EXHIBIT 99.1
AMERICAN STORES COMPANY,
-----------------, AS DEPOSITARY,
AND
THE HOLDERS FROM TIME TO TIME OF
THE DEPOSITARY SHARES DESCRIBED HEREIN
-----------------
DEPOSIT AGREEMENT
-----------------
DATED AS OF ------------
TABLE OF CONTENTS
Page
ARTICLE ONE
DEFINITIONS
Certificate................................. 1
Company..................................... 1
Deposit Agreement........................... 1
Depositary.................................. 1
Depositary Shares........................... 2
Depositary's Agent.......................... 2
Depositary's Office......................... 2
Receipt..................................... 2
Record Holder............................... 2
Redemption Date............................. 2
Redemption Price............................ 2
Registrar................................... 2
Stock....................................... 2
ARTICLE TWO
FORM OF RECEIPTS, DEPOSIT OF STOCK,
EXECUTION AND DELIVERY, TRANSFER,
SURRENDER AND REDEMPTION OF RECEIPTS
SECTION 2.1 Form and Transfer of Receipts.......... 3
SECTION 2.2 Deposit of Stock; Execution and
Delivery of Receipts in Respect
Thereof.............................. 4
SECTION 2.3 Redemption of Stock.................... 5
SECTION 2.4 Registration of Transfer of Receipts... 7
SECTION 2.5 Split-ups and Combinations of
Receipts; Surrender of Receipts
and Withdrawal of Stock.............. 7
SECTION 2.6 Limitations on Execution and
Delivery, Transfer, Surrender and
Exchange of Receipts................. 9
SECTION 2.7 Lost Receipts.......................... 9
SECTION 2.8 Cancellation and Destruction of
Surrendered Receipts................. 9
SECTION 2.9 Preferred Stock Purchase Plan.......... 10
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Page
ARTICLE THREE
CERTAIN OBLIGATIONS OF THE HOLDERS
OF RECEIPTS AND THE COMPANY
SECTION 3.1 Filing Proofs, Certificates and
Other Information.................... 10
SECTION 3.2 Payment of Taxes or Other
Governmental Charges................. 10
SECTION 3.3 Warranty as to Stock................... 11
ARTICLE FOUR
THE DEPOSITED SECURITIES; NOTICES
SECTION 4.1 Cash Distributions..................... 11
SECTION 4.2 Distributions Other than Cash, Rights,
Preferences or Privileges............ 12
SECTION 4.3 Subscription Rights, Preferences
or Privileges........................ 12
SECTION 4.4 Notice of Dividends; Fixing of Record
Date for Record Holders of
Depositary Shares.................... 14
SECTION 4.5 Voting Rights.......................... 14
SECTION 4.6 Changes Affecting Deposited Securities
and Reclassifications,
Recapitalizations, etc............... 15
SECTION 4.7 Delivery of Reports.................... 16
SECTION 4.8 List of Holders........................ 16
ARTICLE FIVE
THE DEPOSITARY, THE DEPOSITARY'S AGENTS,
THE REGISTRAR AND THE COMPANY
SECTION 5.1 Maintenance of Offices, Agencies and
Transfer Books by the Depositary;
Registrar............................ 16
SECTION 5.2 Prevention of or Delay in
Performance by the Depositary, the
Depositary's Agents, the Registrar
or the Company....................... 17
SECTION 5.3 Obligations of the Depositary, the
Depositary's Agents, the Registrar
and the Company...................... 18
SECTION 5.4 Resignation and Removal of the
Depositary; Appointment of
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Successor Depositary................. 19
SECTION 5.5 Corporate Notices and Reports.......... 20
SECTION 5.6 Deposit of Stock by the Company........ 20
SECTION 5.7 Indemnification by the Company......... 20
SECTION 5.8 Charges and Expenses................... 21
ARTICLE SIX
AMENDMENT AND TERMINATION
SECTION 6.1 Amendment.............................. 21
SECTION 6.2 Termination............................ 22
ARTICLE SEVEN
MISCELLANEOUS
SECTION 7.1 Counterparts........................... 22
SECTION 7.2 Exclusive Benefit of Parties; Holders
of Receipts Are Parties.............. 22
SECTION 7.3 Invalidity of Provisions............... 22
SECTION 7.4 Notice................................. 23
SECTION 7.5 Depositary's Agents.................... 24
SECTION 7.6 Governing Law.......................... 24
SECTION 7.7 Inspection of Deposit Agreement........ 24
SECTION 7.8 Headings............................... 24
TESTIMONIUM........................................... 25
SIGNATURE AND SEALS................................... 25
EXHIBIT A - Form of Depositary Receipt................ A-1
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DEPOSIT AGREEMENT
DATED AS OF -----------
AMONG
AMERICAN STORES COMPANY,
A DELAWARE CORPORATION,
-----------, A -----------,
AND THE HOLDERS
FROM TIME TO TIME OF THE DEPOSITARY SHARES
DESCRIBED HEREIN.
WHEREAS it is desired to provide, as hereinafter set forth in
this Deposit Agreement, for the deposit of shares of ----- [insert designation]
Preferred Stock, par value $1.00 per share, of American Stores Company 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)
evidencing Depositary Shares (as hereinafter defined) in respect of the Stock
(as hereinafter defined) so deposited;
NOW, THEREFORE, in consideration of the premises, the parties
hereto agree as follows:
ARTICLE ONE
DEFINITIONS
The following definitions shall for all purposes, unless otherwise
indicated, apply to the respective terms used in this Deposit Agreement and the
Receipts:
Certificate" shall mean the certificate of designations, preferences and
rights of the Stock adopted by the Board of Directors of the Company and filed
with the Secretary of State of Delaware establishing the Stock as a series of
preferred stock of the Company.
"Company" shall mean American Stores Company, a Delaware corporation, and
its successors.
"Deposit Agreement" shall mean this Deposit Agreement, as amended or
supplemented from time to time.
"Depositary" shall mean ------------- [a bank or trust company selected by
the Company having its principal office in the United States of America and
having combined capital and surplus of at least $50,000,000], a --------------
-------------, and any successor as Depositary hereunder.
"Depositary Shares" shall mean the rights represented by the Receipts
issued hereunder and the interests in the Stock represented thereby. Each
Depositary Share shall represent a ------------ [insert fraction] interest in a
share of Stock and the same proportionate interest in any and all other property
received by the Depositary in respect of such shares of Stock and at the time
held under this Deposit Agreement.
"Depositary's Agent" shall mean an agent appointed by the Depositary
pursuant to Section 7.5.
"Depositary's Office" shall mean the office of the Depositary at
-------------, ----------------, --------------, at which at any particular time
its depositary receipt business shall be administered.
"Receipt" shall mean one of the depositary receipts issued hereunder,
whether in definitive or temporary form, evidencing one or more Depositary
Shares.
"Record Holder" as applied with respect to a Depositary Share shall mean
the person in whose name a Receipt evidencing such Depositary Share is
registered on the books of the Depositary, or Registrar, if one is appointed,
maintained for such purpose.
"Redemption Date" shall mean a date fixed by the Company for the
redemption, in whole or in part, of the Stock pursuant to the terms of the
Certificate.
"Redemption Price" shall mean the price (or amount) to be paid by the
Company for the redemption, in whole or in part, of the Stock pursuant to the
terms of the Certificate.
"Registrar" shall mean any bank or trust company which shall be appointed
by the Depositary pursuant to this Deposit Agreement to register ownership and
transfers of Receipts as herein provided.
"Stock" shall mean shares of the Company's ------------------ [insert
designation] Preferred Stock, par value $1.00 per share.
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ARTICLE TWO
FORM OF RECEIPTS, DEPOSIT OF STOCK, EXECUTION AND
DELIVERY, TRANSFER, SURRENDER AND REDEMPTION OF RECEIPTS
SECTION 2.1 Form and Transfer of Receipts.
-----------------------------
Definitive Receipts shall be engraved, printed or lithographed on
steel-engraved borders as determined by the Company and shall be substantially
in the form set forth in Exhibit A attached hereto, with appropriate insertions,
modifications and omissions, as hereinafter provided. Pending the preparation of
definitive Receipts, the Depositary, upon the written order of the Company
delivered in compliance with Section 2.2, shall execute and deliver temporary
Receipts which are printed, lithographed, typewritten, mimeographed or otherwise
substantially of the tenor of the definitive Receipts in lieu of which they are
issued and with such appropriate insertions, omissions, substitutions and other
variations as the persons executing such Receipts may determine, as evidenced by
their execution of such Receipts. If temporary Receipts are issued, the Company
and the Depositary will cause definitive Receipts to be prepared without
unreasonable delay. After the preparation of definitive Receipts, the temporary
Receipts shall be exchangeable for definitive Receipts upon surrender of the
temporary Receipts at the Depositary's Office, or such other office as the
Depositary may designate, without charge to the holder. Upon surrender for
cancellation of any one or more temporary Receipts, the Depositary shall execute
and deliver in exchange therefor definitive Receipts representing the same
number of Depositary Shares as represented by the surrendered temporary Receipt
or Receipts. Such exchange shall be made at the Company's expense and without
any charge therefor. Until so exchanged, the temporary Receipts shall in all
respects be entitled to the same benefits under this 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 representative of the 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 representative of such Registrar. No Receipt
shall be entitled to any benefits under this Deposit Agreement or be valid or
obligatory for any purpose unless it shall have been executed manually by a duly
authorized representative of the Depositary or, if a Registrar for the Receipts
other than the Depositary shall have been appointed, by manual or facsimile
signature of a duly authorized representative of such Depositary and
countersigned
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manually by a duly authorized representative of such Registrar. The Depositary
shall record on its books each Receipt so signed and delivered as hereinafter
provided.
Receipts shall be in denominations of any number of whole Depositary
Shares.
Receipts may be endorsed with or have incorporated in the text thereof such
legends or recitals or changes not inconsistent with the provisions of this
Deposit Agreement or the Certificate as may be required by the Company or the
Depositary (or, at the election of the Depositary, the Registrar) or required to
comply with any applicable law or any regulation thereunder or with the rules
and regulations of any securities exchange upon which the Stock, the Depositary
Shares or the Receipts may be listed or to conform with any usage with respect
thereto, or to indicate any special limitations or restrictions to which any
particular Receipts are subject.
Title to Depositary Shares evidenced by a Receipt which is properly
endorsed, or accompanied by a properly executed instrument of transfer, shall be
transferable by delivery with the same effect as in the case of a negotiable
instrument; provided, however, that until transfer of a Receipt shall be
registered on the books of the Depositary as provided in Section 2.4, 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.
Each holder of a Receipt is entitled, proportionately, to all the rights,
preferences and privileges of the Stock represented thereby (including dividend,
voting, redemption, conversion and liquidation rights and preferences) and the
same proportionate interest in any and all other property received by the
Depositary in respect of such Stock and at the time held under this Deposit
Agreement.
SECTION 2.2 Deposit of Stock; Execution and Delivery
of Receipts in Respect Thereof.
----------------------------------------
Subject to the terms and conditions of this Deposit Agreement, the Company
or any holder of Stock may from time to time deposit shares of Stock under this
Deposit Agreement by delivery to the Depositary of a certificate or certificates
for the Stock to be deposited, properly endorsed or accompanied, if required by
the Depositary, by a duly executed instrument of transfer or endorsement, in
form satisfactory to the
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Depositary, together with all such certifications as may be required by the
Depositary in accordance with the provisions of this Deposit Agreement, and
together with a written order of the Company directing the Depositary to execute
and deliver to, or upon the written order of, the person or persons stated in
such order a Receipt or Receipts for the number of Depositary Shares relating to
such deposited Stock.
Deposited Stock shall be held by the Depositary at the Depositary's Office
or at such other place or places as the Depositary shall determine.
Upon receipt by the Depositary of a certificate or certificates for Stock
deposited in accordance with the provisions of this Section, together with the
other documents required as above specified, and upon recordation of the Stock
so deposited on the books of the Company in the name of the Depositary or its
nominee, the Depositary, subject to the terms and conditions of this Deposit
Agreement, shall execute and deliver, to or upon the order of the person or
persons named in the written order delivered to the Depositary referred to in
the first paragraph of this Section, a Receipt or Receipts for the number of
Depositary Shares relating to 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 office, if any, as the Depositary may designate. Delivery at other offices
shall be at the risk and expense of the person requesting such delivery.
SECTION 2.3 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) give written notice to the Depositary of such
proposed redemption on the same date on which the Company first publicly
announces such redemption, such date of notice being not less than 30 nor more
than 60 days prior to the Redemption Date. Such notice to the Depositary shall
include the proposed Redemption Date, the number of shares of Stock held by the
Depositary to be redeemed and the applicable redemption price (including any
accrued and unpaid dividends, if any, payable in connection with such
redemption). Any such notice to the Depositary shall be accompanied by (i) a
certificate from the Company stating that such redemption of Stock is in
accordance with the provisions of the Certificate and (ii) the form of notice of
redemption (which shall contain substantially the same information as the notice
required by the Certificate for the redemption of the Stock) to be delivered by
the Depositary.
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Not less than 30 nor more than 60 days prior to the Redemption Date, the
Depositary shall mail or cause to be mailed, at the Company's expense, notice
(in the form provided to the Depositary by the Company) of such redemption and
the proposed corresponding redemption of the number of Depositary Shares
representing the Stock to be redeemed, by first-class mail, postage prepaid, to
the holders of record of the Receipts evidencing the Depositary Shares to be so
redeemed, addressed to such holders at their last addresses as shown on the
records of the Depositary (or Registrar, if one is appointed). Each such notice
mailed to Record Holders of Depositary Shares shall be in the form provided to
the Depositary by the Company and shall state, at a minimum, the Redemption
Date, the number of Depositary Shares to be redeemed, and, if less than all the
Depositary Shares represented by Receipts held by such holder are to be
redeemed, the number of such Depositary Shares to be redeemed from such holder,
the applicable redemption price, the place or places where such Receipts are to
be surrendered for payment of the redemption price, and that any dividends in
respect of the Depositary Shares to be redeemed will cease on the Redemption
Date, except as otherwise provided in the Certificate. Any notice which is so
mailed shall be conclusively presumed to have been duly given whether or not the
holder receives such notice; and failure to give such notice by mail, or any
defect in such notice, to the holders of any Depositary Shares designated for
redemption shall not affect the validity of the proceedings for the redemption
of any other Depositary Shares. If less than all of the then 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 Depositary.
Prior to the Redemption Date, the Company shall deliver to the Depositary
funds, securities or other property sufficient to redeem in full the Stock
called for redemption and the Depositary shall surrender to the Company a
certificate or certificates (properly endorsed or assigned for transfer, if the
Company shall so require and the notice shall so state) representing the number
of shares of Stock to be so redeemed. If the Company shall have delivered to the
Depositary funds, securities or other property necessary for the redemption in
full of the shares of Stock called for redemption, then, notwithstanding that
the Receipts evidencing Depositary Shares representing the shares of Stock
called for redemption have not been surrendered, the dividends in respect
thereof shall cease to accrue after the Redemption Date, such Depositary Shares
shall no longer be deemed outstanding and all rights whatsoever with respect to
such Depositary Shares (except the right of the holders to receive the
redemption payment therefor without interest upon surrender of the Receipts
evidencing such
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Depositary Shares) shall 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 redemption price per
Depositary Share equal to the proportionate part of the redemption price per
share paid in respect of the shares of Stock plus all funds, securities or other
property, if any, paid with respect to such Depositary Shares, including all
amounts paid by the Company 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 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 redemption payment, a new
Receipt evidencing the Depositary Shares evidenced by such prior Receipt and not
called for redemption.
SECTION 2.4 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 a 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 shall deliver such new Receipt or
Receipts to or upon the order of the person entitled thereto.
SECTION 2.5 Split-ups and Combinations of
Receipts; Surrender of Receipts
and Withdrawal of Stock.
-------------------------------
Upon surrender of a Receipt or Receipts at the Depositary's Office or at
such other offices as it may designate for the purpose of effecting a split-up
or combination of such Receipt or Receipts, and subject to the terms and
conditions of this Deposit Agreement, the Depositary shall execute and deliver a
new Receipt or Receipts in the authorized denomination or denominations
requested, evidencing the aggregate number of Depositary Shares evidenced by the
Receipt or Receipts surrendered.
Any Record Holder of at least ------------ [insert number of Depositary
Shares (at least the inverse of the fraction of an interest represented by each
Depositary Share in a share of
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Stock) below which withdrawal of Stock is not permitted] Depositary Shares
may withdraw the number of whole shares of Stock and all money and other
property, if any, underlying such Depositary Shares by surrendering Receipts
evidencing such Depositary Shares 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,
underlying the Depositary Shares 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 Receipts evidencing Depositary Shares therefor. If a
Receipt delivered by a holder to the Depositary in connection with such
withdrawal shall evidence a number of Depositary Shares relating to other than a
number of whole shares of Stock, the Depositary shall at the same time, in
addition to such number of whole shares of Stock and such money and other
property, if any, to be so withdrawn, deliver to such holder, or (subject to
Section 3.2) upon his order, a new Receipt evidencing such remaining number of
Depositary Shares represented by the Receipt delivered in connection with such
withdrawal. Delivery of the Stock and money and other property, if any, being
withdrawn may be made by delivery of such certificates, documents of title and
other instruments as the Depositary may deem appropriate.
If the Stock and the money and other property, if any, being withdrawn are
to be delivered to a person or persons other than the Record Holder of the
Depositary Shares evidenced by the Receipts being surrendered for withdrawal of
Stock, such holder shall execute and deliver to the Depositary a written order
so directing the Depositary, and the Depositary may require that the Receipt or
Receipts surrendered by such holder for withdrawal of such shares of Stock be
properly endorsed in blank or accompanied by a properly executed instrument of
transfer.
Delivery of the Stock and money and other property, if any, underlying the
Depositary Shares surrendered for withdrawal shall be made by the Depositary at
the Depositary's Office or at such other offices as the Depositary may
designate, except that, at the request, risk and expense of the holder
surrendering such Depositary Shares and for the account of such holder, such
delivery may be made at such other place as may be designated by such holder.
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SECTION 2.6 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 5.8,
may require the production of evidence satisfactory to it as to the identity and
genuineness of any signature and may also require compliance with such
regulations, if any, as the Depositary or the Company may establish consistent
with the provisions of this Deposit Agreement.
The deposit of Stock may be refused, the delivery of Receipts against Stock
may be suspended, the registration of transfer of Depositary Shares may be
refused and the registration of transfer, surrender or exchange of outstanding
Depositary Shares may be suspended (i) during any period when the register of
stockholders of the Company is closed or (ii) if any such action is deemed
necessary or advisable by the Depositary, any of the Depositary's Agents or the
Company at any time or from time to time because of any requirement of law or of
any government or governmental body or commission or under any provision of this
Deposit Agreement.
SECTION 2.7 Lost Receipts.
--------------
In case any Receipt shall be mutilated, destroyed, lost or stolen, the
Depositary in its discretion may execute and deliver a Receipt of like form and
tenor in exchange and substitution for such mutilated Receipt, or in lieu of and
in substitution for such destroyed, lost or stolen Receipt, upon (i) the filing
by the holder thereof with the Depositary of evidence satisfactory to the
Depositary of such destruction or loss or theft of such Receipt, or the
authenticity thereof and of his or her ownership thereof, and (ii) furnishing
the Depositary with reasonable indemnification satisfactory to it.
SECTION 2.8 Cancellation and Destruction of
Surrendered Receipts.
-------------------------------
All Receipts surrendered to the Depositary or any Depositary's Agent shall
be cancelled by the Depositary. Except as prohibited by applicable law or
regulation, the Depositary is authorized to destroy all Receipts so cancelled.
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SECTION 2.9 Preferred Stock Purchase Plans.
-------------------------------
Upon receipt of instructions from the Company, the Depositary shall take
such action as shall be reasonable 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 THREE
CERTAIN OBLIGATIONS OF THE HOLDERS
OF RECEIPTS AND THE COMPANY
SECTION 3.1 Filing Proofs, Certificates and Other Information.
--------------------------------------------------
Any Record Holder of a Depositary Share may be required from time to time
to file such proof of residence, or other matters or other information, to
execute such certificates and to make such representations and warranties as the
Depositary or the Company may reasonably deem necessary or proper. The
Depositary or the Company may withhold the delivery, or delay the registration
of transfer, conversion, redemption or exchange, of any Depositary Share or the
withdrawal of any Stock underlying Depositary Shares 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 3.2 Payment of Taxes or Other
Governmental Charges.
-------------------------
Record Holders of Depositary Shares shall be obligated to make payments to
the Depositary of certain charges and expenses, as provided in Section 5.8.
Registration of transfer of any Depositary Share or any withdrawal of Stock and
delivery of all money or other property, if any, underlying such Depositary
Share 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 relating to such Depositary Shares 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 or other distributions or the proceeds of any such sale may be
applied
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to any payment of such charges or expenses, the holder of such Depositary
Share remaining liable for any deficiency.
SECTION 3.3 Warranty as to Stock.
---------------------
In the case of the initial deposit of the Stock, the Company and, in the
case of subsequent deposits thereof, each person so depositing Stock under this
Deposit Agreement shall be deemed thereby to represent and warrant that such
Stock and each certificate therefor are valid and that the person making such
deposit is authorized to do so. The Company hereby further represents and
warrants that the Stock, when issued, will be duly authorized, validly issued,
fully paid and nonassessable. Such representations and warranties shall survive
the deposit of the Stock and the issuance of the Receipts.
ARTICLE FOUR
THE DEPOSITED SECURITIES; NOTICES
SECTION 4.1 Cash Distributions.
-------------------
Whenever the Depositary shall receive any cash dividend or other cash
distribution on the Stock, the Depositary shall, subject to Sections 3.1 and
3.2, distribute to the Record Holders of Depositary Shares on the record date
fixed pursuant to Section 4.4 such amounts of such dividend or distribution as
are, as nearly as practicable, in proportion to the respective numbers of
Depositary Shares held by such holders; provided, however, that in case the
Company or the Depositary shall be required to withhold and shall withhold from
any cash dividend or other cash distribution in respect of the Stock an amount
on account of taxes, the amount made available for distribution or distributed
in respect of Depositary Shares shall be reduced accordingly. The Depositary
shall distribute or make available for distribution, as the case may be, only
such amount, however, as can be distributed without attributing to any holder of
Depositary Shares a fraction of one cent, and any balance not so distributable
shall be held by the Depositary (without liability for interest thereon) and
shall be added to and be treated as part of the next sum received by the
Depositary for distribution to Record Holders of Depositary Shares then
outstanding.
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SECTION 4.2 Distributions Other than Cash, Rights, Preferences or
Privileges.
-----------------------------------------------------
Whenever the Depositary shall receive any distribution other than cash,
rights, preferences or privileges on the Stock, the Depositary shall, subject to
Sections 3.1 and 3.2, and pursuant to written instructions from the Company,
distribute to the Record Holders of Depositary Shares on the record date fixed
pursuant to Section 4.4 such amounts of the securities or property received by
it as are, as nearly as practicable, in proportion to the respective numbers of
Depositary Shares held by such holders, in any manner that the Company may deem
equitable and practicable for accomplishing such distribution. If, in the
opinion of the Depositary, such distribution cannot be made proportionately
among such Record Holders, or if for any other reason (including any requirement
that the Company or the Depositary withhold an amount on account of taxes or
governmental charges) the Depositary deems, after consultation with the Company,
such distribution not to be feasible, the Depositary may, with the approval of
the Company, adopt such method as it deems equitable and practicable for the
purpose of effecting such distribution, including the sale (at public or private
sale) of the securities or property thus received, or any part thereof, at such
place or places and upon such terms as it may deem proper. The net proceeds of
any such sale shall, subject to Sections 3.1 and 3.2, be distributed or made
available for distribution, as the case may be, by the Depositary to the Record
Holders of Depositary Shares entitled thereto as provided by Section 4.1 in the
case of a distribution received in cash. The Company shall not make any
distribution of such securities unless the Company shall have provided an
opinion of counsel to the effect that such securities have been registered under
the Securities Act of 1933, as amended, or need not be so registered.
SECTION 4.3 Subscription Rights, Preferences
or Privileges.
--------------------------------
If the Company shall at any time offer or cause to be offered to the
persons in whose names Stock is recorded on the books of the Company any rights,
preferences or privileges to subscribe for or to purchase any securities or any
rights, preferences or privileges of any other nature, such rights, preferences
or privileges shall in each such instance be made available by the Depositary to
the Record Holders of Depositary Shares in such manner as the Depositary may
determine, either by the issuance 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
-12-
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 Depositary Shares by the issue of warrants or otherwise, or (ii)
if and to the extent so instructed by holders of Depositary Shares 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 sale shall,
subject to Sections 3.1 and 3.2, be distributed by the Depositary to the Record
Holders of Depositary Shares entitled thereto as provided by Section 4.1 in the
case of a distribution received in cash. The Company shall not make any
distribution of such rights, preferences or privileges unless the Company shall
have provided to the Depositary an opinion of counsel to the effect that such
rights, preferences or privileges have been registered under the Securities Act
of 1933, as amended, or need not be so registered.
If registration under the Securities Act of 1933, as amended, of the
securities to which any rights, preferences or privileges relate is required in
order for holders of Depositary Shares to be offered or sold the securities to
which such rights, preferences or privileges relate, the Company agrees with the
Depositary that the Company will file promptly a registration statement pursuant
to such Act with respect to such rights, preferences or privileges and
securities and use its reasonable efforts and take all reasonable 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
Depositary Shares any right, preference or privilege to subscribe for or to
purchase any securities unless and until such a registration statement shall
have become effective or unless the offering and sale of such securities to such
holders are exempt from registration under the provisions of such Act.
If any other action under the laws of any jurisdiction or any governmental
or administrative authorization, consent or permit is required in order for such
rights, preferences or privileges to be made available to the
-13-
holders of Depositary Shares, the Company agrees with the Depositary that the
Company will use its reasonable efforts to take such action or obtain such
authorization, consent or permit sufficiently in advance of the expiration of
such rights, preferences or privileges to enable such holders to exercise such
rights, preferences or privileges.
SECTION 4.4 Notice of Dividends; Fixing of
Record Date for Record Holders of
Depositary Shares.
---------------------------------
Whenever any cash dividend or other cash distribution shall become payable
or any distribution other than cash shall be made, or if rights, preferences or
privileges shall at any time be offered, with respect to the Stock, or whenever
the Depositary shall receive notice of any meeting at which holders of Stock are
entitled to vote, or of which holders of Stock are entitled to notice, or
whenever the Depositary and the Company shall decide it is appropriate, the
Company 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 Record Holders of Depositary Shares who shall be entitled
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 who shall
be entitled to receive notice of such meeting. The Company shall advise the
Depositary of all such record dates.
SECTION 4.5 Voting Rights.
--------------
Upon receipt of notice of any meeting at which the holders of the Stock are
entitled to vote, the Depositary shall, as soon as practicable thereafter, mail
or cause to be mailed to the Record Holders of Depositary Shares a notice, the
form of which shall have been delivered by the Company to the Depositary, which
shall contain (i) such information as is contained in such notice of meeting,
(ii) a statement that the holders of Depositary Shares at the close of business
on a specified record date fixed pursuant to Section 4.4 may, subject to any
applicable provisions of law and of the Company's Restated Certificate of
Incorporation (including the Certificate), instruct the Depositary as to the
exercise of the voting rights pertaining to the amount of Stock represented by
their respective Depositary Shares (including an express indication that
instructions may be given to the Depositary to give a discretionary proxy to a
person designated by the Company) and (iii) a brief statement as to the manner
in which such instructions may be given. Upon the written request of
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the holders of Depositary Shares on the record date established in
accordance with Section 4.4, the Depositary shall endeavor insofar as
practicable to vote or cause to be voted, in accordance with the instructions
set forth in such request, the maximum number of whole shares of Stock
underlying the Depositary Shares as to which any particular voting or consent
instructions are received. The Company hereby agrees to take all 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. The Depositary may, at its
discretion, appear at any meeting with respect to the Stock unless directed to
the contrary by the holders of all the Depositary Shares. In the absence of
specific instructions from the holder of a Depositary Share, the Depositary will
abstain from voting to the extent of the Stock underlying such Depositary
Shares.
SECTION 4.6 Changes Affecting Deposited
Securities and Reclassifications, Recapitalizations, etc.
---------------------------------------------------------
Upon any change in par or liquidation value, split-up, combination or any
other reclassification of the Stock, or upon any recapitalization,
reorganization, merger, amalgamation or consolidation affecting the Company or
to which it is a party, the Depositary may, subject to the terms of the
Certificate, with the approval of, or upon the instructions of, the Company, (i)
make such adjustments as are approved or directed by the Company in (A) the
fraction of an interest represented by one Depositary Share in one share of
Stock, (B) the ratio of the redemption price per Depositary Share to the
redemption price of a share of Stock and (C) the minimum number of Depositary
Shares required for the withdrawal of Stock by holders of Depositary Shares, in
each case as may be necessary fully to reflect the effects of such changes in
par or liquidation value, split-up, combination or other reclassification of
Stock, or of such recapitalization, reorganization, merger, amalgamation or
consolidation and (ii) treat any securities which shall be received by the
Depositary in exchange for or upon conversion of or in respect of the Stock as
new deposited securities so received in exchange for or upon conversion of or in
respect of such Stock. In any such case, the Depositary may, in its discretion,
with the approval of the Company, execute and deliver additional Receipts or may
call for the surrender of all outstanding Receipts to be exchanged for new
Receipts specifically describing such new deposited securities. Anything to the
contrary herein notwithstanding, holders of Receipts shall have the right from
and after the effective date of any such reclassification of the Stock or any
such recapitalization, reorganization, merger, amalgamation or consolidation to
surrender such Receipts to the
-15-
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 Depositary Receipts might have been converted or for which
such Stock might have been exchanged or surrendered immediately prior to the
effective date of such transaction.
SECTION 4.7 Delivery of Reports.
--------------------
The Depositary will forward to Record Holders of Depositary Shares, at
their respective addresses appearing in the Depositary's books, all notices,
reports and communications received from the Company which are delivered to the
Depositary and which the Company is required to furnish to the holders of Stock
or Receipts.
SECTION 4.8 List of Holders.
----------------
Promptly upon request from time to time by the Company, the Depositary
shall furnish to the Company a list, as of a recent date, of the names,
addresses and holdings of Depositary Shares of all persons in whose names
Receipts are registered on the books of the Depositary or Registrar, as the case
may be.
ARTICLE FIVE
THE DEPOSITARY, THE DEPOSITARY'S AGENTS,
THE REGISTRAR AND THE COMPANY
SECTION 5.1 Maintenance of Offices, Agencies
and Transfer Books by the
Depositary; Registrar.
--------------------------------
Upon execution of this Deposit Agreement, the Depositary shall
maintain, at the Depositary's Offices or at any Registrar's office at which the
Depositary shall have complete access to all books and records maintained on the
Company's behalf, facilities for the execution and delivery, surrender and
exchange of Receipts and the registration and registration of transfer of
Receipts and, at the offices of the Depositary's Agents, if any, facilities for
the delivery, surrender and exchange of Receipts and the registration of
transfer 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
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Receipts, which books at all reasonable times shall be open for inspection
by the Record Holders of Depositary Shares; provided that any such holder
requesting to exercise such right shall certify in writing to the Depositary
that such inspection shall be for a proper purpose reasonably related to such
person's interest as an owner of Depositary Shares.
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.
If the Receipts or the Depositary Shares evidenced thereby or the Stock
underlying such Depositary Shares shall be listed on the New York Stock
Exchange, the Depositary may, with the approval of the Company, appoint a
Registrar for registration of such Receipts or Depositary Shares in accordance
with any requirements of such Exchange. Such Registrar (which may be the
Depositary if so permitted by the requirements of such Exchange) may be removed
and a substitute registrar appointed by the Depositary upon the request or with
the approval of the Company. If the Receipts, such Depositary Shares or such
Stock are listed on one or more other stock exchanges, the Depositary will, at
the request of the Company, arrange such facilities for the delivery,
registration, registration of transfer, surrender and exchange of such Receipts,
such Depositary Shares or such Stock as may be required by law or applicable
stock exchange regulation.
SECTION 5.2 Prevention of or Delay in Performance
by the Depositary, 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 a Depositary Share 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, any Depositary's Agent or any Registrar, by reason
of any provision, present or future, of the Company's Restated Certificate of
Incorporation (including the Certificate), or by reason of any act of God or war
or other circumstance beyond the control of the relevant party, the Depositary,
any Depositary's Agent, any Registrar or the Company shall be prevented or
forbidden from doing or performing any act or thing which the terms of the
Deposit Agreement provide shall be done or performed; nor shall the Depositary,
any Depositary's Agent, any Registrar or the Company incur any liability to any
Record Holder of a Depositary Share by reason of (i) any nonperformance or
delay, caused as aforesaid, in the performance of any act or thing
-17-
which the terms of this Deposit Agreement provide shall or may be done or
performed, or (ii) any exercise of, or failure to exercise, any discretion
provided for in this Deposit Agreement except, in case of any such exercise or
failure to exercise discretion not caused as aforesaid, if caused by the
negligence, bad faith or willful misconduct of the party charged with such
exercise or failure to exercise.
SECTION 5.3 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 assumes any obligation or shall be subject to any liability under this
Deposit Agreement to Record Holders of Depositary Shares other than for its
negligence, bad faith or willful misconduct.
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 satisfactory to it against all expense and liability be
furnished as often as may be required.
Neither the Depositary nor any Depositary's Agent nor any Registrar nor the
Company shall be liable for any action or any failure to act by it in reliance
upon the written advice of legal counsel or accountants or information from any
person presenting Stock for deposit, any holder of a Depositary Share or any
other person believed by it in good faith to be competent to give such
information. 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 proper party or parties.
Neither the Depositary nor any Depositary's Agent shall be responsible for
any failure to carry out any instruction to vote any of the shares of Stock or
for the manner or effect of any such vote, as long as any such action or
non-action is in good faith. The Depositary undertakes, and any Registrar shall
be required to undertake, to perform such duties and only such duties as are
specifically set forth in this Deposit Agreement, and no implied covenants or
obligations shall be read into this Deposit Agreement against the Depositary or
any Registrar. The Depositary will indemnify the Company against any liability
which may arise out of acts
-18-
performed or omitted by the Depositary or its agents due to its or their
negligence or bad faith. The Depositary, the Depositary's Agents, any Registrar
and the Company may own and deal in any class of securities of the Company and
its affiliates and in Depositary Shares. The Depositary may also act as transfer
agent or registrar of any of the securities of the Company and its affiliates.
SECTION 5.4 Resignation and Removal of the
Depositary; Appointment of
Successor Depositary.
------------------------------
The Depositary may at any time resign as Depositary hereunder by notice of
its election to do so delivered to the Company, such resignation to take effect
upon the appointment of a successor Depositary and its acceptance of such
appointment as hereinafter provided.
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. If no successor Depositary shall have been so appointed within 60
days after delivery of such notice, the resigning or removed Depositary may
petition any court of competent jurisdiction for the appointment of a successor
Depositary. Every successor Depositary shall execute and deliver to its
predecessor and to the Company an instrument in writing accepting its
appointment hereunder, and, thereupon, such successor Depositary, without any
further act or deed, shall become fully vested with all the rights, powers,
duties and obligations of its predecessor and for all purposes shall be the
Depositary under this Deposit Agreement, and such predecessor, upon payment of
all sums due it and 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 moneys or property held hereunder to
such successor and shall deliver to such successor a list of the Record Holders
of all outstanding Depositary Shares. Any successor Depositary shall promptly
mail notice of its appointment to the Record Holders of
-19-
Depositary Shares. Thereafter, any predecessor Depositary shall deliver any
correspondence received from any holders of Depositary Shares to the successor
Depositary.
Any corporation into which the Depositary may be merged, or with which it
may be consolidated or converted, shall be the successor of such Depositary
without the execution or filing of any document or any further act. Such
successor Depositary may authenticate the Receipts in the name of the
predecessor Depositary or in the name of the successor Depositary.
SECTION 5.5 Corporate Notices and Reports.
------------------------------
The Company agrees that it will transmit to the Depositary and to the
Record Holders of Depositary Shares, at the addresses provided to it pursuant to
Section 4.8, all notices, reports and communications (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 Certificate of Incorporation (including the
Certificate) to be furnished by the Company to holders of the Stock. Such
transmission will be at the Company's expense.
SECTION 5.6 Deposit of Stock by the Company.
-------------------------------
The Company agrees with the Depositary that neither the Company nor any
company controlled by the Company will at any time deposit any Stock if such
Stock is required to be registered under the provisions of the Securities Act of
1933, as amended, and no registration statement is at such time in effect as to
such Stock.
SECTION 5.7 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 loss, liability or
expense (including the costs and expenses of defending itself) which may arise
out of (i) acts performed or omitted in connection with this Deposit Agreement,
the Depositary Shares 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 negligence, bad faith 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 Depositary Shares or
the Stock pursuant to the provisions hereof. The obligations of
-20-
the Company set forth in this Section 5.7 shall survive any succession of
any Depositary, Registrar or Depositary's Agent.
SECTION 5.8 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 reasonable charges of the Depositary in connection with the
initial deposit of the Stock and the initial issuance of the Receipts, any
redemption of the Stock at the option of the Company and any withdrawals of
Stock by holders of Depositary Shares. All other transfer and other taxes and
governmental charges shall be at the expense of Record Holders of Depositary
Shares. If, at the request of a Record Holder of a Depositary Share, 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, any Depositary's Agent hereunder and any
Registrar (including, in each case, fees and expenses of counsel) incident to
the performance of their respective obligations hereunder will be paid upon
consultation and agreement between the Depositary and the Company as to the
amount and nature of such charges and expenses. The Depositary shall present its
statement for charges and expenses to the Company once every three months or at
such other intervals as the Company and the Depositary may agree.
ARTICLE SIX
AMENDMENT AND TERMINATION
SECTION 6.1 Amendment.
----------
The form of the Receipts and any provisions of this Deposit Agreement may
at any time and from time to time be amended by agreement between the Company
and the Depositary in any respect which they may deem necessary or desirable;
provided, however, that no such amendment (other than any change in the fees of
any Depositary, Registrar or Transfer Agent) which shall materially and
adversely alter the rights of the existing Record Holders of Depositary Shares
shall be effective unless such amendment shall have been approved by the Record
Holders of at least a majority of the Depositary Shares then outstanding. Every
holder of an outstanding Depositary Share at the time any such amendment becomes
effective shall be deemed, by continuing to hold such Depositary Share, to
consent and agree to such amendment and to be bound by this Deposit Agreement as
amended thereby.
-21-
SECTION 6.2 Termination.
------------
This Deposit Agreement may be terminated by the Company or the Depositary
only after (i) all outstanding Depositary Shares shall have been redeemed
pursuant to Section 2.3 or (ii) there shall have been made a final distribution
in respect of the Stock in connection with any liquidation, dissolution or
winding up of the Company and such distribution shall have been distributed to
the holders of Receipts pursuant to Section 4.1 or 4.2, as applicable.
Upon the termination of this Deposit Agreement, the Company shall be
discharged from all obligations under this Deposit Agreement except for its
obligations to the Depositary, any Depositary's Agents and any Registrar under
Sections 5.7 and 5.8.
ARTICLE SEVEN
MISCELLANEOUS
SECTION 7.1 Counterparts.
-------------
This Deposit Agreement may be executed in any number of counterparts, and
by each of the parties hereto on separate counterparts, each of which
counterparts, when so executed and delivered, shall be deemed an original, but
all such counterparts taken together shall constitute one and the same
instrument.
SECTION 7.2 Exclusive Benefit of Parties; Holders
of Receipts Are Parties.
-------------------------------------
This Deposit Agreement is for the exclusive benefit of the parties hereto,
and their respective successors hereunder, and shall not be deemed to give any
legal or equitable right, remedy or claim to any other person whatsoever.
Notwithstanding that Record Holders of Depositary Shares have not executed and
delivered this Deposit Agreement or any counterpart thereof, the holders of
Depositary Shares from time to time shall be parties to this Deposit Agreement
and shall be bound by all of the terms and conditions hereof and of the Receipts
evidencing such Depositary Shares by acceptance of delivery thereof.
SECTION 7.3 Invalidity of Provisions.
-------------------------
In case any one or more of the provisions contained in this Deposit
Agreement or in the Receipts should be or
-22-
become invalid, illegal or unenforceable in any respect, the validity,
legality and enforceability of the remaining provisions contained herein or
therein shall in no way be affected, prejudiced or disturbed thereby.
SECTION 7.4 Notice.
-------
Any notices required or permitted to be given hereunder shall be in writing
(including telegraphic, telex or facsimile transmission) and shall be duly given
if (i) personally delivered or sent by telegraph, telex or facsimile and (ii)
mailed by certified or registered mail, postage prepaid, return receipt
requested, addressed as follows:
If to the Company:
American Stores Company
000 Xxxx Xxxxx Xxxxxx
Xxxx Xxxx Xxxx, Xxxx 00000
Attention: Treasurer (with a copy to
the General Counsel)
Facsimile No. (000) 000-0000
If to the Depositary:
-------------------------------------
-------------------------------------
Facsimile No.------------------------
If to the Record Holder of a Depositary Share:
At the address as it appears on the
books of the Depositary, or if such
Record Holder shall have filed with
the Depositary a written request that
notices intended for such Record
Holder be mailed to some other
address, at the address designated in
such request.
All such notices shall be effective: (i) if mailed or personally delivered,
when received, or (ii) if sent by telegraph, telex or facsimile, when sent with
evidence of transmission. The address to which notices hereunder should be sent
may be changed by any party by giving notice of such change to the others in the
manner provided in this Deposit Agreement.
-23-
SECTION 7.5 Depositary's Agents.
--------------------
The Depositary may from time to time, with the prior approval of the
Company, appoint Depositary's Agents to act in any respect for the Depositary
for the purposes of this Deposit Agreement and may at any time appoint
additional Depositary's Agents and vary or terminate the appointment of such
Depositary's Agents. The Depositary will notify the Company of any such action.
SECTION 7.6 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
CHOICE OR CONFLICT OF LAW PRINCIPLES.
SECTION 7.7 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 Record Holder of a Depositary Share.
SECTION 7.8 Headings.
---------
The headings of articles and sections in this Deposit Agreement and in the
form of Receipt set forth in Exhibit A hereto have been inserted for convenience
only and are not to be regarded as 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.
-24-
IN WITNESS WHEREOF, the Company and the Depositary have duly executed this
Deposit Agreement as of the day and year first above set forth, and all Record
Holders of Depositary Shares shall become parties hereto by and upon acceptance
by them of delivery of Receipts evidencing such Depositary Shares and issued in
accordance with the terms hereof.
AMERICAN STORES COMPANY
By ---------------------
Name:
Title:
Attest:
By ------------------------
Name:
Title:
[Depositary]
By ---------------------
Name:
Title:
Attest:
By ------------------------
Name:
Title:
-25-
EXHIBIT A
FORM OF DEPOSITARY RECEIPT
FOR DEPOSITARY SHARES
[GENERAL FORM OF FACE OF RECEIPT]
---------------------DEPOSITARY SHARES
DEPOSITARY RECEIPT FOR DEPOSITARY SHARES,
REPRESENTING --------------- PREFERRED STOCK
AMERICAN STORES COMPANY
INCORPORATED UNDER THE LAWS OF THE STATE OF DELAWARE
THIS DEPOSITARY RECEIPT IS TRANSFERABLE
IN THE CITY OF NEW YORK
---------------, as Depositary (the "Depositary"), hereby certifies that
--------------- is the registered owner of -------------- Depositary Shares
("Depositary Shares"), each Depositary Share representing -----------
(--------)of one share of ----- Preferred Stock, par value $1.00 per share (the
"Stock"), of American Stores Company, a Delaware corporation (the "Company"), on
deposit with the Depositary, subject to the terms and entitled to the benefits
of the Deposit Agreement dated as of ------------- (the "Deposit Agreement"),
among the Company, the Depositary and all holders from time to time of
Depositary Receipts. By accepting this Depositary Receipt, the holder hereof
becomes a party to and agrees to be bound by all the terms and conditions of the
Deposit Agreement. This Depositary Receipt shall not be valid or obligatory for
any purpose or entitled to any benefits under the Deposit Agreement unless it
shall have been executed by the Depositary by the manual signature of a duly
authorized officer thereof or, if executed in facsimile by the Depositary,
countersigned by a Registrar in respect of the Depositary Receipts by the manual
signature of a duly authorized officer thereof.
Dated: [Depositary]
By: ---------------------------
Authorized Officer
Name:
Title:
A-1
[Registrar]
By: ---------------------------
Authorized Officer
Name:
Title:
A-2
[GENERAL FORM OF REVERSE OF RECEIPT]
AMERICAN STORES COMPANY
American Stores Company will furnish without charge to each receiptholder
who so requests a copy of the Deposit Agreement and a statement or summary of
the voting powers, designations, preferences, limitations, restrictions and
relative rights of each class of stock or series thereof which American Stores
Company is authorized to issue. Any such request is to be addressed to the
Secretary of American Stores Company.
The following abbreviations, when used in the inscription on the face of
this certificate, 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 the Uniform Gifts 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 print or type name, address, including postal zip code, and social
security or other identifying number of Assignee)
--------------------- Depositary Shares represented by the within receipt and
all rights thereunder and does hereby irrevocably constitute and appoint
-------------- attorney to transfer said Depositary Shares on the books of the
within-named Depositary with full power of substitution in the premises.
Dated: ------------------------------------------------
----------------------------------------------------------
NOTICE: The signature to this assignment must correspond with the name as
written upon the face of this instrument in every particular, without alteration
or enlargement or any change whatsoever.
A-3
