EXHIBIT 4.9
FORM OF DEPOSIT AGREEMENT
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THE XXXX DISNEY COMPANY
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AS DEPOSITARY
AND
THE HOLDERS FROM TIME TO TIME OF
THE DEPOSITARY RECEIPTS DESCRIBED HEREIN
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DEPOSIT AGREEMENT
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DATED AS OF
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TABLE OF CONTENTS
PAGE
ARTICLE I
DEFINITIONS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
ARTICLE II
FORM OF RECEIPTS, DEPOSIT OF STOCK, EXECUTION AND DELIVERY, TRANSFER,
SURRENDER AND REDEMPTION OF RECEIPTS. . . . . . . . . . . . . . . . . . . . 2
Section 2.1 FORM AND TRANSFER OF RECEIPTS. . . . . . . . . . . . . . 2
Section 2.2 DEPOSIT OF STOCK; EXECUTION AND DELIVERY OF RECEIPTS
IN RESPECT THEREOF. . . . . . . . . . . . . . . . . . . 4
Section 2.3 REGISTRATION OF TRANSFER OF RECEIPTS . . . . . . . . . . 4
Section 2.4 SPLIT-UPS AND COMBINATIONS OF RECEIPTS; SURRENDER OF
RECEIPTS AND WITHDRAWAL OF STOCK. . . . . . . . . . . . 5
Section 2.5 LIMITATIONS ON EXECUTION AND DELIVERY, TRANSFER,
SURRENDER AND EXCHANGE OF RECEIPTS . . . . . . . . . . . 6
Section 2.6 LOST RECEIPTS, ETC. . . . . . . . . . . . . . . . . . . . 6
Section 2.7 CANCELLATION AND DESTRUCTION OF SURRENDERED RECEIPTS. . . 6
Section 2.8 REDEMPTION OF STOCK . . . . . . . . . . . . . . . . . . . 7
ARTICLE III
CERTAIN OBLIGATIONS OF HOLDERS OF RECEIPTS AND THE COMPANY . . . . . . . . . . 8
Section 3.1 FILING PROOFS, CERTIFICATES AND OTHER INFORMATION. . . . . 8
Section 3.2 PAYMENT OF TAXES OR OTHER GOVERNMENTAL CHARGES . . . . . . 8
Section 3.3 WARRANTY AS TO STOCK . . . . . . . . . . . . . . . . . . . 9
ARTICLE IV
THE DEPOSITED SECURITIES; NOTICES. . . . . . . . . . . . . . . . . . . . . . . 9
Section 4.1 CASH DISTRIBUTIONS. . . . . . . . . . . . . . . . . . . . 9
Section 4.2 DISTRIBUTIONS OTHER THAN CASH, RIGHTS, PREFERENCES
OR PRIVILEGES. . . . . . . . . . . . . . . . . . . . . . 9
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Section 4.3 SUBSCRIPTION RIGHTS, PREFERENCES OR PRIVILEGES. . . . . . 10
Section 4.4 NOTICE OF DIVIDENDS, ETC.; FIXING RECORD DATE FOR
HOLDERS OF RECEIPTS. . . . . . . . . . . . . . . . . . . 11
Section 4.5 VOTING RIGHTS . . . . . . . . . . . . . . . . . . . . . . 11
Section 4.6 CHANGES AFFECTING DEPOSITED SECURITIES AND
RECLASSIFICATIONS, RECAPITALIZATIONS, ETC. . . . . . . . 12
Section 4.7 DELIVERY OF REPORTS . . . . . . . . . . . . . . . . . . . 12
Section 4.8 LIST OF RECEIPT HOLDERS . . . . . . . . . . . . . . . . . 12
ARTICLE V
THE DEPOSITARY, THE DEPOSITARY'S AGENTS, THE REGISTRAR AND THE COMPANY. . . . 13
Section 5.1 MAINTENANCE OF OFFICES, AGENCIES AND TRANSFER BOOKS
BY THE DEPOSITARY; REGISTRAR . . . . . . . . . . . . . . 13
Section 5.2 PREVENTION OF OR DELAY IN PERFORMANCE BY THE
DEPOSITARY, THE DEPOSITARY'S AGENTS, THE REGISTRAR
OR THE COMPANY . . . . . . . . . . . . . . . . . . . . . 14
Section 5.3 OBLIGATION OF THE DEPOSITARY, THE DEPOSITARY'S AGENTS,
THE REGISTRAR AND THE COMPANY. . . . . . . . . . . . . . 14
Section 5.4 RESIGNATION AND REMOVAL OF THE DEPOSITARY; APPOINTMENT
OF SUCCESSOR DEPOSITARY. . . . . . . . . . . . . . . . . 16
Section 5.5 CORPORATE NOTICES AND REPORTS . . . . . . . . . . . . . . 17
Section 5.6 INDEMNIFICATION BY THE COMPANY. . . . . . . . . . . . . . 17
Section 5.7 CHARGES AND EXPENSES. . . . . . . . . . . . . . . . . . . 17
Section 5.8 TAX COMPLIANCE. . . . . . . . . . . . . . . . . . . . . . 18
ARTICLE VI
AMENDMENT AND TERMINATION . . . . . . . . . . . . . . . . . . . . . . . . . . 18
Section 6.1 AMENDMENT . . . . . . . . . . . . . . . . . . . . . . . . 18
Section 6.2 TERMINATION . . . . . . . . . . . . . . . . . . . . . . . 19
ARTICLE VII
MISCELLANEOUS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19
Section 7.1 COUNTERPARTS. . . . . . . . . . . . . . . . . . . . . . . 19
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Section 7.2 EXCLUSIVE BENEFIT OF PARTIES. . . . . . . . . . . . . . . 19
Section 7.3 INVALIDITY OF PROVISIONS. . . . . . . . . . . . . . . . . 19
Section 7.4 NOTICES . . . . . . . . . . . . . . . . . . . . . . . . . 19
Section 7.5 APPOINTMENT OF REGISTRAR. . . . . . . . . . . . . . . . . 21
Section 7.6 HOLDERS OF RECEIPTS ARE PARTIES . . . . . . . . . . . . . 21
Section 7.7 GOVERNING LAW . . . . . . . . . . . . . . . . . . . . . . 21
Section 7.8 INSPECTION OF DEPOSIT AGREEMENT . . . . . . . . . . . . . 21
Section 7.9 HEADINGS. . . . . . . . . . . . . . . . . . . . . . . . . 21
Form of Depositary Shares
FORM OF FACE RECEIPT . . . . . . . . . . . . . . . . . . . . . . . . . .A-1
FORM OF REVERSE OF RECEIPT . . . . . . . . . . . . . . . . . . . . . . .A-3
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DEPOSIT AGREEMENT, dated as of _________, among The Xxxx Disney
Company, a Delaware corporation, (the "Company"), __________, a ___________
trust company (the "Depositary"), and the holders from time to time of the
Receipts described herein.
WHEREAS, it is desired to provide, as hereinafter set forth in this
Deposit Agreement, for the deposit of shares of Series _________ Preferred Stock
of the Company 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 promises contained herein, the
receipt and sufficiency of which is hereby acknowledged, the parties hereto
hereby 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 filed with the
Secretary of State of the State of Delaware establishing the Stock as a series
of preferred stock of the Company.
"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
_________ of a share of Stock and evidenced by a Receipt.
"Depositary's Agent" shall mean an agent appointed by the Depositary
pursuant to Section 5.1 and shall include the Registrar if such Registrar is not
the Depositary.
"Depositary's Office" shall mean the principal office of the
Depositary at which at any particular time its depositary receipt business shall
be administered.
"Receipt" shall mean one of the Depositary Receipts, substantially in
the form set forth as Exhibit A hereto, issued hereunder, whether in definitive
or temporary form and evidencing the number of Depositary Shares held of record
by the record holder of such Depositary Shares.
"record holder" or "holder" as applied to a Receipt shall mean the
person in whose name a Receipt is registered on the books of the Depositary
maintained for such purpose.
"Registrar" shall mean the Depositary or such other bank or trust
company which shall be appointed to register ownership and transfers of Receipts
as herein provided.
"Securities Act" shall mean the Securities Act of 1933, as amended.
"Stock" shall bean shares of the Company's Series __________ Preferred
Stock, $ _________ par value per share, with a liquidation preference of
$_________ per share.
ARTICLE II
FORM OF RECEIPTS, DEPOSIT OF STOCK,
EXECUTION AND DELIVERY, TRANSFER,
SURRENDER AND REDEMPTION OF RECEIPTS
Section 2.1 FORM AND TRANSFER OF RECEIPTS. Definitive Receipts shall
be engraved or printed or lithographed on steel-engraved borders, with
appropriate insertions, modifications and omissions, as hereinafter provided,
if and to the extent required by any securities exchange on which the
Receipts are listed. Pending the preparation of definitive Receipts or if
definitive Receipts are not required by any securities exchange on which the
Receipts are listed, the Depositary, upon the written order of the Company or
any holder of Stock, as the case may be, delivered in compliance with Section
2.2, 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
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exchangeable for definitive Receipts upon surrender of the temporary Receipts
at the Depositary's Office or at such other place or places as the Depositary
shall determine, without charge to the holder. Upon surrender for
cancellation of any one or more temporary Receipts, the Depositary shall
execute and deliver in exchange therefor definitive Receipts representing the
same number of Depositary Shares as represented by the surrendered temporary
Receipt or Receipts. Such exchange shall be made at the Company's expense
and without any charge to the holder therefor. Until so exchanged, the
temporary Receipts shall in all respects be entitled to the same benefits
under this Agreement, and with respect to the Stock, as definitive Receipts.
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 a 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 in accordance with the
foregoing sentence. 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. The Company shall deliver to the Depositary from time to
time such quantities of Receipts as the Depositary may request to enable the
Depositary to perform its obligations under this Deposit Agreement.
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 2.3, 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.
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Section 2.2 DEPOSIT OF STOCK; EXECUTION AND DELIVERY OF RECEIPTS
IN RESPECT THEREOF. Subject to the terms and conditions of this Deposit
Agreement, the Company or any holder of Stock may from time to time deposit
shares of Stock under this Deposit Agreement by delivery to the Depositary of
a certificate or certificates for the Stock to be deposited, properly
endorsed or accompanied, if required by the Depositary, by a duly executed
instrument of transfer or endorsement, in form satisfactory to the
Depositary, together with all such certifications as may be required by the
Depositary in accordance with the provisions of this Deposit Agreement, and
together with a written order of the Company 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 whole number of
Depositary Shares representing, in the aggregate, 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.
Section 2.3 REGISTRATION OF TRANSFER OF RECEIPTS. Subject to the terms
and conditions of this Deposit Agreement, the Depositary shall register on
its books from time to time transfers of Receipts upon any surrender thereof
by the holder in person or by a duly authorized attorney, properly endorsed
or accompanied by a properly executed instrument of transfer. Thereupon, the
Depositary shall execute a new Receipt or Receipts evidencing the same
aggregate number of Depositary Shares as those evidenced by the Receipt or
Receipts surrendered and deliver such new Receipt or Receipts to or upon the
order of the person entitled thereto.
Section 2.4 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
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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;
PROVIDED, HOWEVER, that the Depositary shall not issue any Receipt evidencing
a fractional Depositary Share.
Any holder of a Receipt or Receipts representing any number of whole
shares of Stock may (unless the related Depositary Shares have previously been
called for redemption) 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 upon his order, a new Receipt
evidencing such excess number of Depositary Shares, PROVIDED, HOWEVER, that the
Depositary shall not issue any Receipt evidencing a fractional Depositary Share.
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 which, if required by the Depositary,
shall be properly endorsed or accompanied by proper instruments of transfer.
If the Stock and the money and other property being withdrawn are to
be delivered to a person or persons other than the record holder of the Receipt
or Receipts being surrendered for withdrawal of Stock, such holders shall
execute and deliver to the Depositary a written order so directing the
Depositary and the Depositary may require that the Receipt or Receipts
surrendered by such holder for withdrawal of such shares of Stock be properly
endorsed in blank or accompanied by a properly executed instrument of transfer
in blank.
Delivery of the Stock and the money and other property, if any,
represented by Receipts surrendered for withdrawal shall be made by the
Depositary at the Depositary's Office, except that, at the request, risk and
expense of the holder surrendering such Receipt or Receipts and for the account
of the holder thereof, such delivery may be made at such other place as may be
designated by such holder.
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Section 2.5 LIMITATIONS ON EXECUTION AND DELIVERY, TRANSFER,
SURRENDER AND EXCHANGE OF RECEIPTS. As a condition precedent to the
execution and delivery, registration of transfer, split-up, combination,
surrender or exchange of any Receipt, the Depositary, any of the Depositary's
Agents or the Company may require payment to it of a sum sufficient for the
payment (or, in the event that the Depositary or the Company shall have made
such payment, the reimbursement to it) of any charges or expenses payable by
the holder of a Receipt pursuant to Sections 3.2 and 5.7, 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 stockholders of the
Company is closed, (ii) if any such action is deemed necessary or advisable by
the Depositary, any of the Depositary's Agents or the Company at any time or
from time to time because of any requirement of law or of any government or
governmental body or commission or under any provision of this Deposit Agreement
or (iii) with the approval of the Company, for any other reason.
Section 2.6 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, (ii) the furnishing of the
Depositary with reasonable indemnification satisfactory to it and (iii) the
payment of any expense (including fees, charges and expenses of the
Depositary) in connection with such execution and delivery.
Section 2.7 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 Company is authorized to destroy all Receipts so cancelled.
Section 2.8 REDEMPTION OF STOCK. Whenever the Company shall be
permitted and shall elect to redeem shares of Stock in accordance with the
provisions of the Certificate, it shall (unless otherwise agreed to in
writing with the Depositary) give or cause to be given to the Depositary not
less than 60 days' notice of the date of such proposed redemption or exchange
of Stock and of the number of such shares held by the Depositary to be so
redeemed and the
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applicable redemption price, as set forth in the Certificate, 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.
On the date of such redemption, provided that the Company shall then have
paid or caused to be paid in full to the Depositary the redemption price of
the Stock to be redeemed, plus an amount equal to any accrued and unpaid
dividends thereon to the date fixed for redemption, in accordance with the
provisions of the Certificate, the Depositary shall redeem the number of
Depositary Shares representing such Stock. The Depositary shall mail notice
of the Company's redemption of Stock and the proposed simultaneous redemption
of the number of Depositary Shares representing the Stock to be redeemed by
first-class mail, 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 record holders of the Receipts evidencing the
Depositary Shares to be so redeemed, at the address of such holders as they
appear on the records of the Depositary; but neither failure to mail any such
notice of redemption of Depositary Shares to one or more such holders nor any
defect in any notice of redemption of Depositary Shares to one or more such
holders shall affect the sufficiency of the proceedings for redemption as to
the other holders. The Company will provide the Depositary with the
information necessary for the Depositary to prepare such notice and 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; (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
accrue 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 by the Depositary by lot or by any other substantially
equivalent method, in each case, as determined by the Depositary in its sole
discretion.
Notice having been mailed by the Depositary as aforesaid, from and
after the Redemption Date (unless the Company shall have failed to provide the
funds necessary to redeem the Stock evidenced by the Depositary Shares called
for redemption) (i) dividends on the shares of Stock so called for redemption
shall cease to accrue from and after such date, (ii) the Depositary Shares being
redeemed from such proceeds shall be deemed no longer to be outstanding, (iii)
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 (iv) upon surrender in accordance
with such redemption notice of the Receipts evidencing any such Depositary
Shares called for redemption (properly endorsed or assigned for transfer, if the
Depositary or applicable law shall so require), such Depositary Shares shall be
redeemed by the Depositary at a redemption price per Depositary Share equal to
the same fraction of the redemption price per share paid with respect to the
shares of Stock as the fraction each
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Depositary Share represents of a share of Stock plus the same fraction of 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. Any funds deposited by the Company with
the Depositary for any Depositary Shares that the holders thereof fail to
redeem will be returned to the Company after a period of two years from the
date such funds are so deposited.
If fewer than all of the Depositary Shares evidenced by a Receipt are
called for redemption, the Depositary will deliver to the holder of such Receipt
upon its surrender to the Depositary, together with the redemption payment, a
new Receipt evidencing the Depositary Shares evidenced by such prior Receipt and
not called for redemption.
ARTICLE III
CERTAIN OBLIGATIONS OF
HOLDERS OF RECEIPTS AND THE COMPANY
Section 3.1 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 or
otherwise reasonably request. The Depositary or the Company may withhold the
delivery, or delay the registration of transfer, redemption or exchange, of
any Receipt or the withdrawal or conversion 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 3.2 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 5.7. 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
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sale may be applied to any payment of such charges or expenses, the holder of
such Receipt remaining liable for any deficiency.
Section 3.3 WARRANTY AS TO STOCK. The Company hereby represents
and warrants that the Stock, when issued, will be duly authorized, validly
issued, fully paid and nonassessable. Such representation and warranty shall
survive the deposit of the Stock and the issuance of Receipts.
ARTICLE IV
THE DEPOSITED SECURITIES; NOTICES
Section 4.1 CASH DISTRIBUTIONS. Whenever the Depositary shall
receive any cash dividend or other cash distribution on Stock, the Depositary
shall, subject to Sections 3.1 and 3.2, distribute to record holders of
Receipts on the record date fixed pursuant to Section 4.4 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 or as otherwise required by law, regulation or court
process, the amount made available for distribution or distributed in respect
of Depositary Shares shall be reduced accordingly. 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 number of Depositary Receipts 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 4.2 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 3.1 and 3.2, distribute to record holders of
Receipts on the record date fixed pursuant to Section 4.4 such amounts of the
securities or property received by it as are, as nearly as practicable, in
proportion to the respective numbers of Depositary Shares evidenced by the
Receipts held by such holders, in any manner that the Depositary 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 such distribution not to be feasible, the
Depositary may, with the approval of the Company, adopt such method as it
deems equitable
9
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
3.1 and 3.2, be distributed or made available for distribution, as the case
may be, by the Depositary to record holders of Receipts as provided by
Section 4.1 in the case of a distribution received in cash.
Section 4.3 SUBSCRIPTION RIGHTS, PREFERENCES OR PRIVILEGES. If e
Company shall at any time offer or cause to be offered to the persons in
whose names Stock is recorded on the books of the Company any rights,
preferences or privileges to subscribe for or to purchase any securities or
any rights, preferences or privileges of any other nature, such rights,
preferences or privileges shall in each such instance be made available by
the Depositary to the record holders of Receipts in such manner as the
Depositary may determine, either by the issue to such record holders of
warrants representing such rights, preferences or privileges or by such other
method as may be 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 execute such
rights, preferences or privileges, then the Depositary, in its discretion
(with approval of the Company, in any case where the Depositary has
determined that it is not feasible to make such rights, preferences or
privileges available), may, if applicable laws or the terms of such rights,
preferences or privileges permit such transfer, sell such rights, preferences
or privileges at public or private sale, at such place or places and upon
such terms as it may deem proper. The net proceeds of any such sale shall,
subject to Sections 3.1 and 3.2, be distributed by the Depositary to the
record holders of Receipts entitled thereto as provided by Section 4.1 in the
case of a distribution received in cash.
If registration under the Securities Act of the securities to which
any rights, preferences or privileges relate is required in order for holders of
Receipts to be offered or sold the securities to which such rights, preferences
or privileges relate, the Company will file promptly a registration statement
pursuant to the Securities Act with respect to such rights, preferences or
privileges and securities and use its best efforts and take all steps available
to it to cause such registration statement to become effective sufficiently in
advance of the expiration of such rights, preferences or privileges to enable
such holders to exercise such rights, preferences or privileges. In no event
shall the Depositary make available to the holders of Receipts any right,
preference or privilege to subscribe for or to purchase any securities unless
and until it has received written notice from the Company that such registration
statement shall have become effective, or that the offering and sale of such
securities to such holders are exempt from
10
registration under the provisions of the Securities Act and the Company shall
have provided to the Depositary an opinion of counsel to such effect.
If any other action under the laws of any jurisdiction or any
governmental or administrative authorization, consent or permit is required in
order for such rights, preferences or privileges to be made available to holders
of Receipts, the Company will use its reasonable 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 4.4 NOTICE OF DIVIDENDS, ETC.; FIXING 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 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 or otherwise in accordance with the terms of the Stock) for
the determination of the holders of Receipts who shall be entitled to receive
such dividend, distribution, rights, preferences or privileges or the net
proceeds of the sale thereof, or to give instructions for the exercise of
voting rights at any such meeting, or who shall be entitled to notice of such
meeting or for any other appropriate reasons.
Section 4.5 VOTING RIGHTS. Upon receipt of notice of any meeting
at which the holders of Stock are entitled to vote, the Depositary shall, as
soon as practicable thereafter, mail to the record holders of Receipts a
notice which shall 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 shall use its
best efforts 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 reasonable action which may be deemed necessary by the
Depositary in order to enable the Depositary to vote such Stock or cause such
Stock to be voted. In the absence of specific instructions from the holder
of a Receipt, the Depositary will not vote (but, at its discretion, may
appear at any meeting with respect to such Stock unless directed to the
11
contrary by the holders of all the Receipts) to the extent of the Stock
represented by the Depositary Shares evidenced by such Receipt.
Section 4.6 CHANGES AFFECTING DEPOSITED SECURITIES AND
RECLASSIFICATIONS, RECAPITALIZATIONS, ETC. Upon any change in par value or
liquidation preference, split-up, combination or any other reclassification
of the Stock, or upon any recapitalization, reorganization, merger or
consolidation affecting the Company or to which it is a party, the Depositary
may in its discretion with the approval of, and shall upon the instructions
of, the Company, and (in either case) in such manner as the Depositary may
deem equitable, (i) make such adjustments in the fraction of an interest in
one share of Stock represented by one Depositary Share as may be necessary (
as certified by the Company) fully to reflect the effects of such change in
par value or liquidation preference, split-up, combination or other
reclassification of Stock, or of such recapitalization, reorganization,
merger 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 value or liquidation preference, split-up, combination or other
reclassification of the Stock or any such recapitalization, reorganization,
merger 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 would have been converted or for which such Stock would have
been exchanged or surrendered had such Receipt been surrendered immediately
prior to the effective date of such transaction.
Section 4.7 DELIVERY OF REPORTS. The Depositary shall furnish to
holders of Receipts any reports and communications received from the Company
which are received by the Depositary as the holder of Stock.
Section 4.8 LIST OF RECEIPT HOLDERS. Promptly upon request from
time to time by the Company, the Depositary shall furnish to it a list, as of
the most recent practicable date, of the names, addresses and holdings of
Depositary Shares of all record holders of Receipts. The Company shall be
entitled to receive such list twice annually without charge.
12
ARTICLE V
THE DEPOSITARY, THE DEPOSITARY'S
AGENTS, THE REGISTRAR AND THE COMPANY
Section 5.1 MAINTENANCE OF OFFICES, AGENCIES AND TRANSFER BOOKS
BY THE DEPOSITARY; REGISTRAR. Upon execution of this Deposit Agreement, the
Depositary shall maintain at the Depositary's office, facilities for the
execution and delivery, registration and registration of transfer, surrender
and exchange of Receipts, and at the offices of the Depositary's Agents, if
any, facilities for the delivery, registration of transfer, surrender and
exchange of Receipts, all in accordance with the provisions of this Deposit
Agreement.
The Depositary shall keep books at the Depositary's Office for the
registration and registration of transfer of Receipts, which books during normal
business hours shall be open for inspection by the record holders of Receipts;
provided that any such holder requesting to exercise such right shall certify to
the Depositary that such inspection shall be for a proper purpose reasonably
related to such person's interest as an owner of Depositary Shares evidenced by
the Receipts.
The Depositary may close such books, 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 shall be listed on one or more
national securities exchanges, 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 any such
exchange) may be removed and a substitute registrar appointed by the Depositary
upon the request or with the approval of the Company. If the Receipts, such
Depositary Shares or such Stock are listed on one or more other stock exchanges,
the Depositary will, at the request and at the expense 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 securities exchange regulation.
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
13
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 5.2 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 the Registrar nor the Company
shall incur any liability to any holder of any Receipt if by reason of any
provision of any present or future law, or regulation thereunder, of the
United States of America or of any other governmental authority or, in the
case of the Depositary, the Depositary's Agent or the Registrar, by reason of
any provision, present or future, of the Company's Certificate of
Incorporation or by reason of any act of God or war or other circumstance
beyond the reasonable control of the relevant party, the Depositary, the
Depositary's Agent, the Registrar or the Company shall be prevented, delayed
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,
the Registrar or the Company incur 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
shall provide shall or may be done or performed, or (ii) by reason of any
exercise of, or failure to exercise, any discretion provided for in this
Deposit Agreement except, in the case of any such exercise or failure to
exercise discretion not caused as aforesaid, if caused by the gross
negligence or willful misconduct of the party charged with such exercise or
failure to exercise.
Section 5.3 OBLIGATION OF THE DEPOSITARY, THE DEPOSITARY'S AGENTS,
THE REGISTRAR AND THE COMPANY. Neither the Depositary nor any Depositary's
Agent nor the Registrar nor the Company assumes any obligation or shall be
subject to any liability under this Deposit Agreement or any Receipt to
holders of Receipts other than for its gross negligence, willful misconduct
or bad faith.
Neither the Depositary nor any Depositary's Agent nor the Registrar
nor the Company shall be under any obligation to appear in, prosecute or
defend any action, suit or other proceeding 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 the 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, the Registrar and the
14
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 Agreement, and no implied covenants or obligations shall be
read into this Agreement against the Depositary or any Registrar. The
Depositary will indemnify the Company and hold it harmless from any loss,
liability or expense (including the reasonable costs and expenses of
defending itself) which may arise out of acts performed or omitted by the
Depositary, including when such Depositary acts as Registrar, or the
Depositary's Agents in connection with this Agreement due to its or their
negligence, willful misconduct or bad faith. The indemnification obligations
of the Depositary set forth in this Section 5.3 shall survive any termination
of this Agreement and any succession of any Depositary.
The Depositary, its parent, affiliates or subsidiaries, the
Depositary's Agents, and the Registrar may own, buy, sell and deal in any
class of securities of the Company and its affiliates and in Receipts or
Depositary Shares or become pecuniarily interested in any transaction in
which the Company or its affiliates may be interested or contract with or
lend money to or otherwise act as fully or as freely as if it were not the
Depositary, parent, affiliate or subsidiary or Depositary's Agent or
Registrar hereunder. The Depositary may also act as trustee, transfer agent
or registrar of any of the securities of the Company and its affiliates.
It is intended that neither the Depositary nor any Depositary's
Agent nor the Registrar, acting as the Depositary's Agent or Registrar, as
the case may be, 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, any Depositary's Agent
and the Registrar are acting only in a ministerial capacity as Depositary or
Registrar for the Stock.
Neither the Depositary (or its officers, directors, employees or
agents) nor any Depositary's Agent nor the Registrar makes any representation
or has any responsibility as to the validity of the registration statement
pursuant to which the Depositary Shares are registered under the Securities
Act, the Stock, the Depositary Shares or the Receipts (except for its
counter-signatures thereon) or any instruments referred to therein or herein,
or as to the correctness of any statement made therein or herein.
15
The Depositary assumes no responsibility for the correctness of the
description that appears in the Receipts, which can be taken as a statement
of the Company summarizing certain provisions of this Deposit Agreement.
Notwithstanding any other provision herein or in the Receipts, the Depositary
makes no warranties or representations as to the validity or genuineness of
any Stock at any time deposited with the Depositary hereunder or of the
Depositary Shares, as to the validity or sufficiency of this Deposit
Agreement, as to the value of the Depositary Shares or as to any right, title
or interest of the record holders of Receipts in and to the Depositary
Shares. The Depositary shall not be accountable for the use or application
by the Company of the Depositary Shares or the Receipts or the proceeds
thereof.
Section 5.4 RESIGNATION AND REMOVAL OF THE DEPOSITARY; APPOINTMENT
OF SUCCESSOR DEPOSITARY. The Depositary may at any time resign as Depositary
hereunder by delivering notice of its election to do so to the Company, such
resignation to take effect upon the appointment of a successor Depositary and
its acceptance of such appointment as hereinafter provided.
The Depositary may at any time be removed by the Company by notice
of such removal delivered to the Depositary, such removal to take effect upon
the appointment of a successor Depositary and its acceptance of such
appointment as hereinafter provided.
In case at any time the Depositary acting hereunder shall resign or
be removed, 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 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 and such records, books and other
information in its possession relating thereto. Any successor Depositary
shall promptly mail notice of its appointment to the record holders of
Receipts.
16
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 5.5 CORPORATE NOTICES AND REPORTS. The Company agrees that
it will deliver to the Depositary, and the Depositary will, promptly after
receipt thereof transmit to the record holders of Receipts, in each case at
the addresses recorded in the Depositary's books, copies of all notices and
reports (including without limitation financial statements) required by law
or by the rules of any national securities exchange upon which the Stock, the
Depositary Shares or the Receipts are listed, to be furnished to the record
holders of Receipts. Such transmission will be at the Company's expense and
the Company will provide the Depositary with such number of copies of such
documents as the Depositary may reasonably request.
Section 5.6 INDEMNIFICATION BY THE COMPANY. The Company shall
indemnify the Depositary, any Depositary's Agent and the Registrar against,
and hold each of them harmless from, any loss, liability or expense
(including the reasonable costs and expenses of defending itself) which may
arise out of acts performed or omitted in connection with this Deposit
Agreement and the Receipts by the Depositary, any Registrar or any of their
respective agents (including any Depositary's Agent), except for any
liability arising out of negligence, willful misconduct or bad faith on the
respective parts of any such person or persons. The obligations of the
Company set forth in this Section 5.6 shall survive any succession of any
Depositary or Depositary's Agent.
Section 5.7 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
reasonable charges of the Depositary in connection with the initial deposit
of the Stock and the initial issuance of the Depositary Shares, all
withdrawals of shares of the Stock by owners of Depositary Shares, and any
redemption or exchange of the Stock at the option of the Company. 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 (including, in each case, reasonable 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 at such
intervals as the Company and the Depositary may agree.
17
Section 5.8 TAX COMPLIANCE. The Depositary, on its own behalf and
on behalf of the Company, will comply with all applicable certification,
information reporting and withholding (including "backup" withholding)
requirements imposed by applicable tax laws, regulations or administrative
practice with respect to (i) any payments made with respect to the Depositary
Shares or (ii) the issuance, delivery, holding, transfer, redemption or
exercise of rights under the Depositary Receipts or the Depositary Shares.
Such compliance shall include, without limitation, the preparation and timely
filing of required returns and the timely payment of all amounts required to
be withheld to the appropriate taxing authority or its designated agent.
The Depositary shall comply with any direction received from the
Company with respect to the application of such requirements to particular
payments or holders or in other particular circumstances, and may for
purposes of this Agreement rely on any such direction in accordance with the
provisions of Section 5.3 hereof.
The Depositary shall maintain all appropriate records documenting
compliance with such requirements, and shall make such records available on
request to the Company or to its authorized representatives.
ARTICLE VI
AMENDMENT AND TERMINATION
Section 6.1 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 or Registrar, which
shall go into effect not sooner than three months after notice thereof to the
holders of the Receipts) which shall materially 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 be bound by the Deposit Agreement as amended thereby.
Notwithstanding the foregoing, in no event may any amendment impair the right
of any holder of any Depositary Shares, upon surrender of the Receipts
evidencing such Depositary Shares and subject to any conditions specified in
this Deposit Agreement, to receive shares of Stock and any money or other
property represented thereby, except in order to comply with mandatory
provisions of applicable law.
18
Section 6.2 TERMINATION. This Deposit Agreement may be terminated
by the Company at any time upon not less than 60 days prior written notice to
the Depositary, in which case, on a date that is not later than 30 days after
the date of such notice, the Depositary shall deliver or make available for
delivery to holders of Depositary Shares, upon surrender of the Receipts
evidencing such Depositary Shares, such number of whole or fractional shares
of Stock as are represented by such Depositary Shares. This Deposit
Agreement will automatically terminate after (i) all outstanding Depositary
Shares have been redeemed pursuant to Section 2.8 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 Receipts pursuant to
Sections 4.1 or 4.2, 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, the Registrar and any Depositary's Agent
under Sections 5.6 and 5.7.
ARTICLE VII
MISCELLANEOUS
Section 7.1 COUNTERPARTS. This Deposit Agreement may be executed
in any number of counterparts, and by each of the parties hereto on separate
counterparts, each of which counterparts, when so executed and delivered,
shall be deemed an original, but all such counterparts taken together shall
constitute one and the same instrument.
Section 7.2 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 7.3 INVALIDITY OF PROVISIONS. In case any one or more of the
provisions contained in this Deposit Agreement or in the Receipts should be
or become invalid, illegal or unenforceable in any respect, the validity,
legality and enforceability of the remaining provisions contained herein or
therein shall in no way be affected, prejudiced or disturbed thereby.
Section 7.4 NOTICES. Any 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 facsimile transmission confirmed by letter, addressed to the Company at:
19
The Xxxx Disney Company
000 Xxxxx Xxxxx Xxxxx Xxxxxx
Xxxxxxx, Xxxxxxxxxx 00000
Attention: Legal Department
Facsimile No.: (000) 000-0000
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 facsimile transmission
confirmed by letter, addressed to the Depositary at the Depositary's Office, at:
______________________________
Attention: ___________________
Facsimile No.: _______________
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 facsimile transmission confirmed by letter, addressed to much 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 facsimile
transmission shall be deemed to be effected at the time when a duly addressed
letter containing the same (or a confirmation thereof in the case of a telegram
or facsimile transmission) is deposited for mailing by first class mail, postage
prepaid. The Depositary or the Company may, however, act upon any telegram or
facsimile transmission received by it from the other or from any holder of a
Receipt, notwithstanding that such telegram or facsimile transmission shall not
subsequently be confirmed by letter or as aforesaid.
Section 7.1 APPOINTMENT OF REGISTRAR. The Company hereby also
appoints the Depositary as Registrar in respect of the Receipts and the
Depositary hereby accepts such appointments.
20
Section 7.6 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 7.7 GOVERNING LAW. THIS DEPOSIT AGREEMENT AND THE RECEIPTS
AND ALL RIGHTS HEREUNDER AND THEREUNDER AND PROVISIONS HEREOF AND THEREOF
SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE
OF NEW YORK, INCLUDING WITHOUT LIMITATION SECTION 5-1401 OF THE NEW YORK
GENERAL OBLIGATIONS LAW.
Section 7.9 INSPECTION OF DEPOSIT AGREEMENT. Copies of this
Deposit Agreement shall be filed with the Depositary and the Depositary's
Agent and shall be open to inspection during business hours at the
Depositary's Office or respective offices of the Depositary's Agent, if any,
by any holder of a Receipt.
Section 7.9 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 to have any bearing upon
the meaning or interpretation of any provision contained herein or in the
Receipts.
21
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.
THE XXXX DISNEY COMPANY
Attested by
_______________________________ By ___________________________
Attested by
_______________________________ By ___________________________
22
ANNEX A
TEMPORARY RECEIPT EXCHANGEABLE FOR DEFINITIVE CERTIFICATE FOR ENGRAVED RECEIPT
WHEN READY FOR DELIVERY DEPOSITARY SHARES TRANSFERABLE DEPOSITARY RECEIPT. This
Certificate is transferable in New York, New York
CUSIP
SEE REVERSE FOR CERTAIN DEFINITIONS DEPOSITARY RECEIPT FOR DEPOSITARY SHARES,
EACH DEPOSITARY SHARE REPRESENTING AN INTEREST IN ONE SHARE OF ____% PREFERRED
STOCK THE XXXX DISNEY COMPANY, INC.
A CORPORATION INCORPORATED UNDER THE
LAWS OF THE STATE OF DELAWARE
_________ , as Depositary (the "Depositary"),
hereby certifies that
is the registered owner of _____________________________ DEPOSITARY SHARES
("Depositary Shares"), each Depositary Share representing a _________ interest
in one share of Series Preferred Stock, par value $ per share (the "Stock"), of
The Xxxx Disney Company, Inc., a Delaware 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 be 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 or, if executed in facsimile
by the Depositary, countersigned by a Registrar in respect of the Depositary
Receipts by a duly authorized officer thereof.
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Dated: _________
Countersigned
Depositary and Registrar
By: _________________
Authorized Officer
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THE XXXX DISNEY COMPANY
The Xxxx Disney Company WILL FURNISH WITHOUT CHARGE TO EACH RECEIPTHOLDER WHO SO
REQUESTS A COPY OF THE DEPOSIT AGREEMENT AND A STATEMENT OR SUMMARY OF THE
CERTIFICATE OF INCORPORATION, AS AMENDED, INCLUDING THE CERTIFICATE OF
DESIGNATION ESTABLISHING THE POWERS, DESIGNATIONS, PREFERENCES AND RELATIVE,
PARTICIPATING, OPTIONAL OR OTHER SPECIFIED RIGHTS OF THE SERIES ________
PREFERRED STOCK AND THE CERTIFICATE OF DESIGNATION OF EACH OTHER CLASS OF
PREFERRED STOCK OR SERIES THEREOF WHICH THE CORPORATION IS AUTHORIZED TO ISSUE
AND OF THE QUALIFICATIONS, LIMITATIONS OR RESTRICTIONS OF SUCH PREFERENCE AND/OR
RIGHTS. ANY SUCH REQUEST SHOULD BE ADDRESSED TO THE XXXX DISNEY COMPANY, 000
XXXXX XXXXX XXXXX XXXXXX, XXXXXXX, XXXXXXXXXX 00000, ATTENTION: INVESTOR
RELATIONS.
_________________________
ABBREVIATIONS
The following abbreviations, when used in the inscription on the face of
this Depositary Receipt, shall be construed as though they were written out in
full according to applicable laws or regulations:
TEN COM - as tenants in common
TEN ENT - as tenants by the entireties
JT TEN - as joint tenants with right
of survivorship and not as
tenants in common
UNIF GIFT MIN ACT - ______ Custodian ______
(Cust) (Minor)
under Uniform Gifts to
Minors Act ____________
(State)
UNIF XXXX MIN ACT - ________ Custodian (until age ___)
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(Cust)
________ under Uniform Transfers
(Minor)
to Minors Act__________________
(State)
Additional abbreviations may also be
used though not in the above list.
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For value received, ____________________ hereby sell(s), assign(s) and
transfers unto
PLEASE INSERT SOCIAL SECURITY OR OTHER
IDENTIFYING NUMBER OF ASSIGNEE
______________________________________
______________________________________
______________________________________
______________________________________________________________________________
______________________________________________________________________________
PLEASE PRINT OR TYPEWRITE NAME AND ADDRESS INCLUDING POSTAL ZIP CODE OF ASSIGNEE
________________________ Depositary Shares represented by the within
Depositary Receipt, and do(es) hereby irrevocably constitute and appoint
________________________ Attorney to transfer the said Depositary Shares
on the books of the within named Depositary with full power of substitution in
the premises.
Dated _______________________________ Signature:
_________________________________
NOTICE: The signature to this
assignment must correspond with the
name as written upon the face of this
Depositary Receipt in every
particular, without alteration or
enlargement or any change whatever.
SIGNATURE GUARANTEED
____________________________________
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