EXHIBIT 4(ffff)
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XXXXXXX XXXXX & CO., INC.,
________________________, as Depositary
AND
THE HOLDERS FROM TIME TO TIME OF
THE DEPOSITARY RECEIPTS DESCRIBED HEREIN
_________________
DEPOSIT AGREEMENT
_________________
Dated as of ____________ ___, _____
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TABLE OF CONTENTS
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Page
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ARTICLE I
Definitions..................................................... 1
ARTICLE II
Form of Receipts, Deposit of Stock,
Execution and Delivery, Transfer,
Surrender and Redemption of Receipts
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SECTION 2.01. Form and Transfer of Receipts.................... 2
SECTION 2.02. Deposit of Stock; Execution and Delivery
of Receipts in Respect Thereof................. 4
SECTION 2.03. Registration of Transfer of Receipts............. 5
SECTION 2.04. Split-ups and Combinations of Receipts;
Surrender of Receipts and Withdrawal
of Stock....................................... 5
SECTION 2.05. Limitations on Execution and Delivery,
Transfer, Surrender and Exchange of
Receipts....................................... 6
SECTION 2.06. Lost Receipts, etc............................... 6
SECTION 2.07. Cancellation and Destruction of Surrendered
Receipts....................................... 7
SECTION 2.08. Redemption of Stock.............................. 7
ARTICLE III
Certain Obligations of
Holders of Receipts and the Company
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SECTION 3.01. Filing Proofs, Certificates and Other
Information.................................... 8
SECTION 3.02. Payment of Taxes or Other Governmental
Charges........................................ 9
SECTION 3.03. Warranty as to Stock............................. 9
SECTION 3.04. Warranty as to Receipts.......................... 9
ARTICLE IV
The Deposited Securities; Notices
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SECTION 4.01. Cash Distributions.............................. 9
SECTION 4.02. Distributions Other than Cash, Rights,
Preferences or Privileges..................... 10
SECTION 4.03. Subscription Rights, Preferences or Privileges.. 11
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SECTION 4.04. Notice of Dividends, etc.; Fixing Record
Date for Holders of Receipts.................. 12
SECTION 4.05. Voting Rights................................... 12
SECTION 4.06. Changes Affecting Deposited Securities and
Reclassifications, Recapitalizations, etc..... 13
SECTION 4.07. Delivery of Reports............................. 13
SECTION 4.08. Lists of Receipt Holders........................ 14
ARTICLE V
The Depositary, the Depositary's
Agents, the Registrar and the Company
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SECTION 5.01. Maintenance of Offices, Agencies and
Transfer Books by the Depositary;
Registrar..................................... 14
SECTION 5.02. Prevention of or Delay in Performance
by the Depositary, the Depositary's
Agents, the Registrar or the Company.......... 15
SECTION 5.03. Obligations of the Depositary, the
Depositary's Agents, the Registrar
and the Company............................... 15
SECTION 5.04. Resignation and Removal of the Depositary;
Appointment of Successor Depositary........... 16
SECTION 5.05. Corporate Notices and Reports................... 17
SECTION 5.06. Indemnification by the Company.................. 18
SECTION 5.07. Charges and Expenses............................ 18
ARTICLE VI
Amendment and Termination
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SECTION 6.01. Amendment....................................... 18
SECTION 6.02. Termination..................................... 19
ARTICLE VII
Miscellaneous
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SECTION 7.01. Counterparts................................... 20
SECTION 7.02. Exclusive Benefit of Parties................... 20
SECTION 7.03. Invalidity of Provisions....................... 20
SECTION 7.04. Notices........................................ 20
SECTION 7.05. Depositary's Agents............................ 21
SECTION 7.06. Holders of Receipts Are Parties................ 22
SECTION 7.07. Governing Law.................................. 22
SECTION 7.08. Inspection of Deposit Agreement................ 22
SECTION 7.09. Headings....................................... 22
FORM OF FACE OF RECEIPT....................................... A-1
FORM OF REVERSE OF RECEIPT.................................... A-2
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DEPOSIT AGREEMENT dated as of ________________ ___, 19__, among
XXXXXXX XXXXX & CO., INC., a Delaware corporation (the "Company"),
_______________________, a _________________ _____________________ (the
"Depositary"), and the holders from time to time of the Receipts described
herein.
WHEREAS, it is desired to provide, as hereinafter set forth in this
Deposit Agreement, for the deposit of shares of [specify designation of series
of preferred stock], of XXXXXXX XXXXX & CO., INC. with the Depositary for the
purposes set forth in this Deposit Agreement and for the issuance hereunder of
Receipts evidencing Depositary Shares in respect of the Stock so deposited; and
WHEREAS, the Receipts are to be substantially in the form of Exhibit A
annexed hereto, with appropriate insertions, modifications and omissions, as
hereinafter provided in this Deposit Agreement;
NOW, THEREFORE, in consideration of the premises, the parties hereto
agree as follows:
ARTICLE I
Definitions
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The following definitions shall for all purposes, unless otherwise
indicated, apply to the respective terms used in this Deposit Agreement:
"Certificate" shall mean the Certificate of Designations filed with
the Secretary of State of the State of Delaware establishing the Stock as a
series of preferred stock of the Company.
"Company" shall mean Xxxxxxx Xxxxx & Co., Inc., a Delaware
corporation, and its successors.
"Deposit Agreement" shall mean this Deposit Agreement, as amended or
supplemented from time to time in accordance with the terms hereof.
"Depositary" shall mean ______________________, and any successor as
Depositary hereunder.
"Depositary Shares" shall mean the depositary shares, each
representing [specify fraction] of one share of Stock and evidenced by a
Receipt, held by the Depositary pursuant to this Deposit Agreement.
"Depositary's Agent" shall mean an agent appointed by the Depositary
pursuant to Section 7.05.
"Depositary's Office" shall mean the principal office of the
Depositary, at which at any particular time its depositary receipt business
shall be administered.
"Receipt" shall mean one of the Depositary Receipts, substantially in
the form set forth as Exhibit A hereto, issued hereunder, whether in definitive
or temporary form and evidencing the number of Depositary Shares held of record
by the record holder of such Depositary Shares.
"record holder" or "holder" as applied to a Receipt shall mean the
person in whose name a Receipt is registered on the books of the Depositary
maintained for such purpose.
"Registrar" shall mean the Depositary or such other bank or trust
company which shall be appointed by the Company to register ownership and
transfers of Receipts as herein provided and if a Registrar shall be so
appointed, references herein to "the books" of or maintained by the Depository
shall be deemed, as applicable, to refer as well to the register maintained by
such Registrar for such purpose.
"Securities Act" shall mean the Securities Act of 1933, as amended.
"Stock" shall mean shares of the Company's __________ Preferred Stock,
Series ____, par value $1.00 per share, $_______ liquidation preference per
share.
ARTICLE II
Form of Receipts, Deposit of Stock,
Execution and Delivery, Transfer,
Surrender and Redemption of Receipts
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SECTION 2.01. Form and Transfer of Receipts. Definitive Receipts
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shall be engraved or printed or lithographed on steel-engraved borders, with
appropriate insertions, modifications and omissions, as hereinafter provided.
Pending the preparation of definitive Receipts, the Depositary, upon the written
order of the Company, delivered in compliance with Section 2.02, shall execute
and deliver temporary Receipts which are printed, lithographed, typewritten,
mimeographed or otherwise substantially of the tenor of the definitive Receipts
in lieu of which they are issued and with such appropriate insertions,
omissions, substitutions and other variations as the persons executing such
Receipts may determine, as evidenced by their
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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 penultimate 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 Depositary
Shares as represented by the surrendered temporary Receipt or Receipts. Such
exchange shall be made at the Company's expense and without any charge therefor.
Until so exchanged, the temporary Receipts shall in all respects be entitled to
the same benefits under this Agreement, and with respect to the Stock, as
definitive Receipts.
Receipts shall be executed by the Depositary by the manual signature
of a duly authorized officer of the Depositary; provided, that such signature
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may be a facsimile if a Registrar for the Receipts (other than the Depositary)
shall have been appointed and such Receipts are countersigned by a duly
authorized officer of the Registrar. No Receipt shall be entitled to any
benefits under this Deposit Agreement or be valid or obligatory for any purpose
unless it shall have been executed manually by a duly authorized officer of the
Depositary or, if a Registrar for the Receipts (other than the Depositary) shall
have been appointed, by manual or facsimile signature of a duly authorized
officer of the Depositary and countersigned by a duly authorized officer of such
Registrar. The Depositary shall record on its books each Receipt so signed and
delivered as hereinafter provided.
Receipts shall be in denominations of any number of whole Depositary
Shares.
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 and approved by the
Company or required to comply with any applicable law or any regulation
thereunder or with the rules and regulations of any securities exchange upon
which the Stock, the Depositary Shares or the Receipts may be listed or to
conform with any usage with respect thereto, or to indicate any special
limitations or restrictions to which any particular Receipts are subject.
Title to Depositary Shares evidenced by a Receipt which is properly
endorsed or accompanied by a properly executed instrument of transfer, shall be
transferable by delivery with
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the same effect as in the case of a negotiable instrument; provided, however,
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that until transfer of a Receipt shall be registered on the books of the
Depositary as provided in Section 2.03, the Depositary may, notwithstanding any
notice to the contrary, treat the record holder thereof at such time as the
absolute owner thereof for the purpose of determining the person entitled to
distributions of dividends or other distributions or to any notice provided for
in this Deposit Agreement and for all other purposes.
SECTION 2.02. Deposit of Stock; Execution and Delivery of Receipts in
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Respect Thereof. Subject to the terms and conditions of this Deposit Agreement,
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the Company may from time to time deposit shares of the Stock under this Deposit
Agreement by delivery to the Depositary of a certificate or certificates for the
Stock to be deposited, properly endorsed or accompanied, if required by the
Depositary, by a duly executed instrument of transfer or endorsement, in form
satisfactory to the Depositary, together with all such certifications as may be
required by the Depositary in accordance with the provisions of this Deposit
Agreement, and together with a written order of the Company directing the
Depositary to execute and deliver to, or upon the written order of, the person
or persons stated in such order a Receipt or Receipts evidencing in the
aggregate the number of Depositary Shares representing such deposited Stock.
Deposited Stock shall be held by the Depositary at the Depositary's
office or at such other place or places as the Depositary shall determine. The
Depositary shall not lend any Stock deposited hereunder.
Upon receipt by the Depositary of a certificate or certificates for
Stock deposited in accordance with the provisions of this Section, together with
the other documents required as above specified, and upon recordation of the
Stock on the books of the Company in the name of the Depositary or its nominee,
the Depositary, subject to the terms and conditions of this Deposit Agreement,
shall execute and deliver to or upon the order of the person or persons named in
the written order delivered to the Depositary referred to in the first paragraph
of this Section, a Receipt or Receipts evidencing in the aggregate the number of
Depositary Shares representing the Stock so deposited and registered in such
name or names as may be requested by such person or persons. The Depositary
shall execute and deliver such Receipt or Receipts at the Depositary's Office or
such other offices, if any, as the Depositary may designate. Delivery at other
offices shall be at the risk and expense of the person requesting such delivery.
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SECTION 2.03. Registration of Transfer of Receipts. Subject to the
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terms and conditions of this Deposit Agreement, the Depositary shall register on
its books from time to time transfers of Receipts upon any surrender thereof by
the holder in person or by duly authorized attorney, properly endorsed or
accompanied by a properly executed instrument of transfer. Thereupon, the
Depositary shall execute a new Receipt or Receipts evidencing the same aggregate
number of Depositary Shares as those evidenced by the Receipt or Receipts
surrendered and deliver such new Receipt or Receipts to or upon the order of the
person entitled thereto.
SECTION 2.04. Split-ups and Combinations of Receipts; Surrender of
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Receipts and Withdrawal of Stock. Upon surrender of a Receipt or Receipts at
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the Depositary's Office or at such other offices as it may designate for the
purpose of effecting a split-up or combination of such Receipt or Receipts, and
subject to the terms and conditions of this Deposit Agreement, the Depositary
shall execute a new Receipt or Receipts in the authorized denomination or
denominations requested, evidencing the aggregate number of Depositary Shares
evidenced by the Receipt or Receipts surrendered, and shall deliver such new
Receipt or Receipts to or upon the order of the holder of the Receipt or
Receipts so surrendered.
Any holder of a Receipt or Receipts may withdraw the number of whole
shares of Stock and all money and other property, if any, represented thereby by
surrendering such Receipt or Receipts, at the Depositary's Office or at such
other offices as the Depositary may designate for such withdrawals. Thereafter,
without unreasonable delay, the Depositary shall deliver to such holder, or to
the person or persons designated by such holder as hereinafter provided, the
number of whole shares of Stock and all money and other property, if any,
represented by the Receipt or Receipts so surrendered for withdrawal, but
holders of such whole shares of Stock will not thereafter be entitled to deposit
such Stock hereunder or to receive a Receipt evidencing Depositary Shares
therefor. If a Receipt delivered by the holder to the Depositary in connection
with such withdrawal shall evidence a number of Depositary Shares in excess of
the number of Depositary Shares representing the number of whole shares of Stock
to be so withdrawn, the Depositary shall at the same time, in addition to such
number of whole shares of Stock and such money and other property, if any, to be
so withdrawn, deliver to such holder, or subject to Section 2.03 upon his order,
a new Receipt evidencing such excess number of Depositary Shares. In no event
will fractional shares of Stock be delivered by the Depositary. Delivery of the
Stock and money and other property, if any, being withdrawn may be made by the
delivery of such certificates,
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documents of title and other instruments as the Depositary may deem appropriate.
If the Stock and the money and other property, if any, being withdrawn
are to be delivered to a person or persons other than the record holder of the
Receipt or Receipts being surrendered for withdrawal of Stock, such holder shall
execute and deliver to the Depositary a written order so directing the
Depositary and the Depositary may require that the Receipt or Receipts
surrendered by such holder for withdrawal of such shares of Stock be properly
endorsed in blank or accompanied by a properly executed instrument of transfer
in blank.
Delivery of the Stock and the money and other property, if any,
represented by Receipts surrendered for withdrawal shall be made by the
Depositary at the Depositary's Office, except that, at the request, risk and
expense of the holder surrendering such Receipt or Receipts and for the account
of the holder thereof, such delivery may be made at such other place as may be
designated by such holder.
SECTION 2.05. Limitations on Execution and Delivery, Transfer,
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Surrender and Exchange of Receipts. As a condition precedent to the execution
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and delivery, registration of transfer, split-up, combination, surrender or
exchange of any Receipt, the Depositary, any of the Depositary's Agents or the
Company may require payment to it of a sum sufficient for the payment (or, in
the event that the Depositary or the Company shall have made such payment, the
reimbursement to it) of any charges or expenses payable by the holder of a
Receipt pursuant to Section 5.07, may require the production of evidence
satisfactory to it as to the identity and genuineness of any signature and may
also require compliance with such regulations, if any, as the Depositary or the
Company may establish consistent with the provisions of this Deposit Agreement.
The deposit of Stock may be refused, the delivery of Receipts against
Stock may be suspended, the registration of transfer of Receipts may be refused
and the registration of transfer, surrender or exchange of outstanding Receipts
may be suspended (i) during any period when the register of stockholders of the
Company is closed or (ii) if any such action is deemed necessary or advisable by
the Depositary, any of the Depositary's Agents or the Company at any time or
from time to time because of any requirement of law or of any government or
governmental body or commission or under any provision of this Deposit
Agreement.
SECTION 2.06. Lost Receipts, etc. In case any receipt shall be
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mutilated, destroyed, lost or stolen, the Depositary in its discretion may
execute and deliver a Receipt of like form and
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tenor in exchange and substitution for such mutilated Receipt, or in lieu of and
in substitution for such destroyed, lost or stolen Receipt, upon (i) the filing
by the holder thereof with the Depositary of evidence satisfactory to the
Depositary of such destruction or loss or theft of such Receipt, of the
authenticity thereof and of his or her ownership thereof and (ii) the holder
thereof furnishing of the Depositary with reasonable indemnification
satisfactory to the Depositary.
SECTION 2.07. Cancellation and Destruction of Surrendered Receipts.
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All Receipts surrendered to the Depositary or any Depositary's Agent shall be
cancelled by the Depositary. Except as prohibited by applicable law or
regulation, the Depositary is authorized to destroy all Receipts so cancelled.
SECTION 2.08. Redemption of Stock. Whenever the Company shall be
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permitted and shall elect to redeem shares of Stock in accordance with the
provisions of the Certificate, it shall (unless otherwise agreed to in writing
with the Depositary) give or cause to be given to the Depositary not less than
10 days' and not more than 60 days' notice of the date of such proposed
redemption of Stock and of the number of such shares held by the Depositary to
be so redeemed and the applicable redemption price, which notice shall be
accompanied by a certificate from the Company stating that such redemption of
Stock is in accordance with the provisions of the Certificate. On the date of
such redemption, provided that the Company shall then have paid or caused to be
paid in full to the Depositary the redemption price of the Stock to be redeemed,
plus an amount equal to any accrued and unpaid dividends thereon to the date
fixed for redemption, in accordance with the provisions of the Certificate, the
Depositary shall redeem the number of Depositary Shares representing such Stock.
The Depositary shall mail notice of the Company's redemption of Stock and the
proposed simultaneous redemption of the number of Depositary Shares representing
the Stock to be redeemed by first-class mail, postage prepaid, not less than 10
and not more than 60 days prior to the date fixed for redemption of such Stock
and Depositary Shares (the "Redemption Date"), to the record holders of the
Receipts evidencing the Depositary Shares to be so redeemed at the addresses of
such holders as they appear on the records of the Depositary; but neither
failure to mail any such notice of redemption of Depositary Shares to one or
more such holders nor any defect in any notice of redemption of Depositary
Shares to one or more such holders shall affect the sufficiency of the
proceedings for redemption as to the other holders. Each such notice shall
state: (i) the Redemption Date; (ii) the number of Depositary Shares to be
redeemed and, if less than all the Depositary Shares held by any such holder are
to be redeemed, the number of such Depositary Shares held by such holder to be
so
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redeemed; (iii) the redemption price; (iv) the place or places where Receipts
evidencing Depositary Shares are to be surrendered for payment of the redemption
price; and (v) that dividends in respect of the Stock represented by the
Depositary Shares to be redeemed will cease to accrue on such Redemption Date.
In case less than all the outstanding Depositary Shares are to be redeemed, the
Depositary Shares to be so redeemed shall be selected by the Depositary by lot
or pro rata (as nearly as may be), as determined by the Depositary in its sole
discretion to be equitable.
Notice having been mailed by the Depositary as aforesaid, from and
after the Redemption Date (unless the Company shall have failed to provide the
funds necessary to redeem the Stock evidenced by the Depositary Shares called
for redemption) (i) dividends on the shares of Stock so called for Redemption
shall cease to accrue from and after such date, (ii) the Depositary Shares being
redeemed from such proceeds shall be deemed no longer to be outstanding, (iii)
all rights of the holders of Receipts evidencing such Depositary Shares (except
the right to receive the redemption price) shall, to the extent of such
Depositary Shares, cease and terminate, and (iv) upon surrender in accordance
with such redemption notice of the Receipts evidencing any such Depositary
Shares called for redemption (properly endorsed or assigned for transfer, if the
Depositary or applicable law shall so require), such Depositary Shares shall be
redeemed by the Depositary at a redemption price per Depositary Share equal to
[specify fraction] of the redemption price per share of Stock so redeemed plus
all money and other property, if any, represented by such Depositary Shares,
including all amounts paid by the Company in respect of dividends which on the
Redemption Date have accrued on the shares of Stock to be so redeemed and have
not therefore been paid.
If fewer than all of the Depositary Shares evidenced by a Receipt are
called for redemption, the Depositary will deliver to the holder of such Receipt
upon its surrender to the Depositary, together with the redemption payment, a
new Receipt evidencing the Depositary Shares evidenced by such prior receipt and
not called for redemption.
ARTICLE III
Certain Obligations of
Holders of Receipts and the Company
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SECTION 3.01. Filing Proofs, Certificates and Other Information. Any
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holder of a Receipt may be required from time to time to file such proof of
residence, or other matters or
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other information, to execute such certificates and to make such representations
and warranties as the Depositary or the Company may reasonably deem necessary or
proper. The Depositary or the Company may withhold the delivery, or delay the
registration of transfer or redemption, of any Receipt or the withdrawal of the
Stock represented by the Depositary Shares evidenced by any Receipt or the
distribution of any dividend or other distribution or the sale of any rights or
of the proceeds thereof until such proof or other information is filed or such
certificates are executed or such representations and warranties are made.
SECTION 3.02. Payment of Taxes or Other
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Governmental Charges. Holders of Receipts shall be obligated to make payments
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to the Depositary of certain charges and expenses, as provided in Section 5.07.
Registration of transfer of any Receipt or any withdrawal of Stock and all money
or other property, if any, represented by the Depositary Shares evidenced by
such Receipt may be refused until any such payment due is made, and any
dividends, interest payments or other distributions may be withheld or any part
of or all the Stock or other property represented by the Depositary Shares
evidenced by such Receipt and not theretofore sold may be sold for the account
of the holder thereof (after attempting by reasonable means to notify such
holder prior to such sale), and such dividends, interest payments or other
distributions or the proceeds of any such sale may be applied to any payment of
such charges or expenses, the holder of such Receipt remaining liable for any
deficiency.
SECTION 3.03. Warranty as to Stock. The Company hereby represents
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and warrants that the Stock, when issued, will be duly authorized, validly
issued, fully paid and nonassessable. Such representation and warranty shall
survive the deposit of the Stock and the issuance of Receipts.
SECTION 3.04. Warranty as to Receipts. The Company hereby represents
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and warrants that the Receipts, when issued, will represent legal and valid
interests in the Stock. Such representation and warranty shall survive the
deposit of the Stock and the issuance of Receipts.
ARTICLE IV
The Deposited Securities; Notices
---------------------------------
SECTION 4.01. Cash Distributions. Whenever the Depositary shall
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receive any cash dividend or other cash distribution on Stock, the Depositary
shall, subject to Sections 3.01 and 3.02, distribute to record holders of
Receipts on the record date fixed pursuant to Section 4.04 such amounts of such
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dividend or distribution as are, as nearly as practicable, in proportion to the
respective numbers of Depositary Shares evidenced by the Receipts held by such
holders; provided, however, that in case the Company or the Depositary shall be
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required to withhold and shall withhold from any cash dividend or other cash
distribution in respect of the Stocks an amount on account of taxes, the amount
made available for distribution or distributed in respect of Depositary Shares
shall be reduced accordingly. The Depositary shall distribute or make available
for distribution, as the case may be, only such amount, however, as can be
distributed without attributing to any holder of Depositary Shares a fraction of
one cent, and any balance not so distributable shall be held by the Depositary
(without liability for interest thereon) and shall be added to and be treated as
part of the next sum received by the Depositary for distribution to record
holders of Receipts then outstanding.
SECTION 4.02. Distributions Other than Cash, Rights, Preferences or
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Privileges. Whenever the Depositary shall receive any distribution other than
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cash, rights, preferences or privileges upon Stock, the Depositary shall,
subject to Sections 3.01 and 3.02, distribute to record holders of Receipts on
the record date fixed pursuant to Section 4.04 such amounts of the securities or
property received by it as are, as nearly as practicable, in proportion to the
respective numbers of Depositary Shares evidenced by the Receipts held by such
holders, in any manner that the Depositary may deem equitable and practicable
for accomplishing such distribution. If in the opinion of the Depositary such
distribution cannot be made proportionately among such record holders, or if for
any other reason (including any requirement that the Company or the Depositary
withhold an amount on account of taxes) the Depositary deems, after consultation
with the Company, such distribution not to be feasible, the Depositary may, with
the approval of the Company, adopt such method as it deems equitable and
practicable for the purpose of effecting such distribution, including the sale
(at public or private sale) of the securities or property thus received, or any
part thereof, in a commercially reasonable manner. The net proceeds of any such
sale shall, subject to Sections 3.01 and 3.02, be distributed or made available
for distribution, as the case may be, by the Depositary to record holders of
Receipts as provided by Section 4.01 in the case of a distribution received in
cash. The Company shall not make any distribution of such securities or
property to the Depositary and the Depositary shall not make any distribution of
such securities or property to the holders of Receipts unless the Company shall
have provided an opinion of counsel stating that such securities or property
have been registered under the Securities Act or do not need to be registered in
connection with such distributions.
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SECTION 4.03. Subscription Rights, Preferences or Privileges. If the
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Company shall at any time offer or cause to be offered to the persons in whose
names Stock is recorded on the books of the Company any rights, preferences or
privileges to subscribe for or to purchase any securities or any rights,
preferences or privileges of any other nature, such rights, preferences or
privileges shall in each such instance be made available by the Depositary to
the record holders of Receipts in such manner as the Depositary may determine,
either by the issue to such record holders of warrants representing such rights,
preferences or privileges or by such other method as may be approved by the
Depositary in its discretion with the approval of the Company; provided,
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however, that (i) if at the time of issue or offer of any such rights,
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preferences or privileges the Depositary determines that it is not lawful or
(after consultation with the Company) not feasible to make such rights,
preferences or privileges available to holders of Receipts by the issue of
warrants or otherwise, or (ii) if and to the extent so instructed by holders of
Receipts who do not desire to exercise such rights, preferences or privileges,
then the Depositary, in its discretion (with approval of the Company, in any
case where the Depositary has determined that it is not feasible to make such
rights, preferences or privileges available), may, if applicable laws or the
terms of such rights, preferences or privileges permit such transfer, sell such
rights, preferences or privileges at public or private sale, at such place or
places and upon such terms as it may deem proper. The net proceeds of any such
sale shall, subject to Sections 3.01 and 3.02, be distributed by the Depositary
to the record holders of Receipts entitled thereto as provided by Section 4.01
in the case of a distribution received in cash.
The Company shall notify the Depositary whether registration under the
Securities Act of the securities to which any rights, preferences or privileges
relate is required in order for holders of Receipts to be offered or sold the
securities to which such rights, preferences or privileges relate, the Company
agrees with the Depositary that it will file promptly a registra tion statement
pursuant to such Act with respect to such rights, preferences or privileges and
securities and use its best efforts and take all steps available to it to cause
such registration statement to become effective sufficiently in advance of the
expiration of such rights, preferences or privileges to enable such holders to
exercise such rights, preferences or privileges. In no event shall the
Depositary make available to the holders of Receipts any right, preference or
privilege to subscribe for or to purchase any securities unless and until such
registration statement shall have become effective, or unless the offering and
sale of such securities to such holders are exempt from registration under the
provisions of the Securities Act, and the
11
Company shall have provided to the Depositary an opinion of counsel to such
effect.
The Company shall notify the Depositary whether any other action under
the laws of any jurisdiction or any govern mental or administrative
authorization, consent or permit is required in order for such rights,
preferences or privileges to be made available to holders of Receipts, the
Company agrees with the Depositary that the Company will use its reasonable best
efforts to take such action or obtain such authorization, consent or permit
sufficiently in advance of the expiration of such rights, preferences or
privileges to enable such holders to exercise such rights, preferences or
privileges.
SECTION 4.04. Notice of Dividends, etc.; Fixing Record Date for
-------------------------------------------------
Holders of Receipts. Whenever any cash dividend or other cash distribution
-------------------
shall become payable or any distribution other than cash shall be made, or if
rights, preferences or privileges shall at any time be offered, with respect to
Stock, or whenever the Depositary shall receive notice of any meeting at which
holders of Stock are entitled to vote or of which holders of Stock are entitled
to notice, or whenever the Depositary and the Company shall decide it is
appropriate, the Depositary shall in each such instance fix a record date (which
shall be the same date as the record date fixed by the Company with respect to
or otherwise in accordance with the terms of the Stock) for the determination of
the holders of Receipts who shall be entitled to receive such dividend,
distribution, rights, preferences or privileges or the net proceeds of the sale
thereof, or to give instructions for the exercise of voting rights at any such
meeting, or who shall be entitled to notice of such meeting or for any other
appropriate reasons.
SECTION 4.05. Voting Rights. Upon receipt of notice of any meeting
-------------
at which the holders of Stock are entitled to vote, the Depositary shall, as
soon as practicable thereafter, mail to the record holders of Receipts a notice
which shall contain (i) such information as is contained in such notice of
meeting and (ii) a statement that the holders may, subject to any applicable
restrictions, instruct the Depositary as to the exercise of the voting rights
pertaining to the amount of Stock represented by their respective Depositary
Shares (including an express indication that instructions may be given to the
Depositary to give a discretionary proxy to a person designated by the Company)
and a brief statement as to the manner in which such instructions may be given.
Upon the written request of the holders of Receipts on the relevant record date,
the Depositary shall endeavor insofar as practicable to vote or cause to be
voted, in accordance with the instructions set forth in such requests, the
maximum number of whole shares of Stock represented
12
by the Depositary Shares evidenced by all Receipts as to which any particular
voting instructions are received. The Company hereby agrees to take all
reasonable action which may be deemed necessary by the Depositary in order to
enable the Depositary to vote such Stock or cause such Stock to be voted. In
the absence of specific instructions from the holder of a Receipt, the
Depositary will not vote (but, at its discretion, may appear at any meeting with
respect to such Stock unless directed to the contrary by the holders of all the
Receipts) to the extent of the Stock represented by the Depositary Shares
evidenced by such Receipt.
SECTION 4.06. Changes Affecting Deposited Securities and
------------------------------------------
Reclassifications, Recapitalizations, etc. Upon any change in par or stated
------------------------------------------
value, split-up, combination or any other reclassification of the Stock, or upon
any recapitalization, reorganization, merger or consolidation affecting the
Company or to which it is a party, the Depositary may in its discretion with the
approval of, and shall upon the instructions of, the Company, and (in either
case) in such manner as the Depositary may deem equitable, (i) make such
adjustments as are certified by the Company in the fraction of an interest
represented by one Depositary Share in one share of Stock as may be necessary
fully to reflect the effects of such change in par or stated value, split-up,
combination or other reclassification of Stock, or of such recapitalization,
reorganization, merger or consolidation and (ii) treat any securities which
shall be received by the Depositary in exchange for or upon conversion of or in
respect of the Stock as new deposited securities so received in exchange for or
upon conversion or in respect of such Stock. In any such case the Depositary
may in its discretion, with the approval of the Company, execute and deliver
additional Receipts or may call for the surrender of all outstanding Receipts to
be exchanged for new Receipts specifically describing such new deposited
securities. Anything to the contrary herein notwithstanding, holders of
Receipts shall have the right from and after the effective date of any such
change in par or stated value, split-up, combination or other reclassification
of the Stock or any such recapitalization, reorganization, merger or
consolidation to surrender such Receipts to the Depositary with instructions to
convert, exchange or surrender the Stock represented thereby only into or for,
as the case may be, the kind and amount of shares of stock and other securities
and property and cash into which the Stock represented by such Receipts might
have been converted or for which such Stock might have been exchanged or
surrendered immediately prior to the effective date of such transaction.
SECTION 4.07. Delivery of Reports. The Depositary shall furnish to
-------------------
holders of Receipts any reports and communications received from the Company
which are received by
13
the Depositary and which the Company is required to furnish to the holders of
the Stock.
SECTION 4.08. Lists of Receipt Holders. Promptly upon request from
------------------------
time to time by the Company, the Depositary shall furnish to it a list, as of
the most recent practicable date, of the names, addresses and holdings of
Depositary Shares of all record holders of Receipts.
ARTICLE V
The Depositary, the Depositary's
Agents, the Registrar and the Company
-------------------------------------
SECTION 5.01. Maintenance of Offices, Agencies and Transfer Books by
------------------------------------------------------
the Depositary; Registrar. Upon execution of this Deposit Agreement, the
-------------------------
Depositary shall maintain at the Depositary's Office, facilities for the
execution and delivery, registration and registration of transfer, surrender and
exchange of Receipts, and at the offices of the Depositary's Agents, if any,
facilities for the delivery, registration of transfer, surrender and exchange of
Receipts, all in accordance with the provisions of this Deposit Agreement.
The Depositary shall keep books at the Depositary's Office for the
registration and registration of transfer of Receipts, which books at all
reasonable times shall be open for inspection by the record holders of Receipts;
provided that any such holder requesting to exercise such right shall certify to
--------
the Depositary that such inspection shall be for a proper purpose reasonably
related to such person's interest as an owner of Depositary Shares evidenced by
the Receipts.
The Depositary may close such books, at any time or from time to time,
when deemed expedient by it in connection with the performance of its duties
hereunder.
The Depositary may, with the approval of the Company, appoint a
Registrar for registration of the Receipts or the Depositary Shares evidenced
thereby. If the Receipts or the Depositary Shares evidenced thereby or the
Stock represented by such Depositary Shares shall be listed on one or more
national stock exchanges, the Depositary will appoint a Registrar (acceptable to
the Company) for registration of such Receipts or Depositary Shares in
accordance with any requirements of such exchange. Such Registrar (which may be
the Depositary if so permitted by the requirements of any such exchange) may be
removed and a substitute registrar appointed by the Depositary upon the request
or with the approval of the Company. If the
14
Receipts, such Depositary Shares or such Stock are listed on one or more other
stock exchanges, the Depositary will, at the request of the Company, arrange
such facilities for the delivery, registration, registration of transfer,
surrender and exchange of such Receipts, such Depositary Shares or such Stock as
may be required by law or applicable stock exchange regulation.
SECTION 5.02. Prevention of or Delay in Performance by the
--------------------------------------------
Depositary, the Depositary's Agents, the Registrar or the Company. Neither the
-----------------------------------------------------------------
Depositary nor any Depositary's Agent nor any Registrar nor the Company shall
incur any liability to any holder of any Receipt if by reason of any provision
of any present or future law, or regulation thereunder, of the United States of
America or of any other governmental authority or, in the case of the
Depositary, the Depositary's Agent or the Registrar, by reason of any provision,
present or future, of the Company's Certificate of Incorporation, as amended
(including the Certificate) or by reason of any act of God or war or other
circumstance beyond the control of the relevant party, the Depositary, the
Depositary's Agent, the Registrar or the Company shall be prevented or forbidden
from, or subjected to any penalty on account of, doing or performing any act or
thing which the terms of this Deposit Agreement provide shall be done or
performed; nor shall the Depositary, any Depositary's Agent, any Registrar or
the Company incur liability to any holder of a Receipt (i) by reason of any
nonperformance or delay, caused as aforesaid, in the performance of any act or
thing which the terms of this Deposit Agreement shall provide shall or may be
done or performed, or (ii) by reason of any exercise of, or failure to exercise,
any discretion provided for in this Deposit Agreement except, in the case of any
such exercise or failure to exercise discretion not caused as aforesaid, if
caused by the negligence or willful misconduct of the party charged with such
exercise or failure to exercise.
SECTION 5.03. Obligations of the Depositary, the Depositary's Agents,
-------------------------------------------------------
the Registrar and the Company. Neither the Depositary nor any Depositary's
-----------------------------
Agent nor any Registrar nor the Company assumes any obligation or shall be
subject to any liability under this Deposit Agreement to holders of Receipts
other than for its negligence, willful misconduct or bad faith.
Neither the Depositary nor any Depositary's Agent nor any Registrar
nor the Company shall be under, any obligation to appear in, prosecute or defend
any action, suit or other proceeding in respect of the Stock, the Depositary
Shares or the Receipts which in its opinion may involve it in expense or
liability unless indemnity satisfactory to it against all expense and liability
be furnished as often as may be required.
15
Neither the Depositary nor any Depositary's Agent nor any Registrar
nor the Company shall be liable for any action or any failure to act by it in
reliance upon the written advice of legal counsel or accountants, or information
from any person presenting Stock for deposit, any holder of a Receipt or any
other person believed by it in good faith to be competent to give such
information. The Depositary, any Depositary's Agent, any Registrar and the
Company may each rely and shall each be protected in acting upon any written
notice, request, direction or other document believed by it to be genuine and to
have been signed or presented by the proper party or parties.
The Depositary shall not be responsible for any failure to carry out
any instruction to vote any of the shares of stock or for the manner or effect
of any such vote made, as long as any such action or non-action is in good
faith. The Depositary undertakes, and any Registrar shall be required to
undertake, to perform such duties and only such duties as are specifically set
forth in this Agreement, and no implied covenants or obligations shall be read
into this Agreement against the Depositary or any Registrar. The Depositary
will indemnify the Company and hold it harmless from any loss, liability or
expense (including the reasonable costs and expenses of defending itself) which
may arise out of acts performed or omitted by the Depositary or the Depositary's
Agents in connection with this Agreement due to its or their negligence, willful
misconduct or bad faith. The indemnification obligations of the Depositary set
forth in this Section 5.03 shall survive any termination of this Agreement and
any succession of any Depositary. The Depositary, the Depositary's Agents, and
any Registrar may own and deal in any class of securities of the Company and its
affiliates and in Receipts. The Depositary may also act as transfer agent or
registrar of any of the securities of the Company and its affiliates.
SECTION 5.04. Resignation and Removal of the Depositary; Appointment
------------------------------------------------------
of Successor Depositary. The Depositary may at any time resign as Depositary
-----------------------
hereunder by delivering notice of its election to do so to the Company, such
resignation to take effect upon the appointment of a successor Depositary and
its acceptance of such appointment as hereinafter provided.
The Depositary may at any time be removed by the Company by notice of
such removal delivered to the Depositary, such removal to take effect upon the
appointment of a successor depositary hereunder and its acceptance of such
appointment as hereinafter provided.
In case at any time the Depositary acting hereunder shall resign or be
removed, the Company shall, within 60 days
16
after the delivery of the notice of resignation or removal, as the case may be,
appoint a successor Depositary, which shall be a bank or trust company having
its principal office in the United States of America and having a combined
capital and surplus of at least $50,000,000. If no successor Depositary shall
have been so appointed and have accepted appointment within 60 days after
delivery of such notice, the resigning or removed Depositary may petition any
court of competent jurisdiction for the appointment of a successor Depositary.
Every successor Depositary shall execute and deliver to its predecessor and to
the Company an instrument in writing accepting its appointment hereunder, and
thereupon such successor Depositary, without any further act or deed, shall
become fully vested with all the rights, powers, duties and obligations of its
predecessor and for all purposes shall be the Depositary under this Deposit
Agreement, and such predecessor, upon payment of all sums due it and on the
written request of the Company, shall promptly execute and deliver an instrument
transferring to such successor all rights and powers of such predecessor
hereunder, shall duly assign, transfer and deliver all right, title and interest
in the Stock and any moneys or property held hereunder to such successor, and
shall deliver to such successor a list of the record holders of all outstanding
Receipts and such records, books and other information in its possession
relating thereto. Any successor Depositary shall promptly mail notice of its
appointment to the record holders of Receipts.
Any corporation into or with which the Depositary may be merged,
consolidated or converted shall be the successor of such Depositary without the
execution or filing of any document or any further act, and notice thereof shall
not be required hereunder. Such successor Depositary may authenticate the
Receipts in the name of the predecessor Depositary or in the name of the
successor Depositary.
SECTION 5.05. Corporate Notices and Reports. The Company agrees that
-----------------------------
it will deliver to the Depositary, and the Depositary will, promptly after
receipt thereof, transmit to the record holders of Receipts, in each case at the
addresses recorded in the Depositary's books, copies of all notices and reports
(including without limitation financial statements) required by law, by the
rules of any national securities exchange upon which the Stock, the Depositary
Shares or the Receipts are listed or by the Company's Restated Certificate of
Incorporation (including the Certificate), to be furnished to the record holders
of Receipts. Such transmission will be at the Company's expense and the Company
will provide the Depositary with such number of copies of such documents as the
Depositary may reasonably request. In addition, the Depositary will transmit to
17
the record holders of Receipts at the Company's expense such other documents as
may be requested by the Company.
SECTION 5.06. Indemnification by the Company. The Company shall
------------------------------
indemnify the Depositary, any Depositary's Agent and any Registrar against, and
hold each of them harmless from, any loss, liability or expense (including the
reasonable costs and expenses of defending itself) which may arise out of acts
performed or omitted in connection with this Agreement and the Receipts by the
Depositary, any Registrar or any of their respective agents (including any
Depositary's Agent), except for any liability arising out of negligence, willful
misconduct or bad faith on the respective parts of any such person or persons.
The obligations of the Company set forth in this Section 5.06 shall survive any
succession of any Depositary, Registrar or Depositary's Agent.
SECTION 5.07. Charges and Expenses. The Company shall pay all
--------------------
transfer and other taxes and governmental charges arising solely from the
existence of the depositary arrangements. The Company shall pay all charges of
the Depositary in connection with the initial deposit of the Stock and the
initial issuance of the Depositary Shares, all withdrawals of shares of the
Stock by owners of Depositary Shares, and any redemption or exchange of the
Stock at the option of the Company. All other transfer and other taxes and
governmental charges shall be at the expense of holders of Depositary Shares
evidenced by Receipts. If, at the request of a holder of Receipts, the
Depositary incurs charges or expenses for which it is not otherwise liable
hereunder, such holder will be liable for such charges and expenses. All other
charges and expenses of the Depositary and any Depositary's Agent hereunder and
of any Registrar (including, in each case, reasonable fees and expenses of
counsel) incident to the performance of their respective obligations hereunder
will be paid upon consultation and agreement between the Depositary and the
Company as to the amount and nature of such charges and expenses. The
Depositary shall present its statement for charges and expenses to the Company
at such intervals as the Company and the Depositary may agree.
ARTICLE VI
Amendment and Termination
-------------------------
SECTION 6.01. Amendment. The form of the Receipts and any provisions
---------
of this Deposit Agreement may at any time and from time to time be amended by
agreement between the Company and the Depositary in any respect which they may
deem necessary or desirable; provided, however, that no such amendment which
-------- -------
shall
18
materially and adversely alter the rights of the holders of Receipts shall be
effective unless such amendment shall have been approved by the holders of at
least a majority (or, in the case of amendments relating to or affecting rights
to receive dividends or distributions or voting or redemption rights, two-thirds
of the holders) of the Depositary Shares then outstanding. Every holder of an
outstanding Receipt at the time any such amendment becomes effective shall be
deemed, by continuing to hold such receipt, to consent and agree to such
amendment and to be bound by the Depositary Agreement as amended thereby. In no
event shall any amendment impair the right, subject to the provisions of
Sections 2.05 and 2.06 and Article III, of any owner of Depositary Shares to
surrender any Receipt evidencing such Depositary Shares to the Depositary with
instructions 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 or the rules and regulations of any governmental
body, agency or commission, or applicable stock exchange.
SECTION 6.02. Termination. This Agreement may be terminated by the
-----------
Company at any time upon not less than 60 days prior written notice to the
Depositary, in which case, upon a day that is not later than 30 days after the
date of such notice, the Depositary shall deliver or make available for delivery
to such record holder, upon surrender of the Receipt or Receipts held by such
record holder, such number of whole or fractional shares of stock represented by
such receipt or Receipts. If the record holder of any Receipt or Receipts shall
not have so surrendered such Receipt or Receipts in exchange for whole or
fractional shares of Stock on or prior to the effective date of termination of
this Agreement, such record holder shall for all purposes, including the payment
of dividends, be deemed to be a record holder of the appropriate number of whole
or fractional shares of Stock previously represented by such Receipt or Receipts
and shall thereafter surrender to the Company such Receipt or Receipts in
exchange for whole or fractional shares of Stock.
This Agreement shall automatically terminate after (i) all outstanding
Depositary Shares have been redeemed pursuant to Section 2.08, (ii) all shares
of Stock and all money and other property relating thereto have been withdrawn
pursuant to Section 2.04, or (iii) there shall have been made a final
distribution in respect of the Stock in connection with any liquidation,
dissolution or winding up of the Company and such distribution shall have been
distributed to the holders of Depositary Shares pursuant to Section 4.01 or
4.02, as applicable.
Upon the termination of this Deposit Agreement, the Company shall be
discharged from all obligations under this
19
Deposit Agreement except for its obligations to the Depositary, any Depositary's
Agent and any Registrar under Sections 5.06 and 5.07.
ARTICLE VII
Miscellaneous
-------------
SECTION 7.01. Counterparts. This Deposit Agreement may be executed
------------
in any number of counterparts, and by each of the parties hereto on separate
counterparts, each of which counterparts, when so executed and delivered, shall
be deemed an original, but all such counterparts taken together shall constitute
one and the same instrument.
SECTION 7.02. Exclusive Benefit of Parties. This Deposit Agreement
----------------------------
is for the exclusive benefit of the parties hereto, and their respective
successors hereunder, and shall not be deemed to give any legal or equitable
right, remedy or claim to any other person whatsoever.
SECTION 7.03. Invalidity of Provisions. In case any one or more of
------------------------
the provisions contained in this Deposit Agreement or in the Receipts should be
or become invalid, illegal or unenforceable in any respect, the validity,
legality and enforceability of the remaining provisions contained herein or
therein shall in no way be affected, prejudiced or disturbed thereby.
SECTION 7.04. Notices. Any and all notices to be given to the
-------
Company hereunder or under the Receipts shall be in writing and shall be deemed
to have been duly given if personally delivered or sent by mail, or by telegram
or facsimile transmission confirmed by letter, addressed to the Company at
20
Xxxxxxx Xxxxx & Co., Inc.
000 Xxxxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Secretary
Facsimile No.: (000) 000-0000
with a copy to:
Xxxxxxx Xxxxx & Co., Inc.
World Financial Center
Xxxxx Xxxxx, 0xx Xxxxx
Xxx Xxxx, Xxx Xxxx 10080-6107
Attention: Treasurer
Facsimile No.: (000) 000-0000
or at any other addresses of which the Company shall have notified the
Depositary in writing.
Any and all notices to be given to the Depositary hereunder or under
the Receipts shall be in writing and shall be deemed to have been duly given if
personally delivered or sent by mail, or by telegram or facsimile transmission
confirmed by letter, addressed to the Depositary at the Depositary's Office,
at_______________________, or at any other address of which the Depositary shall
have notified the Company in writing.
Any and all notices to be given to any record holder of a Receipt
hereunder or under the Receipts shall be in writing and shall be deemed to have
been duly given if personally delivered or sent by mail, or by telegram or
facsimile transmission confirmed by letter, addressed to 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 facsimile
transmission shall be deemed to be effected at the time when a duly addressed
letter containing the same (or a confirmation thereof in the case of a telegram
or facsimile transmission) is deposited, postage prepaid, in a post office
letter box. The Depositary or the Company may, however, act upon any telegram
or facsimile transmission received by it from the other or from any holder of a
Receipt, notwithstanding that such telegram or facsimile transmission shall not
subsequently be confirmed by letter or as aforesaid.
SECTION 7.05. Depositary's Agents. The Depositary may from time to
-------------------
time appoint Depositary's Agents to act in any
21
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 promptly notify
the Company of any such action.
The Company hereby also appoints the Depositary as Registrar and
Transfer Agent in respect of the Receipts and the Depositary hereby accepts such
appointments.
SECTION 7.06. Holders of Receipts Are Parties. The holders of
-------------------------------
Receipts from time to time shall be parties to this Deposit Agreement and shall
be bound by all of the terms and conditions hereof and of the Receipts by
acceptance of delivery thereof.
SECTION 7.07. Governing Law. This Deposit Agreement and the Receipts
-------------
and all rights hereunder and thereunder and provisions hereof and thereof shall
be governed by, and construed in accordance with, the laws of the State of New
York without giving effect to applicable conflicts of law principles.
SECTION 7.08. Inspection of Deposit Agreement. Copies of this
-------------------------------
Deposit Agreement shall be filed with the Depositary and the Depositary's Agents
and shall be open to inspection during business hours at the Depositary's Office
and the respective offices of the Depositary's Agents, if any, by any holder of
a Receipt.
SECTION 7.09. Headings. The headings of articles and sections in
--------
this Deposit Agreement and in the form of the Receipt set forth in Exhibit A
hereto have been inserted for convenience only and are not to be regarded as a
part of this Deposit Agreement or the Receipts or to have any bearing upon the
meaning or interpretation of any provision contained herein or in the Receipts.
22
IN WITNESS WHEREOF, the Company and the Depositary have duly executed
this Agreement as of the day and year first above set forth, and all holders of
Receipts shall become parties hereto by and upon acceptance by them of delivery
of Receipts issued in accordance with the terms hereof.
XXXXXXX XXXXX & CO., INC.
Attested by
_____________________________ by:______________________
[SEAL]
Attested by [Name of Depositary]
______________________________ by:______________________
[SEAL]
23
Exhibit A
[FORM OF FACE OF RECEIPT]
NUMBER DEPOSITARY SHARES
CERTIFICATE FOR ____________ DEPOSITARY SHARES
TDR
DEPOSITARY RECEIPT FOR DEPOSITARY SHARES,
REPRESENTING _________ PREFERRED STOCK, SERIES ____, OF
XXXXXXX XXXXX & CO., INC.
CUSIP _________
INCORPORATED UNDER THE LAWS OF THE STATE OF DELAWARE SEE REVERSE FOR
CERTAIN DEFINITIONS
______________________, as Depositary (the "Depositary"), hereby certifies that
is the registered owner of DEPOSITARY SHARES
("Depositary Shares"), each Depositary Share representing [specify fraction] of
one share of _______ Preferred Stock, Series ____, (the "Stock"), of Xxxxxxx
Xxxxx & Co., Inc., a Delaware corporation (the "Corporation"), on deposit with
the Depositary, subject to the terms and entitled to the benefits of the Deposit
Agreement dated as of ______________, ____ (the "Deposit Agreement"), between
the Corporation and the Depositary. By accepting this Depositary Receipt, the
holder hereof becomes a party to and agrees to be bound by all the terms and
conditions of the Deposit Agreement. This Depositary Receipt shall not be valid
or obligatory for any purpose or entitled to any benefits under the Deposit
Agreement unless it shall have been executed by the Depositary by the manual
signature of a duly authorized officer or, if executed in facsimile by the
Depositary, countersigned by a Registrar in respect of the Depositary Receipts
by the manual signature of a duly authorized officer thereof.
Dated: [Countersigned:
_______________ _______________
Depositary Registrar
By By
Authorized Officer Authorized Officer]
A-1
[FORM OF REVERSE OF RECEIPT]
XXXXXXX XXXXX & CO., INC.
XXXXXXX XXXXX & CO., INC. WILL FURNISH WITHOUT CHARGE TO EACH
RECEIPTHOLDER WHO SO REQUESTS A COPY OF THE DEPOSIT AGREEMENT AND A COPY OR
SUMMARY OF THE CERTIFICATE OF DESIGNATIONS OF THE _________ PREFERRED STOCK,
SERIES _____, OF XXXXXXX XXXXX & CO., INC. ANY SUCH REQUEST IS TO BE ADDRESSED
TO THE DEPOSITARY NAMED ON THE FACE OF THIS RECEIPT.
_____________________
For value received, ____________________ hereby sell(s), assign(s) and
transfer(s) unto
PLEASE INSERT SOCIAL SECURITY OR OTHER
IDENTIFYING NUMBER OF ASSIGNEE
_________________________________________________________________
_________________________________________________________________
PLEASE PRINT OR TYPEWRITE NAME AND ADDRESS INCLUDING POSTAL
ZIP CODE OF ASSIGNEE
_________________________________________________________________
________________________________________________Depositary Shares
represented by the within Receipt, and do(es) hereby irrevocably constitute and
appoint ______________________ Attorney to transfer the said Depositary Shares
on the books of the within named Depositary with full power of substitution in
the premises.
Dated________________
_________________________________________________
NOTICE: The signature to the assignment must
correspond with the name as written upon the face
of this Receipt in every particular, without
alteration or enlargement or any change whatever.
SIGNATURE GUARANTEED
_________________________________
NOTICE: The signature(s) should
be guaranteed by an eligible
guarantor institution (banks,
stockbrokers, savings and loan
associations, and credit unions
with membership in an approved
signature guarantee medallion
program), pursuant to Rule 17Ad-15
under the Securities Exchange
Act of 1934.
A-2
