Exhibit 3(i)(e)
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XXXXXXX XXXXX & CO., INC.
CITIBANK, N.A., As Depositary
AND
THE HOLDERS FROM TIME TO TIME OF
THE DEPOSITARY RECEIPTS DESCRIBED HEREIN
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DEPOSIT AGREEMENT
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Dated as of November 3, 1994
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TABLE OF CONTENTS
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Page
ARTICLE I
Definitions
ARTICLE II
Form of Receipts, Deposit of Stock,
Execution and Delivery, Transfer,
Surrender and Redemption of Receipts
SECTION 2.01. Form and Transfer of Receipts ................................ 2
SECTION 2.02. Deposit of Stock; Execution and Delivery
of Receipts in Respect Thereof ............................... 4
SECTION 2.03. Registration of Transfer of Receipts.......................... 5
SECTION 2.04. Split-ups and Combinations of Receipts;
Surrender of Receipts and Withdrawal of
Stock ........................................................ 5
SECTION 2.05. Limitations on Execution and Delivery,
Transfer, Surrender and Exchange of
Receipts ..................................................... 6
SECTION 2.06. Lost Receipts, etc. .......................................... 7
SECTION 2.07. Cancellation and Destruction of
Surrendered Receipts ......................................... 7
SECTION 2.08. Redemption of Stock .......................................... 7
ARTICLE III
Certain Obligations of
Holders of Receipts and the Company
SECTION 3.01. Filing Proofs, Certificates and Other
Information .................................................. 9
SECTION 3.02. Payment of Taxes or Other
Governmental Charges ......................................... 9
SECTION 3.03. Warranty as to Stock ......................................... 9
SECTION 3.04. Warranty as to Receipts ...................................... 9
ARTICLE IV
The Deposited Securities; Notices
SECTION 4.01. Cash Distributions .......................................... 10
SECTION 4.02. Distributions Other than Cash, Rights,
Preferences or Privileges ................................... 10
SECTION 4.03. Subscription Rights, Preferences or
Privileges .................................................. 11
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SECTION 4.04. Notice of Dividends, etc.; Fixing Record
Date for Holders of Receipts ................................ 12
SECTION 4.05. Voting Rights ............................................... 12
SECTION 4.06. Changes Affecting Deposited Securities
and Reclassifications, Recapitalizations, etc. ............. 13
SECTION 4.07. Delivery of Reports ......................................... 14
SECTION 4.08. Lists of Receipt Holders .................................... 14
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 ................................................... 14
SECTION 5.02. Prevention of or Delay in Performance
the Depositary, the Depositary's Agents,
the Registrar or the Company ................................ 15
SECTION 5.03. Obligations of the Depositary, the
Depositary's Agents, the Registrar and
the Company ................................................. 15
SECTION 5.04. Resignation and Removal of the
Depositary; Appointment of Successor
Depositary .................................................. 16
SECTION 5.05. Corporate Notices and Reports ............................... 17
SECTION 5.06. Indemnification by the Company .............................. 18
SECTION 5.07. Fees, Charges and Expenses .................................. 18
ARTICLE VI
Amendment and Termination
SECTION 6.01. Amendment ................................................... 19
SECTION 6.02. Termination ................................................. 19
ARTICLE VII
Miscellaneous
SECTION 7.01. Counterparts ................................................ 20
SECTION 7.02. Exclusive Benefit of Parties ................................ 20
SECTION 7.03. Invalidity of Provisions .................................... 20
SECTION 7.04. Notices ..................................................... 21
SECTION 7.05. Depositary's Agents ......................................... 22
SECTION 7.06. Holders of Receipts Are Parties ............................. 22
SECTION 7.07. Governing Law ............................................... 22
SECTION 7.08. Inspection of Deposit Agreement ............................. 22
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SECTION 7.09. Headings ................................................... 22
FORM OF FACE OF RECEIPT .................................................. A-1
FORM OF REVERSE OF RECEIPT ............................................... A-2
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DEPOSIT AGREEMENT dated as of November 3, 1994, among XXXXXXX XXXXX & CO..
INC., a Delaware corporation (the "Company"), Citibank, N.A., a national banking
association (the "Depositary"), and the holders from time to time of the
Receipts described herein.
WHEREAS, it is desired to provide, as hereinafter set forth in this Deposit
Agreement, for the deposit of shares of 9% Cumulative Preferred Stack, Series A,
of XXXXXXX XXXXX & CO., INC. With the Depositary for the purposes set forth in
this Deposit Agreement and for the issuance hereunder of Receipts evidencing
Depositary Shares in respect of the Stock so deposited; and
WHEREAS, the Receipts are to be substantially in the form of Exhibit A
annexed hereto, with appropriate insertions, modifications and omissions, as
hereinafter provided in this Deposit Agreement;
NOW, THEREFORE, in consideration of the premises, the parties hereto agree
as follows:
ARTICLE I
Definitions
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The following definitions shall for all purposes, unless otherwise
indicated, apply to the respective terms used in this Deposit Agreement:
"Certificate" shall mean the Certificate of Designations filed with the
secretary of State of the State of Delaware establishing the Stock as a series
of preferred stock of the Company.
"Company" shall mean Xxxxxxx Xxxxx & Co., Inc., a Delaware a corporation,
and its successors.
"Deposit Agreement" shall mean this Deposit Agreement, as amended or
supplemented from time to time in accordance with the terms hereof.
"Depositary" shall mean Citibank, N.A., and any successor as Depositary
hereunder.
"Depositary Shares" shall mean Depositary shares, each representing one-
four hundredth of one 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, at
which at any particular time its depositary receipt business shall be
administered.
"Receipt" shall mean one of the depositary receipts, substantially in the
form set forth as Exhibit A hereto, issued hereunder, whether in definitive or
temporary form and evidencing the number of Depositary Shares held of record by
the record holder of such Depositary Shares.
"record holder" or "holder" as applied to a Receipt shall mean the person
in whose name a Receipt is registered on the books of the Depositary maintained
for such purpose.
"Registrar" shall mean the Depositary or such other bank or trust company
which shall be appointed by the Company to register ownership and transfers of
Receipts as herein provided and if a Registrar shall be so appointed,
references herein to "the books" of or maintained by the Depository shall be
deemed, as applicable, to refer as well to the register maintained by such
Registrar for such purpose.
"Securities Act" shall mean the Securities Act of 1933, as amended.
"Stock" shall mean shares of the Company's 9% Cumulative Preferred Stock,
Series A, par value $1.00 per share, $10,000 liquidation preference per share.
ARTICLE II
Form of Receipts, Deposit of Stock,
Execution and Delivery, Transfer,
Surrender and Redemption of Receipts
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SECTION 2.01. Form and Transfer of Receipts. Definitive Receipts shall be
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engraved or printed or lithographed on steel-engraved borders, with appropriate
insertions, modifications and omissions, as hereinafter provided. Pending the
preparation of definitive Receipts, the Depositary, upon the written order of
the Company, delivered in compliance with Section 2.02, shall execute and
deliver temporary Receipts which are printed, lithographed, typewritten,
mimeographed or otherwise substantially of the tenor of the definitive Receipts
in lieu of which they are issued and with such appropriate insertions,
omissions, substitutions and other variations as the persons executing such
Receipts may determine, as evidenced by their execution of such Receipts. If
temporary Receipts are issued, the Company and the Depositary will cause
definitive Receipts to be prepared without unreasonable delay. After the
preparation of definitive Receipts, the temporary Receipts shall be exchangeable
for definitive Receipts upon surrender of the temporary Receipts
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at an office described in the penultimate paragraph of Section 2.02, without
charge to the holder. Upon surrender for cancellation of any one or more
temporary Receipts, the Depositary shall execute and deliver in exchange
therefor definitive Receipts representing the same number of Depositary Shares
as represented by the surrendered temporary Receipt or Receipts. Such exchange
shall be made at the Company's expense and without any charge therefor. Until so
exchanged, the temporary Receipts shall in all respects be entitled to the same
benefits under this Agreement, and with respect to the Stock, as definitive
Receipts.
Receipts shall be executed by the Depositary by the manual signature of a
duly authorized officer of the Depositary; provided, that such signature
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may be a facsimile if a Registrar for the Receipts (other than the Depositary)
shall have been appointed and such Receipts are countersigned by a duly
authorized officer of the Registrar. No Receipt shall be entitled to any
benefits under this Deposit Agreement or be valid or obligatory for any purpose
unless it shall have been executed manually by a duly authorized officer of the
Depositary or, if a Registrar for the Receipts (other than the Depositary) shall
have been appointed, by manual or facsimile signature of a duly authorized
officer of the Depositary and countersigned by a duly authorized officer of such
Registrar. The Depositary shall record on its books each Receipt so signed and
delivered as hereinafter provided.
Receipts shall be in denominations of any number of whole Depositary
Shares.
Receipts may be endorsed with or have incorporated in the text thereof
such legends or recitals or changes not inconsistent with the provisions of this
Deposit Agreement as may be required by the Depositary and approved by the
Company or required to comply with any applicable law or any regulation
thereunder or with the rules and regulations of any securities exchange upon
which the Stock, the Depositary Shares or the Receipts may be listed or to
conform with any usage with respect thereto, or to indicate any special
limitations or restrictions to which any particular Receipts are subject.
Title to Depositary Shares evidenced by a Receipt which is properly
endorsed or accompanied by a properly executed instrument of transfer, shall be
transferable by delivery with 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 2.03, the
Depositary may, notwithstanding any notice to the contrary, treat the record
holder thereof at such time as the absolute owner thereof for the purpose of
determining the person entitled to distributions of dividends or other
distributions or
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to any notice provided for in this Deposit Agreement and for all other purposes.
SECTION 2.02. Deposit of Stock; Execution and Delivery of Receipts in
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Respect Thereof. Subject to the terms and conditions of this Deposit Agreement,
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the Company may from time to time deposit shares of the Stock under this Deposit
Agreement by delivery to the Depositary of a certificate or certificates for the
Stock to be deposited, properly endorsed or accompanied, if required by the
Depositary, by a duly executed instrument of transfer or endorsement, in
form satisfactory to the Depositary, together with all such certifications as
may be required by the Depositary in accordance with the provisions of this
Deposit Agreement, and together with a written order of the Company directing
the Depositary to execute and deliver to, or upon the written order of, the
person or persons stated in such order a Receipt or Receipts evidencing in the
aggregate the number of Depositary Shares representing such deposited Stock.
Deposited Stock shall be held by the Depositary at the Depositary's office
or at such other place or places as the Depositary shall determine. The
Depositary shall not lend any Stock deposited hereunder.
Upon receipt by the Depositary of a certificate or certificates for Stock
deposited in accordance with the provisions of this Section, together with the
other documents required as above specified, and upon recordation of the Stock
on the books of the Company in the name of the Depositary or its nominee, the
Depositary, subject to the terms and conditions of this Deposit Agreement, shall
execute and deliver to or upon the order of the person or persons named in one
written order delivered to the Depositary referred to in the first paragraph of
this Section, a Receipt or Receipts evidencing in the aggregate the number of
Depositary Shares representing the Stock so deposited and registered in such
name or names as may be requested by such person or persons. The Depositary
shall execute and deliver such Receipt or Receipts at the Depositary's Office or
such other offices, if any, as the Depositary may designate. Delivery at other
offices shall be at the risk and expense of the person requesting such delivery.
SECTION 2.03. Registration of Transfer of Receipts. Subject to the terms
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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
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deliver such new Receipt or Receipts to or upon the order of the person entitled
thereto.
The Depositary shall not be required (a) to issue, transfer or exchange any
Receipts for a period beginning at the opening of business fifteen days next
preceding any selection of Depositary Shares and Stock to be redeemed and ending
at the close of business on the day of the mailing of notice of redemption, or
(b) to transfer or exchange for another Receipt any Receipt called or being
called for redemption in whole or in part except as provided in section 2.08.
SECTION 2.04. Split-ups and Combinations of Receipts; Surrender of Receipts
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and Withdrawal of Stock. Upon surrender of a Receipt or Receipts at the
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Depositary's Office or at such other offices as it may designate for the purpose
of effecting a split-up or combination of such Receipt or Receipts, and subject
to the terms and conditions of this Deposit Agreement, the Depositary shall
execute a new Receipt or Receipts in the authorized denomination or
denominations requested, evidencing the aggregate number of Depositary Shares
evidenced by the Receipt or Receipts surrendered, and shall deliver such new
Receipt or Receipts to or upon the order of the holder of the Receipt or
Receipts so surrendered.
Any holder of a Receipt or Receipts may withdraw the number of whole shares
of Stock and all money and other property, if any, represented thereby by
surrendering such Receipt or Receipts, at the Depositary's Office or at such
other offices as the Depositary may designate for such withdrawals. Thereafter,
without unreasonable delay, the Depositary shall deliver to such holder, or to
the person or persons designated by such holder as hereinafter provided, the
number of whole shares of Stock and all money and other property, if any,
represented by the Receipt or Receipts so surrendered for withdrawal, but
holders of such whole shares of Stock will not thereafter be entitled to deposit
such Stock hereunder or to receive a Receipt evidencing Depositary Shares
therefor. If a Receipt delivered by the holder to the Depositary in connection
with such withdrawal shall evidence a number of Depositary Shares in excess of
the number of Depositary Shares representing the number of whole shares of Stock
to be so withdrawn, the Depositary shall at the same time, in addition to such
number of whole shares of Stock and such money and other property, if any, to be
so withdrawn, deliver to such holder, or subject to Section 2.03 upon his order,
a new Receipt evidencing such excess number of Depositary Shares. In no event
will fractional shares of Stock be delivered by the Depositary. Delivery of the
Stock and money and other property, if any, being withdrawn may be made by the
delivery of such certificates, documents of title and other instruments as the
Depositary may deem appropriate.
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If the Stock and the money and other property, if any, being withdrawn are
to be delivered to a person or persons other than the record holder of the
Receipt or Receipts being surrendered for withdrawal of Stock, such holder
shall execute and deliver to the Depositary a written order so directing the
Depositary and the Depositary may require that the Receipt or Receipts
surrendered by such holder for Withdrawal of such shares of Stock be properly
endorsed in blank or accompanied by a properly executed instrument of transfer
in blank.
Delivery of the Stock and the money and other property, if any, represented
by Receipts surrendered for withdrawal shall be made by the Depositary at the
Depositary's Office, except that, at the request, risking expense of the holder
surrendering such Receipt or Receipts and for the account of the holder thereof,
such delivery may be made at such other place as may be designated by such
holder.
SECTION 2.05. Limitations on Execution and Delivery, Transfer, Surrender
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and Exchange of Receipts. As a condition precedent to the execution and
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delivery, registration of transfer, split-up, combination, surrender or exchange
of any Receipt, the Depositary, any of the Depositary's Agents or the Company
may require payment to it of a sum sufficient for the payment (or, in the event
that the Depositary or the Company shall have made such payment, the
reimbursement to it) of any charges or expenses payable by the holder of a
Receipt pursuant to Section 5.07, may require the production of evidence
satisfactory to it as to the identity and genuineness of any signature and may
also require compliance with such regulations, if any, as the Depositary or the
Company may establish consistent with the provisions of this Deposit Agreement.
The deposit of Stock may be refused, the delivery of Receipts against Stock
may be suspended, the registration of transfer of Receipts may be refused and
the registration of transfer, surrender or exchange of outstanding Receipts may
be suspended (i) during any period when the register of stockholders of the
Company is closed or (ii) if any such action is deemed necessary or advisable by
the Depositary, any of the Depositary's Agents or the Company at any time or
from time to time because of any requirement of Law or of any government or
governmental body or commission or under any provision 3f this Deposit
Agreement.
SECTION 2.06. Lost Receipts, etc. In case any receipt shall be mutilated,
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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
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thereof and of his or her ownership thereof and (ii) the holder thereof
furnishing of the Depositary with reasonable indemnification satisfactory to the
Depositary.
SECTION 2.07. Cancellation and Destruction of Surrendered Receipts. All
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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 and directed to destroy all Receipts so
cancelled.
SECTION 2.08. Redemption of Stock. Whenever the Company shall be permitted
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and shall elect to redeem shares of Stock in accordance with the provisions of
the Certificate, it shall (unless otherwise agreed to in writing with the
Depositary) give or cause to be given to the Depositary, not less than 25 days
and not more than 75 days prior to the Redemption Date (as defined below),
notice of the date of such proposed redemption of Stock and of the number of
such shares held by the Depositary to be so redeemed and the applicable
redemption price, which notice shall be accompanied by a certificate from the
Company stating that such redemption of Stock is in accordance with the
provisions of the Certificate. On the date of such redemption, provided that the
Company shall then have paid or caused to be paid in full to the Depositary the
redemption price of the Stock to be redeemed, plus an amount equal to any
accrued and unpaid dividends thereon to the date fixed for redemption, in
accordance with the provisions of the Certificate, the Depositary shall redeem
the number of Depositary Shares representing such Stock. The Depositary shall
mail notice of the Company's redemption of Stock and the proposed simultaneous
redemption of the number of Depositary Shares representing the Stock to be
redeemed by first-class mail, postage prepaid, not less than 10 and not more
than 60 days prior to the date fixed for redemption of such Stock and Depositary
Shares (the "Redemption Date"), to the record holders of the Receipts evidencing
the Depositary Shares to be so redeemed at the addresses of such holders as they
appear on the records of the Depositary; but neither failure to mail any such
notice of redemption of Depositary Shares to one or more such holders nor any
defect in any notice of redemption of Depositary Shares to one or more such
holders shall affect the sufficiency of the proceedings for redemption as to the
other holders. Each such notice shall state: (i) the Redemption Date, (ii) the
number of Depositary Shares to be redeemed and, if less than all the Depository
Shares held by any such holder are to be redeemed, the number of such Depositary
Shares held by such holder to be so redeemed; (iii) the redemption price; (iv)
the place or places where Receipts evidencing Depositary Shares are to be
surrendered for payment of the redemption price; and (v) that dividends in
respect of the Stock represented by the Depositary Shares to be redeemed will
cease to accrue on such Redemption Date. In case less than all the outstanding
Depositary Shares are to be
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redeemed, the Depositary Shares to be so redeemed shall be selected by the
Depositary by Lot or pro rata (as nearly as may be), as determined by the
Depositary in its sole discretion to be equitable.
Notice having been mailed by the Depositary as aforesaid, from and after
the Redemption Date (unless the Company shall have failed to provide the funds
necessary to redeem the Stock evidenced by the Depositary Shares called for
redemption) (i) dividends on the shares of Stock so called for Redemption shall
cease to accrue from and after such date, (ii) the Depositary Shares being
redeemed from such proceeds shall be deemed no longer to be outstanding, (iii)
all rights of the holders of Receipts evidencing such Depositary Shares (except
the right to receive the redemption price) shall, to the extent of such
Depositary Shares, cease and terminate, and (iv) upon surrender in accordance
with such redemption notice of the Receipts evidencing any such Depositary
Shares called for redemption (properly endorsed or assigned for transfer, if the
Depositary or applicable law shall so require), such Depositary Shares shall be
redeemed by the Depositary at a redemption price per Depositary Share equal to
one-four hundredth of the redemption price per share of Stock so redeemed plus
all money and other property, if any, represented by such Depositary Shares,
including all amounts paid by the Company in respect of dividends which on the
Redemption Date have accrued on the shares of Stock to be so redeemed and have
not therefore been paid.
If fewer than all of the Depositary Shares evidenced by a Receipt are
called for redemption, the Depositary will deliver to the holder of such Receipt
upon its surrender to the Depositary, together with the redemption payment, a
new Receipt evidencing the Depositary Shares evidenced by such prior receipt and
not called for redemption.
ARTICLE III
Certain Obligations of
Holders of Receipts and the Company
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SECTION 3.01. Filing Proofs, Certificates and Other Information. Any holder
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of a Receipt may be required from time to time to file such proof of residence,
or other matters or other information, to execute such certificates and to make
such representations and warranties as the Depositary or the Company may
reasonably deem necessary or proper. The Depositary or the Company may withhold
the delivery, or delay the registration of transfer or redemption, of any
Receipt or the withdrawal of the Stock represented by the Depositary Shares
evidenced by any Receipt or the distribution of any dividend or other
distribution or the sale of any rights or of the proceeds thereof until such
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proof or other information is filed or such certificates are executed or such
representations and warranties are made.
SECTION 3.02. Payment of Taxes or Other
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Governmental Charges. Holders of Receipts shall be obligated to make payments
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to the Depositary of certain charges and expenses, as provided in Section 5.07.
Registration of transfer of any Receipt or any withdrawal of Stock and all money
or other property, if any, represented by the Depositary Shares evidenced by
such Receipt may be refused until any such payment due is made, and any
dividends, interest payments or other distributions may be withheld or any part
of or all the Stock or other property represented by the Depositary Shares
evidenced by such Receipt and not theretofore sold may be sold for the account
of the holder thereof (after attempting by reasonable means to notify such
holder prior to such sale), and such dividends, interest payments or other
distributions or the proceeds of any such sale may be applied to any payment of
such charges or expenses, the holder of such Receipt remaining liable for any
deficiency.
SECTION 3.03. Warranty as to Stock. The Company hereby represents and
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warrants that the Stock, when issued, will be duly authorized, validly issued,
fully paid and nonassessable. Such representation and warranty shall survive the
deposit of the Stock and the issuance of Receipts.
SECTION 3.04. Warranty as to Receipts. The Company hereby represents and
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warrants that the Receipts, when issued, will represent legal and valid
interests in the Stock. Such representation and warranty shall survive the
deposit of the Stock and the issuance of Receipts.
ARTICLE IV
The Deposited Securities; Notices
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SECTION 4.01. Cash Distributions. Whenever the Depositary shall receive any
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receive any cash dividend or other cash distribution on Stock, the Depositary
shall, subject to Sections 3.01 and 3.02, distribute to record holders of
Receipts on the record date fixed pursuant to Section 4.04 such amounts of such
dividend or distribution as are, as nearly as practicable, in proportion to the
respective numbers of Depositary Shares evidenced by the Receipts held by such
holders; provided, however, that in case the Company or the Depositary shall be
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required to withhold and shall withhold from any cash dividend or other cash
distribution in respect of the 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,
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as can be distributed without attributing to any of Depository Shares a fraction
of one cent, and any balance not so distributable shall be held by the
Depositary (Without liability for interest thereon) and shall be added to and be
treated as part of the next sum received by the Depositary for distribution to
record holders of Receipts then outstanding.
SECTION 4.02. Distributions Other than Cash, Rights, Preferences or
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Privileges. Whenever the Depository shall receive any distribution other than
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cash, rights, preferences or privileges upon Stock; the Depositary shall,
subject to Sections 3.01 and 3.02, distribute to record holders of Receipts on
the record date fixed pursuant to Section 4.04 such amounts of the securities or
property received by it as are, as nearly as practicable, in proportion to the
respective numbers of Depositary Shares evidenced by the Receipts held by such
holders, in any manner that the Depositary may deem equitable and practicable
for accomplishing such distribution. If in the opinion of the Depositary such
distribution cannot be made proportionately among such record holders, or if for
any other reason (including any requirement that the Company or the Depositary
withhold an amount on account of taxes) the Depositary deems, after consultation
with the Company, such distribution not to be feasible, the Depositary may, with
the approval of the Company, adopt such method as it deems equitable and
practicable for the purpose of effecting such distribution, including the sale
(at public or private sale) of the securities or property thus received, or any
part thereof, in a commercially reasonable manner. The net proceeds of any such
sale shall, subject to Sections 3.01 and 3.02, be distributed or made available
for distribution, as the case may be, by the Depositary to record holders of
Receipts as provided by Section 4.01 in the case of a distribution received in
cash. The Company shall not make any distribution of such securities or property
to the Depositary and the Depositary shall not make any distribution of such
securities or property to the holders of Receipts unless the Company shall have
provided an opinion of counsel stating that such securities or property, have
been registered under the Securities Act or do not need to be registered in
connection with such distributions.
SECTION 4.03. Subscription Rights, Preferences or Privileges. If the
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Company shaft at any time offer or cause to be offered to the persons in whose
names Stock is recorded on the books of the Company any rights, preferences or
privileges to subscribe for or to purchase any securities or any rights,
preferences or privileges of any other nature, such rights, preferences or
privileges shall in each such instance be made available by the Depositary to
the record holders of Receipts in such manner as the Depositary may determine,
either by the issue to such record holders of warrants representing such rights,
preferences or privileges or by such other method as may be approved by the
Depositary in its discretion with the approval of
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the Company; provided, however, that (i) if at the time of issue or offer of any
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such rights, preferences or privileges the Depositary determines that it is not
lawful or (after consultation with the Company) not feasible to make such
rights, preferences or privileges available to holders of Receipts by the issue
of warrants or otherwise, or (ii) if and to the extent so instructed by holders
of Receipts who do not desire to exercise such rights, preferences or
privileges, then the Depositary, in its discretion (with approval of the
Company, in any case where the Depositary has determined that it is not feasible
to make such rights, preferences or privileges available), may, if applicable
laws or the terms of such rights, preferences or privileges permit such
transfer, sell such rights, preferences or privileges at public or private sale,
at such place or places and upon such terms as it may deem proper. The net
proceeds of any such sale shall, subject to Sections 3.01 and 3.02, be
distributed by the Depositary to the record J holders of Receipts entitled
thereto as provided by Section 4.01 in the case of a distribution received in
cash.
The Company shall notify the Depositary whether registration under the
Securities Act of the securities to which any rights, preferences or privileges
relate is required in order for holders of Receipts to be offered or sold the
securities to which such rights, preferences or privileges relate, and 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 registration statement shall have become effective, or the
Company shall have provided to the Depositary an opinion of counsel to the
effect that the offering and sate of such securities to such holders are exempt
from registration under the provisions of the Securities Act.
The Company shall notify the Depositary whether 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, and the Company agrees
with the Depositary that the Company will use its reasonable best efforts to
take such action or obtain such authorization, consent or permit sufficiently in
advance of the expiration of such rights, preferences or privileges to enable
such holders to exercise such rights, preferences or privileges.
11
SECTION 4.04. Notice of Dividends, etc.; Fixing Record Date for Holders of
------------------------------------------------------------
Receipts. Whenever any cash dividend or other cash distribution shall become
--------
payable or any distribution other than cash shall be made, or if rights,
preferences or privileges shall at any time be offered, with respect to Stock,
or whenever the Depositary shall receive notice of any meeting at which holders
of Stock are entitled to vote or of which holders of Stock are entitled to
notice, or whenever the Depositary and the Company shall decide it is
appropriate, the Depositary shall in each such instance fix a record date (which
shall be the same date as the record date fixed by the Company with respect to
or otherwise in accordance with the terms of the Stock) for the determination of
the holders of Receipts who shall be entitled to receive such dividend,
distribution, rights, preferences or privileges or the net proceeds of the sale
thereof, or to give instructions for the exercise of voting rights at any such
meeting, or who shall be entitled to notice of such meeting or for any other
appropriate reasons.
SECTION 4.05. Voting Rights. Upon receipt of notice of any meeting at which
-------------
the holders of Stock are entitled to vote, the Depositary shall, as soon as
practicable thereafter, mail to the record holders of Receipts a notice which
shall contain (i) such information as is contained in such notice of meeting and
(ii) a statement that the holders may, subject to any applicable restrictions,
instruct the Depositary as to the exercise of the voting rights pertaining to
the amount of Stock represented by their respective Depositary Shares (including
an express indication that instructions may be given to the Depositary to give
a discretionary proxy to a person designated by the Company) and a brief
statement as to the manner in which such instructions may be given. Upon the
written request of the holders of Receipts on the relevant record date, the
Depositary shall endeavor insofar as practicable to vote or cause to be voted,
in accordance with the instructions set forth in such requests, the maximum
number of whole shares of Stock represented by the Depositary Shares
evidenced by all Receipts as to which any particular voting instructions are
received. The Company hereby agrees to take all reasonable action which may be
deemed necessary by the Depositary in order to enable the Depositary to vote
such Stock or cause such Stock to be voted. In the absence of specific
instructions from the holder of a Receipt, the Depositary will not vote (but, at
its discretion, may appear at any meeting with respect to such Stock unless
directed to the contrary by the holders of all the Receipts) to the extent of
the Stock represented by the Depositary Shares evidenced by such Receipt.
SECTION 4.06. Changes Affecting Deposited Securities and Reclassifications,
-------------------------------------------------------------
Recapitalizations, etc. Upon any change in par or stated value, split-up,
----------------------
combination or any other reclassification of the Stock, or upon any
recapitalization,
12
reorganization, merger or consolidation affecting the Company or to which it is
a party, the Depositary may in its discretion with the approval of, and shall
upon the instructions of, the Company, and (in either case) in such manner as
the Depositary may deem equitable, (i) make such adjustments as are certified by
the Company in the fraction of an interest represented by one Depositary Share
in one share of Stock as may be necessary fully to reflect the effects of such
change in par or stated value, split-up, combination or other reclassification
of Stock, or of such recapitalization, reorganization, merger or consolidation
and (ii) treat any securities which shall be received by the Depositary in
exchange for or upon conversion of or in respect of the Stock as new deposited
securities so received in exchange for or upon conversion or in respect of such
Stock. In any such case the Depositary may in its discretion, with the approval
of the Company, execute and deliver additional Receipts or may call for the
surrender of all outstanding Receipts to be exchanged for new Receipts
specifically describing such new deposited securities. Anything to the contrary
herein notwithstanding, holders of Receipts shall have the right from and after
the effective date of any such change in par or stated value, split-up,
combination or other reclassification of the Stock or any such recapitalization,
reorganization, merger or consolidation to surrender such Receipts to the
Depositary with instructions to convert, exchange or surrender the Stock
represented thereby only into or for, as the case may be, the kind and amount of
shares of stock and other securities and property and cash into which the Stock
represented by such Receipts might have been converted or for which such Stock
might have been exchanged or surrendered immediately prior to the effective date
of such transaction.
SECTION 4.07. Delivery of Reports. The Depositary shall furnish to holders
-------------------
of Receipts any reports and communications received from the Company which are
received by the Depositary and which the Company is required to furnish to the
holders of the Stock.
SECTION 4.08. Lists of Receipt Holders. Promptly upon request from time to
------------------------
time by the Company, the Depositary shall furnish to it a list, as of the most
recent practicable date, of the names, addresses and holdings of Depositary
Shares of all record holders of Receipts.
ARTICLE V
The Depositary, the Depositary's
Agents, the Registrar and the Company
-------------------------------------
SECTION 5.01. Maintenance of Offices, Agencies and Transfer Books by the
----------------------------------------------------------
Depositary; Registrar. Upon execution of this Deposit Agreement, the Depositary
---------------------
shall maintain at the
13
Depositary's Office, facilities for the execution and delivery, registration and
registration of transfer, surrender and exchange of Receipts, and at the offices
of the Depositary's Agents, if any, facilities for the delivery, registration of
transfer, surrender and exchange of Receipts, all in accordance with the
provisions of this Deposit Agreement.
The Depositary shall keep books at the Depositary's Office for the
registration and registration of transfer of Receipts, which books at all
reasonable times shall be open for inspection by the record holders of Receipts;
provided that any such holder requesting to exercise such right shall certify to
--------
the Depositary that such inspection shall be for a proper purpose reasonably
related to such person's interest as an owner of Depositary Shares evidenced by
the Receipt.
The Depositary may close such books, at any time or from time to time, when
deemed expedient by it in connection with the performance of its duties
hereunder.
The Depositary may, with the approval of the Company, appoint a Registrar
for registration of the Receipts or the Depositary Shares evidenced thereby. If
the Receipts or the Depositary Shares evidenced thereby or the Stock represented
by such Depositary Shares shall be listed on one or more national stock
exchanges, the Depositary will appoint a Registrar (acceptable to the Company)
for registration of such Receipts or Depositary Shares in accordance with any
requirements of such exchange. Such Registrar (which may be the Depositary if so
permitted by the requirements of any such exchange) may be removed and a
substitute registrar appointed by the Depositary upon the request or with the
approval of the Company. If the 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
Depasitary Shares or such Stock as may be required by law or applicable stock
exchange regulation.
SECTION 5.02. Prevention of or Delay in Performance by the Depositary, the
------------------------------------------------------------
Depositary's Agents, the Registrar or the Company. Neither the Depositary nor
-------------------------------------------------
any Depositary's Agent nor any Registrar nor the Company shall incur any
liability to any holder of any Receipt if by reason of any provision of any
present or future law, or regulation thereunder, of the United States of America
or of any other governmental authority or, in the case of the Depositary, the
Depositary's Agent or the Registrar, by reason of any provision, present or
future, of the Company's Certificate of Incorporation, as amended (including the
Certificate) or by reason of any act of God or war or other circumstance beyond
the control of the relevant party, the Depositary, the Depositary's Agent, the
Registrar or the Company
14
shall be prevented or forbidden from, or subjected to any penalty on account of,
doing or performing any act or thing which the terms of this Deposit Agreement
provide shall be done or performed; nor shall the Depository, any Depository's
Agent, any Registrar or the Company incur liability to any holder of a Receipt
(i) by reason of any nonperformance or delay, caused as aforesaid, in the
performance of any act or thing which the terms of this Deposit Agreement shall
provide shall or may be done or performed, or (ii) by reason of any exercise
of, or failure to exercise, any discretion provided for in this Deposit
Agreement except, in the case of any such exercise or failure to exercise
discretion not caused as aforesaid, if caused by the negligence or willful
misconduct of the party charged with such exercise or failure to exercise.
SECTION 5.03. Obligations of the Depository, the Depository's Agents, the
----------------------------------------------------------
Registrar and the Company. Neither the Depository nor any Depositary's Agent nor
-------------------------
any Registrar nor the Company assumes any obligation or shall be subject to any
liability under this Deposit Agreement to holders of Receipts other than for its
negligence, willful misconduct or bad faith.
Neither the Depository nor any Depository'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 Depository 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 Depository nor any Depository's Agent nor arty 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 Depository, any Depository'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 Depository shall not be responsible for any failure to carry out any
instruction to vote any of the shares of stock or for the manner or effect of
any such vote made, as long as any such action or non-action is in good faith.
The Depository 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 Depository or any Registrar.
15
The Depository, the Depository's Agents, and any Registrar may own and deal
in any class of securities of the Company and its affiliates and in Receipts.
The Depository 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 Depository; Appointment of
---------------------------------------------------------
Successor Depository. The Depository may at any time resign as Depository
--------------------
hereunder by delivering notice of its election to do so to the Company, such
resignation to take effect upon the appointment of a successor Depositary and
its acceptance of such appointment as hereinafter provided.
The Depository may at any time be removed by the Company by notice of such
removal delivered to the Depository, such removal to take effect upon the
appointment of a successor depository hereunder and its acceptance of such
appointment as hereinafter provided.
In case at any time the Depository acting hereunder shall resign or be
removed, the Company shall, within 60 days after the delivery of the notice of
resignation or removal, as the case may be, appoint a successor Depository,
which shall be a bank or trust company having its principal office in the United
States of America and having a combined capital and surplus of at least
$50,000,000. If no successor Depository shall have been so appointed and have
accepted appointment within 60 days after delivery of such notice, the resigning
or removed Depositary may petition any court of competent jurisdiction for the
appointment of a successor Depository. Every successor Depository shall execute
and deliver to its predecessor and to the Company an instrument in writing
accepting its appointment hereunder, and thereupon such successor Depository,
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 Depository under this Deposit Agreement, and such predecessor, upon payment
of all sums due it and on the written request of the Company, shall promptly
execute and deliver an instrument transferring to such successor all rights and
powers of such predecessor hereunder, shall duly assign, transfer and deliver
all right, title and interest it the Stock and any moneys or property held
hereunder to such successor, and shall deliver to such successor a list of the
record holders of all outstanding Receipts and such records, books and other
information in its possession relating thereto. Any successor Depository shall
promptly mail notice of its appointment to the record holders of Receipts.
Any corporation into or with which the Depository may be merged,
consolidated or converted shall be the successor of such Depository without the
execution or filing of any document or any further act, and notice thereof shall
not be required
16
hereunder. Such successor Depository may authenticate the Receipts in the name
of the predecessor Depository or in the name of the successor Depository.
SECTION 5.05. Corporate Notices and Reports. The Company agrees that it
------------------------------
will deliver to the Depository, and the Depositary will, promptly after receipt
thereof, transmit to the record holders of Receipts, in each case at the
addresses recorded in the Depository's books, copies of all notices and reports
(including without limitation financial statements) required by law, by the
rules of any national securities exchange upon which the Stock, the Depository
Shares or the Receipts are listed or by the Company's Restated Certificate of
Incorporation (including the Certificate), to be furnished to the record holders
of Receipts. Such transmission will be at the Company's expense and the Company
will provide the Depositary with such number of copies of such documents as
the Depository 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 5.06. Indemnification by the Company. The Company shall indemnify
-------------------------------
the Depository, any Depository's Agent and any Registrar against, and hold each
of them harmless from, any loss, liability or expense (including the reasonable
costs and expenses of defending itself) which may arise out of acts performed or
omitted in connection with this Agreement and the Receipts by the Depository,
any Registrar or any of their respective agents (including any Depositary's
Agent), except for any liability arising out of negligence, willful misconduct
or bad faith on the respective parts of any such person or persons. The
obligations of the Company set forth in this Section 5.06 shall survive any
succession of any Depositary, Registrar or Depository's Agent.
SECTION 5.07. Fees, Charges and Expenses. The Company agrees promptly to
---------------------------
pay the Depository the compensation to be agreed upon with the Company for all
services rendered by the Depository hereunder and to reimburse the Depository
for its reasonable out-of-pocket expenses (including reasonable counsel fees and
expenses) incurred by the Depository without negligence, willful misconduct, bad
faith or breach of this Agreement on its part in connection with the services
rendered by it hereunder. The Company shall pay all charges of the Depository in
connection with the initial deposit of the Stock and the initial issuance of the
Depository Shares, all withdrawals of shares of the Stock by owners of
Depositary Shares, and any redemption or exchange of the Stock at the option of
the Company. The Company shall pay all transfer and other taxes and governmental
charges arising solely from the existence of the depository arrangements. All
other transfer and other taxes and governmental charges shall be at the expense
of holders of Depository Shares evidenced by
17
Receipts. If, at the request of a holder of Receipts, the Depositary incurs
charges or expenses for which the Company is not otherwise liable hereunder,
such holder will be liable for such charges and expenses. All other charges and
expenses of the Depositary and any Depositary's Agent hereunder and of any
Registrar (including, in each case, reasonable fees and expenses of counsel)
incident to the performance of their respective obligations hereunder will be
paid upon consultation and agreement between the Depositary and the Company as
to the amount and nature of such charges and expenses. The Depositary shall
present its statement for charges and expenses to the Company at such intervals
as the Company and the Depositary may agree.
ARTICLE VI
Amendment and Termination
------------------------
SECTION 6.01. Amendment. The form of the Receipts and any provisions of
---------
this Deposit Agreement may at any time and from time to time be amended by
agreement between the Company and the Depositary in any respect which they may
deem necessary or desirable; provided, however, that no such amendment which
-------- -------
shall materially and adversely alter the rights of the holders of Receipts shall
be effective unless such amendment shall have been approved by the holders of at
least a majority (or, in the case of amendments relating to or affecting rights
to receive dividends or distributions or voting or redemption rights two-thirds
of the holders) of the Depositary Shares then outstanding. Every holder of an
outstanding Receipt at the time any such amendment becomes effective shall be
deemed by continuing to hold such receipt, to consent and agree to such
amendment and to be bound by the Depositary Agreement as amended thereby. In no
event shall any amendment impair the right, subject to the provisions of
sections 2.05 and 2.05 and Article III, of any owner of Depositary Shares to
surrender any Receipt evidencing such Depositary Shares to the Depositary with
instructions to deliver to the holder the Stock and all money and other
property, if any, represented thereby, except in order to comply with mandatory
provisions of applicable law or the rules and regulations of any governmental
body, agency or commission, or applicable stock exchange.
SECTION 5.02. Termination. This Agreement may be terminated by the Company
------------
at any time upon not less than 60 days prior written notice to the Depositary,
in which case, at least 30 days prior to the date fixed in such notice for such
termination, the Depositary will mail notice of such termination the record
holders of all Receipts then outstanding.
If any Receipts shall remain outstanding after the date of termination of
this Deposit Agreement, the Depositary
18
thereafter shall discontinue the transfer of Receipts, shall suspend the
distribution of dividends to the holders thereof and shall not give any further
notices (other than notice of such termination) or perform any further acts
under this Deposit Agreement, except that the Depositary shall continue to
collect dividends and other distributions pertaining to Stock, shall sell
rights, preferences or privileges as provided in this Deposit Agreement and
shall continue to deliver the Stock and any money and other property, if any,
represented by Receipts upon surrender thereof by the holders thereof. At any
time after the expiration of two years from the date of termination, the
Depositary may sell Stock then held hereunder at public or private sale, at such
places and upon such terms as it deems proper and may thereafter hold the net
proceeds of any such sale, together with any money and other property held by it
hereunder, without liability for interest, for the benefit, pro rata in
accordance with their holdings, of the holders of Receipts that have not
theretofore been surrendered. After making such sale, the Depositary shall be
discharged from all obligations under this Deposit Agreement except to account
for such net proceeds and money and other property.
This Agreement may be terminated by the Company or the Depositary only if
(i) all outstanding Depositary Shares have been redeemed pursuant to Section
2.08, (ii) there shall have been made a final distribution in respect of the
Stock in connection with any liquidation, dissolution or winding up of the
Company and such distribution shall have been distributed to the holders of
Depositary Shares pursuant to Section 4.01 or 4.02, as applicable or (iii) upon
the consent of holders of Depositary Receipts representing not less than
two-thirds of the Depositary Shares outstanding.
Upon the termination of this Deposit Agreement, the Company shall be
discharged from all obligations under this Deposit Agreement except for its
obligations to the Depositary, any Depositary's Agent and any Registrar under
Sections 5.06 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.
19
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 ore or wore 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 by given to the Company
-------
hereunder or under the Receipts shall be in writing and shall be deemed to have
been duty given if personally delivered or sent by mail, or by telegram or
facsimile transmission confirmed by letter, addressed to the Company at
Xxxxxxx Xxxxx & Co., Inc.
000 Xxxxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Secretary
Facsimile No.: (000) 000-0000
with a copy to:
Xxxxxxx Xxxxx & Co., Inc.
World Financial Center
Xxxxx Xxxxx, 0xx Xxxxx
Xxx Xxxx, Xxx Xxxx 10080-6107
Attention: Treasurer
Facsimile No.: (000) 000-0000
or at any other addresses of which the Company shall have notified the
Depositary in writing.
Any and all notices to be given to the Depositary hereunder or under the
Receipts shall be in writing and shall be deemed to have been duly given if
personally delivered or sent by mail, or by telegram or facsimile transmission
confirmed by letter, addressed to the Depositary at the Depositary's office at
Citibank, N.A.
000 Xxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Corporate Trust Department
Facsimile No.:(000)000-0000
or at any other address of which the Depositary shall have notified the Company
in writing.
20
Any and all notices to be given to any record holder of a Receipt
hereunder or under the Receipts shall be in writing and shall be deemed to have
been duly given if personally delivered or sent by mail, or by telegram or
facsimile transmission confirmed by letter, addressed to such record holder at
the address of such record holder as it appears on the books of the Depositary,
or if such holder shall have timely filed with the Depositary a written request
that notices intended for such holder be mailed to some other address, at the
address designated in such request.
Delivery of a notice sent by mail or by telegram or facsimile transmission
shall be deemed to be effected at the time when a duly addressed letter
containing the same (or a confirmation thereof in the case of a telegram or
facsimile transmission) is deposited, postage prepaid, in a post office letter
box. The Depositary or the Company may, however, act upon any telegram or
facsimile" transmission received by it from the other or from any holder of a
Receipt, notwithstanding that such telegram or facsimile transmission shall not
subsequently be confirmed by letter or as aforesaid.
SECTION 7.05. Depositary's Agents. The Depositary may from time to time
-------------------
appoint Depositary's Agents to act in any respect for the Depositary for the
purposes of this Deposit Agreement and may at any time appoint additional
Depositary's Agents and vary or terminate the appointment of such Depositary's
Agents. The Depositary will promptly notify the Company of any, such action.
The Company hereby also appoints the Depositary as Registrar and Transfer
Agent in respect of the Receipts and the Depositary hereby accepts such
Appointments.
SECTION 7.06. Holders of Receipts Are Parties. The holders of Receipts
-------------------------------
from time to time shall be parties to this Deposit Agreement and shall be bound
by all of the terms and conditions hereof and of the Receipts by acceptance of
delivery thereof.
SECTION 7.07. Governing Law. This Deposit Agreement and the Receipts and
-------------
all rights hereunder and thereunder and provisions hereof and thereof shall be
governed by, and construed in accordance with, the laws of the State of New
York without giving effect to applicable conflicts of law principles.
SECTION 7.08. Inspection of Deposit Agreement. Copies of this Deposit
-------------------------------
Agreement shall be filed with the Depositary and the Depository's Agents and
shall be open to inspection during business hours at the Depositary's Office and
the respective offices of the Depositary's Agents, if any, by any holder of a
Receipt.
21
SECTION 7.09. Headings. The headings of articles and sections in this
--------
Deposit Agreement and in the form of the Receipt set forth in Exhibit A hereto
have been inserted for convenience only and are not to be regarded as a part of
this Deposit Agreement or the Receipts or to have any bearing upon the meaning
or interpretation of any provision contained herein or in the Receipts.
22
IN WITNESS WHEREOF, the Company and the Depositary have duly executed this
Agreement as of the day and year first above set forth, and all holders of
Receipts shall become parties hereto by and upon acceptance by them of delivery
of Receipts issued in accordance with the terms hereof.
XXXXXXX XXXXX & CO., INC.
Attested by
____________________________ BY___________________________
Secretary Treasurer
SEAL
Attested by CITITBANK N.A.
____________________________ BY__________________________
SEAL
23
