EXHIBIT 3(IV)
FORM OF
DEPOSIT AGREEMENT
DEPOSIT AGREEMENT, dated as of [ , 1996,] between El Paso Natural Gas
Company, a Delaware corporation, and [ ], as Depositary.
WITNESSETH:
WHEREAS, it is desired to provide, as hereinafter set forth in this Deposit
Agreement, for the deposit of shares of Stock with the Depositary, as agent
for the beneficial owners of the Stock, for the purposes set forth in this
Deposit Agreement and for the issuance hereunder of the Receipts evidencing
Adjustable Rate Depositary Shares representing an interest in the Stock so
deposited; and
WHEREAS, the Receipts are to be substantially in the form of the Depositary
Receipt annexed as Exhibit A to this Deposit Agreement, with appropriate
insertions, modifications and omissions, as hereinafter provided in this
Deposit Agreement;
NOW, THEREFORE, in consideration of the premises contained herein, it is
agreed by and among the parties hereto as follows:
ARTICLE I
DEFINITIONS
The following definitions shall apply to the respective terms (in the
singular and plural forms of such terms) used in this Deposit Agreement and
the Depositary Receipts:
"Adjustable Rate Depositary Share" shall mean an interest in one twenty-
fifth of a share of Stock deposited with the Depositary hereunder, as
evidenced by the Receipts issued hereunder. Subject to the terms of this
Deposit Agreement, each owner of an Adjustable Rate Depositary Share is
entitled, proportionately, to all the rights and preferences of the Stock
represented by such Adjustable Rate Depositary Share, including the dividend,
voting, redemption and liquidation rights contained in the Certificate of
Designation.
"Certificate of Designation" shall mean the Certificate of Designation
annexed as Exhibit B to this Deposit Agreement, as amended from time to time,
establishing and setting forth the rights, preferences, privileges and
limitations of the Stock.
"Certificate of Incorporation" shall mean the Restated Certificate
Incorporation, as amended from time to time, of the Company.
"Common Stock" shall mean the Company's Common Stock, par value $3 per
share.
"Company" shall mean El Paso Natural Gas Company, a Delaware corporation,
and its successors.
"Corporate Office" shall mean the office of the Depositary at which at any
particular time its depositary receipt business shall be administered, which
at the date of this Deposit Agreement is located at [ ].
"Deposit Agreement" shall mean this agreement, as the same may be amended,
modified or supplemented from time to time.
"Depositary" shall mean [ ], and any successor as depositary hereunder.
"Depositary's Agent" shall mean an agent appointed by the Depositary as
provided, and for the purposes specified, in Section 7.05.
"Depositary Successor" means a successor to the Depositary taking title to
the Stock in accordance with Section 5.04.
"Operating Guidelines" means the operating and administrative procedures
relating to the functions of the Depositary pursuant to this Deposit
Agreement, as agreed between the Company and the Depositary from time to time.
"Person" means a legal person, including any individual, corporation,
estate, partnership, joint venture, association, joint stock company, limited
liability company, a government or any agency or political subdivision
thereof, or any other entity of whatever nature.
"Receipt" shall mean a Depositary Receipt issued hereunder to evidence one
or more Adjustable Rate Depositary Shares, whether in temporary or definitive
form.
"Record holder" as applied to a Receipt shall mean the person in whose name
a Receipt is registered on the books maintained by the Depositary for such
purpose.
"Redemption Date" shall have the meaning assigned to it in Section 2.03.
"Registrar" shall mean any qualified Person appointed by the Company to
register ownership of Receipts as herein provided.
"Securities" shall have the meaning assigned to it in Section 3.02.
"Securities Act" shall mean the Securities Act of 1933, as amended.
"Stock" shall mean shares of the Company's Adjustable Rate Cumulative
Preferred Stock, par value $.01 per share, heretofore validly issued, fully
paid and nonassessable.
ARTICLE II
FORM OF RECEIPTS, DEPOSIT OF STOCK,
EXECUTION AND DELIVERY, TRANSFER,
SURRENDER AND REDEMPTION OF RECEIPTS
SECTION 2.01. Form and Transferability of Receipts. Receipts shall be
engraved or printed or lithographed with steel-engraved borders and underlying
tint and shall be substantially in the form set forth in Exhibit A annexed to
this Deposit Agreement, with appropriate insertions, modifications and
omissions, as hereinafter provided. Pending the preparation of definitive
Receipts, the Depositary, upon the written order of the Company or any holder
of Stock, as the case may be, delivered for deposit in compliance with Section
2.02, shall execute and deliver temporary Receipts that 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 second to
last paragraph of Section 2.02, 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 Adjustable Rate 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 thereof. 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 deposited
hereunder, as definitive Receipts.
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Receipts shall be executed by the Depositary by the manual signature of a
duly authorized signatory of the Depositary, provided, however, that such
signature may be a facsimile if a Registrar (other than the Depositary) shall
have countersigned the Receipts by manual signature of a duly authorized
signatory of the Registrar. No Receipt shall be entitled to any benefits under
this Deposit Agreement or be valid or obligatory for any purpose unless it
shall have been executed as provided in the preceding sentence. The Depositary
shall record on its books each Receipt executed as provided above and
delivered as hereinafter provided.
Except as the Depositary may otherwise determine, Receipts shall be in
denominations of any number of whole Adjustable Rate Depositary Shares. All
Receipts shall be dated the date of their execution.
Receipts may be endorsed with or have incorporated in the text thereof such
legends or recitals or changes not inconsistent with the provisions of this
Deposit Agreement as may be required by the Depositary or required to comply
with any applicable law or regulation or with the rules and regulations of any
securities exchange upon which the Stock, the Adjustable Rate 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 by reason of the date of issuance of the Stock
or otherwise.
Title to any Receipt (and to the Adjustable Rate Depositary Shares evidenced
by such Receipt) that is properly endorsed or accompanied by a properly
executed instrument of transfer or endorsement shall be transferable by
delivery with the same effect as in the case of a negotiable instrument;
provided, however, that until a Receipt shall be transferred on the books of
the Depositary as provided in Section 2.04, the Depositary may,
notwithstanding any notice to the contrary, treat the record holder thereof at
such time as the absolute owner thereof for the purpose of determining the
person entitled to distribution of dividends or other distributions or to any
notice provided for in this Deposit Agreement and for all other purposes.
SECTION 2.02. Deposit of Stock; Execution and Delivery of Receipts in
Respect Thereof. On the date any Stock is initially issued by the Company, the
Depositary, upon receipt of a written order from the Company and a certificate
or certificates for the Stock to be deposited under this Deposit Agreement in
accordance with the provisions of this Section, shall execute and deliver a
Receipt or Receipts for the number of Adjustable Rate Depositary Shares
representing such deposited Stock to the person or persons stated in such
order.
Subject to the terms and conditions of this Deposit Agreement, any holder of
Stock may deposit such 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 properly
executed instrument of transfer or endorsement in form satisfactory to the
Depositary, together with (i) all such certifications as may be required by
the Depositary in accordance with the provisions of this Deposit Agreement and
(ii) a written order 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 Adjustable Rate Depositary Shares representing
such deposited Stock.
If required by the Depositary, Stock presented for deposit at any time,
whether or not the register of stockholders of the Company is closed, shall
also be accompanied by an agreement or assignment, or other instrument
satisfactory to the Depositary, that will provide for the prompt transfer to
the Depositary or its nominee of any dividend or right to subscribe for
additional Stock or to receive other property that any person in whose name
the Stock is or has been registered may thereafter receive upon or in respect
of such deposited Stock, or in lieu thereof such agreement of indemnity or
other agreement as shall be satisfactory to the Depositary.
Upon receipt by the Depositary of a certificate or certificates for Stock to
be deposited hereunder, together with the other documents specified above, the
Depositary shall, as soon as transfer and registration can be accomplished,
present such certificate or certificates to the registrar and transfer agent
of the Stock for transfer and registration in the name of the Depositary or
its nominee of the Stock being deposited. Deposited Stock shall be held by the
Depositary in an account to be established by the Depositary at the Corporate
Office.
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Upon receipt by the Depositary of a certificate or certificates for Stock to
be deposited hereunder, together with the other documents specified above, 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 or
second paragraph of this Section 2.02 a Receipt or Receipts for the number of
whole Adjustable Rate 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 Corporate office, except that, at the request, risk and expense of any
person requesting such delivery, such delivery may be made at such other place
as may be designated by such person. In each case, delivery will be made only
upon payment by such person to the Depositary of all taxes and other
governmental charges and any fees payable in connection with such deposit and
the transfer of the Deposited Stock.
The Company shall deliver to the Depositary from time to time such
quantities of Receipts as the Depositary may reasonably request to enable the
Depositary to perform its obligations under this Deposit Agreement.
SECTION 2.03. Redemptions of Stock. Whenever the Company shall elect to
redeem shares of Stock in accordance with the Certificate of Designation, it
shall (unless otherwise agreed in writing with the Depositary) give the
Depositary in its capacity as Depositary not less than two business days prior
notice of the proposed date of the mailing of the notice of redemption of
Stock required pursuant to paragraphs 6(b) or 7(d) of the Certificate of
Designation to be effected in connection with a redemption of Stock and of the
number of such shares of Stock hold by the Depositary to be redeemed as
hereinafter provided.
On the date of any redemption of Stock in accordance with the Certificate of
Designation, provided that the Company shall then have deposited with the
Depositary the shares of Common Stock and any funds required pursuant to the
Certificate of Designation for the Stock deposited with the Depositary to be
redeemed, the Depositary shall redeem (using the shares of Common Stock and
funds, if any, deposited with it) the number of Adjustable Rate Depositary
Shares representing such redeemed Stock. The distribution of the shares of
Common Stock and funds, if any, used to effect such redemption shall be
governed by Sections 4.01 and 4.02 hereof. The Depositary shall, as directed
by the Company, mail, first class postage prepaid, the notice of the
redemption of Stock and the proposed simultaneous redemption of the Adjustable
Rate Depositary Shares representing the Stock to be redeemed, not less than 30
and not more than 60 days prior to the date fixed for redemption (the
"Redemption Date") of such Stock and Adjustable Rate Depositary Shares. Such
notice shall be mailed to each holder of record on the record date fixed for
such redemption pursuant to Section 4.04 hereof of the Receipts evidencing the
Adjustable Rate Depositary Shares, at the address of such holder as the same
appears 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 shall affect
the sufficiency of the proceedings for redemption.
With respect to the notices provided in accordance with the first paragraph
of this Section 2.03, the Company shall provide the Depositary with such
notice, and each such notice shall, as appropriate and to the extent
determinable at the time of such notice, state: the record date for such
redemption; the redemption date; that all outstanding Adjustable Rate
Depositary Shares are to be redeemed or, in the case of a redemption of fewer
than all outstanding Adjustable Rate Depositary Shares in connection with a
partial redemption of Stock pursuant to paragraph 6(a) or 7(a) of the
Certificate of Designation, the number of such Adjustable Rate Depositary
Shares held by such holder to be so redeemed; in connection with a redemption
of Stock pursuant to paragraph 6(a) of the Certificate of Designation, the
redemption price for the Adjustable Rate Depositary Shares, in connection with
a redemption pursuant paragraph 7(a) of the Certificate of Designation, the
number of shares of Common Stock deliverable upon redemption of each
Adjustable Rate Depositary Share to be redeemed and the then effective Common
Equivalent Rate (as defined in the Certificate of Designation) used to
calculate the number of shares of Common Stock; the place or places where
Receipts evidencing Adjustable Rate Depositary Shares to be redeemed are to be
surrendered for redemption and that dividends in respect of the Stock
represented by the Adjustable Rate Depositary Shares to be redeemed will cease
to accrue on such redemption date, unless the Company shall default in
delivering the shares of Common Stock or cash, if any, payable by the Company
at the time and place specified in such notice. In case fewer than all the
outstanding Adjustable Rate Depositary
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Shares are to be redeemed, the Adjustable Rate Depositary Shares to be
redeemed shall be selected by lot or such other method as the Company in its
discretion may determine is fair and appropriate.
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 paragraphs), the Adjustable Rate Depositary Shares called for
redemption shall be deemed no longer to be outstanding and all rights of the
holders of Receipts evidencing such Adjustable Rate Depositary Shares (except
the right to receive the shares of Common Stock and any cash upon redemption)
shall, to the extent of such Adjustable Rate Depositary Shares, cease and
terminate. Upon surrender in accordance with said notices of the Receipts
evidencing such Adjustable Rate Depositary Shares (properly endorsed or
assigned for transfer, if the Depositary shall so require), such Adjustable
Rate Depositary Shares shall be redeemed (as nearly as may be practicable
without creating fractional shares) in exchange for cash or, if applicable,
shares of Common Stock at a rate equal to one twenty-fifth the number of
shares of Common Stock delivered in respect of the shares of Stock represented
by such Adjustable Rate Depositary Shares as is provided for in the
Certificate of Designation. The foregoing shall be subject further to the
terms and conditions of the Certificate of Designation.
If fewer than all of the Adjustable Rate 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, a new Receipt evidencing
the Adjustable Rate Depositary Shares evidenced by such prior Receipt and not
called for redemption, together with the shares of Common Stock for the
Adjustable Rate Depositary Shares called for redemption.
SECTION 2.04. Transfer of Receipts. Subject to the terms and conditions of
this Deposit Agreement, the Depositary shall make transfers on its books from
time to time of Receipts upon any surrender thereof by the holder in person or
by a duly authorized attorney, properly endorsed or accompanied by a properly
executed instrument of transfer or endorsement, together with evidence of the
payment of any transfer taxes as may be required by law. Upon such surrender,
the Depositary shall execute a new Receipt or Receipts and deliver the same to
or upon the order of the person entitled thereto evidencing the same aggregate
number of Adjustable Rate Depositary Shares evidenced by the Receipt or
Receipts surrendered.
SECTION 2.05. Combination and Split-ups of Receipts. Upon surrender of a
Receipt or Receipts at the Corporate Office or such other office as the
Depositary may designate for the purpose of effecting a split-up or
combination of Receipts, subject to the terms and conditions of this Deposit
Agreement, the Depositary shall execute and deliver a new Receipt or Receipts
in the authorized denominations requested evidencing the same aggregate number
of Adjustable Rate Depositary Shares evidenced by the Receipt or Receipts
surrendered; provided, however, that the Depositary shall not issue any
Receipt evidencing a fractional Adjustable Rate Depositary Share.
SECTION 2.06. Surrender of Receipts and Withdrawal of Stock. Any holder of a
Receipt or Receipts may withdraw any or all of the Stock (but only in whole
shares of Stock) represented by the Adjustable Rate Depositary Shares
evidenced by such Receipts by surrendering such Receipt or Receipts at the
Corporate Office or at such other office as the Depositary may designate for
such withdrawals. After such surrender, without unreasonable delay, the
Depositary shall deliver to such holder, or to the person or persons
designated by such holder as hereinafter provided, the whole number of shares
of Stock represented by the Adjustable Rate Depositary Shares evidenced by the
Receipt or Receipts so surrendered for withdrawal, but holders of such shares
of Stock will not thereafter be entitled to deposit such shares of Stock
hereunder or to receive Adjustable Rate Depositary Shares therefor. If the
Receipt or Receipts delivered by the holder to the Depositary in connection
with such withdrawal shall evidence a number of Adjustable Rate Depositary
Shares in excess of the number of Adjustable Rate Depositary Shares
representing the whole number of shares of Stock to be withdrawn, the
Depositary shall at the same time, in addition to such whole number of shares
of Stock, deliver to such holder a new Receipt or Receipts evidencing such
excess number of Adjustable Rate Depositary Shares. Delivery of the Stock
being withdrawn may be made by the delivery of such certificates, documents of
title and other instruments
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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 being withdrawn is 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 or endorsement in blank.
The Depositary shall deliver the Stock represented by the Adjustable Rate
Depositary Shares evidenced by Receipts surrendered for withdrawal at the
Corporate office, except that, at the request, risk and expense of the holder
surrendering such Receipt or Receipts and for the account of the holder
thereof, such delivery may be made at such other place as may be designated by
such holder.
SECTION 2.07. Limitations on Execution and Delivery, Transfer, Split-up,
Combination, Surrender and Exchange of Receipts. As a condition precedent to
the execution and delivery, transfer, split-up, combination, surrender or
exchange of any Receipt, the Depositary, any of the Depositary's Agents or the
Company may require any or all of the following: (i) payment to it of a sum
sufficient for the payment (or, in the event that the Depositary or the
Company shall have made such payment, the reimbursement to it) of any tax or
other governmental charge with respect thereto (including any such tax or
charge with respect to the Stock being deposited or withdrawn or with respect
to the Common Stock of the Company being issued upon redemption); (ii) the
production of proof satisfactory to it as to the identity and genuineness of
any signature; and (iii) compliance with such regulations, if any, as the
Depositary or the Company may establish not inconsistent with the provisions
of this Deposit Agreement.
The deposit of Stock may be refused, the delivery of Receipts against Stock
may be suspended, the transfer of Receipts may be refused, and the transfer,
split-up, combination, surrender or exchange of outstanding Receipts may be
suspended (i) during a 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.
Without limitation of the foregoing, the Depositary shall not knowingly accept
for deposit under this Deposit Agreement any shares of Stock that are required
to be registered under the Securities Act unless a registration statement
under the Securities Act is in effect as to such shares of Stock.
SECTION 2.08. Lost Receipts, etc. In case any Receipt shall be mutilated or
destroyed or lost or stolen, the Depositary in its discretion may execute and
deliver a Receipt of like form and tenor in exchange and substitution for such
mutilated Receipt or in lieu of and in substitution for such destroyed, lost
or stolen Receipt; provided, however, that the holder thereof provides the
Depositary with (i) evidence satisfactory to the Depositary of such
destruction, loss or theft of such Receipt, of the authenticity thereof and of
his ownership thereof, (ii) reasonable indemnification satisfactory to the
Depositary and (iii) payment of any expense (including fees, charges and
expenses of the Depositary) in connection with such indemnification, execution
and delivery.
SECTION 2.09. Cancellation and Destruction of Surrendered 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 such Receipts so
cancelled.
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ARTICLE III
CERTAIN OBLIGATIONS OF HOLDERS
OF RECEIPTS AND THE COMPANY
SECTION 3.01. Filing Proofs, Certificates and Other Information. Any person
presenting stock for deposit or any holder of a Receipt may be required from
time to time to file such proof of residence or other information, to execute
such certificates and to make such representations and warranties as the
Depositary or the Company may reasonably deem necessary or proper. The
Depositary or the Company may withhold or delay the delivery of any Receipt,
the transfer, redemption or exchange of any Receipt, the withdrawal of the
Stock represented by the Adjustable Rate Depositary Shares evidenced by any
Receipt or the distribution of any dividend or other distribution until such
proof or other information is filed, such certificates are executed or such
representations and warranties are made.
SECTION 3.02. Payment of Taxes or Other Governmental Charges. If any tax or
other governmental charge shall become payable by or on behalf of the
Depositary with respect to any Receipt, the Adjustable Rate Depositary Shares
evidenced by such Receipt, the Stock (or fractional interest therein)
represented by such Adjustable Rate Depositary Shares or any transaction
referred to in Section 4.06, such tax (including transfer, issuance or
acquisition taxes, if any) or governmental charge shall be payable by the
holder of such Receipt. Until such payment is made, transfer of any Receipt or
any withdrawal of the Stock represented by the Adjustable Rate Depositary
Shares evidenced by such Receipt may be refused, any dividend or other
distribution may be withheld and any part or all of the Stock represented by
the Adjustable Rate Depositary Shares evidenced by such Receipt may be sold
for the account of the holder thereof (after attempting by reasonable means to
notify such holder prior to such sale). Any dividend or other distribution so
withheld and the proceeds of any such sale may be applied to any payment of
such tax or other governmental charge, the holder of such Receipt remaining
liable for any deficiency. Unless the Company determines otherwise, the
Depositary shall act as the withholding agent for any payments, distributions
and exchanges made with respect to the Adjustable Rate Depositary Shares and
Receipts, and the Stock represented thereby (collectively, the "Securities").
The Depositary shall be responsible with respect to the Securities for the
timely (i) collection and deposit of any required withholding or backup
withholding tax, and (ii) filing of any information returns or other documents
with federal (and other applicable) taxing authorities. In the event the
Depositary is required to pay any such amounts, the Company shall reimburse
the Depositary for payment thereof upon the request of the Depositary and the
Depositary shall, upon the Company's request and as instructed by the Company,
pursue its rights against such holder at the Company's expense.
SECTION 3.03. Representations and Warranties as to Stock. In the case of the
initial deposit of the Stock, the Company and, in the case of subsequent
deposits thereof, each person so depositing Stock under this Deposit Agreement
shall be deemed thereby to represent and warrant that such Stock and each
certificate therefor are valid, fully paid and nonassessable and that the
person making such deposit is duly authorized to do so. Such representations
and warranties shall survive the deposit of the Stock and the issuance of
Receipts.
ARTICLE IV
THE STOCK, NOTICES
SECTION 4.01. Cash Distributions. Whenever any cash dividend or other cash
distribution shall be paid on the Stock, the Company, on behalf of the
Depositary (or, if the Company determines otherwise, the Depositary), shall,
subject to Sections 3.01 and 3.02, distribute to record holders of Receipts on
the record date fixed pursuant to Section 4.04 such amounts of such sum as
are, as nearly as practicable, in proportion to the respective numbers of
Adjustable Rate 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 does withhold from any cash dividend or other cash
distribution in respect of the Stock an amount on account of taxes or as
otherwise required pursuant to law, regulation or court process, the amount
made available for distribution or
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distributed in respect of Adjustable Rate Depositary Shares shall be reduced
accordingly. The Company, on behalf of the Depositary (or, if the Company
determines otherwise, the Depositary), shall distribute or make available for
distribution, as the case may be, only such amount, however, as can be
distributed without attributing to any owner of Adjustable Rate Depositary
Shares a fraction of one cent. In the event that the calculation of any such
cash dividend or other cash distribution to be paid to any record holder on
the aggregate number of Adjustable Rate Depositary Shares held by such holder
results in an amount which is a fraction of a cent, the amount the Depositary
shall distribute to such record holder shall be rounded to the next highest
whole cent; and upon request of the Depositary, the Company shall pay the
additional amount to the Depositary for distribution.
SECTION 4.02. Distributions Other Than Cash. Whenever any distribution other
than cash shall be made on the Stock, the Company, on behalf of the Depositary
(or, if the Company determines otherwise, the Depositary), shall, subject to
Sections 3.01 and 3.02, distribute 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 Adjustable Rate Depositary Shares evidenced by the
Receipts held by such holders, in any manner that the Company may deem
equitable and practicable for accomplishing such distribution. If, in the
opinion of the Company, such distribution cannot be made proportionately among
such record holders, or if for any other reason (including any requirement
that the Company or the Depositary withhold an amount on account of taxes or
as otherwise required pursuant to law, regulation or court process), the
Company deems such distribution not to be feasible, the Company on behalf of
the Depositary (or, if the Company determines otherwise, the Depositary) may
adopt such method as it deems equitable and 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 Company on behalf of
the Depositary (or, if the Company determines otherwise, the Depositary) to
record holders of Receipts as provided by Section 4.01 in the case of a
distribution received in cash.
SECTION 4.03. Subscription Rights, Preferences or Privileges. If the Company
shall at any time offer or cause to be offered to the persons in whose names
Stock is registered on the books of the Company any rights, preferences or
privileges to subscribe for or to purchase any securities or any rights,
preferences or privileges of any other nature, such rights, preferences or
privileges shall in each such instance be made available by the Depositary or
the Company to the record holders of Receipts if the Company so directs in
such manner as the Company shall instruct (including by the issue to such
record holders of warrants representing such rights, preferences or
privileges); provided, however, that (a) if at the time of issue or offer of
any such rights, preferences or privileges the Company determines that it is
not lawful or feasible to make such rights, preferences or privileges
available to some or all holders of Receipts (by the issue of warrants or
otherwise) or (b) if and to the extent instructed by holders of Receipts who
do not desire to exercise such rights, preferences or privileges, the
Depositary shall then, if so instructed by the Company, and if applicable laws
or the terms of such rights, preferences or privileges so permit, sell such
rights, preferences or privileges of such holders at public or private sale,
at such place or places and upon such terms as it may deem proper. The net
proceeds of any such sale shall, subject to Sections 3.01 and 3.02, be
distributed by the Depositary or the Company, as the case may be, to the
record holders of Receipts entitled thereto as provided by Section 4.01 in the
case of a distribution received in cash.
If registration under the Securities Act of the securities to which any
rights, preferences or privileges relate is required in order for holders of
Receipts to be offered or sold such securities, the Company shall promptly
file a registration statement pursuant to the Securities Act with respect to
such rights, preferences or privileges and securities and use its best efforts
and take all steps available to it to cause such registration statement to
become effective sufficiently in advance of the expiration of such rights,
preferences or privileges to enable such holders to exercise such rights,
preferences or privileges. In no event shall the Depositary make available to
the holders of Receipts any right, preference or privilege to subscribe for or
to purchase any securities unless and until the
8
Depositary has been notified by the Company that such registration statement
has become effective or that the offering and sale of such securities to such
holders are exempt from registration under the provisions of the Securities
Act.
If any other action under the law of any jurisdiction or any governmental or
administrative authorization, consent or permit is required in order for such
rights, preferences or privileges to be made available to holders of Receipts,
the Company will use its best efforts to take such action or obtain such
authorization, consent or permit sufficiently in advance of the expiration of
such rights, preferences or privileges to enable such holders to exercise such
rights, preferences or privileges.
SECTION 4.04. Notice of Dividends, Fixing of Record Date for Holders of
Receipts. Whenever any cash dividend or other cash distribution shall become
payable, any distribution other than cash shall be made, or any rights,
preferences or privileges shall at any time be offered with respect to the
Stock, or whenever the Depositary shall receive notice of (i) any meeting at
which holders of Stock are entitled to vote or of which holders of Stock are
entitled to notice or any solicitation of consents in respect of the Stock,
(ii) any call for redemption of any shares of Stock or (iii) any event of
which holders of Stock are entitled to notice in accordance with the
Certificate of Designation, the Depositary shall in each such instance fix a
record date (which shall be the same date as the record date fixed by the
Company with respect to the Stock) for the determination of the holders of
Receipts who shall be entitled (i) to receive such dividend, distribution,
rights, preferences or privileges or the net proceeds of the sale thereof,
(ii) to receive notice of, and to give instructions for the exercise of voting
rights at, or the delivery of consents with respect to, any such meeting or
consent solicitation, as the case may be, or (iii) to receive notice of any
such redemption or other event.
SECTION 4.05. Voting Rights. Upon receipt of notice of any meeting at which
the holders of Stock are entitled to vote, the Depositary shall, as soon as
practicable thereafter (unless another arrangement for allowing holders of
Adjustable Rate Depositary Shares to exercise the voting rights associated
with the Adjustable Rate Depositary Shares is agreed by the Company and the
Depositary), mail to the record holders of Receipts a notice, which shall be
provided by the Company and which shall contain (i) such information as is
contained in such notice of meeting, (ii) a statement that the holders of
Receipts at the close of business on a specified record date fixed pursuant to
Section 4.04 will be entitled, subject to any applicable provision of law, the
Certificate of Incorporation or the Certificate of Designation, to instruct
the Depositary as to the exercise of the voting rights with respect to the
amount of Stock represented by their respective Adjustable Rate Depositary
Shares and (iii) a brief statement as to the manner in which such instructions
may be given. Upon the written request of a holder of a Receipt on such record
date, the Depositary shall endeavor insofar as practicable to vote or cause to
be voted with respect to the amount of Stock represented by the Adjustable
Rate Depositary Shares evidenced by such Receipt in accordance with the
instructions set forth in such request. In the absence of specific
instructions from the holder of a Receipt, the Depositary will abstain from
voting to the extent of the Stock represented by the Adjustable Rate
Depositary Shares evidenced by such Receipt.
SECTION 4.06. Changes Affecting Stock and Reclassifications,
Recapitalizations, etc. Upon any split-up, consolidation or any other
reclassification of Stock, or upon any recapitalization, reorganization,
merger, amalgamation or consolidation affecting the Company or to which it is
a party or sale of all or substantially all of the Company's assets, the
Depositary shall, upon the instructions of the Company, treat any shares of
stock or other securities (including depositary shares) or property (including
cash) that shall be received by the Depositary in exchange for or upon
conversion of or in respect of the Stock as now deposited property under this
Deposit Agreement, and Receipts then outstanding shall thenceforth represent
the proportionate interests of holders thereof in the new deposited property
so received in exchange for or upon conversion or in respect of such Stock. In
any such case the Depositary may, in its discretion, with the approval of the
Company, execute and deliver additional Receipts, or may call for the
surrender of all outstanding Receipts to be exchanged for new Receipts
specifically describing such new deposited property. If upon any split-up,
consolidation or any other reclassification of Stock, or upon any
recapitalization, reorganization, merger, amalgamation or consolidation
affecting the Company or to which it is a party or sale of all or
substantially all of the Company's assets the Company delivers to the
Depositary shares of stock or other securities (including depositary shares)
or property
9
(including cash) a portion of which shall be distributed to record holders of
Receipts in accordance with Sections 4.01, 4.02 and 4.03 and a portion of
which shall be received by the Depositary in exchange for or upon conversion
of or in respect of the Stock as new deposited property under this Section
4.06, the Company shall clearly indicate such division in the instructions to
the Depositary provided pursuant to this Section 4.06.
ARTICLE V
THE DEPOSITARY AND THE COMPANY
SECTION 5.01. Maintenance of Offices, Agencies, Transfer Books by the
Depositary; the Registrar. Upon execution of this Deposit Agreement in
accordance with its terms, the Depositary shall maintain at the Corporate
Office facilities for the execution and delivery, transfer, surrender and
exchange, split-up and combination of Receipts and the deposit and withdrawal
of Stock and at the offices of the Depositary's Agents, if any, facilities for
the delivery, transfer, surrender and exchange, split-up, combination and
redemption of Receipts and the deposit and withdrawal of Stock, all in
accordance with the provisions of this Deposit Agreement.
The Depositary shall keep books at the Corporate Office for the registration
and transfer of Receipts, which books at all reasonable times shall be open
for inspection by the record holders of Receipts as and to the extent provided
by applicable law. The Depositary shall consult with the Company upon receipt
of any request for inspection. The Depositary may close such books, at any
time or from time to time, when deemed expedient by it in connection with the
performance of its duties hereunder.
The Depositary shall make available for inspection by holders of Receipts at
the Corporate Office and at such other places as it may from time to time deem
advisable during normal business hours any reports and communications received
from the Company that are both received by the Depositary as the holder of
Stock and made generally available to the holders of Stock.
Promptly upon request from time to time by the Company and at the Company's
sole expense, the Depositary shall furnish to it a list, as of a recent date,
of the names, addresses and holdings of Adjustable Rate Depositary Shares of
all persons in whose names Receipts are registered on the books of the
Depositary.
If the Receipts or the Adjustable Rate Depositary Shares evidenced thereby
or the Stock represented by such Adjustable Rate Depositary Shares shall be
listed on the New York Stock Exchange, Inc., the Depositary shall, if directed
by the Company, appoint a Registrar for registry of such Receipts or
Adjustable Rate Depositary Shares in accordance with the requirements of such
Exchange. Such Registrar (which may be the Depositary if so permitted by the
requirements of such Exchange) may be removed and a substitute registrar
appointed by the Depositary upon the request or with the approval of the
Company. If the Receipts, such Adjustable Rate 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, transfer,
surrender and exchange of such Receipts, such Adjustable Rate Depositary
Shares or such Stock as may be required by law or applicable stock exchange
regulations.
SECTION 5.02. Liability of the Depositary, the Depositary's Agents or the
Company. Neither the Depositary nor any Depositary's Agent nor the Company
shall incur any liability to any holder of any Receipt, if by reason of any
provision of any present or future law or regulation thereunder of the United
States of America or of any other governmental authority or, in the case of
the Depositary or the Depositary's Agent, by reason of any provision, present
or future, of the Certificate of Incorporation or the Certificate of
Designation or, in the case of the Company, the Depositary or the Depositary's
Agent, by reason of any act of God or war or other circumstances beyond the
control of the relevant party, the Depositary, any Depositary's Agent or the
Company shall be prevented or forbidden from doing or performing any act or
thing that the terms of this Deposit Agreement provide shall be done or
performed; nor shall the Depositary, any Depositary's Agent or the Company
incur any liability to any holder of a Receipt by reason of any nonperformance
or delay, caused as aforesaid, in the performance of any act or thing that the
terms of this Deposit Agreement provide shall or may be done or
10
performed, or by reason of any exercise of, or failure to exercise, any
discretion provided for in this Deposit Agreement except, in case of any such
exercise or failure to exercise discretion not caused as aforesaid, if caused
by the negligence, bad faith or willful misconduct of the party charged with
such exercise or failure to exercise.
SECTION 5.03. Obligations of the Depositary, the Depositary's Agents and the
Company. Neither the Depositary nor any Depositary Agent nor the Company nor
the Registrar assumes any obligation or shall be subject to any liability
under this Deposit Agreement or any Receipt to holders of Receipts other than
that each of them agrees to use good faith in the performance of such duties
as are specifically set forth in this Deposit Agreement and other than for its
negligence, bad faith or willful misconduct.
Neither the Depositary nor any Depositary's Agent nor the Company nor the
Registrar shall be under any obligation to appear in, prosecute or defend any
action, suit or other proceeding with respect to Stock, Adjustable Rate
Depositary Shares or Receipts or Common Stock or other securities or property
that in its opinion may involve it in expense or liability, unless indemnity
satisfactory to it against all expense and liability be furnished as often as
may be required.
Neither the Depositary nor any Depositary's Agent nor the Company nor the
Registrar shall be liable for any action or any failure to act by it in
reliance upon the advice of or information from legal counsel, accountants,
any 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 advice or
information. The Depositary, any Depositary's Agent, the Registrar and the
Company may each rely and shall each be protected in acting upon any written
notice, request, direction or other document believed by it to be genuine and
to have been signed or presented by the proper party or parties.
Notwithstanding the first paragraph of this Section 5.03, the Depositary
shall not be responsible for any failure to carry out any instruction to vote
any of the deposited shares of Stock or for the manner or effect of any such
vote made, as long as any such action or non-action is in good faith or in
accordance with this Deposit Agreement. The Depositary undertakes, and any
Registrar shall be required to undertake, to perform such duties and only such
duties as are specifically set forth in this Deposit Agreement against the
Depositary or any Registrar. The Depositary will indemnify the Company against
any liability that may arise out of acts performed or omitted by the
Depositary or its agents due to its or their negligence, bad faith or willful
misconduct. The Depositary, its parent, affiliates or subsidiaries and any
Depositary's Agent may own, buy, sell or deal in any class of securities of
the Company and its affiliates and in Receipts or Adjustable Rate Depositary
Shares or become pecuniarily interested in any transaction in which the
Company or its affiliates may be interested or contract with or lend money to
or otherwise act as fully or as freely as if it were not the Depositary or the
Depositary's Agent hereunder. The Depositary may also act as transfer agent or
registrar of any of the securities of the Company and its affiliates or act in
any other capacity for the Company or its affiliates.
It is intended that neither the Depositary nor any Depositary's Agent shall
be deemed to be an "issuer" of the securities under the federal securities
laws or applicable state securities laws, it being expressly understood and
agreed that the Depositary and any Depositary's Agent are acting only in a
ministerial capacity as Depositary for the Stock.
The Depositary agrees to comply with all information reporting and
withholding requirements applicable to it under law or this Deposit Agreement
in its capacity as Depositary.
Each of the Company and the Depositary agrees to be bound by, and act in
accordance with, the Operating Guidelines current from time to time.
The Depositary shall not lend the Adjustable Rate Depositary Shares.
Neither the Depositary (or its officers, directors, employees or agents) nor
any Depositary's Agent nor the Registrar makes any representation or has any
responsibility as to the validity of the Prospectus pursuant to which
11
the Adjustable Rate Depositary Shares are offered, the Stock, the Adjustable
Rate Depositary Shares or the Receipts (except its countersignature thereon),
or any instruments referred to therein or herein, or as to the correctness of
any statement made therein or herein; provided, however, that the Depositary
is responsible for its representations in this Deposit Agreement.
The Depositary assumes no responsibility for the correctness of the
description that appears in the 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, genuineness or
sufficiency of any Stock at any time deposited with the Depositary hereunder
or of the Adjustable Rate Depositary Shares, as to the validity or sufficiency
of this Deposit Agreement, as to the value of the Adjustable Rate Depositary
Shares or as to any right, title or interest of the record holders of Receipts
in and to the Adjustable Rate Depositary Shares, except that the Depositary
hereby represents and warrants as follows: (i) the Depositary has been duly
organized and is validly existing and in good standing under the laws of
[ ], with full power, authority and legal right under such law to
execute, deliver and carry out the terms of this Deposit Agreement; (ii) this
Deposit Agreement has been duly authorized, executed and delivered by the
Depositary; and (iii) this Deposit Agreement constitutes a valid and binding
obligation of the Depositary, enforceable against the Depositary in accordance
with its terms, except as enforcement thereof may be limited by bankruptcy,
insolvency, reorganization or other similar laws affecting enforcement of
creditors' rights generally and except as enforcement thereof is subject to
general principles of equity (regardless of whether enforcement is considered
in a proceeding in equity or at law). The Depositary shall not be accountable
for the use or application by the Company of the Adjustable Rate Depositary
Shares or the Receipts or the proceeds thereof.
SECTION 5.04. Resignation and Removal of the Depositary, Appointment of
Successor Depositary. The Depositary may at any time resign as Depositary
hereunder by notice of its election to do so delivered to the Company, such
resignation to take affect upon the appointment of a successor depositary and
its acceptance of such appointment as hereinafter provided.
The Company may, by notice in writing to the Depositary, terminate the
engagement of the Depositary with respect to any or all of the duties or
obligations of the Depositary set out in this Deposit Agreement (including
such duties as are customarily associated with the role of a transfer agent or
paying agent), such termination to take effect upon the appointment of a
successor to fulfill those duties or obligations and its acceptance of such
appointment as hereinafter provided. In the event that the Company terminates
the engagement of the Depositary with respect to some, but not all, of the
duties or obligations of the Depositary, the Depositary shall thereafter be
deemed only to have such rights and obligations under this Deposit Agreement
as are necessary for it to fulfill its remaining duties or obligations. The
Depositary agrees to cooperate with the Company or any person appointed by the
Company or that person with respect to the performance of any of the duties
previously performed by the Depositary.
In case at any time the Depositary acting hereunder shall resign or the
Company shall terminate the engagement of the Depositary with respect to any
or all of the duties or obligations of the Depositary set out in this Deposit
Agreement, the Company shall, within 45 days after the delivery of the notice
of resignation or termination, as the case may be, appoint a successor with
respect to such duties and obligations so terminated. If such successor is to
take title to the Stock (a "Depositary Successor"), the Depositary Successor
shall be a bank or trust company, or an affiliate of 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 [$ ]. If a successor shall not have
been appointed in 45 days, the resigning Depositary may petition a court of
competent jurisdiction to appoint a successor.
Every Depositary Successor shall execute and deliver to its predecessor and
to the Company an instrument in writing accepting its appointment hereunder,
and thereupon such Depositary Successor, without any further act or deed,
shall become fully vested with all the duties and obligations of its
predecessor so terminated and all rights and powers with respect thereto and
for all purposes shall be the Depositary under this Deposit Agreement
12
with respect to the duties and obligations of the predecessor so terminated,
and such predecessor, upon payment of all sums due it and on the written
request of the Company, shall promptly execute and deliver an instrument
transferring to such Depositary Successor all such rights and powers of such
predecessor hereunder, shall, if applicable, duly assign, transfer and deliver
all rights, title and interest in the Stock and any moneys or property held
hereunder to such Depositary Successor and shall, if applicable, deliver to
such Depositary Successor a list of the record holders of all outstanding
Receipts. Any Depositary Successor 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. Such successor
depositary may execute the Receipts either in the name of the predecessor
depositary or in the name of the successor depositary.
SECTION 5.05. Corporate Notices and Reports. The Company agrees that it will
deliver to the Depositary, and the Depositary will, promptly after receipt
thereof, transmit to the record holders of Receipts, in each case at the
address recorded in the Depositary's books, copies of all notices and reports
(including financial statements) required by law, by the rules of any national
securities exchange upon which the Stock, the Adjustable Rate Depositary
Shares or the Receipts are listed or by the Certificate of Incorporation and
the Certificate of Designation to be furnished by the Company to holders of
Stock. Such transmission will be at the Company's expense and the Company will
provide the Depositary with such number of copies of such documents as the
Depositary may reasonably request. In addition, the Depositary will transmit
to the record holders of Receipts at the Company's expense such other
documents as may be requested by the Company. The Depositary will make
available for inspection by holders of Receipts at the Corporate office and at
such other places as it may from time to time deem advisable during normal
business hours any such notices and reports received from the Company.
SECTION 5.06. Deposit of Stock by the Company. Neither the Company nor any
company controlled by the Company will at any time deposit any Stock if such
Stock is required to be registered under the provisions of the Securities Act
and no registration statement is at such time in effect as to such Stock.
SECTION 5.07. Indemnification by the Company. The Company agrees to
indemnify the Depositary, any Depositary's Agent and any Registrar against,
and hold each of them harmless from, any liability, costs and expenses
(including reasonable attorneys' fees) that may arise out of or in connection
with its acting as Depositary, Depositary's Agent or Registrar, respectively,
under this Deposit Agreement and the Receipts, except for any liability
arising out of negligence, bad faith or willful misconduct on the part of any
such person or persons.
SECTION 5.08. Fees, Charges and Expenses. No fees, charges and expenses of
the Depositary or any Depositary's Agent hereunder or of any Registrar shall
be payable by any person other than the Company, except for any taxes and
other governmental charges and except as provided in this Deposit Agreement.
If the Depositary incurs fees, charges or expenses for which it is not
otherwise liable hereunder at the election of a holder of a Receipt or other
person, such holder or other person will be liable for such fees, charges and
expenses. All other fees, charges and expenses of the Depositary and any
Depositary's Agent hereunder and of any Registrar (including, in each case,
fees and expenses of counsel) incident to the performance of their respective
obligations hereunder will be paid from time to time upon consultation and
agreement between the Depositary and the Company as to the amount and nature
of such fees, charges and expenses.
13
ARTICLE VI
AMENDMENT AND TERMINATION
SECTION 6.01. Amendment. The form of the Receipts and any provision of this
Deposit Agreement may at any time and from time to time be amended by
agreement between the Company and the Depositary in any respect that they may
deem necessary or desirable. Any amendment that shall impose any fees, taxes
or charges (other than fees and charges provided for herein or in the
Receipts), or that shall otherwise prejudice any substantial existing right of
holders of Receipts, shall not become effective as to outstanding Receipts
until the expiration of 15 days after notice of such amendment shall have been
given to the record holders of outstanding Receipts. 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 an amended thereby. In no
event shall any amendment impair the right, subject to the provisions of
Sections 2.03, 2.06, 2.07 and Article III, of any owner of any Adjustable Rate
Depositary Shares to surrender the Receipt evidencing such Adjustable Rate
Depositary Shares with instructions to the Depositary to deliver to the holder
the Stock represented thereby, except in order to comply with mandatory
provisions of applicable law.
SECTION 6.02. Termination. This Deposit Agreement may be terminated by the
Company or the Depositary only after (a) (i) all outstanding Adjustable Rate
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 Adjustable
Rate Depositary Shares pursuant to Section 4.01 or 4.02, as applicable, and
(b) reasonable notice has been given to any remaining holders of Receipts.
If any Receipts shall remain outstanding after the date of termination of
this Deposit Agreement, the Depositary thereafter shall discontinue the
transfer of Receipts, the Company or the Depositary, as the case may be, shall
suspend the distribution of dividends to the holders thereof, and the
Depositary shall not give any further notices (other than notice of such
termination) or perform any further acts under this Deposit Agreement, except
that the Depositary shall, if applicable, continue to collect dividends and
other distributions pertaining to Stock, sell rights, preferences or
privileges as provided in this Deposit Agreement and shall continue to deliver
the Stock and any money and other property represented by Receipts upon
surrender thereof by the holders thereof. At any time after the expiration of
two years from the date of termination, the Depositary may sell Stock then
held hereunder at public or private sale, at such places and upon such terms
as it deems proper and may thereafter hold the net proceeds of any such sale,
together with any money and other property held by it hereunder, without
liability for interest, for the benefit, pro rata in accordance with their
holdings, of the holders of Receipts that have not theretofore been
surrendered. After making such sale, the Depositary shall be discharged from
all obligations under this Deposit Agreement except to account for such net
proceeds and money and other property.
Upon the termination of this Deposit Agreement, the Company shall be
discharged from all obligations under this Deposit Agreement except for its
obligations to the Depositary, any Depositary's Agent and any Registrar under
Sections 5.07 and 5.08. In the event this Deposit Agreement is terminated, the
Company hereby agrees to use its best efforts to list any outstanding
underlying Stock on the New York Stock Exchange, Inc. or any other national
securities exchange on which the Common Stock is listed.
ARTICLE VII
MISCELLANEOUS
SECTION 7.01. Counterparts. This Deposit Agreement may be executed by the
Company and the Depositary in separate counterparts, each of which
counterparts, when so executed and delivered, shall be deemed an original, but
all such counterparts taken together shall constitute one and the same
instrument. Delivery of an executed counterpart of a signature page to this
Deposit Agreement by telecopier shall be effective
14
as delivery of a manually executed counterpart of this Deposit Agreement.
Copies of this Deposit Agreement shall be filed with the Depositary and the
Depositary's Agents and shall be open to inspection at all reasonable times
during normal business hours at the Corporate Office and the respective
offices of the Depositary's Agents, if any, by any holder of a Receipt.
SECTION 7.02. Exclusive Benefits of Parties. This Deposit Agreement is for
the exclusive benefit of the parties hereto, and their respective successors
hereunder, and 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 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 or
telecopier confirmed by letter, addressed to the Company at El Paso Natural
Gas Company, One Xxxx Xxxxxx Center, 000 Xxxxx Xxxxxxx Xxxxxx, Xx Xxxx, Xxxxx
00000, Attention: Corporate Secretary, or at any other place to which the
Company may have transferred its principal executive office.
Any notices 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, return receipt requested, addressed to the Depositary at the
Corporate Office.
Any notices 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 or telecopier
confirmed by letter, addressed to such record holder at the address of such
record holder as it appears on the books of the Depositary or, if such holder
shall have timely filed with the Depositary a written request that notices
intended for such holder be mailed to some other address, at the address
designated in such request.
Delivery of a notice sent by mail, or by telegram or telex or telecopier
shall be deemed to be effected at the time when a duly addressed letter
containing the same (or a duly addressed letter confirming an earlier notice
in the case of a telegram or telex or telecopier message) is deposited,
postage prepaid, in a post office letter box. The Depositary or the Company
may, in its sole discretion, act upon any telegram or telex or telecopier
message received by it from the other or from any holder of a Receipt,
notwithstanding that such telegram or telex or telecopier message shall not
have complied with the notice provisions set forth herein.
SECTION 7.05. Depositary's Agents. The Depositary may from time to time
appoint Depositary's Agents (with the Company's prior written consent and on
terms and conditions acceptable to the Company) to act in any respect for the
Depositary for the purposes of this Deposit Agreement and may at any time
appoint additional Depositary's Agents and vary or terminate the appointment
of such Depositary's Agents. The Depositary will notify the Company prior to
any such action.
SECTION 7.06. Holders of Receipts Are Parties. Notwithstanding that holders
of Receipts have not executed and delivered this Deposit Agreement or any
counterpart thereof, the holders of Receipts from time to time shall be deemed
to be parties to this Deposit Agreement and shall be bound by all of the terms
and conditions hereof and of the Receipts by acceptance of delivery of
Receipts.
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 law of the State of New
York without giving effect to principles of conflict of laws.
15
SECTION 7.08. 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 to have any bearing upon the meaning or
interpretation of any provision contained herein or in the Receipts.
IN WITNESS WHEREOF, El Paso Natural Gas Company, and [ ] 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.
EL PASO NATURAL GAS COMPANY
By: _________________________________
Name:
Title:
[ ]
By: _________________________________
Name:
Title:
16
EXHIBIT A
DEPOSITARY RECEIPT
FOR
ADJUSTABLE RATE DEPOSITARY SHARES,
EACH REPRESENTING ONE TWENTY-FIFTH SHARE OF
ADJUSTABLE RATE CUMULATIVE PREFERRED STOCK
(PAR VALUE $.01 PER SHARE)
OF
EL PASO NATURAL GAS COMPANY
(INCORPORATED UNDER THE LAWS OF THE STATE OF DELAWARE)
No. Adjustable Rate Depositary Shares (each Adjustable Rate
Depositary Share represents [one-fifteenth] share of Adjustable
Rate Cumulative Preferred Stock (par value $.01 per share)
l. [ ] trust company, as Depositary (the "Depositary"), hereby
certifies that is the registered owner of Depositary Shares (the
"Adjustable Rate Depositary Shares"), each Adjustable Rate Depositary Share
representing one twenty-fifth share of Adjustable Rate Cumulative Preferred
Stock, par value $.01 per share (the "Stock"), of El Paso Natural Gas Company,
a corporation duly organized and existing under the laws of the State of
Delaware (the "Company"), deposited with the Depositary, and the same
proportionate interest in any and all other property received by the
Depositary in respect of such share of Stock and held by the Depositary under
the Deposit Agreement (as defined below). Subject to the terms of the Deposit
Agreement, each owner of an Adjustable Rate Depositary Share is entitled,
proportionately, to all the rights, preferences and privileges of the Stock
represented thereby, including the dividend, voting, liquidation and other
rights contained in the Certificate of Designation of Adjustable Rate
Cumulative Preferred Stock, as amended from time to time, establishing the
rights, preferences, privileges and limitations of the Stock (the "Certificate
of Designation"), copies of which are on file at the Depositary's office
located at the time of the execution of the Deposit Agreement at
[ ] (such office or the corporate trust office of the Depositary at
which its business in respect of matters governed by the Deposit Agreement is
administered at any later time, being at the relevant time, the "Corporate
Officer").
2. The Deposit Agreement. Depositary Receipts (the "Receipts"), of which
this Receipt is one, are made available upon the terms and conditions set
forth in the Deposit Agreement, dated as of [ ], 1996 (the "Deposit
Agreement"), between the Company and the Depositary. The Deposit Agreement
(copies of which are on file at the Corporate Office and at the office of any
Depositary's Agent) sets forth the rights of holders of Receipts and the
rights and duties of the Depositary. The statements made on the face and the
reverse of this Receipt are summaries of certain provisions of the Deposit
Agreement and are subject to the detailed provisions thereof, to which
reference is hereby made. In the event of any conflict between the provisions
of this Receipt and the provisions of the Deposit Agreement, the provisions of
the Deposit Agreement will govern. Unless otherwise expressly herein provided,
all defined terms used herein shall have the meanings ascribed thereto in the
Deposit Agreement.
3. Redemptions of Stock. Whenever the Company shall elect to redeem shares
of Stock in accordance with the Certificate of Designation, it shall (unless
otherwise agreed in writing with the Depositary) give the Depositary in its
capacity as Depositary not less than two business days prior notice of the
proposed date of the mailing of the notice of redemption of the Stock required
pursuant to paragraph 4(h) of the Certificate of Designation in connection
with a redemption of Stock and of the number of such shares of Stock held by
the Depositary to be redeemed as provided herein.
On the date of any redemption of Stock in accordance with the Certificate of
Designation, provided that the Company shall then have deposited with the
Depositary the shares of Common Stock, par value $3 per share ("Common
Stock"), and any funds required pursuant to the Certificate of Designation for
the Stock deposited
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with the Depositary to be redeemed, the Depositary shall redeem (using the
shares of Common Stock and funds, if any, deposited with it) the number of
Adjustable Rate Depositary Shares representing such redeemed Stock. The
distribution of the shares of Common Stock and funds, if any, used to effect
such redemption shall be governed by Sections 4.01 and 4.02 of the Deposit
Agreement. The Depositary shall, as directed by the Company, mail, first class
postage prepaid, notice of the redemption of Stock and the proposed
simultaneous redemption of Adjustable Rate Depositary Shares representing the
Stock to be redeemed, not less than 30 and not more than 60 days prior to the
date fixed for redemption (the "Redemption Date") of such Stock and Adjustable
Rate Depositary Shares. Such notice shall be mailed to each holder of record on
the record date fixed for such redemption as provided in paragraph 14 below of
the Receipts evidencing Adjustable Rate Depositary Shares. In case fewer than
all the outstanding Adjustable Rate Depositary Shares are to be redeemed, the
Adjustable Rate Depositary Shares to be redeemed shall be selected by lot or
such other methods the Company in its discretion may determine is fair and
appropriate.
Notice having been mailed as aforesaid, from and after the redemption date
(unless the Company shall have failed to redeem the shares of Stock to be
redeemed by it, as set forth in the Company's notice provided for above), the
Adjustable Rate Depositary Shares called for redemption shall be deemed no
longer to be outstanding and all rights of the holders of Receipts evidencing
such Adjustable Rate Depositary Shares (except the right to receive the shares
of Common Stock and any cash upon redemption) shall, to the extent of such
Adjustable Rate Depositary Shares, cease and terminate. Upon surrender in
accordance with said notices of the Receipts evidencing such Adjustable Rate
Depositary Shares (properly endorsed or assigned for transfer, if the
Depositary shall so require), such Adjustable Rate Depositary Shares shall be
redeemed (as nearly as may be practicable without creating fractional shares)
in exchange for cash or, if applicable, shares of Common Stock at a rate equal
to one twenty-fifth of the number of shares of Common Stock delivered in
respect of the shares of Stock represented by such Depositary Shares as is
provided for in the Certificate of Designation. The foregoing shall be subject
further to the terms and conditions of the Certificate of Designation. If fewer
than all of the Adjustable Rate Depositary Shares evidenced by this Receipt are
called for redemption, the Depositary will deliver to the holder of this
Receipt upon its surrender to the Depositary, a new Receipt evidencing the
Adjustable Rate Depositary Shares evidenced by such prior Receipt and not
called for redemption, together with the shares of Common Stock or other
property for the Adjustable Rate Depositary Shares called for redemption.
4. Surrender of Receipts and Withdrawal of Stock. Upon surrender of this
Receipt to the Depositary at the Corporate Office, or at such other offices as
the Depositary may designate, and subject to the provisions of the Deposit
Agreement, the holder hereof is entitled to withdraw, and to obtain delivery,
to or upon the order of such holder, of any or all of the Stock (but only in
whole shares of Stock) and all money and other property, if any, at the time
represented by the Adjustable Rate Depositary Shares evidenced by this Receipt,
but holders of such shares of Stock will not thereafter be entitled to deposit
such shares of Stock hereunder or to receive Adjustable Rate Depositary Shares
therefor. If the Receipt or Receipts delivered by the holder to the Depositary
in connection with such withdrawal shall evidence a number of Adjustable Rate
Depositary Shares in excess of the number of Adjustable Rate Depositary Shares
representing the whole number of shares of Stock to be withdrawn, the
Depositary shall, in addition to such whole number of shares of Stock and such
money and other property, if any, to be withdrawn, deliver, to or upon the
order of such holder, a new Receipt or Receipts evidencing such excess number
of Adjustable Rate Depositary Shares.
5. Transfers, Split-ups, Combinations. Subject to paragraphs 6, 7 and 8
below, this Receipt is transferable on the books of the Depositary upon
surrender of this Receipt to the Depositary, properly endorsed or accompanied
by a properly executed instrument of transfer or endorsement, and upon such
transfer the Depositary shall sign and deliver a Receipt to or upon the order
of the person entitled thereto, all as provided in and subject to the Deposit
Agreement. This Receipt may be split into other Receipts or combined with other
Receipts into one Receipt evidencing the same aggregate number of Adjustable
Rate Depositary Shares evidenced by the Receipt or Receipts surrendered;
provided, however, that the Depositary shall not issue any Receipt evidencing a
fractional Adjustable Rate Depositary Share.
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6. Conditions to Signing and Delivery, Transfer, etc., of Receipts. Prior to
the execution and delivery, transfer, split-up, combination, surrender or
exchange of this Receipt, the Depositary, any of the Depositary's Agents or
the Company may require any or all of the following: (i) payment to it of a
sum sufficient for the payment (or, in the event that the Depositary or the
Company shall have made such payment, the reimbursement to it) of any tax or
other governmental charge with respect thereto (including any such tax or
charge with respect to Stock being deposited or withdrawn or with respect to
Common Stock of the Company being issued upon redemption); (ii) the production
of proof satisfactory to it as to the identity and genuineness of any
signature; and (iii) compliance with such regulations, if any, as the
Depositary or the Company may establish not inconsistent with the Deposit
Agreement. Any person presenting Stock for deposit, or any holder of this
Receipt, may be required to file such proof of information, to execute such
certificates and to make such representations and warranties as the Depositary
or the Company may reasonably deem necessary or proper. The Depositary or the
Company may withhold or delay the delivery of this Receipt, the transfer,
redemption or exchange of this Receipt, the withdrawal of the Stock
represented by the Adjustable Rate Depositary Shares evidenced by this Receipt
or the distribution of any dividend or other distribution until such proof or
other information is filed, such certificates are executed or such
representations and warranties are made.
7. Suspension of Delivery, Transfer, etc. The deposit of Stock may be
refused, the delivery of this Receipt against Stock may be suspended, or the
transfer, split-up, combination, surrender or exchange of this Receipt may be
suspended (i) during any period when the register of stockholders of the
Company is closed, (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 the Deposit
Agreement, or (iii) with the approval of the Company, for any other reason.
8. Payment of Taxes or Other Governmental Charges. If any tax or other
governmental charge shall become payable by or on behalf of the Depositary
with respect to this Receipt, the Adjustable Rate Depositary Shares evidenced
by this Receipt, the Stock (or any fractional interest therein) represented by
such Adjustable Rate Depositary Shares or any transaction referred to in
Section 4.06 of the Deposit Agreement, such tax (including transfer, issuance
or acquisition taxes, if any) or governmental charge shall be payable by the
holder hereof. Until such payment is made, transfer of this Receipt or any
withdrawal of the Stock, represented by the Adjustable Rate Depositary Shares
evidenced by this Receipt may be refused, any dividend or other distribution
may be withheld and any part or all of the Stock represented by the Adjustable
Rate Depositary Shares evidenced by this Receipt may be sold for the account
of the holder hereof (after attempting by reasonable means to notify such
holder prior to such sale). Any dividend or other distribution so withheld and
the proceeds of any such sale may be applied to any payment of such tax or
other governmental charge, the holder of this Receipt remaining liable for any
deficiency.
9. Amendment. The form of the Receipts and any provision of the Deposit
Agreement may at any time and from time to time be amended by agreement
between the Company and the Depositary in any respect that they may deem
necessary or desirable. Any amendment that shall impose any fees, taxes or
charges (other than fees and charges provided for herein or in the Deposit
Agreement), or that shall otherwise prejudice any substantial existing right
of holders of Receipts, shall not become effective as to outstanding Receipts
until the expiration of 15 days after notice of such amendment shall have been
given to the record holders of outstanding Receipts. The holder of this
Receipt at the time any such amendment becomes effective shall be deemed, by
continuing to hold this Receipt, to consent and agree to such amendment and to
be bound by the Deposit Agreement an amended thereby. In no event shall any
amendment impair the right, subject to the provisions of paragraphs 3, 4, 7
and 8 hereof and of Sections 2.03, 2.06, 2.07 and Article III of the Deposit
Agreement, of the owner of the Adjustable Rate Depositary Shares evidenced by
this Receipt to surrender this Receipt with instructions to the Depositary to
deliver to the holder the Stock and all money and other property, if any,
represented thereby, except in order to comply with mandatory provisions of
applicable law.
10. Fees, Charges and Expenses. The Company will pay all fees, charges and
expenses of the Depositary, except for taxes (including transfer taxes, if
any) and other governmental charges and such charges as are
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expressly provided in the Deposit Agreement to be at the expense of persons
depositing Stock, holders of Receipts or other persons.
11. Title to Receipts. It is a condition of this Receipt, and every
successive holder hereof by accepting or holding the same consents and agrees,
that title to this Receipt (and to the Adjustable Rate Depositary Shares
evidenced hereby), when properly endorsed or accompanied by a properly
executed instrument of transfer or endorsement, is transferable by delivery
with the same effect as in the case of a negotiable instrument; provided,
however, that until this Receipt shall be transferred on the books of the
Depositary as provided in Section 2.04 of the Deposit Agreement, the
Depositary and the Company may, notwithstanding any notice to the contrary,
treat the record holder hereof at such time as the absolute owner hereof for
the purpose of determining the person entitled to distribution of dividends or
other distributions or to any notice provided for in the Deposit Agreement and
for all other purposes.
12. Cash Dividends and Distributions. Whenever any cash dividend or other
cash distribution shall be paid on the Stock, the Company, on behalf of the
Depositary, (or, if the Company determines otherwise, the Depositary) will,
subject to the provisions of the Deposit Agreement, make such distribution to
record holders of Receipts as nearly as practicable in proportion to the
respective numbers of Adjustable Rate Depositary Shares evidenced by the
Receipts held by such holders; provided, however, that in the event the
Company or the Depositary shall be required to withhold and does withhold from
any cash dividend or other cash distribution in respect of the 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 Adjustable Rate Depositary Shares shall be reduced accordingly. The
Company, on behalf of the Depositary, (or, if the Company determines
otherwise, the Depositary) shall distribute or make available for
distribution, as the case may be, only such amount, however, as can be
distributed without attributing to any owner of Adjustable Rate Depositary
Shares a fraction of one cent. In the event that the calculation of any such
cash dividend or other cash distribution to be paid to any record holder on
the aggregate number of Adjustable Rate Depositary Shares held by such holder
results in an amount which is a fraction of a cent, the amount the Depositary
shall distribute to such record holder shall be rounded to the next highest
whole cent; and upon request of the Depositary, the Company shall pay the
additional amount to the Depositary for distribution.
13. Subscription Rights, Preferences or Privileges. If the Company shall at
any time offer or cause to be offered to the persons in whose name Stock is
registered on the books of the Company any rights, preferences or privileges
to subscribe for or to purchase any securities or any rights, preferences or
privileges of any other nature, such rights, preferences or privileges shall
in each such instance, subject to the provisions of the Deposit Agreement, be
made available by the Depositary or the Company to the record holders of
Receipts if the Company so directs in such manner as the Company shall
instruct.
14. Notice of Dividends, Fixing of Record Date. Whenever any cash dividend
or other cash distribution shall become payable, any distribution other than
cash shall be made, or any rights, preferences or privileges shall at any time
be offered with respect to the Stock, or whenever the Depositary shall receive
notice of (i) any meeting at which holders of Stock are entitled to vote or of
which holders of Stock are entitled to notice or any solicitation of consents
in respect of the Stock, (ii) any call for redemption or exchange of any
shares of Stock or (iii) any event of which holders of Stock are entitled to
notice in accordance with the Certificate of Designation, the Depositary shall
in each such instance fix a record date (which shall be the same date as the
record date fixed by the Company with respect to the Stock) for the
determination of the holders of Receipts who shall be entitled (i) to receive
such dividend, distribution, rights, preferences or privileges or the net
proceeds of the sale thereof, (ii) to receive notice of, and to give
instructions for the exercise of voting rights at, or the delivery of consents
with respect to, any such meeting or consent solicitation, as the case may be,
or (iii) to receive notice of any such redemption or other event.
15. 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 (unless another arrangement for allowing holders of
Adjustable Rate Depositary Shares to exercise the voting rights associated
with the Adjustable Rate Depositary
A-20
Shares is agreed by the Company and the Depositary), mail to the record
holders of Receipts a notice, which shall contain (i) such information as is
contained in such notice of meeting, (ii) a statement that the holders of
Receipts at the close of business on a specified record date determined as
provided in paragraph 14 will be entitled, subject to any applicable provision
of law, the Certificate of Incorporation or the Certificate of Designation, to
instruct the Depositary as to the exercise of the voting rights with respect
to the amount of Stock represented by their respective Adjustable Rate
Depositary Shares, and (iii) a brief statement as to the manner in which such
instructions may be given. Upon the written request of a holder of a Receipt
on such record date, the Depositary shall endeavor insofar as practicable to
vote or cause to be voted with respect to the amount of Stock represented by
the Adjustable Rate Depositary Shares evidenced by such Receipt in accordance
with the instructions set forth in such request. In the absence of specific
instructions from the holder of a Receipt, the Depositary will abstain from
voting to the extent of the Stock represented by the Adjustable Rate
Depositary Shares evidenced by such Receipt.
16. Reports, Inspection of Transfer Books. The Depositary shall make
available for inspection by holders of Receipts at the Corporate office and at
such other places as it may from time to time deem advisable during normal
business hours any reports and communications received from the Company that
are both received by the Depositary as the holder of Stock and made generally
available to the holders of Stock by the Company. The Depositary shall keep
books at the Corporate Office for the registration and transfer of Receipts,
which books at all reasonable times during normal business hours will be open
for inspection by the record holders of Receipts as and to the extent provided
by applicable law.
17. Liability of the Depositary, the Depositary's Agent and the
Company. Neither the Depositary nor any Depositary's Agent 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 any
governmental authority or, in the case of the Depositary or the Depositary's
Agent, by reason of any provision, present or future, of the Certificate of
Incorporation or the Certificate of Designation or, in the case of the
Company, the Depositary or the Depositary's Agent, by reason of any act of God
or war or other circumstances beyond the control of the relevant party, the
Depositary, any Depositary's Agent or the Company shall be prevented or
forbidden from doing or performing any act or thing that the terms of the
Deposit Agreement provide shall be done or performed; nor shall the
Depositary, any Depositary's Agent or the Company incur any liability to any
holder of a Receipt by reason of any nonperformance or delay, caused as
aforesaid, in the performance of any act or thing that the terms of the
Deposit Agreement provide shall or may be done or performed, or by reason of
any exercise of, or failure to exercise, any discretion provided for in the
Deposit Agreement.
18. Obligations of the Depositary, the Depositary's Agents and the
Company. Neither the Depositary nor any Depositary's Agent nor the Company
assumes any obligation or shall be subject to any liability hereunder or under
the Deposit Agreement to holders of Receipts other than that each of them
agrees to use good faith in the performance of such duties as are specifically
set forth in the Deposit Agreement and other than for its negligence, bad
faith or willful misconduct.
Neither the Depositary nor any Depositary's Agent nor the Company shall be
under any obligation to appear in, prosecute or defend any action, suit or
other proceeding with respect to Stock, Adjustable Rate Depositary Shares or
Receipts or Common Stock that in its opinion may involve it in expense or
liability, unless indemnity satisfactory to it against all expense and
liability be furnished as often as may be required.
Neither the Depositary nor any Depositary's Agent nor the Company shall be
liable for any action or any failure to act by it in reliance upon the advice
of or information from legal counsel, accountants, any 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 advice or information.
19. Termination of Deposit Agreement. The Deposit Agreement may be
terminated by the Company or the Depositary only after (a) (i) all outstanding
Adjustable Rate Depositary Shares shall have been redeemed pursuant to Section
2.03 of the Deposit Agreement or there shall have been made a final
distribution in respect
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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 Adjustable Rate Depositary Shares pursuant to Section 4.01 or 4.02 of the
Deposit Agreement, as applicable and (b) reasonable notice has been given to
any remaining holders of Receipts. Upon the termination of the Deposit
Agreement, the Company shall be discharged from all obligations thereunder
except for its obligations to the Depositary, any Depositary's Agent and any
Registrar under Sections 5.07 and 5.08 of the Deposit Agreement.
If any Receipts remain outstanding after the date of termination, the
Depositary thereafter shall discontinue all functions and be discharged from
all obligations as provided in the Deposit Agreement, except as specifically
provided therein.
20. Governing Law. The Deposit Agreement and this Receipt and all rights
thereunder and hereunder and provisions thereof and hereof shall be governed
by, and construed in accordance with, the law of the State of New York without
giving effect to principles of conflict of laws.
This Receipt shall not be entitled to any benefits under the Deposit
Agreement or be valid or obligatory for any purpose unless this Receipt shall
have been executed manually or, if a Registrar for the Receipts (other than
the Depositary) shall have been appointed, by facsimile by the Depositary by
the signature of a duly authorized signatory and, if executed by facsimile
signature of the Depositary, shall have been countersigned manually by Such
Registrar by the signature of a duly authorized signatory.
THE DEPOSITARY IS NOT RESPONSIBLE FOR THE VALIDITY OF ANY DEPOSITED STOCK.
THE DEPOSITARY ASSUMES NO RESPONSIBILITY FOR THE CORRECTNESS OF THE FOREGOING
DESCRIPTION WHICH CAN BE TAKEN AS A STATEMENT OF THE COMPANY SUMMARIZING
CERTAIN PROVISIONS OF THE DEPOSIT AGREEMENT. UNLESS EXPRESSLY SET FORTH IN THE
DEPOSIT AGREEMENT, THE DEPOSITARY MAKES NO WARRANTIES OR REPRESENTATIONS AS TO
THE VALIDITY, GENUINENESS OR SUFFICIENCY OF ANY STOCK AT ANY TIME DEPOSITED
WITH THE DEPOSITARY UNDER THE DEPOSIT AGREEMENT OR OF THE ADJUSTABLE RATE
DEPOSITARY SHARES OR THE RECEIPTS (EXCEPT FOR ITS COUNTERSIGNATURE THEREON),
AS TO THE VALIDITY OR SUFFICIENCY OF THE DEPOSIT AGREEMENT, AS TO THE VALUE OF
THE ADJUSTABLE RATE DEPOSITARY SHARES OR AS TO ANY RIGHT, TITLE OR INTEREST OF
THE RECORD HOLDERS OF THE DEPOSITARY RECEIPTS IN AND TO THE ADJUSTABLE RATE
DEPOSITARY SHARES.
The Company will furnish to any holder of a Receipt without charge, upon
request addressed to its executive office or the office of its transfer agent,
a full statement of the designation, relative rights, preferences and
limitations of the shares of each authorized class, and of each series of
preferred stock authorized to be issued, so far as the same may have been
fixed, and a statement of the authority of the Board of Directors of the
Company to designate and fix the relative rights, preferences and limitations
of each series.
Dated:
[ ]
By __________________________________
Authorized Signatory
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[FORM OF ASSIGNMENT]
FOR VALUE RECEIVED, the undersigned hereby sells, assigns and transfers unto
the within Receipt and all rights and interests represented by the
Adjustable Rate Depositary Shares evidenced thereby, and hereby irrevocably
constitutes and appoints his attorney, to transfer the same on the
books of the within-named Depositary, with full power of substitution in the
premises.
Dated:
Signature: __________________________
NOTE: The signature to this
assignment must correspond
with the name as written
upon the face of the
Receipt in every
particular, without
alteration or enlargement,
or any change whatever.
Signature Guarantee:
_____________________________________
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