EXHIBIT 1.3
THE BEAR XXXXXXX COMPANIES INC.,
CHASEMELLON SHAREHOLDER SERVICES, L.L.C., as Depositary
AND
THE HOLDER OF DEPOSITARY RECEIPTS HEREIN
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Deposit Agreement
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Dated as of June 19, 1998
DEPOSIT AGREEMENT dated as of June 19, 1998, among THE BEAR
XXXXXXX COMPANIES INC., a corporation duly organized and existing under the laws
of the State of Delaware, ChaseMellon Shareholder Services L.L.C., a limited
liability company existing under the laws of the state of New Jersey and the
holders from time to time of the Receipts (as hereinafter defined) described
herein.
WHEREAS it is desired to provide, as hereinafter set forth in
this Deposit Agreement, for the deposit of shares of 5.49% Cumulative Preferred
Stock, Series G, $1.00 par value, of THE BEAR XXXXXXX COMPANIES INC. with the
Depositary for the purposes set forth in this Deposit Agreement and for the
issuance hereunder of Receipts evidencing Depositary Shares in respect of the
Stock (as hereinafter defined) so deposited;
NOW, THEREFORE, in consideration of the premises, the parties
hereto agree as follows:
ARTICLE I
Definitions
The following definitions shall for all purposes, unless
otherwise indicated, apply to the respective terms used in this Deposit
Agreement and the Receipts:
"Certificate of Designations" shall mean the Certificate of
Designations filed with the Secretary of State of Delaware establishing the
Stock as a series of preferred stock of the Company.
"Certificate of Incorporation" shall mean the Certificate of
Incorporation, as amended from time to time, of the Company.
"Company" shall mean The Bear Xxxxxxx Companies Inc., a
Delaware corporation having its principal office at 000 Xxxx Xxxxxx, Xxx Xxxx,
Xxx Xxxx 00000, and its successors.
"Deposit Agreement" shall mean this Deposit Agreement, as
amended or supplemented from time to time.
"Depositary" shall mean ChaseMellon Shareholder Services
L.L.C., a limited liability company existing under the laws of the State of New
Jersey, and any successor as Depositary hereunder.
"Depositary Shares" shall mean Depositary Shares, each
representing a one-fourth fractional interest in a share of Stock and evidenced
by a Receipt.
"Depositary's Agent" shall mean an agent appointed by the
Depositary pursuant to Section 7.05.
"Depositary's Office" shall mean the principal office of the
Depositary in New York, New York, at which at any particular time its depositary
receipt business shall be administered.
"Receipt" shall mean one of the depositary receipts issued
hereunder, whether in definitive or temporary form.
"Record Holder" as applied with respect to a Receipt shall
mean the person in whose name a Receipt is registered on the books of the
Depositary maintained for such purpose.
"Registrar" shall mean any bank or trust company which shall
be appointed to register ownership and transfers of Receipts as herein provided.
"Stock" shall mean shares of the Company's 5.49% Cumulative
Preferred Stock, Series G, $1.00 par value.
ARTICLE II
Form or Receipts, Deposit of Stock, Execution and Delivery,
Transfer, Surrender and Redemption of Receipts
SECTION 2.01. Form and Transfer of Receipts. Definitive
Receipts shall be engraved or printed or lithographed on steel-engraved borders
and shall be substantially in the form set forth in Exhibit A annexed to this
Deposit Agreement, with appropriate insertions, modifications and omissions, as
hereinafter provided. Pending the preparation of definitive Receipts, the
Depositary, upon the written order of the Company delivered in compliance with
Section 2.02, shall execute and deliver temporary Receipts which shall be
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 are necessary for such
temporary Receipts, 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
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preparation of definitive Receipts, the temporary Receipts shall be exchangeable
for definitive Receipts upon surrender of the temporary Receipts at the
Depositary's office, or such other office as the Depositary may designate,
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 signatory of the Depositary; provided, that such
signature may be a facsimile if a Registrar for the Receipts (other than the
Depositary) shall have been appointed and such Receipts are countersigned by
manual signature of a duly authorized 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 manually by a duly
authorized signatory of the Depositary or, if a Registrar for the Receipts
(other than the Depositary) shall have been appointed, by facsimile signature of
a duly authorized signatory of the Depositary and countersigned manually by a
duly authorized signatory 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 or required to
comply with any applicable law or any regulation thereunder or with the rules
and regulations of any securities exchange upon which the Stock, the Depositary
Shares or the Receipts may be listed or to conform with any usage with respect
thereto, or to indicate any special limitations or restrictions to which any
particular Receipts are subject.
Title to Depositary Shares evidenced by a Receipt which is
properly endorsed, or accompanied by a properly executed instrument of transfer,
shall be transferable by delivery with the same effect as in the case of a
negotiable instrument; provided, however, that until transfer of a Receipt shall
be
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registered on the books of the Depositary as provided in Section 2.04, the
Depositary may, notwithstanding any notice to the contrary, treat the record
holder thereof at such time as the absolute owner thereof for the purpose of
determining the person entitled to distributions of dividends or other
distributions or to any notice provided for in this Deposit Agreement and for
all other purposes.
SECTION 2.02. Deposit of Stock; Execution and Delivery of
Receipts in Respect Thereof. Subject to the terms and conditions of this Deposit
Agreement, the Company may from time to time deposit shares of Stock under this
Deposit Agreement by delivery to the Depositary of a certificate or certificates
for the Stock to be deposited, properly endorsed or accompanied, if required by
the Depositary, by a duly executed instrument of transfer or endorsement, in
form satisfactory to the Depositary, together with all such certifications as
may be required by the Depositary in accordance with the provisions of this
Deposit Agreement, and together with a written order directing the Depositary to
execute and deliver to, or upon the written order of, the person or persons
stated in such order a Receipt or Receipts for the number of Depositary Shares
representing interests in such deposited Stock.
Deposited Stock shall be held by the Depositary at the
Depositary's Office or at such other place or places as the Depositary shall
determine.
Upon receipt by the Depositary of a certificate or
certificates for Stock deposited in accordance with the provisions of this
Section, together with the other documents required as above specified, and upon
receipt of sufficient evidence by the Depositary of the 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 for the number of Depositary Shares relating to 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 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. However, in each case, such delivery will be
made only upon payment to the Depositary of all taxes and governmental charges
and fees payable by the depositor, as provided in Section 5.07.
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SECTION 2.03. Redemption of Stock. Whenever the Company shall
elect to redeem shares of Stock in accordance with the provisions of the
Certificate of Incorporation and the Certificate of Designations, it shall
(unless otherwise agreed in writing with the Depositary) give the Depositary not
less than 30 nor more than 60 days' notice of the date of such proposed
redemption of Stock. On the date of such redemption, provided that the Company
shall then have paid in full to the Depositary the redemption price of the Stock
to be redeemed, plus any accrued and unpaid dividends thereon, the Depositary
shall redeem the number of Depositary Shares representing such Stock. The
Depositary shall mail notice of such redemption and the proposed simultaneous
redemption of the number of Depositary Shares representing the Stock to be
redeemed, first-class postage prepaid, not less than 20 and not more than 50
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 to one or more such holders nor any defect in any notice to one or more
such holders shall affect the sufficiency of the proceedings for redemptions 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 redeemed; (iii) the redemption
price (which shall include full cumulative dividends thereon to the Redemption
Date); (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 underlying the Depositary Shares to be redeemed will cease
to accumulate at the close of business 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 lot or pro rata or such other
method as may be determined by the Depositary 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 redeem
the shares of Stock to be redeemed by it as set forth in the Company's notice
provided for in the preceding paragraph) all dividends in respect of the shares
of Stock so called for redemption shall cease to accumulate, the Depositary
Shares being redeemed from such Proceeds shall be deemed no longer to be
outstanding, all rights of the holders of Receipts evidencing such Depositary
Shares (except the right to receive the redemption price) shall, to the extent
of such Depositary Shares, cease and terminate and, upon surrender in
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accordance with such notice of the Receipts evidencing any such Depositary
Shares (properly endorsed or assigned for transfer, if the Depositary shall so
require), such Depositary Shares shall be redeemed by the Depositary at a
redemption price per Depositary Share equal to one-fourth of the redemption
price per share paid in respect of the shares of Stock plus all money and other
property, if any, represented by such Depositary Share, including one-fourth of
all amounts paid by the Company in respect of dividends which on the Redemption
Date have accumulated on a share of Stock to be so redeemed and have not
theretofore been paid.
If less than all the Depositary Shares evidenced by a Receipt
are called for redemption, the Depositary will deliver to the holder of such
Receipt upon its surrender to the Depositary, together with the redemption
payment, a new Receipt evidencing the Depositary Shares evidenced by such prior
Receipt and not called for redemption.
SECTION 2.04. Registration of Transfer of Receipts. Subject to
the terms and conditions of this Deposit Agreement, the Depositary shall
register on its books from time to time transfers of Receipts upon any surrender
thereof by the holder in person or by duly authorized attorney, properly
endorsed or accompanied by a properly executed instrument of transfer. Thereupon
the Depositary shall execute a new Receipt or Receipts evidencing the same
aggregate number of Depositary Shares as those evidenced by the Receipt or
Receipts surrendered and deliver such new Receipt or Receipts to or upon the
order of the person entitled thereto.
SECTION 2.05. Split-ups and Combinations of Receipts;
Surrender of Receipts and Withdrawal of Stock. Upon surrender of a Receipt or
Receipts at the Depositary's Office or at such other offices as it may designate
for the purpose of effecting a split-up or combination of such Receipt or
Receipts, and subject to the terms and conditions of this Deposit Agreement,
upon receipt by the Depositary of appropriate certification and a written order
of the Company, the Depositary shall execute and deliver a new Receipt or
Receipts in the authorized denomination or denominations requested, evidencing
the aggregate number of Depositary Shares evidenced by the Receipt or Receipts
surrendered.
Any holder of a Receipt or Receipts representing any number of
whole shares of Stock may withdraw the Stock and all money and other property,
if any, represented thereby by surrendering such Receipt or Receipts at the
Depositary's Office or at such other offices as the Depositary may designate for
such
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withdrawals. Thereafter, without unreasonable delay, the Depositary shall
deliver to such holder, or to the person or persons designated by such holder as
hereinafter provided, the number of whole shares of Stock and all money and
other property, if any, represented by the Receipt or Receipts so surrendered
for withdrawal, but holders of such whole shares of Stock will not thereafter be
entitled to deposit such Stock hereunder or to receive Depositary Shares
therefor. If a Receipt delivered by the holder to the Depositary in connection
with such withdrawal shall evidence a number of Depositary Shares in excess of
the number of Depositary Shares representing the number of whole shares of Stock
to be so withdrawn, the Depositary shall at the same time, in addition to such
number of whole shares of Stock and such money and other property, if any, to be
so withdrawn, deliver to such holder, or (subject to Section 2.04) upon his
order, a new Receipt evidencing such excess number of Depositary Shares.
Delivery of the Stock and the money and other property being withdrawn may be
made by the delivery of such certificates, documents of title and other
instruments as the Depositary may deem appropriate.
If the Stock and the money and other property being withdrawn
are to be delivered to a person or persons other than the record holder of the
Receipt or Receipts being surrendered for withdrawal of Stock, such holder shall
execute and deliver to the Depositary a written order so directing the
Depositary and the Depositary may require that the Receipt or Receipts
surrendered by such holder for withdrawal of such shares of Stock be properly
endorsed in blank or accompanied by a properly executed instrument of transfer
in blank.
Delivery of the Stock and the money and other property, if
any, represented by Receipts surrendered for withdrawal shall be made by the
Depositary at the Depositary's Office, except that, at the request, risk and
expense of the holder surrendering such Receipt or Receipts and for the account
of the holder thereof, such delivery may be made at such other place as may be
designated by such holder and reasonably acceptable to the Depositary.
SECTION 2.06. Limitations on Execution and Delivery, Transfer,
Surrender and Exchange of Receipts. As a condition precedent to the execution
and delivery, registration of transfer, split-up, combination, surrender or
exchange of any Receipt, the Depositary, any of the 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
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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 2.07. Lost Receipts, etc. In case any Receipt shall be
mutilated, destroyed, lost or stolen, the Depositary in its discretion may
execute and deliver a Receipt of like form and tenor in exchange and
substitution for such mutilated Receipt, or in lieu of and in substitution for
such destroyed, lost or stolen Receipt, upon (i) the filing by the holder
thereof with the Depositary of evidence satisfactory to the Depositary of such
destruction or loss or theft of such Receipt, of the authenticity thereof and of
his or her ownership thereof and (ii) the furnishing of the Depositary with
reasonable indemnification satisfactory to it.
SECTION 2.08. Cancellation and Destruction of Surrendered
Receipts. All Receipts surrendered to the Depositary or any Depositary's Agent
shall be cancelled by the Depositary. Except as prohibited by applicable law or
regulation, the Depositary is authorized to destroy all Receipts so cancelled.
ARTICLE III
Certain Obligations of the Holders
of Receipts and the Company
SECTION 3.01. Filing Proofs, Certificates and Other
Information. Any holder of a Receipt may be required from time to time to file
such proof of residence, or other matters or other information, to execute such
certificates and to make such representation and warranties as the Depositary or
the Company may reasonably deem necessary or proper. The Depositary or the
Company may withhold the delivery, or delay the registration of transfer,
redemption or exchange, of any Receipt or the
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withdrawal of the Stock represented by the Depositary Shares evidenced by any
Receipt or the distribution of any dividend or other distribution or the sale of
any rights or of the proceeds thereof until such proof or other information is
filed or such certificates are executed or such representations and warranties
are made.
SECTION 3.02. Payment of Taxes or Other Governmental Charges.
Holders of Receipts shall be obligated to make payments to the Depositary of
certain charges and expenses, as provided in Section 5.07. Registration of
transfer of any Receipt or any withdrawal of Stock and all money or other
property, if any, represented by the Depositary Shares evidenced by such Receipt
may be refused until such payment due is made, and any dividends, interest
payments or other distributions may be withheld or all or any part of 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 3.02. Warranty as to Stock. The Company hereby
represents and warrants that the Stock, when issued, will be validly issued,
fully paid and nonassessable. Such representation and warranty shall survive the
deposit of the Stock and the issuance of Receipts.
ARTICLE IV
The Deposited Securities; Notices
SECTION 4.01. Cash Distributions. Whenever the Depositary
shall receive any cash dividend or other cash distribution on Stock, the
Depositary shall, subject to Sections 3.01 and 3.02, distribute to record
holders of Receipts on the record date fixed pursuant to Section 4.04 such
amounts of such dividend or distribution as are, as nearly as practicable, in
proportion to the respective numbers of Depositary Shares evidenced by the
Receipts held by such holders; provided, however, that in case the Company or
the Depositary shall be required to withhold and shall withhold from any cash
dividend or other cash distribution in respect of the Stock an amount on account
of taxes, the amount made available for distribution or distributed in respect
of Depositary Shares shall be reduced accordingly. The Depositary shall
distribute or make available
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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. Whenever the
Depositary shall receive any distribution other than cash 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 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
an account of taxes) the Depositary deems, after consultation with the Company,
such distribution not to be feasible, the Depositary at the direction of the
Company shall adopt such method as the Company deems equitable and practicable
for the purpose of effecting such distribution, including the sale (at public or
private sale) of the securities or property thus received, or any part thereof,
at such place or places and upon such terms as it may deem proper. The net
proceeds of any such sale shall, subject to Sections 3.01 and 3.02, be
distributed or made available for distribution, as the case may be, by the
Depositary to record holders of Receipts as provided by Section 4.01 in the case
of a distribution received in cash.
Section 4.03. Subscription Rights, Preferences or Privileges.
If the Company shall at any time offer or cause to be offered to the persons in
whose names Stock is recorded on the books of the Company any rights,
preferences or privileges to subscribe for or to 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 the Depositary may be
reasonably directed by the Company; provided, however, that (i) if at the time
of issue or offer of any such rights, preferences or privileges the Depositary
determines or is advised by legal counsel that it is not lawful or (after
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consultation with the Company) not feasible to make such rights, preferences or
privileges available to holders of Receipts by the issue of warrants or
otherwise, or (ii) if and to the extent so instructed by holders of Receipts who
do not desire to exercise such rights, preferences or privileges, then the
Depositary, in its discretion (with the approval of the Company, in any case
where the Depositary has determined that it is not feasible to make such rights,
preferences or privileges available), may, if applicable laws or the terms of
such rights, preferences or privileges permit such transfer, sell such rights,
preferences or privileges at public or private sale, at such place or places and
upon such terms as it may deem proper. The net proceeds of any such sales shall
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.
If registration under the Securities Act of 1933, as amended,
of the securities to which any rights, preferences or privileges relate is
required in order for holders of Receipts to be offered or sold the securities
to which such rights, preferences or privileges relate, the Company agrees with
the Depositary that it will file promptly a registration statement pursuant to
such Act with respect to such rights, preferences or privileges and securities
and use its best efforts and take all steps available to it to cause such
registration statement to become effective sufficiently in advance of the
expiration of such rights, preferences or privileges to enable such holders to
exercise such rights, preferences or privileges. In no event shall the
Depositary make available to the holders of Receipts any right, preference or
privilege to subscribe for or to purchase any securities unless and until such a
registration statement shall have become effective or unless the offering and
sale of such securities to such holders are exempt from registration under the
provisions of such Act.
If any other action under the laws of any jurisdiction or any
governmental or administrative authorization, consent or permit is required in
order for such rights, preferences or privileges to be made available to holders
of Receipts, the Company agrees with the Depositary that the Company will use
its best efforts to take such action or obtain such authorization, consent or
permit sufficiently in advance of the expiration of such rights, preferences or
privileges to enable such holders to exercise such rights, preferences or
privileges.
SECTION 4.04. Notice of Dividends, etc.; Fixing of Record Date
for Holders of Receipts. Whenever any cash dividend or other cash distribution
shall become payable or any distribution other than cash shall be made, or if
rights,
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preferences or privileges shall at any time be offered, with respect to Stock,
or whenever the Depositary shall receive notice of (a) any meeting at which
holders of Stock are entitled to vote or of which holders of Stock are entitled
to notice or (b) any election on the part of the Company to redeem any Shares of
Stock, 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
hereunder to receive a distribution in respect of 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 to
receive notice of such meeting or redemption of Stock.
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 underlying 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 such 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 underlying the Depositary Shares evidenced by
all Receipts as to which any particular voting instructions are received. The
Company hereby agrees to take all action which may be deemed necessary by the
Depositary in order to enable the Depositary to vote such Stock or cause such
Stock to be voted. In the absence of specific instructions from the holder of a
Receipt, the Depositary will abstain from voting (but, at its discretion, not
from appearing at any meeting with respect to such Stock unless directed to the
contrary by the holders of all the Receipts) to the extent of the Stock
underlying the Depositary Shares evidenced by such Receipt.
SECTION 4.06. Changes Affecting Deposited Securities and
Reclassifications, Recapitalizations, etc. Upon any change in par or stated
value, split-up, combination or any other reclassification of the Stock, or upon
any recapitalization, reorganization, merger, amalgamation or consolidation or
sale of all or substantially all the Company's assets affecting the
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Company or to which it is a party, the Depositary may in its discretion with the
approval of, and shall upon the instructions of, the Company, and (in either
case) in such manner as the Depositary may deem equitable, (i) make such
adjustments in (a) the fraction of an interest in one share of Stock underlying
one Depositary Share and (b) the ratio of the redemption price per Depositary
Share to the redemption price of a share of Stock, in each case as may be
necessary fully to reflect the effects of such change in par or stated value,
split-up, combination or other reclassification of Stock, or of such
recapitalization, reorganization, merger, amalgamation or consolidation or sale
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 Stock or any such recapitalization, reorganization, merger, amalgamation or
consolidation to surrender such Receipts to the Depositary with instructions to
convert, exchange or surrender the shares of Stock attributable thereto 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 was converted or for which such Stock was exchanged or surrendered
after giving effect to such transaction.
SECTION 4.07. Inspection of Reports. The Depositary shall make
available for inspection by holders of Receipts at the Depositary's Office, and
at such other places as it may from time to time deem advisable, any reports and
communications received from the Company which are received by the Depositary as
the holder of Stock.
SECTION 4.08. List of Receipt Holders. Promptly upon request
from time to time by the Company, the Depositary shall furnish to it a list, as
of a recent date, of the names, addresses and holdings of Receipts of all
persons in whose names Receipts are registered on the books of the Depositary or
Registrar, as the case may be.
13
ARTICLE V
The Depositary, the Depositary's Agents,
the Registrar and the Company
SECTION 5.01. Maintenance of Offices, Agencies and Transfer
Books by the Depositary; Registrar. 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 or 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.
If the Receipts or the Depositary Shares evidenced thereby or
the Stock underlying such Depositary Shares shall be listed on the New York
Stock Exchange, the Depositary may, with the approval of the Company, appoint a
Registrar for registration of such Receipts or Depositary Shares in accordance
with any requirements of such Exchange. Such Registrar (which may be the
Depositary if so permitted by the requirements of such Exchange) may be removed
and a substitute Registrar appointed by the Depositary upon the request or with
the approval of the Company. The Company hereby appoints the Depositary as the
initial Registrar. If the Receipts, such Depositary Shares or such Stock are
listed on one or more other stock exchanges, the Depositary will, at the request
of the Company, arrange such facilities for the delivery, registration,
registration of transfer, surrender and exchange of such Receipts, such
Depositary Shares or such Stock as may be required by law or applicable stock
exchange regulation.
SECTION 5.02. Prevention of or Delay in Performance by
the Depositary, the Depositary's Agents, the Registrar or the
Company. Neither the Depositary nor any Depositary's Agent nor
14
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
Certificate of Incorporation (including the Certificate of Designations) 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 doing or performing any act or
thing which the terms of this Deposit Agreement provide shall be done or
performed; nor shall the Depositary, any Depositary's Agent, any Registrar or
the Company incur any liability to any holder of a Receipt or to the Company (i)
by reason of any nonperformance or delay, caused as aforesaid, in the
performance of any act or thing which the terms of this Deposit Agreement
provide shall or may be done or performed, or (ii) by reason of any exercise of,
or failure to exercise, any discretion provided for in this Deposit Agreement
except, in case of any such exercise or failure to exercise discretion not
caused as aforesaid, if caused by the gross 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 gross negligence or willful misconduct.
Neither the Depositary nor any Depositary's Agent nor any
Registrar nor the Company shall be under any obligation to appear in, prosecute
or defend any action, suit or other proceeding in respect of the Stock, the
Depositary Shares or the Receipts which in its opinion may involve it in expense
or liability unless indemnity satisfactory to it against all expense and
liability be furnished as often as may be required.
Neither the Depositary nor any Depositary's Agent nor any
Registrar nor the Company shall be liable for any action or any failure to act
by it in reliance upon the written advice of legal counsel or accountants, or
information from any person presenting Stock for deposit, any holder of a
Receipt or any other person believed by it in good faith to be competent to give
such information. The Depositary, any Depositary's Agent, any Registrar and the
Company may each rely and shall each be protected in acting upon any written
notice, request, direction
15
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, as long as any such action or nonaction 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, the
Depositary's Agents and any Registrar may own and deal in any class of
securities of the Company or 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 notice of its election so to do delivered to the
Company, such resignation to take effect upon the appointment of a successor
Depositary and its acceptance of such appointment as hereinafter provided.
The Depositary may at any time be removed by the Company by
notice of such removal delivered to the Depositary, such removal to take effect
upon the appointment of a successor Depositary and its acceptance of such
appointment as hereinafter provided.
In case the Depositary acting hereunder shall at any time
resign or be removed, the Company shall, within 60 days after the delivery of
the notice of resignation or removal, as the case may be, appoint a successor
Depositary, which shall be a bank or trust company having its principal office
in the United States of America and having a combined capital and surplus of at
least $50,000,000. Every successor Depositary shall execute and deliver to its
predecessor and to the Company an instrument in writing accepting its
appointment hereunder, and thereupon such successor Depositary, without any
further act or deed, shall become fully vested with all the rights, powers,
duties and obligations of its predecessor and for all purposes shall be the
Depositary under this Deposit Agreement, and such predecessor, upon payment of
all sums due it and on the written request of the Company, shall execute and
deliver an instrument transferring to such successor all rights and powers of
such predecessor hereunder, shall duly assign, transfer and deliver all right,
title and interest in the Stock and any moneys or property held hereunder to
such successor and shall deliver to such successor a
16
list of the record holders of all outstanding Receipts. Any successor Depositary
shall promptly mail notice of its appointment to the record holders of Receipts.
Any corporation or entity 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 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 address recorded in the Depositary's books, copies of all notices and
reports (including, without limitation, financial statements) required by law,
the rules of any national securities exchange upon which the Stock, the
Depositary Shares or the Receipts are listed or by the Certificate of
Incorporation (including the Certificate of Designations) 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 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 costs and expenses of defending itself) which may arise out of
(i) acts performed or omitted in connection with this Agreement and the Receipts
(a) by the Depositary, any Registrar or any of their respective agents
(including any Depositary's Agent), except for any liability arising out of
gross negligence or willful misconduct on the respective parts of any such
person or persons, or (b) by the Company or any of its agents (other than the
Depositary, the Depositary's Agents, the Registrar, if any, or any of their
agents), or (ii) the offer, sale or registration of the Receipts or the Stock
pursuant to the provisions hereof.
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 and
expenses of the Depositary in connection with the initial deposit of the Stock
and the initial issuance of the Depositary Shares and any redemption of the
Stock
17
at the option of the Company. All other transfer and other taxes and
governmental charges shall be at the expense of holders of 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, fees
and expenses of counsel) incident to the performance of their respective
obligations hereunder and incurred following consultation and agreement between
the Depositary and the Company as to the amount and nature of such charges and
expenses will be paid. The Depositary shall present its statement for charges
and expenses (except for charges and expenses directly arising from actions
provided for in this Deposit Agreement for which consultation and agreement
shall not be necessary) to the Company once every three months or at such other
intervals as the Company and the Depositary may agree.
ARTICLE VI
Amendment and Termination
SECTION 6.01. Amendment. The form of the Receipts and any
provisions of this Deposit Agreement may at any time and from time to time be
amended by agreement between the Company and the Depositary in any respect which
they may deem necessary or desirable; provided, however, that no such amendment
which shall materially and adversely alter the rights of the holders of Receipts
shall be effective unless such amendment shall have been approved by the holders
of at least a majority of the Depositary Shares then outstanding. Every holder
of an outstanding Receipt at the time any such amendment becomes effective shall
be deemed, by continuing to hold such Receipt, to consent and agree to such
amendment and to be bound by the Deposit Agreement as amended thereby. In no
event shall any amendment impair the right, subject to the provisions of
Sections 2.05 and 2.06 hereof, of any Depositary Shares to surrender the Receipt
evidencing such Depositary Shares 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.
SECTION 6.02. Termination. This Agreement may be terminated by
the Company or the Depositary only after (i) all outstanding Depositary Shares
shall have been redeemed pursuant to Section 2.03 or (ii) there shall have been
made a final distribution in respect of the Stock in connection with any
18
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 in accordance
with this Section, each of the parties hereto shall be discharged from all
obligations under this Deposit Agreement except for the obligations of the
Depositary to the Company and of the Company to the Depositary, any Depositary's
Agent and any Registrar, under Sections 5.03, 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 facsimile
confirmed by letter, addressed to the Company at 000 Xxxx Xxxxxx, Xxx Xxxx, Xxx
Xxxx 00000, to the attention of the Secretary, or at any other address of which
the Company shall have notified the Depositary in writing.
Any and all notices to be given to the Depositary
hereunder or under the Receipts shall be in writing and shall be
19
deemed to have been duly given if personally delivered or sent by mail or by
facsimile confirmed by letter, addressed to the Depositary at the Depositary's
Office, at 000 Xxxx 00xx Xxxxxx, Xxx Xxxx XX 00000 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 facsimile,
addressed to such recordholder at the address of such record holder as it
appears on the books of the Depositary, or if such holder shall have filed with
the Depositary a written request that notices intended for such holder be mailed
to some other address, at the address designated in such request.
Delivery of a notice sent by mail or by facsimile 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 facsimile) is deposited,
postage prepaid, in a post office letter box. The Depositary or the Company may,
however, act upon any facsimile received by it from the other or from any holder
of a Receipt, notwithstanding that such facsimile shall not subsequently be
confirmed by letter or as aforesaid.
SECTION 7.05. Depositary's Agents. The Depositary may from
time to time appoint Depositary's Agents to act in any respect for the
Depositary for the purposes of this Deposit Agreement and may at any time
appoint additional Depositary's Agents and vary or terminate the appointment of
such Depositary's Agents. The Depositary will notify the Company of any such
action.
SECTION 7.06. Holders of Receipts Are Parties. The holders of
Receipts from time to time shall be parties to this Deposit Agreement and shall
be bound by all of the terms and conditions hereof and of the Receipts by
acceptance of delivery thereof.
SECTION 7.07. Governing Law. THIS DEPOSIT AGREEMENT AND THE
RECEIPTS AND ALL RIGHTS HEREUNDER AND THEREUNDER AND PROVISIONS HEREOF AND
THEREOF SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE
STATE OF NEW YORK.
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
20
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.
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 by Receipts shall become parties hereto by and upon acceptance of them
of delivery of Receipts issued in accordance with the terms hereof.
THE BEAR XXXXXXX COMPANIES INC.
By:
-----------------------------------
Xxxxxxx X. Xxxxxxxxx
Chief Operating Officer
XXXXX XXXXXX SHAREHOLDER SERVICES L.L.C.
By: ------------------------------------
Authorized Officer
21
FORM OF FACE OF DEPOSITARY RECEIPT
EXHIBIT A
DEPOSITARY RECEIPT
FOR
DEPOSITARY SHARES,
EACH REPRESENTING A ONE-FOURTH
INTEREST IN A SHARE OF 5.49% CUMULATIVE
PREFERRED STOCK, SERIES G
($1.00 par value)
OF
THE BEAR XXXXXXX COMPANIES INC.
(INCORPORATED UNDER THE LAWS OF THE STATE OF DELAWARE)
NUMBER ___ DEPOSITARY SHARES
(EACH DEPOSITARY SHARE REPRESENTS A
ONE-FOURTH INTEREST IN A SHARE OF
5.49% CUMULATIVE PREFERRED STOCK,
Series G ($1.00 par value))
CUSIP 073902 86 8
1. ChaseMellon Shareholder Services, L.L.C., a limited
liability company duly organized and existing under the laws of the State of New
Jersey as Depositary (the "Depositary"), hereby certifies that [ ] is the
registered owner of Depositary Shares ("Depositary Shares"), each Depositary
Share representing a one-fourth interest in a share of 5.49% Cumulative
Preferred Stock, Series G, $1.00 par value (the "Preferred Stock"), of The Bear
Xxxxxxx Companies Inc., a corporation duly organized and existing under the laws
of the State of Delaware (the "Company"). Subject to the terms of the Deposit
Agreement (as defined below), each owner of a Depositary Share is entitled,
proportionately, through the Depositary, to all the rights and preferences of
the Preferred Stock relating thereto, including dividend, voting, redemption and
liquidation rights contained in the Company's Certificate of Incorporation, as
amended (the "Certificate of Incorporation"), and the certificate of
designations adopted under the authority of the Company's Board of Directors and
filed with the Secretary of State of the State of Delaware establishing the
Preferred Stock as a series of preferred stock of the Company and setting forth
the number,
A-1
terms, powers, designations, rights, preferences, qualifications, restrictions
and limitations of the Preferred Stock (the "Certificate of Designations"),
copies of which are on file at the Depositary's Office located, as of the
execution date of the Deposit Agreement, at 000 Xxxx 00xx Xxxxxx, Xxx Xxxx, XX
00000.
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 June 19, 1998 (the
"Deposit Agreement"), among the Company, the Depositary and the holders from
time to time of Receipts. The Deposit Agreement (copies of which are on file at
the Depositary's Office) sets forth the rights of holders of Receipts and the
rights and duties of the Depositary and the Company in respect of the Preferred
Stock deposited, and any and all other property and cash deposited from time to
time, thereunder. 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.
Unless otherwise expressly herein provided, all capitalized terms used herein
shall have the meanings ascribed thereto in the Deposit Agreement.
3. Redemption. Whenever the Company shall be permitted and
shall elect to redeem shares of Preferred Stock in accordance with the
provisions of the Certificate of Incorporation and the Certificate of
Designations, it shall (unless otherwise agreed in writing with the Depositary)
give the Depositary not less than 30 nor more than 60 days' notice of the date
of such proposed redemption of Preferred Stock. The Depositary shall mail notice
of such redemption and the proposed simultaneous redemption of the number of
Depositary Shares representing the Preferred Stock to be redeemed, first-class
postage prepaid, not less than 20 and not more than 50 days prior to the date
fixed for redemption of such Preferred Stock and Depositary Shares (the
"Redemption Date") to the record holders of the Receipts evidencing the
Depositary Shares to be so redeemed. Each such notice shall state: (a) the
Redemption Date; (b) 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 Depositary Shares held by such holder to be redeemed; (c) the
redemption price (which shall include full cumulative dividends thereon to the
Redemption Date); (d) the place or places where Receipts evidencing Depositary
Shares are to be surrendered for payment of the redemption price; and (e) that
dividends in respect of the Preferred Stock underlying the Depositary Shares to
be redeemed will cease to accumulate at the close of business on such Redemption
Date. In case less than all the outstanding
A-2
Depositary Shares are to be redeemed, the Depositary Shares to be so redeemed
shall be selected by lot or pro rata or by such other method as may be
determined by the Depositary 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 redeem the shares of Preferred Stock to be redeemed by it
on such date), all dividends in respect of the shares of Preferred Stock so
called for redemption shall cease to accumulate, the Depositary Shares being
redeemed from such proceeds shall be deemed no longer to be outstanding, all
rights of the holders of Receipts such Depositary Shares (except the right to
receive the redemption price) shall, to the extent of such Depositary Shares,
cease and terminate and, upon surrender in accordance with such notice of the
Receipts evidencing any such Depositary Shares (properly endorsed or assigned
for transfer, if the Depositary shall so require), such Depositary Shares shall
be redeemed by the Depositary at a redemption price per Depositary Share equal
to one-fourth of the redemption price per share paid in respect of the shares of
Preferred Stock plus all money and other property, if any, represented by such
Depositary Shares, including all amounts paid by the Company in respect of
dividends which on the Redemption Date have accumulated on the shares of
Preferred Stock to be so redeemed and have not theretofore been paid.
4. Transfer, Split-ups, Combinations. This Receipt is
transferable on the books of the Depositary upon surrender of this Receipt of
the Depositary by the holder in person or by duly authorized attorney, properly
endorsed or accompanied by a properly executed instrument of transfer, and upon
such transfer the Depositary shall execute a new Receipt to or upon the order of
the person entitled thereto, as provided in the Deposit Agreement. This Receipt
may be split into other Receipts or combined with other Receipts into one
Receipt, subject to the terms and conditions of the Deposit Agreement,
evidencing the same aggregate number of Depositary Shares as the Receipt or
Receipts surrendered.
5. Surrender of Receipts and Withdrawal of Preferred Stock.
The holder of this Receipt, if this Receipt (together with any other Receipts
surrendered by such holder) represents any number of whole shares of Preferred
Stock, may withdraw the Preferred Stock and all money and other property, if
any, represented hereby by surrendering this Receipt (and such other Receipts)
at the Depositary's Office or at such other offices as the Depositary may
designate for such withdrawals. Upon such surrender, the Depositary shall
deliver to such holder, or upon the order of such other person or persons
designated by such holder as provided in the Deposit Agreement, the number of
whole
A-3
shares of Preferred 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 Preferred Stock will not thereafter be entitled to deposit such
Preferred Stock under the Deposit Agreement or to receive Depositary Shares
therefor. If a Receipt delivered by the holder to the Depositary in connection
with such withdrawal shall evidence a number of Depositary Shares in excess of
the number of Depositary Shares representing the number of whole shares of
Preferred Stock to be so withdrawn, the Depositary shall at the same time, in
addition to such number of whole shares of Preferred Stock and such money and
other property, if any, to be so withdrawn, deliver to such holder, or (subject
to the provisions of the Deposit Agreement) upon his order, a new Receipt
evidencing such excess number of Depositary Shares. Delivery of the Preferred
Stock and money and other property being withdrawn may be made by the delivery
of such certificates, documents of title and other instruments as The Depositary
may deem appropriate, which, if required by law, shall be properly endorsed or
accompanied by proper instruments of transfer.
If the Preferred Stock and the money and other property being
withdrawn are to be delivered to a person or persons other than the record
holder of this Receipt or such other Receipts being surrendered for withdrawal
of Preferred Stock, such holder shall execute and deliver to the Depositary a
written order so directing the Depositary, and the Depositary may require that
this Receipt or such other Receipts surrendered by such holder for withdrawal of
such shares of Preferred Stock be properly endorsed in blank or accompanied by a
properly executed instrument of transfer in blank.
6. Suspension of Delivery, Transfer, etc. The transfer
or surrender of this Receipt may be suspended during any period when the
register of stockholders of the Company is closed or if any such action is
deemed necessary or advisable by the Depositary, any agent of the Depositary or
the Company at any time or from time to time because of any requirement of law
or any government or governmental body or commission, or under any provision of
the Deposit Agreement.
7. 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, such tax (including transfer taxes, if
any) or governmental charge shall be payable by the holder hereof, subject to
certain exceptions in the Deposit Agreement. Transfer of this Receipt may be
refused until such payment is made, and any dividends, interest payments or
other distributions may be withheld or all
A-4
or any part of the Preferred Stock or other property represented by this 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 this Receipt remaining liable for any deficiency.
8. Warranty by the Company. The Company has represented and
warranted that the Preferred Stock, when issued, will be validly issued, fully
paid and nonassessable.
9. Amendment. The form of the Receipts and any provisions 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 which they deem
necessary or desirable; provided, however, that no such amendment which shall
materially and adversely alter the rights of the holders of Receipts shall be
effective unless such amendment shall have been approved by the holders of at
least a majority of the Depositary Shares then outstanding. A holder of a
Receipt at the time any such amendment so becomes effective shall be deemed, by
continuing to hold such Receipt, to consent and agree to such amendment and to
be bound by the Deposit Agreement as amended thereby. In no event shall any
amendment impair the right, subject to the provisions of Sections 2.05 and 2.06
of the Deposit Agreement, of the owner of the Depositary Shares evidenced by
this Receipt to surrender this Receipt with instructions to the Depositary to
A-5
deliver to the holder the number of whole shares of the Preferred Stock and all
money and other property, if any, represented thereby, except in order to comply
with mandatory provisions of applicable law.
Dated: June 19, 1998 CHASEMELLON SHAREHOLDER SERVICES, L.L.C.
Depositary, Transfer Agent and
Registrar
By -------------------------------------
Authorized Signatory
FURTHER CONDITIONS AND AGREEMENTS FORMING PART OF THIS RECEIPT APPEAR ON THE
REVERSE SIDE.
A-6
FORM OF REVERSE OF DEPOSITARY RECEIPT
10. Charges of Depositary. The Company will pay all transfer
and other taxes and governmental charges arising solely from the existence of
the depositary arrangements and all charges and expenses of the Depositary in
connection with the initial deposit of the Preferred Stock and the initial
issuance of the Depositary Shares and any redemption of the Preferred Stock at
the option of the Company. All other transfer and other taxes and other
governmental charges shall be at the expense of holders of Depositary Shares.
11. Title to Receipts. This Receipt (and the Depositary Shares
evidenced hereby), when properly endorsed or accompanied by a properly executed
instrument of transfer, is transferable by delivery with the same effect as in
the case of a negotiable instrument; provided, however, that until transfer of a
Receipt shall be registered on the books of the Depositary, the Depositary 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 distributions of dividends or other distributions or to any notice
provided for in the Deposit Agreement, and for all other purposes.
12. Dividends and Distributions. Whenever the Depositary
receives any cash dividend or other cash distribution on the Preferred Stock,
the Depositary will, subject to the provisions of the Deposit Agreement, make
such distribution to the Receipt holders as nearly as practicable in proportion
to the number of Depositary Shares evidenced by the Receipts held by them;
provided, however, that the amount distributed will be reduced by any amounts
required to be withheld by the Company or the Depositary on account of taxes.
Other distributions received on the Preferred Stock may be distributed to
holders of Receipts as provided in the Deposit Agreement.
13. Fixing of Record Date. 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 the Preferred Stock, or whenever the Depositary shall receive
notice of (a) any meeting at which holders of Preferred Stock are entitled to
vote or of which holders of Preferred Stock are entitled to notice or (b) any
election on the part of the Company to redeem any shares of Preferred Stock, the
Depositary shall in each instance fix a record date (which shall be the record
date fixed by the Company with respect to the Preferred
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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 redemption of Preferred Stock or for any other appropriate reasons.
14. Voting Rights. Upon receipt of notice of any meeting at
which holders of Preferred 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 Preferred Stock relating to 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 such 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 request, the
maximum number of whole shares of Preferred Stock underlying the Depositary
Shares evidenced by all Receipts as to which any particular voting instructions
are received. In the absence of specific instructions from the holder of a
Receipt, the Depositary will abstain from voting (but, at its discretion, not
from appearing at any meeting with respect to such Preferred Stock unless
directed to the contrary by the holders of all the Receipts) to the extent of
the Preferred Stock underlying the Depositary Shares evidenced by such Receipt.
15. Changes Affecting Deposited Securities. Upon any
change in par or stated value, split-up, combination or any other
reclassification of the Preferred Stock or upon any recapitalization,
reorganization, merger amalgamation or consolidation or sale of all or
substantially all of the Company's assets affecting the Company or to which it
is a party, the Depositary may in its discretion with the approval of, and shall
upon the instructions of, the Company, and (in either case) in such manner as
the Depositary may deem equitable, (i) make such adjustments in (a) the fraction
of an interest in one share of Preferred Stock underlying one Depositary Share
and (b) the ratio of the redemption price per Depositary Share to the redemption
price of a share of Preferred Stock, in each case as may be necessary fully to
reflect the effect of such change in par or stated value, split-up, combination
or other
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reclassification of Preferred Stock, or such recapitalization, reorganization,
merger, amalgamation or consolidation or sale and (ii) treat any securities
which shall be received by the Depositary in exchange for or upon conversion or
in respect of the Preferred Stock as new deposited securities so received in
exchange for or upon conversion or in respect of such Preferred Stock. In any
such case, the Depositary may in its discretion, with the approval of the
Company, execute and deliver additional Receipts, or it may call for the
surrender of outstanding Receipts to be exchanged for new Receipts specifically
describing such new deposited securities. Anything to the contrary herein or in
the Deposit Agreement 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 Preferred Stock or any
such recapitalization, reorganization, merger, amalgamation, consolidation or
sale to surrender such Receipts to the Depositary with instructions to convert,
exchange or surrender the Preferred 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 Preferred Stock represented by such
Receipts was converted or for which such Preferred Stock was exchanged or
surrendered after giving effect to such transaction.
16. 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 any other governmental authority or, in the case of the Depositary, the
Depositary's Agent or any Registrar, by reason of any provision, present or
future, of the Certificate of Incorporation (including the Certificate of
Designations) or by reason of any act of God or war or other circumstance beyond
their control, the Depositary, the Depositary's Agent, any Registrar or the
Company shall be prevented or forbidden from doing or performing any act or
thing which the terms of the Deposit Agreement provide shall be done or
performed; nor shall the Depositary, any Depositary's Agent, any Registrar or
the Company incur any liability to any holder of a Receipt or the Company by
reason of nonperformance or delay, caused as aforesaid, in performance of any
act or thing which by the terms of the Deposit Agreement it is provided 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 except, in the
case of any exercise or failure to exercise discretion not caused as aforesaid,
if caused by the gross
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negligence or willful misconduct of the party charged with such exercise or
failure to exercise.
17. 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 the Deposit Agreement to holders of Receipts other than for
its gross negligence or willful misconduct. 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 Preferred Stock, the Depositary Shares or the
Receipts which in its opinion may involve it in expense or liability unless
indemnity satisfactory to it against all expense and liability be furnished as
often as may be required. Neither the Depositary nor any Depositary's Agent nor
any Registrar nor the Company shall be liable for any action or any failure to
act by it in reliance upon the written advice of legal counsel or accountants,
or information from any person presenting Preferred 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 share of Preferred Stock or for the manner or
effect of any such vote, 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 the Deposit Agreement, and no implied covenants or obligations shall be
read into the Deposit Agreement against the Depositary or any Registrar. 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.
18. Resignation and Removal of Depositary. The Depositary may
at any time (i) resign by written notice of its election to do so delivered to
the Company, such resignation to take effect upon the appointment of a successor
Depositary and its acceptance of such appointment, or (ii) 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
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Depositary and its acceptance of such appointment, all as provided in the
Deposit Agreement.
19. Termination of Deposit Agreement. The Deposit Agreement
may be terminated by the Company or the Depositary only after (i) all
outstanding Depositary Shares shall have been redeemed or (ii) there shall have
been made a final distribution in respect of the Preferred Stock in connection
with any liquidation, dissolution or winding up of the Company and such
distribution shall have been distributed to the holders of Receipts. Upon the
termination of the Deposit Agreement in accordance with this Section, each of
the parties hereto shall be discharged from all obligations thereunder except
for the obligations of the Depositary to the Company and of the Company to the
Depositary, any Depositary's Agent and any Registrar, with respect to
indemnification, charges and expenses, in either case in accordance with the
terms of the Deposit Agreement.
20. Governing Law. THIS RECEIPT AND THE DEPOSIT AGREEMENT 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.
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 authenticated, manually or, if a Registrar for the Receipts
(other than the Depositary) shall have been appointed, by facsimile signature of
a duly authorized signatory of the Depositary and, if authenticated by facsimile
signature of the Depositary, shall have been countersigned manually by such
Registrar by the signature of a duly authorized signatory.
A COPY OF THE DEPOSIT AGREEMENT AND A FULL STATEMENT OF THE
DESIGNATION, RELATIVE RIGHTS, INTERESTS, PREFERENCES AND RESTRICTIONS OF THE
PREFERRED STOCK REPRESENTED BY THIS RECEIPT AND OF EACH CLASS OF SHARES OR
SERIES THEREOF THAT THE COMPANY IS AUTHORIZED TO ISSUE WILL BE FURNISHED BY THE
COMPANY, WITHOUT CHARGE, TO EACH HOLDER OF A RECEIPT UPON WRITTEN REQUEST TO THE
SECRETARY OF THE COMPANY AT 000 XXXX XXXXXX, XXX XXXX, XXX XXXX 00000.
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FOR VALUE RECEIVED, the undersigned hereby sells,
assigns and transfers unto
PLEASE INSERT SOCIAL SECURITY
OR OTHER IDENTIFYING NUMBER OR ASSIGNEE
-------------------------------
| |
| |
-------------------------------
----------------------------------------------
Please print or typewrite name and address of assignee
the within Receipt and all rights and interests represented
thereby, and hereby irrevocably Constitute and appoints
----------------------------------------------,
attorney to transfer the same on the books of the within named Depositary, with
full power of substitution in the premises.
Dated: ------------------------ Signature ---------------------------------
ASSIGNMENT AND TRANSFER SIGNATURE LINES
NOTE: The signature to any endorsement hereon must correspond with the name as
written upon the face of this Receipt in every particular, without alteration or
enlargement or any change whatever. If the endorsement be executed by an
attorney, executor, administrator, trustee or guardian, the person executing the
endorsement must give his full title in such capacity, and proper evidence of
authority to act in such capacity, if not on file with the Depositary, must be
forwarded with this Receipt. All endorsements or assignments of Receipts must be
guaranteed by a New York Stock Exchange member firm or member of the Clearing
House of the American Stock Exchange Clearing Corporation or by a bank or trust
company having an office or Correspondent in The City of New York.
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