EXHIBIT 4-d
MORGAN XXXXXXX, XXXX XXXXXX, DISCOVER & CO.,
THE BANK OF NEW YORK
AND
THE HOLDERS FROM TIME TO TIME OF
THE DEPOSITARY RECEIPTS DESCRIBED HEREIN
DEPOSIT AGREEMENT
Dated as of _____________________________, 199__
TABLE OF CONTENTS
Page
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ARTICLE 1
Definitions
Section 1.1. Definitions............................................... 1
ARTICLE 2
Form of Receipts, Deposit of Stock, Execution and Delivery, Transfer,
Surrender and Redemption of Receipts
Section 2.1. Form and Transfer of Receipts............................. 2
Section 2.2. Deposit of Stock; Execution and Delivery of
Receipts in Respect Thereof............................. 4
Section 2.3. Registration of Transfer of Receipts...................... 5
Section 2.4. Split-ups and Combinations of Receipts;
Surrender of Receipts and Withdrawal of
Stock................................................... 5
Section 2.5. Limitations on Execution and Delivery,
Transfers, Surrender and Exchange of
Receipts................................................ 6
Section 2.6. Lost Receipts, Etc........................................ 6
Section 2.7. Optional Redemption of Stock.............................. 7
Section 2.8. Cancellation and Destruction of Surrendered
Receipts................................................ 8
Section 3.1. Filing Proofs, Certificates and Other
Information............................................. 9
Section 3.2. Payment of Taxes or Other Governmental
Charges................................................. 9
Section 3.3. Warranty as to Stock...................................... 9
ARTICLE 4
The Deposited Securities; Notices
Section 4.1. Cash Distributions........................................ 9
Section 4.2. Distributions Other than Cash, Rights,
Preferences or Privileges............................... 10
Section 4.3. Subscription Rights, Preferences or Privileges............ 10
Section 4.4. Notice of Dividends, Etc.; Fixing Record
Date for Holders of Receipts............................ 12
Section 4.5. Voting Rights............................................. 12
Section 4.6. Changes Affecting Deposited Securities and
Reclassifications, Recapitalizations, etc............... 13
Section 4.7. Delivery of Reports....................................... 13
Section 4.8. Lists of Receipt Holders.................................. 13
ARTICLE 5
The Depositary, the Depositary's Agents, the Registrar and the Company
Section 5.1. Maintenance of Offices, Agencies and
Transfer Books by the Depositary;
Registrar............................................... 14
Section 5.2. Prevention of or Delay in Performance by
the Depositary or the Company........................... 14
Section 5.3. Obligation of the Depositary and the Company.............. 15
Section 5.4. Resignation and Removal of the Depositary;
Appointment of Successor Depositary..................... 16
Section 5.5. Corporate Notices and Reports............................. 17
Section 5.6. Indemnification........................................... 17
Section 5.7. Charges and Expenses...................................... 18
ARTICLE 6
Amendment and Termination
Section 6.1. Amendment................................................. 19
Section 6.2. Termination............................................... 19
ARTICLE 7
Miscellaneous
Section 7.1. Counterparts.............................................. 20
Section 7.2. Exclusive Benefit of Parties.............................. 21
Section 7.3. Invalidity of Provisions.................................. 21
Section 7.4. Notices................................................... 21
Section 7.5. Depositary's Agents....................................... 22
Section 7.6. Holders of Receipts Are Parties........................... 22
Section 7.7. Governing Law............................................. 22
Section 7.8. Inspection of Deposit Agreement........................... 22
Section 7.9. Headings.................................................. 22
EXHIBIT A -- Form of Receipt
DEPOSIT AGREEMENT dated as of ____________________________,
199___, among XXXXXX XXXXXXX, XXXX XXXXXX, DISCOVER & CO., a Delaware
corporation, THE BANK OF NEW YORK, a New York banking corporation, 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 from time to time of shares of
[specify designation of Series of Preferred Stock], without par value,
stated value $______ per share, of Xxxxxx Xxxxxxx, Xxxx Xxxxxx, Discover &
Co. 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, modification and
omissions, as hereinafter provided in this Deposit Agreement;
NOW, THEREFORE, in consideration of the premises, the parties
hereto agree as follows:
ARTICLE 1
Definitions
Section 1.1. Definitions. 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 Designation of
Preferences and Rights filed or to be filed with the Secretary of State of the
State of Delaware establishing the Stock as a series of preferred stock,
without par value, of the Company.
"Company" shall mean Xxxxxx Xxxxxxx, Xxxx Xxxxxx, Discover &
Co., a Delaware corporation, and its successors.
"Deposit Agreement" shall mean this Deposit Agreement, as
amended or supplemented from time to time.
"Depositary" shall mean The Bank of New York, or any successor
as Depositary hereunder.
"Depositary Shares" shall mean Depositary Shares, each
representing [specify fraction] share(s) of Stock and evidenced by a Receipt.
"Depositary's Agent" shall mean an agent appointed by the
Depositary pursuant to Section 7.5.
"Depositary's Office" shall mean the principal corporate trust
office of the Depositary in New York City, at which at any particular time its
depositary receipt business shall be administered.
"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.
"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 holder of such Depositary Shares.
"Registrar" shall mean the Depositary or such other bank or
trust company that shall be appointed to register ownership and transfers of
Receipts as herein provided as well as to effect transfers and the
distribution of dividends with respect to the Stock.
"Securities Act" shall mean the Securities Act of 1933, as
amended.
"Stock" shall mean shares of the Company's ________ Cumulative
Preferred Stock, par value $0.01 per share , stated value $ ____________ per
share.
ARTICLE 2
Form of Receipts, Deposit of Stock, Execution and Delivery,
Transfer, Surrender and Redemption of Receipts
Section 2.1. Form and Transfer of Receipts. Definitive
Receipts shall be engraved or printed or lithographed on steel-engraved
borders, with appropriate insertions, modifications and omissions, as
hereinafter provided. Pending the preparation of definitive Receipts, the
Depositary, upon the written order of the Company delivered in compliance with
Section 2.2, shall execute and deliver temporary Receipts that are printed,
lithographed, typewritten, mimeographed or otherwise substantially of the
tenor of the definitive Receipts in lieu of which they are issued and with
such appropriate insertions, omissions, substitutions and other variations as
the persons executing such Receipts may determine, as evidenced by their
execution of such Receipts. If temporary Receipts are issued, the Company and
the Depositary will cause definitive Receipts to be prepared without
unreasonable delay. After the preparation of definitive Receipts, the
temporary Receipts shall be exchangeable for definitive Receipts upon
surrender of the temporary Receipts at an office described in the penultimate
paragraph of Section 2.2, 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 are 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
Deposit Agreement, and with respect to the Stock, as definitive Receipts.
Receipts shall be executed by the Depositary by the manual or
facsimile signature of a duly authorized signatory of the Depositary and, if a
Registrar for the Receipts shall have been appointed, countersigned by the
manual signature of a duly authorized signatory of the Registrar; provided
that no Receipt shall be entitled to any benefits under this Deposit Agreement
or be valid or obligatory for any purpose unless it shall have been executed
manually by a duly authorized signatory of the Depositary or, if a Registrar
for the Receipts shall have been appointed, by facsimile signature of a duly
authorized signatory of the Depositary and countersigned manually by a duly
authorized signatory of such Registrar. The Depositary shall record on its
books each Receipt so signed and delivered as hereinafter provided.
Receipts shall be in denominations of any number of whole
Depositary Shares.
Receipts may be endorsed with or have incorporated in the text
thereof such legends or recitals or changes not inconsistent with the
provisions of this Deposit Agreement as may be required by the Depositary or
required to comply with any applicable law or any regulation thereunder or
with the rules and regulations of any securities exchange upon which the
Stock, the Depositary Shares or the Receipts may be listed or to conform with
any usage with respect thereto, or to indicate any special limitations or
restrictions to which any particular Receipts are subject.
Title to Depositary Shares evidenced by a Receipt that 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 registered on the books of the Depositary as provided in Section 2.3,
the Depositary may, notwithstanding any notice to the contrary, treat the
holder of record at such time as the absolute owner thereof for the purpose of
determining the person entitled to distributions of dividends or other
distributions or to any notice provided for in this Deposit Agreement and for
all other purposes.
Section 2.2. Deposit of Stock; Execution and Delivery of
Receipts in Respect Thereof. Subject to the terms and conditions of this
Deposit Agreement, the Company may from time to time deposit shares of Stock
under this Deposit Agreement by delivery to the Depositary of a certificate or
certificates for the Stock to be deposited, properly endorsed or accompanied,
if required by the Depositary, by a duly executed instrument of transfer or
endorsement, in form satisfactory to the Depositary, together with all such
certifications as may be required by the Depositary in accordance with the
provisions of this Deposit Agreement, and together with a written order 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 for 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.
Upon receipt by the Depositary of a certificate or certificates
for Stock deposited in accordance with the provisions of this Section,
together with the other documents required as above specified, and upon
recordation of the Stock on the books of the Company in the name of the
Depositary or its nominee, the Depositary, subject to the terms and conditions
of this Deposit Agreement, shall execute and deliver, to or upon the order of
the person or persons named in the written order delivered to the Depositary
referred to in the first paragraph of this Section, a Receipt or Receipts for
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.
Other than in the case of splits, combinations or other
reclassifications affecting the Stock, or in the case of dividends or other
distributions of Stock, if any, there shall be deposited hereunder not more
than ________________ shares of Stock.
Section 2.3. Registration of Transfer of Receipts. Subject to
the terms and conditions of this Deposit Agreement, including payment of the
fees of the Depositary as provided in Section 5.7, the Depositary shall
register on its books from time to time transfers of Receipts upon any
surrender thereof by the holder in person or by duly authorized attorney,
properly endorsed or accompanied by a properly executed instrument of
transfer. Thereupon the Depositary shall execute a new Receipt or Receipts
evidencing the same aggregate number of Depositary Shares as those evidenced
by the Receipt or Receipts surrendered and deliver such new Receipt or
Receipts to or upon the order of the person entitled thereto.
Section 2.4. Split-ups and Combinations of Receipts;
Surrender of Receipts and Withdrawal of Stock. Upon surrender of a Receipt
or Receipts at the Depositary's Office or at such other offices as it may
designate for the purpose of effecting a split-up or combination of such
Receipt or Receipts, and subject to the terms and conditions of this
Deposit Agreement, the Depositary shall execute and deliver a new Receipt
or Receipts in the authorized denomination or denominations requested,
evidencing the aggregate number of Depositary Shares evidenced by the
Receipt or Receipts surrendered.
Any holder of a Receipt or Receipts representing any number of
whole shares of Stock may withdraw the Stock and all money and other property,
if any, represented thereby by surrendering such Receipt or Receipts at the
Depositary's Office or at such other offices as the Depositary may designate
for such withdrawals. Upon payment of the fees of the Depositary for the
withdrawal of Stock as provided in Section 5.7 and payment of all taxes and
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 Depositary Shares evidenced by the Receipt or Receipts so
surrendered for withdrawal, but holders of such whole shares of Stock will
not thereafter be entitled to deposit such Stock hereunder or to receive
Depositary Shares therefor. If a Receipt delivered by the holder to the
Depositary in connection with such withdrawal shall evidence a number of
Depositary Shares in excess of the number of Depositary Shares representing
the number of whole shares of Stock to be so withdrawn, the Depositary
shall at the same time, in addition to such number of whole shares of Stock
and such money and other property, if any, to be so withdrawn, deliver to
such holder, or pursuant to his order, upon payment of the fees of the
Depositary for the withdrawal of Stock as provided in Section 5.7 and
payment of all taxes, a new Receipt evidencing such excess number of
Depositary Shares. 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.
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 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 the withdrawal of such shares of Stock be
properly endorsed in blank or accompanied by a properly executed instrument
of transfer in blank.
Delivery of the Stock and the money and other property, if any,
represented by Receipts surrendered for withdrawal shall be made by the
Depositary at the Depositary's Office, except that, at the request, risk and
expense of the holder surrendering such Receipt or Receipts and for the
account of the holder thereof, such delivery may be made at such other place
as may be designated by such holder.
Section 2.5. Limitations on Execution and Delivery, Transfers,
Surrender and Exchange of Receipts. As a condition precedent to the execution
and delivery, registration of transfer, split-up, combination, surrender or
exchange of any Receipt, the Depositary, any of the Depositary's Agents or the
Company may require payment to it of a sum sufficient for the payment (or, in
the event that the Depositary or the Company shall have made such payment, the
reimbursement to it) of any charges or expenses payable by the holder of a
Receipt pursuant to Section 5.7, may require the production of evidence
satisfactory to it as to the identity and genuineness of any signature and may
also require compliance with such regulations, if any, as the Depositary or
the Company may establish consistent with the provisions of this Deposit
Agreement.
The deposit of Stock may be refused, the delivery of
Receipts against Stock may be suspended, the registration of transfer of
Receipts may be refused and the registration of transfer, surrender or
exchange of outstanding Receipts may be suspended (i) during any period
when the register of stockholders of the Company is closed or (ii) if any
such action is deemed necessary or advisable by the Depositary, any of the
Depositary's Agents or the Company at any time or from time to time because
of any requirement of law or of any government or governmental body or
commission or under any provision of this Deposit Agreement.
Section 2.6. Lost Receipts, Etc. In case any receipt shall
be mutilated, destroyed, lost or stolen, the Depositary in its discretion
may execute and deliver a Receipt of like form and tenor in exchange and
substitution for such mutilated Receipt upon cancellation thereof, or in
lieu of and in substitution for such destroyed, lost or stolen Receipt.
Before the Depositary shall execute and deliver a new Receipt in
substitution for a destroyed, lost or stolen Receipt, the holder thereof
shall have (i) filed with the Depositary (a) a request for such execution
and delivery before the Depositary has received notice that the Receipt has
been acquired by a bona fide purchaser and (b) a sufficient indemnity bond
(if so requested by the Depositary) and (ii) satisfied any other reasonable
requirements imposed by the Depositary.
Section 2.7. Optional Redemption of Stock. If the Company
shall elect to redeem shares of Stock pursuant to the Certificate, it shall
(unless otherwise agreed in writing with the Depositary) give the Depositary
not less than 45 days' notice of the date of such proposed redemption of Stock
and of the number of shares of Stock held by the Depositary to be redeemed. On
the date of such redemption, provided that the Company shall then have paid in
full to the Depositary the redemption price (determined pursuant to the
Certificate) of the Stock deposited with the Depositary to be redeemed, the
Depositary shall redeem (using the proceeds of such redemption) the Depositary
Shares relating to such Stock. The Depositary shall mail, first class postage
prepaid, notice of the redemption of Stock and the proposed simultaneous
redemption of the Depositary Shares relating to the Stock to be redeemed, not
less than 30 days and not more than 60 days prior to the date fixed for
redemption of such Stock and Depositary Shares (the "Redemption Date"), to the
holders on the record date fixed for such redemption pursuant to Section 4.4
of the Receipts evidencing the Depositary Shares to be so redeemed, at the
addresses of such holders as the same 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 shall affect the sufficiency of the proceedings for
redemption as to the other holders. The Company shall provide the Depositary
with such notice, and each such notice shall state: (i) the record date for
purposes of such redemption; (ii) the Redemption Date; (iii) the number of
Depositary Shares to be redeemed and, if fewer than all the Depositary Shares
held by any holder are to be redeemed, the number of Depositary Shares held by
such holder to be so redeemed; (iv) the redemption price; (v) the place or
places where Receipts evidencing Depositary Shares to be redeemed are to be
surrendered for payment of the redemption price; and (vi) that dividends in
respect of the Stock represented by the Depositary Shares to be redeemed will
cease to accrue at the close of business on such Redemption Date. 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 by any other
substantially equivalent method determined by the Depositary.
Notice having been mailed by the Depositary as aforesaid,
from and after the Redemption Date (unless the Company shall have failed to
redeem the shares of Stock to be redeemed by it as set forth in the
Company's notice provided for in the preceding paragraph) all dividends in
respect of the shares of Stock called for redemption shall cease to accrue,
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 price) 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, if the
Depositary shall so require), such Depositary Shares shall be redeemed at a
redemption price per Depositary Share equal to five (5) times the
redemption price per share paid in respect of shares of Stock pursuant to
the Certificate plus all money and other property, if any, represented by
such Depositary Shares, including all amounts paid by the Company in
respect of dividends that on the Redemption Date have accrued on the shares
of Stock to be so redeemed and that have not theretofore been paid. The
foregoing shall be subject further to the terms and conditions of the
Certificate.
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 payment of
the redemption price for the Depositary Shares called for redemption, a new
Receipt evidencing the Depositary Shares evidenced by such prior Receipt and
not called for redemption.
Except as provided in the preceding paragraph of this Section
2.7, the Depositary shall not be required to transfer or exchange for another
Receipt any Receipt evidencing Depositary Shares called or being called for
redemption in whole or in part.
The Depositary shall remit to the Company any funds deposited
by or for the account of the Company for the purpose of redeeming any
Depositary Shares that the holders thereof have failed to redeem after two
years from the date of such deposit, without further action necessary on the
part of the Company.
Section 2.8. Cancellation and Destruction of Surrendered
Receipts. All Receipts surrendered to the Depositary or any Depositary's
Agent shall be cancelled by the Depositary. Except as prohibited by applicable
law or regulation, the Depositary is authorized to destroy all Receipts so
cancelled.
ARTICLE 3
Certain Obligations of Holders of Receipts and the Company
Section 3.1. Filing Proofs, Certificates and Other
Information. Any holder of a Receipt may be required from time to time to
file such proof of residence, or other matters or other information, to
execute such certificates and to make such 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, redemption or exchange, 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 property
or rights or of the proceeds thereof until such proof or other information is
filed or such certificates are executed or such representations and warranties
are made.
Section 3.2. Payment of Taxes or Other Governmental Charges.
Holders of Receipts shall be obligated to make payments to the Depositary of
certain charges and expenses, as provided in Section 5.7. 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 3.3. Warranty as to Stock. The Company hereby
represents and warrants that the Stock, when issued, will be duly authorized,
validly issued, fully paid and nonassessable. Such representation and warranty
shall survive the deposit of the Stock and the issuance of Receipts.
ARTICLE 4
The Deposited Securities; Notices
Section 4.1. Cash Distributions. Whenever the Depositary shall
receive any cash dividend or other cash distribution on Stock, the Depositary
shall, subject to Sections 3.1 and 3.2, distribute to holders of Receipts on
the record date fixed pursuant to Section 4.4 (net of the fees of the
Depositary as provided in Section 5.7 hereof) such amounts of such dividend
or distribution as are, as nearly as practicable, in proportion to the
respective numbers of Depositary Shares evidenced by the Receipts held by such
holders; provided, however, that in case the Company or the Depositary shall be
required to withhold and shall withhold from any cash dividend or other cash
distribution in respect of the Stock an amount on account of taxes, the amount
made available for distribution or distributed in respect of Depositary Shares
shall be reduced accordingly. The Depositary shall distribute or make available
for distribution, as the case may be, only such amount, however, as can be
distributed without attributing to any holder of Depositary Shares a fraction
of one cent, and any balance not so distributable shall be held by the
Depositary (without liability for interest thereon) and shall be added to and
be treated as part of the next sum received by the Depositary for distribution
to holders of Receipts then outstanding.
Section 4.2. Distributions Other than Cash, Rights,
Preferences or Privileges. Whenever the Depositary shall receive any
distribution other than cash, rights, preferences or privileges upon Stock,
the Depositary shall, subject to Sections 3.1 and 3.2, distribute to 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 may deem
equitable and practicable for accomplishing such distribution. If in the
opinion of the Depositary such distribution cannot be made proportionately
among such holders, or if for any other reason (including any requirement that
the Company or the Depositary withhold an amount on account of taxes or
governmental charges) 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, 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 3.1 and
3.2, be distributed or made available for distribution, as the case may be, by
the Depositary to such holders of Receipts as provided by Section 4.1 in the
case of a distribution received in cash. The Company shall not make any
distribution of such securities unless the Company shall have provided an
opinion of counsel stating that such securities have been registered under the
Securities Act or do not need to be so registered.
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 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 holders of Receipts in such manner as the Depositary may
determine, either by the issue to such holders of warrants representing such
rights, preferences or privileges or by such other method as may be determined
by the Depositary with the approval of the Company; provided, however, that
(i) if at the time of issue or offer of any 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 may (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), 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 3.1 and 3.2, be distributed by the Depositary to the 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 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 unless the offering and sale of such
securities to such holders are exempt from registration under the provisions
of the Securities Act and the Company shall have provided to the Depositary an
opinion of counsel to such effect.
If any other action under the laws of any jurisdiction or any
governmental or administrative authorization, consent or permit is required in
order for such rights, preferences or privileges to be made available to
holders of Receipts, the Company agrees with the Depositary that the Company
will use its best efforts to take such action or obtain such authorization,
consent or permit sufficiently in advance of the expiration of such rights,
preferences or privileges to enable such holders to exercise such rights,
preferences or privileges.
Section 4.4. 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 (i) any meeting at
which holders of Stock are entitled to vote or of which holders of Stock are
entitled to notice or (ii) any election on the part of the Company to
redeem any shares of Stock, 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 whose Depositary Shares are to be
redeemed or for any other appropriate reasons.
Section 4.5. 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 holders of Receipts
entitled thereto a notice that shall contain (i) such information as is
contained in such notice of meeting and (ii) a statement that such 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, provided that the
Depositary receives such instructions sufficiently in advance of such voting
to enable it to so vote or cause to be voted. 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 Stock or cause such Stock to be
voted. In the absence of specific instructions from the holder of a Receipt,
the Depositary will abstain from voting (but, in its discretion, not from
appearing at any meeting with respect to such Stock unless directed to the
contrary by the holders of all the Receipts) to the extent of the Stock
represented by the Depositary Shares evidenced by such Receipt.
Section 4.6. Changes Affecting Deposited Securities and
Reclassifications, Recapitalizations, etc. Upon any change in par or
stated value, split-up, combination or any other reclassification of the
Stock, or upon any recapitalization, reorganization, merger, amalgamation
or consolidation 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, amalgamation or consolidation and (ii) treat any
securities that 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, amalgamation 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 4.7. Delivery of Reports. The Depositary shall
furnish to holders of Receipts any reports and communications received from
the Company that are received by the Depositary as the holder of Stock.
Section 4.8. Lists of Receipt Holders. Promptly upon request
from time to time by the Company, the Depositary shall furnish to it a list,
as of a recent date, of the names, addresses and holdings of all holders of
Receipts.
ARTICLE 5
The Depositary, the Depositary's Agents,
the Registrar and the Company
Section 5.1. Maintenance of Offices, Agencies and Transfer
Books by the Depositary; Registrar. Upon execution of this Deposit Agreement,
the Depositary shall maintain at the Depositary's Office, facilities for the
execution and delivery, registration and registration of transfer, surrender
and exchange, split-up, combination and redemption of Receipts and deposit and
withdrawal of Stock, and at the offices of the Depositary's Agents, if any,
facilities for the delivery, registration of transfer, surrender and exchange,
split-up, combination and redemption of Receipts and deposit and withdrawal
of Stock, 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 holders of
Receipts; provided that any such holder requesting to exercise such right
shall certify to the Depositary that such inspection shall be for a proper
purpose reasonably related to such person's interest as an owner of
Depositary Shares evidenced by the Receipts.
The Depositary may close such books, at any time or from
time to time, when deemed expedient by it in connection with the
performance of its duties hereunder.
The Depositary may, with the approval of the Company, appoint a
Registrar for registration of the Receipts or the Depositary Shares evidenced
thereby. If the Receipts or the Depositary Shares evidenced thereby or the
Stock represented by such Depositary Shares shall be listed on the New York
Stock Exchange, 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 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 Depositary Shares or such
Stock as may be required by law or applicable stock exchange regulation.
Section 5.2. Prevention of or Delay in Performance by the
Depositary or the Company. Neither the Depositary 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 by
reason of any provision, present or future, of the Company's Restated
Certificate of Incorporation, as amended (including the Certificate) or of
the Depositary Shares or by reason of any act of God or war or other
circumstance beyond the control of the relevant party, the Depositary or
the Company shall be prevented or forbidden from, delayed in, or subjected
to any penalty on account of, doing or performing any act or thing which
the terms of this Deposit Agreement provide shall be done or performed; nor
shall the Depositary 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.
Where, by the terms of a distribution pursuant to Sections 4.1
or 4.2 of this Deposit Agreement, or an offering or distribution pursuant to
Section 4.3 of this Deposit Agreement, or for any other reason, such
distribution or offering may not be made available to holders of Receipts, and
the Depositary may not dispose of such distribution or offering on behalf of
such holders and make the net proceeds available to such holders, then the
Depositary shall not make such distribution or offering, and shall allow any
rights, if applicable, to lapse.
Section 5.3. Obligation of the Depositary and the Company.
Neither the Depositary nor the Company assumes any obligation or shall be
subject to any liability under this Deposit Agreement to holders of
Receipts except that each of them agrees (i) to use its best judgment and
good faith in the performance of such duties as are specifically set forth
in this Deposit Agreement and (ii) that it shall be liable for negligence
or willful misconduct in the performance of such duties as are specifically
set forth in this Deposit Agreement.
Neither the Depositary nor the Company shall be under any
obligation to appear in, prosecute or defend any action, suit or other
proceeding in respect of the Stock, the Depositary Shares or the Receipts that
in its opinion may involve it in expense or liability, unless indemnity
satisfactory to it against all expense and liability shall be furnished as
often as may be required.
Neither the Depositary nor the Company shall be liable for any
action or any failure to act by it in reliance upon the 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 advice or information. The Depositary and
the Company may each rely and shall each be protected in acting upon any
written notice, request, direction or other document believed by it to be
genuine and to have been signed or presented by the proper party or parties.
The Depositary shall not be responsible for any failure to
carry out any instruction to vote any of the shares of Stock or for the manner
or effect of any such vote made, as long as any such action or non-action is
in good faith. The Depositary undertakes to perform such duties and only such
duties as are specifically set forth in this Deposit Agreement, and no implied
covenants or obligations shall be read into this Deposit Agreement against the
Depositary. The Depositary may also act as transfer agent or registrar of any
of the securities of the Company and its affiliates.
The Depositary undertakes not to issue any Receipt other
than to evidence the Depositary Shares then on deposit with the Depositary.
The Depositary also undertakes not to sell (except as provided herein),
pledge or lend Depositary Shares held by it as Depositary.
No disclaimer of liability under the Securities Act is intended
by any provision of this Deposit Agreement.
Section 5.4. Resignation and Removal of the Depositary;
Appointment of Successor Depositary. The Depositary may at any time resign as
Depositary hereunder by delivering written notice of its election to do so to
the Company, such resignation to take effect upon the appointment of a
successor Depositary and its acceptance of such appointment as hereinafter
provided.
The Depositary may at any time be removed by the Company by
notice of such removal delivered to the Depositary, such removal to take
effect upon the appointment of a successor Depositary 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 resignation or removal, as the case may be, appoint a
successor Depositary, which shall be a bank or trust company having its
principal office in the United States of America and having a combined
capital and surplus of at least $50,000,000. If no successor Depositary
shall have been so appointed and have accepted appointment within 60 days
after delivery of such notice, the resigning or removed Depositary may
petition any court of competent jurisdiction for the appointment of a
successor Depositary. Every successor Depositary shall execute and deliver
to its predecessor and to the Company an instrument in writing accepting
its appointment hereunder, and thereupon such successor Depositary, without
any further act or deed, shall become fully vested with all the rights,
powers, duties and obligations of its predecessor and for all purposes
shall be the Depositary under this Deposit Agreement, and such predecessor,
upon payment of all sums due it and upon the written request of the
Company, shall execute and deliver an instrument transferring to such
successor all rights and powers of such predecessor hereunder, shall duly
assign, transfer and deliver all right, title and interest in the Stock and
any moneys or property held hereunder to such successor, and shall deliver
to such successor a list of the holders of all outstanding Receipts and
such records, books and other information in its possession relating
thereto. Any successor Depositary shall promptly mail notice of its
appointment to the holders of Receipts.
Any corporation into or with which the Depositary may be
merged, consolidated or converted shall be the successor of such Depositary
without the execution or filing of any document or any further act, and
notice thereof shall not be required hereunder.
Section 5.5. Corporate Notices and Reports. The Company
agrees that it will transmit to the holders of Receipts, in each case at
the addresses furnished to it pursuant to Section 4.8, all notices and
reports (including without limitation financial statements) required by law
or by the rules of any national securities exchange upon which the Stock,
the Depositary Shares or the Receipts are listed, to be furnished to the
holders of Receipts. Such transmission will be at the Company's expense.
Section 5.6. Indemnification. The Company agrees to indemnify
the Depositary, its directors, employees, agents and affiliates and any
Depositary's Agent against, and hold each of them harmless from, any liability
or expense (including, but not limited to, the reasonable fees and expenses of
counsel) which may arise out of acts performed or omitted in accordance with
the provisions of this Deposit Agreement and of the Receipts, as the same may
be amended, modified or supplemented from time to time, (i) by either the
Depositary or a Depositary's Agent or their respective directors, employees,
agents and affiliates, except for any liability or expense arising out of the
negligence or bad faith of any of them, or (ii) by the Company or any of its
directors, employees, agents and affiliates.
The Depositary agrees to indemnify the Company, its directors,
employees, agents and affiliates and hold them harmless from any liability or
expense (including, but not limited to, the reasonable fees and expenses of
counsel) which may arise out of acts performed or omitted by the Depositary
or a Depositary's Agent or their respective directors, employees, agents and
affiliates due to their negligence or bad faith. The obligations set forth in
this Section 5.6 shall survive the termination of this Deposit Agreement and
any succession or substitution of any Depositary.
Any person seeking indemnification hereunder (an "indemnified
person") shall notify the person from whom it is seeking indemnification in
writing (the "indemnifying person") of the commencement of any action or claim
in respect of which indemnification may be sought promptly after such
indemnified person becomes aware of such commencement (provided that the
failure to make such notification shall not affect such indemnified person's
rights under this Section 5.6) and shall consult in good faith with the
indemnifying person as to the conduct of the defense of such action or claim,
which shall be reasonable in the circumstances. No indemnified person shall
compromise or settle any such action or claim without the consent of the
indemnifying person.
Section 5.7. Charges and Expenses. The Company shall pay all
transfer and other taxes and governmental charges arising solely from the
existence of the depositary arrangements. The Company shall pay all charges
of the Depositary in connection with the initial deposit of the Stock and the
initial issuance of the Depositary Shares, all withdrawals of shares of the
Stock by owners of Depositary Shares and the registration of transfer of title
to any Depositary Shares. All other transfer and other taxes and governmental
charges shall be at the expense of holders of Depositary Shares. If, at the
request of a holder of Receipts, the Depositary incurs charges or expenses for
which it or 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, fees and expenses of counsel) incident to the
performance of their respective obligations hereunder will be paid by the
Company 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 once every three
months or at such other intervals as the Company and the Depositary may agree.
ARTICLE 6
Amendment and Termination
Section 6.1. Amendment. The form of the Receipts and any
provisions of this Deposit Agreement may at any time and from time to time be
amended by agreement between the Company and the Depositary in any respect
which they may deem necessary or desirable; provided, however, that no such
amendment which shall materially and adversely alter the rights of the holders
of Receipts shall be effective unless such amendment shall have been approved
by the holders of at least a majority of the Depositary Shares then
outstanding. Notwithstanding the foregoing, in no event may any amendment
impair the right of any holder of any Receipts, upon surrender of such
Receipts and subject to any conditions specified in this Deposit Agreement, to
receive shares of Stock and any money or other property represented thereby,
except in order to comply with mandatory provisions of applicable law. Every
holder of an outstanding Receipt at the time any such amendment becomes
effective in accordance with its terms shall be deemed, by continuing to hold
such Receipt, to consent and agree to such amendment and to be bound by the
Deposit Agreement as amended thereby.
Section 6.2. Termination. This Deposit Agreement may be
terminated by the Company at any time upon not less than 60 days' prior
written notice to the Depositary, in which case, upon a date that is not later
than 30 days after the date of such notice, the Depositary shall deliver or
make available for delivery to holders of Receipts, upon surrender of the
Receipt or Receipts held by such holder, and upon payment of any applicable
taxes or governmental charges, such number of whole shares of Stock
represented by such Receipt or Receipts. The Depositary may likewise
terminate this Deposit Agreement by mailing notice of such termination to
the Company and the holders of all Receipts then outstanding 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 the holder of any Receipt or Receipts shall
not have surrendered such Receipt or Receipts in exchange for whole shares
of Stock on or prior to the effective date of termination of this Deposit
Agreement, such holder shall for all purposes, including the payment of
dividends, be deemed to be a holder of the appropriate number of whole
shares of Stock previously represented by such Receipt or Receipts and
shall thereafter surrender to the Company such Receipt or Receipts in
exchange for whole shares of Stock.
If any Receipts shall remain outstanding after the date of
termination, the Depositary thereafter shall discontinue the registration of
transfers of Receipts, shall suspend the distribution of dividends to the
holders thereof, and shall not give any further notices or perform any further
acts under this Deposit Agreement, except that the Depositary shall continue
to collect dividends and other distributions pertaining to the Stock, shall
sell rights as provided in this Deposit Agreement, and shall continue to
deliver such Stock, together with any dividends or other distributions
received with respect thereto and the net proceeds of the sale of any rights
or other property, in exchange for Receipts surrendered to the Depositary
(after deducting, in each case, the fee of the Depositary for the surrender of
a Receipt, any expenses for the account of the holder of such Receipt in
accordance with the terms and conditions of this Deposit Agreement, and any
applicable taxes or governmental charges). At any time after the expiration of
one year from the date of termination, the Depositary may sell such Stock then
held hereunder and may thereafter hold uninvested the net proceeds of any such
sale, together with any other cash then held by it hereunder, without
liability for interest, for the pro rata benefit of the holders which have not
theretofore surrendered their Receipts. After making such sale, the Depositary
shall be discharged from all obligations under this Deposit Agreement, except
to account for such net proceeds and other cash (after deducting, in each
case, the fee of the Depositary for the surrender of a Receipt, any expenses
for the account of the holder of such Receipt in accordance with the terms and
conditions of this Deposit Agreement, and any applicable taxes or governmental
charges).
This Deposit Agreement shall automatically terminate after
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 Receipts
pursuant to Section 4.1 or 4.2, as applicable.
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 and any Depositary's Agent and any
Registrar under Sections 5.6 and 5.7.
ARTICLE 7
Miscellaneous
Section 7.1. Counterparts. This Deposit Agreement may be
executed in any number of counterparts, and by each of the parties hereto on
separate counterparts, each of which counterparts, when so executed and
delivered, shall be deemed an original, but all such counterparts taken
together shall constitute one and the same instrument.
Section 7.2. 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 7.3. 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 and all notices to be given to the
Company hereunder or under the Receipts shall be in writing and shall be
deemed to have been duly given if personally delivered or sent by mail, or by
telegram or facsimile transmission confirmed by letter, addressed to the
Company at
0000 Xxxxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention:
Telephone No.: (000) 000-0000
or at any other address of which the Company shall have notified the
Depositary in writing.
Any and all notices to be given to the Depositary hereunder or
under the Receipts shall be in writing and shall be 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 000 Xxxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, or at any
other address of which the Depositary shall have notified the Company in
writing.
Any and all notices to be given to any 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 holder at the
address of such holder as it appears on the books of the Depositary, or if
such holder shall have filed with the Depositary a written request that
notices intended for such holder be mailed to some other address, at the
address designated in such request.
Delivery of a notice sent by mail or by 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, first class
postage prepaid, in a post office letter box. The Depositary or the
Company may, however, without liability, 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 7.5. 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 of any such action and shall remain responsible for the performance
of its obligations hereunder as if no Depositary Agent were appointed.
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 7.6. 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 7.7. 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.
Section 7.8. Inspection of Deposit Agreement. Copies of this
Deposit Agreement shall be filed with the Depositary and the Depositary's
Agents and shall be open to inspection during business hours at the
Depositary's Office and the respective offices of the Depositary's Agents, if
any, by any holder of a Receipt.
Section 7.9. Headings. The headings of articles and sections
in this Deposit Agreement and in the form of the Receipt set forth in Exhibit
A hereto have been inserted for convenience only and are not to be regarded as
a part of this Deposit Agreement or the Receipts or to have any bearing upon
the meaning or interpretation of any provision contained herein or in the
Receipts.
IN WITNESS WHEREOF, the Company and the Depositary have duly
executed this Agreement as of the day and year first above set forth, and all
holders of Receipts shall become parties hereto by and upon acceptance by them
of delivery of Receipts issued in accordance with the terms hereof.
XXXXXX XXXXXXX, XXXX XXXXXX,
DISCOVER & CO.
By _____________________________
Name:
Title:
THE BANK OF NEW YORK
By _____________________________
Name:
Title:
EXHIBIT A
[FORM OF FACE OF RECEIPT]
NUMBER
DEPOSITARY SHARES
DRB
DEPOSITARY RECEIPT FOR DEPOSITARY SHARES,
REPRESENTING _______ % CUMULATIVE PREFERRED STOCK OF
XXXXXX XXXXXXX, XXXX XXXXXX, DISCOVER & CO.
CUSIP ______________
INCORPORATED UNDER THE LAWS OF THE STATE OF DELAWARE. SEE REVERSE FOR CERTAIN
DEFINITIONS
THE BANK OF NEW YORK, as Depositary (the "Depositary"), hereby certifies that
is the registered owner of DEPOSITARY SHARES
("Depositary Shares"), each Depositary Share representing [specify fraction]
Cumulative Preferred Stock, without par value, stated value $_______________
per share (the "Stock"), of Xxxxxx Xxxxxxx, Xxxx Xxxxxx, Discover & Co., a
Delaware corporation (the "Corporation"), on deposit with the Depositary,
subject to the terms and entitled to the benefits of the Deposit Agreement
dated as of ________________, 199__ (the "Deposit Agreement"), among the
Corporation, the Depositary and the holders from time to time of the
Depositary Receipts issued thereunder. By accepting this Depositary Receipt
the holder hereof becomes a party to and agrees to be bound by all the terms
and conditions of the Deposit Agreement. This Depositary Receipt shall not be
valid or obligatory for any purpose or entitled to any benefits under the
Deposit Agreement unless it shall have been executed by the Depositary by the
manual signature of a duly authorized signatory or, if executed in facsimile
by the Depositary, countersigned by a Registrar in respect of the Depositary
Receipts by the manual signature of a duly authorized signatory thereof.
Dated:
Countersigned and Registered:
THE BANK OF NEW YORK THE BANK OF NEW YORK
Registrar Depositary
By By
[FORM OF REVERSE OF RECEIPT]
XXXXXX XXXXXXX, XXXX XXXXXX, DISCOVER & CO.
THE CORPORATION WILL FURNISH WITHOUT CHARGE TO EACH RECEIPTHOLDER WHO SO
REQUESTS A COPY OF THE DEPOSIT AGREEMENT AND A COPY OR SUMMARY OF THE
CERTIFICATE OF THE DESIGNATIONS, POWERS, PREFERENCES AND RELATIVE,
PARTICIPATING, OPTIONAL OR OTHER RIGHTS, AND OF THE QUALIFICATIONS,
LIMITATIONS OR RESTRICTIONS THEREOF, OF THE STOCK OF THE CORPORATION. ANY
SUCH REQUEST IS TO BE ADDRESSED TO THE DEPOSITARY NAMED ON THE FACE OF THIS
RECEIPT.
___________________
The following abbreviations, when used in the instructions on the face of this
receipt, shall be construed as though they were written out in full according
to applicable laws or regulations.
TEN COM- as tenants in common UNIF GIFT MIN ACT - _____ Custodian ______
(Minor) (Cust)
TEN ENT- as tenants by the Under Uniform Gifts to Minors Act
entireties
JT TEN - as joint tenants with __________________________________
right of survivorship (State)
and not as tenants in
common
Additional abbreviations may also be used though not in the above list.
For value received, _______ hereby sell(s), assign(s) and transfer(s) unto
PLEASE INSERT SOCIAL SECURITY OR OTHER
IDENTIFYING NUMBER OF ASSIGNEE
_____________________________________________________________________________
_____________________________________________________________________________
PLEASE PRINT OR TYPEWRITE NAME AND ADDRESS, INCLUDING ZIP CODE, OF ASSIGNEE
_____________________________________________________________________________
________________________________________Depositary Shares represented by the
within Receipt, hereby irrevocably constituting and appointing
___________________________ Attorney to transfer the said Depositary Shares on
the books of the within named Depositary with full power of substitution in
the premises.
Dated: __________________
_______________________________________________
NOTICE: The signature to the assignment must
correspond with the name as written upon the
face of this Receipt in every particular,
without alteration or enlargement or any change
whatever
