Exhibit 4.8
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FINGERHUT COMPANIES, INC.,
[_______________________________], AS DEPOSITARY
AND
THE HOLDERS FROM TIME TO TIME OF
THE DEPOSITARY RECEIPTS DESCRIBED HEREIN
DEPOSIT AGREEMENT
DATED AS OF ___________, ____
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TABLE OF CONTENTS
Page
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ARTICLE I
Definitions
Certificate. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .1
Company. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .1
Deposit Agreement. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .1
Depositary . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .2
Depositary Shares. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .2
Depositary's Agent . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .2
Depositary's Office. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .2
Receipt. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .2
record holder. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .2
Registrar. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .2
Stock. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .2
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. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .4
Section 2.03. Redemption of Stock. . . . . . . . . . . . . . . . . . . . . . . . . .4
Section 2.04. Registration of Transfer of Receipts . . . . . . . . . . . . . . . . .6
Section 2.05. Split-ups and Combinations of Receipts; Surrender of Receipts and
Withdrawal of Stock. . . . . . . . . . . . . . . . . . . . . . . . . .6
Section 2.06. Limitations on Execution and Delivery, Transfer, Surrender and
Exchange of Receipts . . . . . . . . . . . . . . . . . . . . . . . . .7
Section 2.07. Lost Receipts, etc. . . . . . . . . . . . . . . . . . . . . . . . . .7
Section 2.08. Cancellation and Destruction of Surrendered Receipts . . . . . . . . .7
Section 2.09. Conversion of Stock into Common Stock. . . . . . . . . . . . . . . . .8
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 Taxes or Other Governmental Charges . . . . . . . . . . . .9
Section 3.03. Warranty as to Stock . . . . . . . . . . . . . . . . . . . . . . . . .9
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ARTICLE IV
The Deposited Securities; Notices
Section 4.01. Cash Distributions . . . . . . . . . . . . . . . . . . . . . . . . . .9
Section 4.02. Distributions Other than Cash, Rights, Preferences or Privileges . . .9
Section 4.03. Subscription Rights, Preferences or Privileges . . . . . . . . . . . 10
Section 4.04. Notice of Dividends, etc.; Fixing of Record Date for Holders of
Receipts . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
Section 4.05. Voting Rights. . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
Section 4.06. Changes Affecting Deposited Securities and Reclassifications,
Recapitalizations, etc. . . . . . . . . . . . . . . . . . . . . . . 12
Section 4.07. Inspection of Reports. . . . . . . . . . . . . . . . . . . . . . . . 13
Section 4.08. Lists of Receipt Holders . . . . . . . . . . . . . . . . . . . . . . 13
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 . . . . .. . . . . . . . . . . . . . . . . . . 13
Section 5.02. Prevention of or Delay in Performance by the Depositary, the
Depositary's Agents, the Registrar or the Company . . . . .. . . . . 14
Section 5.03. Obligations of the Depositary, the Depositary's Agents, the
Registrar and the Company. . . . . . . . . . . . . . . . . . . . . . 14
Section 5.04. Resignation and Removal of the Depositary; Appointment of
Successor Depositary . . . . . . . . . . . . . . . . . . . . . . . . 15
Section 5.05. Corporate Notices and Reports. . . . . . . . . . . . . . . . . . . . 16
Section 5.06. Indemnification by the Company . . . . . . . . . . . . . . . . . . . 16
Section 5.07. Charges and Expenses . . . . . . . . . . . . . . . . . . . . . . . . 16
ARTICLE VI
Amendment and Termination
Section 6.01. Amendment. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17
Section 6.02. Termination. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17
ARTICLE VII
Miscellaneous
Section 7.01. Counterparts . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18
Section 7.02. Exclusive Benefit of Parties . . . . . . . . . . . . . . . . . . . . 18
Section 7.03. Invalidity of Provisions . . . . . . . . . . . . . . . . . . . . . . 18
Section 7.04. Notices. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18
Section 7.05. Depositary's Agents. . . . . . . . . . . . . . . . . . . . . . . . . 19
Section 7.06. Holders of Receipts Are Parties. . . . . . . . . . . . . . . . . . . 19
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Section 7.07. Governing Law. . . . . . . . . . . . . . . . . . . . . . . . . . . . 19
Section 7.08. Inspection of Deposit Agreement. . . . . . . . . . . . . . . . . . . 19
Section 7.09. Headings . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19
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DEPOSIT AGREEMENT dated as of
___________, ____, among FINGERHUT COMPANIES, INC.,
a Minnesota 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 [Cumulative] [Noncumulative]
[Convertible] Preferred Stock, Series ___, par value $.01 per share, of
FINGERHUT COMPANIES, INC. with the Depositary for the purposes set forth in
this Deposit Agreement and for the issuance hereunder of Receipts evidencing
Depositary Shares in respect of the 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:
"Certificate" shall mean the certificate of designation,
preferences and rights filed with the Secretary of State of Minnesota
establishing the Stock as a series of preferred stock of the Company.
"Company" shall mean Fingerhut Companies, Inc., a Minnesota
corporation, and its successors.
"Deposit Agreement" shall mean this Deposit Agreement, as amended
or supplemented from time to time.
"Depositary" shall mean [__________________________], and any
successor as Depositary hereunder.
"Depositary Shares" shall mean Depositary Shares, each representing
[one quarter] of a share of Stock and 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 office of the Depositary in
[________________________], at which at any particular time its depositary
receipt business shall be administered.
"Receipt" shall mean one of the Depositary Receipts issued
hereunder, whether in definitive or temporary form.
"record 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 any bank or trust company which shall be
appointed to register ownership and transfers of Receipts as herein provided.
"Stock" shall mean shares of the Company's [Cumulative]
[Noncumulative] [Convertible] Preferred Stock, Series ___, par value $.01 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 engraved or printed or lithographed on steel-engraved borders and
shall be substantially in the form set forth in Exhibit A annexed to this
Deposit Agreement, with appropriate insertions, modifications and omissions,
as hereinafter provided. Pending the preparation of definitive Receipts, the
Depositary, upon the written order of the Company or any holder of Stock, as
the case may be, delivered in compliance with Section 2.02, shall execute and
deliver temporary Receipts which are printed, lithographed, typewritten,
mimeographed or otherwise substantially of the tenor of the definitive
Receipts in lieu of which they are issued and with such appropriate
insertions, omissions, substitutions and other variations as the persons
executing such Receipts may determine, as evidenced by their execution of
such Receipts. If temporary Receipts are issued, the Company and the
Depositary will cause definitive Receipts to be prepared without unreasonable
delay. After the preparation of definitive Receipts, the temporary Receipts
shall be exchangeable for definitive Receipts upon surrender of the temporary
Receipts at an office described in the last paragraph of Section 2.02,
without charge to the holder. Upon surrender
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for cancellation of any one or more temporary Receipts, the Depositary shall
execute and deliver in exchange therefor definitive Receipts representing the
same number of Depositary Shares as represented by the surrendered temporary
Receipt or Receipts. Such exchange shall be made at the Company's expense
and without any charge therefor. Until so exchanged, the temporary Receipts
shall in all respects be entitled to the same benefits under this Deposit
Agreement, and with respect to the Stock, as definitive Receipts.
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 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.
Receipts shall be in denominations of any number of whole
Depositary Shares up to but not in excess of __________ Depositary Shares for
any particular Receipt.
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 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 or
other distributions or to any notice provided for in this Deposit Agreement
and for all other purposes.
Section 2.02. DEPOSIT OF STOCK; EXECUTION AND DELIVERY OF RECEIPTS
IN RESPECT THEREOF. Subject to the terms and conditions of this Deposit
Agreement, the Company or any holder of Stock may 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
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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 or such
holder, as the case may be, directing the Depositary to execute and deliver
to, or upon the written order of, the person or persons stated in such order
a Receipt or Receipts for the number of Depositary Shares representing such
deposited Stock.
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 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 ____ shares of Stock.
Section 2.03. REDEMPTION OF STOCK. Whenever the Company shall
elect to redeem shares of Stock in accordance with the provisions of the
Certificate, if the Certificate provides for such redemption, it shall
(unless otherwise agreed in writing with the Depositary) give the Depositary
not less than 40 nor more than 70 days' notice of the date of such proposed
redemption of Stock, which notice shall be accompanied by a certificate from
the Company stating that such redemption of Stock is in accordance with the
provisions of the Certificate. Such notice, if given more than 50 days prior
to the redemption date, shall be in addition to the notice required to be
given for redemption pursuant to the Certificate. On the date of such
redemption, provided that the Company shall then have paid in full to the
Depositary the redemption price of the Stock to be redeemed,
[plus any accrued and] [declared but] unpaid dividends thereon, the
Depositary shall redeem the number of Depositary Shares representing such
Stock. The Depositary shall mail notice of such redemption and the proposed
simultaneous redemption of the number of Depositary Shares representing the
Stock to be redeemed, first-class postage prepaid, not less than 30 and not
more than 60 days prior to the date fixed for redemption of such Stock and
Depositary Shares (the "Redemption Date"), to the
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record holders of the Receipts evidencing the Depositary Shares to be so
redeemed, at the addresses of such holders as they appear on the records of
the Depositary; but neither failure to mail any such notice to one or more
such holders nor any defect in any notice to one or more such holders shall
affect the sufficiency of the proceedings for redemption as to other holders.
Each such notice shall state: (i) the Redemption Date; (ii) the number of
Depositary Shares to be redeemed and, if less than all the Depositary Shares
held by any such holder are to be redeemed, the number of such Depositary
Shares held by such holder to be so redeemed; (iii) the redemption price;
[and] (iv) the place or places where Receipts evidencing Depositary Shares
are to be surrendered for payment of the redemption price [; and (v) that
dividends in respect of the Stock represented by the Depositary Shares to be
redeemed will cease to accumulate on such Redemption Date]. In case less than
all the outstanding Depositary Shares are to be redeemed, the Depositary
Shares to be so redeemed shall be selected on a pro rata basis as determined
by the Company.
Notice having been mailed by the Depositary as aforesaid, from and
after the Redemption Date (unless the Company shall have failed to redeem the
shares of Stock to be redeemed by it as set forth in the Company's notice
provided for in the preceding paragraph) [all dividends in respect of the
shares of Stock so called for redemption shall cease to accumulate,] the
Depositary Shares being redeemed from such proceeds shall be deemed no
longer to be outstanding, all rights of the holders of Receipts evidencing
such Depositary Shares (except the right to receive the redemption price)
shall, to the extent of such Depositary Shares cease and terminate and, upon
surrender in accordance with such notice of the Receipts evidencing any such
Depositary Shares (properly endorsed or assigned for transfer, if the
Depositary shall so require), such Depositary Shares shall be redeemed by the
Depositary at a redemption price per Depositary Share equal to [one quarter]
of the redemption price per share paid in respect of the shares of Stock plus
all money and other property, if any, represented by such Depositary Shares,
including all amounts paid by the Company in respect of dividends which on
the Redemption Date [have accumulated on the shares of Stock to be so redeemed
and] have not theretofore been paid.
If less than all the Depositary Shares evidenced by a Receipt are
called for redemption, the Depositary will deliver to the holder of such
Receipt upon its surrender to the Depositary, together with the redemption
payment, a new Receipt evidencing the Depositary Shares evidenced by such
prior Receipt and not called for redemption.
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.
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Section 2.05. SPLIT-UPS AND COMBINATIONS OF RECEIPTS; SURRENDER OF
RECEIPTS AND WITHDRAWAL OF STOCK. Upon surrender 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 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. Thereafter, without
unreasonable delay, the Depositary shall deliver to such holder, or to the
person or persons designated by such holder as hereinafter provided, the
number of whole 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 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 (subject to Section 2.03)
upon his order, a new Receipt evidencing such excess number of Depositary
Shares. Delivery of the Stock and 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 holder
shall execute and deliver to the Depositary a written order so directing the
Depositary and the Depositary may require that the Receipt or Receipts
surrendered by such holder for withdrawal of such shares of 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
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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 the holder of a Receipt pursuant to Section 5.07, may
require the production of evidence satisfactory to it as to the identity and
genuineness 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 shareholders 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 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 of the
Depositary with an indemnity bond satisfactory to it.
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.
[Section 2.09. CONVERSION OF STOCK INTO COMMON STOCK. It is understood
and agreed that the Depositary Shares are not convertible into the Common Stock,
par value $.01 per share, of the Company (the "Common Stock") or any other
securities or property of the Company. Nevertheless, as a matter of
convenience, the Company hereby agrees to accept (or to cause its conversion
agent to accept) the delivery of Receipts for the purpose of effecting
conversions of the Stock utilizing the same procedures as those provided for
delivery of Stock certificates to effect such conversions in accordance with
the terms and conditions of the Certificate; PROVIDED, HOWEVER, that only
whole Depositary Shares may be so submitted for conversion. If fewer than all
of the Depositary Shares evidenced by a Receipt are to be converted, the
Company shall instruct the Depositary to issue a new Receipt or Receipts for
the Depositary Shares not to be converted. For this purpose, a holder of a
Receipt or Receipts may surrender such Receipt or Receipts to the Company at
the Depositary's Office or at such other office as the Company may from time
to time designate for such purpose, together with a duly completed and
executed Notice of Conversion in the form included in the Receipt. In all
cases,
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the foregoing shall be conditioned upon compliance in full by the holder of
such Receipt or Receipts with the terms and conditions of the Certificate and
of this Deposit Agreement. The Company shall instruct the Depositary to
cancel each Receipt surrendered for such conversion and to deliver to the
Company any certificates for related Stock so converted, and the Company will
cancel such Stock certificates.]
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, redemption or exchange, 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 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 TAXES OR OTHER GOVERNMENTAL CHARGES.
Holders of Receipts shall be obligated to make payments to the Depositary of
certain charges and expenses, as provided in Section 5.07. 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 or any part of or
all the Stock or other property represented by the Depositary Shares
evidenced by such Receipt and not theretofore 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 validly issued, fully paid
and nonassessable. Such representation and warranty shall survive the
deposit of the Stock and the issuance of Receipts.
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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 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 dividend or distribution as are, as nearly as practicable, in proportion
to the respective numbers of Depositary Shares evidenced by the Receipts held
by such holders; PROVIDED, HOWEVER, that in case the Company or the
Depositary shall be required to withhold and shall withhold from any cash
dividend or other cash distribution in respect of the Stock an amount on
account of taxes, the amount made available for distribution or distributed
in respect of Depositary Shares shall be reduced accordingly. The Depositary
shall distribute or make available for distribution, as the case may be, only
such amount, however, as can be distributed without attributing to any 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.
Section 4.02. DISTRIBUTIONS OTHER THAN CASH, RIGHTS, PREFERENCES
OR PRIVILEGES. Whenever the Depositary shall receive any distribution other
than cash, rights, preferences or privileges upon 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, in any manner that the Depositary may deem
equitable and practicable for accomplishing such distribution. If in the
opinion of the Depositary 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 of such securities unless the Company shall have provided an
opinion of counsel stating that such securities have been registered under
the Securities Act of 1933 or do not need to be registered.
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
-9-
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 approved by the Depositary in its discretion with
the approval of the Company; PROVIDED, HOWEVER, that (i) 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, or (ii) if and to the
extent so instructed by holders of Receipts who do not desire to exercise
such rights, preferences or privileges, then the Depositary, in its
discretion (with the 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. The Company
shall not make any distribution of any such rights, preferences or privileges
unless the Company shall have provided an opinion of counsel stating that
such rights, preferences or privileges have been registered under the
Securities Act of 1933 or do not need to be registered.
If registration under the Securities Act of 1933 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 it 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 a 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 such Act.
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.
-10-
Section 4.04. NOTICE OF DIVIDENDS, ETC.; FIXING OF 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 Depositary will in each such instance fix a record
date (which shall be the same date as the record date fixed by the Company
with respect to the Stock) for the determination of the holders of Receipts
who will 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
will be entitled to notice of such meeting or for any other appropriate
reasons.
Section 4.05. VOTING RIGHTS. Upon receipt of notice of any
meeting at which the holders of Stock are entitled to vote, the Depositary
will, 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 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 will 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 whole 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 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.
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 affecting the Company or to which it is a party, the Depositary
may in its discretion with the approval of, and will 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
(x) the fraction of an interest represented by one Depositary Share in one
share of Stock, and (y) the ratio of the redemption price per Depositary
Share to the redemption price of a share of Stock, in each case as may be
necessary fully to reflect the effects of such changes in par or stated
value, split-up, combination or other
-11-
reclassification of Stock, or of such recapitalization, reorganization,
merger, amalgamation or consolidation, 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 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.
Section 4.07. INSPECTION OF REPORTS. The Depositary shall make
available for inspection by holders of Receipts at the Depositary's Office,
and at such other places as it may from time to time deem advisable, 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 will furnish to it a list,
as of a recent date, of the names, addresses and holdings of Depositary
Shares of all persons in whose names Receipts are registered on the books of
the Depositary.
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 will 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.
The Depositary will keep books at the Depositary's Office for the
registration and registration of transfer of Receipts, which books at all
reasonable times shall be open for inspection by the record holders of
Receipts; PROVIDED, that any such holder requesting to exercise such right
must certify to the Depositary that such inspection shall be for a proper
-12-
purpose reasonably related to such person's interest as an owner of
Depositary Shares evidenced by the Receipts.
The Depositary may close such books, at any time or from time to
time, when deemed expedient by it in connection with the performance of its
duties hereunder.
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 are 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
substituted registrar appointed by the Depositary upon the request or with
the approval of the Company. If the Receipts, such Depositary Shares or such
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 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 Articles of Incorporation
(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 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 any liability to any holder of a Receipt
(i) by reason of any nonperformance or delay, caused as aforesaid, in the
performance of any act or thing which the terms of this Deposit Agreement
provide shall or may be done or performed, or (ii) by reason of any exercise
of, or failure to exercise, any discretion provided for in this Deposit
Agreement except, in case of any such exercise or failure to exercise
discretion not caused as aforesaid, if caused by the negligence 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, 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 written 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 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.
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. 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 will indemnify the Company against any liability
which may arise out of acts performed or omitted by the Depositary or its
agents due to its or their negligence or bad faith. 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 Receipts. The Depositary
may also act as transfer agent or registrar of any of the securities of the
Company and its affiliates.
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 so to do delivered to the
Company, such resignation to take effect upon the appointment of a successor
Depositary and its acceptance of such appointment as hereinafter provided.
The Depositary may at any time be removed by the Company by notice
of such removal delivered to the Depositary, such removal to take effect upon
the appointment of a successor Depositary and its acceptance of such
appointment as hereinafter provided.
In case at any time the Depositary acting hereunder shall resign or
be removed, the Company shall, within 60 days after the delivery of the
notice of resignation or removal, as the case may be, appoint a successor
Depositary, which shall be a bank or trust company having its principal
office in the United States of America and having a combined capital and
surplus of at least $50,000,000. If no successor Depositary shall have been
so appointed and have accepted appointment within 60 days after delivery of
such notice, the resigning or removed
-14-
Depositary may 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. 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 Despositary, and the Despositary agrees that it
will transmit to the record holders of Receipts, all notices and reports
(including without limitation financial statements) required by law, by the
rules of any national securities exchange upon which the Stock, the
Depositary Shares or the Receipts are listed or by the Company's Amended and
Restated Articles of Incorporation (including the Certificate) to be
furnished by the Company to holders of Stock. 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
(i) acts performed or omitted in connection with this Deposit Agreement and
the Receipts (a) by the Depositary, any Registrar or any of their respective
agents (including any Depositary's Agent), except for any liability arising
out of negligence, bad faith or willful misconduct on the respective parts of
any such person or persons, or (b) by the Company or any of its agents, or
(ii) the offer, sale or registration of the Receipts or the Stock pursuant to
the provisions hereof. The obligations of the Company set forth in this
Section 5.06 shall survive any succession of any Depositary, Registrar or
Depositary's Agent.
Section 5.07. CHARGES 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 agreed
upon charges of the Depositary in connection with the initial deposit of the
Stock and the initial issuance of the Depositary Shares, redemption of the
Stock at the option of the Company and all withdrawals of shares of the
-15-
Stock by owners of Depositary Shares. All other transfer and other taxes and
governmental charges shall be at the expense of holders of Depositary Shares.
If, at the request of a holder of Receipts, the Depositary incurs charges or
expenses for which it is not otherwise liable hereunder, such holder will be
liable for such charges and expenses. All other 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 upon
consultation and agreement between the Depositary and the Company as to the
amount and nature of such charges and expenses. The Depositary shall present
its statement for charges and expenses to the Company once each month or at
such other intervals as the Company and the Depositary may agree.
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 shall go into effect not sooner than three months after
notice thereof to the holders of the Receipts) which shall materially and
adversely alter the rights of the holders of Receipts shall be effective
unless such amendment shall have been approved by the holders of at least a
majority 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 this Deposit Agreement as amended thereby.
Section 6.02. TERMINATION. This Agreement may be terminated by
the Company or the Depositary only after (i) all outstanding Depositary
Shares shall have been redeemed pursuant to Section 2.03, or (ii) there shall
have been made a final distribution in respect of the Stock in connection
with any liquidation, dissolution or winding up of the Company and such
distribution shall have been distributed to the holders of Depositary Shares
pursuant to Section 4.01 or 4.02, as applicable.
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.
-16-
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, 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
telegram or telex confirmed by letter, addressed to the Company at 0000 Xxxxx
Xxxx, Xxxxxxxxxx, Xxxxxxxxx 00000, to the attention of the Treasurer and the
General Counsel, or at any other address of which the Company shall have
notified the Depositary in writing.
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 telegram or telex
confirmed by letter, addressed to the Depositary at the Depositary's Office,
at [___________________________________], 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 telegram
or telex 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 telegram or telex shall be
deemed to be effected at the time when a duly addressed letter containing the
same (or a confirmation thereof in the case of a telegram or telex message)
is deposited, postage prepaid, in a post office letter box. The Depositary
or the Company may, however, act upon any telegram or telex message
-17-
received by it from the other or from any holder of a Receipt,
notwithstanding that such telegram or telex message 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.
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 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 _____________.
Section 7.08. INSPECTION OF DEPOSIT AGREEMENT. Copies of this
Deposit Agreement shall be filed with the Depositary and the Depositary's
Agents and shall be open to inspection during business hours at the
Depositary's Office and the respective offices of the Depositary's Agents, if
any, by any holder of a Receipt.
Section 7.09. HEADINGS. The headings of articles and sections in
this Deposit Agreement and in the form of the Receipt set forth in Exhibit A
hereto have been inserted for convenience only and are not to be regarded as
a part of this Deposit Agreement or the Receipts or have any bearing upon the
meaning or interpretation of any provision contained herein or in the
Receipts.
-18-
IN WITNESS WHEREOF, the Company and the Depositary have
duly executed this 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.
FINGERHUT COMPANIES, INC.
By ____________________________________
Its ________________________________
Attested by
_____________________________________
[____________________________]
as Depositary
By ____________________________________
Its ________________________________
Attested by
_____________________________________
-19-
Exhibit A
CERTIFICATE FOR NOT MORE THAN _______ DEPOSITARY SHARES
NUMBER DEPOSITARY SHARES
------------------------- -------------------------
DR
------------------------- -------------------------
DEPOSITARY RECEIPT FOR DEPOSITARY SHARES,
REPRESENTING [CUMULATIVE] [NONCUMULATIVE] [CONVERTIBLE] PREFERRED STOCK,
SERIES __, OF
FINGERHUT COMPANIES, INC.
INCORPORATED UNDER THE LAWS OF THE STATE OF MINNESOTA
CUSIP
SEE REVERSE FOR CERTAIN DEFINITIONS
____________________________________, (THE "DEPOSITARY"), HEREBY CERTIFIES THAT
Is the registered owner of DEPOSITARY SHARES
("Depositary Shares"), each Depositary Share representing [one quarter (1/4)]
of one share of [Cumulative] [Noncumulative] [Convertible] Preferred Stock,
Series ___, par value $.01 per share, of Fingerhut Companies, Inc., a
Minnesota corporation (the "Corporation"), on deposit with the Depositary,
subject to the terms and entitled to the benefits of the Deposit Agreement
dated as of , , (the "Deposit Agreement")
between the Corporation and the Depositary. By accepting this Depositary
Receipt the holder hereof becomes a party to and agrees to be bound by all
the terms and conditions of the Deposit Agreement. This Depositary Receipt
shall not be valid or obligatory for any purpose or entitled to any benefits
under the Deposit Agreement unless it shall have been executed by the
Depositary by the manual signature of a duly authorized officer and shall
have been countersigned manually by a Registrar or by the Depositary as
Registrar in respect of the Depositary Receipts by the manual signature of a
duly authorized officer thereof.
Dated:
COUNTERSIGNED AND
REGISTERED:
______________________,
____________________
DEPOSITARY AND REGISTRAR
By
Authorized Officer [SEAL]
FINGERHUT COMPANIES, INC.
THE CORPORATION WILL FURNISH TO ANY SHAREHOLDER UPON REQUEST AND WITHOUT
CHARGE, A FULL STATEMENT OF THE DESIGNATIONS, PREFERENCES, LIMITATIONS, AND
RELATIVE RIGHTS OF THE SHARES OF EACH CLASS OR SERIES AUTHORIZED TO BE ISSUED,
SO FAR AS THEY HAVE BEEN DETERMINED, AND THE AUTHORITY OF THE BOARD OF DIRECTORS
TO DETERMINE THE RELATIVE RIGHTS AND PREFERENCES OF SUBSEQUENT CLASSES OR
SERIES.
-----------------------
The following abbreviations, when used in the inscription on the
face of this Receipt, shall be construed as though they were written out in
full according to applicable laws or regulations:
TEN COM -as tenants in common UNIF GIFT MIN ACT - Custodian
---------------------------------
(Cust) (Minor)
TEN ENT -as tenants by the entireties Under Uniform Gifts to Minors Act
JT TEN -as joint tenants with right ---------------------------------
of survivorship and not as (State)
tenants in common
Additional abbreviations may also be used though not in the above list.
For value received, _____________________________________________ hereby
sell(s), assign(s) and transfer(s) unto
PLEASE INSERT SOCIAL SECURITY OR OTHER
IDENTIFYING NUMBER OF ASSIGNEE
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PLEASE PRINT OR TYPEWRITE NAME AND ADDRESS INCLUDING POSTAL ZIP CODE OF ASSIGNEE
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Depositary Shares
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represented by the within Receipt, and do hereby irrevocably constitute and
appoint
Attorney
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to transfer the said Depositary Shares on the books of the within-named
Depositary with full power of substitution in the premises.
Dated:
---------------------- ----------------------------------------------
NOTICE: 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.
