DEPOSITARY'S
AGENTS AND THE COMPANY . . . . . . . . . . . . . . . . . . . . 14
SECTION 5.04. RESIGNATION AND REMOVAL OF THE DEPOSITARY,
APPOINTMENT OF SUCCESSOR DEPOSITARY. . . . . . . . . . . . . . 16
SECTION 5.05. CORPORATE NOTICES AND REPORTS. . . . . . . . . . . . . . . . . 17
SECTION 5.06. TRUST PROPERTY HELD FOR BENEFIT OF HOLDERS OF
DEPOSITARY RECEIPTS. . . . . . . . . . . . . . . . . . . . . . 17
SECTION 5.07. INDEMNIFICATION BY THE COMPANY . . . . . . . . . . . . . . . . 18
SECTION 5.08. FEES, CHARGES AND EXPENSES . . . . . . . . . . . . . . . . . . 18
ARTICLE VI.
AMENDMENT AND TERMINATION
SECTION 6.01. AMENDMENT. . . . . . . . . . . . . . . . . . . . . . . . . . . 18
SECTION 6.02. TERMINATION. . . . . . . . . . . . . . . . . . . . . . . . . . 19
ARTICLE VII.
MISCELLANEOUS
SECTION 7.01. COUNTERPARTS . . . . . . . . . . . . . . . . . . . . . . . . . 20
SECTION 7.02. EXCLUSIVE BENEFITS OF PARTIES. . . . . . . . . . . . . . . . . 20
SECTION 7.03. INVALIDITY OF PROVISIONS . . . . . . . . . . . . . . . . . . . 20
SECTION 7.04. NOTICES. . . . . . . . . . . . . . . . . . . . . . . . . . . . 20
SECTION 7.05. DEPOSITARY'S AGENTS. . . . . . . . . . . . . . . . . . . . . . 21
SECTION 7.06. HOLDERS OF DEPOSITARY RECEIPTS ARE PARTIES . . . . . . . . . . 21
SECTION 7.07. GOVERNING LAW. . . . . . . . . . . . . . . . . . . . . . . . . 21
SECTION 7.08. HEADINGS . . . . . . . . . . . . . . . . . . . . . . . . . . . 21
-iii-
DEPOSIT AGREEMENT
DEPOSIT AGREEMENT, dated as of _______, 1998, between THE WASHINGTON WATER
POWER COMPANY, a Washington corporation, and The Bank of New York, as
Depositary.
W I T N E S S E T H
WHEREAS, it is desired to provide, as hereinafter set forth in this Deposit
Agreement, for the deposit of shares of $12.40 Preferred Stock, Convertible
Series L, no par value, of the Company (the "New Preferred Stock") with the
Depositary, as agent for the beneficial owners of the New Preferred Stock, for
the purposes set forth in this Deposit Agreement, and for the issuance hereunder
of the Depositary Receipts evidencing Depositary Shares constituting an interest
in the New Preferred Stock so deposited; and
WHEREAS, the Depositary Receipts are to be substantially in the form of the
Depositary Receipt annexed as Exhibit A to this Deposit Agreement, with
appropriate insertions, modifications and omissions, as hereinafter provided in
this Deposit Agreement;
NOW, THEREFORE, in consideration of the premises contained herein, it is
agreed by and among the parties hereto as follows:
ARTICLE I.
DEFINITIONS
The following definitions shall apply to the respective terms (in the
singular and plural forms of such terms) used in this Deposit Agreement and the
Depositary Receipts:
"ARTICLES OF AMENDMENT" shall mean the Articles of Amendment to the
Restated Articles of Incorporation of the Company annexed as Exhibit B to this
Deposit Agreement establishing and setting forth the rights, preferences,
privileges and limitations of the New Preferred Stock.
"COMMON STOCK" shall mean the Company's Common Stock, no par value.
"COMPANY" shall mean The Washington Water Power Company, a Washington
corporation, and its successors.
"CORPORATE OFFICE" shall mean the office of the Depositary at which at any
particular time its depositary receipt business shall be administered, which at
the date of this Deposit Agreement is located at 000 Xxxxxxx Xxxxxx, Xxx Xxxx,
Xxx Xxxx 00000.
"DEPOSIT AGREEMENT" shall mean this agreement, as the same may be amended,
modified or supplemented from time to time.
"DEPOSITARY" shall mean The Bank of New York, and any successor as
depositary hereunder.
"DEPOSITARY RECEIPT" shall mean a depositary receipt issued hereunder to
evidence one or more Depositary Shares, whether in temporary or definitive form.
"DEPOSITARY SHARE" shall mean a one-tenth ownership interest in one share
of New Preferred Stock deposited with the Depositary hereunder, as evidenced by
the Depositary Receipts issued hereunder. Subject to the terms of this Deposit
Agreement, each owner of a Depositary Share is entitled, proportionately, to all
the rights and preferences of the New Preferred Stock represented by such
Depositary Share, including the dividend, voting and liquidation rights
contained in the Articles of Amendment.
"DEPOSITARY SUCCESSOR" means a successor to the Depositary taking title to
the New Preferred Stock in accordance with Section 5.04.
"DEPOSITARY'S AGENT" shall mean an agent appointed by the Depositary as
provided, and for the purposes specified, in Section 7.05.
"NEW PREFERRED STOCK" shall mean shares of the Company's $12.40 Preferred
Stock, Convertible Series L, no par value.
"OPERATING GUIDELINES" means the operating and administrative procedures
relating to the functions of the Depositary pursuant to this Deposit Agreement,
as agreed between the Company and the Depositary from time to time.
"PERSON" means a legal person, including any individual, corporation,
estate, partnership, joint venture, association, joint stock company, limited
liability company, a government or any agency or political subdivision thereof,
or any other entity of whatever nature.
"RECORD HOLDER" as applied to a Depositary Receipt shall mean the person in
whose name a Depositary Receipt is registered on the books maintained by the
Depositary for such purpose.
"REGISTRAR" shall mean any qualified Person appointed by the Company to
register ownership of Depositary Receipts as herein provided.
"RESTATED ARTICLES OF INCORPORATION" shall mean the Restated Articles of
Incorporation, as amended from time to time, of the Company.
-2-
"SECURITIES ACT" shall mean the Securities Act of 1933, as amended.
ARTICLE II.
FORM OF DEPOSITARY RECEIPTS, DEPOSIT OF NEW PREFERRED STOCK,
EXECUTION AND DELIVERY, TRANSFER,
SURRENDER AND CONVERSION OF DEPOSITARY RECEIPTS
SECTION 1.021. FORM AND TRANSFERABILITY OF DEPOSITARY RECEIPTS. Depositary
Receipts 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
Depositary Receipts, the Depositary, upon the written order of the Company,
shall execute and deliver temporary Depositary Receipts that are printed,
lithographed, typewritten, mimeographed or otherwise substantially of the tenor
of the definitive Depositary Receipts in lieu of which they are issued and with
such appropriate insertions, omissions, substitutions and other variations as
the persons executing such Depositary Receipts may determine, as evidenced by
their execution of such Depositary Receipts. If temporary Depositary Receipts
are issued, the Company and the Depositary will cause definitive Depositary
Receipts to be prepared without unreasonable delay. After the preparation of
definitive Depositary Receipts, the temporary Depositary Receipts shall be
exchangeable for definitive Depositary Receipts upon surrender of the temporary
Depositary Receipts at an office described in the second to last paragraph of
Section 2.02, without charge to the holder. Upon surrender for cancellation of
any one or more temporary Depositary Receipts, the Depositary shall execute and
deliver in exchange therefor definitive Depositary Receipts representing the
same number of Depositary Shares as represented by the surrendered temporary
Depositary Receipt or Depositary Receipts. Such exchange shall be made at the
Company's expense and without any charge to the holder thereof. Until so
exchanged, the temporary Depositary Receipts shall in all respects be entitled
to the same benefits under this Agreement, and with respect to the New Preferred
Stock deposited hereunder, as definitive Depositary Receipts.
Depositary Receipts shall be executed by the Depositary by the manual
signature of a duly authorized signatory of the Depositary; provided, however,
that such signature may be a facsimile if a Registrar (other than the
Depositary) shall have countersigned the Depositary Receipts by manual signature
of a duly authorized signatory of the Registrar. No Depositary 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 Depositary Receipt
executed as provided above and delivered as hereinafter provided.
-3-
Except as the Depositary may otherwise determine, Depositary Receipts shall
be in denominations of any number of whole Depositary Shares. All Depositary
Receipts shall be dated the date of their execution.
Depositary 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 New Preferred Stock, the Depositary
Shares or the Depositary 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 Depositary Receipts are subject by reason of the date of
issuance of the New Preferred Stock or otherwise.
Title to any Depositary Receipt (and to the Depositary Shares evidenced by
such Depositary 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 Depositary Receipt shall be transferred 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
distribution of dividends or other distributions or to any notice provided for
in this Deposit Agreement and for all other purposes.
SECTION 1.022. DEPOSIT OF NEW PREFERRED STOCK; EXECUTION AND DELIVERY OF
DEPOSITARY RECEIPTS IN RESPECT THEREOF. On the date the New Preferred Stock is
initially issued by the Company, the Depositary, upon receipt of a written order
from the Company and a certificate or certificates for the New Preferred Stock
to be deposited under this Deposit Agreement in accordance with the provisions
of this Section, shall execute and deliver a Depositary Receipt or Depositary
Receipts for the number of Depositary Shares representing such deposited New
Preferred Stock to the person or persons stated in such order. Deposited New
Preferred Stock shall be held by the Depositary in an account to be established
by the Depositary at the Corporate Office.
The Company shall deliver to the Depositary from time to time such
quantities of Depositary Receipts as the Depositary may reasonably request to
enable the Depositary to perform its obligations under this Deposit Agreement.
SECTION 1.023. CONVERSIONS OF NEW PREFERRED STOCK. Whenever the Company
shall convert New Preferred Stock into Common Stock in accordance with the
Articles of Amendment, it shall (unless otherwise agreed in writing with the
Depositary) give the Depositary in its capacity as Depositary not less than
[five] business days prior notice of the proposed date of the mailing of the
notice of conversion to be effected in connection with a conversion of New
Preferred Stock and of the number of such shares of New Preferred Stock held by
the Depositary to be converted as hereinafter provided.
-4-
The Depositary shall, as directed by the Company, mail, first class postage
prepaid, the notice of the conversion of New Preferred Stock not less than 15
and not more than 60 days prior to the date fixed for conversion (the
"conversion date") of such New Preferred Stock. Such notice shall be mailed to
each holder of record of the Depositary Receipts evidencing the Depositary
Shares, at the address of such holder as the same appears on the records of the
Depositary; but the failure to mail any such notice of conversion or any defect
therein or the mailing thereof shall not prevent the occurrence of such
conversion or impair the validity thereof.
With respect to the notices provided in this Section 2.03, the Company
shall provide the Depositary with such notice, and each such notice shall, as
appropriate and to the extent determinable at the time of such notice, state:
the conversion date; in connection with an optional redemption, the Optional
Conversion Price, the number of shares of Common Stock deliverable upon
conversion of each share of New Preferred Stock, the Current Market Price used
to calculate the number of shares of Common Stock (subject to any subsequent
adjustments pursuant to paragraph Third of the Articles of Amendment) and the
number of shares of Common Stock to be delivered in respect of each Depositary
Share, the Optional Conversion Premium and whether the same will be paid in cash
or in shares of Common Stock and, if to be paid in shares of Common Stock, the
number of shares to be delivered in respect of each share of New Preferred Stock
and in receipt of each Depositary Share; in connection with a mandatory
conversion, the number of shares of Common Stock deliverable upon conversion of
each share of New Preferred Stock and the then effective Common Equivalent Rate
used to calculate the number of shares of Common Stock (subject to any
subsequent adjustments pursuant to paragraph Third of the Articles of Amendment)
and the number of shares of Common Stock to be delivered in respect of each
Depositary Share; the place or places where Depositary Receipts evidencing
Depositary Shares are to be surrendered for certificates and/or cash
representing the conversion price; and that dividends in respect of the New
Preferred Stock to be converted will cease to accrue on such conversion date.
Notice having been mailed by the Depositary as aforesaid, from and after
the conversion date, the Depositary Shares shall be deemed no longer to be
outstanding and all rights of the holders of Depositary Receipts evidencing such
Depositary Shares (except the right to receive the shares of Common Stock and
any cash upon conversion) shall cease and terminate. Upon surrender in
accordance with said notices of the Depositary Receipts evidencing such
Depositary Shares (properly endorsed or assigned for transfer, if the Depositary
shall so require), such Depositary Shares shall be exchanged for shares of
Common Stock at a rate equal to one-tenth of the number of shares of Common
Stock delivered in respect of the shares of New Preferred Stock represented by
such Depositary Shares; provided, however, that no fractional shares of Common
Stock shall be distributed.
SECTION 2.04. TRANSFER OF DEPOSITARY RECEIPTS. Subject to the terms and
conditions of this Deposit Agreement, the Depositary shall make transfers on its
books from time to time of Depositary Receipts upon any surrender thereof by the
holder in person
-5-
or by a duly authorized attorney, 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 execute a new Depositary Receipt or
Depositary 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 Depositary Receipt or Depositary Receipts surrendered.
The Depositary shall not be required to issue, transfer or exchange any
Depositary Receipts for a period beginning at the opening of business 15 days
next preceding the date of the selection of New Preferred Stock to be converted
and ending at the close of business on the day of the mailing of notice of
conversion of New Preferred Stock.
SECTION 2.05. COMBINATION AND SPLIT-UPS OF DEPOSITARY RECEIPTS. Upon
surrender of a Depositary Receipt or Depositary Receipts at the Corporate Office
or such other office as the Depositary may designate for the purpose of
effecting a split-up or combination of Depositary Receipts, subject to the terms
and conditions of this Deposit Agreement, the Depositary shall execute and
deliver a new Depositary Receipt or Depositary Receipts in the authorized
denominations requested evidencing the same aggregate number of Depositary
Shares evidenced by the Depositary Receipt or Depositary Receipts surrendered;
provided, however, that the Depositary shall not issue any Depositary Receipt
evidencing fractional Depositary Shares.
SECTION 2.06. SURRENDER OF DEPOSITARY RECEIPTS AND WITHDRAWAL OF NEW
PREFERRED STOCK. Any holder of a Depositary Receipt or Depositary Receipts may
withdraw any or all of the New Preferred Stock (but only whole shares)
represented by the Depositary Shares evidenced by such Depositary Receipts by
surrendering such Depositary Receipt or Depositary Receipts at the Corporate
Office or at such other office as the Depositary may designate for such
withdrawals. 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 whole number of shares of New Preferred
Stock represented by the Depositary Shares evidenced by the Depositary Receipt
or Depositary Receipts so surrendered. Delivery of the New Preferred Stock
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.
Holders of a Depositary Receipt or Depositary Receipts who withdraw New
Preferred Stock will not thereafter be entitled to deposit such shares of New
Preferred Stock hereunder or to receive Depositary Shares therefor. If, prior
to a conversion, the Depositary Receipt or Depositary 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 whole number of shares of New Preferred Stock to be withdrawn,
the Depositary shall at the same time, in addition to such whole number of
shares of New Preferred Stock, deliver to such holder, or (subject to Section
2.04) upon his order,
-6-
a new Depositary Receipt or Depositary Receipts evidencing such excess number
of Depositary Shares.
To the extent that Depositary Receipts are surrendered and all shares of
New Preferred Stock which would otherwise be distributed cannot be distributed
to the record holder of Depositary Receipts without creating fractional
interests in such shares of New Preferred Stock or, the Depositary may, with the
consent 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 such shares of New Preferred Stock representing in the
aggregate such fractional interests at such place or places and upon such terms
as it may deem proper, and the net proceeds of any such sale shall, subject to
Section 3.02, be distributed or made available for distribution to such record
holders that would otherwise receive fractional interests in such shares of New
Preferred Stock.
If the New Preferred Stock being withdrawn is to be delivered to a person
or persons other than the registered holder of the Depositary Receipt or
Depositary Receipts being surrendered for withdrawal of such New 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 Depositary
Receipt or Depositary Receipts surrendered by such holder for withdrawal of such
shares of New 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 New Preferred Stock represented by the
Depositary Shares evidenced by Depositary Receipts surrendered for withdrawal at
the Corporate Office, except that, at the request, risk and expense of the
holder surrendering such Depositary Receipt or Depositary 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 2.07. LIMITATIONS ON EXECUTION AND DELIVERY, TRANSFER, SPLIT-UP,
COMBINATION, SURRENDER AND EXCHANGE OF DEPOSITARY RECEIPTS. As a condition
precedent to the execution and delivery, transfer, split-up, combination,
surrender or exchange of any Depositary 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 tax or other governmental charge with respect thereto (including any such
tax or charge with respect to the New Preferred Stock being withdrawn or with
respect to the Common Stock of the Company being issued upon conversion); (ii)
the production of proof satisfactory to it as to the identity and genuineness of
any signature; and (iii) compliance with such regulations, if any, as the
Depositary or the Company may establish not inconsistent with the provisions of
this Deposit Agreement.
The transfer of Depositary Receipts may be refused and the transfer,
split-up, combination, surrender or exchange of outstanding Depositary
Receipts may be suspended (i) during a period when the register of
shareholders of the Company is closed, (ii) if any such
-7-
action is deemed necessary or advisable by the Depositary, any of the
Depositary's Agents or the Company at any time or from time to time because
of any requirement of law or of any government or governmental body or
commission, or under any provision of this Deposit Agreement, or (iii) with
the approval of the Company, for any other reason.
SECTION 2.08. LOST DEPOSITARY RECEIPTS, ETC. In case any Depositary
Receipt shall be mutilated or destroyed or lost or stolen, the Depositary in its
discretion may execute and deliver a Depositary Receipt of like form and tenor
in exchange and substitution for such mutilated Depositary Receipt or in lieu of
and in substitution for such destroyed, lost or stolen Depositary Receipt;
provided, however, that the holder thereof provides the Depositary with (i)
evidence satisfactory to the Depositary of such destruction, loss or theft of
such Depositary Receipt, of the authenticity thereof and of his ownership
thereof, (ii) reasonable indemnification satisfactory to the Depositary and
(iii) payment of any expense (including fees, charges and expenses of the
Depositary) in connection with such indemnification, execution and delivery.
SECTION 2.09. CANCELLATION AND DESTRUCTION OF SURRENDERED DEPOSITARY
RECEIPTS. All Depositary Receipts surrendered to the Depositary or any
Depositary's Agent shall be canceled by the Depositary. Except as prohibited by
applicable law or regulation, the Depositary is authorized to destroy such
Depositary Receipts so canceled.
ARTICLE III.
CERTAIN OBLIGATIONS OF HOLDERS
OF DEPOSITARY RECEIPTS AND THE COMPANY
SECTION 3.01. FILING PROOFS, CERTIFICATES AND OTHER INFORMATION. Any
holder of a Depositary 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 Depositary Receipt, the transfer, conversion or
exchange of any Depositary Receipt, the withdrawal of the New Preferred Stock
represented by the Depositary Shares evidenced by any Depositary Receipt or the
distribution of any dividend or other distribution until such proof or other
information is filed, such certificates are executed or such representations and
warranties are made.
SECTION 3.02. PAYMENT OF TAXES OR OTHER GOVERNMENTAL CHARGES. If any tax
or other governmental charge shall become payable by or on behalf of the
Depositary with respect to any Depositary Receipt, the Depositary Shares
evidenced by such Depositary Receipt, the New Preferred Stock (or any fractional
interest therein) represented by such Depositary Shares or any transaction
referred to in Section 4.06, such tax (including transfer, issuance or
acquisition taxes, if any) or governmental charge shall be payable by the holder
-8-
of such Depositary Receipt. Until such payment is made, transfer of any
Depositary Receipt or any withdrawal of the New Preferred Stock represented by
the Depositary Shares evidenced by such Depositary Receipt may be refused and
any dividend or other distribution may be withheld. Any dividend or other
distribution so withheld may be applied to any payment of such tax or other
governmental charge, the holder of such Depositary Receipt remaining liable for
any deficiency. Unless the Company determines otherwise, the Depositary shall
act as the withholding agent for any payments, distributions and exchanges made
with respect to the Depositary Shares and Depositary Receipts, and the New
Preferred Stock represented thereby (collectively, the "Securities"). The
Depositary shall be responsible with respect to the Securities for the timely
(i) collection and deposit of any required withholding or backup withholding
tax, and (ii) filing of any information returns or other documents with federal
(and other applicable) taxing authorities. In the event the Depositary is
required to pay any such amounts, the Company shall reimburse the Depositary for
payment thereof upon the request of the Depositary and the Depositary shall,
upon the Company's request and as instructed by the Company, pursue its rights
against such holder at the Company's expense.
SECTION 3.03. REPRESENTATIONS AND WARRANTIES AS TO NEW PREFERRED STOCK.
The Company hereby represents and warrants that the New Preferred Stock has been
validly issued and is fully paid and nonassessable and that the Company is duly
authorized to deposit the New Preferred Stock. Such representations and
warranties shall survive the deposit of the New Preferred Stock and the issuance
of Depositary Receipts.
ARTICLE IV.
THE NEW PREFERRED STOCK, NOTICES
SECTION 4.01. CASH DISTRIBUTIONS. Whenever any cash dividend or other
cash distribution shall be paid on the New Preferred Stock, the Company, on
behalf of the Depositary, (or, if the Company determines otherwise, the
Depositary) shall, subject to Sections 3.01 and 3.02, distribute on the payment
date to record holders of Depositary 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
Depositary Receipts held by such holders; provided, however, that in case the
Company or the Depositary shall be required to withhold and does withhold from
any cash dividend or other cash distribution in respect of the New Preferred
Stock an amount on account of taxes or as otherwise required pursuant to law,
regulation or court process, the amount made available for distribution or
distributed in respect of Depositary Shares shall be reduced accordingly. The
Company, on behalf of the Depositary, (or, if the Company determines otherwise,
the Depositary) shall distribute or make available for distribution, as the case
may be, only such amount, however, as can be distributed without attributing to
any owner of Depositary Shares a fraction of one cent. In the event that the
calculation of any such cash dividend or other cash distribution to be paid to
any record holder on the aggregate
-9-
number of Depositary Shares held by such holder results in an amount which is
a fraction of a cent, the amount the Depositary shall distribute to such
record holder shall be rounded to the next highest whole cent; and upon
request of the Depositary, the Company shall pay the additional amount to the
Depositary for distribution.
SECTION 4.02. DISTRIBUTIONS OTHER THAN CASH. Whenever any distribution
other than cash shall be made on the New Preferred Stock, the Company, on behalf
of the Depositary (or, if the Company determines otherwise, the Depositary)
shall, subject to Sections 3.01 and 3.02, distribute on the payment date to
record holders of Depositary 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 Depositary Receipts held by such holders, in any manner
that the Company may deem equitable and practicable for accomplishing such
distribution. If, in the opinion of 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 or as otherwise required pursuant to law, regulation or
court process), the Company deems such distribution not to be feasible, the
Company, on behalf of the Depositary (or, if the Company determines otherwise,
the Depositary) may adopt such method as it deems equitable and appropriate 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
Company, on behalf of the Depositary (or, if the Company determines otherwise,
the Depositary) to record holders of Depositary Receipts as provided by Section
4.01 in the case of a distribution received in cash.
SECTION 4.03. SUBSCRIPTION RIGHTS, PREFERENCES OR PRIVILEGES. If the
Company shall at any time offer or cause to be offered to the persons in whose
names New 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 or
the Company to the record holders of Depositary Receipts if the Company so
directs 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 that it is not
lawful or feasible to make such rights, preferences or privileges available to
some or all holders of Depositary Receipts (by the issue of warrants or
otherwise) or (b) if and to the extent instructed by holders of Depositary
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 Sections
-10-
3.01 and 3.02, be distributed by the Depositary or the Company, as the case
may be, to the record holders of Depositary 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
Depositary Receipts to be offered or sold such securities, the Company shall
promptly file a registration statement pursuant to the Securities Act with
respect to such rights, preferences or privileges and securities and use its
best efforts and take all steps available to it to cause such registration
statement to become effective sufficiently in advance of the expiration of such
rights, preferences or privileges to enable such holders to exercise such
rights, preferences or privileges. In no event shall the Depositary make
available to the holders of Depositary Receipts any right, preference or
privilege to subscribe for or to purchase any securities unless and until the
Depositary has been notified by the Company that such registration statement has
become effective or that the offering and sale of such securities to such
holders are exempt from registration under the provisions of the Securities Act.
If any other action under the law of any jurisdiction or any governmental
or administrative authorization, consent or permit is required in order for such
rights, preferences or privileges to be made available to holders of Depositary
Receipts, the Company will use its best efforts to take such action or obtain
such authorization, consent or permit sufficiently in advance of the expiration
of such rights, preferences or privileges to enable such holders to exercise
such rights, preferences or privileges.
SECTION 4.04. NOTICE OF DIVIDENDS, FIXING OF RECORD DATE FOR HOLDERS OF
DEPOSITARY RECEIPTS. Whenever (i) 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 New Preferred Stock, or (ii) the Depositary shall receive notice of any
meeting at which holders of New Preferred Stock are entitled to vote or of which
holders of New Preferred Stock are entitled to notice or any solicitation of
consents in respect of the New Preferred Stock, or any event of which holders of
New Preferred Stock are entitled to notice in accordance with the Articles of
Amendment, 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 New Preferred Stock) for the determination of the holders of Depositary
Receipts (x) who shall be entitled to receive such dividend, distribution,
rights, preferences or privileges or the net proceeds of the sale thereof, (y)
who shall be entitled to receive notice of, and to give instructions for the
exercise of voting rights at, or the delivery of consents with respect to, any
such meeting or consent solicitation, as the case may be, or (z) who shall be
entitled to receive notice of any conversion or other event.
SECTION 4.05. VOTING RIGHTS. Promptly upon receipt of notice of any
meeting at which the holders of New Preferred Stock are entitled to vote, the
Depositary (unless another arrangement for allowing holders of Depositary Shares
to exercise the voting
-11-
rights associated with the Depositary Shares is agreed by the Company and the
Depositary), shall mail to the record holders of Depositary 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 Depositary Receipts at the close of business on a
specified record date fixed pursuant to Section 4.04 will be entitled,
subject to any applicable provision of law, the Restated Articles of
Incorporation or the Articles of Amendment, to instruct the Depositary as to
the exercise of the voting rights with respect to the number of shares of New
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 Depositary Receipt on such record
date, the Depositary shall endeavor insofar as practicable to vote or cause
to be voted with respect to the amount of New Preferred Stock represented by
the Depositary Shares evidenced by such Depositary Receipt in accordance with
the instructions set forth in such request. The Depositary will abstain from
voting with respect to the New Preferred Stock to the extent that it does not
receive specific instructions from the holders of Depositary Receipts.
SECTION 4.06. CHANGES AFFECTING NEW PREFERRED STOCK AND RECLASSIFICATIONS,
RECAPITALIZATIONS, ETC. Upon any conversion, split-up, consolidation or any
other reclassification of New Preferred Stock, or upon any recapitalization,
reorganization, merger, amalgamation or consolidation affecting the Company or
to which it is a party or sale of all or substantially all of the Company's
assets, the Depositary shall, upon the instructions of the Company, treat any
shares of stock or other securities (including depositary shares) or property
(including cash) that shall be received by the Depositary in exchange for or
upon conversion of or in respect of the New Preferred Stock as new deposited
property under this Deposit Agreement, and Depositary 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 of or
in respect of such New Preferred Stock. In any such case the Depositary may, in
its discretion, with the approval of the Company, execute and deliver additional
Depositary Receipts, or may call for the surrender of all outstanding Depositary
Receipts to be exchanged for new Depositary Receipts specifically describing
such new deposited property. If upon any conversion, split-up, consolidation or
any other reclassification of New Preferred Stock, or upon any recapitalization,
reorganization, merger, amalgamation or consolidation affecting the Company or
to which it is a party or sale of all or substantially all of the Company's
assets the Company delivers to the Depositary shares of stock or other
securities (including depositary shares) or property (including cash) a portion
of which is to be distributed to record holders of Depositary Receipts in
accordance with Sections 4.01, 4.02 and 4.03 and a portion of which is to be
received by the Depositary in exchange for or upon conversion of or in respect
of the New Preferred Stock as new deposited property under this Section 4.06,
the Company shall clearly indicate such division in the instructions to the
Depositary provided pursuant to this Section 4.06.
-12-
ARTICLE V.
THE DEPOSITARY AND THE COMPANY
SECTION 5.01. MAINTENANCE OF OFFICES, AGENCIES, TRANSFER BOOKS BY THE
DEPOSITARY; THE REGISTRAR. Upon execution of this Deposit Agreement in
accordance with its terms, the Depositary shall maintain at the Corporate Office
facilities for the execution and delivery, transfer, surrender and exchange,
split-up and combination of Depositary Receipts and the deposit and withdrawal
of New Preferred Stock and Common Stock and at the offices of the Depositary's
Agents, if any, facilities for the delivery, transfer, surrender and exchange,
split-up, combination and conversion of Depositary Receipts and the deposit and
withdrawal of New Preferred Stock and Common Stock, all in accordance with the
provisions of this Deposit Agreement.
The Depositary shall keep books at the Corporate Office for the
registration and transfer of Depositary Receipts, which books at all reasonable
times shall be open for inspection by the record holders of Depositary Receipts
as and to the extent provided by applicable law. The Depositary shall consult
with the Company upon receipt of any request for inspection. The Depositary may
close such books, at any time or from time to time, when deemed expedient by it
in connection with the performance of its duties hereunder.
The Depositary shall make available for inspection by holders of Depositary
Receipts at the Corporate 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 New Preferred Stock and made generally available to the holders of New
Preferred Stock.
Promptly upon request from time to time by the Company and at the Company's
sole expense, the Depositary shall furnish to it a list, as of a recent date, of
the names, addresses and holdings of Depositary Shares of all persons in whose
names Depositary Receipts are registered on the books of the Depositary.
If the Depositary Receipts or the Depositary Shares evidenced thereby or
the New Preferred Stock represented by such Depositary Shares shall be listed on
the New York Stock Exchange (the "NYSE"), the Depositary shall, if directed by
the Company, appoint a Registrar for registry of such Depositary Receipts or
Depositary Shares in accordance with the requirements of the NYSE. Such
Registrar (which may be the Depositary if so permitted by the requirements of
the NYSE) may be removed and a substitute registrar appointed by the Depositary
upon the request or with the approval of the Company. If the Depositary
Receipts, the Depositary Shares or the New Preferred 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, transfer, surrender and exchange of
such Depositary Receipts, such Depositary Shares or such New Preferred Stock as
may be required by law or applicable stock exchange regulations.
-13-
SECTION 5.02. LIABILITY OF THE DEPOSITARY, THE DEPOSITARY'S AGENTS OR THE
COMPANY. Neither the Depositary nor any Depositary's Agent nor the Company
shall incur any liability to any holder of any Depositary 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 or the Depositary's Agent, by reason of any provision, present
or future, of the Restated Articles of Incorporation or the Articles of
Amendment or, in the case of the Company, the Depositary or the Depositary's
Agent, by reason of any act of God or war or other circumstances beyond the
control of the relevant party, the Depositary, any Depositary's Agent or the
Company shall be prevented or forbidden from doing or performing any act or
thing that the terms of this Deposit Agreement provide shall be done or
performed; nor shall the Depositary, any Depositary's Agent or the Company incur
any liability to any holder of a Depositary 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 except, in case of any such
exercise or failure to exercise discretion not caused as aforesaid, if caused by
the negligence, bad faith or willful misconduct of the party charged with such
exercise or failure to exercise.
SECTION 5.03. OBLIGATIONS OF THE DEPOSITARY, THE DEPOSITARY'S AGENTS AND
THE COMPANY. Neither the Depositary nor any Depositary's Agent nor the Company
nor the Registrar assumes any obligation or shall be subject to any liability
under this Deposit Agreement or any Depositary Receipt to holders of Depositary
Receipts other than that each of them agrees to use good faith in the
performance of such duties as are specifically set forth in this Deposit
Agreement and other than for its negligence, bad faith or willful misconduct.
Neither the Depositary nor any Depositary's Agent nor the Company nor the
Registrar shall be under any obligation to appear in, prosecute or defend any
action, suit or other proceeding with respect to New Preferred Stock, Depositary
Shares or Depositary Receipts or Common Stock or other securities or property
that in its opinion may involve it in expense or liability, unless indemnity
satisfactory to it against all expense and liability be furnished as often as
may be required.
Neither the Depositary nor any Depositary's Agent nor the Company nor the
Registrar shall be liable for any action or any failure to act by it in reliance
upon the advice of or information from legal counsel, accountants, any holder of
a Depositary Receipt or any other person believed by it in good faith to be
competent to give such advice or information. The Depositary, any Depositary's
Agent, the Registrar and the Company may each rely and shall each be protected
in acting upon any written notice, request, direction or other document believed
by it to be genuine and to have been signed or presented by the proper party or
parties.
-14-
Notwithstanding the first paragraph of this Section 5.03, the Depositary
shall not be responsible for any failure to carry out any instruction to vote
any of the deposited shares of New 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
or in accordance with this Deposit Agreement. 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 with respect
to the Depositary or any Registrar. The Depositary will indemnify the Company
against any liability that may arise out of acts performed or omitted by the
Depositary or its agents due to its or their negligence, bad faith or willful
misconduct. The Depositary, its parent, affiliates or subsidiaries and any
Depositary's Agent may own, buy, sell or deal in any class of securities of the
Company and its affiliates and in Depositary 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 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 New Preferred Stock.
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.
Each of the Company and the Depositary agree to be bound by, and act in
accordance with, the Operating Guidelines current from time to time.
The Depositary shall not lend any securities, cash or other property on
deposit under this agreement.
Neither the Depositary (or its officers, directors, employees or agents)
nor any Depositary's Agent nor the Registrar makes any representation or has any
responsibility as to the validity of the Prospectus pursuant to which the
Depositary Shares are offered, the New Preferred Stock, the Depositary Shares or
the Depositary Receipts (except its countersignature thereon), or any
instruments referred to therein or herein, or as to the correctness of any
statement made therein or herein; provided, however, that the Depositary is
responsible for its representations in this Deposit Agreement.
The Depositary assumes no responsibility for the correctness of the
description that appears in the Depositary Receipts, which can be taken as a
statement of the Company summarizing certain provisions of this Deposit
Agreement. Notwithstanding any other
-15-
provision herein or in the Depositary Receipts, the Depositary makes no
warranties or representations as to the validity, genuineness or sufficiency
of any New Preferred Stock at any time deposited with the Depositary
hereunder or of the Depositary Shares, as to the validity or sufficiency of
this Deposit Agreement, as to the value of the Depositary Shares or as to any
right, title or interest of the record holders of Depositary Receipts in and
to the Depositary Shares, except that the Depositary hereby represents and
warrants as follows: (i) the Depositary has been duly organized and is
validly existing and in good standing under the laws of the State of New
York, with full power, authority and legal right under such law to execute,
deliver and carry out the terms of this Deposit Agreement; (ii) this Deposit
Agreement has been duly authorized, executed and delivered by the Depositary;
and (iii) this Deposit Agreement constitutes a valid and binding obligation
of the Depositary, enforceable against the Depositary in accordance with its
terms, except as enforcement thereof may be limited by bankruptcy,
insolvency, reorganization or other similar laws affecting enforcement of
creditors, rights generally and except as enforcement thereof is subject to
general principles of equity (regardless of whether enforcement is considered
in a proceeding in equity or at law). The Depositary shall not be
accountable for the use or application by the Company of the Depositary
Shares or the Depositary Receipts or the proceeds thereof.
SECTION 5.04. RESIGNATION AND REMOVAL OF THE DEPOSITARY, APPOINTMENT OF
SUCCESSOR DEPOSITARY. The Depositary may at any time resign as Depositary
hereunder by 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 Company may, by notice in writing to the Depositary, terminate the
engagement of the Depositary with respect to any or all of the duties or
obligations of the Depositary set out in this Deposit Agreement (including such
duties as are customarily associated with the role of a transfer agent or paying
agent), such termination to take effect upon the appointment of a successor to
fulfill those duties or obligations and its acceptance of such appointment as
hereinafter provided. In the event that the Company terminates the engagement
of the Depositary with respect to some, but not all, of the duties or
obligations of the Depositary, the Depositary shall thereafter be deemed only to
have such rights and obligations under this Deposit Agreement as are necessary
for it to fulfill its remaining duties or obligations. The Depositary agrees to
cooperate with the Company or any person appointed by the Company or that person
with respect to the performance of any of the duties previously performed by the
Depositary.
In case at any time the Depositary acting hereunder shall resign or the
Company shall terminate the engagement of the Depositary with respect to any or
all of the duties or obligations of the Depositary set out in this Deposit
Agreement, the Company shall, within 45 days after the delivery of the notice of
resignation or termination, as the case may be, appoint a successor with respect
to such duties and obligations so terminated. If such successor is to take
title to the New Preferred Stock (a "Depositary Successor"), the Depositary
Successor shall be a bank or trust company, or an affiliate of a bank or trust
-16-
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 shall
not have been appointed in 45 days, the resigning Depositary may petition a
court of competent jurisdiction to appoint a successor.
Every Depositary Successor shall execute and deliver to its predecessor and
to the Company an instrument in writing accepting its appointment hereunder, and
thereupon such Depositary Successor, without any further act or deed, shall
become fully vested with all the duties and obligations of its predecessor so
terminated and all rights and powers with respect thereto and for all purposes
shall be the Depositary under this Deposit Agreement with respect to the duties
and obligations of the predecessor so terminated, 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 Depositary
Successor all such rights and powers of such predecessor hereunder, shall, if
applicable, duly assign, transfer and deliver all rights, title and interest in
the New Preferred Stock and any moneys or property held hereunder to such
Depositary Successor and shall, if applicable, deliver to such Depositary
Successor a list of the record holders of all outstanding Depositary Receipts.
Any Depositary Successor shall promptly mail notice of its appointment to the
record holders of Depositary Receipts.
Any corporation into or with which the Depositary may be merged,
consolidated or converted shall be the successor of such Depositary without the
execution or filing of any document or any further act. Such successor
depositary may execute the Depositary Receipts either in the name of the
predecessor depositary or in the name of the successor depositary.
SECTION 5.05. CORPORATE NOTICES AND REPORTS. The Company agrees that it
will deliver to the Depositary, and the Depositary will, promptly after receipt
thereof, transmit to the record holders of Depositary Receipts, in each case at
the address recorded in the Depositary's books, copies of all notices and
reports (including financial statements) required by law, by the rules of any
national securities exchange upon which the New Preferred Stock, the Depositary
Shares or the Depositary Receipts are listed or by the Restated Articles of
Incorporation and the Articles of Amendment to be furnished by the Company to
holders of New Preferred Stock. Such transmission will be at the Company's
expense and the Company will provide the Depositary with such number of copies
of such documents as the Depositary may reasonably request. In addition, the
Depositary will transmit to the record holders of Depositary Receipts at the
Company's expense such other documents as may be requested by the Company. The
Depositary will make available for inspection by holders of Depositary Receipts
at the Corporate Office and at such other places as it may from time to time
deem advisable during normal business hours any such notices and reports
received from the Company.
SECTION 5.06. TRUST PROPERTY HELD FOR BENEFIT OF HOLDERS OF DEPOSITARY
RECEIPTS. The New Preferred Stock, the Common Stock into which the New
Preferred Stock
-17-
shall be converted and any cash or other property received by the Depositary
in respect of the New Preferred Stock and/or such Common Stock shall be held
by the Depositary, in accordance with the provisions of this Deposit
Agreement, for the benefit of the holders from time to time of the Depositary
Receipts, and the Company shall have no right, title or interest therein.
SECTION 5.07. INDEMNIFICATION BY THE COMPANY. The Company agrees to
indemnify the Depositary, any Depositary's Agent and any Registrar against, and
hold each of them harmless from, any liability, costs and expenses (including
reasonable 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 Depositary Receipts, except for any liability arising
out of negligence, bad faith or willful misconduct on the part of any such
person or persons.
SECTION 5.08. FEES, CHARGES AND EXPENSES. No fees, charges and expenses
of the Depositary or any Depositary's Agent hereunder or of any Registrar shall
be payable by any person other than the Company, except for any taxes and other
governmental charges and except as provided in this Deposit Agreement. If the
Depositary incurs fees, charges or expenses for which it is not otherwise liable
hereunder at the election of a holder of a Depositary Receipt or other person,
such holder or other person will be liable for such fees, charges and expenses.
All other fees, charges and expenses of the Depositary and any Depositary's
Agent hereunder and of any Registrar (including, in each case, fees and expenses
of counsel) incident to the performance of their respective obligations
hereunder will be paid from time to time upon consultation and agreement between
the Depositary and the Company as to the amount and nature of such fees, charges
and expenses.
ARTICLE VI.
AMENDMENT AND TERMINATION
SECTION 6.01. AMENDMENT. The form of the Depositary Receipts and any
provision of this Deposit Agreement may at any time and from time to time be
amended by agreement between the Company and the Depositary in any respect that
they may deem necessary or desirable. Any amendment that shall impose or
increase any fees, taxes or charges upon holders of Depositary Receipts (other
than fees and charges provided for herein or in the Depositary Receipts), or
that shall otherwise prejudice any substantial existing right of holders of
Depositary Receipts, shall not become effective as to outstanding Depositary
Receipts until the expiration of 30 days after notice of such amendment shall
have been given to the record holders of outstanding Depositary Receipts. Every
holder of an outstanding Depositary Receipt at the time any such amendment
becomes effective shall be deemed, by continuing to hold such Depositary
Receipt, to consent and agree to such amendment and to be bound by this Deposit
Agreement as amended thereby. In no event shall any amendment impair the right,
subject to the provisions of Sections 2.03, 2.06, 2.07 and Article III, of any
-18-
owner of any Depositary Shares to surrender the Depositary Receipt evidencing
such Depositary Shares with instructions to the Depositary to deliver to the
holder the New Preferred Stock or Common Stock, as applicable, represented
thereby, except in order to comply with mandatory provisions of applicable
law.
SECTION 6.02. TERMINATION. This Deposit Agreement may be terminated by
the Company or the Depositary only after (i) all the outstanding New Preferred
Stock has been converted as contemplated in Section 2.03 or (ii) there shall
have been made a final distribution in respect of the New Preferred Stock (or
the Common Stock into which the New Preferred Stock shall have been converted)
in connection with any liquidation, dissolution or winding up of the Company and
such distribution shall have been made to the holders of Depositary Shares
pursuant to Section 4.01 or 4.02 as applicable. The Company and the Depositary
shall undertake to terminate this Deposit Agreement as soon as reasonably
practicable after any such conversion or distribution.
If any Depositary Receipts shall remain outstanding after the date of
termination of this Deposit Agreement, the Depositary thereafter shall
discontinue the transfer of Depositary Receipts, the Company or the Depositary,
as the case may be, shall suspend the distribution of dividends to the holders
thereof, and the Depositary shall not give any further notices (other than
notice of such termination) or perform any further acts under this Deposit
Agreement, except that the Depositary shall, if applicable, continue to collect
dividends and other distributions pertaining to New Preferred Stock, sell
rights, preferences or privileges as provided in this Deposit Agreement and
shall continue to deliver the New Preferred Stock and any money and other
property represented by Depositary Receipts upon surrender thereof by the
holders thereof. At any time after the expiration of two years from the date of
termination, the Depositary may sell New Preferred Stock then held hereunder at
public or private sale, at such places and upon such terms as it deems proper
and may thereafter hold the net proceeds of any such sale, together with any
money and other property held by it hereunder, without liability for interest,
for the benefit, pro rata in accordance with their holdings, of the holders of
Depositary Receipts that have not theretofore been surrendered. After making
such sale, the Depositary shall be discharged from all obligations under this
Deposit Agreement except to account for such net proceeds and money and other
property.
Upon the termination of this Deposit Agreement, the Company shall be
discharged from all obligations under this Deposit Agreement except for its
obligations to the Depositary, any Depositary's Agent and any Registrar under
Sections 5.07 and 5.08. In the event this Deposit Agreement is terminated, the
Company hereby agrees to use its reasonable efforts to list the underlying New
Preferred Stock on the NYSE or any other national securities exchange on which
the Common Stock is listed.
-19-
ARTICLE VII.
MISCELLANEOUS
SECTION 7.01. COUNTERPARTS. This Deposit Agreement may be executed by the
Company and the Depositary in separate counterparts, each of which counterpart,
when so executed and delivered, shall be deemed an original, but all such
counterparts taken together shall constitute one and the same instrument.
Delivery of an executed counterpart of a signature page to this Deposit
Agreement by telecopier shall be effective as delivery of a manually executed
counterpart of this Deposit Agreement. Copies of this Deposit Agreement shall
be filed with the Depositary and the Depositary's Agents and shall be open to
inspection at all reasonable times during normal business hours at the Corporate
Office and the respective offices of the Depositary's Agents, if any, by any
holder of a Depositary Receipt.
SECTION 7.02. EXCLUSIVE BENEFITS OF PARTIES. This Deposit Agreement is
for the exclusive benefit of the parties hereto, and their respective successors
hereunder, and the holders of the Depositary Receipts, 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 Depositary Receipts
should be or become invalid, illegal or unenforceable in any respect, the
validity, legality and enforceability of the remaining provisions contained
herein or therein shall in no way be affected, prejudiced or disturbed thereby.
SECTION 7.04. NOTICES. Any notices to be given to the Company hereunder
or under the Depositary Receipts shall be in writing and shall be deemed to have
been duly given if personally delivered or sent by mail, or by telegram or telex
or telecopier confirmed by letter, addressed to the Company at 0000 Xxxx Xxxxxxx
Xxxxxx, Xxxxxxx, Xxxxxxxxxx 00000, (telecopier (000) 000-0000), Attention:
Senior Vice President, Chief Financial Officer & Treasurer, or at any other
place to which the Company may have transferred its principal executive office.
Any notices to be given to the Depositary hereunder or under the Depositary
Receipts shall be in writing and shall be deemed to have been duly given if
personally delivered or sent by mail, or by telegram or telex or telecopier
confirmed by letter, addressed to the Depositary at the Corporate Office.
Any notices given to any record holder of a Depositary Receipt hereunder or
under the Depositary Receipts shall be in writing and shall be deemed to have
been duly given if personally delivered or sent by mail, or by telegram or telex
or telecopier confirmed by letter, addressed to such record holder at the
address of such record holder as it appears on the books of the Depositary or,
if such holder shall have timely filed with the Depositary
-20-
a written request that notices intended for such holder be mailed to some
other address, at the address designated in such request.
Delivery of a notice sent by mail, or by telegram or telex or telecopier
shall be deemed to be effected at the time when a duly addressed letter
containing the same (or a duly addressed letter confirming an earlier notice in
the case of a telegram or telex or telecopier message) is deposited, postage
prepaid, in a post office letter box. The Depositary or the Company may,
however, act upon any telegram or telex or telecopier message received by it
from the other or from any holder of a Depositary Receipt, notwithstanding that
such telegram or telex or telecopier message shall not subsequently be confirmed
by letter as aforesaid.
SECTION 7.05. DEPOSITARY'S AGENTS. The Depositary may from time to time
appoint Depositary's Agents (with the Company's prior written consent and on
terms and conditions acceptable to the Company) 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 prior to any
such action.
SECTION 7.06. HOLDERS OF DEPOSITARY RECEIPTS ARE PARTIES.
Notwithstanding that holders of Depositary Receipts have not executed and
delivered this Deposit Agreement or any counterpart thereof, the holders of
Depositary 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 Depositary Receipts by acceptance of delivery of Depositary Receipts.
SECTION 7.07. GOVERNING LAW. This Deposit Agreement and the Depositary
Receipts and all rights hereunder and thereunder and provisions hereof and
thereof shall be governed by, and construed in accordance with, the law of the
State of New York without giving effect to principles of conflict of laws.
SECTION 7.08. HEADINGS. The headings of articles and sections in this
Deposit Agreement and in the form of the Depositary Receipt set forth in Exhibit
A hereto have been inserted for convenience only and are not to be regarded as a
part of this Deposit Agreement or to have any bearing upon the meaning or
interpretation of any provision contained herein or in the Depositary Receipts.
-21-
IN WITNESS WHEREOF, The Washington Water Power Company and The Bank of New
York have duly executed this agreement as of the day and year first above set
forth and all holders of Depositary Receipts shall become parties hereto by and
upon acceptance by them of delivery of Depositary Receipts issued in accordance
with the terms hereof.
THE WASHINGTON WATER POWER COMPANY
Attest:
By: By:
-------------------------- -------------------------------
Authorized Officer
THE BANK OF NEW YORK
Attest:
By: By:
-------------------------- -------------------------------
Authorized Signatory
-22-
