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EXHIBIT (4k)
DEPOSIT AGREEMENT
among
FERRO CORPORATION
and
-----------------------------------------------
and
THE HOLDERS FROM TIME TO TIME OF
THE DEPOSITARY RECEIPTS DESCRIBED HEREIN
IN RESPECT OF THE
{DESIGNATION OF PREFERRED STOCK}
Dated as of ____________, 19__
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TABLE OF CONTENTS
Page
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ARTICLE I
DEFINITIONS
ARTICLE II
FORM OF RECEIPTS, DEPOSIT OF PREFERRED STOCK,
EXECUTION AND DELIVERY, TRANSFER AND SURRENDER OF RECEIPTS
SECTION 2.1 Form and Transferability of Receipts . . . . . . . . . . . . . . . . .
SECTION 2.2 Deposit of Preferred Stock, Execution and
Delivery of Receipts in Respect Thereof . . . . . . . . . . . . . .
SECTION 2.3 Redemption of Preferred Stock . . . . . . . . . . . . . . . . . . . .
SECTION 2.4 Transfer of Receipts . . . . . . . . . . . . . . . . . . . . . . . . .
SECTION 2.5 Combination and Split-ups of Receipts . . . . . . . . . . . . . . . .
SECTION 2.6 Surrender of Receipts and Withdrawal of
Preferred Stock . . . . . . . . . . . . . . . . . . . . . . . . . .
SECTION 2.7 Limitations on Execution and Delivery,
Transfer, Split-up, Combination, Surrender
and Exchange of Receipts . . . . . . . . . . . . . . . . . . . . . .
SECTION 2.8 Lost Receipts, etc. . . . . . . . . . . . . . . . . . . . . . . . . .
SECTION 2.9 Cancellation and Destruction of Surrendered
Receipts . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
SECTION 2.10 Optional Conversion of Preferred Stock into
Common Stock . . . . . . . . . . . . . . . . . . . . . . . . . . .
SECTION 2.11 Mandatory Conversion of Preferred Stock into
Common Stock . . . . . . . . . . . . . . . . . . . . . . . . . . .
ARTICLE III
CERTAIN OBLIGATIONS OF HOLDERS
OF RECEIPTS AND THE COMPANY
SECTION 3.1 Filing Proofs, Certificates and Other
Information . . . . . . . . . . . . . . . . . . . . . . . . . . . .
SECTION 3.2 Payment of Taxes or Other Governmental Charges . . . . . . . . . . . .
SECTION 3.3 Representations and Warranties as to
Preferred Stock . . . . . . . . . . . . . . . . . . . . . . . . . .
ARTICLE IV
THE PREFERRED STOCK, NOTICES
SECTION 4.1 Cash Distributions . . . . . . . . . . . . . . . . . . . . . . . . . .
SECTION 4.2 Distributions Other Than Cash . . . . . . . . . . . . . . . . . . . .
SECTION 4.3 Subscription Rights, Preferences or Privileges . . . . . . . . . . . .
SECTION 4.4 Notice of Dividends; Fixing of Record Date for
Holders of Receipts . . . . . . . . . . . . . . . . . . . . . . . .
SECTION 4.5 Voting Rights . . . . . . . . . . . . . . . . . . . . . . . . . . . .
SECTION 4.6 Changes Affecting Preferred Stock and
Reclassifications, Recapitalizations, etc. . . . . . . . . . . . . .
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SECTION 4.7 Inspection of Reports . . . . . . . . . . . . . . . . . . . . . . . .
SECTION 4.8 List of Receipt Holders . . . . . . . . . . . . . . . . . . . . . . .
ARTICLE V
THE DEPOSITARY AND THE COMPANY
SECTION 5.1 Maintenance of Offices, Agencies, Transfer
Books by the Depositary, the Registrar . . . . . . . . . . . . . . .
SECTION 5.2 Prevention of or Delay in Performance by the
Depositary, the Depositary's Agents or
the Company . . . . . . . . . . . . . . . . . . . . . . . . . . . .
SECTION 5.3 Obligations of the Depositary, the Depositary's
Agents, and the Company . . . . . . . . . . . . . . . . . . . . . .
SECTION 5.4 Resignation and Removal of the Depositary;
Appointment of Successor Depositary . . . . . . . . . . . . . . . .
SECTION 5.5 Corporate Notices and Reports . . . . . . . . . . . . . . . . . . . .
SECTION 5.6 Deposit of Preferred Stock by the Company . . . . . . . . . . . . . .
SECTION 5.7 Indemnification by the Company . . . . . . . . . . . . . . . . . . . .
SECTION 5.8 Fees, Charges and Expenses . . . . . . . . . . . . . . . . . . . . . .
ARTICLE VI
AMENDMENT AND TERMINATION
SECTION 6.1 Amendment . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
SECTION 6.2 Termination . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
ARTICLE VII
MISCELLANEOUS
SECTION 7.1 Counterparts . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
SECTION 7.2 Exclusive Benefits of Parties . . . . . . . . . . . . . . . . . . . .
SECTION 7.3 Invalidity of Provisions . . . . . . . . . . . . . . . . . . . . . . .
SECTION 7.4 Notices . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
SECTION 7.5 Depositary's Agents . . . . . . . . . . . . . . . . . . . . . . . . .
SECTION 7.6 Holders of Receipts Are Parties . . . . . . . . . . . . . . . . . . .
SECTION 7.7 Governing Law . . . . . . . . . . . . . . . . . . . . . . . . . . . .
SECTION 7.8 Headings . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Exhibit A . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . A-1
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DEPOSIT AGREEMENT
This DEPOSIT AGREEMENT, dated as of _____________, 19__, is entered
into among FERRO CORPORATION, an Ohio corporation (the "Company"),
________________, as Depositary (including any successor, the "Depositary"), and
all holders from time to time of Depositary Receipts executed and delivered
hereunder.
WHEREAS, it is desired to provide, as hereinafter set forth in this
Deposit Agreement, for the deposit of up to ______ shares of {Designation of
Preferred Stock}, without par value per share (the "Preferred Stock"), of the
Company with the Depositary, as agent for the beneficial owners of the Preferred
Stock, for the purposes set forth in this Deposit Agreement and for the
execution and delivery hereunder of the Receipts (as defined below) evidencing
Depositary Shares (as defined below) in respect of the Preferred Stock so
deposited; and
WHEREAS, the Receipts are to be substantially in the form of the
Depositary Receipt annexed as Exhibit A, with appropriate insertions,
modifications and omissions, as hereinafter provided in this Deposit Agreement;
NOW, THEREFORE, in consideration of the premises contained herein, and
for other good and valuable consideration, the receipt and sufficiency of which
are hereby acknowledged, the parties hereto hereby agree as follows:
ARTICLE I
DEFINITIONS
All capitalized terms used but not defined herein shall have the
respective meanings assigned to such terms in the Express Terms (as defined
below). The following definitions shall apply to the respective terms (in the
singular and plural forms of such terms) used in this Agreement and the
Depositary Receipts:
"Articles of Incorporation" shall mean the Eleventh Amended Articles of
Incorporation, as amended from time to time, of the Company.
"Business Day" shall mean any day other than a Saturday, Sunday or a
day on which banking institutions in the States of Ohio and New York are
authorized or obligated by law or executive order to close.
"Common Stock" shall mean the Common Stock, $1.00 par value per share,
of the Company.
"Company" shall mean Ferro Corporation, an Ohio corporation, and its
successors.
"Deposit Agreement" shall mean this agreement, as the same may be
amended, modified or supplemented from time to time.
"Depositary" shall mean ____________________________, as Depositary
hereunder, and any successor as Depositary hereunder.
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"Depositary's Office" shall mean the office of the Depositary in the
City of ________________ at which at any particular time its business in respect
of matters governed by this Deposit Agreement shall be administered, which at
the date of this Deposit Agreement is located at
_____________________________________________.
"Depositary Share" shall mean an interest in ___________________ of a
share of the Preferred Stock deposited with the Depositary hereunder, as
evidenced by the Receipts executed and delivered hereunder, and the same
proportional interest in any and all other property received by the Depositary
in respect of such share of Preferred Stock and held under this Deposit
Agreement. Subject to the terms of this Deposit Agreement, each owner of a
Depositary Share is entitled, proportionately, to all the rights, preferences
and privileges or the Preferred Stock represented by such Depositary Share,
including the dividend, voting and liquidation rights contained in the Express
Terms, and to the benefits of all obligations of the Company under the Express
Terms.
"Depositary's Agent" shall mean an agent appointed by the Depositary as
provided, and for the purposes specified, in Section 7.5.
"Express Terms" shall mean the designations, rights, powers,
qualifications, limitations and restrictions of the Preferred Stock as set forth
in the Articles of Incorporation and filed with the Secretary of State of Ohio.
"Mandatory Conversion Date" shall have the meaning given in
Section 2.11.
"Preferred Stock" shall mean the {Designation of Preferred Stock} per
share, of the Company.
"Receipt" or "Depositary Receipt" shall mean a Depositary Receipt
executed and delivered hereunder to evidence one or more Depositary Shares,
whether in definitive or temporary form.
"Record holder" as applied to a Receipt shall mean the person in whose
name a Receipt is registered on the books maintained by the Depositary for such
purpose.
"Registrar" shall mean any bank or trust company appointed to register
Receipts as herein provided.
"Securities Act" shall mean the Securities Act of 1933, as amended.
ARTICLE II
FORM OF RECEIPTS, DEPOSIT OF PREFERRED STOCK,
EXECUTION AND DELIVERY, TRANSFER AND SURRENDER OF RECEIPTS
SECTION 2.1 Form and Transferability of Receipts. Definitive Receipts
shall be engraved or printed or lithographed with steel-engraved borders and
shall be substantially in the form set forth in Exhibit A annexed to this
Deposit Agreement, with appropriate insertions, modifications and omissions, as
hereinafter provided. Pending preparation of definitive Receipts, the
Depositary, upon the written order of the Company or any holder of Preferred
Stock, as the case may be, shall execute and deliver temporary Receipts,
delivered for deposit in compliance with Section 2.2, which are printed,
lithographed, typewritten, mimeographed or otherwise substantially of the tenor
of the definitive Receipts in lieu of which they are executed and delivered and
with such appropriate
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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 executed and delivered, 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 second to last 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 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 Preferred Stock deposited
hereunder, as definitive Receipts.
Receipts shall be executed by the Depositary by the manual signature of
a duly authorized signatory of the Depositary; provided, however, that such
signature may be a facsimile if a Registrar (other than the Depositary) shall
have countersigned the Receipts by the manual signature of a duly authorized
signatory of the Registrar. No Receipt shall be entitled to any benefits under
this Deposit Agreement or be valid or obligatory for any purpose unless it shall
have been executed as provided in the preceding sentence. The Depositary shall
record on its books each Receipt executed as provided above and delivered as
hereinafter provided.
Except as the Depositary may otherwise determine, Receipts shall be in
denominations of any number of whole Depositary Shares. All Receipts shall be
dated the date of their execution.
Receipts may be endorsed with or have incorporated in the text thereof
such legends or recitals or changes not inconsistent with the provisions of this
Deposit Agreement as may be required by the Depositary or required to comply
with any applicable law or regulation or with the rules and regulations of any
securities exchange upon which the Preferred Stock or the Depositary Shares may
be listed to conform with any usage with respect thereto, or to indicate any
special limitations or restrictions to which any particular receipts are subject
by reason of the date of issuance of the Preferred Stock or otherwise.
Ownership of any Receipt (and of the Depositary Shares evidenced by
such Receipt) that is properly endorsed or accompanied by a properly executed
instrument of transfer or endorsement, or other instrument satisfactory to the
Depositary, shall be transferable by delivery; provided, however, that until a
Receipt shall be transferred on the books of the Depositary as provided in
Section 2.4, the Depositary and the Company 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 distribution 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 Preferred Stock, Execution and Delivery of
Receipts in Respect Thereof. Subject to the terms and conditions of this Deposit
Agreement, the Company or any holder of Preferred Stock may deposit shares of
Preferred Stock under this Deposit Agreement by delivery to the Depositary of a
certificate or certificates for the shares of Preferred Stock to be deposited,
properly endorsed or accompanied by a properly executed instrument of transfer
or endorsement in form satisfactory to the Depositary, together with (i) all
such certifications as may be required by the Depositary in accordance with the
provisions of this Deposit Agreement and (ii) a written order directing the
Depositary to execute and deliver to or upon the written order of the person or
persons stated
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in such order a Receipt or Receipts for the number of Depositary Shares
representing such deposited Preferred Stock.
If required by the Depositary, Preferred Stock presented for deposit at
any time, whether or not the register of holders of Receipts is closed, shall
also be accompanied by an agreement or assignment, or other instrument
satisfactory to the Depositary, that will provide for the prompt transfer to the
Depositary or its nominee of any dividend or right to subscribe for additional
Preferred Stock or to receive other property that any person in whose name the
Preferred Stock is or has been registered may thereafter receive upon or in
respect of such deposited Preferred Stock, or in lieu thereof such agreement of
indemnity or other agreement as shall be satisfactory to the Depositary.
Upon receipt by the Depositary of a certificate or certificates for the
shares of Preferred Stock to be deposited hereunder, together with the other
documents specified above, the Depositary shall, as soon as transfer and
registration can be accomplished, present such certificates to the registrar and
transfer agent of the Preferred Stock for transfer and registration in the name
of the Depositary or its nominee of the shares of Preferred Stock being
deposited. Deposited Preferred Stock shall be held by the Depositary in an
account to be established by the Depositary at the Depositary's Office.
Upon receipt by the Depositary of a certificate or certificates for
Preferred Stock to be deposited hereunder, together with the other documents
specified above, the Depositary, subject to the terms and conditions of this
Deposit Agreement, shall execute and deliver to or upon the order of the person
or persons named in the written order delivered to the Depositary referred to in
the first paragraph of this Section 2.2 a Receipt or Receipts for the number of
whole Depositary Shares representing the Preferred Stock so deposited and
registered in such name or names as may be requested by such person or persons.
The Depositary shall execute and deliver such Receipt or Receipts at the
Depositary's Office, except that, at the request, risk and expense of any person
requesting such delivery, such delivery may be made at such other place as may
be designated by such person. In each case, delivery will be made only upon
payment by such person to the Depositary of all taxes and other governmental
charges and any fees payable in connection with such deposit and the transfer of
the deposited Preferred Stock.
The Company shall deliver to the Depositary from time to time such
quantities of Receipts as the Depositary may request to enable the Depositary to
perform its obligations under this Deposit Agreement.
SECTION 2.3 Redemption of Preferred Stock. Whenever the Company shall
elect to redeem shares of Preferred Stock in accordance with the Express Terms
it shall (unless otherwise agreed in writing with the Depositary) give the
Depositary in its capacity as Depositary notice of the date of such proposed
redemption of the Preferred Stock, which notice shall (i) be given not less than
three (3) Business Days prior to the date the Depositary is to mail notice of
the redemption to the record holders of Receipts, in the case of a redemption of
all outstanding Depositary Shares, and not less than ten (10) calendar days
prior to the date the Depositary is to mail notice of the redemption to the
record holders of Receipts evidencing the Depositary Shares to be redeemed, in
the case of a partial redemption of outstanding Depositary Shares, and (ii) be
accompanied by a certificate from the Company stating that such redemption of
the Preferred Stock is in accordance with the provisions of the Express Terms.
Such notice shall be in addition to the notice required for redemption pursuant
to the Express Terms. On the date of any such redemption of Preferred Stock,
provided that the Company shall then have deposited with the Depositary the
shares of Common Stock as required pursuant to the Express Terms to be delivered
in exchange for the Preferred Stock held by the Depositary to be redeemed, the
Depositary shall redeem
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(using such shares of Common Stock and any cash deposited with it) the number of
Depositary Shares representing such redeemed Preferred Stock. Subject to the
penultimate sentence of this Paragraph, the Depositary shall mail, first class
postage prepaid, notice of the redemption of Preferred Stock and the
simultaneous redemption of the Depositary Shares representing the Preferred
Stock held by the Depositary to be redeemed, not less than 15 and not more than
60 days prior to the date fixed for redemption of such Preferred Stock and
Depositary Shares (the "Redemption Date"), to the record holders of the Receipts
evidencing the Depositary Shares to be so redeemed, at the addresses of such
holders as they appear on the records of the Depositary; but neither failure to
mail any such notice to one or more such holders nor any defect in any notice to
one or more such holders shall affect the sufficiency of the proceedings for
redemption as to other holders. Each such notice shall state: (i) the Redemption
Date; (ii) that all outstanding Depositary Shares are to be redeemed or, if less
than all the Depositary Shares held by any such holder are to be redeemed, the
number of such Depositary Shares held by such holder to be so redeemed; (iii)
(A) the number of shares of Common Stock deliverable upon redemption of each
Depositary Share pursuant to the Express Terms, and the Current Market Price
used to calculate such number of shares of Common Stock, (B) the number of
shares of Common Stock deliverable upon redemption of each Depositary Share
pursuant to the Express Terms and (C) the higher of the numbers of shares of
Common Stock specified in clauses (iii)(A) and (iii)(B); (iv) the Call Price and
the portion thereof applicable to each of the Depositary Shares; (v) the
Optional Conversion Rate (calculated in accordance with of the Express Terms)
and the resulting optional conversion rate applicable to the Depositary Shares,
together with a statement that all conversion rights with respect to Depositary
Shares called for redemption will terminate immediately prior to the close of
business on the date fixed for redemption; (vi) the place or places where
Receipts evidencing Depositary Shares are to be surrendered for redemption; and
(vii) that dividends in respect of the shares of Preferred Stock represented by
the Depositary Shares to be redeemed will cease to accumulate from and after
such Redemption Date. Any such notices shall be mailed in the same manner as
notices of redemption of the Preferred Stock are required to be mailed pursuant
to the Express Terms and published in the same manner as notices of redemption
of the Preferred Stock are required to be published pursuant to said section, if
so required. In case fewer than all the outstanding Depositary Shares are to be
redeemed, the Depositary Shares to be redeemed shall be selected by lot or pro
rata (as nearly as may be) or by any other equitable method determined by the
Depositary to be consistent with the method determined by the Board of Directors
of the Company with respect to the Preferred Stock.
Notice having been mailed and published by the Depositary as aforesaid,
from and after the Redemption Date (unless the Company shall have failed to
redeem the shares of Preferred Stock to be redeemed by it, as set forth in the
Company's notice provided for in the preceding paragraph), the Depositary Shares
called for redemption shall be deemed no longer to be outstanding and all rights
of the holders of Receipts evidencing such Depositary Shares except the right to
receive the shares of Common Stock upon redemption and cash for any fractional
share amount) 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
for shares of Common Stock and cash for any fractional share amount at a rate
per Depositary Share equal to one hundredth of the number of shares of Common
Stock (including fractional amounts) delivered upon redemption of a share of
Preferred Stock pursuant to the Express Terms. The foregoing shall be subject
further to the terms and conditions of the Express Terms.
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 shares of Common Stock
for the Depositary Shares called
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for redemption, a new Receipt evidencing the Depositary Shares evidenced by such
prior Receipt and not called for redemption.
No fractional shares of Common Stock shall be issuable upon the
redemption of Preferred Stock underlying the Depositary Shares. In lieu of any
fractional share otherwise issuable in respect of the aggregate number of shares
of Preferred Stock of any holder which are redeemed on any redemption date, the
Company shall cause to be delivered to such holder an amount in cash for such
fractional share as provided in the Express Terms.
Except with respect to a conversion of Depositary Shares which may
occur pursuant to the Express Terms, the Depositary shall not be required (a) to
execute and deliver, transfer or exchange any Receipts for a period beginning at
the opening of business 15 days next preceding any selection of Depositary
Shares and Preferred Stock to be redeemed and ending at the close of business on
the day of the mailing of notice of redemption of Depositary Shares or (b) to
transfer or exchange for another Receipt any Receipt evidencing Depositary
Shares called or being called for redemption in whole or in part, except as
provided in the third paragraph of this Section 2.3.
SECTION 2.4 Transfer of Receipts. Subject to the terms and conditions
of this Deposit Agreement, the Depositary shall make transfers on its books from
time to time of Receipts upon any surrender thereof at the Depositary's Office
or such other office as the Depositary may designate for such purpose, by the
holder in person or by a duly authorized attorney, properly endorsed or
accompanied by a properly executed instrument of transfer or endorsement, or
other instrument satisfactory to the Depositary, together with evidence of the
payment of any transfer taxes as may be required by law. Upon such surrender,
the Depositary shall execute a new Receipt or Receipts and deliver the same to
or upon the order of the person or persons entitled thereto evidencing the same
aggregate number of Depositary Shares evidenced by the Receipt or Receipts
surrendered.
SECTION 2.5 Combination and Split-ups of Receipts. Upon surrender of
a Receipt or Receipts at the Depositary's Office or such other office as the
Depositary may designate for the purpose of effecting a split-up or combination
of Receipts, subject to the terms and conditions of this Deposit Agreement, the
Depositary shall execute and deliver a new Receipt or Receipts in the authorized
denominations requested evidencing the same aggregate number of Depositary
Shares evidenced by the Receipt or Receipts surrendered; provided, however, that
the Depositary shall not execute and deliver any Receipt evidencing a fractional
Depositary Share.
SECTION 2.6 Surrender of Receipts and Withdrawal of Preferred Stock.
Any holder of a Receipt or Receipts may withdraw any or all of the Preferred
Stock (but only in whole shares of Preferred Stock) represented by the
Depositary Shares evidenced by such Receipts and all money and other property,
if any, represented by such Depositary Shares by surrendering such Receipt or
Receipts, properly endorsed or accompanied by a properly executed instrument of
transfer or endorsement, or other instrument satisfactory to the Depositary, at
the Depositary's Office or such other office as the Depositary may designate for
such withdrawals. After such surrender, without unreasonable delay, the
Depositary shall deliver to such holder, or to the person or persons designated
by such holder as hereinafter provided, the whole number of shares of Preferred
Stock and other property, if any, represented by the Depositary Shares evidenced
by the Receipt or Receipts so surrendered for withdrawal. If the Receipt or
Receipts delivered by the holder to the Depositary in connection with such
withdrawal shall evidence a number of Depositary Shares in excess of the number
of whole Depositary Shares representing the whole number of shares of Preferred
Stock to be withdrawn, the Depositary shall at the same time, in addition to
such whole number of shares of Preferred Stock and such money and other
property, if any,
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to be withdrawn, deliver to such holder, or (subject to Section 2.4) upon his
order, a new Receipt or Receipts evidencing such excess number of whole
Depositary Shares. Delivery of the Preferred Stock and such money and other
property being withdrawn may be made by the delivery of such certificates,
documents of title, and other instruments as the Depositary may deem
appropriate, which, if required by the Depositary, shall be properly endorsed or
accompanied by proper instruments of transfer.
If the Preferred Stock and the money and other property being withdrawn
are to be delivered to a person or persons other than the record holder of the
Receipt or Receipts being surrendered for withdrawal of Preferred Stock, such
holder shall execute and deliver to the Depositary a written order so directing
the Depositary and the Depositary may require that the Receipt or Receipts
surrendered by such holder for withdrawal of such shares of Preferred Stock be
properly endorsed in blank or accompanied by a properly executed instrument of
transfer or endorsement in blank.
The Depositary shall deliver the Preferred Stock and the money and
other property, if any, represented by the Depositary Shares evidenced by
Receipts surrendered for withdrawal 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 2.7 Limitations on Execution and Delivery, Transfer,
Split-up, Combination, Surrender and Exchange of Receipts. As a condition
precedent to the execution and delivery, transfer, split-up, combination,
surrender or exchange of any Receipt, the Depositary, the Depositary's Agent or
the Company may require any or all of the following: (i) payment to it of a sum
sufficient for the payment (or, in the event that the Depositary or the Company
shall have made such payment, the reimbursement to it) of any tax or other
governmental charge with respect thereto (including any such tax or charge with
respect to the Preferred Stock being deposited or withdrawn with respect to the
Common Stock, or other securities or property of the Company being issued upon
conversion or redemption); (ii) the production of proof satisfactory to it as to
the identity and genuineness of any signature; and (iii) compliance with such
regulations, if any, as the Depositary or the Company may establish not
inconsistent with the provisions of the Deposit Agreement.
The deposit of Preferred Stock may be refused, the delivery of Receipts
against Preferred Stock may be suspended, the transfer of Receipts may be
refused, and the transfer, split-up, combination, surrender or exchange of
outstanding Receipts may be suspended (i) during any period when the register of
holders of Receipts is closed, (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, or (iii) except for the transfer of Receipts, with the
approval of the Company, for any other reason.
SECTION 2.8 Lost Receipts, etc. In case any Receipt shall be
mutilated or destroyed or lost or stolen, the Depositary in its discretion may
execute and deliver a Receipt of like form and tenor in exchange and
substitution for such mutilated Receipt or in lieu of and in substitution for
such destroyed, lost or stolen Receipt; provided, however, that the holder
thereof provides the Depositary with (i) evidence satisfactory to the Depositary
of such destruction, loss or theft of such Receipt, of the authenticity thereof
and of his ownership thereof, (ii) reasonable indemnification satisfactory to
the Depositary and (iii) payment of any expense (including fees, charges and
expenses of the Depositary) in connection with such execution and delivery.
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SECTION 2.9 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 such Receipts so cancelled.
SECTION 2.10 Optional Conversion of Preferred Stock into Common Stock.
Receipts may be surrendered with written instructions to the Depositary to
instruct the Company to cause the conversion of any specified number of shares,
or fractions of shares, of Preferred Stock represented by whole Depositary
Shares evidenced by such Receipts into whole shares of Common Stock, and cash
for any fractional share of Common Stock, at the conversion price then in effect
for the Preferred Stock pursuant to the Express Terms as such conversion price
may be adjusted by the Company from time to time as provided in the Express
Terms. Subject to the terms and conditions of this Deposit Agreement and the
Express Terms, a holder of a Receipt or Receipts evidencing Depositary Shares
representing whole or fractional shares of Preferred Stock may surrender such
Receipt or Receipts at the Depositary's Office or at such office or to such
Depositary's Agent, as the Depositary may designate for such purpose, together
with a notice of conversion duly completed and executed, thereby directing the
Depositary to instruct the Company to cause the conversion of the number of
shares, or fractions of shares, of underlying Preferred Stock specified in such
notice of conversion into shares of Common Stock, and an assignment of such
Receipt or Receipts to the Company or in blank, duly completed and executed. To
the extent that a holder delivers to the Depositary for conversion a Receipt or
Receipts which in the aggregate are convertible into less than one whole share
of Common Stock, the holder shall receive payment in cash in lieu of such
fractional share of Common Stock otherwise issuable. If more than one Receipt
shall be delivered for conversion at one time by the same holder, the number of
whole shares of Common Stock issuable upon conversion thereof shall be computed
on the basis of the aggregate number of Depositary Shares represented by the
Receipts so delivered.
Upon receipt by the Depositary of a Receipt or Receipts, together with
notice of conversion, duly completed and executed, directing the Depositary to
instruct the Company to cause the conversion of a specified number of shares of
Preferred Stock, and an assignment of such Receipt or Receipts to the Company or
in blank, duly completed and executed, the Depositary shall instruct the Company
(i) to cause the conversion of the number of shares, or fractions of shares, of
Preferred Stock represented by the Depositary Shares evidenced by the Receipts
so surrendered for conversion as specified in the written notice to the
Depositary and (ii) to cause the delivery to the holders of such Receipts of a
certificate or certificates evidencing the number of whole shares of Common
Stock and the amount of money, if any, to be delivered to the holders of
Receipts surrendered for conversion in lieu of fractional shares of Common Stock
otherwise issuable. The Company shall as promptly as practicable after receipt
thereof cause the delivery of (i) a certificate or certificates evidencing the
number of whole shares of Common Stock into which the Preferred Stock
represented by the Depositary Shares evidenced by such Receipt or Receipts has
been converted, and (ii) any money or other property to which the holder is
entitled by reason of such conversion. Upon such conversion, the Depositary (i)
shall deliver to the holder a Receipt evidencing the number of Depositary
Shares, if any, that equals that excess of the number of Depositary Shares
evidenced by the surrendered Receipt over the number of Depositary Shares
evidenced by such Receipt that has been so converted, (ii) shall cancel the
Depositary Shares evidenced by Receipts surrendered for conversion and (iii)
shall deliver to the Company or its transfer agent for the Preferred Stock for
cancellation the shares of Preferred Stock represented by the Depositary Shares
evidenced by the Receipts so surrendered and so converted. Upon the delivery of
the shares of Preferred Stock to be cancelled due to such conversion by the
Depositary to the Company, the Company shall deliver to the Depositary a
certificate or certificates evidencing the number of shares, or
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fractions of shares, of Preferred Stock, if any, that equals the excess of the
number of shares of Preferred Stock evidenced by the surrendered certificate
over the number of shares of Preferred Stock evidenced by that certificate that
has been so converted.
If Preferred Stock shall be called by the Company for redemption, the
Depositary Shares representing such Preferred Stock may be converted into Common
Stock as provided in this Deposit Agreement until, but not after, the close of
business on the Redemption Date unless the Company shall fail to deposit with
the Depositary the shares of Common Stock and cash for any fractional share
amounts required to redeem the Preferred Stock held by the Depositary, in which
case the Depositary Shares representing such Preferred Stock may continue to be
converted into Common Stock until, but not after, the close of business on the
date on which the Company deposits with the Depositary such shares of Common
Stock and cash for any fractional share amounts as are required by the Express
Terms to make full payment of the amounts payable upon such redemption. Upon
receipt by the Depositary of a Receipt or Receipts, together with a properly
completed and executed notice of conversion, representing any Preferred Stock
called for redemption, the shares of Preferred Stock held by the Depositary
represented by such Depositary Shares for which conversion is requested shall be
deemed to have been received by the Company for conversion as of immediately
prior to the close of business on the date of such receipt by the Depositary.
The record holder of Depositary Shares on any dividend payment record
date established by the Depositary pursuant to Section 4.4 shall be entitled to
receive the dividend payable with respect to such Depositary Shares on the
corresponding dividend payment date notwithstanding the conversion subsequent to
such record date and before the corresponding dividend payment date of the
shares of Preferred Stock to which such Depositary Shares relate.
Upon the conversion of any share of Preferred Stock for which a request
for conversion has been made by the holder of Depositary Shares representing
such share, all dividends in respect of such Depositary Shares shall cease to
accrue, such Depositary Shares shall be deemed no longer outstanding, all rights
of the holder of the Receipt with respect to such Depositary Shares (except the
right to receive the Common Stock, any cash Payable with respect to any
fractional shares of Common Stock as provided herein and any cash payable on
account of accrued dividends as provided herein and any Receipts evidencing
Depositary Shares not so converted) shall terminate, and the Receipt evidencing
such Depositary Shares shall be cancelled in accordance with Section 2.9 hereof.
No fractional shares of Common Stock shall be issuable upon conversion
of Preferred Stock underlying the Depositary Shares. If any holder of Receipts
surrendered with instructions to the Depositary for conversion of the underlying
Preferred Stock would be entitled to a fractional share of Common Stock upon
such conversion, the Company shall cause to be delivered to such holder an
amount in cash for such fractional share as provided in the Express Terms.
SECTION 2.11 Mandatory Conversion of Preferred Stock into Common
Stock. With respect to any Preferred Stock on deposit with the Depositary as to
which the Company has not exercised its right to redeem and the record holder
has not exercised its right of optional conversion pursuant to the Express
Terms, the Depositary shall mail, first class postage prepaid, notice of the
mandatory conversion of Preferred Stock and the simultaneous mandatory
conversion of the Depositary Shares representing the Preferred Stock to be
automatically converted, not less than 5 and not more than 15 days prior to the
date fixed for mandatory conversion of such Preferred Stock and Depositary
Shares (the "Mandatory Conversion Date"), to all record holders of Receipts
evidencing Depositary Shares who are of record on the date that is two Business
Days prior to the date of mailing,
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at the addresses of such holders as they appear on the records of the
Depositary; but neither failure to mail any such notice to one or more such
holders nor any defect in any notice to one or more such holders shall affect
the sufficiency of the proceedings for mandatory conversion as to any record
holder (whether or not such failure or defect affects such record holder). Each
such notice shall state: (i) the Mandatory Conversion Date; (ii) that all
outstanding Depositary Shares on the Mandatory Conversion Date will be
automatically converted pursuant to the Express Terms and this Agreement; (iii)
the Common Equivalent Rate (determined in accordance with the Express Terms) and
the resulting common equivalent rate applicable to the Depositary Shares; (iv)
the place or places where Receipts evidencing Depositary Shares are to be
surrendered for payment of the mandatory conversion price; and (v) that
dividends in respect of the shares of Preferred Stock represented by the
Depositary Shares to be automatically converted will cease to accumulate from
and after the Mandatory Conversion Date.
On the Mandatory Conversion Date, all then outstanding shares of
Preferred Stock and the Depositary Shares representing such shares of Preferred
Stock shall automatically convert into shares of Common Stock, cash for any
fractional share amounts and the right to receive amounts in cash equal to all
accrued and unpaid dividends on such shares of Preferred Stock to but not
including the Mandatory Conversion Date (other than previously declared
dividends payable to a holder of record as of a prior date), all as provided in
and subject to the Express Terms.
From and after the Mandatory Conversion Date, the Depositary Shares
representing the shares of Preferred Stock automatically converted shall be
deemed no longer to be outstanding and all rights of the record holders of
Receipts evidencing such Depositary Shares (except the right to receive the
shares of Common Stock, any cash for accrued and unpaid dividends (other than
previously declared dividends payable to a holder of record as of a prior date)
and any cash for fractional share amounts deliverable or payable upon mandatory
conversion or in connection therewith) 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 exchanged for shares of Common Stock and cash for any fractional share amount
(and the right to receive cash for any accrued and unpaid dividends payable in
connection therewith) at a rate per Depositary Share equal to _______________ of
the number (including fractional amounts) of shares of Common Stock (and
_________________ of the amount of cash paid in respect of accrued and unpaid
dividends) exchanged for each share of Preferred Stock pursuant to the Express
Terms. The foregoing shall be subject further to the terms and conditions of the
Express Terms.
On or prior to the Mandatory Conversion Date, the Company shall deposit
with the Depositary certificates for the shares of Common Stock and the cash for
any fractional share amounts into which the shares of Preferred Stock held by
the Depositary shall automatically convert on the Mandatory Conversion Date,
plus, subject to the Express Terms, an amount in cash equal to all accrued and
unpaid dividends on such shares of Preferred Stock (other than previously
declared dividends payable to a holder of record as of a prior date) to and
including the Mandatory Conversion Date. Using such shares of Common Stock and
cash, the Depositary shall deliver certificates for the appropriate number of
shares of Common Stock and the appropriate amount of cash, without interest, to
record holders who properly deliver their Receipts to the Depositary.
No fractional shares of Common Stock shall be issuable upon mandatory
conversion of Preferred Stock underlying the Depositary Shares. If any holder of
Receipts surrendered to the Depositary for mandatory conversion of the
underlying Preferred Stock
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shall be entitled to a fractional share of Common Stock upon such mandatory
conversion, the Company shall cause to be delivered to such holder an amount in
cash for such fractional share as provided in the Express Terms.
ARTICLE III
CERTAIN OBLIGATIONS OF HOLDERS
OF RECEIPTS AND THE COMPANY
SECTION 3.1 Filing Proofs, Certificates and Other Information. Any
person presenting Preferred Stock for deposit or any holder of a Receipt may be
required from time to time to file such proof of residence or other information,
to execute such certificates and to make such representations and warranties as
the Depositary or the Company may reasonably deem necessary or proper. The
Depositary or the Company, as the case may be, may withhold or delay the
delivery of any Receipt, the transfer, redemption, conversion, or exchange of
any Receipt, the withdrawal of the Preferred Stock or money or other property,
if any, represented by the Depositary Shares evidenced by any Receipt or the
distribution of any dividend or other distribution until such proof or other
information is filed, such certificates are executed or such representations and
warranties are made.
SECTION 3.2 Payment of Taxes or Other Governmental Charges. If any
tax or other governmental charge shall become payable by or on behalf of the
Depositary with respect to any Receipt, the Depositary Shares evidenced by such
Receipt, the Preferred Stock (or fractional interest therein) represented by
such Depositary Shares or any transaction referred to in Section 4.6, such tax
(including transfer, issuance or acquisition taxes, if any) or governmental
charge shall be payable by the holder of such Receipt. Until such payment is
made, transfer, redemption, conversion, or exchange of any Receipt or any
withdrawal of the Preferred Stock or money or other property, if any,
represented by the Depositary Shares evidenced by such Receipt may be refused,
any dividend or other distribution with respect to such Receipt or the Preferred
Stock represented by the Depositary Shares evidenced by such receipt may be
withheld and any part or all of the Preferred Stock or other property
represented by the Depositary Shares evidenced by such Receipt may be sold for
the account of the holder thereof (after attempting by reasonable means to
notify such holder prior to such sale). Any dividend or other distribution so
withheld and the proceeds of any such sale may be applied to payment of any such
tax or other governmental charge, the holder of such Receipt remaining liable
for any deficiency. The Depositary shall act as the withholding agent for any
payments, distributions, and exchanges made with respect to the Depositary
Shares and Receipts, and the Preferred Stock, Common Stock or other securities
or assets represented thereby (collectively, the "Securities"). The Depositary
shall be responsible with respect to the Securities for the timely (i)
collection and deposit of any required withholding or backup withholding tax,
and (ii) filing of any information returns or other documents with federal (and
other applicable) taxing authorities. In the event the Depositary is required to
pay any such amounts, the Company shall reimburse the Depositary for payment
thereof upon the request of the Depositary and the Depositary shall, upon the
Company's request and as instructed by the Company, pursue its rights against
such holder at the Company's expense.
SECTION 3.3 Representations and Warranties as to Preferred Stock.
Each person depositing Preferred Stock under this Deposit Agreement shall be
deemed thereby to represent and warrant that such Preferred Stock and each
certificate therefor are valid and that the person making such deposit is duly
authorized to do so. Such representations and
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warranties shall survive the deposit of the Preferred Stock and the execution
and delivery of Receipts.
ARTICLE IV
THE PREFERRED STOCK, NOTICES
SECTION 4.1 Cash Distributions. Whenever the Depositary shall receive
any cash dividend or other cash distribution on the Preferred Stock, the
Depositary shall, subject to Section 3.2, distribute to record holders of
Receipts on the record date fixed pursuant to Section 4.4 such portions of such
sum as are, as nearly as practicable, proportionate 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 from any cash dividend or other cash distribution, in respect of the
Preferred Stock an amount on account of taxes or as otherwise required by law,
regulation or court order, the amount made available for distribution or
distributed in respect of Depositary Shares shall be reduced accordingly. The
Depositary shall distribute or make available for distribution, as the case may
be, only such amount, however, as can be distributed without attributing to any
owner of Depositary Shares a fraction of one cent and any balance not so
distributable shall be 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 4.2 Distributions Other Than Cash. Whenever the Depositary
shall receive any distribution other than cash on the Preferred Stock, the
Depositary shall, subject to Section 3.2, distribute to record holders of
Receipts on the record date fixed pursuant to Section 4.4 such portions of the
securities or property received by it as are, as nearly as practicable,
proportionate to the respective numbers of Depositary Shares evidenced by the
Receipts held by such holders, in any manner that the Depositary and the Company
may deem equitable and practicable for accomplishing such distribution. If, in
the opinion of the Company after consultation with the Depositary, such
distribution cannot be made proportionately among such record holders, or if for
any other reason (including any requirement that the Company or the Depositary
withhold an amount on account of taxes or as otherwise required by law,
regulation or court order) 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 Section 3.2, be distributed or made
available for distribution, as the case may be, by the Depositary to record
holders of Receipts as provided by Section 4.1 in the case of a distribution
received in cash.
SECTION 4.3 Subscription Rights, Preferences or Privileges. If the
Company shall at any time offer or cause to be offered to the persons in whose
names Preferred Stock is registered on the books of the Company any rights,
preferences or privileges to subscribe for or to Purchase any securities or any
rights, preferences or privileges of any other nature, such rights, preferences
or privileges shall in each such instance be made available by the Depositary to
the record holders of Receipts if the Company so directs in such manner as the
Company shall instruct (including by the execution and delivery to such record
holders of warrants representing such rights, preferences or privileges);
provided, however, that (a) if at the time of issue or offer of any such rights,
preferences or privileges the Company determines that it is not lawful or
feasible
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to make such rights, preferences or privileges available to some or all holders
of Receipts (by the execution and delivery of warrants or otherwise) or (b) if
and to the extent instructed by holders of Receipts who do not desire to
exercise such rights, preferences or privileges, the Depositary shall then, if
so instructed by the Company, and if applicable laws and the terms of such
rights, preferences or privileges so permit, sell such rights, preferences or
privileges of such holders at public or private sale, at such place or places
and upon such terms as it may deem proper, the net proceeds of any such sale
shall, subject to Section 3.2, be distributed by the Depositary to the record
holders of Receipts entitled thereto in accordance with the withholding and
fractional amount provisions of Section 4.1.
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 such securities, the Company shall promptly file
a registration statement pursuant to the Securities Act with respect to such
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
notified by the Company in writing that such registration statement has become
effective or that the offering and sale of such securities to such holders are
exempt from registration under the provisions of the Securities Act.
If any other action under the law of any jurisdiction or any
governmental or administrative authorization, consent or permit is required in
order for such rights, preferences or privileges to be made available to holders
of Receipts, the Company 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; Fixing of Record Date for Holders of
Receipts. Whenever any cash dividend or other cash distribution shall become
payable, or any distribution other than cash shall be made, or any rights,
preferences or privileges shall at any time be offered, with respect to the
Preferred Stock, or whenever the Depositary shall receive notice of (i) any
meeting at which holders of Preferred Stock are entitled to vote or of which
holders of Preferred Stock are entitled to notice or (ii) any election on the
part of the Company to call for redemption any shares of Preferred Stock, the
Depositary shall in each such instance fix a record date (which shall be the
same date as the record date fixed by the Company with respect to the Preferred
Stock) for the determination of the holders of Receipts (i) 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 to receive notice of such
meeting or (ii) whose Depositary Shares are to be so redeemed.
SECTION 4.5 Voting Rights. Upon issuance of notice of any meeting at
which the holders of Preferred Stock are entitled to vote, the Company shall
direct the Depositary, as soon as practicable thereafter, to mail to the record
holders of Receipts a notice, which shall be provided by the Company and which
shall contain (i) such information as is contained in such notice of meeting,
(ii) a statement that the holders of Receipts at the close of business on a
specified record date fixed pursuant to Section 4.4 will be entitled, subject to
any applicable provision of law, the Articles of Incorporation or the Express
Terms, to instruct the Depositary as to the exercise of the voting rights
pertaining to the amount of Preferred Stock represented by their respective
Depositary Shares and (iii) a brief statement as to the manner in which such
instructions may be given. Upon the written
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request of a holder of a Receipt on such record date, the Depositary shall
endeavor insofar as practicable to vote or cause to be voted the amount of
Preferred Stock represented by the Depositary Shares evidenced by such Receipt
in accordance with the instructions set forth in such request. The Company
hereby agrees to take all reasonable action that may be deemed necessary by the
Depositary in order to enable the Depositary to vote such Preferred Stock or
cause such Preferred Stock to be voted. In the absence of specific instructions
from the holder of a Receipt, the Depositary will abstain from voting to the
extent of the Preferred Stock represented by the Depositary Shares evidenced by
such Receipt. After aggregating all voting Depositary Shares, the Depositary
will disregard for voting purposes any fractional share of Preferred Stock
remaining.
SECTION 4.6 Changes Affecting Preferred Stock and Reclassifications,
Recapitalizations, etc. Upon any split-up, consolidation or any other
reclassification of Preferred Stock, or upon any recapitalization,
reorganization, merger, amalgamation or consolidation affecting the Company or
to which it is a party or sale of all or substantially all of the Company's
assets, the Depositary shall, upon the instructions of the Company, treat any
shares of stock or other securities or property (including cash) that shall be
received by the Depositary in exchange for or upon conversion of or in respect
of the Preferred Stock as new deposited property under this Deposit Agreement,
and Receipts then outstanding shall thenceforth represent the proportionate
interests of holders thereof in the new deposited shares of stock, other
securities or other property so received in exchange for or upon conversion or
in respect of such Preferred Stock. In any such case the Depositary may, in its
discretion, with the approval of the Company, execute and deliver additional
Receipts, or may call for the surrender of all outstanding Receipts to be
exchanged for new Receipts specifically describing such new deposited shares,
other securities or other property.
SECTION 4.7 Inspection of Reports. The Depositary shall make
available for inspection by holders of Receipts at the Depositary's Office and
at such other places as it may from time to time deem advisable during normal
business hours any reports and communications received from the Company that are
both received by the Depositary as the holder of Preferred Stock and made
generally available to the holders of Preferred Stock by the Company.
SECTION 4.8 List of Receipt Holders. Promptly upon request from time
to time by the Company and at the Company's expense, the Depositary shall
furnish to it a list, as of a recent date, of the names, addresses and holdings
of Depositary Shares of all persons in whose names Receipts are registered on
the books of the Depositary.
ARTICLE V
THE DEPOSITARY AND THE COMPANY
SECTION 5.1 Maintenance of Offices, Agencies, Transfer Books by the
Depositary, the Registrar. Upon execution of this Deposit Agreement in
accordance with its terms, the Depositary shall maintain at the Depositary's
Office and at the offices of the Depositary's Agents, if any, facilities for the
execution and delivery, transfer, surrender and exchange, split-up, combination
and redemption of Receipts and deposit and withdrawal of Preferred 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 transfer of Receipts, which books during normal business hours
shall be open for inspection by the record holders of Receipts, as provided by
applicable law, and by the Company. The Depositary shall consult with the
Company upon receipt of any request for inspection. The
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Depositary may close such books, at any time or from time to time, when deemed
expedient by it in connection with the performance of its duties hereunder.
If the Receipts or the Depositary Shares evidenced thereby or the
Preferred Stock represented by such Depositary Shares shall be listed on the
Nasdaq National Market, the Depositary may, with the approval of the Company,
appoint a Registrar for registry of such Receipts or Depositary Shares in
accordance with the requirements of the Nasdaq National Market. Such Registrar
(which may be the Depositary if so permitted by the requirements of the Nasdaq
National Market) 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 Preferred Stock are listed on one or
more other stock exchanges, the Company will, with the assistance of the
Depositary arrange such facilities for the delivery, transfer, surrender and
exchange of such Receipts, such Depositary Shares or Preferred Stock as may be
required by law or applicable stock exchange regulations.
SECTION 5.2 Prevention of or Delay in Performance by the Depositary,
the Depositary's Agents or the Company. Neither the Depositary nor any
Depositary's Agent nor the Company shall incur any liability to any holder of
any Receipt if, by reason of any provision of any present or future law or
regulation thereunder of the United States of America or of any other
governmental authority or, in the case of the Depositary or any Depositary's
Agent, by reason of any provision, present or future, of the Articles of
Incorporation or the Express Terms or, in the case of the Company, the
Depositary or any Depositary's Agent, by reason of any act of God or war or
other circumstance beyond the control of the relevant party, the Depositary, any
Depositary's Agent or the Company shall be prevented or forbidden from doing or
performing any act or thing that the terms of this Deposit Agreement provide
shall be done or performed; nor shall the Depositary, any Depositary's Agent or
the Company incur any liability to any holder of a Receipt by reason of any
nonperformance or delay, caused as aforesaid, in the performance or any act or
thing that the terms of this Deposit Agreement provide shall or may be done or
performed or by reason of any exercise of, or failure to exercise, any
discretion provided for in this Deposit Agreement.
SECTION 5.3 Obligations of the Depositary, the Depositary's Agents,
and the Company. Neither the Depositary nor any Depositary's Agent nor the
Company assumes any obligation or shall be subject to any liability under this
Deposit Agreement or any Receipt to holders of Receipts other than that each of
them agrees to use good faith in the performance of such duties as are
specifically set forth in this Deposit Agreement.
Neither the Depositary nor any Depositary's Agent nor the Company
shall be under any obligation to appear in, prosecute or defend any action, suit
or other proceeding with respect to the Preferred Stock, Depositary Shares,
Receipts or Common Stock that in its opinion may involve it in expense or
liability, unless indemnity satisfactory to it against all expense and liability
be furnished as often as may be required.
Neither the Depositary nor any Depositary's Agent nor the Company shall
be liable for any action or any failure to act by it in reliance upon the advice
of, or information from, legal counsel, accountants, any person presenting
Preferred Stock for deposit, any holder of a Receipt or any other person
believed by it in good faith to be competent to give such advice or information.
The Depositary, any Depositary's Agent and the Company may each rely and shall
each be protected in acting upon any written notice, request, direction or other
document believed by it to be genuine and to have been signed or presented by
the proper party or parties.
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The Depositary, its parent, affiliates, subsidiaries, officers,
directors or employees and any Depositary's Agent may own, buy, sell or deal in
any class of securities of the Company and its affiliates and Receipts or
Depositary Shares, or become pecuniarily interested in any transaction in which
the Company or its officers may be interested, or contract with or lend money to
the Company or any of its affiliates or officers, or otherwise act fully or as
freely as if it were not the Depositary or the Depositary's Agent hereunder. The
Depositary may also act as transfer agent or registrar of any of the securities
of the Company and its affiliates.
It is intended that neither the Depositary nor any Depositary's Agent
shall be deemed to be an "issuer" of securities under the federal securities
laws or applicable state securities laws, it being expressly understood and
agreed that the Depositary and any Depositary's Agent are acting only in a
ministerial capacity as Depositary for the Preferred Stock; provided, however,
that the Depositary agrees to comply with all information reporting and
withholding requirements applicable to it under law or this Deposit Agreement in
its capacity as Depositary.
Neither the Depositary (or its officers, directors, employees or
agents) nor any Depositary's Agent makes any representation or has any
responsibility as to the validity, of the Registration Statement pursuant to
which the Depositary Shares, the Preferred Stock and the Common Stock are
registered under the Securities Act, the Preferred Stock, the Depositary Shares,
the Receipts (except for its countersignatures thereon) or any instruments
referred to therein or herein (other than an instrument executed by the
Depositary or Depositary's Agent), or as to the correctness of any statement
made therein or herein or for the failure of the Company to comply with any
covenants contained in this Agreement or the Receipts; provided, however, that
the Depositary is responsible for its representations in this Deposit Agreement.
The Depositary assumes no responsibility for the correctness of the
description that appears in the Receipts, which can be taken as a statement of
the Company summarizing certain provisions of this Deposit Agreement.
Notwithstanding any other provision herein or in the Receipts, the Depositary
makes no warranties or representations as to the validity, genuineness or
sufficiency of any Preferred Stock at any time deposited with the Depositary
hereunder or of the Depositary Shares, as to the validity or sufficiency of this
Deposit Agreement, as to the value of the Depositary Shares, or as to any right,
title or interest of the record holders of Receipts in and to the Depositary
Shares, except that the Depositary hereby represents and warrants as follows:
(i) the Depositary has been duly organized and is validly existing and in good
standing under the laws of the United States with full power, authority and
legal right under such laws to execute, deliver and carry out the terms of this
Deposit Agreement; (ii) this Deposit Agreement has been duly authorized,
executed and delivered by the Depositary; and (iii) this Deposit Agreement
constitutes a valid and binding obligation of the Depositary, enforceable
against the Depositary in accordance with its terms, except as enforcement
hereof may be limited by bankruptcy, insolvency, reorganization or other similar
laws affecting enforcement of creditors rights generally and except as
enforcement hereof is subject to general principles of equity (regardless of
whether enforcement is considered in a proceeding in equity or at law). The
Depositary shall not be accountable for the use or application by the Company of
the Depositary Shares or the Receipts or the proceeds of the sale thereof.
SECTION 5.4 Resignation and Removal of the Depositary; Appointment of
Successor Depositary. The Depositary may at any time resign as Depositary
hereunder by notice of its election to do so delivered to the Company, such
resignation to take effect upon the appointment of a successor depositary and
its acceptance of such appointment as hereinafter provided.
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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 45 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, or an affiliate of 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 a successor depositary
shall not have been appointed in 45 days, the resigning Depositary may petition
a court of competent jurisdiction to appoint a successor depositary. Every
successor depositary shall execute and deliver to its predecessor and to the
Company an instrument in writing accepting its appointment hereunder, and
thereupon such successor depositary, without any further act or deed, shall
become fully vested with all the rights, powers, duties and obligations of its
predecessor and for all purposes shall be the Depositary under this Deposit
Agreement, and such predecessor, upon payment of all sums due it and on the
written request of the Company, shall promptly execute and deliver an instrument
transferring to such successor all rights and powers of such predecessor
hereunder, shall duly assign, transfer and deliver all rights, title and
interest in the Preferred Stock and any moneys or property held hereunder to
such successor and shall deliver to such successor a list of the record holders
of all outstanding Receipts and such other records respecting the Receipts, the
Depositary Shares and the Preferred Stock as the successor shall require in
order to perform its duties. Any successor depositary shall promptly mail notice
of its appointment to the record holders of Receipts.
Any corporation into or with which the Depositary may be merged,
consolidated or converted shall be the successor of such Depositary without the
execution or filing of any document or any further act. Such successor
depositary may execute the Receipts either in the name of the predecessor
depositary or in the name of the successor depositary.
SECTION 5.5 Corporate Notices and Reports. The Company agrees that it
will deliver to the Depositary, and the Depositary agrees that it will, promptly
after receipt thereof, and as directed by the Company transmit to the record
holders of Receipts, in each case at the most recent address recorded in the
Depositary's books, copies of all notices and reports (including financial
statements) required by law, by the rules of any national securities exchange
upon which the Preferred Stock, the Depositary Shares or the Receipts are
listed, or by the Articles of Incorporation and the Express Terms to be
furnished by the Company to holders of Preferred Stock. Such transmission will
be at the Company's expense and the Company will provide the Depositary with
such number of copies of such documents as the Depositary may reasonably
request. In addition, the Depositary will transmit to the record holders of
Receipts at the Company's expense such other documents as may be requested by
the Company.
SECTION 5.6 Deposit of Preferred Stock by the Company. Neither the
Company nor any company controlled by the Company will at any time deposit any
Preferred Stock if such Preferred Stock is required to be registered under the
provisions of the Securities Act and no registration statement is at such time
in effect as to such Preferred Stock.
SECTION 5.7 Indemnification by the Company. The Company shall
indemnify the Depositary, any Depositary's Agent and any Registrar for, and hold
each of them harmless against, any loss, liability or expense incurred without
gross negligence or intentional misconduct on the part of any such person,
arising out of or in connection with this Deposit Agreement and the Receipts,
including the costs and expenses of any of its
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duties under this Deposit Agreement or the Receipts. Anything in this Agreement
to the contrary notwithstanding, in no event shall the Depositary, any
Depositary's Agent or Registrar be liable for special, indirect or consequential
loss or damage of any kind whatsoever (including but not limited to lost
profits) even if the Depositary, any Depositary's Agent or Registrar has been
advised of the likelihood of such loss or damage and regardless of the form of
the action. The obligations of the Company to the Depositary, any Depositary's
Agent or Registrar shall survive the termination of this Agreement.
SECTION 5.8 Fees, Charges and Expenses. No fees, charges and expenses
of the Depositary or any Depositary's Agent hereunder or of any Registrar shall
be payable by any person other than the Company, except for any taxes and other
governmental charges and except as provided in this Deposit Agreement. If the
Depositary incurs fees, charges or expenses for which it is not otherwise liable
hereunder at the election of a holder of a Receipt or other person, such holder
or other person will be liable for such fees, charges and expenses. All other
fees, charges and expenses of the Depositary and any Depositary's Agent
hereunder and of any Registrar (including, in each case, reasonable fees and
expenses of counsel) incident to the performance of their respective obligations
hereunder will be paid from time to time upon consultation and agreement between
the Depositary and the Company as to the amount and nature of such fees, charges
and expenses.
ARTICLE VI
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 that they may
deem necessary or desirable. Any amendment that shall impose any fees, taxes or
charges payable by holders of Receipts (other than taxes and other governmental
charges, fees and other expenses provided for herein or in the Receipts), or
that shall otherwise prejudice any substantial existing right of holders of
Receipts, shall not become effective as to outstanding Receipts until the
expiration of 90 days after notice of such amendment shall have been given to
the record holders of outstanding Receipts. Every holder of an outstanding
Receipt at the time any such amendment becomes effective shall be deemed, by
continuing to hold such Receipt, to consent and agree to such amendment and to
be bound by this Deposit Agreement as amended thereby. In no event shall any
amendment impair the right, subject to the provisions of Sections 2.3, 2.6, 2.7,
2.10 and 2.11 and Article III, of any owner of any Depositary Shares to
surrender the Receipt evidencing such Depositary Shares with instructions to the
Depositary to deliver to the holder the Preferred Stock and all money and other
property, if any, represented thereby, or to cause the conversion of the
underlying Preferred Stock into Common Stock and cash for any fractional share
amount, except in order to comply with mandatory provisions of applicable law.
SECTION 6.2 Termination. Whenever so directed by the Company upon at
least five Business Days' prior notice, the Depositary will terminate this
Deposit Agreement, provided, that notice of such termination has been given by
mailing notice of such termination to the record holders of all Receipts then
outstanding at least 30 days prior to the date fixed in such notice for such
termination. The Depositary may likewise terminate this Deposit Agreement if at
any time 45 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.
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If any Receipts shall remain outstanding after the date of termination
of this Deposit Agreement, the Depositary 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 as
hereinafter provided in this paragraph and except that the Depositary shall
continue to collect dividends and other distributions pertaining to Preferred
Stock, shall sell rights, preferences, privileges or other property as provided
in this Deposit Agreement and shall continue to deliver the Preferred Stock and
any money and other property represented by Receipts, without liability for
interest thereon, 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 Preferred Stock then held hereunder at public or private sale, at such
place or places and upon such terms as it deems proper and may thereafter hold
the net proceeds of any such sale, together with any money and other property
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. 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 Agent and any Registrar under Sections 5.7 and 5.8. In the event this
Deposit Agreement is terminated and a sufficient number of shares of Preferred
Stock remain outstanding, the Company hereby agrees to use its best efforts to
cause the shares of Preferred Stock to be split ____ to one (so that each
Depositary Share then represents one share of Preferred Stock) and to have the
Preferred Stock included for quotation on the Nasdaq National Market (unless the
holders of a majority of the outstanding shares of Preferred Stock shall consent
to the Company not effecting such listing).
ARTICLE VII
MISCELLANEOUS
SECTION 7.1 Counterparts. This Deposit Agreement may be executed by
the Company and the Depositary in separate counterparts, each of which
counterparts, when so executed and delivered, shall be deemed an original, but
all such counterparts taken together shall constitute one and the same
instrument. Delivery of an executed counterpart of a signature page to this
Deposit Agreement by facsimile transmission shall be effective as delivery of a
manually executed counterpart of this Deposit Agreement. Copies of this Deposit
Agreement shall be filed with the Depositary and each Depositary's Agent, if
any, 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 7.2 Exclusive Benefits of Parties. This Deposit Agreement is
for the exclusive benefit of the parties hereto, and their respective successors
hereunder, and shall not be deemed to give any legal or equitable right, remedy
or claim to any other person whatsoever.
SECTION 7.3 Invalidity of Provisions. In case any one or more of the
provisions contained in this Deposit Agreement or in the Receipts should be or
become invalid, illegal, or unenforceable in any respect, the validity, legality
and enforceability of the remaining provisions contained herein or therein shall
in no way be affected, prejudiced or disturbed thereby.
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SECTION 7.4 Notices. Any notices to be given to the Company hereunder
or under the Receipts shall be in writing and shall be deemed to have been duly
given if personally delivered or sent by first class mail, postage prepaid or by
facsimile transmission confirmed by letter, addressed to the Company at 0000
Xxxxxxxx Xxxxxx, Xxxxxxxxx, Xxxx 00000, Attention: Treasurer, or at any other
place to which the Company may have transferred its principal operating or
executive office.
Any notices to be given to the Depositary hereunder or under the
Receipts shall be in writing and shall be deemed to have been duly given if
personally delivered or sent by first class mail, postage prepaid, or by
telegram or telex or telecopier confirmed by letter, addressed to the Depositary
at the Depositary's Office.
Any notices given to any record holder of a Receipt hereunder or under
the Receipts shall be in writing and shall be deemed to have been duly given if
personally delivered or sent by first class mail, postage prepaid, or by
telegram or telex or telecopier confirmed by letter, addressed to such record
holder at the most recent address of such record holder as it appeared 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 telex or
telecopier, shall be deemed to be effected at the time when a duly addressed
letter containing the same (or a duly addressed letter confirming an earlier
notice in the case of a facsimile transmission, telegram or telex) is deposited,
postage prepaid, in a post office letter box. The Depositary or the Company may,
however, act upon any facsimile transmission received by it from the other or
from any holder of a Receipt, notwithstanding that such facsimile transmission
shall not subsequently be confirmed by letter as aforesaid.
SECTION 7.5 Depositary's Agents. The Depositary may from time to time
appoint Depositary's Agents to act in any respect for the Depositary for the
purposes of this Deposit Agreement and may at any time appoint additional
Depositary's Agents and vary or terminate the appointment of such Depositary's
Agents. The Depositary will notify the Company of any such action.
SECTION 7.6 Holders of Receipts Are Parties. Notwithstanding that
holders of Receipts have not executed and delivered this Deposit Agreement or
any counterpart thereof, the holders of Receipts from time to time shall be
deemed to be parties to this Deposit Agreement and shall be bound by all of the
terms and conditions hereof and of the Receipts by acceptance of delivery of
Receipts.
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 law of the State of
____________ without giving effect to principles of conflict of laws.
SECTION 7.8 Headings. The headings of articles and sections in this
Deposit Agreement and in the form of the Receipt set forth in Exhibit A hereto
have been inserted for convenience only and are not to be regarded as a part of
this Deposit Agreement or the Receipts or to have any bearing upon the meaning
or interpretation of any provision contained herein or in the Receipts.
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IN WITNESS WHEREOF, Ferro Corporation and __________________________
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 executed and delivered in accordance with the
terms hereof.
FERRO CORPORATION
By:
----------------------------
Name:
Title:
-------------------------------
as Depositary
By:
----------------------------
Name:
Title:
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EXHIBIT A
DEPOSITARY RECEIPT
FOR
DEPOSITARY SHARES,
EACH REPRESENTING ____________ OF A SHARE OF
{DESIGNATION OF PREFERRED STOCK}
OF
FERRO CORPORATION
(Incorporated under the Laws of the State of Ohio)
Depositary Shares
CUSIP ______________
____________________________, as Depositary (the "Depositary"), hereby
certifies that _____________ is the registered owner of _______________
Depositary Shares (the "Depositary Shares"), each Depositary Share representing
_________ of a share of {Designation of Preferred Stock}, without par value per
share (the "Preferred Stock"), of FERRO CORPORATION, a corporation duly
organized and existing under the laws of the State of Ohio (the "Company"), and
the same proportionate interest in any and all other property received by the
Depositary in respect of such shares of Preferred Stock and held by the
Depositary under the Deposit Agreement (as defined below). Subject to the terms
of the Deposit Agreement, each owner of a Depositary Share is entitled,
proportionately, to all the rights, preferences and privileges of the Preferred
Stock represented thereby, including the dividend, voting, conversion,
liquidation and other rights contained in the Express Terms of the Preferred
Stock, establishing the rights, preferences, privileges and limitations of the
Preferred Stock (the "Express Terms"), copies of which are on file at the office
of the Depositary at which at any particular time its business in respect of
matters governed by the Deposit Agreement shall be administered, which at the
time of the execution of the Deposit Agreement is located at
____________________________________________________ (the "Depositary's
Office"). THE DEPOSITARY IS NOT RESPONSIBLE FOR THE VALIDITY OF ANY DEPOSITED
STOCK. THE DEPOSITARY ASSUMES NO RESPONSIBILITY FOR THE CORRECTNESS OF THE
DESCRIPTION SET FORTH IN THIS RECEIPT, WHICH CAN BE TAKEN AS A STATEMENT OF THE
COMPANY SUMMARIZING CERTAIN PROVISIONS OF THE DEPOSIT AGREEMENT. UNLESS
EXPRESSLY SET FORTH IN THE DEPOSIT AGREEMENT, THE DEPOSITARY MAKES NO WARRANTIES
OR REPRESENTATIONS AS TO THE VALIDITY, GENUINENESS OR SUFFICIENCY OF ANY STOCK
AT ANY TIME DEPOSITED WITH THE DEPOSITARY UNDER THE DEPOSIT AGREEMENT OR OF THE
DEPOSITARY SHARES OR RECEIPTS (EXCEPT FOR ITS SIGNATURE THEREON), AS TO THE
VALIDITY OR SUFFICIENCY OF THE DEPOSIT AGREEMENT, AS TO THE VALUE OF THE
DEPOSITARY SHARES OR AS TO ANY RIGHT, TITLE OR INTEREST OF THE RECORD HOLDERS OF
THE RECEIPTS IN AND TO THE DEPOSITARY SHARES.
The Company will furnish to any holder of a Receipt without charge,
upon request addressed to its executive office or the office of its transfer
agent, a statement or summary of the powers, designations, preferences and
relative, participating optional or other special rights of each authorized
class of capital stock of the Company, and of each series of
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preferred stock of the Company authorized to be issued, so far as the same may
have been fixed, and of the qualifications, limitations or restrictions of such
preferences and/or rights.
This Depositary Receipt (the "Receipt") is continued on the reverse
hereof and the additional provisions therein set forth for all purposes have the
same effect as if set forth at this place.
Dated:_____________________
------------------------------
Depositary, Transfer Agent and
Registrar
By:
---------------------------
Authorized Signatory
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{FORM OF REVERSE
OF DEPOSITARY RECEIPT}
1. The Deposit Agreement. Depositary Receipts (the "Receipts"), of
which this Receipt is one, are made available upon the terms and conditions set
forth in the Deposit Agreement, dated as of ________, 19__ (the "Deposit
Agreement") among the Company, the Depositary and all holders from time to time
of Receipts. The Deposit Agreement (copies of which are on file at the
Depositary's Office and at the office of any Depositary's Agent) sets forth the
rights of holders of Receipts and the rights and duties of the Depositary. The
statements made on the face and the reverse of this Receipt are summaries of
certain provisions of the Deposit Agreement and are subject to the detailed
provisions thereof, to which reference is hereby made. In the event of any
conflict between the provisions of this Receipt and the provisions of the
Deposit Agreement, the provisions of the Deposit Agreement will govern.
2. Definitions. Unless otherwise expressly herein provided, all
defined terms used herein shall have the meanings ascribed thereto in the
Deposit Agreement.
3. Redemption of Preferred Stock. Whenever the Company shall elect
to redeem shares of Preferred Stock for shares of its Common Stock, $1.00 par
value per share ("Common Stock"), in accordance with the Express Terms, it shall
(unless otherwise agreed in writing with the Depositary) give the Depositary in
its capacity as Depositary the notice required by the Deposit Agreement. The
Depositary shall mail, first class postage prepaid, notice of such redemption
and the simultaneous redemption of the number of Depositary Shares representing
the Preferred Stock held by the Depositary to be redeemed, not less than 15 and
not more than 60 days prior to the date fixed for redemption of such Preferred
Stock and Depositary Shares (the "Redemption Date"), to the record holders of
the Receipts evidencing the Depositary Shares to be so redeemed, at the
addresses of such holders as they appear on the records of the Depositary; but
neither failure to mail any such notice to one or more such holders nor any
defect in any notice to one or more such holders shall affect the sufficiency of
the proceedings for redemption as to other holders. Each such notice shall
state: (i) the Redemption Date; (ii) that all outstanding Depositary Shares are
to be redeemed or, if less than all the Depositary Shares held by any such
holder are to be redeemed, the number of such Depositary shares held by such
holder to be so redeemed; (iii)(A) the number of shares of Common Stock
deliverable upon redemption of each Depositary Share pursuant to the Express
Terms, and the Current Market Price used to calculate such number of shares of
Common Stock, (B) the number of shares of Common Stock deliverable upon
redemption of each Depositary Share pursuant to the Express Terms and (C) the
higher of the numbers of shares of Common Stock specified in clauses (iii)(A)
and (iii)(B); (iv) the Call Price and the portion thereof applicable to each of
the Depositary Shares; (v) the Optional Conversion Rate (calculated in
accordance with the Express Terms) and the resulting optional conversion rate
applicable to the Depositary Shares, together with a statement that all
conversion rights with respect to the Depositary Shares called for redemption
will terminate immediately prior to the close of business on the date fixed for
redemption; (vi) the place or places where Receipts evidencing Depositary Shares
are to be surrendered for redemption; and (vii) that dividends in respect of the
shares of Preferred Stock represented by the Depositary Shares to be redeemed
will cease to accumulate from and after such Redemption Date. Any such notices
shall be mailed in the same manner as notices of redemption of the Preferred
Stock are required to be mailed pursuant to the Express Terms and published in
the same manner as notices of redemption of the Preferred Stock are required to
be published pursuant to said section, if so required. In case fewer than all
the outstanding Depositary Shares are to be redeemed, the Depositary Shares to
be redeemed shall be selected by lot or pro rata (as nearly as may be) or by any
other equitable
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method determined by the Depositary to be consistent with the method determined
by the Board of Directors of the Company with respect to the Preferred Stock.
Notice having been mailed and published by the Depositary as aforesaid,
from and after the Redemption Date (unless the Company shall have failed to
redeem the shares of Preferred Stock to be redeemed by it, as set forth in the
Company's notice provided for above), 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 shares of Common Stock upon redemption and cash for any fractional
share amount) 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
for shares of Common Stock and cash for any fractional share amount at a rate
per Depositary Share equal to one hundredth of the number of shares of Common
Stock (including fractional amounts) delivered upon redemption of a share of
Preferred Stock pursuant to the Express Terms. The foregoing shall be subject to
the detailed terms and conditions of the Express Terms, to which reference is
hereby made.
If fewer than all of the Depositary Shares evidenced by this Receipt
are called for redemption, the Depositary will deliver to the holder of this
Receipt upon its surrender to the Depositary, together with shares of Common
Stock for the Depositary Shares called for redemption, a new receipt evidencing
the Depositary Shares evidenced by such prior Receipt and not called for
redemption.
4. Surrender of Receipts and Withdrawal of Preferred Stock. Upon
surrender of this Receipt to the Depositary at the Depositary's Office or such
other offices as the Depositary may designate, and subject to the provisions of
the Deposit Agreement, the holder hereof is entitled to withdraw, and to obtain
delivery of, to or upon the order of such holder, any or all of the Preferred
Stock (but only in whole shares of Preferred Stock) and any or all money and
other property, if any, at the time represented by the Depositary Shares
evidenced by this Receipt; provided, however, that, in the event this Receipt
shall evidence a number of Depositary Shares in excess of the number of
Depositary Shares representing the whole number of shares of Preferred Stock to
be withdrawn, the Depositary shall, in addition to such whole number of shares
of Preferred Stock and such money and other property, if any, to be withdrawn,
deliver, to or upon the order of such holder, a new Receipt or Receipts
evidencing such excess number of whole Depositary Shares.
5. Optional Conversion of Preferred Stock into Common Stock.
Subject to the terms and conditions of the Deposit Agreement and the Express
Terms, this Receipt may be surrendered with written instructions to the
Depositary to instruct the Company to cause the conversion of any specified
number of shares, or fractions of shares, of Preferred Stock represented by
whole Depositary Shares evidenced hereby into whole shares of Common Stock and
cash for any fractional share of Common Stock at the conversion price then in
effect for the Preferred Stock pursuant to the Express Terms as such conversion
price may be adjusted by the Company from time to time as provided in the
Express Terms. Subject to the terms and conditions of the Deposit Agreement and
the Express Terms, a holder of a Receipt or Receipts evidencing Depositary
Shares representing whole or fractional shares of Preferred Stock may surrender
such Receipt or Receipts at the Depositary's Office or at such office or to such
Depositary's Agents as the Depositary may designate for such purpose, together
with (i) a notice of conversion duly completed and executed, thereby directing
the Depositary to instruct the Company to cause the conversion of the number of
shares, or fractions of shares, of underlying Preferred Stock specified in such
notice of conversion into shares of Common Stock, and (ii) an assignment of such
Receipt or Receipts to the Company or in blank, duly completed and executed. To
the extent that a holder delivers to
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29
the Depositary for conversion a Receipt or Receipts which in the aggregate are
convertible into less than one whole share of Common Stock, the holder shall
receive payment in cash in lieu of such fractional share of Common Stock
otherwise issuable. If more than one Receipt shall be delivered for conversion
at one time by the same holder, the number of whole shares of Common Stock
issuable upon conversion thereof shall be computed on the basis of the aggregate
number of Depositary shares represented by the Receipts so delivered.
If Preferred Stock shall be called by the Company for redemption, the
Depositary Shares representing such Preferred Stock may be converted into Common
Stock as provided in the Deposit Agreement until, but not after, the close of
business on the Redemption Date unless the Company shall fail to deposit with
the Depositary the shares of Common Stock and cash for any fractional share
amounts required to redeem the Preferred Stock held by the Depositary, in which
case the Depositary Shares representing such Preferred Stock may continue to be
converted into Common Stock until, but not after, the close of business on the
date on which the Company deposits with the Depositary such shares of Common
Stock and cash for any fractional share amounts as are required by the Express
Terms to make full payment of the amounts payable upon such redemption. Upon
receipt by the Depositary of a Receipt or Receipts, together with a properly
completed and executed notice of conversion, representing any Preferred Stock
called for redemption, the shares of Preferred Stock held by the Depositary
represented by such Depositary Shares for which conversion is requested shall be
deemed to have been received by the Company for conversion as of immediately
prior to the close of business on the date of such receipt by the Depositary.
6. Mandatory Conversion of Preferred Stock into Common Stock. With
respect to any Preferred Stock on deposit with the Depositary as to which the
Company has not exercised its right to redeem and the record holder has not
exercised its right of optional conversion pursuant to the Express Terms, the
Depositary shall mail, first class postage prepaid, notice of the mandatory
conversion of Preferred Stock and the simultaneous mandatory conversion of the
Depositary Shares representing the Preferred Stock to be automatically
converted, not less than 5 and not more than 15 days prior to the date fixed for
mandatory conversion of such Preferred Stock and Depositary Shares (the
"Mandatory Conversion Date"), to all record holders of Receipts evidencing
Depositary Shares who are of record on the date that is two Business Days prior
to the date of mailing, at the addresses of such holders as they appear on the
records of the Depositary; but neither failure to mail any such notice to one or
more such holders nor any defect in any notice to one or more such holders shall
affect the sufficiency of the proceedings for mandatory conversion as to any
record holder (whether or not such failure or defect affects such record
holder). Each such notice shall state: (i) the Mandatory Conversion Date; (ii)
that all outstanding Depositary Shares on the Mandatory Conversion Date will be
automatically converted pursuant to the Express Terms and the Deposit Agreement;
(iii) the Common Equivalent Rate (determined in accordance with the Express
Terms); (iv) the place or places where Receipts evidencing Depositary Shares are
to be surrendered for payment of the mandatory conversion price; and (v) that
dividends in respect of the shares of Preferred Stock represented by the
Depositary Shares to be automatically converted will cease to accumulate from
and after the Mandatory Conversion Date.
On the Mandatory Conversion Date, all then outstanding shares of
Preferred Stock and the Depositary Shares representing such shares of Preferred
Stock shall automatically convert into shares of Common Stock, cash for any
fractional share amounts and the right to receive amounts in cash equal to all
accrued and unpaid dividends on such shares of Preferred Stock to and including
the Mandatory Conversion Date (other than previously declared dividends payable
to a holder of record as of a prior date), all as provided in and subject to the
Express Terms.
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From and after the Mandatory Conversion Date, the Depositary Shares
representing the shares of Preferred Stock automatically converted shall be
deemed no longer to be outstanding and all rights of the record holders of
Receipts evidencing such Depositary Shares (except the right to receive the
shares of Common Stock, any cash for accrued and unpaid dividends (other than
previously declared dividends payable to a holder of record as of a prior date)
and any fractional share amount deliverable or Payable upon mandatory conversion
or in connection therewith) 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
exchanged for shares of Common Stock and cash for any fractional share amount
(and the right to receive cash for any accrued and unpaid dividends payable in
connection therewith) at a rate per Depositary Share equal to _______________ of
the number (including fractional amounts) of shares of Common Stock (and
______________ of the right to receive cash for any accrued and unpaid
dividends) exchanged for each share of Preferred Stock pursuant to the Express
Terms. The foregoing shall be subject to the detailed terms and conditions of
the Express Terms.
On or prior to the Mandatory Conversion Date, the Company shall deposit
with the Depositary certificates for the shares of Common Stock and the cash for
any fractional share amounts into which the shares of Preferred Stock held by
the Depositary shall automatically convert on the Mandatory Conversion Date,
plus, subject to the Express Terms, an amount in cash equal to all accrued and
unpaid dividends on such shares of Preferred Stock (other than previously
declared dividends payable to a holder of record as of a prior date) to and
including the Mandatory Conversion Date. Using such shares of Common Stock and
cash, the Depositary shall deliver certificates for the appropriate number of
shares of Common Stock and the appropriate amount of cash, without interest, to
record holders who properly deliver their Receipts to the Depositary.
7. Transfers, Split-ups, Combinations. Subject to Paragraphs 8, 9
and 10 below, this Receipt is transferable on the books of the Depositary upon
surrender of this Receipt to the Depositary at the Depositary's Office or such
other offices as the Depositary may designate, properly endorsed or accompanied
by a properly executed instrument of transfer or endorsement, and upon such
surrender the Depositary shall execute and deliver a Receipt to or upon the
order of the person entitled thereto, all as provided in and subject to the
Deposit Agreement. This Receipt may be split into other Receipts or combined
with other Receipts into one Receipt evidencing the same aggregate number of
Depositary Shares evidenced by the Receipt or Receipts surrendered; provided,
however, that the Depositary shall not execute and deliver any Receipt
evidencing a fractional Depositary Share.
8. Conditions to Signing and Delivery, Transfer, etc., of
Receipts. Prior to the execution and delivery, transfer, split-up, combination,
surrender or exchange of this Receipt, the Depositary, any of the Depositary's
Agents or the Company may require any or all of the following: (i) payment to it
of a sum sufficient for the payment (or, in the event that the Depositary or the
Company shall have made such payment, the reimbursement to it) of any tax or
other governmental charge with respect thereto (including any such tax or charge
with respect to Preferred Stock being deposited or withdrawn or with respect to
Common Stock or other securities or property of the Company being issued upon
conversion or redemption); (ii) the production of proof satisfactory to it as to
the identity and genuineness of any signature; and (iii) compliance with such
regulations, if any, as the Depositary or the Company may establish not
inconsistent with the Deposit Agreement. Any person presenting Preferred Stock
for deposit, or any holder of this Receipt, may be required to file such proof
of information, to execute such certificates and to make such representations
and warranties as the Depositary or the Company may reasonably deem necessary or
proper. The Depositary or the Company may withhold or delay the delivery of
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any Receipt, the transfer, redemption, conversion or exchange of any Receipt,
the withdrawal of the Preferred Stock or money or other property, if any,
represented by the Depositary Shares evidenced by this Receipt or the
distribution of any dividend or other distribution until such proof or other
information is filed, such certificates are executed or such representations and
warranties are made.
9. Suspension of Delivery, Transfer, etc. The deposit of Preferred
Stock may be refused, the delivery of Receipts against Preferred Stock may be
suspended, the transfer of Receipts may be refused and the transfer, split-up,
combination, surrender or exchange of this Receipt may be suspended (i) during
any period when the register of holders of Receipts is closed; (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 the Deposit Agreement; or (iii) except for the
transfer of Receipts, with the approval of the Company, for any other reason.
Except with respect to a conversion of Depositary Shares which may occur
pursuant to the Express Terms, the Depositary shall not be required (a) to
execute and deliver, transfer or exchange any receipts for a period beginning at
the opening of business 15 days next preceding any selection of Depositary
Shares and Preferred Stock to be redeemed and ending at the close of business on
the day of the mailing of notice of redemption of Depositary Shares or (b) to
transfer or exchange for another Receipt any Receipt evidencing Depositary
Shares called or being called for redemption in whole or in part, except as
provided in the last paragraph of Paragraph 3 above.
10. Payment of Taxes or other Governmental Charges. If any tax or
other governmental charge shall become payable by or on behalf of the Depositary
with respect to this Receipt, the Depositary Shares evidenced by this Receipt,
the Preferred Stock (or any fractional interest therein) represented by such
Depositary Shares or any transaction referred to in Section 4.6 of the Deposit
Agreement, such tax (including transfer, issuance or acquisition taxes, if any)
or governmental charge shall be payable by the holder hereof. Until such payment
is made, transfer, redemption, conversion or exchange of this Receipt or any
withdrawal of the Preferred Stock or money and other property, if any,
represented by the Depositary Shares evidenced by this Receipt may be refused,
any dividend or other distribution may be withheld and any part or all of the
Preferred Stock or other property represented by the Depositary Shares evidenced
by this Receipt may be sold for the account of the holder hereof (after
attempting by reasonable means to notify such holder prior to such sale). Any
dividend or other distribution so withheld and the proceeds of any such sale may
be applied to any payment of such tax or other governmental charge, the holder
of this Receipt remaining liable for any deficiency.
11. Amendment. The form of the Receipts and any provision of the
Deposit Agreement may at any time and from time to time be amended by agreement
between the Company and the Depositary in any respect that they may deem
necessary or desirable. Any amendment that shall impose any fees, taxes or
charges payable by holders of Receipts (other than taxes and other governmental
charges, fees and other expenses provided for herein or in the Deposit
Agreement), or that shall otherwise prejudice any substantial existing right of
holders of Receipts, shall not become effective as to outstanding Receipts until
the expiration of 90 days after notice of such amendment shall have been given
to the record holders of outstanding Receipts. The holder of this Receipt at the
time any such amendment becomes effective shall be deemed, by continuing to hold
this Receipt, to consent and agree to such amendment and to be bound by the
Deposit Agreement as amended thereby. In no event shall any amendment impair the
right, subject to the provisions of Paragraphs 3, 4, 5, 6, 8, 9 and 10 hereof
and of Sections 2.3, 2.6., 2.7., 2.10 and 2.11 and Article III of the Deposit
Agreement, of the owner of the Depositary Shares evidenced by this Receipt to
surrender this
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Receipt with instructions to the Depositary to deliver to the holder the
Preferred Stock and all money and other property, if any, represented hereby, or
to cause the conversion of the underlying Preferred Stock into Common Stock and
cash for any fractional share amount, except in order to comply with mandatory
provisions of applicable law.
12. Fees, Charges and Expenses. The Company will pay all fees,
charges and expenses of the Depositary, except for taxes (including transfer
taxes, if any) and other governmental charges and such charges as are expressly
provided in the Deposit Agreement to be at the expense of persons depositing
Preferred Stock, holders of Receipts or other persons.
13. Ownership of Receipts. It is a condition of this Receipt, and
every successive holder hereof by accepting or holding the same consents and
agrees, that ownership of this Receipt (and of the Depositary Shares evidenced
hereby) when properly endorsed or accompanied by a properly executed instrument
of transfer or endorsement, is transferable by delivery; provided, however, that
until this Receipt shall be transferred on the books of the Depositary as
provided in Section 2.4 of the Deposit Agreement, the Depositary may,
notwithstanding any notice to the contrary, treat the record holder hereof at
such time as the absolute owner hereof for the purpose of determining the person
entitled to distribution of dividends or other distributions or to any notice
provided for in the Deposit Agreement and for all other purposes.
14. Dividends and Distributions. Whenever the Depositary receives
any cash dividend or other cash distribution on the Preferred Stock, the
Depositary will, subject to the provisions of the Deposit Agreement, distribute
such portions of such sum to record holders of Receipts as are, as nearly as
practicable, proportionate to the respective numbers of Depositary Shares
evidenced by the Receipts held by such holders; provided, however, that in case
the Company or the Depositary shall be required to withhold and does withhold
from any cash dividend or other cash distribution in respect of the Preferred
Stock an amount on account of taxes or as otherwise required by law, regulation
or court order, the amount made available for distribution or distributed in
respect of Depositary Shares shall be reduced accordingly. The Depositary shall
distribute or make available for distribution, as the case may be, only such
amount, however, as can be distributed without attributing to any owner of
Depositary Shares a fraction of one cent and any balance not so distributable
shall be 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.
15. Subscription Rights, Preferences or Privileges. If the Company
shall at any time offer or cause to be offered to the persons in whose names
Preferred Stock is registered on the books of the Company any rights,
preferences or privileges to subscribe for or to purchase any securities or any
rights, preferences or privileges of any other nature, such rights, preferences
or privileges shall in each such instance, subject to the provisions of the
Deposit Agreement, be made available by the Depositary to the record holders of
Receipts if the Company so directs in such manner as the Company shall instruct.
16. Notice of Dividends; Fixing of Record Date. Whenever any cash
dividend or other cash distribution shall become payable, any distribution other
than cash shall be made, or any rights, preferences or privileges shall at any
time be offered, with respect to the Preferred Stock, or whenever the Depositary
shall receive notice of (i) any meeting at which holders of Preferred Stock are
entitled to vote or of which holders of Preferred Stock are entitled to notice
or (ii) any election on the part of the Company to call for redemption any
shares of Preferred Stock, the Depositary shall in each such instance fix a
record date (which shall be the same date as the record date fixed by the
Company with respect to the Preferred
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Stock) for the determination of the holders of Receipts (i) 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 to receive notice of such
meeting or (ii) whose Depositary Shares are to be so redeemed.
17. Voting Rights. Upon issuance of notice of any meeting at which
the holders of Preferred Stock are entitled to vote, the Company shall direct
the Depositary, as soon as practicable thereafter, to mail to the record holders
of Receipts a notice, which shall contain (i) such information as is contained
in such notice of meeting, (ii) a statement that the holders of Receipts at the
close of business on a specified record date determined as provided in Paragraph
15 will be entitled, subject to any applicable provision of law, the Company's
Articles of Incorporation or the Express Terms, to instruct the Depositary as to
the exercise of the voting rights pertaining to the amount of Preferred Stock
represented by their respective Depositary Shares, and (iii) a brief statement
as to the manner in which such instructions may be given. Upon the written
request of a holder of a Receipt on such record date, the Depositary shall
endeavor insofar as practicable to vote or cause to be voted the amount of
Preferred Stock represented by the Depositary Shares evidenced by such Receipt
in accordance with the instructions set forth in such request. The Company has
agreed to take all reasonable action that may be deemed necessary by the
Depositary in order to enable the Depositary to vote such Preferred Stock or
cause such Preferred Stock to be voted. In the absence of specific instructions
from the holder of a Receipt, the Depositary will abstain from voting to the
extent of the Preferred Stock represented by the Depositary Shares evidenced by
such Receipt. After aggregating all voting Depositary Shares, the Depositary
will disregard for voting purposes any fractional share of Preferred Stock
remaining.
18. Reports, Inspection of Transfer Books. The Depositary shall
make available for inspection by holders of Receipts at the Depositary's Office
and at such other places as it may from time to time deem advisable during
normal business hours any reports and communications received from the Company
that are both received by the Depositary as the holder of Preferred Stock and
made generally available to the holders of Preferred Stock by the Company. The
Depositary shall keep books at the Depositary's Office for the registration and
transfer of Receipts, which books during normal business hours will be open for
inspection by the record holders of Receipts as provided by applicable law.
19. Liability of the Depositary, the Depositary's Agents and the
Company. Neither the Depositary nor any Depositary's Agent nor the Company shall
incur any liability to any holder of any Receipt, if by reason of any provision
of any present or future law or regulation of any governmental authority or, in
the case of the Depositary or any Depositary's Agent, by reason of any
provision, present or future, of the Articles of Incorporation or the Express
Terms or, in the case of the Company, the Depositary or any Depositary's Agent,
by reason of any act of God or war or other circumstance beyond the control of
the relevant party, the Depositary, any Depositary's Agent or the Company shall
be prevented or forbidden from doing or performing any act or thing that the
terms of the Deposit Agreement provide shall or may be done or performed; nor
shall the Depositary, any Depositary's Agent or the Company incur any liability
to any holder of a Receipt by reason of any nonperformance or delay, caused as
aforesaid, in the performance of any act or thing that the terms of the Deposit
Agreement provide shall or may be done or performed or by reason of any exercise
of, or failure to exercise, any discretion provided for in the Deposit
Agreement.
20. Obligations of the Depositary, the Depositary's Agents and the
Company. Neither the Depositary nor any Depositary's Agent nor the Company
assumes any obligation or shall be subject to any liability hereunder or under
the Deposit Agreement to holders of Receipts other than that each of them agrees
to use good faith in the performance of such
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duties as are specifically set forth in the Deposit Agreement. Neither the
Depositary nor any Depositary's Agent nor the Company shall be under any
obligation to appear in, prosecute or defend any action, suit or other
proceeding with respect to Preferred Stock, Depositary Shares, Receipts or
Common Stock that in its opinion may involve it in expense or liability, unless
indemnity satisfactory to it against all expense and liability be furnished as
often as may be required.
Neither the Depositary nor any Depositary's Agent nor the Company will
be liable for any action or failure to act by it in reliance upon the advice of
or information from legal counsel, accountants, any person presenting Preferred
Stock for deposit, any holder of a Receipt or any other person believed by it in
good faith to be competent to give such advice or information.
21. Termination of Deposit Agreement. Whenever so directed by the
Company upon at least five Business Days prior notice, the Depositary will
terminate the Deposit Agreement, provided that notice of such termination has
been given by mailing notice of such termination to the record holders of all
Receipts then outstanding at least 30 days prior to the date fixed in such
notice for such termination. The Depositary may likewise terminate the Deposit
Agreement if at any time 45 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 of the Deposit Agreement. Upon the termination of the
Deposit Agreement, the Company shall be discharged from all obligations
thereunder except for its obligations to the Depositary, any Depositary's Agent
and any Registrar under Sections 5.7 and 5.8 of the Deposit Agreement.
If any Receipts remain outstanding after the date of termination, the
Depositary thereafter shall discontinue all functions and be discharged from all
obligations as provided in the Deposit Agreement, except as specifically
provided therein.
22. Governing Law. The Deposit Agreement and this Receipt and all
rights thereunder and hereunder and provisions thereof and hereof shall be
governed by, and construed in accordance with, the law of the State of
______________ without giving effect to principles of conflict of laws.
This Receipt shall not be entitled to any benefits under the Deposit
Agreement or be valid or obligatory for any purpose, unless this Receipt shall
have been executed on behalf of the Depositary by the manual or facsimile
signature of a duly authorized officer and executed manually or, if a Registrar
for the Receipts (other than the Depositary) shall have been appointed, by
facsimile by the Depositary by the signature of a duly authorized officer and,
if executed by facsimile signature of the Depositary, shall have been
countersigned manually by such Registrar by the signature of a duly authorized
officer.
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NOTICE OF CONVERSION
The undersigned holder of this Receipt for Depositary Shares hereby
irrevocably exercises the option to convert that number of shares, or fractions
of shares, of {Designation of Preferred Stock} of the Company represented by
_____________ Depositary Shares into shares of Common Stock of the Company and
cash for any fraction of Common Stock in accordance with the terms of and
subject to the conditions of the Preferred Stock, including the Express Terms in
respect thereof, and the Deposit Agreement, and directs the Depositary to
instruct the Company that the shares of Common Stock deliverable upon such
conversion be registered in the name of, and delivered together with a check in
payment for any fractional shares of Common Stock to, the undersigned unless a
different name has been indicated below. If the shares of Common Stock are to be
registered in the name of a person other than the undersigned, the undersigned
will pay all transfer and similar taxes payable with respect thereto. If the
number of shares of Preferred Stock, represented by the number of Depositary
Shares set forth above is less than the number of shares of Preferred Stock on
deposit in respect of this Receipt, the undersigned directs that the Depositary
execute and deliver to the undersigned, unless a different name is indicated
below, a new Receipt evidencing Depositary Shares for the balance of such
Preferred Stock not to be converted.
Dated: _____________________________
Signature:
-----------------------------------------
NOTE: The signature on this notice of conversion must correspond
with the name as written upon the face of this Receipt in every
particular without alteration or enlargement or any change
whatsoever, and must be guaranteed by a commercial bank, trust
company, securities broker or dealer, credit union, savings
association or other eligible guarantor institution which is a
member of or participant in a signature guarantee program
acceptable to the Depositary.
Name:
----------------------------------------------------------------
Address:
----------------------------------------------------------------
(Please print name and address of Registered Holder)
Name:
----------------------------------------------------------------
Address:
----------------------------------------------------------------
(Please indicate other delivery instructions, if applicable)
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