Exhibit 4.3
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[FORM OF DEPOSIT AGREEMENT]
X.X. XXXXXX XXXXX & CO.
___________________________, As Depositary
AND
THE HOLDERS FROM TIME TO TIME OF
THE DEPOSITARY RECEIPTS DESCRIBED HEREIN
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Deposit Agreement
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Dated as of _____________
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TABLE OF CONTENTS
PAGE
ARTICLE I ............................................................................ 3
ARTICLE II ........................................................................... 4
SECTION 2.01. Form and Transfer of Receipts .................................. 4
SECTION 2.02. Deposit of Stock; Execution and Delivery of Receipts in
Respect Thereof .............................................. 5
SECTION 2.03. Redemption of Stock ............................................ 6
SECTION 2.04. Registration of Transfer of Receipts ........................... 7
SECTION 2.05. Split-ups and Combinations of Receipts; Surrender of Receipts
and Withdrawal of Stock ...................................... 7
SECTION 2.06. Limitations on Execution and Delivery, Transfer, Surrender
and Exchange of Receipts ..................................... 8
SECTION 2.07. Lost Receipts, etc ............................................. 9
SECTION 2.08. Cancellation and Destruction of Surrendered Receipts ........... 9
ARTICLE III .......................................................................... 9
SECTION 3.01. Filing Proofs, Certificates and Other Information .............. 9
SECTION 3.02. Payment of Taxes or Other Governmental Charges ................. 9
SECTION 3.03. Warranty as to Stock ........................................... 10
ARTICLE IV ........................................................................... 10
SECTION 4.01. Cash Distributions ............................................. 10
SECTION 4.02. Distributions Other than Cash, Rights, Preferences or
Privileges ................................................... 10
SECTION 4.03. Subscription Rights, Preferences or Privileges ................. 11
SECTION 4.04. Notice of Dividends, etc.; Fixing of Record Date for Holders
of Receipts .................................................. 12
SECTION 4.05. Voting Rights .................................................. 12
SECTION 4.06. Changes Affecting Deposited Securities and Reclassifications,
Recapitalizations, etc ....................................... 13
SECTION 4.07. Inspection of Reports .......................................... 13
SECTION 4.08. Lists of Record Holders of Receipts ............................ 13
ARTICLE V ............................................................................ 13
SECTION 5.01. Maintenance of Offices, Agencies and Transfer Books by the
Depositary; Registrar ........................................ 13
SECTION 5.02. Prevention of or Delay in Performance by the Depositary, the
Depositary's Agents, the Registrar, the Transfer Agent or
the Company .................................................. 14
SECTION 5.03. Obligations of the Depositary, the Depositary's Agents, the
Registrar, the Transfer Agent and the Company ................ 15
SECTION 5.04. Resignation and Removal of the Depositary; Appointment of
Successor Depositary ......................................... 15
SECTION 5.05. Corporate Notices and Reports .................................. 16
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SECTION 5.06. Indemnification by the Company ................................. 16
SECTION 5.07. Charges and Expenses ........................................... 16
ARTICLE VI ........................................................................... 17
SECTION 6.01. Amendment ...................................................... 17
SECTION 6.02. Termination .................................................... 17
ARTICLE VII .......................................................................... 18
SECTION 7.01. Counterparts ................................................... 18
SECTION 7.02. Exclusive Benefit of Parties ................................... 18
SECTION 7.03. Invalidity of Provisions ....................................... 18
SECTION 7.04. Notices ........................................................ 18
SECTION 7.05. Depositary's Agents ............................................ 19
SECTION 7.06. Holders of Receipts Are Parties ................................ 19
SECTION 7.07. GOVERNING LAW .................................................. 19
SECTION 7.08. Inspection of Deposit Agreement ................................ 19
SECTION 7.09. Headings ....................................................... 19
EXHIBITS
Exhibit A Form of Receipt
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DEPOSIT AGREEMENT, dated as of ________________ among X.X.
XXXXXX CHASE & CO., a Delaware corporation, ______________, a _________________,
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 [insert designation of
preferred stock] of X.X. XXXXXX XXXXX & CO. 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;
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:
"Certificate" shall mean the Certificate of Designations filed
with the Secretary of State of Delaware establishing the Stock as a series of
preferred stock of the Company.
"Company" shall mean X.X. Xxxxxx Chase & Co., a Delaware
corporation, and its successors.
"Deposit Agreement" shall mean this Deposit Agreement, as
amended or supplemented from time to time in accordance with the terms hereof.
"Depositary" shall mean ___________ a ____________, and any
successor as Depositary hereunder.
"Depositary Shares" shall mean depositary shares, each
representing [insert fractional share] of a share of 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 principal office of the
Depositary in New York City, 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.
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"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 7.05 to register ownership and transfers of
Receipts as herein provided.
"Stock" shall mean shares of the Company's [insert designation
of preferred stock], $1 par value per share (stated value $______ per share).
"Transfer Agent" shall be as defined in Section 7.05.
ARTICLE II
Form of Receipts, Deposit of Stock, Execution and Delivery, Transfer, Surrender
and Redemption of Receipts
SECTION 2.01. Form and Transfer of Receipts. Definitive
Receipts shall be [engraved or printed or lithographed on steel-engraved borders
and shall] be substantially in the form set forth in Exhibit A annexed to this
Deposit Agreement, with appropriate insertions, modifications and omissions, as
hereinafter provided. [Pending the preparation of definitive Receipts, the
Depositary, upon the written order of the Company or any holder of Stock, as the
case may be, delivered in compliance with Section 2.02, shall execute and
deliver temporary Receipts which are printed, lithographed, typewritten,
mimeographed or otherwise substantially of the tenor of the definitive Receipts
in lieu of which they are issued and with such appropriate insertions,
omissions, substitutions and other variations as the persons executing such
Receipts may determine, as evidenced by their execution of such Receipts. If
temporary Receipts are issued, the 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 shall be executed by the Depositary by the manual
signature of a duly authorized officer of the Depositary; provided, that such
signature may be a facsimile if a Registrar for the Receipts (other than the
Depositary) shall have been appointed and such Receipts are countersigned by
manual signature of a duly authorized officer of the Registrar. No Receipt shall
be entitled to any benefits under this Deposit Agreement or be valid or
obligatory for any purpose unless it shall have been executed manually by a duly
authorized officer 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 officer of the Depositary and countersigned manually by a
duly authorized officer of such Registrar. The Depositary shall record on its
books each Receipt so signed and delivered as hereinafter provided.
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Receipts shall be in denominations of any number of whole
Depositary Shares.
Receipts may be endorsed with or have incorporated in the text
thereof such legends or recitals or changes not inconsistent with the provisions
of this Deposit Agreement as may be required by the Depositary 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 2.04, 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 Stock may from time to time deposit
shares of Stock by delivery to the Depositary of a certificate or certificates
representing the Stock to be deposited, properly endorsed or accompanied, if
required by the Depositary, by a duly executed instrument of transfer or
endorsement, in form satisfactory to the Depositary, together with all such
certifications as may be required by the Depositary in accordance with the
provisions of this Deposit Agreement, and together with a written order of the
Company or such holder, as the case may be, 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
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 to be deposited in accordance with the
provisions of this Section, 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, 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 representing
the Stock so deposited and registered in such name or names as may be requested
by such person or persons.
The Depositary shall execute and deliver such Receipt or
Receipts at the Depositary's Office or such other offices, if any, as the
Depositary may designate. Delivery at other offices shall be at the risk and
expense of the person requesting such delivery.
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SECTION 2.03. Redemption of Stock. Whenever the Company shall
elect to redeem shares of Stock in accordance with the provisions of the
Certificate, it shall (unless otherwise agreed in writing with the Depositary)
give the Depositary not less than 40 nor more than 70 days' notice of the date
of such proposed redemption of Stock, which notice shall be accompanied by a
certificate from the Company stating that such redemption of Stock is in
accordance with the provisions of the Certificate. 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 Certificate. 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; (iv) the place or places where Receipts evidencing Depositary Shares are
to be surrendered for payment of the redemption price; and (v) that dividends in
respect of the Stock represented by the Depositary Shares to be redeemed will
cease to accumulate from and after such Redemption Date. In case less than all
the outstanding Depositary Shares are to be redeemed, the Depositary Shares to
be so redeemed shall be selected by lot or pro rata (subject to rounding to
avoid fractions of the Depositary Shares) as may be determined by the Depositary
to be equitable.
Notice having been mailed by the Depositary as aforesaid, from
and after the Redemption Date (unless the Company shall have failed to redeem
the shares of Stock to be redeemed by it as set forth in the Company's notice
provided for in the preceding paragraph) all dividends in respect of the shares
of Stock so called for redemption shall cease to accumulate, 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 accrued
and unpaid dividends thereon) shall, to the extent of such Depositary Shares,
cease and terminate and, upon surrender of the Receipts evidencing 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 [insert fractional share] of the redemption price per share paid in respect
of the shares of Stock, plus accrued and unpaid dividends thereon 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 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.
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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
thereof by the holder in person or by duly authorized attorney, properly
endorsed or accompanied by a properly executed instrument of transfer. Thereupon
the Depositary and the Registrar shall execute in accordance with Section 2.01 a
new Receipt or Receipts and deliver at the Depositary's Office or such other
offices, if any, as the Depositary may designate such new Receipt or Receipts to
or upon the order of the person or persons entitled thereto, including any
interests of the transferor if such transferor has not transferred all the
Depositary Shares evidenced by such Receipt or Receipts, and such new Receipt or
Receipts shall evidence the amount of Depositary Shares so transferred and the
amount of Depositary Shares retained by that transferor.
SECTION 2.05. Split-ups and Combinations of Receipts; Surrender
of Receipts and Withdrawal of Stock. Upon surrender of a Receipt or Receipts at
the Depositary's Office or at such other offices as it may designate for the
purpose of effecting a split-up or combination of such Receipt or Receipts, 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 holder of a Receipt or Receipts representing any number of
whole shares of Stock may withdraw the Stock by surrendering such Receipt or
Receipts, at the Depositary's Office or at such other offices as the Depositary
may designate for such withdrawals. Thereafter, without unreasonable delay, the
Depositary shall deliver to such holder, or to the person or persons designated
by such holder as hereinafter provided, the number of whole shares of Stock
represented by the Receipt or Receipts so surrendered for withdrawal, but
holders of such whole shares of Stock will not thereafter be entitled to deposit
such Stock hereunder or to receive Depositary Shares therefor; provided,
however, that a record holder who withdraws Stock in order to demand appraisal
rights available under Delaware General Corporation Law ("DGCL"), will, subject
to certain conditions described below, be entitled to redeposit such Stock with
the Depositary and to receive Receipts evidencing Depositary Shares therefor in
the event (i) such record holder subsequently withdraws such demand for
appraisal pursuant to Section 262(e) of the DGCL, (ii) appraisal rights are not
available for such Stock pursuant to Section 262 of the DGCL or (iii) such
record holder loses or otherwise fails to perfect his rights to appraisal. In
order to redeposit Stock with the Depositary, such a record holder must deliver
the certificates for such 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 appraisal by such record holder, (ii) notice
by the Company that appraisal 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 appraisal. The Company will notify any record holder of Receipts who
so withdraws Stock in the event appraisal rights in respect of 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, Stock presented for redeposit shall also be accompanied
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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
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 Stock to be so withdrawn, the
Depositary shall at the same time, in addition to such number of whole shares of
Stock to be so withdrawn, deliver to such holder a new 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 to a person or
persons other than the record holder of the Receipt or Receipts being
surrendered for withdrawal of Stock, such holder shall execute and deliver to
the Depositary a written order so directing the Depositary and the Depositary
may require that the Receipt or Receipts surrendered by such holder for
withdrawal of such shares of Stock be properly endorsed in blank or accompanied
by a properly executed instrument of transfer in blank.
Delivery of the Stock 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 Stock may be refused, the delivery of Receipts
against Stock may be suspended, the registration of transfer of Receipts may be
refused and the registration of transfer, surrender or exchange of outstanding
Receipts may be suspended (i) during any period when the register of
stockholders of the 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.
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SECTION 2.07. Lost Receipts, etc. 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, 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 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.
SECTION 3.03. Warranty as to Stock. The Company hereby
represents and warrants that the Stock, when issued, will be validly issued,
fully paid and nonassessable. Such representation and warranty shall survive the
deposit of the Stock and the issuance of Receipts.
ARTICLE IV
The Deposited Securities; Notices
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SECTION 4.01. Cash Distributions. Whenever the Depositary shall
receive any cash dividend or other cash distribution on Stock, the Depositary
shall, subject to Sections 3.01 and 3.02, distribute to record holders of
Receipts on the 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 Stock, the Depositary shall, subject
to Sections 3.01 and 3.02, 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 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 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
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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 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 best efforts and take all steps available to it to cause such
registration statement to become effective sufficiently in advance of the
expiration of such rights, preferences or privileges to enable such holders to
exercise such rights, preferences or privileges. In no event shall the
Depositary make available to the holders of Receipts any right, preference or
privilege to subscribe for or to purchase any securities unless and until 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 holders of Receipts, the Company agrees with the Depositary that
the Company will use its best efforts to take such action or obtain such
authorization, consent or permit sufficiently in advance of the expiration of
such rights, preferences or privileges to enable such holders to exercise such
rights, preferences or privileges.
SECTION 4.04. 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
Stock, or whenever the Depositary shall receive notice of any meeting at which
record 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 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
12
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 Stock are entitled to vote, the
Depositary shall, as soon as practicable thereafter, 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 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 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 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 or stated
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 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, (i) make such adjustments as are certified by the Company in (x) the
fraction of an interest represented by one Depositary Share in one share of
Stock and (y) the ratio of the redemption price per Depositary Share to the
redemption price of a share of Stock, in each case as may be necessary fully to
reflect the effects of such change in par or stated value, split-up, combination
or other reclassification of Stock, or of such recapitalization, reorganization,
merger, 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
additional Receipts, or may call for the surrender of all outstanding Receipts
to be exchanged for new Receipts specifically describing such new deposited
securities.
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 Stock.
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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 on the New York Stock
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 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 5.02. Prevention of or Delay in Performance by the
Depositary, the Depositary's Agents, the Registrar, the Transfer Agent or the
Company. Neither the Depositary nor any Depositary's Agent nor any Registrar nor
any Transfer Agent nor the Company shall incur any liability to any holder of
any Receipt if by reason of any provision of any present or future law, or
regulation thereunder, of the United States of America or of any other
governmental authority or, in the case of the Depositary, the Depositary's Agent
or the Registrar, by reason of any provision, present or future, of the
Company's Certificate of Incorporation (including the Certificate) or by reason
of any act of God or war or other circumstance beyond
14
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 negligence or willful misconduct of the
party charged with such exercise or failure to exercise.
SECTION 5.03. Obligations of the Depositary, the Depositary's
Agents, the Registrar, the Transfer Agent and the Company. Neither the
Depositary nor any Depositary's Agent nor any Registrar nor any Transfer Agent
nor the Company assumes any obligation or shall be subject to any liability
under this Deposit Agreement to holders of Receipts other than for its gross
negligence or willful misconduct.
Neither the Depositary nor any Depositary's Agent nor any
Registrar nor any Transfer Agent 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 any Transfer Agent 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 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, any Transfer Agent and the Company may each rely and shall each be
protected in acting upon any written notice, request, direction or other
document believed by it to be genuine and to have been signed or presented by
the proper party or parties.
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 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 will
indemnify the Company against any liability which may arise out of acts
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 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.
15
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. Such successor Depositary may
authenticate the Receipts in the name of the predecessor Depositary or in the
name of the successor Depositary.
SECTION 5.05. Corporate Notices and Reports. The Company agrees
that it will 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 Certificate of
Incorporation (including the Certificate) to be furnished by the Company to
holders of Stock. 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
16
Transfer Agent or any of their respective agents (including any Depositary's
Agent), except for any liability arising out of negligence or bad faith 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 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. The Company shall pay all charges of
the Depositary in connection with the initial deposit of the Stock and the
initial issuance of the Depositary Shares and 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 Stock upon surrender of Receipts shall be
at the expense of holders of Depositary Shares. The Depositary's fee for the
withdrawal of Stock shall be at the rate of $_____ per 100 Depositary Receipts.
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, 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 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) 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.
17
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, 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 or telegram or
telex confirmed by letter, addressed to the Company at 000 Xxxx Xxxxxx, Xxx
Xxxx, Xxx Xxxx 00000, to the attention of the Secretary, 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
________________ or at any other address of which the Depositary shall have
notified the Company in writing.
Any and all notices to be given to any record holder of a
Receipt hereunder or under the Receipts shall be in writing and shall be deemed
to have been duly given if personally delivered or sent by mail or by telegram
or telex confirmed by letter, addressed to such record holder at the address of
such record holder as it appears on the books of the Depositary, or if such
holder shall have filed with the Depositary a written request that notices
intended for such holder be mailed to some other address, at the address
designated in such request.
Delivery of a notice sent by mail or by telegram or telex
shall be deemed to be effected at the time when a duly addressed letter
containing the same (or a confirmation thereof in the case of a telegram or
telex message) is deposited, postage prepaid, in a post office letter box. The
Depositary or the Company may, however, act upon any telegram or telex message
18
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.
The Company has authorized the appointment of, and has
requested the Depositary to appoint hereunder, __________________ as transfer
agent (the "Transfer Agent") for the Depositary Shares. The Depositary hereby
appoints ______ as Transfer Agent and Registrar for the Depositary Shares and
delegates to ______ the duties of the Depositary hereunder customarily performed
by a transfer agent, a registrar and a depositary. Without otherwise affecting
the liability of the Depositary hereunder, it is hereby agreed that if _____
shall have agreed in writing to be bound by all the terms and conditions of this
Deposit Agreement and to assume the obligations of the Depositary hereunder to
be performed by it, then in no event shall the Depositary be liable for any acts
or omissions of _____ as Transfer Agent, Registrar or Depositary's Agent with
respect to the Depositary Shares.
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 thereof.
SECTION 7.07. GOVERNING LAW. THIS DEPOSIT AGREEMENT AND THE
RECEIPTS AND ALL RIGHTS HEREUNDER AND THEREUNDER AND PROVISIONS HEREOF AND
THEREOF SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE
STATE OF NEW YORK.
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.
X.X. XXXXXX XXXXX & CO.
By:
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19
Title:
[------------------------------------,]
as Depositary,
By:
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Title:
