PPL ELECTRIC UTILITIES CORPORATION, Wells Fargo Bank, N.A., As Depositary AND THE HOLDERS FROM TIME TO TIME OF THE DEPOSITARY RECEIPTS DESCRIBED HEREIN Deposit Agreement Depositary Shares Each representing a ¼ interest in a share of Preference Stock,...
Exhibit
4.2
PPL
ELECTRIC UTILITIES CORPORATION,
Xxxxx
Fargo Bank, N.A., As Depositary
AND
THE
HOLDERS FROM TIME TO TIME OF
THE
DEPOSITARY RECEIPTS DESCRIBED HEREIN
______________________
Depositary
Shares
Each
representing a ¼ interest in a share of Preference Stock, 6.25%
Series
______________________
Dated
April 6, 2006
TABLE
OF CONTENTS
Page
ARTICLE
I Definitions
|
1
|
ARTICLE
II Form of Receipts, Deposit of Stock, Execution and
Delivery, Transfer, Surrender and Redemption of Receipts
|
2
|
SECTION
2.01. Form and Transfer of Receipts
|
2
|
SECTION
2.02. Deposit of Stock; Execution and Delivery of
Receipts in Respect Thereof
|
3
|
SECTION
2.03. Redemption of Stock
|
4
|
SECTION
2.04. Registration of Transfer of
Receipts
|
5
|
SECTION
2.05. Split-ups and Combinations of Receipts; Surrender
of Receipts and Withdrawal of Stock
|
6
|
SECTION
2.06. Limitations on Execution and Delivery, Transfer,
Surrender and Exchange of Receipts
|
7
|
SECTION
2.07. Lost Receipts, etc.
|
8
|
SECTION
2.08. Cancellation and Destruction of Surrendered
Receipts.
|
8
|
ARTICLE
III Certain Obligations of Holders of Receipts and the
Company
|
8
|
SECTION
3.01. Filing Proofs, Certificates and Other
Information.
|
8
|
SECTION
3.02. Payment of Taxes or Other Governmental
Charges.
|
8
|
ARTICLE
IV The Deposited Securities; Notices
|
9
|
SECTION
4.01. Cash Distributions and the Dividend Reinvestment
Plan.
|
9
|
SECTION
4.02. Distributions Other than Cash, Rights, Preferences
or Privileges
|
9
|
SECTION
4.03. Subscription Rights, Preferences or
Privileges.
|
9
|
SECTION
4.04. Notice of Dividends, etc.; Fixing of Record Date
for Holders of Receipts
|
10
|
SECTION
4.05. Voting Rights
|
11
|
SECTION
4.06. Changes Affecting Deposited Securities and
Reclassifications, Recapitalizations, etc.
|
11
|
SECTION
4.07. Inspection of Reports
|
12
|
SECTION
4.08. Lists of Record Holders of Receipts
|
12
|
ARTICLE
V The Depositary, the Depositary’s Agents, the Registrar and the
Company
|
12
|
SECTION
5.01. Maintenance of Offices, Agencies and Transfer Books
by the Depositary; Xxxxxxxxx
|
00
|
SECTION
5.02. Prevention of or Delay in Performance by the
Depositary, the Depositary’s Agents, the Registrar, the Transfer Agent or
the Company
|
13
|
SECTION
5.03. Obligations of the Depositary, the Depositary’s
Agents, the Registrar, the Transfer Agent and the Company
|
13
|
SECTION
5.04. Resignation and Removal of the Depositary;
Appointment of Successor Depositary
|
14
|
SECTION
5.05. Corporate Notices and Reports
|
14
|
SECTION
5.06. Indemnification by the Company
|
15
|
SECTION
5.07. Charges and Expenses
|
15
|
ARTICLE
VI Amendment and Termination
|
15
|
SECTION
6.01. Amendment
|
15
|
SECTION
6.02. Termination
|
16
|
ARTICLE
VII Miscellaneous
|
16
|
SECTION
7.01. Counterparts
|
16
|
SECTION
7.02. Exclusive Benefit of Parties
|
16
|
SECTION
7.03. Invalidity of Provisions
|
16
|
SECTION
7.04. Notices
|
16
|
SECTION
7.05. Depositary’s Agents
|
17
|
SECTION
7.06. Holders of Receipts Are Parties
|
17
|
SECTION
7.07. GOVERNING LAW
|
17
|
SECTION
7.08. Inspection of Deposit Agreement
|
17
|
SECTION
7.09. Headings
|
17
|
DEPOSIT
AGREEMENT dated as of April 6, 2006, among PPL ELECTRIC UTILITIES CORPORATION,
a
corporation duly organized and existing under the laws of the Commonwealth
of
Pennsylvania, XXXXX FARGO BANK, N.A., organized under the laws of the United
States of America, 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 Preference Stock, 6.25% Series without par value,
of PPL Electric Utilities 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 Exhibit A annexed hereto,
with appropriate insertions, modifications and omissions, as hereinafter
provided in this Deposit Agreement, and shall initially be issued in
uncertificated form;
NOW,
THEREFORE, in consideration of the premises, the parties hereto agree as
follows:
ARTICLE
I
Definitions
The
following definitions shall for all purposes, unless otherwise indicated, apply
to the respective capitalized terms used in this Deposit Agreement:
“Agent
Member” means a member of, or a participant in, the Global
Receiptholder.
“Certificated
Receipt” means a Receipt in registered, physical individual form.
“Company”
shall mean PPL Electric Utilities Corporation, a corporation duly organized
and
existing under the laws of the Commonwealth of Pennsylvania, and its
successors.
“Deposit
Agreement” shall mean this Deposit Agreement, as amended or supplemented from
time to time in accordance with the terms hereof.
“Depositary”
shall mean Xxxxx Fargo Bank N.A. and any successor as Depositary
hereunder.
“Depositary
Shares” shall mean Depositary Shares, each representing ¼ of a share of the
Stock and evidenced by a Receipt.
“Depositary’s
Agent” shall mean an agent appointed by the Depositary pursuant to Section
7.05.
“Depositary’s
Office” shall mean the office of the Depositary to be designated by the
Depositary, at which at any particular time its depositary receipt business
shall be administered.
“DTC”
means The Depository Trust Company, a New York corporation, and its
successors.
“DTC
Legend” means the legend set forth in Exhibit A and identified as
such.
“Global
Receipt” means a Receipt in registered global form without interest coupons.
“Global
Receiptholder” means the holder of each Global Receipt, which will initially be
DTC.
“Person”
means any corporation, limited liability company, partnership, trust,
organization, association, other entity or individual.
“Receipt”
shall mean one of the depositary receipts issued hereunder.
“record
holder” as applied to a Receipt shall mean the person in whose name a Receipt is
registered on the books of the Depositary maintained for such
purpose.
“Registrar”
shall mean any bank or trust company which shall be appointed pursuant to
Section 5.01 to register ownership and transfers of Receipts as herein provided,
which will initially be Xxxxx Fargo Bank, N.A.
“Statement”
shall mean the Statement with Respect to Shares filed with the Department of
State of the Commonwealth of Pennsylvania establishing the Stock as a series
of
preference stock of the Company.
“Stock”
shall mean shares of the Company’s Preference Stock, 6.25% Series without par
value.
“Transfer
Agent” shall mean the transfer agent for the Depositary Shares, which will
initially be Xxxxx Fargo Bank, N.A.
“Uncertificated
Receipt” means a Receipt in individual, uncertificated form represented by
direct registration entries on a direct registration system of the Depositary
and the Registrar.
ARTICLE
II
Form
of Receipts, Deposit of Stock, Execution and Delivery, Transfer, Surrender
and
Redemption of Receipts
SECTION
2.01. Form
and Transfer of Receipts. Receipts
shall be (i) substantially in the form set forth in Exhibit A annexed to this
Deposit Agreement, with appropriate insertions, modifications and omissions,
as
hereinafter provided or (ii) issued in uncertificated form at the option of
the
Company. Pending the preparation of definitive Receipts, the Depositary, upon
the written order of the Company or any holder of the Stock, as the case may
be,
delivered in compliance with 2.02, shall execute and deliver temporary Receipts
which are 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 any office described in the third paragraph of
Section 2.02, without charge to the holder. Upon surrender for cancellation
of
any one or more temporary Receipts, the Depositary shall execute and deliver
in
exchange therefor definitive Receipts representing the same number of Depositary
Shares as represented by the surrendered temporary Receipt or Receipts. Such
exchange shall be made at the Company’s expense and without any charge therefor.
Until so exchanged, the temporary Receipts shall in all respects be entitled
to
the same benefits under this Agreement, and with respect to the Stock, as
definitive Receipts.
Receipts
will be issued as Global Receipts, unless the Company directs the Global
Receiptholder to issue them as Certificated Receipts or Uncertificated Receipts.
Each Global Receipt will be registered in the name of the Global Receiptholder
or its nominee and, so long as DTC is serving as the Global Receiptholder
thereof, will bear the DTC Legend. Each Global Receipt will be delivered to
the
Depositary as custodian for the Global Receiptholder. Each Certificated Receipt
will be registered in the name of the holder thereof or its
nominee.
Certificated
Receipts shall be executed by the Depositary by the manual or facsimile
signature of a duly authorized officer of the Depositary. 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.
Certificated
Receipts may be endorsed with or have incorporated in the text thereof such
legends or recitals or changes not inconsistent with the provisions of this
Deposit Agreement as may be required by the Depositary or required to comply
with any applicable law or any regulation thereunder or with the rules and
regulations of any securities exchange upon which the Stock, the Depositary
Shares or the Receipts may be listed or to conform with any usage with respect
thereto, or to indicate any special limitations or restrictions to which any
particular Receipts are subject.
Title
to
Depositary Shares evidenced by a Receipt which is properly endorsed or for
which
proper instructions for transfer have been received, and properly executed
instrument of transfer have been provided, 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 2.04, 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 Company or any holder
of the Stock may from time to time deposit shares of the Stock by delivery
or
transfer to the Depositary of a certificate or certificates representing the
Stock to be deposited, or any interest in uncertificated Stock, properly
endorsed or accompanied, as applicable, and if required by the Depositary,
by a
duly executed instrument of transfer or endorsement, in form satisfactory to
the
Depositary, together with all such certifications as may be required by the
Depositary in accordance with the provisions of this Deposit Agreement, and
together with a written order of the Company or such holder, as the case may
be,
directing the Depositary to execute and deliver to, or cause such interests
in
Uncertificated Receipts to be credited to, or upon the written order of, the
person or persons stated in such order a Receipt or Receipts for the number
of
Depositary Shares representing such deposited Stock. Deposited Stock shall
be
held by the Depositary at the Depositary’s Office or at such other place or
places as the Depositary shall determine.
Upon
receipt by the Depositary of a certificate or certificates representing the
Stock, or any interest in uncertificated Stock, to be deposited in accordance
with the provisions of this Section 2.02, together with the other documents
required as above specified, and upon recordation of such Stock on the books
of
the registrar for the Stock 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, or shall cause to be credited, 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,
or interest in Uncertificated Receipts, for the number of Depositary Shares
representing the Stock so deposited and registered in such name or names as
may
be requested by such person or persons.
In
the
case of Certificated Receipts, the Depositary shall execute and deliver such
Receipt or Receipts at the Depositary’s Office or such other offices, if any, as
the Depositary may designate. Delivery at other offices shall be at the risk
and
expense of the person requesting such delivery.
SECTION
2.03. Redemption
of Stock. Whenever
the Company shall elect to redeem shares of the Stock in accordance with the
provisions of the Statement, it shall (unless otherwise agreed in writing with
the Depositary) give the Depositary not less than 40 nor more than 70 days’
notice of the date of such proposed redemption of the Stock, which notice shall
be accompanied by a certificate from the Company stating that such redemption
of
the Stock is in accordance with the provisions of the Statement. Such notice,
if
given more than 60 days prior to the redemption date, shall be in addition
to
the notice required to be given for redemption pursuant to the Statement. On
the
date of such redemption, provided that the Company shall then have paid in
full
to the Depositary the redemption price of the Stock held by the Depositary
to be
redeemed, plus any accrued and unpaid dividends thereon, the Depositary shall
redeem the number of Depositary Shares representing such Stock. The Depositary
shall mail notice of such redemption and the proposed simultaneous redemption
of
the number of Depositary Shares representing the Stock to be redeemed,
first-class postage prepaid, not less than 30 and not more than 60 days prior
to
the date fixed for redemption of such Stock and Depositary Shares (the
“Redemption Date”), to the record holders of the Receipts evidencing the
Depositary Shares to be so redeemed, at the addresses of such holders as they
appear on the records of the Depositary; but neither failure to mail any such
notice to one or more such holders nor any defect in any notice to one or more
such holders shall affect the sufficiency of the proceedings for redemption
as
to other holders. Each such notice shall state: (i) the Redemption Date; (ii)
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; and (iv) the place or places where, or other applicable method by which,
Receipts evidencing Depositary Shares are to be surrendered for payment of
the
redemption price. In case less than all the outstanding Depositary Shares are
to
be redeemed, the Depositary Shares to be so redeemed shall be selected by lot
or
pro rata (subject to rounding to avoid fractions of the Depositary Shares)
as
may be determined by the Depositary to be equitable and in compliance with
any
applicable rules and law.
Notice
having been mailed by the Depositary as aforesaid, from and after the Redemption
Date (unless the Company shall have failed to redeem the shares of the Stock
to
be redeemed by it as set forth in the Company’s notice provided for in the
preceding paragraph) the Depositary Shares being redeemed from such proceeds
shall be deemed no longer to be outstanding, all rights of the holders of
Receipts evidencing such Depositary Shares (except the right to receive the
redemption price, including any declared and unpaid dividends thereon) shall,
to
the extent of such Depositary Shares, cease and terminate and, upon surrender
or
transfer of the Receipts evidencing or representing any such Depositary Shares
(properly endorsed or assigned for transfer, if the Depositary shall so require)
in accordance with such notice, such Depositary Shares shall be redeemed by
the
Depositary at a redemption price per Depositary Share equal to ¼ of the
redemption price per share paid in respect of the shares of the Stock, plus
declared and unpaid dividends on such 1/4 of a share to the date fixed for
redemption.
If
less
than all the Depositary Shares evidenced by a Receipt are called for redemption,
the Depositary will deliver or transfer to the holder of such Receipt upon
its
surrender or transfer to the Depositary, together with the redemption payment,
a
new Receipt evidencing or representing the Depositary Shares evidenced by or
represented by such prior Receipt and not called for redemption.
SECTION
2.04. 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
or transfer thereof by the holder in person or by duly authorized attorney,
properly endorsed or accompanied, as applicable, by a properly executed
instrument of transfer. Thereupon the Depositary and the Registrar shall execute
a new Receipt or Receipts, or otherwise cause the applicable interest in a
Receipt or Receipts, evidencing the same aggregate number of Depositary Shares
as those evidenced by the Receipt or Receipts surrendered and deliver or credit
such new Receipt or Receipts to or upon the order of the person entitled
thereto.
Transfers
of a Global Receipt (but not a beneficial interest therein) will be limited
to
transfers thereof in whole, but not in part, to the Global Receiptholder, its
successors or their respective nominees, except (i) as set forth in the next
succeeding paragraph and (ii) transfers of portions thereof in the form of
Certificated Receipts or Uncertificated Receipts may be made upon request of
an
Agent Member (for itself or on behalf of a beneficial owner) by written notice
given to the Depositary and the Registrar by or on behalf of the Global
Receiptholder in accordance with customary procedures of the Global
Receiptholder and in compliance with this Section 2.04.
If
(i)
the Company or the Global Receiptholder notifies the Depositary and Registrar
in
writing that the Global Receiptholder is unwilling or unable to continue as
Global Receiptholder for a Global Receipt and a successor Global Receiptholder
is not appointed by the Company within 90 days of the notice or (ii) the
Company, at its option, notifies the Depositary and Registrar in writing that
it
elects to cause the issuance of Certificated Receipts or Uncertificated
Receipts, subject to any applicable procedures of DTC, the Depositary and
Registrar will promptly exchange each beneficial interest in the Global Receipt
for one or more Receipts in authorized denominations having an equal aggregate
number of Depositary Shares registered in the name of the owner of such
beneficial interest, as identified to the Depositary and Registrar by the Global
Receiptholder, and thereupon the Global Receipt will be deemed
canceled.
Agent
Members will have no rights under this Agreement with respect to any Global
Receipt held on their behalf by the Global Receiptholder, and the Global
Receiptholder may be treated by the Company, the Depositary and Registrar and
any agent of the Company or the Depositary and Registrar as the absolute owner
and holder of such Global Receipt for all purposes whatsoever. Notwithstanding
the foregoing, the Global Receiptholder or its nominee may grant proxies and
otherwise authorize any Person (including any Agent Member and any Person that
holds a beneficial interest in a Global Receipt through an Agent Member) to
take
any action which a holder is entitled to take under this Agreement or the
Receipts, and nothing herein will impair, as between the Global Receiptholder
and its Agent Members, the operation of customary practices governing the
exercise of the rights of a holder of any security.
SECTION
2.05. Split-ups
and Combinations of Receipts; Surrender of Receipts and Withdrawal of
Stock. Upon
surrender or transfer of a Receipt or Receipts at the Depositary’s Office or at
such other offices, or through other means for Uncertificated Receipts, 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,
or credit an interest in Uncertificated Receipts, in the authorized denomination
or denominations requested, evidencing or representing the aggregate number
of
Depositary Shares evidenced or represented by the Receipt or Receipts
surrendered or transferred.
Any
holder of a Receipt or Receipts representing any number of whole shares of
the
Stock, or any interest in an uncertificated Stock, may withdraw the Stock by
surrendering such Receipt or Receipts or transferring interest in Uncertificated
Receipts, at the Depositary’s Office or at such other offices, or through other
means for Uncertificated Receipts, as the Depositary may designate for such
withdrawals. Thereafter, without unreasonable delay, the Depositary shall
deliver to, or cause such interests in Uncertificated Receipts to be credited
to, such holder, or to the person or persons designated by such holder as
hereinafter provided, the number of whole shares of the Stock represented by
the
Receipt or Receipts so surrendered for withdrawal, but holders of such whole
shares of the Stock will not thereafter be entitled to deposit or transfer
such
Stock hereunder or to receive Depositary Shares therefor; provided, however,
that a record holder who withdraws the Stock in order to demand dissenters
rights available under Pennsylvania Business Corporation Law (“PBCL”), will,
subject to certain conditions described below, be entitled to redeposit such
Stock with the Depositary and to receive or be credited with Receipts evidencing
Shares therefor in the event (i) such record holder subsequently withdraws
such
demand pursuant to Section 1930 of the PBCL, (ii) dissenter rights are not
available for such Stock pursuant to Section 1930 of the PBCL or (iii) such
record holder loses or otherwise fails to perfect his rights to dissent. In
order to redeposit the Stock with the Depositary, such a record holder must
deliver the certificates for such Stock or transfer any interest in an
uncertificated Stock, 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 instructions that such Stock
be so
deposited, to the Depositary’s office or to such other offices as the Depositary
may designate by not later than the 30th day after the earlier of (i) the
withdrawal of such demand for dissent by such record holder, (ii) notice by
the
Company that dissenter rights are not available for such Stock or (iii) the
date
on which such record holder loses or otherwise fails to perfect his rights
to
dissent. The Company will notify any record holder of Receipts who so withdraws
the Stock in the event dissenter rights in respect of the Stock are not
available. Any shares so redeposited must be free and clear of any lien,
security interest or pledge and a holder may be required to provide
certification of the foregoing and such other certifications as may be required
by the Depositary in accordance with this Agreement. In addition, if required
by
the Depositary, the Stock presented for redeposit shall also be accompanied
by
(A) an agreement or assignment, or other instrument satisfactory to the
Depositary, which will provide for the prompt transfer to the Depositary of
any
dividend or right to subscribe for additional Stock or to receive other property
which such record holder may thereafter receive upon or in respect of such
redeposited Stock, or in lieu thereof, such agreement of indemnity or other
agreement as shall be satisfactory to the Depositary, and (B) a proxy or proxies
entitling the Depositary to vote such redeposited Stock for any and all purposes
until the Stock is transferred and recorded on the register of stockholders
of
the Company in the name of the Depositary or its nominee. If a Receipt delivered
or transferred by the holder to the Depositary in connection with such
withdrawal shall evidence a number of Depositary Shares in excess of the number
of Depositary Shares representing the number of whole shares of the Stock to
be
so withdrawn, the Depositary shall at the same time, in addition to such number
of whole shares of the Stock to be so withdrawn, deliver, or cause such
interests in Uncertificated Receipts to be credited, to such holder a new
Receipt or interest in Uncertificated Receipt evidencing such excess number
of
Depositary Shares. Delivery of the Stock being withdrawn may be made by the
delivery of such certificates, documents of title and other instruments as
the
Depositary may deem appropriate.
If
the
Stock being withdrawn is to be delivered or credited to a person or persons
other than the record holder of the Receipt or Receipts being surrendered for
withdrawal of the 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 in blank.
In
the
case of Certificated Receipts, delivery of the Stock represented by Receipts
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 Receipt or
Receipts and for the account of the holder thereof, such delivery may be made
at
such other place as may be designated by such holder.
SECTION
2.06. Limitations
on Execution and Delivery, Transfer, Surrender and Exchange of
Receipts. As
a condition precedent to the execution and delivery, registration of transfer,
split-up, combination, surrender or exchange of any Receipt, the Depositary,
any
of the Depositary’s Agents or the Company may require (a) payment to it of a sum
sufficient for the payment (or, in the event that the Depositary or the Company
shall have made such payment, the reimbursement to it) of any charges or
expenses payable by the holder of a Receipt pursuant to Section 5.07, (b) the
production of evidence satisfactory to it as to the identity and genuineness
of
any signature and (c) 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 the Stock may be refused, the delivery of Receipts against the Stock
may be suspended, the registration of transfer of Receipts may be refused and
the registration of transfer, surrender or exchange of outstanding Receipts
may
be suspended (i) during any period when the register of stockholders of the
Company is closed or (ii) if any such action is deemed necessary or advisable
by
the Depositary, any 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
2.07. Lost
Receipts, etc. In
the
case of Certificated Receipts, if 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, of the authenticity thereof and of his or her ownership thereof
and (ii) the furnishing of the Depositary with reasonable indemnification
satisfactory to it.
SECTION
2.08. Cancellation
and Destruction of Surrendered Receipts. All
Receipts surrendered to the Depositary or any Depositary’s Agent shall be
canceled by the Depositary. Except as prohibited by applicable law or
regulation, the Depositary is authorized to destroy all Receipts so
canceled.
ARTICLE
III
Certain
Obligations of Holders of Receipts and the Company
SECTION
3.01. Filing
Proofs, Certificates and Other Information. Any
holder of a Receipt may be required from time to time to file such proof of
residence, or other matters or other information, to execute such certificates
and to make such representations and warranties as the Depositary or the Company
may reasonably deem necessary or proper. The Depositary or the Company may
withhold the delivery, or delay the registration of transfer, redemption or
exchange, of any Receipt or the withdrawal of the Stock represented by the
Depositary Shares evidenced by any Receipt or the distribution of any dividend
or other distribution or the sale of any 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 be obligated to make payments to the Depositary of certain
charges and expenses, as provided in Section 5.07. Registration of transfer
of
any Receipt or any withdrawal of the Stock represented by the Depositary Shares
evidenced by such Receipt may be refused until any such payment due is made,
and
any dividends, interest payments or other distributions may be withheld or
any
part of or all the Stock or other property represented by the Depositary Shares
evidenced by such Receipt and not theretofore sold may be sold for the account
of the holder thereof (after attempting by reasonable means to notify such
holder prior to such sale), and such dividends, interest payments or other
distributions or the proceeds of any such sale may be applied to any payment
of
such charges or expenses, the holder of such Receipt remaining liable for any
deficiency.
ARTICLE
IV
The
Deposited Securities; Notices
SECTION
4.01. Cash
Distributions. Whenever
the Depositary shall receive any cash dividend or other cash distribution on
the
Stock, the Depositary shall, subject to Sections 3.01 and 3.02, promptly
distribute to record holders of Receipts on the applicable record date fixed
pursuant to Section 4.04 such amounts of such dividend or distribution as are,
as nearly as practicable, in proportion to the respective numbers of Depositary
Shares evidenced by the Receipts held by such holders; provided, however, that
in case the Company or the Depositary shall be required to withhold and shall
withhold from any cash dividend or other cash distribution in respect of the
Stock an amount on account of taxes, the amount made available for distribution
or distributed in respect of Depositary Shares shall be reduced accordingly.
The
Depositary shall distribute or make available for distribution, as the case
may
be, only such amount, however, as can be distributed without attributing to
any
holder of Depositary Shares a fraction of one cent, and any balance not so
distributable shall be held by the Depositary (without liability for interest
thereon) and shall be added to and be treated as part of the next sum received
by the Depositary for distribution to record holders of Receipts then
outstanding.
SECTION
4.02. Distributions
Other than Cash, Rights, Preferences or Privileges. Whenever
the Depositary shall receive any distribution other than cash and other than
any
rights, preferences or privileges described in Section 4.03, upon the Stock,
the
Depositary shall, subject to Sections 3.01 and 3.02, promptly distribute to
record holders of Receipts on the applicable 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 record holders, in any manner
that
the Depositary may deem equitable and practicable for accomplishing such
distribution. If in the opinion of the Depositary such distribution cannot
be
made proportionately among such record holders, or if for any other reason
(including any requirement that the Company or the Depositary withhold an amount
on account of taxes) the Depositary deems, after consultation with the Company,
such distribution not to be feasible, the Depositary may, with the approval
of
the Company, adopt such method as it deems equitable and practicable for the
purpose of effecting such distribution, including the sale (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 be, subject to Sections 3.01 and 3.02, distributed or made
available for distribution, as the case may be, by the Depositary to record
holders of Receipts as provided by Section 4.01 in the case of a distribution
received in cash.
The
Depositary shall not make any distribution of securities received in respect
of
the Stock unless, if requested by the Depositary, the Company shall have
provided an opinion of counsel stating that such securities have been registered
under the Securities Act of 1933 or do not need to be so
registered.
SECTION
4.03. Subscription
Rights, Preferences or Privileges. If
the Company shall at any time offer or cause to be offered to the persons in
whose names the 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 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 Company; provided,
however, that in case either (i) the Depositary determines that it is not lawful
or (after consultation with the Company) not feasible to make such rights,
preferences or privileges available to holders of Receipts by the issue of
warrants or otherwise, or (ii) with respect to any portion of the rights,
preferences or privileges of a holder of Receipts, the Depositary is instructed
that such holder does 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 and 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 be, subject to Sections 3.01 and 3.02,
distributed by the Depositary to the record holders of Receipts entitled thereto
as provided by Section 4.01 in the case of a distribution received in cash.
The
Depositary shall not make any distribution of any such rights, preferences
or
privileges unless, if requested by the Depositary, the Company shall have
provided an opinion of counsel stating that such rights, preferences or
privileges have been registered under the Securities Act of 1933 or do not
need
to 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 Receipts to be offered or sold the securities to which such rights,
preferences or privileges relate, the Company agrees with the Depositary that
it
will file promptly a registration statement pursuant to such act with respect
to
such rights, preferences or privileges and securities and use its commercially
reasonable efforts to cause such registration statement to become effective
sufficiently in advance of the expiration of such rights, preferences or
privileges to enable such holders to exercise such rights, preferences or
privileges. In no event shall the Depositary make available to the holders
of
Receipts any right, preference or privilege to subscribe for or to purchase
any
securities unless and until such 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 the Securities Act of
1933,
as amended.
If
any
other action under the laws of any jurisdiction or any governmental or
administrative authorization, consent or permit is required in order for such
rights, preferences or privileges to be made available to holders of Receipts,
the Company agrees with the Depositary that the Company will use its
commercially 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
4.04. Notice
of Dividends, etc.; Fixing of Record Date for Holders of
Receipts. Whenever
any cash dividend or other cash distribution shall become payable or any
distribution 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 record holders
of
the Stock are entitled to vote or of which holders of the Stock are entitled
to
notice, or whenever the Depositary and the Company shall decide it is
appropriate, the Depositary shall in each such instance fix a record date (which
shall be the same date as the record date fixed by the Company with respect
to
the Stock) for the determination of the record holders of Receipts who shall
be
entitled to receive such dividend, distribution, rights, preferences or
privileges or the net proceeds of the sale thereof, or to give instructions
for
the exercise of voting rights at any such meeting, or who shall be entitled
to
notice of such meeting or for any other appropriate reasons.
SECTION
4.05. Voting
Rights. Upon
receipt of notice of any meeting at which the record holders of the Stock are
entitled to vote, the Depositary shall promptly mail to the record holders
of
Receipts a notice which shall contain (i) such information as is contained
in
such notice of meeting and (ii) a statement that the record holders may, subject
to any applicable restrictions, instruct the Depositary as to the exercise
of
the voting rights pertaining to the amount of the Stock represented by their
respective Depositary Shares (including an express indication that instructions
may be given to the Depositary to give a discretionary proxy to a person
designated by the Company) and a brief statement as to the manner in which
such
instructions may be given. Upon the written request of the record 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 the Stock
represented by the Depositary Shares evidenced by all Receipts as to which
any
particular voting instructions are received. The Company hereby agrees to take
all action using commercially reasonable efforts 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 record
holder of a Receipt, the Depositary will abstain from voting (but, at its
discretion, not from appearing at any meeting with respect to such Stock unless
directed to the contrary by the holders of all the Receipts) to the extent
of
the Stock 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, stated value or liquidation preference, split-up, combination
or any other reclassification of the Stock, or upon any recapitalization,
reorganization, merger, amalgamation or consolidation affecting the Company
or
to which it is a party, the Depositary may in its discretion with the approval
of, and shall upon the instructions of, the Company, and (in either case) in
such manner as the Depositary may deem equitable and in compliance with any
applicable rules and law, (i) make such adjustments as are certified by the
Company in (x) the fraction of an interest represented by one Depositary Share
in shares of the Stock and (y) the ratio of the redemption price per Depositary
Share to the redemption price of shares of the Stock, in each case as may be
necessary to fully reflect the effects of such change in par, or stated value,
liquidation preference, split-up, combination or other reclassification of
the
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 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, or transfer, additional
Receipts or interests in Uncertificated Receipts, or may call for the surrender
of all outstanding Receipts to be exchanged for new Receipts, or interests
in
Uncertificated Receipts, specifically describing such new deposited securities.
Anything to the contrary herein notwithstanding, holders of Receipts shall
have
the right from and after the effective date of any such change in par, stated
value or liquidation preference, split-up, combination or other reclassification
of the Stock or any such recapitalization, reorganization, merger, amalgamation
or consolidation to surrender such Receipts, or interests in Uncertificated
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. Inspection
of Reports. The
Depositary shall make available for inspection by record holders of Receipts
at
the Depositary’s Office, and at such other places as it may from time to time
deem advisable, any reports and communications received from the Company which
are received by the Depositary as the holder of the Stock.
SECTION
4.08. Lists
of Record Holders of Receipts. Promptly
upon request from time to time by the Company, the Depositary shall furnish
to
it a list, as of a recent date, of the names, addresses and holdings of
Depositary Shares of all persons in whose names Receipts are registered on
the
books of the Depositary.
ARTICLE
V
The
Depositary, the Depositary’s Agents, the Registrar and the
Company
SECTION
5.01. Maintenance
of Offices, Agencies and Transfer Books by the Depositary;
Registrar. The
Depositary shall maintain at the Depositary’s Office facilities for the
execution, 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 at all reasonable times shall
be open for inspection by the record holders of Receipts; provided, that any
such holder requesting to exercise such right shall certify to the Depositary
that such inspection shall be for a proper purpose reasonably related to such
person’s interest as an owner of Depositary Shares evidenced by the
Receipts.
The
Depositary may close such books, at any time or from time to time, when deemed
expedient by it in connection with the performance of its duties
hereunder.
The
Depositary may, with the approval of the Company, appoint a Registrar for
registration of the Receipts or the Depositary Shares evidenced thereby. If
the
Receipts or the Depositary Shares evidenced thereby or the Stock represented
by
such Depositary Shares shall be listed or quoted on a securities market
exchange, the Depositary will appoint a Registrar (acceptable to the Company)
for registration of such Receipts or Depositary Shares in accordance with any
requirements of such securities market or securities exchange. Such Registrar
(which may be the Depositary if so permitted by the requirements of such
securities market or 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 securities markets or securities 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
securities market or exchange regulation.
SECTION
5.02. Prevention
of or Delay in Performance by the Depositary, the Depositary’s Agents, the
Registrar, the Transfer Agent or the Company. None
of the Depositary, any Depositary’s Agent, any Registrar, any Transfer Agent or
the Company shall incur any liability to any holder of any Receipt if by reason
of any provision of any present or future law, or regulation thereunder, of
the
United States of America or of any other governmental authority or, in the
case
of the Depositary, the Depositary’s Agent or the Registrar, by reason of any
provision, present or future, of the Company’s Articles of Incorporation
(including the Statement) or by reason of any act of God or war or other
circumstance beyond the control of the relevant party, the Depositary, the
Depositary’s Agent, the Registrar, the Transfer Agent or the Company shall be
prevented 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
shall be done or performed; nor shall the Depositary, any Depositary’s Agent,
any Registrar, any Transfer Agent or the Company incur any 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 shall or may be done or performed, or (ii) by reason
of any exercise of, or failure to exercise, any discretion provided for in
this
Deposit Agreement except, in case of any such exercise or failure to exercise
discretion not caused as aforesaid, if caused by the gross negligence, bad
faith
or willful misconduct of the party charged with such exercise or failure to
exercise.
SECTION
5.03. Obligations
of the Depositary, the Depositary’s Agents, the Registrar and the Transfer Agent
. None
of the Depositary, any Depositary’s Agent, any Registrar or any Transfer Agent
assumes any obligation or shall be subject to any liability under this Deposit
Agreement to holders of Receipts other than for its negligence, bad faith or
willful misconduct; provided, however, that the Depositary shall not be liable
for any indirect, special, punitive or consequential damages.
None
of
the Depositary, any Depositary’s Agent, any Registrar or any Transfer Agent
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.
None
of
the Depositary, any Depositary’s Agent, any Registrar or any Transfer Agent
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 the 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, any Registrar and any Transfer Agent may
each rely and shall each be protected in acting upon any written notice,
request, direction or other document believed by it to be genuine and to have
been signed or presented by the proper party or parties.
The
Depositary and any Depositary’s Agent shall not be responsible for any failure
to carry out any instruction to vote any of the shares of the 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 and Transfer
Agent shall be required to undertake, to perform such duties and only such
duties as are specifically set forth in this Agreement, and no implied covenants
or obligations shall be read into this Agreement against the Depositary, any
Registrar or any Transfer Agent. The Depositary, the Depositary’s Agents, any
Registrar and any Transfer Agent may own and deal in any class of securities
of
the Company and its affiliates and in Receipts. The Depositary may also act
as
transfer agent or registrar of any of the securities of the Company and its
affiliates. The Depositary undertakes not to (i) issue any Receipt other than
to
evidence the Depositary Shares then on deposit with it and (ii) sell (except
as
provided herein), pledge or lend Depositary Shares held by it as
Depositary.
SECTION
5.04. Resignation
and Removal of the Depositary; Appointment of Successor
Depositary. The
Depositary may at any time resign as Depositary hereunder by notice of its
election 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
at any time the Depositary acting hereunder shall resign or be removed, the
Company shall, within 60 days after the delivery of the notice of resignation
or
removal, as the case may be, appoint a successor Depositary, which shall be
a
bank or trust company having its principal office in the United States of
America and having a combined capital and surplus of at least $50,000,000.
If no
successor Depositary shall have been so appointed and have accepted appointment
within 60 days after delivery of such notice, the resigning or removed
Depositary may petition any court of competent jurisdiction for the appointment
of a successor Depositary. Every successor Depositary shall execute and deliver
to its predecessor and to the Company an instrument in writing accepting its
appointment hereunder, and thereupon such successor Depositary, without any
further act or deed, shall become fully vested with all the rights, powers,
duties and obligations of its predecessor and for all purposes shall be the
Depositary under this Deposit Agreement, and such predecessor, upon payment
of
all sums due it and 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 to such successor, and shall deliver to such
successor a list of the record holders of all outstanding Receipts. Any
successor Depositary shall promptly mail notice of its appointment to the record
holders of Receipts.
Any
corporation into or with which the Depositary may be merged, consolidated or
converted shall be the successor of such Depositary without the execution or
filing of any document or any further act, and notice thereof shall not be
required hereunder.
SECTION
5.05. Corporate
Notices and Reports. The
Company agrees that it will transmit to the record holders of Receipts, in
each
case at the addresses furnished to it pursuant to Section 4.08, all notices
and
reports (including without limitation financial statements) required by law,
by
the rules of any national securities exchange upon which the Stock, the
Depositary Shares or the Receipts are listed or by the Company’s Articles of
Incorporation (including the Statement) to be furnished by the Company to
holders of Receipts. Such transmission will be at the Company’s
expense.
SECTION
5.06. Indemnification
by the Company. The
Company shall indemnify the Depositary, any Depositary’s Agent, any Registrar
and any Transfer Agent 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 (a) acts performed or omitted in connection with this
Agreement and the Receipts by (i) the Depositary, any Registrar, any Transfer
Agent 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 (ii) the
Company or any of its agents, or (b) the offer, sale or registration of the
Receipts or the Stock pursuant to the provisions hereof. The obligations of
the
Company set forth in this Section 5.06 shall survive the termination of this
Agreement and any succession of any Depositary, Registrar, Transfer Agent or
Depositary’s Agent.
SECTION
5.07. Charges
and Expenses. The
Company shall pay all transfer and other taxes and governmental charges arising
solely from the existence of the depositary arrangements contemplated by this
Deposit Agreement. The Company shall pay all fees, charges and expenses of
the
Depositary in connection with the initial deposit of the Stock and the initial
issuance of the Depositary Shares and any redemption of the Stock at the option
of the Company. All other transfer and other taxes and governmental charges
and
fees for the withdrawal of the Stock upon surrender of Receipts shall be at
the
expense of holders of Depositary Shares. If, at the request of a holder of
Receipts, the Depositary incurs charges or expenses for which it is not
otherwise liable hereunder, such holder will be liable for such charges and
expenses. All other charges and expenses of the Depositary and any Depositary’s
Agent hereunder and of any Registrar and Transfer Agent (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 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 at such times as the Company and the
Depositary may agree.
ARTICLE
VI
Amendment
and Termination
SECTION
6.01. Amendment. The
form of the Receipts and any provisions of this Deposit Agreement may at any
time and from time to time be amended by agreement between the Company and
the
Depositary in any respect which they may deem necessary or desirable; provided,
however, that no such amendment (other than any change in the fees of any
Depositary, Registrar or Transfer Agent, which shall go into effect not sooner
than three months after notice thereof to the record holders of the Receipts
or
any change as may be required by DTC) which shall materially and adversely
alter
the rights of the holders of Receipts shall be effective unless such amendment
shall have been approved by the record 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 shall be deemed, by continuing
to
hold such Receipt, to consent and agree to such amendment and to be bound by
the
Deposit Agreement as amended thereby.
SECTION
6.02. Termination. This
Agreement may be terminated by the Company or the Depositary only after (i)
all
outstanding Depositary Shares shall have been redeemed pursuant to Section
2.03
or (ii) there shall have been made a final 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 Depositary
Shares pursuant to Section 4.01 or 4.02, 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 Agent, any Registrar and any Transfer Agent under
Sections 5.06 and 5.07.
ARTICLE
VII
Miscellaneous
SECTION
7.01. Counterparts. This
Deposit Agreement may be executed in any number of counterparts, and by each
of
the parties hereto on separate counterparts, each of which 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
7.02. Exclusive
Benefit of Parties. This
Deposit Agreement is for the exclusive benefit of the parties hereto, including
holders of Receipts from time to time and their respective successors hereunder,
and shall not be deemed to give any legal or equitable right, remedy or claim
to
any other person whatsoever.
SECTION
7.03. Invalidity
of Provisions.
In case any one or more of the provisions contained in this Deposit Agreement
or
in the Receipts should be or become invalid, illegal or unenforceable in any
respect, the validity, legality and enforceability of the remaining provisions
contained herein or therein shall in no way be affected, prejudiced or disturbed
thereby.
SECTION
7.04. Notices. Any
and all notices to be given to the Company hereunder or under the Receipts
shall
be in writing and shall be deemed to have been duly given if personally
delivered or sent by mail, facsimile or telegram or telex confirmed by letter,
addressed to the Company at Xxx Xxxxx Xxxxx Xxxxxx Xxxxxxxxx, XX 00000-0000,
facsimile: (000) 000-0000, to the attention of the Treasurer, or at any other
address of which the Company shall have notified the Depositary in
writing.
Any
and
all notices to be given to the Depositary hereunder or under the Receipts shall
be in writing and shall be deemed to have been duly given if personally
delivered or sent by mail or by telegram or telex confirmed by letter, addressed
to the Depositary at the Depositary’s Office, at 000 Xxxxx Xxxxxxx Xxxxxxxx,
Xxxxx Xx. Xxxx, XX 00000, facsimile: (000) 000-0000, to the attention of the
PPL
Account Manager, or at any other address of which the Depositary shall have
notified the Company in writing.
Any
communication contemplated herein shall be deemed to have been made, given,
furnished and filed if personally delivered, on the date of delivery, if
transmitted by facsimile transmission or other direct written electronic means,
on the date of transmission, and if transmitted by registered or certified
mail
or reputable overnight courier, on the date of receipt.
Delivery
of a notice sent by mail or by telegram or telex shall be deemed to be effected
at the time when a duly addressed letter containing the same (or a confirmation
thereof in the case of a telegram or telex message) is deposited, postage
prepaid, in a post office letter box. Delivery
of a notice sent by facsimile shall be deemed to be effected at the time that
the party transmitting such facsimile receives confirmation of a successful
transmission. The
Depositary or the Company may, however, act upon any telegram or telex message
received by it from the other or from any holder of a Receipt, notwithstanding
that such telegram or telex message shall not subsequently be confirmed by
letter or as aforesaid.
SECTION
7.05. Depositary’s
Agents.
Except as otherwise set forth herein, the Depositary may from time to time
appoint Depositary’s Agents to act in any respect for the Depositary for the
purposes of this Deposit Agreement and may at any time appoint additional
Depositary’s Agents and vary or terminate the appointment of such Depositary’s
Agents. The Depositary will notify the Company of any such action.
SECTION
7.06. Holders
of Receipts Are Parties. The
holders of Receipts from time to time shall be parties to this Deposit Agreement
and shall be bound by all of the terms and conditions hereof and of the Receipts
by acceptance of delivery, or transfer, thereof.
SECTION
7.07. GOVERNING
LAW. THIS
DEPOSIT AGREEMENT AND THE RECEIPTS SHALL BE 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 shall be filed with the Depositary and the
Depositary’s Agents and shall be open to inspection during business hours at the
Depositary’s office and the respective offices of the Depositary’s Agents, if
any, by any holder of a Receipt.
SECTION
7.09. Headings. The
headings of articles and sections in this Deposit Agreement and in the form
of
the Receipt set forth in Exhibit A hereto have been inserted for convenience
only and are not to be regarded as a part of this Deposit Agreement or the
Receipts or to have any bearing upon the meaning or interpretation of any
provision contained herein or in the Receipts.
IN
WITNESS WHEREOF, the Company and the Depositary have duly executed this
Agreement as of the day and year first above set forth, and all holders of
Receipts shall become parties hereto by and upon acceptance by them of delivery
of Receipts issued in accordance with the terms hereof.
PPL
ELECTRIC UTILITIES CORPORATION
By:
______________________________________
Name:
Title:
XXXXX
FARGO BANK, N.A., as Depositary
By:
______________________________________
Name:
Title:
XXXXX
FARGO BANK, N.A., as Depositary on behalf of the Holders from time to time
of
the Receipts
By:
______________________________________
Name:
Title:
EXHIBIT
A
DEPOSITARY
RECEIPT
FOR
DEPOSITARY
SHARES
EACH
REPRESENTING AN INTEREST
(SUBJECT
TO ADJUSTMENT) IN A SHARE OF
Preference
Stock, without par value
OF
PPL
ELECTRIC UTILITIES CORPORATION
(Incorporated
under the laws of the State of Pennsylvania)
_______________________
CUSIP
NO.
No. | EACH DEPOSITARY SHARE REPRESENTS AN INTEREST (SUBJECT TO ADJUSTMENT) IN A SHARE OF PREFERENCE STOCK, WITHOUT PAR VALUE, OF PPL ELECTRIC UTILITIES CORPORATION. |
[INSERT
THIS DTC LEGEND IF GLOBAL RECEIPT AND DTC WILL BE GLOBAL
RECEIPTHOLDER]
THIS
DEPOSITARY RECEIPT IS IN GLOBAL FORM WITHIN THE MEANING OF THE DEPOSIT AGREEMENT
HEREINAFTER REFERRED TO AND IS REGISTERED IN THE NAME OF THE DEPOSITORY TRUST
COMPANY (“DTC”) OR A NOMINEE THEREOF. UNLESS AND UNTIL IT IS EXCHANGED IN WHOLE
OR IN PART FOR DEPOSITARY RECEIPTS IN CERTIFICATED FORM, THIS DEPOSITARY RECEIPT
MAY NOT BE TRANSFERRED EXCEPT AS A WHOLE BY DTC TO A NOMINEE OF DTC OR BY A
NOMINEE OF DTC TO DTC OR ANOTHER NOMINEE OF DTC OR BY ANY SUCH NOMINEE TO A
SUCCESSOR OF DTC OR A NOMINEE OF SUCH SUCCESSOR DEPOSITORY. UNLESS THIS SECURITY
IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF DTC TO THE COMPANY OR THE
DEPOSITARY, AND ANY DEPOSITARY RECEIPT ISSUED IS REGISTERED IN THE NAME OF
CEDE
& CO. OR IN SUCH OTHER NAME AS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF
DTC (AND ANY PAYMENT IS MADE TO CEDE & CO. OR TO SUCH OTHER ENTITY AS IS
REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE OR
OTHER
USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH
AS
THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST
HEREIN.
1. Xxxxx
Fargo Bank, N.A. organized under the laws of the United States of America,
as
Depositary (the “Depositary”), hereby certifies
that is
the registered owner of
Depositary Shares (“Depositary Shares”) [, or such other amount as may be
specified on the attached Schedule of Exchanges of Receipts], each Depositary
Share representing a (as such fraction may from time to time be adjusted as
provided in the Deposit Agreement, as defined below) interest in a share of
Preference Stock, without par value (the “Stock”), of PPL Electric Utilities
Corporation, a corporation duly organized and existing under the laws of the
Commonwealth of Pennsylvania (the “Company”), deposited with, and held by, the
Depositary. The rights, preferences and limitations of the Stock are set forth
in the Statement with Respect to Shares dated April 6, 2006 (the “Statement”),
adopted by resolution of the Company, copies of which are on file at the
Depositary’s Office
at
..
2. THE
DEPOSIT AGREEMENT. Depositary Receipts (the “Receipts”), of which this Receipt
is one, are made available upon the terms and conditions set forth in the
Deposit Agreement, dated as of April 6, 2006 (the “Deposit Agreement”), among
the Company, the Depositary and all holders from time to time of Receipts.
The
Deposit Agreement (copies of which are on file at the Depositary’s Office) sets
forth the rights of holders of Receipts and the rights and duties of the
Depositary in respect of the Stock deposited, and any and all money and other
property from time to time held thereunder. The statements made in this Receipt
are summaries of certain provisions of the Deposit Agreement and are subject
to
the detailed provisions thereof, to which reference is hereby made. The holder
of this Receipt from time to time shall be deemed to be a party to the Deposit
Agreement and shall be bound by, and entitled to all of the rights and benefits
under, all the terms and conditions hereof and of the Deposit Agreement by
acceptance of delivery of this Receipt. Unless otherwise expressly herein
provided, all defined terms shall have the meanings ascribed thereto in the
Deposit Agreement.
3. REDEMPTION.
Wherever the Company shall be permitted and shall elect, under the Statement,
to
redeem shares of the Stock, it shall give the Depositary not less than 40 nor
more then 70 days’ notice thereof. The Depositary shall mail notice of such
redemption and the simultaneous redemption of the corresponding Depositary
Shares not less than 30 and not more than 60 days prior to the date fixed for
redemption to the holders of record of Receipts representing the number of
Depositary Shares to be redeemed. Each such notice shall state: (i) the date
of
such proposed redemption; (ii) the number of Depositary Shares to be redeemed;
(iii) the redemption price; and (iv) the place or places where Receipts
evidencing Depositary Shares are to be surrendered for payment of the redemption
price. In case less than all the outstanding Depositary Shares are to be
redeemed, the Depositary Shares to be so redeemed shall be selected by lot
or
pro rata as may be determined by the Depositary to be equitable. From and after
the date set for redemption, such Depositary Shares shall no longer be deemed
outstanding and all rights of the holders of Receipts representing such
Depositary Shares (except the right to receive the redemption price) shall
cease
and terminate. From and after the redemption date, upon surrender in accordance
with the redemption notice of the Receipts representing 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 the
redemption price per share equal to ¼ of the redemption price per share paid in
respect of the shares of the Stock, plus declared and unpaid dividends on such
¼
a share to the date fixed for redemption.
4. TRANSFERS,
SPLIT-UPS, COMBINATIONS. This Receipt is transferable on the books of the
Depositary upon surrender of this Receipt to the Depositary, properly endorsed
or accompanied by a properly executed instrument of transfer, and upon such
transfer the Depositary shall execute a new Receipt to or upon the order of
the
person entitled thereto, as provided in the Deposit Agreement. This Receipt
may
be split into other Receipts or combined with other Receipts into one Receipt,
representing the same aggregate number of Depositary Shares as the Receipt
or
Receipts surrendered.
5. SUSPENSION
OF DELIVERY, TRANSFER, ETC. The transfer or surrender of this Receipt may be
suspended during any period when the register of stockholders of the Company
is
closed or if any such action is deemed necessary or advisable by the Depositary,
any agent of the Depositary, or the Company at any time or from time to time
because of any requirement of rule of law or of any government or governmental
body or commission, or under any provision of the Deposit
Agreement.
6. PAYMENT
OF TAXES OR OTHER GOVERNMENTAL CHARGES. If any tax or other government charge
shall become payable by or on behalf of the Depositary with respect to this
Receipt, such tax (including transfer taxes, if any) or governmental charge
shall be payable by the holder hereof. Transfer of this Receipt may be refused
until such payment 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 this Receipt and not theretofore sold may be sold for the account
of the holder thereof (after attempting by reasonable means to notify such
holder prior to such sale), and such dividends, interest payments or other
distributions or the proceeds of any such sale may be applied to any payment
of
such tax or charge, the holder of this Receipt remaining liable for any
deficiency.
7. WARRANTY
BY COMPANY. The Company has warranted that the Stock, when issued, will be
validly issued, fully paid and nonassessable.
8. AMENDMENT.
The form of the Receipts and any provisions of the Deposit Agreement may at
any
time and from time to time be amended by agreement between the Company and
the
Depositary in any respect 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 go into effect not sooner
than three months after notice thereof to the record holders of the Receipts
or
any change as may be required by DTC) which shall materially and adversely
alter
the rights of the holders of Receipts shall be effective unless such amendment
shall have been approved by the record holders of at least a majority of the
Depositary Shares then outstanding. A holder of a Receipt at the time any such
amendment so becomes effective shall be deemed, by continuing to hold such
Receipt, to consent and agree to such amendment and to be bound by the Deposit
Agreement as amended thereby.
9. CHARGES
OF DEPOSITARY. The Company will pay all transfer and other taxes and
governmental charges arising solely from the existence of the depositary
arrangements, and all charges of the Depositary in connection with the initial
deposit of the Stock and the initial issuance of the Depositary Shares and
redemption of the Stock at the option of the Company. All other transfer and
other taxes and other governmental charges shall be at the expense of holders
of
Depositary Shares. All other charges and expenses of the Depositary and any
agent of the Depositary will be paid in consultation and agreement between
the
Depositary and the Company.
10. TITLE
OF
RECEIPTS. This Receipt (and the Depositary Shares evidenced hereby), when
properly endorsed or proper instructions for transfer have been received, and
properly executed instrument of transfer have been provided, is 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, the Depositary may, notwithstanding any notice to
the
contrary, treat the record holder hereof at such time as the absolute owner
hereof for the purpose of determining the person entitled to distributions
of
dividends or other distributions or to any notice provided for in the Deposit
Agreement, and for all other purposes.
11. DIVIDENDS
AND DISTRIBUTIONS. Whenever the Depositary receives any cash dividend or other
cash distribution on the Stock, the Depositary will, subject to the provisions
of the Deposit Agreement, make such distribution to the Receipt holders as
nearly as practicable in proportion to the number of Depositary Shares held
by
them; provided, however, that the amount distributed will be reduced by any
amounts required to be withheld by the Company or the Depositary on account
of
taxes. Other distributions received on the Stock may be distributed to holders
of Receipts as provided in the Deposit Agreement.
12. FIXING
OF
RECORD DATE. 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 the Stock are entitled to vote or of which holders of the Stock
are
entitled to notice, the Depositary shall in each instance fix a record date
(which shall be the record date fixed by the Company with respect to the Stock),
for the determination of the holders of Receipts who shall be entitled to
receive such dividend, distribution, rights, preferences or privileges or the
net proceeds of the sale thereof, or to give instructions for the exercise
of
voting rights at any such meeting, or who shall be entitled to notice of such
meeting.
13. VOTING
RIGHTS. Upon receipt of notice of any meeting at which holders of the Stock
are
entitled to vote, the Depositary shall promptly mail to the record holders
of
Receipts a notice which shall contain (i) such information as is contained
in
such notice of meeting and (ii) a statement informing holders of Receipts that
they may instruct the Depositary as to the exercise of the voting rights
pertaining to the amount of the Stock represented by their respective Depositary
Shares and a brief statement as to the manner in which such instructions may
be
given. Upon the written request of a holder of a Receipt on such record date,
the Depositary shall endeavor insofar as practicable to vote or cause to be
voted the amount of the Stock represented by such Receipt in accordance with
the
instructions set forth in such request. In the absence of specific instructions
from the holder of a Receipt, the Depositary will abstain from voting (but,
at
its discretion, not from appearing at any meeting with respect to such Stock
unless directed to the contrary by the holders of Receipts) to the extent of
the
Stock represented by the Depositary Shares evidenced by such
Receipt.
14. CHANGES
AFFECTING DEPOSITED SECURITIES. Upon any change in par, stated value or
liquidation preference, 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, or upon the
sale
of all or substantially all the Company’s assets, the Depositary may in its
discretion with the approval of the Company, and in such manner as the
Depositary may deem equitable, (i) make such adjustments in (x) the fraction
of
an interest represented by one Depositary Share in shares of the Stock and
(y)
the ratio of the redemption price of shares of the Stock, in each case as may
be
necessary to fully reflect the effect of such change and (ii) treat any
securities which shall be 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 Company, execute
and deliver additional Receipts or cause to be credited interest in
Uncertificated Receipts, or may call for the surrender of outstanding Receipts
to be exchanged for new Receipts specifically describing such new deposited
securities.
15. LIABILITY
AND OBLIGATIONS OF THE DEPOSITARY, THE DEPOSITARY’S AGENTS. None of the
Depositary, any Depositary’s Agent, any Registrar or any Transfer Agent assumes
any obligation or shall be subject to any liability under the Deposit Agreement
to holders of Receipts other than for its negligence, bad faith or willful
misconduct; provided, however, that the Depositary shall not be liable for
any
indirect, special, punitive or consequential damages. None of the Depositary,
any Depositary’s Agent, any Registrar, any Transfer Agent 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 Company’s Articles of Incorporation (including the Statement) or
by reason of any act of God or war or other circumstance beyond the control
of
the relevant party, the Depositary, the Depositary’s Agent, the Registrar, the
Transfer Agent shall be prevented 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 shall be done or performed; nor shall the Depositary,
any Depositary’s Agent, any Registrar, any Transfer Agent incur any 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 shall or may be done or performed, or (ii) by reason
of any exercise of, or failure to exercise, any discretion provided for in
the
Deposit Agreement except, in case of any such exercise or failure to exercise
discretion not caused as aforesaid, if caused by the gross negligence, bad
faith
or willful misconduct of the party charged with such exercise or failure to
exercise. None of the Depositary, any Depositary’s Agent, any Registrar or any
Transfer Agent 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 the 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, any Registrar and any
Transfer Agent 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.
None of the Depositary, any Depositary’s Agent, any Registrar or any Transfer
Agent 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.
16. RESIGNATION
AND REMOVAL OF DEPOSITARY. The Depositary may at any time (a) resign by written
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, or (b) be removed by the Company effective upon the
appointment of a successor Depositary and its acceptance of such
appointment.
17. TERMINATION
OF DEPOSIT AGREEMENT. The Deposit Agreement may be terminated by the Company
or
the Depositary only upon or after the occurrence of any of the following events:
(i) all outstanding Depositary Shares shall have been redeemed 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. Upon the
termination of the Deposit Agreement, the Company shall be discharged from
all
obligations thereunder except for its obligations to the Depositary with respect
to indemnification, charges and expenses.
18. GOVERNING
LAW. This Receipt and the Deposit Agreement shall be governed by, and construed
in accordance with, the laws of the State of New York.
This
Receipt shall not be entitled to any benefits under the Deposit Agreement or
be
valid or obligatory for any purpose unless this Receipt shall have been executed
manually or facsimile by a duly authorized signatory of the Depositary or a
Registrar for the Receipts.
The
Company will furnish without charge to each stockholder who so requests the
powers, designations, preferences and rights of each class of stock or series
thereof and the qualifications, limitations or restrictions of such preferences
and/or rights.
Dated:
|
Xxxxx
Fargo Bank, N.A.,
as
Depositary and Registrar
|
By: ____________________________________________________ |
Authorized Officer |
[Insert
signature block for Registrar for the Receipts if other than the
Depositary]
|
SCHEDULE
OF EXCHANGES OF RECEIPTS1
The
following exchanges of a part of this Global Receipt for Certificated Receipts
or a part of another Global Receipt have been made:
Date
of Exchange
|
|
Amount
of decrease in number of Depositary Shares represented by this
Global
Receipt
|
|
Amount
of increase in number of Depositary Shares represented by this
Global
Receipt
|
|
Number
of Depositary Shares represented by this Global Receipt following
such
decrease (or increase)
|
|
Signature
of authorized officer of Depositary and
Registrar
|
____________________
1
For
Global Receipts