FIRST UNION CORPORATION
FIRST UNION NATIONAL BANK OF NORTH CAROLINA,
As Depositary
AND
THE HOLDERS FROM TIME TO TIME OF
THE DEPOSITARY RECEIPTS DESCRIBED
HEREIN
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Deposit Agreement
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Dated as of January 1, 1996
TABLE OF CONTENTS
Page
PARTIES........................................................................................................ 1
RECITALS....................................................................................................... 1
ARTICLE I
DEFINITIONS
Certificate.................................................................................................... 2
Company........................................................................................................ 2
Deposit Agreement.............................................................................................. 2
Depositary..................................................................................................... 3
Depositary Shares............................................................................................. 3
Depositary's Agent............................................................................................. 3
Depositary's Office............................................................................................ 3
Predecessor Depositary......................................................................................... 3
Predecessor Depositary Shares.................................................................................. 3
Predecessor Receipt............................................................................................ 3
Predecessor Stock.............................................................................................. 3
Receipt........................................................................................................ 3
record holder.................................................................................................. 4
Registrar...................................................................................................... 4
Stock.......................................................................................................... 4
ARTICLE II
FORM OF RECEIPTS; DEPOSIT OF STOCK; EXECUTION AND
DELIVERY, TRANSFER, SURRENDER AND REDEMPTION OF RECEIPTS
SECTION 2.01. Form and Transfer of Receipts................................................................ 4
SECTION 2.02. Deposit of Stock; Execution and Delivery
of Receipts in Respect Thereof................................................... 7
SECTION 2.03. Redemption of Stock......................................................................... 9
SECTION 2.04. Registration of Transfer of Receipts......................................................... 11
SECTION 2.05. Split-ups and Combination of Receipts;
Surrender of Receipts and Withdrawal of
Stock............................................................................. 12
SECTION 2.06. Limitations on Execution and Delivery,
Transfer, Surrender and Exchange of
Receipts.......................................................................... 14
SECTION 2.07. Lost Receipts, Etc........................................................................... 15
SECTION 2.08. Cancellation and Destruction of Surrendered
Receipts.......................................................................... 16
SECTION 2.09. Stock Purchase Plans......................................................................... 16
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Page
ARTICLE III
CERTAIN OBLIGATIONS OF THE HOLDERS
OF RECEIPTS AND THE COMPANY
SECTION 3.01. Filing Proofs, Certificates and Other
Information....................................................................... 16
SECTION 3.02. Payment of Taxes or Other Governmental
Charges........................................................................... 17
SECTION 3.03. Warranty as to Stock......................................................................... 17
ARTICLE IV
THE DEPOSITED SECURITIES; NOTICES
SECTION 4.01. Cash Distributions........................................................................... 18
SECTION 4.02. Distributions Other than Cash................................................................ 18
SECTION 4.03. Subscription Rights, Preferences or
Privileges........................................................................ 19
SECTION 4.04. Notice of Dividends, Etc.; Fixing of
Record Date for Holders of Receipts............................................... 21
SECTION 4.05. Voting Rights................................................................................ 21
SECTION 4.06. Changes Affecting Deposited Securities
and Reclassifications,
Recapitalizations, Etc............................................................ 22
SECTION 4.07. Inspection of Reports........................................................................ 24
SECTION 4.08. Lists of Receipt Holders..................................................................... 24
ARTICLE V
THE DEPOSITARY, THE DEPOSITARY'S AGENTS,
THE REGISTRAR AND THE COMPANY
SECTION 5.01. Maintenance of Offices, Agencies, and
Transfer Books by the Depositary;
Registrar......................................................................... 25
SECTION 5.02. Prevention of or Delay in Performance
by the Depositary, the Depositary's
Agents, the Registrar or the Company.............................................. 26
SECTION 5.03. Obligations of the Depositary, the
Depositary's Agents, the Registrar
and the Company................................................................... 27
SECTION 5.04. Resignation and Removal of the Depositary;
Appointment of Successor Depositary............................................... 28
SECTION 5.05. Corporate Notices and Reports................................................................ 30
SECTION 5.06. Indemnification by the Company............................................................... 30
SECTION 5.07. Charges and Expenses......................................................................... 31
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Page
ARTICLE VI
AMENDMENT AND TERMINATION
SECTION 6.01. Amendment.................................................................................... 32
SECTION 6.02. Termination.................................................................................. 33
ARTICLE VII
MISCELLANEOUS
SECTION 7.01. Counterparts................................................................................. 33
SECTION 7.02. Exclusive Benefit of Parties................................................................. 33
SECTION 7.03. Invalidity Of Provisions..................................................................... 34
SECTION 7.04. Notices...................................................................................... 34
SECTION 7.05. Depositary's Agents.......................................................................... 35
SECTION 7.06. Holders of Receipts Are Parties.............................................................. 36
SECTION 7.07. Governing Law................................................................................ 36
SECTION 7.08. Inspection of Deposit Agreement.............................................................. 36
SECTION 7.09. Headings..................................................................................... 36
TESTIMONIUM.................................................................................................... 37
SIGNATURES..................................................................................................... 37
EXHIBIT A: Depositary Receipt
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DEPOSIT AGREEMENT
dated as of January 1, 1996
among
FIRST UNION CORPORATION
a North Carolina corporation,
FIRST UNION NATIONAL BANK OF NORTH CAROLINA
a national banking association,
AND THE HOLDERS FROM TIME TO TIME
OF THE RECEIPTS DESCRIBED HEREIN
WHEREAS, it is desired to provide, as hereinafter set forth in
this Deposit Agreement, for the deposit of shares of Series F 10.64% Class A
Preferred Stock, no-par value, of FIRST UNION CORPORATION with the Depositary
(as hereinafter defined) for the purposes set forth in this Deposit Agreement
and for the issuance hereunder of Receipts (as hereinafter defined) by the
Depositary evidencing Depositary Shares in respect of the Stock (as hereinafter
defined) so deposited; and
WHEREAS, effective as of the date hereof, First Fidelity
Bancorporation, a New Jersey corporation, is merging with and into First Union
Corporation of New Jersey, a New Jersey corporation and a wholly owned
subsidiary of First Union Corporation (the "Merger"); and, in consequence of the
Merger, the outstanding shares of Predecessor Stock (as hereinafter defined) and
the outstanding Predecessor Depositary Shares (as hereinafter defined) are being
exchanged for shares of Stock (as hereinafter defined) and Depositary Shares (as
hereinafter defined); and
WHEREAS, the Receipts are to be substantially in the form
of the Predecessor Receipts (as hereinafter defined), with
appropriate insertions, modifications and omissions as hereinafter
provided in this Deposit Agreement;
NOW, THEREFORE, in consideration of the premises contained
herein and such other good and valuable consideration, receipt of which is
hereby acknowledged, the parties hereto agree as follows:
ARTICLE I
DEFINITIONS
The following definitions shall for all purposes, unless
otherwise indicated, apply to the respective terms used in this Deposit
Agreement and the Receipts (as hereinafter defined):
"Certificate" shall mean the articles of amendment to the
Articles of Incorporation, as amended, of the Company filed with the Secretary
of State of the State of North Carolina establishing the Stock as a series of
preferred stock of the Company.
"Company" shall mean First Union Corporation, a North Carolina
corporation, and its successors.
"Deposit Agreement" shall mean this Deposit Agreement, as
amended or supplemented from time to time in accordance with the terms hereof.
"Depositary" shall mean First Union National Bank of North
Carolina, a national banking association, and any successor Depositary
hereunder.
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"Depositary Shares" shall mean the Depositary Shares, each
representing a one-fortieth (1/40th) interest in a share of Stock and which
shall be evidenced by Receipts.
"Depositary's Agent" shall mean an agent appointed by the
Depositary pursuant to Section 7.05.
"Depositary's Office" shall mean the principal office of the
Depositary at which at any particular time its depositary business shall be
administered.
"Predecessor Depositary" shall mean First Fidelity Bank, N.A.,
New Jersey and its successor, First Fidelity Bank, N.A., as depositary with
respect to the Predecessor Depositary Shares.
"Predecessor Depositary Shares" shall mean the Depositary
Shares, each representing a one-fortieth (1/40th) interest in a share of
Predecessor Stock and which heretofore have been represented by Predecessor
Receipts.
"Predecessor Receipt" shall mean one of the depositary
receipts issued by the Predecessor Depositary, each heretofore representing any
number of whole Predecessor Depositary Shares.
"Predecessor Stock" shall mean shares of the Series F 10.64%
Preferred Stock, par value $1.00 per share, of First Fidelity Bancorporation, a
New Jersey corporation.
"Receipt" shall mean one of the depositary receipts, whether
in definitive or temporary form, issued hereunder by the Depositary (or by the
Predecessor Depositary to the extent described in Section 2.01), each
representing any number of whole Depositary Shares.
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"record holder" with respect to a Receipt shall mean the
individual, entity or person in whose name a Receipt is registered on the books
of the Depositary or any register of any Registrar maintained for such purpose
at a given time.
"Registrar" shall mean any bank or trust company which shall
be appointed by the Depositary to register ownership and transfers of Receipts
as herein provided and which may include the Depositary.
"Stock" shall mean shares of the Company's Series F 10.64%
Class A Preferred Stock, no-par value.
ARTICLE II
FORM OF RECEIPTS; DEPOSIT OF STOCK; EXECUTION AND DELIVERY,
TRANSFER, SURRENDER AND REDEMPTION OF RECEIPTS
SECTION 2.01. Form and Transfer of Receipts. Definitive
Receipts shall be engraved or printed or lithographed on steel-engraved borders
and shall be substantially in the form of the Predecessor Receipts, with
appropriate insertions, modifications and omissions, as hereinafter provided.
Pending the preparation of definitive Receipts, the Depositary, upon the written
order of the Company delivered in compliance with Section 2.02, shall execute
and deliver temporary Receipts which shall be printed, lithographed,
typewritten, mimeographed or otherwise substantially of the tenor of the
definitive Receipts in lieu of which they are issued and with such appropriate
insertions, omissions, substitutions and other variations as the persons
executing such Receipts may determine, as evidenced by their execution of such
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Receipts; provided that such temporary Receipts may include Predecessor
Receipts, appropriately overprinted to reflect the occurrence of the Merger.
After the preparation of definitive Receipts, the temporary Receipts shall be
exchangeable for definitive Receipts upon surrender of the temporary Receipts at
the Depositary's Office, 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 registered in the name (and only the name) of the holder of the
temporary Receipt. Such exchange shall be made at the Company's expense and
without any charge therefor to the holder. Until so exchanged, the temporary
Receipts shall in all respects be entitled to the same benefits under this
Deposit Agreement and with respect to the Stock, as definitive Receipts.
Receipts shall be executed by the Depositary by the manual
signature of a duly authorized officer of the Depositary (or, in the case of
temporary Receipts that are Predecessor Receipts, of the Predecessor
Depositary); provided, that such signature may be a facsimile if a Registrar for
the Receipts (other than the Depositary) shall have been appointed and such
Receipts are countersigned by manual signature of a duly authorized officer of
the Registrar. No Receipt shall be entitled to any benefits under this Deposit
Agreement or be valid or obligatory for any purpose unless it shall have been
executed manually by a duly
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authorized officer of the Depositary (or, in the case of Temporary Receipts that
are Predecessor Receipts, the Predecessor Depositary) or, if a Registrar for the
Receipts (other than the Depositary) shall have been appointed, by facsimile
signature of a duly authorized officer of the Depositary (or, in the case of
Temporary Receipts that are Predecessor Receipts, the Predecessor Depositary)
and countersigned manually by a duly authorized officer of such Registrar. The
Depositary shall record on its books each Receipt so signed and delivered as
hereinafter provided. Receipts bearing the manual or facsimile signatures of
individuals who were at any time proper officers of the Depositary, the
Predecessor Depositary or the Registrar, as the case may be, shall constitute
adequate signatures hereunder, notwithstanding that such individuals or any of
them have ceased to hold such offices prior to the delivery of such Receipts or
did not hold such offices on the date of delivery of such Receipts.
Receipts shall be in denominations of any number of whole
Depositary Shares.
Receipts may be endorsed with or have incorporated in the text
thereof such legends or recitals or changes not inconsistent with the provisions
of this Deposit Agreement as may be required by the Depositary and approved by
the Company or required to comply with any applicable law or regulation or with
the rules and regulations of any securities exchange upon which the Stock, the
Depositary Shares or the Receipts may be listed or to conform with any usage
with respect thereto, or to indicate any special
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limitations or restrictions to which any particular Receipts are
subject.
Title to Depositary Shares evidenced by a Receipt which is
properly endorsed, or accompanied by a properly executed instrument of transfer,
shall be transferable by delivery of such Receipt with the same effect as if
such Receipt were a negotiable instrument; provided, however, that until
transfer of a Receipt shall be registered on the books of the Registrar, on
behalf of the Depositary, as provided in Section 2.04, the Depositary may,
notwithstanding any notice to the contrary, treat the record holder as the
absolute owner thereof for the purpose of determining the person entitled to
distributions of dividends or other distribu tions with respect to the Stock or
to any notice provided for in this Deposit Agreement and for all other purposes.
The Depositary shall not lend any Stock deposited hereunder.
SECTION 2.02. Deposit of Stock; Execution and Delivery of
Receipts in Respect Thereof. Subject to the terms and condi tions of this
Deposit Agreement, the Company may from time to time deposit shares of Stock
with the Depositary under this Deposit Agreement by delivery to the Depositary
of a certificate or certificates representing the Stock to be deposited. Such
certificate or certificates representing the Stock shall be properly endorsed or
accompanied, if required by the Depositary, by a duly executed instrument of
transfer or endorsement, in form satisfactory to the Depositary, together with
all such
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certifications as may be required by the Depositary in accordance with the
provisions of this Deposit Agreement, and together with a written order of the
Company directing the Depositary to execute and deliver to the person or persons
named in such order, a Receipt or Receipts evidencing in the aggregate the
number of Depositary Shares representing such deposited Stock.
All Stock deposited by the Company or the Other Persons, as
the case may be, with the Depositary shall be held by the Depositary at the
Depositary's Office or at such other place or places as the Depositary shall
determine.
Upon receipt by the Depositary of a certificate or
certificates representing Stock deposited, with the Depositary by the Company or
the Other Persons, as the case may be, in accordance with the provisions of this
Section, together with the other documents required as above specified, and upon
recordation of the Stock so deposited on the books of the Company in the name of
the Depositary, the Depositary shall execute and deliver, to the person or
persons named in the written order delivered to the Depositary, a Receipt or
Receipts, evidencing in the aggregate the number of Depositary Shares relating
to the Stock so deposited. Such Receipt or Receipts shall be registered by the
Depositary or the Registrar in such name or names as may be requested by the
person or persons named in the written order. The Depositary shall execute and
deliver such Receipts at the Depositary's Office or such other offices, if any,
as such person may designate. Delivery at other
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offices shall be at the risk and expense of the person requesting
such delivery.
Other than in the case of splits, combinations or other
reclassifications affecting the Stock, or in the case of dividends or other
distributions of Stock, if any, there shall be deposited with the Depositary
hereunder not more than 75,000 shares of Stock.
SECTION 2.03. Redemption of Stock. Whenever the Company shall
elect to redeem shares of Stock in accordance with the provisions of the
Certificate, it shall (unless otherwise agreed in writing with the Depositary)
mail notice to the Depositary of such redemption, by first class mail, postage
prepaid, not less than 40 nor more than 70 days prior to the date fixed for the
redemption of Stock in accordance with Section (3) C(1) of Section FFB of the
Certificate. On the date of such redemption, provided that the Company shall
then have paid in full to the Depositary the redemption price required pursuant
to the Certificate of the Stock to be redeemed, the Depositary shall redeem the
Depositary Shares relating to such Stock. The Depositary shall mail notice of
such redemption, and the simultaneous redemption of the number of Depositary
Shares relating to the Stock to be redeemed, by first-class mail, postage
prepaid, not less than 30 and not more than 60 days prior to the date fixed for
redemption of such Stock and Depositary Shares (the "Redemption Date"), to the
record holders of the Receipts evidencing the Depositary Shares to be so
redeemed on the record date fixed pursuant to Section 4.04 hereof, at the
addresses of such holders as they appear on the records of
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the Depositary; provided, however, that neither failure to mail any such notice
to one or more such holders nor any defect in any notice or in the mailing
thereof to one or more such holders shall affect the validity of the proceedings
for redemption of any Depositary Shares as to other holders. Each such notice of
redemption shall state: (i) the Redemption Date; (ii) the number of Depositary
Shares to be redeemed and, if less than all the Depositary Shares held by any
such holder are to be redeemed, the number of such Depositary Shares held by
such holder to be so redeemed and the method by which the Depositary Shares will
be chosen for redemption; (iii) the redemption price (including cumulative
dividends to the Redemption Date); (iv) the place or places where Receipts
evidencing Depositary Shares are to be surrendered for payment of the redemption
price; and (v) that dividends in respect of the Stock to be redeemed, which are
represented by the Depositary Shares to be redeemed, will cease to accrue at the
close of business on such Redemption Date. In case less than all the outstanding
Depositary Shares are to be redeemed, the Depositary Shares to be so redeemed
shall be selected by lot or pro rata as may be determined by the Company.
Notice having been mailed by the Depositary as aforesaid, from
and after the Redemption Date (unless the Company shall have failed to redeem
the shares of Stock to be redeemed by it as set forth in the Company's notice
provided for in the preceding paragraph), all dividends in respect of the shares
of Stock so called for redemption shall cease to accrue, the Depositary Shares
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being redeemed from such proceeds shall be deemed no longer to be outstanding,
all rights of the holders of Receipts evidencing such Depositary Shares (except
the right to receive the redemption price) shall, to the extent of such
Depositary Shares, cease and terminate and, upon surrender in accordance with
such notice of the Receipts evidencing any such Depositary Shares (properly
endorsed or assigned for transfer, if the Depositary shall so require), such
Depositary Shares shall be redeemed by the Depositary at a redemp tion price per
Depositary Share equal to 1/40th of the redemption price per share paid in
respect of the shares of Stock plus all money and other property, if any,
underlying such Depositary Shares, including all amounts paid by the Company in
respect of dividends which on the Redemption Date have accrued on the shares of
Stock to be so redeemed and have not theretofore been paid.
If less than all the Depositary Shares evidenced by a Receipt
are called for redemption, the Depositary will deliver to the holder of such
Receipt upon its surrender to the Depositary, together with the payment of the
redemption price, a new Receipt evidencing such number of Depositary Shares as
were evidenced by such prior Receipt and not called for redemption; provided,
however, that such replacement Receipt shall be issued only in denominations of
whole Depositary Shares and cash will be payable in respect of fractional
interests.
SECTION 2.04. Registration of Transfer of Receipts.
Subject to the terms and conditions of this Deposit Agreement, the
Registrar, on behalf of the Depositary, shall register on its books
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transfers of Receipts from time to time upon notice to the Registrar by the
Depositary of the surrender of a Receipt for transfer by the holder in person or
by duly authorized attorney, which Receipt in each case must be properly
endorsed or accompanied by a properly executed instrument of transfer. Upon
surrender of a properly endorsed Receipt or Receipt accompanied by an instrument
of transfer, the Depositary shall execute a new Receipt or Receipts evidencing
the same aggregate number of Depositary Shares as those evidenced by the Receipt
or Receipts surrendered and deliver such new Receipt or Receipts to or upon the
order of the transferee named in the endorsement or instrument of transfer.
SECTION 2.05. Split-ups and Combinations of Receipts;
Surrender of Receipts and Withdrawal of Stock. Upon surrender of a Receipt or
Receipts at the Depositary's Office or at such other offices as it may designate
for the purpose of effecting a split-up or combination of such Receipt or
Receipts, the Depositary shall execute and deliver a new Receipt or Receipts to
the holder thereof or to such holder's order in the denominations requested,
evidencing the aggregate number of Depositary Shares evidenced by the Receipt or
Receipts surrendered. The Depositary shall give prompt notice of such action and
the certificate numbers to the Registrar for the purpose of recording such
split-up or consolidation.
Any holder of at least forty Depositary Shares may withdraw
the number of whole shares of Stock underlying such Depositary Shares and all
money and other property, if any,
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represented thereby by surrendering such Receipt or Receipts at the Depositary's
Office or at such other offices as the Depositary may designate for such
withdrawals. Thereafter, without unreasonable delay, the Depositary shall
deliver to such holder, or to the person or persons designated by such holder as
hereinafter provided, the number of whole shares of Stock and all money and
other property, if any, represented by the Receipt or Receipts so surrendered
for withdrawal, but holders of such whole shares of Stock will not thereafter be
entitled to deposit such Stock hereunder or to receive Depositary Shares
therefor. If the Receipt or Receipts delivered by the holder to the Depositary
in connection with such withdrawal shall evidence in the aggregate a number of
Depositary Shares in excess of the number of Depositary Shares representing the
number of whole shares of Stock to be so withdrawn, the Depositary shall at the
same time, in addition to such number of whole shares of Stock and such money
and other property, if any, to be so withdrawn, deliver to such holder, or
(subject to Sections 2.04 and 3.02) upon his order, a new Receipt evidencing
such excess number of Depositary Shares. Delivery of the Stock and the money and
other property being withdrawn may be made by the delivery of such certificates,
documents of title and other instruments as the Depositary may deem appropriate.
If the Stock and the money and other property being withdrawn
are to be delivered to a person or persons other than the record holder of the
Receipt or Receipts being surrendered for withdrawal of Stock, such holder shall
execute and deliver to the
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Depositary a written order so directing the Depositary and the Depositary may
require that the Receipt or Receipts surrendered by such holder for withdrawal
of such shares of Stock be properly endorsed in blank or accompanied by a
properly executed instrument of transfer in blank.
Delivery of the Stock and the money and other property, if
any, represented by Receipts surrendered for withdrawal shall be made by the
Depositary at the Depositary's Office, except that, at the request, risk and
expense of the holder surrendering such Receipt or Receipts and for the account
of the holder thereof, such delivery may be made at such other place as may be
designated by such holder.
SECTION 2.06. Limitations on Execution and Delivery, Transfer,
Surrender and Exchange of Receipts. As a condition precedent to the execution
and delivery, registration of transfer, split-up, combination, surrender or
exchange of any Receipt, the Depositary, any of the Depositary's Agents or the
Company may require payment to it of a sum sufficient for the payment (or, in
the event that the Depositary or the Company shall have made such payment, the
reimbursement to it) of any charges or expenses payable by the holder of a
Receipt pursuant to Section 5.07, may require the production of evidence
satisfactory to it as to the identity and genuineness of any signature and may
also require compliance with the rules and regulations of any governmental body,
any stock exchange or any applicable self regulatory body, includ ing without
limitation, the National Association of Securities
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Dealers, Inc. (the "NASD") or such regulations, if any, as the
Depositary or the Company may establish consistent with the
provisions of this Deposit Agreement.
The delivery of Receipts against Stock deposited with the
Depositary may be suspended, the registration of transfer of Receipts may be
refused and the registration of transfer, surrender or exchange of outstanding
Receipts may be suspended (i) during any period when the register of
stockholders of the Company is closed or (ii) if any such action is deemed
necessary 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, governmental body or commission, stock exchange or the NASD or under
any provision of this Deposit Agreement.
SECTION 2.07. Lost Receipts, Etc. If any mutilated Receipt is
surrendered to the Depositary, the Depositary shall execute and deliver in
exchange therefor a new Receipt of like form and tenor in exchange and
substitution for such mutilated Receipt. In case any Receipt shall be destroyed,
lost or stolen, the Depositary shall execute and deliver a Receipt to the holder
thereof of like form and tenor in exchange and substitution for such destroyed,
lost or stolen Receipt, upon (i) the filing by the holder thereof with the
Depositary of evidence satisfactory to the Depositary of such destruction or
loss or theft of such Receipt, of the authenticity thereof and of such holder's
ownership thereof and (ii) the holder's furnishing the Depositary with
reasonable indemnification satisfactory to such Depositary.
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SECTION 2.08. Cancellation and Destruction of Surrendered
Receipts. All Receipts surrendered to the Depositary or any Depositary's Agent
shall be canceled by the Depositary. Except as prohibited by applicable law or
regulation, the Depositary is authorized to destroy all Receipts so canceled.
SECTION 2.09. Stock Purchase Plans. The Depositary shall take
such action as shall be necessary or appropriate to permit the record holders of
the Depositary Shares to participate in any dividend reinvestment or other stock
purchase plan sponsored by the Company that permits the participation by such
holders on such terms and conditions as the Company may determine.
ARTICLE III
CERTAIN OBLIGATIONS OF THE HOLDERS
OF RECEIPTS AND THE COMPANY
SECTION 3.01. Filing Proofs, Certificates and Other
Information. Any holder of a Receipt may be required from time to time to file
such proof of residence, or other matters or other information, to obtain such
guaranties of signature, to execute such certificates and to make such customary
representations and warranties consistent with the terms of the Stock as the
Depositary or the Company may reasonably deem necessary or proper. The
Depositary or the Company may withhold the delivery, or delay the registration
of transfer, redemption or exchange, of any Receipt or the distribution of any
dividend or other distribution or the sale of any rights or of the proceeds
thereof until such proof or other
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information is filed or such certificates are executed or such
representations and warranties are made.
SECTION 3.02. Payment of Taxes or Other Governmental Charges.
Holders of Receipts shall be obligated to make payments to the Depositary of
certain charges and expenses as provided in Section 5.07. Registration of
transfer of any Receipt and delivery of all money or other property, if any,
represented by the Depositary Shares evidenced by such Receipt may be refused
until any such payment due is made, and any dividends, interest payments or
other distributions may be withheld or all or any part of the Stock or other
property represented by the Depositary Shares evidenced by such Receipt and not
theretofore sold may be sold for the account of the holder thereof (after
attempting by reasonable means to notify such holder prior to such sale), and
such dividends, interest payments or other distributions or the proceeds of any
such sale may be applied to any payment of such charges or expenses, the holder
of such Receipt remaining liable for any deficiency.
SECTION 3.03. Warranty as to Stock. The Company hereby
represents and warrants to the Depositary that the Stock, when issued, will be
validly issued, fully paid and nonassessable. Such representation and warranty
shall survive the deposit of the Stock and the issuance of Receipts.
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ARTICLE IV
THE DEPOSITED SECURITIES; NOTICES
SECTION 4.01. Cash Distributions. Whenever the Depositary
shall receive any cash dividend or other cash distribution with respect to the
Stock, the Depositary shall, subject to Section 3.02, distribute to record
holders of Receipts on the record date fixed pursuant to Section 4.04 the pro
rata portion, as nearly as practicable, of such dividend or distribution
applicable to the number of Depositary Shares evidenced by the Receipts held by
such holders; provided, however, that in case the Company or the Depositary
shall be required to withhold and shall withhold any monies from any cash
dividend or other cash distribu tion in respect of the Stock on account of
taxes, the distribution in respect of Depositary Shares shall be reduced
accordingly. The Depositary shall distribute or make available for distribution,
as the case may be, only such amount, however, as can be distributed without
attributing to any holder of Depositary Shares a fraction of one cent, and any
balance not so distributable shall be held by the Depositary (without liability
for interest thereon) and shall be added to and be treated as part of the next
succeeding distribution to record holders of Receipts.
SECTION 4.02. Distributions Other than Cash. Whenever the
Depositary shall receive any property (including securities) for distribution in
a form other than cash with respect to the Stock, the Depositary shall, subject
to Section 3.02, distribute to record holders of Receipts on the record date
fixed pursuant to
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Section 4.04 the pro rata portion, as nearly as practicable, of such property
(including securities) received by it applicable to the number of Depositary
Shares evidenced by the Receipts held by such holders, in any manner that the
Depositary may deem equitable and practicable for accomplishing such
distribution. If in the opinion of the Depositary such distribution cannot be
made propor tionately among such record holders, or if for any other reason
(including any requirement that the Company or the Depositary withhold an amount
on account of taxes) the Depositary deems, after consultation with the Company,
such distribution not to be feasible, the Depositary may, with the approval of
the Company, adopt such method as it deems equitable and practicable for the
purpose of effecting such distribution, including the sale of the property thus
received, or any part thereof, in a commercially reasonable manner. The net
proceeds of any such sale shall, subject to Section 3.02, be distributed or made
available for distribution, as the case may be, by the Depositary to record
holders of Receipts in accordance with the provisions of Sec tion 4.01 for a
distribution received in cash.
SECTION 4.03. Subscription Rights, Preferences or Privileges.
If the Company shall at any time offer or cause to be offered to the persons in
whose names Stock is recorded on the books of the Company any rights,
preferences or privileges to subscribe for or to purchase any securities or any
rights, prefer ences or privileges of any other nature, such rights, preferences
or privileges shall in each such instance be made available by the
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Depositary to the record holders of Receipts, pro rata in propor tion to the
Stock represented by such Receipt, in such manner as the Depositary may
determine, either by the issue to such record holders of warrants representing
such rights, preferences or privileges or by such other method as may be
approved by the Depositary in its discretion with the approval of the Company;
provided, however, that (i) if at the time of issue or offer of any such rights,
preferences or privileges the Depositary determines that it is not lawful or
(after consultation with the Company) not feasible to make such rights,
preferences or privileges available to holders of Receipts by the issue of
warrants or otherwise, or (ii) if and to the extent so instructed by holders of
Receipts who do not desire to exercise such rights, preferences or privileges,
then the Depositary, in its discretion (with the approval of the Company, in any
case where the Depositary has determined that it is not feasible to make such
rights, preferences or privileges available), may, if applicable laws or the
terms of such rights, preferences or privileges permit such transfer, sell such
rights, preferences or privileges at public or private sale, at such place or
places and upon such terms as it may deem proper. The net proceeds of any such
sales shall be distributed by the Depositary to the record holders of Receipts
entitled thereto as provided by Section 4.01 in the case of a distribution
received in cash.
If any other action under the laws of any jurisdiction or any
governmental or administrative authorization, consent or permit is required in
order for such rights, preferences or privileges to
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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 suffi ciently in advance of the expiration of
such rights, preferences or privileges to enable such holders to exercise such
rights, prefer ences or privileges.
SECTION 4.04. Notice of Dividends, Etc.; Fixing of Record Date
for Holders of Receipts. Whenever any cash dividend or other cash distribution
shall become payable or any distribution of property (including securities)
other than cash shall be made, or if rights, preferences or privileges shall at
any time be offered, with respect to Stock, or whenever the Depositary shall
receive notice of (i) any meeting at which holders of Stock are entitled to vote
or of which holders of Stock are entitled to notice, or (ii) any election on the
part of the Company to redeem any shares of Stock, the Depositary shall, in each
such instance, fix a record date (which shall be the same date as the record
date fixed by the Company with respect to the Stock) for the determination of
the holders of Receipts who shall be entitled hereunder to receive a
distribution in respect of such dividend, distribution, rights, preferences or
privileges or the net proceeds of the sale thereof, or to give instructions for
the exercise of voting rights at any such meeting, or to receive notice of such
meeting.
SECTION 4.05. Voting Rights. Upon receipt of notice of
any meeting at which the holders of Stock are entitled to vote, the
Depositary shall, as soon as practicable thereafter, mail to the
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record holders of Receipts a notice which shall contain (i) such information as
is contained in such notice of meeting and (ii) a statement that the holders may
instruct the Depositary as to the exercise of the voting rights pertaining to
the amount of Stock underlying their respective Depositary Shares and a brief
statement as to the manner in which such instructions may be given. Upon the
written request of the holders of Receipts on the applicable record date, the
Depositary shall endeavor, insofar as practicable, to vote or cause to be voted,
in accordance with the instructions set forth in such requests, the votes
relating to the shares of Stock (or portion thereof) underlying the Depositary
Shares evidenced by all Receipts as to which any particular voting instructions
are received. The Company hereby agrees to take all necessary action in order to
enable the Depositary to vote such Stock or cause such Stock to be voted. In the
absence of specific instructions from the holder of a Receipt, the Depositary
will abstain from voting (but, at its discretion, not from appearing at any
meeting with respect to such Stock unless directed to the contrary by the
holders of all the Receipts) to the extent of the Stock (or portion thereof)
underlying the Depositary Shares evidenced by such Receipt.
SECTION 4.06. Changes Affecting Deposited Securities and
Reclassifications, Recapitalizations, Etc. Upon any change in par
or stated value, split-up, combination or any other reclassifica
tion of the Stock, or upon any recapitalization, reorganization,
merger, amalgamation or consolidation to which the Company is a
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party or sale of all or substantially all of the Company's assets, the
Depositary may with the approval of, and shall upon the instructions of, the
Company, and (in either case) in such manner as to retain as nearly as possible
the percentage ownership interest in Stock of holders of the Receipts
immediately prior to such event, (i) make such adjustments in (a) the fraction
of an interest in one share of Stock underlying one Depositary Share and (b) the
ratio of the redemption price per Depositary Share to the redemption price of a
share of Stock, in each case as may be necessary fully to reflect the effects of
such change in par or stated value, split-up, combination or other
reclassification of Stock, or of such recapitalization, reorganization, merger,
amal gamation or consolidation or sale, and (ii) treat any securities which
shall be received by the Depositary in exchange for or upon conversion of or in
respect of the Stock as new deposited securi ties so received in exchange for or
upon conversion of or in respect of the Stock. In any such case the Depositary
may, with the approval of the Company, execute and deliver additional Receipts,
or may call for surrender of all outstanding Receipts to be exchanged for new
Receipts specifically describing such new deposited securities.
Anything to the contrary herein or in the Receipt
notwithstanding, holders of Receipts shall have the right from and after the
effective date or any such change in par or stated value, split-up, combination
or other reclassification of the Stock or any such recapitalization,
reorganization, merger, amalgamation,
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consolidation or sale, to the extent that holders of Stock had the right, prior
to or on the applicable effective date, to convert, exchange or surrender shares
of Stock into or for other stock, securities, property or cash, to surrender
such Receipts to the Depositary with instructions to convert, exchange or
surrender the Stock represented thereby only into or for, as the case may be,
the kind and amount of shares of stock and other securities and prop erty and
cash into which the Stock represented by such Receipts has been converted or for
which such Stock might have been exchanged or surrendered immediately prior to
the effective date of such transaction.
SECTION 4.07. Inspection of Reports. The Depositary shall make
available for inspection by holders of Receipts at the Depositary's Office, and
at such other places as it may from time to time deem advisable, any reports and
communications received from the Company which are received by the Depositary as
the holder of Stock.
SECTION 4.08. List of Receipt Holders. Promptly, upon request
by the Company, the Depositary shall furnish to it a list, as of a specified
date, of the names and addresses of all persons in whose names Receipts are
registered on the books of the Depositary, and the amount of Stock represented
thereby.
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ARTICLE V
THE DEPOSITARY, THE DEPOSITARY'S AGENTS,
THE REGISTRAR AND THE COMPANY
SECTION 5.01. Maintenance of Offices, Agencies and Transfer
Books by the Depositary; Registrar. Upon execution of this Deposit Agreement,
the Depositary shall maintain, at the Depositary's Office, facilities for the
execution and delivery, registration and registration of transfer, surrender and
exchange of Receipts, and at the offices of the Depositary's Agents, if any,
facilities for the delivery, registration of transfer, surrender and exchange of
Receipts, all in accordance with the provisions of this Deposit Agreement.
The Depositary shall, with the approval of the Company,
appoint a Registrar for registration of such Receipts or Depositary Shares in
accordance with any requirements of any applicable stock exchange in which the
Receipts or the Depositary Shares are listed. Such Registrar (which may be the
Depositary if so permitted by the requirements of such exchange) may be removed
and a substitute Registrar appointed by the Depositary upon the request or with
the approval of the Company. If the Receipts, the Depositary Shares or the Stock
are listed on one or more other stock exchanges, the Depositary will, at the
request of the Company, arrange such facilities for the delivery, registration,
registration of transfer, surrender and exchange of such Receipts, such
Depositary Shares or such Stock as may be required by law or applicable stock
exchange regulation.
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Xxx Xxxxxxxxx shall maintain books at the Depositary's Office
for the registration and registration of transfer of Receipts or at such other
place as shall be approved by the Company and of which the holders of Receipts
shall have reasonable notice, which books at all reasonable times shall be open
for inspection by the record holders of Receipts; provided, that any such holder
requesting to exercise such right shall certify to the Registrar that such
inspection shall be for a proper purpose reasonably related to such person's
interest as an owner of Depositary Shares evidenced by the Receipts.
The Depositary may cause the Registrar to close the books with
respect to the Receipts, at any time or from time to time, when the register of
stockholders of the Company is closed with respect to the Stock or when such
action is deemed necessary or advisable by the Depositary, any Depositary's
Agent or the Company because of any requirement of law or of any government,
governmental body or commission, stock exchange or any applicable
self-regulatory body, including, without limitation, the NASD.
SECTION 5.02. Prevention of or Delay in Performance by the
Depositary, the Depositary's Agents, the Registrar or the Company. Neither the
Depositary nor any Depositary's Agent nor any Registrar nor the Company shall
incur any liability to any holder of any Receipt if by reason of any provision
of any present or future law, or regulation thereunder, of the United States of
America or of any other governmental authority or, in the case of the
Depositary, the Depositary's Agent or the Registrar, by reason
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of any provision, present or future, of the Company's Articles of Incorporation,
as amended (including the Certificate), or by reason of any act of God or war,
the Depositary, the Depositary's Agent, the Registrar or the Company shall be
prevented or forbidden from doing or performing any act or thing which the terms
of this Deposit Agreement provide shall be done or performed; nor shall the
Depositary, any Depositary's Agent, any Registrar or the Company incur any
liability or be subject to any obligation (i) by reason of any nonperformance or
delay, caused as aforesaid, in the performance of any act or thing which the
terms of this Deposit Agreement provide shall or may be done or performed, or
(ii) by reason of any exercise of, or failure to exercise, any discretion
provided for in this Deposit Agreement, except in the event of the gross
negligence or willful misconduct of the party charged with such exercise or
failure to exercise.
SECTION 5.03. Obligations of the Depositary, the Depositary's
Agents, the Registrar and the Company. Neither the Depositary nor any
Depositary's Agent nor any Registrar nor the Company shall be under any
obligation to appear in, prosecute or defend any action, suit or other
proceeding in respect of the Stock, the Depositary Shares or the Receipts which
in its opinion may involve it in expense or liability unless indemnity to such
party against all expense and liability be furnished as often as required.
Neither the Depositary nor any Depositary's Agent nor any
Registrar nor the Company shall be liable to any party hereto for
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any action or any failure to act by it in reliance upon the written advice of
legal counsel or accountants, or information from any person presenting Stock
for deposit or any holder of a Receipt. The Depositary, any Depositary's Agent,
any Registrar and the Company may each rely and shall each be protected in
acting upon any written notice, request, direction or other document believed by
it to be genuine and to have been signed or presented by the party or parties
specified in this Agreement.
The Depositary undertakes and shall cause any Registrar to
undertake, to perform such duties and only such duties as are specifically set
forth in this Agreement using its best efforts and in good faith. The parties
hereto acknowledge that no implied covenants or obligations shall be read into
this Deposit Agreement against the Depositary or any Registrar or against the
Company with respect to the Depositary and any Registrar. The Depositary will
indemnify the Company against any liability which may arise out of acts
performed or omitted by the Depositary or any Depositary's Agent due to its or
their negligence or bad faith. The Depositary, any Depositary's Agent, any
Registrar and the Company may own and deal in any class of securities of the
Company and its affiliates and in Receipts subject to the provisions of
applicable law. The Depositary may also act as transfer agent or registrar of
any of the securities of the Company and its affiliates.
SECTION 5.04. Resignation and Removal of the Depositary:
Appointment of Successor Depositary. The Depositary may at any
time resign as Depositary hereunder by notice of its election so to
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do delivered to the Company, such resignation to take effect upon the
appointment of a successor Depositary and its acceptance of such appointment as
hereinafter provided.
The Depositary may at any time be removed by the Company by
notice of such removal delivered to the Depositary, such removal to take effect
upon the appointment of a successor Depositary and its acceptance of such
appointment as hereinafter provided.
In case the Depositary acting hereunder shall at any time
resign or be removed, the Company shall, within 60 days after the delivery of
the notice of resignation or removal, as the case may be, appoint a successor
Depositary, which shall be a bank or trust company having its principal office
in the United States of America and having a combined capital and surplus of at
least $50,000,000. Every successor Depositary shall execute and deliver to its
predecessor and to the Company an instrument in writing accepting its
appointment hereunder and agreeing to become a party to this Agreement, and
thereupon such successor Depositary, without any further act or deed, shall
become fully vested with all the rights, powers, duties and obligations of its
predecessor and for all purposes shall be the Depositary under this Deposit
Agreement, and such predecessor, upon payment of all sums due it and on the
written request of the Company, shall execute and deliver an instrument
transferring to such successor all rights and powers of such predecessor
hereunder, shall duly assign, transfer and deliver all right, title and interest
in the Stock and any monies or property held hereunder to such successor and
shall deliver to such
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successor a list of the record holders of all outstanding Receipts. Any
successor Depositary shall promptly mail notice of its appoint ment to the
record holders of Receipts.
Any corporation or other entity into or with which the
Depositary may be merged, consolidated or converted, or to which the Depositary
may sell all or substantially all its assets, shall be the successor of such
Depositary without the execution or filing of any document or any further act.
Such successor Depositary may authenticate the Receipts in the name of the
predecessor Depositary or in the name of the successor Depositary.
SECTION 5.05. Corporate Notices and Reports. The Company
agrees that it will deliver to the Depositary and the Depositary will, promptly
after receipt thereof, transmit to the record holders of Receipts, in each case
at the address furnished to it pursuant to Section 4.08, all notices and reports
(including without limitation financial statements) required by law, the rules
of any national securities exchange upon which the Stock, the Depositary Shares
or the Receipts are listed or by the Company's Articles of Incorporation, as
amended (including the Certificate), to be furnished by the Company to holders
of Stock. Such transmis sion 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.
SECTION 5.06. Indemnification by the Company. The
Company shall indemnify the Depositary, any Depositary's Agent and
any Registrar against, and hold each of them harmless from, any
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loss, liability or expense (including the reasonable costs and expenses of
defending itself) which may arise out of (i) acts performed or omitted in
connection with this Agreement and the Receipts (a) by the Depositary, any
Registrar or any of their respective agents (including any Depositary's Agent),
except for any liability arising out of gross negligence or willful misconduct
on the respective parts of any such person or persons, or (b) by the Company or
any of its agents, or (ii) the offer, sale or registration of the Receipts or
the Stock pursuant to the provisions hereof.
SECTION 5.07. Charges and Expenses. The Company shall pay all
transfer and other taxes and governmental charges arising solely from the
existence of the depositary arrangements. The Company shall pay all charges of
the Depositary in connection with the initial deposit of the Stock and the
initial issuance of the Depositary Shares, and redemption of the Stock at the
option of the Company. All other transfer and other taxes and governmental
charges shall be at the expense of holders of Depositary Shares. If, at the
request of a holder of Receipts, the Depositary incurs charges or expenses for
which it is not otherwise liable hereunder, such holder will be liable for such
charges and expenses. All other charges and expenses of the Depositary and any
Depositary's Agent hereunder and of any Registrar (including, in each case,
reasonable fees and expenses of counsel) incident to the performance of their
respective obligations hereunder will be payable by the Company only after prior
consultation and agreement
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between the Depositary and the Company and consent by the Company to the
incurrence of such expenses, which consent shall not be unreasonably withheld.
The Depositary shall present any statement for charges and expenses to the
Company promptly, unless the Company shall agree otherwise.
ARTICLE VI
AMENDMENT AND TERMINATION
SECTION 6.01. Amendment. The form of the Receipts and any
provisions of this Deposit Agreement may at any time and from time to time be
amended by agreement between the Company and the Depositary in any respect which
they may deem necessary or desirable; provided, however, that no such amendment
which shall materially and adversely alter the rights of the holders of Receipts
shall be effective unless such amendment shall have been approved by the holders
of at least 66 2/3% of the Depositary Shares then outstanding. Every holder of
an outstanding Receipt at the time any such amendment becomes effective shall be
deemed, by continuing to hold such Receipt, to consent and agree to such
amendment and to be bound by the Deposit Agreement as amended thereby. In no
event shall any amendment impair the right, subject to the provisions of
Sections 2.05 and 2.06 hereof, of any owner of any Depositary Shares to
surrender any Receipt evidencing such Depositary Shares to the Depositary with
instructions to deliver to the holder the Stock and all money and other
property, if any, represented thereby, except in order to comply with mandatory
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provisions of applicable law or the rules and regulations of any governmental
body, agency or commission, the NASD or any applicable stock exchange.
SECTION 6.02. Termination. This Agreement may be terminated by
the Company or the Depositary only after (i) all outstanding Depositary Shares
shall have been redeemed pursuant to Section 2.03 or (ii) there shall have been
made a final distribu tion in respect of the Stock in connection with any
liquidation, dissolution or winding up of the Company and such distribution
shall have been distributed to the holders of Depositary Shares pursuant to
Section 4.01 or 4.02, as applicable.
Upon the termination of this Deposit Agreement, the parties
hereto shall be discharged from all obligations under this Deposit Agreement
except for their respective obligations under Sections 5.03, 5.06 and 5.07.
ARTICLE VII
MISCELLANEOUS
SECTION 7.01. Counterparts. This Deposit Agreement may be
executed in any number of counterparts, and by each of the parties hereto on
separate counterparts, each of which counter parts, when so executed and
delivered, shall be deemed an original, but all such counterparts taken together
shall constitute one and the same instrument.
SECTION 7.02. Exclusive Benefit of Parties. This
Deposit Agreement is for the exclusive benefit of the parties
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hereto, and their respective successors hereunder, and shall not be deemed to
give any legal or equitable right, remedy or claim to any other person
whatsoever.
SECTION 7.03. Invalidity of Provisions. In case any one or
more of the provisions contained in this Deposit Agreement or in the Receipts
should be or become invalid, illegal or unenforceable in any respect, the
validity, legality and enforceability of the remaining provisions contained
herein or therein shall in no way be affected, prejudiced or modified thereby.
SECTION 7.04. Notices. Any and all notices to be given to the
Company hereunder or under the Receipts shall be in writing and shall be deemed
to have been duly given if personally delivered or sent by mail or telegram,
telecopy or telex confirmed by letter, addressed to the Company at Xxx Xxxxx
Xxxxx Xxxxxx, Xxxxxxxxx, Xxxxx Xxxxxxxx 00000-0000, telephone: (000) 000-0000,
telecopy: (000) 000-0000, Attention: Xxxx X. Xxxxxxxx, or at any other address
and to the attention of any other person of which the Company shall have
notified the Depositary in writing.
Any and all notices to be given to the Depositary hereunder or
under the Receipts shall be in writing and shall be deemed to have been duly
given if personally delivered or sent by mail or by telegram, telecopy or telex
confirmed by letter, addressed to the Depositary at the Depositary's Office, at
Xxx Xxxxx Xxxxx Xxxxxx, Xxxxxxxxx, Xxxxx Xxxxxxxx 00000-0000, telephone (704)
000-0000, telecopy (000) 000-0000, Attention: Xxxxxx X. Xxxxxx, Xx., or at any
other address and to the attention of any
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other person of which the Depositary shall have notified the
Company in writing.
Any and all notices to be given to any record holder of a
Receipt hereunder or under the Receipts shall be in writing and shall be deemed
to have been duly given if personally delivered or sent by mail or by telegram,
telecopy or telex confirmed by letter, addressed to such record holder at the
address of such record holder as it appears on the books of the Depositary, or
if such holder shall have filed with the Depositary a written request that
notices intended for such holder be mailed to some other address, at the address
designated in such request.
Delivery of a notice sent by mail or by telegram, telecopy or
telex shall be deemed to be effected at the time when a duly addressed letter
containing the same (or a confirmation thereof in the case of a telegram or
telex message) is deposited, postage prepaid, in a post office letter box. The
Depositary or the Company may, however, act upon any telegram or telecopy
message received by it from the other or from any holder of a Receipt,
notwithstanding that such telegram or telecopy message shall not subsequently be
confirmed by letter or as aforesaid.
SECTION 7.05. Depositary Agents. The Depositary may
from time to time appoint any Depositary's Agent 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
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Agents. The Depositary will promptly notify the Company of any
such action.
SECTION 7.06. Holders of Receipts Are Parties. By acceptance
of delivery of the Receipts, any holder of such Receipt from time to time shall
be deemed to have agreed to become a party to this Deposit Agreement and to be
bound by all of the terms and conditions hereof and of the Receipts to the same
extent as though such person executed this Agreement.
SECTION 7.07. Governing Law. THIS DEPOSIT AGREEMENT AND THE
RECEIPTS AND ALL RIGHTS HEREUNDER AND THEREUNDER AND PROVISIONS HEREOF AND
THEREOF SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE
STATE OF NEW YORK (WITHOUT REFERENCE TO APPLICABLE CONFLICTS OF LAW PROVISIONS).
SECTION 7.08. Inspection of Deposit Agreement. Copies of this
Deposit Agreement shall be filed with the Depositary and the Depositary's Agents
and shall be open to inspection during business hours at the Depositary's Office
and the respective offices of the Depositary's Agents, if any, by any holder of
a Receipt.
SECTION 7.09. Headings. The headings of articles and sections
in this Deposit Agreement and in the form of the Receipt set forth in Exhibit A
hereto have been inserted for convenience only and are not to be regarded as a
part of this Deposit Agreement or the Receipts or to have any bearing upon the
meaning or inter pretation of any provision contained herein or in the Receipts.
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IN WITNESS WHEREOF, the Company and the Depositary have duly
executed this Agreement as of the day and year first above set forth, and all
holders of Receipts shall become parties hereto by and upon acceptance by them
of delivery of Receipts issued in accordance with the terms hereof.
FIRST UNION CORPORATION
by____________________________
Authorized Officer
FIRST UNION NATIONAL
BANK OF NORTH CAROLINA
by____________________________
Authorized Officer
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