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EXHIBIT 4(l)
GENERAL MOTORS CORORATION,
__________________________, As Depositary
AND
THE HOLDERS FROM TIME TO TIME OF
THE DEPOSITARY RECEIPTS DESCRIBED HEREIN
DEPOSIT AGREEMENT
Dated as of ____________, 20__
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ARTICLE 1
DEFINITIONS
Section 1.01. Definitions.......................................1
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ARTICLE 2
FORM OF RECEIPTS, DEPOSIT OF STOCK, EXECUTION AND DELIVERY,
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TRANSFER, SURRENDER AND REDEMPTION OF RECEIPTS
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Section 2.01. Form and Transfer of Receipts.....................2
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Section 2.02. Deposit of Stock; Execution and Delivery of
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Receipts in Respect Thereof................................3
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Section 2.03. Registration of Transfer of Receipts..............4
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Section 2.04. Split-Ups and Combinations of Receipts; Surrender
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of Receipts and Withdrawal of Stock........................4
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Section 2.05. Limitations on Execution and Delivery, Transfer,
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Surrender and Exchange of Receipts.........................5
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Section 2.06. Lost Receipts, Etc................................6
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Section 2.07. Cancellation and Destruction of Surrendered
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Receipts...................................................6
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Section 2.08. Redemption of Stock...............................6
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ARTICLE 3
CERTAIN OBLIGATIONS OF HOLDERS OF RECEIPTS AND THE CORPORATION
Section 3.01. Filing Proofs, Certificates and Other Information.7
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Section 3.02. Payment of Taxes or Other Governmental Charges....8
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Section 3.03. Warranty as to Stock..............................8
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ARTICLE 4
THE DEPOSITED SECURITIES; NOTICES
Section 4.01. Cash Distributions................................8
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Section 4.02. Distributions Other Than Cash, Rights, Preferences
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or Privileges..............................................9
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Section 4.03. Subscription Rights, Preferences or Privileges....9
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Section 4.04. Notice of Dividends, Etc.;.......................10
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Section 4.05. Voting Rights....................................10
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Section 4.06. Changes Affecting Deposited Securities and
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Reclassifications, Recapitalizations, Etc.................11
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Section 4.07. Delivery of Reports..............................12
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Section 4.08. List of Receipt Holders..........................12
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ARTICLE 5
THE DEPOSITARY, THE DEPOSITARY'S AGENTS, THE REGISTRAR AND THE
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CORPORATION
Section 5.01. Maintenance of Offices, Agencies and Transfer
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Books by the Depositary; Registrar........................12
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Section 5.02. Prevention of or Delay in Performance by the
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Depositary, the Depositary's Agents, the Registrar or the
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Corporation...............................................13
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Section 5.03. Obligation of the Depositary, the Depositary's
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Agents, the Registrar and the Corporation.................13
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Section 5.04. Resignation and Removal of the Depositary;
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Appointment of Successor Depositary.......................15
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Section 5.05. Corporate Notices and Reports....................16
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Section 5.06. Indemnification by the Corporation...............16
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Section 5.07. Charges and Expenses.............................16
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Section 5.08. Tax Compliance...................................17
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ARTICLE 6
AMENDMENT AND TERMINATION
Section 6.01. Amendment........................................17
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Section 6.02. Termination......................................17
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ARTICLE 7
MISCELLANEOUS
Section 7.01. Counterparts.....................................18
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Section 7.02. Exclusive Benefit of Parties.....................18
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Section 7.03. Invalidity of Provisions.........................18
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Section 7.04. Notices..........................................19
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Section 7.05. Appointment of Registrar.........................20
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Section 7.06. Holders of Receipts are Parties..................20
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Section 7.07. Governing Law....................................20
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Section 7.08. Inspection of Deposit Agreement..................20
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Section 7.09. Headings.........................................20
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Form of Face of Receipt........................................A-1
Form of Reverse of Receipt.....................................A-3
DEPOSIT AGREEMENT, dated as of ____________, 20__, among
GENERAL MOTORS CORPORATION, a Delaware corporation (the "Corporation"),
____________________, a _____________ (the "Depositary"), and the holders from
time to time of the Receipts described herein.
WHEREAS, it is desired to provide, as hereinafter set forth in this
Deposit Agreement, for the deposit of shares of [ % Preferred Stock] [ %
Preference Stock], par value $______ per share, of the Corporation with the
Depositary for the purposes set forth in this Deposit Agreement and for the
issuance hereunder of Receipts evidencing Depositary Shares in respect of the
Stock so deposited; and
WHEREAS, the Receipts are to be substantially in the form of Annex A
annexed hereto, with appropriate insertions, modifications and omissions, as
hereinafter provided in this Deposit Agreement;
NOW THEREFORE, in consideration of the promises contained herein, the
parties agree as follows:
ARTICLE 1
DEFINITIONS
Section 1.01 . Definitions. The following definitions shall, for all purposes,
unless otherwise indicated, apply to the respective terms used in this Deposit
Agreement:
"Certificate of Designation" means the Certificate of Designation of the
Corporation establishing the Stock as a series of [preferred] [preference] stock
of the Corporation.
"Deposit Agreement" means this Deposit Agreement, as amended or
supplemented from time to time.
"Depositary" means _______________, and any successor as Depositary
hereunder.
"Depositary Shares" means Depositary Shares, each representing [ ] of a
share of Stock and evidenced by a Receipt.
"Depositary's Agent" means an agent appointed by the Depositary pursuant
to Section 5.01 and includes the Registrar if such Registrar is not the
Depositary.
"Depositary's Office" means the principal office of the Depositary, at
which at any particular time its depositary receipt business is administered.
"Receipt" means one of the Depositary Receipts, substantially in the form
set forth as Annex A hereto, issued hereunder, whether in definitive or
temporary form and evidencing the number of Depositary Shares held of record by
the record holder of such Depositary Shares.
"Record holder" or "holder" as applied to a Receipt means the person in
whose name a Receipt is registered on the books of the Depositary maintained for
such purpose.
"Registrar" means the Depositary or such other bank or trust company
appointed to register ownership and transfers of Receipts as herein provided.
"Securities Act" means the Securities Act of 1933, as amended.
"Stock" means shares of the Corporation's [ % Preferred Stock] [ %
Preference Stock], $_____ par value per share.
ARTICLE 2
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, with appropriate
insertions, modifications and omissions, as hereinafter provided, if required by
any securities exchange on which the Receipts are listed. Pending the
preparation of definitive Receipts or if definitive Receipts are not required by
any securities exchange on which the Receipts are listed, the Depositary, upon
the written order of the Corporation or any holder of Stock, as the case may be,
delivered in compliance with Section 2.02, shall execute and deliver temporary
Receipts which are printed, lithographed, typewritten, mimeographed or otherwise
substantially of the tenor of the definitive Receipts in lieu of which they are
issued and with such appropriate insertions, omissions, substitutions and other
variations as the persons executing such Receipts may determine, as evidenced by
their execution of such Receipts. If temporary Receipts are issued, the
Corporation and the Depositary shall cause definitive Receipts to be prepared
without unreasonable delay. After the preparation of definitive Receipts, the
temporary Receipts will be exchangeable for definitive Receipts upon surrender
of the temporary Receipts at the Depositary's Office or at such other place or
places as the Depositary may determine, 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 will be made at the Corporation's expense and
without any charge to the holder therefor. Until so exchanged, the temporary
Receipts will be entitled in all respects to the same benefits under this
Deposit Agreement, and with respect to the Stock, as definitive Receipts.
The Depositary shall execute the Receipts by the manual signature of a
duly authorized officer of the Depositary; provided that such signature may be a
facsimile if a Registrar for the Receipts (other than the Depositary) has been
appointed and such Receipts are countersigned by a manual signature of a duly
authorized officer of the Registrar. No Receipt will be entitled to any benefits
under this Deposit Agreement or be valid or obligatory for any purpose unless it
has been executed manually by a duly authorized officer of the Depositary or, if
a Registrar for the Receipts (other than the Depositary) has been appointed, by
manual or facsimile signature of a duly authorized officer of the 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 will be in denominations of any number of whole Depositary
Shares. The Corporation 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.
Receipts may be endorsed with or have incorporated in the text thereof
such legends or recitals or changes not inconsistent with the provisions of this
Deposit Agreement as may be required by the Depositary or required to comply
with any applicable law or any regulation thereunder or with the rules and
regulations or any securities exchange upon which the Stock, the Depositary
Shares or the Receipts may be listed or to conform with any usage with respect
thereto, or to indicate any special limitations or restrictions to which any
particular Receipts are subject.
Title to Depositary Shares evidenced by a Receipt, which is properly
endorsed or accompanied by a properly executed instrument of transfer, are
transferable by delivery with the same effect as in the case of a negotiable
instrument; provided, however, that until transfer of a Receipt has been
registered on the books of the Depositary as provided in Section 2.03, the
Depositary may, notwithstanding any notice to the contrary, treat the record
holder thereof at such time as the absolute owner thereof for the purpose of
determining the person entitled to distributions of dividends or other
distributions or to any notice provided for in this Deposit Agreement and for
all other purposes.
Section 2.02 . Deposit of Stock; Execution and Delivery of Receipts in Respect
Thereof. Subject to the terms and conditions of this Deposit Agreement, the
Corporation or any holder of Stock may from time to time deposit shares of the
Stock under this Deposit Agreement by delivery to the Depositary of a
certificate or certificates for the Stock to be deposited, properly endorsed or
accompanied, if required by the Depositary, by a duly executed instrument of
transfer or endorsement, in form satisfactory to the Depositary, together with
all such certifications as may be required by the Depositary in accordance with
the provisions of this Deposit Agreement, and together with a written order of
the Corporation or the holder, as the case may be, directing the Depositary to
execute and deliver to, or upon the written order to, the person or persons
stated in such order a Receipt or Receipts for the number of Depositary Shares
representing such deposited Stock.
The Depositary shall hold the Deposited Stock at the Depositary's Office
or at such other place or places as the Depositary may determine.
Upon receipt by the Depositary of a certificate or certificates for Stock
deposited in accordance with the provisions of this Section 2.02, together with
the other documents required as above specified, and upon recordation of the
Stock on the books of the Corporation in the name of the Depositary or its
nominee, the Depositary, subject to the terms and conditions of this Deposit
Agreement, shall execute and deliver, to or upon the order of the person or
persons named in the written order delivered to the Depositary referred to in
the first paragraph of this Section 2.02, a Receipt or Receipts for the whole
number of Depositary Shares representing the Stock so deposited and registered
in such name or names as may be requested by such person or persons. The
Depositary shall execute and deliver such Receipt or Receipts at the
Depositary's Office or such other offices, if any, as the Depositary may
designate. Delivery at other offices will be at the risk and expense of the
person requesting such delivery.
Section 2.03 . Registration of Transfer of Receipts. Subject to the terms and
conditions of this Deposit Agreement, the Depositary shall register on its books
from time to time transfers of Receipts upon any surrender thereof by the holder
in person or by duly authorized attorney, properly endorsed or accompanied by a
properly executed instrument of transfer. Thereupon, the Depositary shall
execute a new Receipt or Receipts evidencing the same aggregate number of
Depositary Shares as those evidenced by the Receipt or Receipts surrendered and
deliver such new Receipts or Receipts to or upon the order of the person
entitled thereto.
Section 2.04 . 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 Receipts or Receipts, and subject to the terms
and conditions of this Deposit Agreement, the Depositary shall execute and
deliver a new Receipt or Receipts in the authorized denomination or
denominations requested, evidencing the aggregate number of Depositary Shares
evidenced by the Receipt or Receipts surrendered, provided, however, that the
Depositary shall not issue any Receipt evidencing a fractional Depositary Share.
Any holder of a Receipt or Receipts representing any number of whole
shares of Stock may (unless the related Depositary Shares have previously been
called for redemption) withdraw the Stock and all money and other property, if
any, represented thereby by surrendering such Receipt or Receipts, at the
Depositary's Office or at such other offices as the Depositary may designate for
such withdrawals. 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 a Receipt delivered by the holder to the Depositary in connection
with such withdrawal evidences a 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 upon
the holder's order, a new Receipt evidencing such excess number of Depositary
Shares; provided, however, that the Depositary shall not issue any Receipt
evidencing a fractional Depositary Share. Delivery of the Stock and 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, must be properly endorsed or accompanied
by proper instruments of transfer.
If any of the Stock, the money or other property being withdrawn is to be
delivered to a person or persons other than the record holder of the Receipt or
Receipts being surrendered for withdrawal of Stock, the holders 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 the
holder for withdrawal of such shares of Stock be properly endorsed in blank or
accompanied by a properly executed instrument of transfer in blank.
The Depositary shall deliver the Stock, the money or other property, if
any, represented 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, the delivery
may be made at such other place as the holder may designate.
Section 2.05 . 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 Corporation may
require (i) payment to it of a sum sufficient for the payment (or, in the event
that the Depositary or the Corporation have made such payment, the reimbursement
to it) of any charges or expenses payable by the holder of a Receipt pursuant to
Sections 3.02 and 5.07, (ii) the production of evidence 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 Corporation may establish
consistent with the provisions of this Deposit Agreement.
The deposit of Stock may be refused, the delivery of Receipts against
Stock may be suspended, the registration of transfer of Receipts may be refused
and the registration of transfer, surrender or exchange of outstanding Receipts
may be suspended (i) during any period when the register of stockholders of the
Corporation is closed, (ii) if any such action is deemed necessary or advisable
by the Depositary, any of the Depositary's Agents or the Corporation, at any
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) with
the approval of the Corporation, for any other reason.
Section 2.06 . Lost Receipts, Etc. In case any Receipt has been mutilated,
destroyed, lost or stolen, the Depositary in its discretion may execute and
deliver a Receipt of like form and tenor in exchange and substitution for the
mutilated Receipt, or in lieu of and in substitution for the 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
the Receipt, of the authenticity thereof and of the holder's ownership thereof,
(ii) the furnishing of the Depositary with reasonable indemnification
satisfactory to it and (iii) the payment of any expense (including fees, charges
and expenses of the Depositary) in connection with such execution and delivery.
Section 2.07 . Cancellation and Destruction of Surrendered Receipts. The
Depositary shall cancel all Receipts surrendered to the Depositary or any
Depositary's Agent. Except as prohibited by applicable law or regulation, the
Corporation is authorized to destroy all Receipts so canceled.
Section 2.08 . Redemption of Stock. Whenever the Corporation is permitted and
elects to redeem shares of Stock in accordance with the provisions of the
Certificate of Designation, the Corporation shall (unless otherwise agreed to in
writing with the Depositary) give or cause to be given to the Depositary not
less than 30 days' and not more than 60 days' notice of the date of the proposed
redemption of Stock and of the number of the shares held by the Depositary to be
so redeemed and the applicable redemption price, as set forth in the Certificate
of Designation, which notice must be accompanied by Certificate of Designation
from the Corporation stating that the redemption of Stock is in accordance with
the provisions of the Certificate of Designation. On the date of the redemption,
provided that the Corporation has then paid or caused to be paid in full to the
Depositary the redemption price of the Stock to be redeemed, plus an amount
equal to any accrued and unpaid dividends thereon to the date fixed for
redemption, in accordance with the provisions of the Certificate of Designation,
the Depositary shall redeem the number of Depositary Shares representing such
Stock. The Depositary shall mail notice of the Corporation's redemption of Stock
and the proposed simultaneous redemption of the number of Depositary Shares
representing the Stock to be redeemed by first class mail, postage prepaid, not
less than 20 and not more than 50 days prior to the date fixed for redemption of
the 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.
Neither a failure to mail notice of redemption of Depositary Shares to one or
more holders nor any defect in a notice of redemption of Depositary Shares to
one or more holders will affect the sufficiency of the proceedings for
redemption as to the other holders. The Corporation shall provide the Depositary
with the information necessary for the Depositary to prepare a redemption notice
and each such notice must state: (i) the Redemption Date; (ii) the number of
Depositary Shares to be redeemed and, if less than all the Depositary Shares
held by any such holder are to be redeemed, the number of such Depositary Shares
held by such holder to be so redeemed; (iii) the redemption price; (iv) the
place or places where Receipts evidencing Depositary Shares are to be
surrendered for payment of the redemption price; and (v) that dividends in
respect of the Stock represented by the Depositary Shares to be redeemed will
cease to accrue on such Redemption Date. In case less than all the outstanding
Depositary Shares are to be redeemed, the Depositary shall select the Depositary
Shares to be so redeemed by lot or pro rata (as nearly as may be) or by any
other method, in each case, as determined by the Depositary in its sole
discretion to be equitable.
Notice having been mailed by the Depositary as aforesaid, from and after
the Redemption Date (unless the Corporation has failed to provide the funds
necessary to redeem the Stock evidenced by the Depositary Shares called for
redemption) (i) dividends on the shares of Stock so called for redemption will
cease to accrue from and after such date, (ii) the Depositary Shares being
redeemed from such proceeds will be deemed no longer to be outstanding, (iii)
all rights of the holders of Receipts evidencing such Depositary Shares (except
the right to receive the redemption price) will, to the extent of such
Depositary Shares, cease and terminate, and (iv) upon surrender in accordance
with the redemption notice of the Receipts evidencing any Depositary Shares
called for redemption (properly endorsed or assigned for transfer, if the
Depositary or applicable law so requires), the Depositary shall redeem the
Depositary Shares at a redemption price per Depositary Share equal to one-[ ] of
the redemption price per share paid with respect to the shares of Stock plus all
money and other property, if any, represented by such Depositary Shares,
including all amounts paid by the Corporation in respect of dividends which on
the Redemption Date have accumulated on the shares of Stock to be so redeemed
and have not theretofore been paid.
If fewer than all of the Depositary Shares evidenced by a Receipt are
called for redemption, the Depositary shall deliver to the holder of such
Receipt upon its surrender to the Depositary, together with the redemption
payment, a new Receipt evidencing the Depositary Shares evidenced by such prior
Receipt and not called for redemption.
ARTICLE 3
CERTAIN OBLIGATIONS OF HOLDERS OF RECEIPTS AND THE CORPORATION
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 execute such certificates and to make
such representations and warranties as the Depositary or the Corporation may
reasonably deem necessary or proper. The Depositary or the Corporation may
withhold the delivery, or delay the registration of transfer, redemption or
exchange, of any Receipt or the withdrawal or conversion of the Stock
represented by the Depositary Shares evidenced by any Receipt or the
distribution of any dividend or other distribution or the sale of any rights or
of the proceeds thereof until such proof or other information is filed or such
certificates are executed or such representations and warranties are made.
Section 3.02 . Payment of Taxes or Other Governmental Charges. Holders of
Receipts shall pay the Depositary certain charges and expenses, as provided in
Section 5.07. Registration of transfer of any Receipt or any withdrawal of Stock
and all money or other property, if any, represented by the Depositary Shares
evidenced by such Receipt may be refused until any such payment due is made, and
any dividends, interest payments or other distributions may be withheld or any
part of or all the Stock or other property represented by the Depositary Shares
evidenced by such Receipt and not theretofore sold may be sold for the account
of the holder thereof (after attempting by reasonable means to notify such
holder prior to such sale), and the dividends, interest payments or other
distributions or the proceeds of 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 Corporation hereby represents and
warrants that the Stock, when issued, will be duly authorized, validly issued,
fully paid and nonassessable. Such representation and warranty survives the
deposit of the Stock and the issuance of the Receipts.
ARTICLE 4
THE DEPOSITED SECURITIES; NOTICES
Section 4.01 . Cash Distributions. Whenever the Depositary receives any cash
dividend or other cash distribution on Stock, the Depositary shall, subject to
Sections 3.01 and 3.02, distribute to record holders of Receipts on the record
date fixed pursuant to Section 4.04 such amounts of the dividend or distribution
as are, as nearly as practicable, in proportion to the respective numbers of
Depositary Shares evidenced by the Receipts held by such holders; provided,
however, that if the Corporation or the Depositary is required to withhold and
withholds from any cash dividend or other cash distribution in respect of the
Stock an amount on account of taxes or as otherwise required by law, regulation
or court process, the amount made available for distribution or distributed in
respect of Depositary Shares will be reduced accordingly. In the event that the
calculation of any such cash dividend or other cash distribution to be paid to
any record holder on the aggregate number of Depositary Receipts held by such
the holder results in an amount which is a fraction of a cent, the Depositary
shall round to the next highest whole cent the amount to be distributed to such
record holder. Upon request of the Depositary, the Corporation shall pay the
additional amount to the Depositary for distribution.
Section 4.02 . Distributions Other Than Cash, Rights, Preferences or Privileges.
Whenever the Depositary receives any distribution other than cash, rights,
preferences or privileges upon Stock, the Depositary shall, subject to Sections
3.01 and 3.02, distribute to record holders of Receipts on the record date fixed
pursuant to Section 4.04 such amounts of the securities or property received by
it as are, as nearly as practicable, in proportion to the respective numbers of
Depositary Shares evidenced by the Receipts held by such holders, in any manner
that the Depositary may deem equitable and practicable for accomplishing the
distribution. If in the opinion of the Depositary such distribution cannot be
made proportionately among such record holders, or if for any other reason
(including any requirement that the Corporation or the Depositary withhold an
amount on account of taxes) the Depositary deems such distribution not feasible,
the Depositary may adopt such method as it deems equitable and practicable for
the purpose of effecting the distribution, including the sale (public or
private) of the securities or property thus received, or any part thereof, at
such places and upon such terms as it may deem proper. Subject to Section 3.01
and 3.02, the Depositary shall distribute or make available for distribution the
net proceeds of any such sale, as the case may be, to record holders of Receipts
as provided by Section 4.01 in the case of a distribution received in cash.
Section 4.03 . Subscription Rights, Preferences or Privileges. If the
Corporation at any time offers or causes to be offered to the persons in whose
names Stock is recorded on the books of the Corporation any rights, preferences
or privileges to subscribe for or to purchase any securities or any rights,
preferences or privileges of any other nature, the Depositary shall in each such
instance make available such rights, preferences or privileges to the record
holders of Receipts in such manner as the Depositary may determine, either by
the issue to such record holders of warrants representing such rights,
preferences or privileges or by such other method as may be approved by the
Depositary in its discretion with the approval of the Corporation; 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 Corporation) not feasible to make such rights,
preferences or privileges available to the 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 rights, preferences or privileges, then
the Depositary, in its discretion (with approval of the Corporation, 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 places an upon such
terms as it may deem proper. Subject to Sections 3.01 and 3.02, the Depositary
shall distribute the net proceeds of any such sale to the record holders of
Receipts entitled thereto as provided by Section 4.01 in the case of a
distribution received in cash.
If registration under the Securities Act of the securities to which any
rights, preferences or privileges relate is required in order for holders of
Receipts to be offered or sold the securities to which such rights, preferences
or privileges relate, the Corporation shall file promptly a registration
statement pursuant to the Securities Act with respect to such rights,
preferences or privileges and securities and use its best efforts and take all
steps available to it to cause such registration statement to become effective
sufficiently in advance of the expiration of such rights, preferences or
privileges to enable such holders to exercise such rights, preferences or
privileges. In no event shall the Depositary make available to the holders of
Receipts any right, preference or privilege to subscribe for or to purchase any
securities unless and until it has received written notice from the Corporation
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 and the Corporation has provided to the
Depositary an opinion of counsel to such effect.
If any other action under the laws of any jurisdiction or any governmental
or administrative authorization, consent or permit is required in order to for
such rights, preferences or privileges to be made available to holders of
Receipts, the Corporation shall use its reasonable best efforts to take such
action or obtain such authorization, consent or permit sufficiently in advance
of the expiration of such rights, preferences or privileges to enable such
holders to exercise such rights, preferences or privileges.
Section 4.04 . Notice of Dividends, Etc.; Fixing Record Date for Holders of
Receipts. Whenever any cash dividend or other cash distribution becomes payable
or any distribution other than cash is made, or if rights, preferences or
privileges are at any time offered, with respect to Stock, or whenever the
Depositary receives notice of any meeting at which holders of Stock are entitled
to vote or of which holders of Stock are entitled to notice, or whenever the
Depositary and the Corporation decide it is appropriate, the Depositary shall in
each such instance fix a record date (which will be the same date as the record
date fixed by the Corporation with respect to or otherwise in accordance with
the terms of the Stock) for the determination of the holders of Receipts who are
entitled to receive such dividend, distribution, rights, preferences or
privileges or the net proceeds of the sale thereof, or to give instructions for
the exercise of voting rights at any such meeting, or who are entitled to notice
of such meeting or for any other appropriate reasons.
Section 4.05 . Voting Rights. Upon receipt of notice of any meeting at which
holders of Stock are entitled to vote, the Depositary shall, as soon as
practicable thereafter, mail to the record holders of Receipts a notice which
will contain (i) such information as is contained in such notice of meeting and
(ii) a statement that the holders may, subject to any applicable restrictions,
instruct the Depositary as to the exercise of the voting rights pertaining to
the amount of Stock represented by their respective Depositary Shares (including
an express indication that instructions may be given to the Depositary to give a
discretionary proxy to a person designated by the Corporation) and a brief
statement as to the manner in which such instructions may be given. Upon the
written request of the holders of Receipts on the relevant record date, the
Depositary shall endeavor insofar as practicable to vote or cause to be voted,
in accordance with the instructions set forth in such requests, the maximum
number of whole shares of Stock represented by the Depositary Shares evidenced
by all Receipts as to which any particular voting instructions are received. The
Corporation shall take all reasonable action which may be deemed necessary by
the Depositary in order to enable the Depositary to vote such Stock or cause
such Stock to be voted. In the absence of specific instructions from the holder
of a Receipt, the Depositary shall not vote (but, at its discretion, may appear
at any meeting with respect to such Stock unless directed to the contrary by the
holders of all the Receipts) to the extent of the Stock represented by the
Depositary Shares evidenced by such Receipt.
Section 4.06 . Changes Affecting Deposited Securities and Reclassifications,
Recapitalizations, Etc. Upon any change in par or stated value or liquidation
preference, split-up, combination or any other reclassification of the Stock, or
upon any recapitalization, reorganization, merger, statutory share exchange or
consolidation affecting the Corporation or to which it is a party, the
Depositary may in its discretion with the approval of, and shall upon the
instructions of, the Corporation, and (in either case) in such manner as the
Depositary may deem equitable, (i) make such adjustments as are certified by the
Corporation in the fraction of an interest represented by one Depositary Share
in one share of Stock as may be necessary fully to reflect the effects of such
change in par or stated value or liquidation preference, split-up, combination
or other reclassification of Stock, or of such recapitalization, reorganization,
merger, share exchange or consolidation and (ii) treat any securities which are
received by the Depositary in exchange for or upon conversion or in respect of
the Stock as new deposited securities so received in exchange for or upon
conversion or in respect of such Stock. In any such case the Depositary may in
its discretion, with the approval of the Corporation, execute and deliver
additional Receipts or may call for the surrender of all outstanding Receipts to
be exchanged for new Receipts specifically describing such new deposited
securities. Anything to the contrary herein notwithstanding, holders of Receipts
have the right from and after the effective date of any such change in par or
stated value or liquidation preference, split-up, combination or other
reclassification of the Stock or any such recapitalization, reorganization,
merger, share exchange or consolidation to surrender such Receipts to the
Depositary with instructions to convert, exchange or surrender the Stock
represented thereby only into or for, as the case may be, the kind and amount of
shares of stock and other securities and property and cash into which the Stock
represented by such Receipts might have been converted or for which such Stock
might have been exchanged or surrendered immediately prior to the effective date
of such transaction.
Section 4.07 . Delivery of Reports. The Depositary shall furnish to holders of
Receipts any reports and communications received from the Corporation which are
received by the Depositary as the holder of Stock.
Section 4.08 . List of Receipt Holders. Promptly upon request from time to time
by the Corporation, the Depositary shall furnish to it a list, as of the most
recent practicable date, of the names, addresses and holdings of Depositary
Shares of all record holders of Receipts. The Corporation is entitled to receive
such list twice annually without charge.
ARTICLE 5
THE DEPOSITARY, THE DEPOSITARY'S AGENTS, THE REGISTRAR AND THE
CORPORATION
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 keep books at the Depositary's Office for the
registration and registration of transfer of Receipts, which books during normal
business hours will be open for inspection by the record holders of Receipts;
provided that any holder requesting to exercise such right shall certify to the
Depositary that the inspection is for a proper purpose reasonably related to
such person's interest as an owner of Depositary Shares evidenced by the
Receipts.
The Depositary may close such books, at any time or from time to time,
when deemed expedient by it in connection with the performance of its duties
hereunder.
The Depositary may, with the approval of the Corporation, appoint a
Registrar for registration of the Receipts or the Depositary Shares evidenced
thereby. If the Receipts or the Depositary Shares evidenced thereby or the Stock
represented by such Depositary Shares are listed on one or more national stock
exchanges, the Depositary shall appoint a Registrar (acceptable to the
Corporation) for registration of such Receipts or Depositary Shares in
accordance with any requirements of such exchange. The Registrar (which may be
the Depositary if so permitted by the requirements of any such exchange) may be
removed and a substitute registrar appointed by the Depositary upon the request
or with the approval of the Corporation. If the Receipts, the Depositary Shares
or the Stock are listed on one or more other stock exchanges, the Depositary
shall, at the request and at the expense of the Corporation, 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.
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 shall notify the
Corporation of any such action.
Section 5.02 . Prevention of or Delay in Performance by the Depositary, the
Depositary's Agents, the Registrar or the Corporation. Neither the Depositary
nor any Depositary's Agent nor the Registrar nor the Corporation shall incur any
liability to any holder of any Receipt if by reason of any provision of any
present or future law, or regulation thereunder, of the United States of America
or of any other governmental authority or, in the case of the Depositary, the
Depositary's Agent or the Registrar, by reason of any provision, present or
future, of the Corporation's Certificate of Incorporation or by reason of any
act of God or war or other circumstance beyond the reasonable control of the
relevant party, the Depositary, the Depositary's Agent, the Registrar or the
Corporation is prevented, delayed or forbidden from, or subjected to any penalty
on account of, doing or performing any act or thing which the terms of this
Deposit Agreement provide to be done or performed, nor shall the Depositary, any
Depositary's Agent, the Registrar or the Corporation incur liability to any
holder of a Receipt (i) by reason of any nonperformance or delay, caused as
aforesaid, in the performance of any act or thing which the terms of this
Deposit Agreement provide to be done or performed, or (ii) by reason of any
exercise of, or failure to exercise, any discretion provided for in this Deposit
Agreement except, in the case of any such exercise or failure to exercise
discretion not caused as aforesaid, if caused by the negligence or willful
misconduct of the party charged with such exercise or failure to exercise.
Section 5.03 . Obligation of the Depositary, the Depositary's Agents, the
Registrar and the Corporation. Neither the Depositary nor any Depositary's Agent
nor the Registrar nor the Corporation assumes any obligation or shall be subject
to any liability under this Deposit Agreement or any Receipt to holders of
Receipts other than for its negligence, willful misconduct or bad faith.
Neither the Depositary nor any Depositary's Agent nor the Registrar nor
the Corporation are 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 satisfactory to it against all expense and liability is
furnished as often as may be required.
Neither the Depositary nor any Depositary's Agent nor the Registrar nor
the Corporation shall be liable for any action or any failure to act in reliance
upon the written advice of legal counsel or accountants, or information from any
person presenting Stock for deposit, any holder of a Receipt or any other person
believed by it in good faith to be competent to give such information. The
Depositary, any Depositary's Agent, the Registrar and the Corporation may each
rely and are each protected in acting upon any written notice, request,
direction or other document believed by it to be genuine and to have been signed
or presented by the proper party or parties.
The Depositary is not responsible for any failure to carry out any
instruction to vote any of the shares of Stock or for the manner or effect of
any such vote made, as long as any such action or non-action is in good faith.
The Depositary undertakes, and any Registrar will be required to undertake, to
perform such duties and only duties as are specifically set forth in this
Deposit Agreement, and no implied covenants or obligations may be read into this
Deposit Agreement against the Depositary or any Registrar. The Depositary shall
indemnify the Corporation and hold it harmless from any loss, liability or
expense (including the reasonable costs and expenses of defending itself) which
may arise out of acts performed or omitted by the Depositary, including when
such Depositary acts as Registrar, or the Depositary's Agents in connection with
this Deposit Agreement due to its or their negligence, willful conduct or bad
faith. The indemnification obligations of the Depositary set forth in this
Section 5.03 survives any termination of this Deposit Agreement and any
succession of any Depositary.
The Depositary, its affiliates or subsidiaries, the Depositary's Agents,
and the Registrar may own, buy, sell and deal in any class of securities of the
Corporation and its affiliates and in Receipts or Depositary Shares or become
pecuniarily interested in any transaction in which the Corporation or its
affiliates may be interested or contract with or lend money to or otherwise act
as fully or as freely as if it were not the Depositary, its affiliate or
subsidiary or Depositary's Agent or Registrar hereunder. The Depositary may also
act as trustee, transfer agent or registrar of any of the securities of the
Corporation and its affiliates.
It is intended that neither the Depositary nor any Depositary's Agent nor
the Registrar, acting as the Depositary Agent or Registrar, as the case may be,
is deemed to be an "issuer " of the securities under the federal securities laws
or applicable state securities laws, it being expressly understood and agreed
that the Depositary, any Depositary's Agent and the Registrar are acting only in
a ministerial capacity as Depositary or Registrar for the Stock.
Neither the Depositary (or its officers, directors, employees or agents)
nor any Depositary's Agent nor the Registrar makes any representation or has any
responsibility as to the validity of the registration statement pursuant to
which the Depositary Shares are registered under the Securities Act, the Stock,
the Depositary Shares or the Receipts (except for its counter-signature thereon)
or any instruments referred to therein or herein, or as to the correctness of
any statement made therein or herein.
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 Corporation 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 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. The
Depositary shall not be accountable for the use or application by the
Corporation of the Depositary Shares or the Receipts or the proceeds thereof.
Section 5.04 . Resignation and Removal of the Depositary; Appointment of
Successor Depositary. The Depositary may at any time resign as Depositary
hereunder by delivering notice of its election to do so to the Corporation, 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 Corporation 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 resigns or is removed,
the Corporation shall, within 60 days after the delivery of the notice of
resignation or removal, as the case may be, appoint a successor Depositary,
which shall be a bank or trust company having its principal office in the United
States of America and having a combined capital and surplus of at least
$50,000,000. If no successor Depositary has been so appointed and has accepted
appointment within 60 days after delivery of such notice, the resigning or
removed Depositary may petition any court of competent jurisdiction for the
appointment of a successor Depositary. Every successor Depositary shall execute
and deliver to its predecessor and to the Corporation an instrument in writing
accepting its appointment hereunder, and thereupon such successor Depositary,
without any further act or deed, becomes fully vested with all the rights,
powers, duties and obligations of its predecessor and for all purposes will be
the Depositary under this Deposit Agreement, and such predecessor, upon payment
of all sums due it and on the written request of the Corporation, shall execute
and deliver an instrument transferring to such successor all rights and powers
of such predecessor hereunder, shall duly assign, transfer and deliver all
right, title and interest in the Stock and any moneys or property held hereunder
to such successor, and shall deliver to such successor a list of the record
holders of all outstanding Receipts and such records, books and other
information in its possession relating thereto. Any successor Depositary shall
promptly mail notice of its appointment to the record holders of Receipts.
Any corporation into or with which the Depositary may be merged,
consolidated or converted will be the successor of such Depositary without the
execution or filing of any document or any further act, and notice thereof is
not required hereunder. 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 Corporation shall deliver to
the Depositary, and the Depositary shall, promptly after receipt thereof
transmit to the record holders of Receipts, in each case at the addresses
recorded in the Depositary's books, copies of all notices and reports
(including, without limitation, financial statements) required by law or by the
rules of any national securities exchange upon which the Stock, the Depositary
Shares or the Receipts are listed, to be furnished to the record holders of
Receipts or otherwise determined to be furnished. Such transmission will be at
the Corporation's expense and the Corporation shall provide the Depositary with
such number of copies of such documents as the Depositary may reasonably
request.
Section 5.06 . Indemnification by the Corporation. The Corporation shall
indemnify the Depositary, any Depositary's Agent and the Registrar against, and
hold each of them harmless from, any loss, liability or expense (including the
reasonable costs and expenses of defending itself) which may arise out of acts
performed or omitted in connection with this Deposit Agreement and the Receipts
by the Depositary, any Registrar or any of their respective agents (including
any Depositary's Agent), except for any liability arising out of negligence,
willful misconduct or bad faith on the part of any such person. The obligations
of the Corporation set forth in this Section 5.06 survive any succession of any
Depositary or Depositary's Agent.
Section 5.07 . Charges and Expenses. The Corporation shall pay all transfer and
other taxes and governmental charges arising solely from the existence of the
depositary arrangements. The Corporation shall pay all charges of the Depositary
in connection with the initial deposit of the Stock and the initial issuance of
the Depositary Shares, all withdrawals of shares of the Stock by owners of
Depositary Shares, and any redemption or exchange of the Stock at the option of
the Corporation. All other transfer and other taxes and governmental charges
will 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 (including, in each case, reasonable fees and expenses of
counsel) incident to the performance of their respective obligations hereunder
will be paid upon consultation and agreement between the Depositary and the
Corporation as to the amount and nature of such charges and expenses. The
Depositary shall present its statement for charges and expenses to the
Corporation at such intervals as the Corporation and the Depositary may agree.
Section 5.08 . Tax Compliance. The Depositary, on its own behalf and on behalf
of the Corporation shall comply with all applicable certification, information
reporting and withholding (including "backup" withholding) requirements imposed
by applicable tax laws, regulations or administrative practice with respect to
(i) any payments made with respect to the Depositary Shares or (ii) the
issuance, delivery, holding, transfer, redemption or exercise of rights under
the Receipts or the Depositary Shares. Such compliance includes, without
limitation, the preparation and timely filing of required returns and the timely
payment of all amounts required to be withheld to the appropriate taxing
authority or its designated agent.
The Depositary shall comply with any direction received from the
Corporation with respect to the application of such requirements to particular
payments or holders or in other particular circumstances, and may for purposes
of this Deposit Agreement rely on any such direction in accordance with the
provisions of Section 5.03 hereof.
The Depositary shall maintain all appropriate records documenting
compliance with such requirements, and shall make such records available on
request to the Corporation or to its authorized representatives.
ARTICLE 6
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 Corporation and the Depositary in any respect which they may deem
necessary or desirable; provided, however, that no amendment (other than any
change in the fees of any Depositary or Registrar, which will go into effect not
sooner than three months after notice thereof to the holders of the Receipts)
which may materially and adversely alter the rights of the holders of Receipts
will be effective unless such amendment has been approved by the holders of at
least a majority of the Depositary Shares then outstanding. Every holder of an
outstanding Receipt at the time any such amendment becomes effective will be
deemed, by continuing to hold such Receipt, to consent and agree to such
amendment and to be bound by the Deposit Agreement as amended thereby.
Section 6.02 . Termination. This Deposit Agreement may be terminated by the
Corporation or the Depositary only after (i) all outstanding Depositary Shares
have been redeemed pursuant to Section 2.08 or (ii) a final distribution has
been made in respect of the Stock in connection with any liquidation,
dissolution or winding-up of the Corporation and such distribution has been
distributed to the holders of Depositary Receipts pursuant to Sections 4.01 or
4.02, as applicable.
If any Receipts 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 that the
Depositary shall continue to collect dividends and other distributions
pertaining to Stock, shall sell rights, preferences or privileges as provided in
this Deposit Agreement and shall continue to deliver the Stock and any money and
other property represented by Receipts upon surrender thereof by the holders
thereof. At any time after the expiration of two years from the date of
termination, the Depositary may sell Stock then held hereunder at public or
private sale, at such places and upon such terms as it deems proper and may
thereafter hold the net proceeds of any such sale, together with any money and
other property held by it hereunder, without liability for interest, for the
benefit, pro rata in accordance with their holdings, of the holders of Receipts
that have not theretofore been surrendered. After making such sale, the
Depositary will 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 Corporation will be
discharged from all obligations under this Deposit Agreement except for its
obligations to the Depositary, the Registrar and any Depositary's Agent under
Sections 5.06 and 5.07.
ARTICLE 7
MISCELLANEOUS
Section 7.01 . Counterparts. This Deposit Agreement may be executed in any
number of counterparts, and by each of the parties hereto on separate
counterparts, each of which counterparts, when so executed and delivered, is an
original, but all such counterparts taken together constitute one and the same
instrument.
Section 7.02 . Exclusive Benefit of Parties. This Deposit Agreement is for the
exclusive benefit of the parties hereto, and their respective successors
hereunder, and does not 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 will
in no way be affected, prejudiced or disturbed thereby.
Section 7.04 . Notices. Any and all notices to be given to the Corporation
hereunder or under the Receipts must be in writing and will be deemed to have
been duly given if personally delivered or sent by mail, or by telegram or
facsimile transmission confirmed by letter, addressed to the Corporation at
General Motors Corporation
000 Xxxxxxxxxxx Xxxxxx
Xxxxxxx, Xxxxxxxx 00000-0000
Attention: Corporate Secretary
Facsimile No.: ( ) ______-________
or at any other address of which the Corporation has notified the
Depositary in writing.
Any and all notices to be given to the Depositary hereunder or under the
Receipts must be in writing and will be deemed to have been duly given if
personally delivered or sent by mail, or by telegram or facsimile transmission
confirmed by letter, addressed to the Depositary at the Depositary's Office, at:
Attention:
Facsimile No.: ( ) ______-________
or at any other address of which the Depositary has notified the
Corporation in writing.
Any and all notices to be given to any record holder of a Receipt
hereunder or under the Receipts must be in writing and will be deemed to have
been duly given if personally delivered or sent by mail, or by telegram or
facsimile transmission confirmed by letter, addressed to such record holder at
the address of such record holder as it appears on the books of the Depositary,
or if such holder has filed with the Depositary a written request that notices
intended for such holder be mailed to some other address, at the address
designated in such request.
Delivery of a notice sent by mail or by telegram or facsimile transmission
will be deemed to be effected at the time when a duly addressed letter
containing the same (or a confirmation thereof in the case of a telegram or
facsimile transmission) is deposited, postage prepaid, in a post office letter
box. The Depositary or the Corporation may, however, act upon any telegram or
facsimile transmission received by it from the other or from any holder of a
Receipt, notwithstanding that such telegram or facsimile transmission has not
been subsequently confirmed by letter or as aforesaid.
Section 7.05 . Appointment of Registrar. The Corporation hereby also appoints
the Depositary as Registrar in respect of the Receipts and the Depositary hereby
accepts such appointments.
Section 7.06 . Holders of Receipts are Parties. The holders of Receipts from
time to time are parties to this Deposit Agreement and are bound by all of the
terms and conditions hereof and of the Receipts by acceptance of delivery
thereof.
Section 7.07 . Governing Law. THIS DEPOSIT AGREEMENT AND THE RECEIPTS AND ALL
RIGHTS HEREUNDER AND THEREUNDER AND PROVISIONS HEREOF AND THEREOF ARE GOVERNED
BY AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK.
Section 7.08 . Inspection of Deposit Agreement. Copies of this Deposit Agreement
will be filed with the Depositary and the Depositary's Agent and will be open to
inspection during business hours at the Depositary's Office or respective
offices of the Depositary's Agent, 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 Annex A hereto have been
inserted for convenience only and are not to be regarded as a part of this
Deposit Agreement or the Receipts or to have any bearing upon the meaning or
interpretation of any provision contained herein or in the Receipts.
IN WITNESS WHEREOF, the Corporation and the Depositary have duly executed
this Deposit Agreement as of the date and year first above set forth, and all
holders of Receipts will become parties hereto by and upon acceptance by them of
delivery of Receipts issued in accordance with the terms hereof.
Attested by General Motors Corporation
By:
--------------------------------- -------------------------------
[SEAL] Name:
Title:
Attested by [ ]
By:
--------------------------------- -------------------------------
[SEAL] Name:
Title:
ANNEX A
TEMPORARY RECEIPT EXCHANGEABLE FOR CERTIFICATE FOR
DEFINITIVE ENGRAVED RECEIPT [ ]
WHEN READY FOR DELIVERY DEPOSITARY SHARES
THE DEPOSITARY SHARES REPRESENTED TRANSFERABLE
BY THIS RECEIPT ARE NOT SAVINGS DEPOSITARY RECEIPT
ACCOUNTS, DEPOSITS OR OTHER This Certificate
OBLIGATIONS OF _____________, THE is transferable in New York,
DEPOSITARY HEREUNDER, OR OF ANY BANK
OR NON-BANK DEPOSITARY OF GENERAL
MOTORS CORPORATION AND ARE NOT CUSIP [ ]
INSURED BY THE SAVINGS ASSOCIATION SEE REVERSE FOR
INSURANCE FUND OR THE BANK INSURANCE CERTAIN DEFINITIONS
FUND OF THE FEDERAL DEPOSIT INSURANCE
CORPORATION, OR ANY OTHER GOVERNMENT
AGENCY DEPOSITARY RECEIPT FOR DEPOSITARY
SHARES, EACH DEPOSITARY SHARE REPRESENTING
A [ ] INTEREST IN ONE SHARE OF [ % PREFERRED
STOCK] [ % PREFERENCE STOCK], PAR VALUE
$______ PER SHARE
GENERAL MOTORS CORPORATION
A CORPORATION INCORPORATED UNDER
THE LAWS OF THE STATE OF DELAWARE
_________________, as Depositary (the "Depositary"), hereby certifies that
_________ is the registered owner of ___________________ DEPOSITARY SHARES
("Depositary Shares"), each Depositary Share representing a [ ] interest in one
share of [ % Preferred] [ % Preference] Stock, [ ] par value, (the "Stock"), of
General Motors Corporation, a Delaware corporation (the "Corporation"), on
deposit with the Depositary, subject to the terms and entitled to the benefits
of the Deposit Agreement dated as of ______, 20__ (the "Deposit Agreement"),
between the Corporation and the Depositary. By accepting this Depositary
Receipt, the holder hereof becomes a party to and agrees to be bound by all the
terms and conditions of the Deposit Agreement. This Depositary Receipt shall not
be valid or obligatory for any purpose or be entitled to any benefits under the
Deposit Agreement unless it has been executed by the Depositary by the manual
signature of a duly authorized officer or, if executed in facsimile by the
Depositary, countersigned by a Registrar in respect of the Depositary Receipts
by a duly authorized officer thereof.
Dated: _______, 20__
Countersigned
[ ]
Depositary and Registrar
By:______________________
Authorized Officer
GENERAL MOTORS CORPORATION
GENERAL MOTORS CORPORATION WILL FURNISH WITHOUT CHARGE TO EACH RECEIPT-HOLDER
WHO SO REQUESTS A COPY OF THE DEPOSIT AGREEMENT AND A STATEMENT OR SUMMARY OF
THE CERTIFICATE OF DESIGNATION ESTABLISHING THE POWERS, DESIGNATIONS,
PREFERENCES AND RELATIVE, PARTICIPATING, OPTIONAL OR OTHER SPECIFIED RIGHTS OF
THE [ % PREFERRED] [ % PREFERENCE] STOCK AND EACH OTHER CLASS OF [PREFERRED]
[PREFERENCE] STOCK OR SERIES THEREOF WHICH THE CORPORATION IS AUTHORIZED TO
ISSUE AND OF THE QUALIFICATIONS, LIMITATIONS OR RESTRICTIONS OF SUCH PREFERENCE
AND/OR RIGHTS. ANY SUCH REQUEST SHOULD BE ADDRESSED TO GENERAL MOTORS
CORPORATION, ATTENTION: SECRETARY, 000 XXXXXXXXXXX XXXXXX, XXXXXXX, XXXXXXXX
00000-0000.
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The following abbreviations, when used in the inscription on the face of this
Depositary Receipt, shall be construed as though they were written out in full
according to applicable laws or regulations:
TEN COM -...as tenants in common
TEN ENT -...as tenants by the entireties
JT TEN - as joint tenants with right of survivorship and
not as tenants in common
UNIF GIFT MIN ACT - _______ Custodian _______
...... (Cust) (Minor)
......under Uniform Gifts to
......Minors Act______________
...... (State)
UNIF XXXX MIN ACT - ______ Custodian (until age __)
...... (Cust)
...... _______ under Uniform Transfers
...... (Minor)
...... to Minors Act ___________________
...... (State)
Additional abbreviations may also be used though not in the above list.
For value received, _____________________ hereby sell(s),
assign(s) and transfer(s) unto
PLEASE INSERT SOCIAL SECURITY OR OTHER
IDENTIFYING NUMBER OF ASSIGNEE
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PLEASE PRINT OR TYPEWRITE NAME AND ADDRESS INCLUDING POSTAL ZIP
CODE OF ASSIGNEE
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___________________ Depositary Shares represented by the within Depositary
Receipt, and do(es) hereby irrevocably constitute and appoint
______________________ Attorney to transfer the said Depositary Shares on the
books of the within named Depositary with full power of substitution in the
premises.
Dated______________________ Signature:
...... ----------------------------------------
NOTICE: The signature to this assignment
must correspond with the name as written
upon the face of this Depositary Receipt in
every particular, without alteration or
enlargement or any change whatever.
SIGNATURE GUARANTEE
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