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EXHIBIT 4.4
DEPOSIT AGREEMENT
DEPOSIT AGREEMENT, dated as of November ____, 1997, among NATIONAL
ENERGY GROUP, INC., a Delaware corporation (the "Company"), _____________, a
___________ trust company, as depositary (the "Depositary"), and all holders
from time to time of Depositary Receipts (the "Receipts") issued hereunder.
WHEREAS, it is desired to provide, as hereinafter set forth in this
Deposit Agreement, for the deposit of shares of ____% Convertible Preferred
Stock, Series F, par value $1.00 per share (the "Series F Preferred Stock") of
the Company with the Depositary for the purposes set forth in this Deposit
Agreement and for the issuance hereunder of the Receipts evidencing Depositary
Shares, each representing a 1/10 interest in a share of such Series F Preferred
Stock so deposited; and
WHEREAS, the Receipts are to be substantially in the form of Exhibit A
annexed to this Deposit Agreement, with appropriate insertions, modifications
and omissions, as hereinafter provided in this Deposit Agreement;
NOW, THEREFORE, in consideration of the premises contained herein, it
is agreed by and among the parties hereto as follows:
ARTICLE I
DEFINITIONS
The following definitions shall apply to the respective terms used in this
Deposit Agreement and the Receipts:
SECTION 1.1 The term "Accredited Investor" shall have the meaning given
that term in Rule 501(a) of the rules and regulations under the Securities Act.
SECTION 1.2 The term "Affiliate" shall mean, with respect to any
person, any person that, directly or indirectly, controls, is controlled by or
is under common control with such person in question. For the purposes of this
definition, "control" (including, with correlative meanings, the terms
"controlled by" and "under common control with") shall mean the possession,
directly or indirectly, of the power to direct or cause the direction of the
management and policies of such person, whether through the ownership of voting
securities or by contract or otherwise.
SECTION 1.3 The term "Business Day" shall mean any day other than
Saturday, Sunday or a day on which banking institutions are obligated or
authorized to be closed in New York, New York.
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SECTION 1.4 The term "Certificate of Designations" shall mean the
Certificate of Designations adopted by the Board of Directors of the Company or
a duly authorized committee thereof establishing and setting forth the rights,
preferences, privileges and limitations of the Series F Preferred Stock.
SECTION 1.5 The term "Certificate of Incorporation" shall mean the
Certificate of Incorporation, as amended from time to time, of the Company.
SECTION 1.6 The term "Certificate of Transfer" shall mean the
instrument of transfer on the reverse of the Certificated Receipt.
SECTION 1.7 The term "Certificated Receipt" shall have the meaning
assigned to such term in Section 2.3.
SECTION 1.8 The term "Company" shall mean National Energy Group, Inc.,
a Delaware corporation having its principal office at 0000 Xxxxxxxxxx Xxxxxx,
Xxxxx 0000, Xxxxxx, Xxxxx 00000, and its successors.
SECTION 1.9 The term "Corporate Office" shall mean the corporate office
of the Depositary at which at any particular time its depositary receipt
business shall be administered.
SECTION 1.10 The term "Deposit Agreement" shall mean this agreement, as
the same may be amended, modified or supplemented from time to time.
SECTION 1.11 The term "Depositary" shall mean ______________, a
___________ trust company, having its principal office at ________________, and
any successor as Depositary hereunder.
SECTION 1.12 The term "Depositary Share" shall mean a 1/10 interest in
a share of the Series F Preferred Stock deposited with the Depositary hereunder
and the same proportional interest in any and all other property received by the
Depositary in respect of such share of Series F Preferred Stock and held under
this Deposit Agreement, all as evidenced by the Receipts executed and delivered
hereunder. Subject to the terms of this Deposit Agreement, each holder of a
Depositary Share is entitled, proportionately, to all the rights, preferences,
privileges and obligations of the Series F Preferred Stock represented by such
Depositary Share, including those set forth in the dividend, voting, conversion,
liquidation and redemption provisions of the Certificate of Designations, and to
the benefits of all obligations of the Company under the Certificate of
Designations.
SECTION 1.13 The term "Depositary's Agent" shall mean an agent
appointed by the Depositary as provided, and for the purposes specified, in
Section 7.5.
SECTION 1.14 The term "Exchange Act" shall mean the Securities Exchange
Act of 1934, as amended.
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SECTION 1.15 The term "Global Receipt" shall have the meaning assigned
to such term in Section 2.3.
SECTION 1.16 The term "Qualified Institutional Buyer" shall have the
meaning given that term in Rule 144A in the rules and regulations under the
Securities Act.
SECTION 1.17 The term "Receipt" shall mean a Depositary Receipt issued
hereunder to evidence one or more Depositary Shares, whether in definitive or
temporary form.
SECTION 1.18 The term "record holder" as applied to a Receipt shall
mean the person in whose name a Receipt is registered on the books maintained by
the Depositary for such purpose.
SECTION 1.19 The term "Registrar" shall mean any bank or trust company
appointed to register Receipts as herein provided.
SECTION 1.20 The term "SEC" shall mean the Securities and Exchange
Commission.
SECTION 1.21 The term "Securities Act" shall mean the Securities Act of
1933, as amended.
SECTION 1.22 The term "Series F Preferred Stock" shall mean shares of
the Company's ____% Series F Convertible Preferred Stock, par value $1.00 per
share.
ARTICLE II
FORM OF RECEIPTS, DEPOSIT OF SERIES F
PREFERRED STOCK, EXECUTION AND DELIVERY,
TRANSFER, SURRENDER AND REDEMPTION OF RECEIPTS
SECTION 2.1 FORM AND TRANSFERABILITY OF RECEIPTS. Definitive Receipts
shall be engraved or printed or lithographed with steel-engraved borders and
underlying tint and shall be substantially in the form set forth in Exhibit A
annexed to this Deposit Agreement, with appropriate insertions, modifications
and omissions, as hereinafter provided. Pending the preparation of definitive
Receipts, the Depositary shall, upon written order in accordance with Section
2.2, 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, modifications and omissions as hereinafter provided. The Company
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 the Corporate Office, without charge to the holder.
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Upon surrender for cancellation of any one or more temporary Receipts, the
Depositary shall execute and deliver in exchange therefor definitive Receipts
representing the same number of Depositary Shares as represented by the
surrendered temporary Receipt or Receipts. Such exchange shall be made at the
Company's expense and without any charge to the holder thereof, provided,
however, that the Company will not bear the expense incurred by the holder for
transferring the temporary Receipts to the Corporate Office for exchange. Until
so exchanged, the temporary Receipts shall in all respects be entitled to the
same benefits under this Deposit Agreement 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 (other than the Depositary) shall have countersigned the Receipts by
manual signature of a duly authorized signatory of the Registrar. No Receipt
shall be entitled to any benefits under this Deposit Agreement or be valid or
obligatory for any purpose unless it shall have been executed as provided in the
preceding sentence. The Depositary shall record on its books each Receipt
executed as provided above and delivered as hereinafter provided.
Receipts shall be in denominations of any number of whole Depositary
Shares. All Receipts shall be dated the date of their execution.
Receipts may be endorsed with or have incorporated in the text thereof,
such legends or recitals or changes not inconsistent with the provisions of this
Deposit Agreement as may be required by the Depositary or required to comply
with any applicable law or regulation or with the rules and regulations of any
securities exchange upon which the Series F Preferred 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 by reason of the date of issuance of the Series
F Preferred Stock or otherwise.
Title to any Receipt (and to the Depositary Shares evidenced by such
Receipt) that is properly endorsed or accompanied by a properly executed
instrument of transfer or endorsement, shall be transferable by delivery with
the same effect as in the case of a negotiable instrument; provided, however,
that until a Receipt shall be transferred on the books of the Depositary as
provided in Sections 2.5 and 2.6, 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 dividend
distributions or other distributions or to any notice provided for in this
Deposit Agreement and for all other purposes.
SECTION 2.2 DEPOSIT OF SERIES F PREFERRED STOCK; EXECUTION AND DELIVERY
OF RECEIPTS IN RESPECT THEREOF. Subject to the terms and conditions of this
Deposit Agreement, the Depositary, upon receipt of written instructions from the
Company or the holder to which such Series F Preferred Stock was issued, and a
certificate or certificates for the Series F Preferred Stock to be deposited
under this Deposit Agreement in accordance with the provisions of this Section
2.2, shall execute
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and deliver a Receipt or Receipts for the number of Depositary Shares
representing such deposited Series F Preferred Stock to the person or persons
stated in such instructions.
Subject to the terms and conditions of this Deposit Agreement, any
holder of Series F Preferred Stock may deposit such Series F Preferred Stock
(including any fractional share of Series F Preferred Stock) under this Deposit
Agreement by delivery to the Depositary of a certificate or certificates for the
Series F Preferred Stock to be deposited, properly endorsed or accompanied, if
required by the Depositary, by a properly executed instrument of transfer or
endorsement in form satisfactory to the Depositary, together with (i) all such
certifications as may be required by the Depositary in accordance with the
provisions of this Deposit Agreement and (ii) a written order directing the
Depositary to execute and deliver to or upon the written order of the person or
persons stated in such order a Receipt or Receipts for the number of Depositary
Shares representing such deposited Series F Preferred Stock.
If required by the Depositary, Series F Preferred Stock presented for
deposit at any time, whether or not the register of stockholders of the Company
is closed, shall also be accompanied by an agreement or assignment, or other
instrument satisfactory to the Depositary, that will provide for the prompt
transfer to the Depositary or its nominee of any dividend or right to subscribe
for additional Series F Preferred Stock or to receive other property that any
person in whose name the Series F Preferred Stock is or has been registered may
thereafter receive upon or in respect of such deposited Series F Preferred
Stock, or in lieu thereof such agreement of indemnity or other agreement as
shall be satisfactory to the Depositary.
Upon receipt by the Depositary of a certificate or certificates for
Series F Preferred Stock to be deposited hereunder, together with the other
documents specified above, the Depositary shall, as soon as transfer and
registration can be accomplished, present such certificate or certificates to
the registrar and transfer agent of the Series F Preferred Stock for transfer
and registration in the name of the Depositary or its nominee of the Series F
Preferred Stock being deposited. Deposited Series F Preferred Stock shall be
held by the Depositary in an account to be established by the Depositary at the
Corporate Office or at such other office as the Depositary shall determine.
Upon receipt by the Depositary of a certificate or certificates for
Series F Preferred Stock to be deposited hereunder, together with the other
documents specified above, the Depositary, subject to the terms and conditions
of this Deposit Agreement, shall execute and deliver to or upon the order of the
person or persons named in the written order delivered to the Depositary
referred to in the first or second paragraph of this Section 2.2 a Receipt or
Receipts for the number of whole Depositary Shares representing the Series F
Preferred Stock so deposited and registered in such name or names as may be
requested by such person or persons. The Depositary shall execute and deliver
such Receipt or Receipts at the Corporate
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Office, except that, at the request, risk and expense of any person requesting
such delivery, such delivery may be made at such other place which may be
designated by such person. In each case, delivery will be made only upon payment
to the Depositary of all taxes and other governmental charges and any fees
payable in connection with such deposit and the transfer of the deposited Series
F Preferred Stock. The Company shall deliver to the Depositary from time to time
such quantities of Receipts as the Depositary may request to enable the
Depositary to perform its obligations under this Deposit Agreement.
SECTION 2.3 PROCEDURES FOR GLOBAL RECEIPTS. The Receipts may be
represented by (i) one or more fully registered Receipts in global form ("Global
Receipts") or (ii) Receipts registered in the name of individual holders or
their nominees ("Certificated Receipts").
If Receipts are to be represented by one or more Global Receipts, the
Depositary shall execute and deliver such Global Receipt which (i) shall
represent, and shall be denominated in an amount equal to, the aggregate number
of Receipts to be represented by such Global Receipt, (ii) shall be registered
in the name of _________________ ("____________") or in the name of
___________________ or of another nominee, as nominee of ____________________,
(iii) shall be delivered to ____________________ or pursuant to
________________'s instructions and (iv) shall bear a legend substantially to
the following effect:
Unless and until it is exchanged in whole or in part for
Receipts in definitive form, this Receipt may not be transferred except
as a whole by _________________ (_______________) ("___________"), to a
nominee of ________________ or by a nominee of ______________ to
______________ or another nominee of _____________ or by _____________
or any such nominee to a successor depositary or a nominee of such
successor depositary. Unless this certificate is presented by an
authorized representative of _________________ to the issuer or its
agent for registration of transfer, exchange, exercise or payment, and
any certificate issued is registered in the name of ________________ or
such other name as requested by an authorized representative of
___________ (and any payment is made to ________________ or such other
entity as is requested by an authorized representative of ___________),
ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR
TO ANY PERSON IS WRONGFUL inasmuch as the registered owner hereof,
_______________, has an interest herein.
A Global Receipt may be transferred, in whole but not in part, only to
a nominee of ___________ for such Global Receipt, or to __________, or to a
successor depositary selected or approved by the Company, or to a nominee of
such successor depositary.
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If at any time __________ notifies the Company that it is unwilling or
unable to continue as depositary for such Global Receipt or if at any time
__________ shall no longer be eligible or in good standing under the Exchange
Act or other applicable statute or regulation, the Company shall appoint a
successor depositary with respect to such Global Receipt. If a successor
depositary for such Global Receipt is not appointed by the Company within 90
days after the Company receives such notice or becomes aware of such
ineligibility, the Depositary will execute and deliver Certificated Receipts in
exchange for such Global Receipt, in an aggregate amount equal to the number of
Depositary Receipts represented by the Global Receipt exchanged for such
Certificated Receipts.
The Company may at any time and in its sole discretion determine that
the Receipts or any portion thereof issued or issuable in the form of one or
more Global Receipts shall no longer be represented by such Global Receipt or
Receipts. In such event the Depositary will execute at the Corporate Office and
deliver Certificated Receipts in exchange in whole or in part for such Global
Receipt or Receipts in an aggregate amount equal to the number of Receipts
represented by such Global Receipt or Receipts or portion thereof exchanged for
such Certificated Receipts.
In any exchange provided for in either of the two preceding paragraphs,
the Depositary will execute and deliver Certificated Receipts. Upon the exchange
of the entire number of Receipts represented by a Global Receipt, such Global
Receipt shall be canceled by ___________. Except as provided in the preceding
paragraph, Certificated Receipts issued in exchange for a Global Receipt
pursuant to this Section shall be registered in such names and in such amounts
as _______________ shall instruct the Depositary. The Depositary shall deliver
such Certificated Receipts to the holders of Depositary Receipts in whose names
such Certificated Receipts are so registered.
SECTION 2.4 OPTIONAL REDEMPTION OF SERIES F PREFERRED STOCK FOR CASH.
Whenever the Company shall elect to redeem shares of Series F Preferred Stock in
accordance with the Certificate of Designations it shall (unless otherwise
agreed in writing with the Depositary) give the Depositary in its capacity as
Depositary notice of the date of such proposed redemption of the Series F
Preferred Stock, which notice shall be given not less than 5 Business Days prior
to the date the Depositary is to mail notice of the redemption to the record
holders of Receipts, in the case of a redemption of all outstanding Depositary
Shares, and not less than 10 days prior to the date the Depositary is to mail
notice of the redemption to the record holders of Receipts evidencing the
Depositary Shares to be redeemed, in the case of a partial redemption of
outstanding Depositary Shares, and be accompanied by a certificate from the
Company stating that such redemption of the Series F Preferred Stock is in
accordance with the provisions of the Certificate of Designations. Such notice
shall be in addition to the notice required to be given by the Company for
redemption pursuant to the Certificate of Designations. On the date of any such
redemption of Series F Preferred Stock, provided that the Company shall then
have deposited with the Depositary the cash required pursuant to the Certificate
of Designations to be
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delivered in exchange for the Series F Preferred Stock to be redeemed, the
Depositary shall redeem the number of Depositary Shares representing such
redeemed Series F Preferred Stock. The Depositary shall mail, first class
postage prepaid, notice of the redemption of Series F Preferred Stock and the
proposed simultaneous redemption of the Depositary Shares representing the
Series F Preferred Stock to be redeemed, not less than 30 and not more than 60
days prior to the date fixed for redemption of such Series F Preferred 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
redemption as to other holders. Each such notice shall state: (i) the Redemption
Date; (ii) the number of Depositary Shares to be redeemed and, if less than all
the Depositary Shares held by any such holder are to be redeemed, the number of
such Depositary Shares held by such holder to be so redeemed; (iii) the
redemption price (as set forth in the Certificate of Designations); (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 shares of Series F Preferred Stock represented by the Depositary
Shares to be redeemed will cease to accumulate on such Redemption Date. Notices
shall be mailed by the Company pursuant to the Certificate of Designations. In
case fewer than all the outstanding Depositary Shares are to be redeemed, the
Depositary Shares to be redeemed shall be selected by lot or pro rata (as nearly
as may be) or by any other equitable method determined by the Depositary to be
consistent with the method determined by the Board of Directors of the Company
with respect to the Series F Preferred Stock.
Notice having been mailed as aforesaid, from and after the Redemption
Date (unless the Company shall have failed to redeem the shares of Series F
Preferred Stock to be redeemed by it, as set forth in the Company's notice
provided for in the preceding paragraph), the Depositary Shares called for
redemption shall be deemed no longer to be outstanding and all rights of the
holders of Receipts evidencing such Depositary Shares (except the right to
receive the redemption consideration) shall, to the extent of such Depositary
Shares, cease and terminate. Upon surrender in accordance with said notice of
the Receipts evidencing such Depositary Shares (properly endorsed or assigned
for transfer, as the Depositary shall so require), such Depositary Shares shall
be redeemed at a rate per Depositary Share equal to 1/10 of the amount of cash
delivered upon redemption of a share of Series F Preferred Stock pursuant to the
Certificate of Designations.
If fewer 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 amount of cash for the
Depositary Shares called for redemption, a new Receipt evidencing the Depositary
Shares evidenced by such prior Receipt and not called for redemption.
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SECTION 2.5 TRANSFER OF RECEIPTS. Subject to the terms and conditions
of this Deposit Agreement, the Depositary shall make transfers on its books from
time to time of Receipts upon any surrender thereof at the Corporate Office or
such other office as the Depositary may designate by the holder in person or by
a duly authorized attorney, properly endorsed or accompanied by a properly
executed instrument of transfer or endorsement, or other instrument satisfactory
to the Depositary, together with evidence of the payment of any transfer taxes
as may be required by law. Upon such surrender, the Depositary shall execute a
new Receipt or Receipts and deliver the same to or upon the order of the person
or persons entitled thereto evidencing the same aggregate number of Depositary
Shares evidenced by the Receipt or Receipts surrendered.
SECTION 2.6 COMBINATIONS AND SPLIT-UPS OF RECEIPTS. Upon surrender of a
Receipt or Receipts at the Corporate Office or such other office as the
Depositary may designate for the purpose of effecting a split-up or combination
of Receipts, subject to the terms and conditions of this Deposit Agreement, the
Depositary shall issue a new Receipt or Receipts in the authorized denominations
requested evidencing the same aggregate number of Depositary Shares evidenced by
the Receipt or Receipts surrendered; provided, however, that the Depositary
shall not issue any Receipt evidencing a fractional Depositary Share.
SECTION 2.7 SURRENDER OF RECEIPTS AND WITHDRAWAL OF SERIES F PREFERRED
STOCK. Any holder of a Receipt or Receipts may withdraw any or all of the Series
F Preferred Stock (but only in whole shares of Series F Preferred Stock)
represented by the Depositary Shares evidenced by such Receipts and all money
and other property, if any, represented by such Depositary Shares by
surrendering such Receipt or Receipts at the Corporate Office or at such other
office as the Depositary may designate for such withdrawals. After such
surrender, without unreasonable delay, the Depositary shall deliver to such
holder, or to the person or persons designated by such holder as hereinafter
provided, certificates for the whole number of shares of Series F Preferred
Stock and all such money and other property, if any, represented by the
Depositary Shares evidenced by the Receipt or Receipts so surrendered for
withdrawal. If the Receipt or Receipts 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 whole Depositary Shares representing the number of
shares of Series F Preferred Stock to be withdrawn, the Depositary shall at the
same time, in addition to such whole number of shares of Series F Preferred
Stock and such money and other property, if any, to be withdrawn, deliver to
such holder, or (subject to Section 2.5) upon his order, a new Receipt or
Receipts evidencing such excess number of whole Depositary Shares. Delivery of
the Series F Preferred Stock and such 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, as required by the
Depositary, shall be properly endorsed or accompanied by proper instruments of
transfer.
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If the Series F 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 the Receipt or Receipts being surrendered for withdrawal of Series F
Preferred 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 Series F Preferred Stock be properly endorsed in blank or accompanied by a
properly executed instrument of transfer or endorsement in blank.
The Depositary shall deliver the Series F Preferred Stock and the money
and other property, if any, represented by the Depositary Shares evidenced by
Receipts surrendered for withdrawal at the Corporate Office, except that, at the
request, risk and expense of the holder surrendering such Receipt or Receipts
and for the account of the holder thereof, such delivery may be made at such
other place as may be designated by such holder.
SECTION 2.8 LIMITATIONS ON EXECUTION AND DELIVERY, TRANSFER, SPLIT-UP,
COMBINATION, REDEMPTION, SURRENDER AND EXCHANGE OF RECEIPTS. As a condition
precedent to the execution and delivery, transfer, split-up, combination,
redemption, surrender or exchange of any Receipt or the exercise of any
conversion right referred to in Section 2.11, the Depositary, any of the
Depositary's Agents or the Company may require any or all of the following: (i)
payment to it of a sum sufficient for the payment (or, in the event that the
Depositary or the Company shall have made such payment, the reimbursement to it)
of any tax (including applicable interest, penalties or additions) or other
governmental charge with respect thereto (including any such tax or charge with
respect to the Series F Preferred Stock being deposited or withdrawn or with
respect to the Common Stock (as defined in Section 2.11) or other securities or
property of the Company being issued upon conversion or redemption); (ii) the
production of proof satisfactory to it as to the identity and genuineness of any
signature; and (iii) compliance with such regulations, if any, as the Depositary
or the Company may establish consistent with the provisions of this Deposit
Agreement.
The deposit of Series F Preferred Stock may be refused, the delivery of
Receipts against Series F Preferred Stock may be suspended, the transfer of
Receipts may be refused, and the transfer, split-up, combination, surrender or
exchange of outstanding Receipts may be suspended (i) during 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, under any provision
of this Deposit Agreement, or for any other reason.
SECTION 2.9 LOST RECEIPTS, ETC. In case any Receipt shall be mutilated
or destroyed or lost or stolen, the Depositary in its discretion may execute and
deliver a Receipt of like form and tenor in exchange and substitution for such
mutilated
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Receipt or in lieu of and in substitution for such destroyed, lost or stolen
Receipt; provided that the holder thereof provides the Depositary with (i)
evidence satisfactory to the Depositary of such destruction, loss or theft of
such Receipt, of the authenticity thereof and of his ownership thereof, (ii)
reasonable indemnification satisfactory to the Depositary and (iii) payment of
any expense (including fees, charges and expenses of the Depositary) in
connection with such execution and delivery.
SECTION 2.10 CANCELLATION AND DESTRUCTION OF SURRENDERED RECEIPTS. All
Receipts surrendered to the Depositary or any Depositary's Agent shall be
cancelled by the Depositary and returned to the Company. Except as prohibited by
applicable law or regulation the Company may destroy such Receipts so canceled.
SECTION 2.11 OPTIONAL CONVERSION OF SERIES F PREFERRED STOCK INTO
COMMON STOCK. At any time prior to the redemption of shares of Series F
Preferred Stock as provided in the Certificate of Designations, Receipts may be
surrendered with written instructions to the Depositary to instruct the Company
to cause the conversion of any specified number of whole shares of Series F
Preferred Stock represented by whole Depositary Shares evidenced by such
Receipts into whole shares of common stock, par value $0.01 per share, of the
Company ("Common Stock"), and cash for any fractional share amount at the
conversion price then in effect for the Series F Preferred Stock pursuant to the
Certificate of Designations, as such conversion price may be adjusted by the
Company from time to time as provided in the Certificate of Designations.
Subject to the terms and conditions of this Deposit Agreement and the
Certificate of Designations, a holder of a Receipt or Receipts evidencing
Depositary Shares representing whole or fractional shares of Series F Preferred
Stock may surrender such Receipt or Receipts at the Corporate Office or at such
office or to such Depositary's Agents as the Depositary may designate for such
purpose, together with a notice of conversion duly completed and executed,
thereby directing the Depositary to instruct the Company to cause the conversion
of the number of whole shares of underlying Series F Preferred Stock specified
in such notice of conversion into shares of Common Stock, and an assignment of
such Receipt or Receipts to the Company or in blank, duly completed and
executed. To the extent that a holder delivers to the Depositary for conversion
a Receipt or Receipts which in the aggregate are convertible into less than one
whole share of Common Stock, the holder shall receive payment in cash in lieu of
such fractional share of Common Stock otherwise issuable. If more than one
Receipt shall be delivered for conversion at one time by the same holder, the
number of whole shares of Common Stock issuable upon conversion thereof shall be
computed on the basis of the aggregate number of Depositary Shares represented
by the Receipts so delivered.
Upon receipt by the Depositary of a Receipt or Receipts, together with
notice of conversion, duly completed and executed, directing the Depositary to
instruct the Company to cause the conversion of a specified number of shares of
Series F Preferred Stock, and an assignment of such Receipt or Receipts to the
Company or in blank, duly completed and executed, the Depositary shall instruct
the Company (i) to cause the conversion of the number of whole shares of Series
F Preferred Stock
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represented by the Depositary Shares evidenced by the Receipts so surrendered
for conversion as specified in the written notice to the Depositary and (ii) to
cause the delivery to the holders of such Receipts of a certificate or
certificates evidencing the number of whole shares of Common Stock and the
amount of money, if any, to be delivered to the holders of Receipts surrendered
for conversion in lieu of fractional shares of Common Stock otherwise issuable.
The Company shall as promptly as practicable after receipt thereof cause the
delivery of (i) a certificate or certificates evidencing the number of whole
shares of Common Stock into which the Series F Preferred Stock represented by
the Depositary Shares evidenced by such Receipt or Receipts has been converted,
and (ii) any money or other property to which the holder is entitled by reason
of such conversion. Upon such conversion, the Depositary (i) shall deliver to
the holder a Receipt evidencing the number of Depositary Shares evidenced by the
surrendered Receipt in excess of the number of Depositary Shares evidenced by
such Receipt that has been so converted, (ii) shall cancel the Depositary Shares
evidenced by Receipts surrendered for conversion and (iii) shall deliver to the
Company or its transfer agent for the Series F Preferred Stock for cancellation
the shares of Series F Preferred Stock represented by the Depositary Shares
evidenced by the Receipts so surrendered and so converted. Upon the delivery of
the shares of Series F Preferred Stock to be canceled due to such conversion by
the Depositary to the Company, the Company shall deliver to the Depositary a
certificate or certificates evidencing the number of shares of Series F
Preferred Stock, if any, that equals the excess of the number of shares of
Series F Preferred Stock evidenced by the surrendered certificate over the
number of shares of Preferred Stock evidenced by that certificate that have been
so converted.
If Series F Preferred Stock shall be called by the Company for
redemption, the Depositary Shares representing such stock may be converted into
Common Stock as provided in this Deposit Agreement until, but not after, the
close of business on the day preceding the Redemption Date, unless the Company
shall fail to deposit with the Depositary the amount of cash required to redeem
the Series F Preferred Stock held by the Depositary, in which case the
Depositary Shares representing such Series F Preferred Stock may continue to be
converted into Common Stock until, but not after, the close of business on the
date on which the Company deposits with the Depositary such amount of cash as is
required by the Certificate of Designations to make full payment of the amounts
payable upon such redemption.
The record holder of Depositary Shares on any dividend payment record
date established by the Depositary shall be entitled to receive the dividend
payable with respect to such Depositary Shares on the corresponding dividend
payment date notwithstanding the conversion subsequent to such record date of
the shares of Series F Preferred Stock to which such Depositary Shares relate.
However, any Receipts surrendered with instructions to the Depositary for
conversion of the underlying Series F Preferred Stock during the period from the
close of business on a dividend payment record date for any dividend payment
date, through the close of business on the day next preceding such dividend
payment date shall (unless such underlying Series F Preferred Stock shall have
been called for redemption on a Redemption Date
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in such period) be accompanied by payment of an amount equal to the dividend
payable on the Depositary Shares evidenced by the Receipts surrendered for
conversion, on such dividend payment date.
Upon the conversion of any share of Series F Preferred Stock for which
a request for conversion has been made by the holder of Depositary Shares
representing such share, all dividends in respect of such Depositary Shares
shall cease to accrue, such Depositary Shares shall be deemed no longer
outstanding, all rights of the holder of the Receipt with respect to such
Depositary Shares (except the right to receive the Common Stock, any cash
payable with respect to any fractional shares of Common Stock as provided herein
and any cash payable on account of accrued dividends as provided herein and any
Receipts evidencing Depositary Shares not so converted) shall terminate, and the
Receipt evidencing such Depositary Shares shall be cancelled in accordance with
Section 2.11 hereof.
No fractional shares of Common Stock shall be issuable upon conversion
of Series F Preferred Stock underlying the Depositary Shares. If any holder of
Receipts surrendered with instructions to the Depositary for conversion of the
underlying Series F Preferred Stock would be entitled to a fractional share of
Common Stock upon such conversion, the Company shall cause to be delivered to
such holder an amount in cash for such fractional share as provided in the
Certificate of Designations.
SECTION 2.12 CONVERSION UPON A CHANGE OF CONTROL. Upon the Depositary's
or a Depositary's Agent's receipt from the Company of a notice that special
conversion rights have been triggered as a result of a Change of Control (as
such terms are defined in the Certificate of Designations), the Depositary shall
mail notice of such event (the "Special Conversion Notice") to all holders of
Receipts and Stockholders, at their respective addresses as they appear on the
records of the Depositary, first class postage prepaid, within 30 days after the
occurrence of such Change of Control. Neither failure to mail any Special
Conversion Notice to any holder of Receipts or Stockholder nor any defect in any
Special Conversion Notice shall affect the sufficiency of the special conversion
proceedings as to other holders of receipts and Stockholders. The Special
Conversion Notice shall state: (i) the event constituting the Change of Control
and that such event entitles the holders of the shares of Series F Preferred
Stock or of Depositary Shares representing shares of Series F Preferred Stock to
a special conversion right; (ii) the Special Conversion Price (as defined in the
Certificate of Designations), as determined by the Company; (iii) the Conversion
Price (as defined in the Certificate of Designations) then in effect with
respect to the Series F Preferred Stock, as determined by the Company; (iv) the
name and address of the paying agent and conversion agent; (v) that the
Stockholders who elect to convert their shares of Preferred Stock and the
holders of Receipts who elect to convert the shares of Series F Preferred Stock
represented by their Depositary Shares must satisfy the procedures set forth in
the Certificate of Designations, along with a description of applicable
procedures, and that they must exercise their conversion right, if at all,
within the 45- day period after the mailing
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of the Special Conversion Notice; (vi) the conversion date upon exercise of the
special conversion right (the "Special Conversion Date," which shall be 45 days
after the mailing of the Special Conversion Notice); (vii) that the exercise of
the special conversion right is revocable by the Stockholder or holder of
Receipts at any time prior to the conversion date by notice of withdrawal to the
conversion agent and that no dividends on shares of the Series F Preferred Stock
(or portions thereof) tendered for conversion will accrue from and after the
conversion date; (viii) the extent to which the Company has elected to pay cash
(specifying the amount thereof per share of Series F Preferred Stock and per
Depositary Share) in respect of converted shares of Preferred Stock; and (ix)
all information required by applicable securities laws.
Upon the Special Conversion Date, the Depositary shall determine each
holder of Receipts (an "Electing Holder") from whom the Depositary or a
Depositary's Agent has received a written notice of such holder of Receipt's
election, pursuant to the special conversion right, to convert all whole shares
of the Series F Preferred Stock represented by such holder's Depositary Shares
into Common Stock, along with delivery to the Depositary of such holder's
Receipts evidencing such Depositary Shares and of a proper assignment of such
Receipts to the Company or in blank. Provided that the Company shall then have
provided the Depositary the number of shares of Common Stock and/or any cash or
other property necessary to effect the special conversion, the Depositary shall,
upon the Special Conversion Date, (i) cancel each Electing Holder's Receipts,
(ii) deliver to each Electing Holder a certificate for any whole shares of
Common Stock into which that Electing Holder's Preferred Stock is converted,
pursuant to the special conversion rate as calculated by the Company in
accordance with the Certificate of Designations, (iii) deliver to each Electing
Holder any and all money and other property, if any, represented by that
Electing Holder's Depositary Shares, including all amounts, if any, paid by the
Company in respect of dividends which on the date of conversion have accrued on
the shares of Series F Preferred Stock to be so converted and have not
theretofore been paid, and (iv) cancel (or, if the Depositary is not the
transfer agent for Series F Preferred Stock, deliver for cancellation) that
number of shares of Series F Preferred Stock held by the Depositary which are
represented by the aggregate of all Depositary Shares so converted.
After the effective date of such conversion of any Depositary Shares,
(i) all dividends in respect of the shares of Series F Preferred Stock
represented by such Depositary Shares shall cease to accrue, (ii) the Depositary
Shares representing the shares of Series F Preferred Stock so converted shall be
deemed no longer to be outstanding, and (iii) all rights of the holders of
Receipts evidencing such Depositary Shares (except the right to receive any
shares of Common Stock, money, or other property to which such holders were
entitled upon such conversion) shall, to the extent of such Depositary Shares,
cease and terminate. No fractional shares of the Series F Preferred Stock may be
converted. The foregoing shall further be subject to the terms and conditions of
the Certificate of Incorporation and Certificate of Designations.
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ARTICLE III
CERTAIN OBLIGATIONS OF HOLDERS
OF RECEIPTS AND THE COMPANY
SECTION 3.1 FILING PROOFS, CERTIFICATES AND OTHER INFORMATION. Any
person presenting Series F Preferred Stock for deposit or any holder of a
Receipt may be required from time to time to file such proof of residence or
other information, to execute such certificates and to make such representations
and warranties as the Depositary or the Company may reasonably deem necessary or
proper. The Depositary or the Company may withhold or delay the delivery of any
Receipt, the transfer, redemption or exchange of any Receipt, the withdrawal of
the Series F Preferred Stock represented by the Depositary Shares evidenced by
any Receipt, the distribution of any dividend or other distribution, the sale of
any rights or of the proceeds thereof, the exercise of any conversion right
referred to in Sections 2.11 and 2.12 or the delivery of any Common Stock upon
such conversion until such proof or other information is filed, such
certificates are executed or such representations and warranties are made.
SECTION 3.2 PAYMENT OF TAXES OR OTHER GOVERNMENTAL CHARGES. If any tax
(including applicable interest, penalties or additions) or other governmental
charge shall become payable by or on behalf of the Depositary with respect to
any Receipt, the Depositary Shares evidenced by such Receipt, the Series F
Preferred Stock (or any fractional interest therein) represented by such
Depositary Shares, the exercise of any conversion right referred to in Sections
2.11 and 2.12 or any transaction referred to in Section 4.6 with respect to a
Receipt or the Series F Preferred Stock represented by such Receipt, such tax
(including transfer, issuance or acquisition taxes, if any) or governmental
charge shall be payable by the holder of such Receipt. Until such payment is
made, transfer of any Receipt or any withdrawal of the Series F Preferred Stock
or money or other property, if any, represented by the Depositary Shares
evidenced by such Receipt may be refused, any dividend or other distribution may
be withheld, conversion rights may be refused and any part or all of the Series
F Preferred Stock or other property represented by the Depositary Shares
evidenced by such Receipt may be sold for the account of the holder thereof
(after attempting by reasonable means to notify such holder prior to such sale).
Any dividend or other distribution so withheld and the proceeds of any such sale
may be applied to any payment of such tax or other governmental charge, the
holder of such Receipt remaining liable for any deficiency. In the event the
Depositary is required to pay any such amounts, the Company shall reimburse the
Depositary for payment thereof upon the request of the Depositary and the
Depositary shall, upon the Company's request and as instructed by the Company,
pursue its rights against such holder at the Company's expense.
SECTION 3.3 REPRESENTATIONS AND WARRANTIES AS TO SERIES F PREFERRED
STOCK. Each person (including, without limitation, the Company) depositing
Series F Preferred Stock under this Deposit Agreement shall be deemed to thereby
represent
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and warrant that such Series F Preferred Stock and each certificate therefor are
valid, fully paid and nonassessable shares and that the person making such
deposit is duly authorized to do so. Such representations and warranties shall
survive the deposit of the shares of Series F Preferred Stock and the issuance
of Receipts.
ARTICLE IV
DIVIDENDS AND DISTRIBUTIONS AND THE
SERIES F PREFERRED STOCK NOTICES
SECTION 4.1 CASH DISTRIBUTIONS. Whenever the Depositary shall receive
any cash dividend or other cash distribution on the Series F Preferred Stock,
the Depositary shall, subject to Section 3.2, distribute to record holders of
Receipts on the record date fixed pursuant to Section 4.4 such amounts of such
sum as are, as nearly as practicable, attributable 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 does withhold from any cash dividend or other cash distributed in
respect of the Series F Preferred Stock an amount on account of taxes, the
amount made available for distribution or distributed in respect of Depositary
Shares shall be reduced accordingly. The Depositary shall distribute or make
available for distribution, as the case may be, only such amount, however, as
can be distributed without attributing to any owner of Depositary Shares a
fraction of one cent and any balance not so distributable shall be rounded to
the next highest whole cent and, upon request of the Depositary, the Company
shall pay the additional amount to the Depositary for distribution.
SECTION 4.2 DISTRIBUTIONS OTHER THAN CASH. Whenever the Depositary
shall receive any distribution other than cash on the Series F Preferred Stock,
the Depositary shall, subject to Section 3.2, distribute to record holders of
Receipts on the record date fixed pursuant to Section 4.4 such amounts of the
securities or property received by it as are, as nearly as practicable, in
proportion to the respective numbers of Depositary Shares evidenced by the
Receipts held by such holders, in any manner that the Depositary and the Company
may deem equitable and practicable for accomplishing such distribution. If, in
the opinion of the Company after consultation with 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 or as otherwise required by law,
regulation, or court process), 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 (a 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 Section 3.2, be distributed or made
available for
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distribution, as the case may be, by the Depositary to record holders of
Receipts as provided by Section 4.1 in the case of a distribution received in
cash.
SECTION 4.3 SUBSCRIPTION RIGHTS, PREFERENCES OR PRIVILEGES. If the
Company shall at any time offer or cause to be offered to the persons in whose
names Series F Preferred Stock is registered on the books of the Company any
rights, preferences or privileges to subscribe for or to purchase any securities
or any rights, preferences or privileges of any other nature, such rights,
preferences or privileges shall, in each such instance be made available by the
Depositary to the record holders of Receipts if the Company so directs in such
manner as the Company shall instruct (including by the issuance to such record
holders of warrants representing such rights, preferences or privileges);
provided, however, that (a) if at the time of issue or offer of any such rights,
preferences or privileges the Company determines that it is not lawful or
feasible to make such rights, preferences or privileges available to some or all
holders of Receipts (by the issue of warrants or otherwise) or (b) if and to the
extent instructed by holders of Receipts who do not desire to exercise such
rights, preferences or privileges, the Depositary shall then, if so instructed
by the Company, and if applicable laws or the terms of such rights, preferences
or privileges so permit, sell such rights, preferences or privileges of such
holders at public or private sale, at such place or places and upon such terms
as it may deem proper. The net proceeds of any such sale shall be distributed by
the Depositary to the record holders of Receipts entitled thereto as provided by
Section 4.1 in the case of a distribution received in cash.
If registration under the Securities Act of the securities to which any
rights, preferences or privileges relate is required in order for holders of
Receipts to be offered or sold the securities to which such rights, preferences
or privileges relate, the Company will promptly file a registration statement
pursuant to the Securities Act with respect to such rights, preferences or
privileges and securities and use its best efforts to cause such registration
statement to become effective sufficiently in advance of the expiration of such
rights, preferences or privileges to enable such holders to exercise such
rights, preferences or privileges. In no event shall the Depositary make
available to the holders of Receipts any right, preference or privilege to
subscribe for or to purchase any securities unless and until the Depositary
receives written notice and an opinion of counsel from the Company that a
registration statement shall have become effective or the offering and sale of
such securities to such holders are exempt from registration under the
provisions of the Securities Act.
If any other action under the law of any jurisdiction or any
governmental or administrative authorization, consent or permit is required in
order for such rights, preferences or privileges to be made available to holders
of Receipts, the Company will use its best efforts to take such action or obtain
such authorization, consent or permit sufficiently in advance of the expiration
of such rights, preferences or privileges to enable such holders to exercise
such rights, preferences or privileges.
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SECTION 4.4 NOTICE OF DIVIDENDS, FIXING OF RECORD DATE FOR HOLDERS OF
RECEIPTS. Whenever any cash dividend or other cash distribution shall become
payable, any distribution other than cash shall be made, or any rights,
preferences or privileges shall at any time be offered, with respect to the
Series F Preferred Stock or the Depositary shall receive notice of (i) any
meeting at which holders of Series F Preferred Stock are entitled to vote or of
which holders of Series F Preferred Stock are entitled to notice or (ii) any
election on the part of the Company to redeem any shares of Series F Preferred
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 in respect of the
Series F Preferred 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, to give instructions for the
exercise of voting rights at any such meeting or to receive notice of such
meeting or whose Depositary Shares are to be so redeemed.
SECTION 4.5 VOTING RIGHTS. Upon receipt of notice of any meeting at
which the holders of Series F Preferred Stock are entitled to vote, the
Depositary shall, as soon as practicable (but in no event more than two business
days) thereafter, mail to the record holders of Receipts a notice, which shall
be provided by the Company and which shall contain (i) such information as is
contained in such notice of meeting, (ii) a statement that the holders of
Receipts at the close of business on a specified record date fixed pursuant to
Section 4.4 will be entitled, subject to any applicable provision of law, the
Certificate of Incorporation or the Certificate of Designations, to instruct the
Depositary as to the exercise of the voting rights pertaining to the amount of
Series F Preferred Stock represented by their respective Depositary Shares and
(iii) a brief statement as to the manner in which such instructions may be
given. Upon the written request of a holder of a Receipt on such record date,
the Depositary shall endeavor insofar as practicable to vote or cause to be
voted the number of shares of Series F Preferred Stock represented by the
Depositary Shares evidenced by such Receipt in accordance with the instructions
set forth in such request. The Company hereby agrees to take all reasonable
action that may be deemed necessary by the Depositary in order to enable the
Depositary to vote such shares of Series F Preferred Stock or cause such shares
of Series F Preferred Stock to be voted. In the absence of specific instructions
from the holder of a Receipt, the Depositary will abstain from voting to the
extent of the Series F Preferred Stock represented by the Depositary Shares
evidenced by such Receipt. After aggregating all voting Depositary Shares, the
Depositary will disregard for voting purposes any fractional share of Series F
Preferred Stock remaining.
SECTION 4.6 CHANGES AFFECTING SERIES F PREFERRED STOCK AND
RECLASSIFICATIONS, RECAPITALIZATIONS, ETC. Upon any split-up, consolidation or
any other reclassification of Series F Preferred Stock, or upon any
recapitalization, reorganization, merger, amalgamation or consolidation
affecting the Company or to which it is a party or sale of all or substantially
all of the Company's assets, the Depositary shall, upon the instructions of the
Company, treat any shares of stock or other securities or property (including
cash) that shall be received by the Depositary
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in exchange for or upon conversion of or in respect of the Series F Preferred
Stock as new deposited property under this Deposit Agreement, and Receipts then
outstanding shall thenceforth represent the proportionate interests of holders
thereof in the new deposited property so received in exchange for or upon
conversion or in respect of such Series F Preferred Stock. In any such case the
Depositary may, in its discretion, with the approval of the Company, execute and
deliver additional Receipts, or may call for the surrender of all outstanding
Receipts to be exchanged for new Receipts specifically describing such new
deposited property.
ARTICLE V
THE DEPOSITARY AND THE COMPANY
SECTION 5.1 MAINTENANCE OF OFFICES, AGENCIES, TRANSFER BOOKS BY THE
DEPOSITARY; THE REGISTRAR. Upon execution of this Deposit Agreement in
accordance with its terms, the Depositary shall maintain at the Corporate Office
facilities for the execution and delivery, transfer, surrender and exchange,
split-up, combination and redemption of Receipts and deposit and withdrawal of
Series F Preferred Stock and at the offices of the Depositary's Agents, if any,
facilities for the delivery, transfer, surrender and exchange, split-up,
combination, conversion and redemption of Receipts and deposit and withdrawal of
Series F Preferred Stock, all in accordance with the provisions of this Deposit
Agreement.
The Depositary shall keep books at the Corporate Office for the
registration and transfer of Receipts, which books at all reasonable times and
during normal business hours shall be open for inspection by the record holders
of Receipts as provided by applicable law; 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 shall consult with the Company upon receipt of any request for
inspection and shall not permit such inspection unless authorized by the Company
in writing. The Depositary may close such books, at any time or from time to
time, when deemed expedient by it in connection with the performance of its
duties hereunder.
The Depositary shall make available for inspection by holders of
Receipts at the Corporate Office and at such other places as it may from time to
time deem advisable during normal business hours any reports and communications
received from the Company that are both received by the Depositary as the holder
of Series F Preferred Stock and made generally available to the holders of
Series F Preferred Stock.
Promptly upon request from time to time by the Company, the Depositary
shall, at the Company's sole expense, furnish to it a list, as of a recent date,
of the
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names, addresses and holdings of Depositary Shares of all persons in whose names
Receipts are registered on the books of the Depositary.
If the Receipts, the Depositary Shares evidenced thereby or the Series
F Preferred Stock represented by such Depositary Shares are listed on one or
more stock exchanges or on the Nasdaq National Market ("Nasdaq"), the Depositary
will, at the request of the Company, arrange such facilities for the delivery,
transfer, surrender and exchange of such Receipts, such Depositary Shares or
such Series F Preferred Stock as may be required by law or applicable stock
exchange or Nasdaq regulations.
SECTION 5.2 PREVENTION OR DELAY IN PERFORMANCE BY THE DEPOSITARY, THE
DEPOSITARY'S AGENTS OR THE COMPANY. Neither the Depositary, the Registrar nor
any Depositary's Agent nor the Company shall incur any liability to any holder
of any Receipt, if by reason of any provision of any present or future law or
regulation thereunder of the United States of America or of any other
governmental authority or, in the case of the Depositary or the Depositary's
Agent, by reason of any provision, present or future, of the Certificate of
Incorporation or the Certificate of Designations or, in the case of the Company,
the Depositary or the Depositary's Agent, by reason of any act of God or war or
other circumstance beyond the control of the relevant party, the Depositary, any
Depositary's Agent or the Company shall be prevented or forbidden from doing or
performing any act or thing that the terms of this Deposit Agreement provide
shall be done or performed; nor shall the Depositary, any Depositary's Agent or
the Company incur any liability to any holder of a Receipt by reason of any
nonperformance or delay, caused as aforesaid, in the performance of any act or
thing that the terms of this Deposit Agreement provide shall or may be done or
performed, or by reason of any exercise of, or failure to exercise, any
discretion provided for in this Deposit Agreement.
SECTION 5.3 OBLIGATIONS OF THE DEPOSITARY, THE DEPOSITARY'S AGENTS AND
THE COMPANY. Neither the Depositary, the Registrar, any Depositary's Agent nor
the Company assumes any obligation or shall be subject to any liability under
this Deposit Agreement or any Receipt to holders of Receipts other than for
their negligence (including the failure to meet customary trade practice) or
willful misconduct and that each of them agrees to act in good faith in the
performance of such duties as are specifically set forth in this Deposit
Agreement.
Neither the Depositary, the Registrar nor any Depositary's Agent nor
the Company shall be under any obligation to appear in, prosecute or defend any
action, suit or other proceeding with respect to the Series F Preferred Stock,
Depositary Shares, Receipts or Common Stock that in its opinion may involve it
in expense or liability, unless indemnity satisfactory to it against all expense
and liability be furnished as often as may be required.
Neither the Depositary, the Registrar, any Depositary's Agent nor the
Company shall be liable for any action or any failure to act by it in reliance
upon the
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advice of or information from legal counsel, any person presenting Series F
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 advice or information.
The Depositary, any Depositary's Agent 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, its parent, affiliates, or subsidiaries, the Registrar
and any Depositary's Agent may own, buy, sell or deal in any class of securities
of the Company and its affiliates and in Receipts or Depositary Shares or become
pecuniarily interested in any transaction in which the Company and its
affiliates may be interested or contract with or lend money to or otherwise act
as fully or as freely as if the Depositary, the Registrar or the Depositary's
Agent, as the case may be, was not the Depositary, the Registrar or the
Depositary's Agent hereunder. The Depositary may also act as transfer agent or
registrar of any of the securities of the Company and its affiliates.
It is intended that neither the Depositary nor any Depositary's Agent
shall be deemed to be an "issuer" of the securities under the federal securities
laws or applicable state securities laws, it being expressly understood and
agreed that the Depositary and any Depositary's Agent are acting only in a
ministerial capacity as Depositary for the Series F Preferred Stock. The
Depositary agrees to comply with all information reporting and withholding
requirements applicable to it under law or this Deposit Agreement in its
capacity as Depositary.
The Depositary shall act as the withholding agent for any payments,
distributions, and exchanges made with respect to the Depositary Shares and
Receipts, and the Series F Preferred Stock, Common Stock or other securities or
assets represented thereby (collectively, the "Securities"). The Depositary
shall be responsible with respect to the Securities for the timely (i)
collection and deposit of any required withholding or backup withholding tax,
and (ii) filing of any information returns or other documents with Federal
taxing authorities.
SECTION 5.4 RESIGNATION AND REMOVAL OF THE DEPOSITARY, APPOINTMENT OF
SUCCESSOR DEPOSITARY. The Depositary may at any time resign as Depositary
hereunder by notice of its election to do so delivered to the Company, such
resignation to take effect upon the appointment of a successor depositary and
its acceptance of such appointment as hereinafter provided.
The Depositary may at any time be removed by the Company by notice of
such removal delivered to the Depositary, such removal to take effect upon the
appointment of a successor depositary and its acceptance of such appointment as
hereinafter provided.
In case at any time the Depositary acting hereunder shall resign or be
removed, the Company shall, within 60 days after the delivery of the notice of
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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
$150,000,000. If a successor depositary shall not have been appointed in 60
days, the resigning Depositary may petition a court of competent jurisdiction to
appoint 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 rights, title and interest in the Series F Preferred 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 other records
respecting the Receipts, the Depositary Shares and the Series F Preferred Stock
as the successor shall require in order to perform its duties. 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. Such successor
depositary may execute the Receipts either in the name of the predecessor
depositary or in the name of the successor depositary.
SECTION 5.5 CORPORATE NOTICES AND REPORTS. The Company agrees that it
will deliver to the Depositary, and the Depositary will, promptly (but in no
event more than two business days) after receipt thereof, transmit to the record
holders of Receipts, in each case at the address recorded in the Depositary's
books, copies of all notices and reports (including financial statements)
required by law, by the rules of any national securities exchange or Nasdaq upon
which the Series F Preferred Stock, the Depositary Shares or the Receipts may be
listed or by the Certificate of Incorporation and the Certificate of
Designations to be furnished by the Company to holders of Series F Preferred
Stock. Such transmission will be at the Company's expense and the Company will
provide the Depositary with such number of copies of such documents as the
Depositary may reasonably request. In addition, the Depositary will transmit to
the record holders of Receipts at the Company's expense such other documents as
may be requested by the Company.
SECTION 5.6 DEPOSIT OF SERIES F PREFERRED STOCK BY THE COMPANY. The
Company agrees with the Depositary that neither the Company nor any company
controlled by the Company will at any time deposit any Series F Preferred Stock
if such Series F Preferred Stock is required to be registered under the
provisions of the
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Securities Act and no registration statement is at such time in effect as to
such Series F Preferred Stock.
SECTION 5.7 INDEMNIFICATION BY THE COMPANY. The Company agrees to
indemnify the Depositary, any Depositary's Agent and any Registrar against, and
hold each of them harmless from, any liability, costs and expenses (including
the reasonable fees and expenses of counsel) that may arise out of or in
connection with its acting as Depositary, Depositary's Agent or Registrar,
respectively, under this Deposit Agreement and the Receipts, except for any
liability arising out of negligence or bad faith on the part of any such person
or persons.
SECTION 5.8 FEES, CHARGES AND EXPENSES. No fees, charges and expenses
of the Depositary or any Depositary's Agent hereunder or of any Registrar shall
be payable by any person other than the Company, except for any taxes (including
transfer taxes, if any) and other governmental charges and except as provided in
this Deposit Agreement. If the Depositary incurs fees, charges or expenses for
which it is not otherwise liable hereunder due to any action or inaction of a
holder of a Receipt or other person, such holder or other person will be liable
for such fees, charges and expenses. All other fees, charges and expenses of the
Depositary and any Depositary's Agent hereunder and of any Registrar (including,
in each case, the 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 fees, charges and expenses. The Depositary shall
present its statement for fees, charges and expenses to the Company once every
month or at such other intervals as the Company and the Depositary may agree.
ARTICLE VI
AMENDMENT AND TERMINATION
SECTION 6.1 AMENDMENT. The form of the Receipts and any provision of
this Deposit Agreement may at any time and from time to time be amended by
agreement between the Company and the Depositary in any respect that they may
deem necessary or desirable. Any amendment that shall impose any fees, taxes or
charges (other than taxes and other governmental charges, fees and expenses
provided for herein or in the Receipts), or that shall otherwise prejudice any
substantial existing right of holders of Receipts, shall not become effective as
to outstanding Receipts until the holders of record of Receipts representing not
less than 66 2/3% of the number of Depositary Shares then outstanding shall have
consented thereto in writing or by voting therefor in person or by proxy at a
meeting held on notice for such purpose or any adjournment or adjournments
thereof. Every holder of an outstanding Receipt at the time any such amendment
becomes effective shall be deemed, by continuing to hold such Receipt, to
consent and agree to such amendment and to be bound by this Deposit Agreement as
amended thereby. In no event shall
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any amendment impair the right, subject to the provisions of Sections 2.4, 2.5,
2.7, 2.8 and 2.11 and Article III, of any owner of any Depositary Shares to
surrender the Receipt evidencing such Depositary Shares with instructions to the
Depositary to deliver to the holder the underlying Series F Preferred Stock or
to cause the conversion of the underlying Series F Preferred Stock into Common
Stock and cash for fractional shares and, in each case, all money and other
property, if any, represented thereby, except in order to comply with mandatory
provisions of applicable law.
SECTION 6.2 TERMINATION. Whenever so directed by the Company, the
Depositary will terminate this Deposit Agreement by mailing notice of such
termination to the record holders of all Receipts then outstanding at least 30
days prior to the date fixed in such notice for such termination. The Depositary
may likewise terminate this Deposit Agreement if at any time 60 days shall have
expired after the Depositary shall have delivered to the Company a written
notice of its election to resign and a successor depositary shall not have been
appointed and accepted its appointment as provided in Section 5.4. If any
Receipts remain outstanding after the date of termination, the Depositary
thereafter will discontinue the transfer of Receipts, will suspend the
distribution of dividends to the holders thereof, and will not give any further
notices (other than notice of such termination) or perform any further acts
under this Deposit Agreement except as provided below and except that the
Depositary will continue (i) to collect dividends on the Series F Preferred
Stock and any other distributions with respect thereto and (ii) to deliver
Series F Preferred Stock together with such dividends and distributions and the
net proceeds of any sales of rights, preferences, privileges or other property,
without liability for interest thereon, in exchange for Receipts surrendered. At
any time after the expiration of two years from the date of termination, the
Depositary may sell the Series F Preferred Stock then held by it at public or
private sales, at such place or places and upon such terms as it deems proper
and may thereafter hold the net proceeds of any such sale, together with any
money and other property then held by it, without liability for interest
thereon, for the pro rata benefit of the holders of Receipts which have not been
surrendered. In the event this Deposit Agreement is terminated and a sufficient
number of shares of Series F Preferred Stock remain outstanding, the Company
will use its best efforts to list the shares of Series F Preferred Stock with
Nasdaq (unless the holders of a majority of the outstanding shares of Series F
Preferred Stock shall consent to the Company not effecting such listing). Upon
termination, the Company and the Depositary shall be discharged from all
obligations under this Deposit Agreement, except from the Company's obligations
to the Depositary, any Depositary's Agent or any Registrar under Sections 5.7
and 5.8.
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ARTICLE VII
MISCELLANEOUS
SECTION 7.1 COUNTERPARTS. This Deposit Agreement may be executed by the
Company and the Depositary in separate counterparts, each of which counterparts,
when so executed an delivered, shall be deemed an original, but all such
counterparts taken together shall constitute one and the same instrument.
Delivery of an executed counterpart of a signature page to this Deposit
Agreement by telecopier shall be effective as delivery of a manually executed
counterpart of this Deposit Agreement. Copies of this Deposit Agreement shall be
filed with the Depositary and the Depositary's Agent at the Corporate Office and
the respective offices of the Depositary's Agents, if any.
SECTION 7.2 EXCLUSIVE BENEFITS OF PARTIES. This Deposit Agreement is
for the exclusive benefit of the parties hereto, and their respective successors
hereunder, and shall not be deemed to give any legal or equitable right, remedy
or claim to any other person whatsoever.
SECTION 7.3 INVALIDITY OF PROVISIONS. In case any one or more of the
provisions contained in this Deposit Agreement or in the Receipts should be or
become invalid, illegal or unenforceable in any respect, the validity, legality
and enforceability of the remaining provisions contained herein or therein shall
in no way be affected, prejudiced or disturbed thereby.
SECTION 7.4 NOTICES. Any 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 overnight, registered or certified
mail, or by telegram or telex confirmed by letter, addressed to the Company at
0000 Xxxxxxxxxx Xxxxxx, Xxxxx 0000, Xxxxxx, Xxxxx 00000; Attention:
____________________, with a copy addressed to the Company's Counsel at Akin
Gump Xxxxxxx Xxxxx & Xxxx, LLP; Attention: Xxxxx Xxxx, or at such other address
as shall be specified by the Company by like notice. Any 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 overnight,
registered or certified mail, or by telegram or telex confirmed by letter,
addressed to the Depositary at ______________, Attention: ______________,
General Counsel and [other title], or at such other address as shall be
specified by the Depositary by like notice.
Any notices given to any record holder of a Receipt hereunder or under
the Receipts shall be in writing and shall be deemed to have been duly given if
personally delivered or sent by mail, or by telegram or telex confirmed by
letter, addressed to such record holder at the address of such record holder as
it appears on the books of the Depositary or, if such holder shall have filed
with the Depositary a written request that notices intended for such holder be
mailed to some other address, at the address designated in such request.
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Delivery of a notice sent by mail, or by telegram or telex shall be
deemed to be effected at the time when a duly addressed letter containing the
same (or a duly addressed letter confirming an earlier notice in the case of a
telegram or telex message) is deposited, postage prepaid, in a post office
letter box. The Depositary or the Company may, however, act upon any telegram or
telex message received by it from the other or from any holder of a Receipt,
notwithstanding that such telegram or telex message shall not subsequently be
confirmed by letter as aforesaid.
SECTION 7.5 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 in writing of any such action.
SECTION 7.6 HOLDERS OF RECEIPTS ARE PARTIES. The holders of Receipts
from time to time shall be deemed to be parties to this Deposit Agreement and
shall be bound by all of the terms and conditions hereof and of the Receipts by
acceptance of delivery thereof.
SECTION 7.7 GOVERNING LAW. This Deposit Agreement and the Receipts and
all rights hereunder and thereunder and provisions hereof and thereof shall be
governed by, and construed in accordance with, the laws of the State of New
York, without regard to conflict of laws rules.
SECTION 7.8 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.
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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.
NATIONAL ENERGY GROUP, INC.
By:
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Name:
---------------------------
Title:
--------------------------
--------------------------------
By:
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Name:
---------------------------
Title:
--------------------------
Attest:
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