Exhibit 4.10
FREEPORT-MCMORAN COPPER & GOLD INC.
and
_____________________________________
As Depositary
and
HOLDERS OF DEPOSITARY RECEIPTS
DEPOSIT AGREEMENT
Dated as of __________________,
TABLE OF CONTENTS
Page
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Parties 1
Recitals 1
ARTICLE I
DEFINITIONS
"Certificate of Designations" 1
"Certificate of Incorporation" 1
"Company" 1
"Corporate Office" 1
"Deposit Agreement" 2
"Depositary" 2
"Depositary Share" 2
"Depositary's Agent" 2
"New York office" 2
"Receipt" 2
"record holder" 2
"Registrar" 2
"Securities Act" 2
"Stock" 2
ARTICLE II
FORM OF RECEIPTS, DEPOSIT OF STOCK,
EXECUTION AND DELIVERY, TRANSFER, SURRENDER,
REDEMPTION AND CONVERSION OF RECEIPTS
SECTION 2.01 Form and Transfer of Receipts 3
SECTION 2.02 Deposit of Stock; Execution and Delivery of
Receipts in Respect Thereof 3
SECTION 2.03 Redemption, Exchange and Conversion of
Stock 4
SECTION 2.04 Register of Transfer of Receipts 6
SECTION 2.05 Combination and Split-ups of Receipts 6
SECTION 2.06 Surrender of Receipts and Withdrawal of
Stock 7
SECTION 2.07 Limitations on Execution and Delivery
, Transfer,Split-up, Combination, Surrender and
Exchange of Receipts and Withdrawal or Deposit
of Stock 7
SECTION 2.08 Lost Receipts, etc 8
SECTION 2.09 Cancellation and Destruction of Surrendered
Receipts 8
ARTICLE III
CERTAIN OBLIGATIONS OF HOLDERS OF RECEIPTS AND THE COMPANY
SECTION 3.01 Filing Proofs, Certificates and Other
Information 9
SECTION 3.02 Payment of Taxes or Other Governmental
Charges 9
SECTION 3.03 Withholding 9
SECTION 3.04 Representations and Warranties as to Stock 9
ARTICLE IV
THE STOCK, NOTICES
SECTION 4.01 Cash Distributions 10
SECTION 4.02 Distributions Other Than Cash 10
SECTION 4.03 Subscription Rights, Preferences or
Privileges 10
SECTION 4.04 Notice of Dividends, Fixing of Record
Date for Holders of Receipts 11
SECTION 4.05 Voting Rights 11
SECTION 4.06 Changes Affecting Stock and
Reclassification, Recapitalization, etc 12
SECTION 4.07 Reports 12
SECTION 4.08 Lists of Receipt Holders 12
ARTICLE V
THE DEPOSITARY, THE DEPOSITARY'S AGENTS,
THE REGISTRAR AND THE COMPANY
SECTION 5.01 Maintenance of Offices, Agencies,
Transfer Books by the Depositary; the Xxxxxxxxx 00
SECTION 5.02 Prevention or Delay in Performance by
the Depositary,the Depositary's Agents, the
Registrar or the Company 13
SECTION 5.03 Obligations of the Depositary, the
Depositary's Agents, the Registrar and the Company 14
SECTION 5.04 Resignation and Removal of the
Depositary, Appointment of Successor Depositary 15
SECTION 5.05 Corporate Notices and Reports 16
SECTION 5.06 Deposit of Stock by the Company 16
SECTION 5.07 Indemnification by the Company 16
SECTION 5.08 Fees, Charges and Expenses 16
ARTICLE VI
AMENDMENT AND TERMINATION
SECTION 6.01 Amendment 17
SECTION 6.02 Termination 17
ARTICLE VII
MISCELLANEOUS
SECTION 7.01 Counterparts 18
SECTION 7.02 Exclusive Benefits 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 Headings 19
TESTIMONIUM 20
SIGNATURES 20
EXHIBIT A 21
DEPOSIT AGREEMENT
DEPOSIT AGREEMENT, dated as of _________________ among
Freeport-McMoRan Copper & Gold Inc., a Delaware corporation,
_____________________ , a _____________banking corporation, as
Depositary, and all holders from time to time of Receipts issued
hereunder.
W I T N E S S E T H:
WHEREAS, the Company desires to provide as hereinafter
set forth in this Deposit Agreement, for the deposit of shares of
the Stock with the Depositary, as agent for the beneficial owners
of the Stock, for the purposes set forth in this Deposit Agreement
and for the issuance hereunder of the Receipts evidencing
Depositary Shares representing an interest in the Stock so
deposited; and
WHEREAS, the Receipts are to be substantially in the form
annexed as Exhibit A to this Deposit Agreement, with appropriate
insertions, modifications and omissions, as hereinafter provided in
this Deposit Agreement.
NOW, THEREFORE, in consideration of the premises
contained herein, it is agreed by and among the parties hereto as
follows:
ARTICLE I
DEFINITIONS
The following definitions shall apply to the respective
terms (in the singular and plural forms of such terms) used in this
Deposit Agreement and the Receipts:
"Certificate of Designations" shall mean the Certificate
of Designations establishing and setting forth the rights,
preferences, privileges and limitations of the Stock.
"Certificate of Incorporation" shall mean the Certificate
of Incorporation, as amended and restated from time to time, of the
Company.
"Company" shall mean Freeport McMoRan Copper & Gold Inc.,
a Delaware corporation, and its successors.
"Corporate Office" shall mean the office of the
Depositary in ________________. _______________ at which at any
particular time its business in respect of matters governed by this
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Deposit Agreement shall be administered, which at the date of this
Deposit Agreement is located at ______________________.
"Deposit Agreement" shall mean this agreement, as the
same may be amended, modified or supplemented from time to time.
"Depositary" shall mean _________________, as Depositary
hereunder, and any successor as Depositary hereunder.
"Depositary Share" shall mean the rights evidenced by the
Receipts executed and delivered hereunder, including the interests
in Stock granted to holders of Receipts pursuant to the terms and
conditions of the Deposit Agreement. Each Depositary Share shall
represent an interest in of a share of Stock deposited with the
Depositary hereunder and the same proportionate interest in any and
all other property received by the Depositary in respect of such
share of Stock and held under this Deposit Agreement. Subject to
the terms of this Deposit Agreement, each record holder of a
Receipt evidencing a Depositary Share or Shares is entitled,
proportionately, to all the rights, preferences and privileges of
the Stock represented by such Depositary Share or Shares, including
the dividend, conversion, exchange, voting and liquidation rights
contained in the Certificate of Designations, and to the benefits
of all obligations and duties of the Company in respect of the
Stock under the Certificate of Designations and the Certificate of
Incorporation.
"Depositary's Agent" shall mean an agent appointed by the
Depositary as provided, and for the purposes specified, in Section
7.05.
"New York Office" shall mean the office maintained by the
Depositary in the Borough of Manhattan, The City of New York, which
at the date of this Deposit Agreement is located at
___________________________.
"Receipt" shall mean a Depositary Receipt executed and
delivered hereunder, in substantially the form of Exhibit A hereto,
evidencing Depositary Share or Shares, as the same may be amended
from time to time in accordance with the provisions hereof.
"record holder" or "holder" as applied to a Receipt shall
mean the person in whose name a Receipt is registered on the books
maintained by or on behalf of the Depositary for such purpose.
"Registrar" shall mean any bank or trust company
appointed to register ownership and transfers of Receipts as herein
provided.
"Securities Act" shall mean the Securities Act of 1933,
as amended.
"Stock" shall mean shares of the Company's [ ].
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ARTICLE II
FORM OF RECEIPTS, DEPOSIT OF STOCK,
EXECUTION AND DELIVERY, TRANSFER, SURRENDER,
REDEMPTION AND CONVERSION OF RECEIPTS
SECTION 2.01. Form and Transfer of Receipts. 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. Receipts
shall be executed by the Depositary by the manual signature of a
duly authorized officer of the Depositary; provided, however, that
such signature may be a facsimile if a Registrar (other than the
Depositary) shall have countersigned the Receipts 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 as provided in the preceding sentence. The
Depositary shall record on its books each Receipt executed as
provided above and delivered as hereinafter provided. Receipts
bearing the facsimile signature of anyone who was at any time a
duly authorized officer of the Depositary shall bind the
Depositary, notwithstanding that such officer has ceased to hold
such office prior to the delivery of such Receipts.
Receipts may be issued in denominations of any number of
whole Depositary Shares. All Receipts shall be dated the date of
their execution.
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
regulation or with the rules and regulations of any securities
exchange upon which the Stock or the Depositary Shares 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 by reason of the date of issuance
of the Stock or otherwise.
Title to any Receipt (and to the Depositary Shares
evidenced by such Receipt) that 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 investment
securities in general; provided, however, that 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
deposit such Stock under this Deposit Agreement by delivery to the
Depositary of a certificate or certificates for the Stock to be
deposited, properly endorsed or accompanied, if required by the
Depositary, by a properly executed instrument of transfer in form
satisfactory to the Depositary,
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together with (i) all such
certifications as may be required by the Depositary in accordance
with the provisions of this Deposit Agreement and (ii) 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.
Upon receipt by the Depositary of a certificate or
certificates for Stock to be deposited hereunder, together with the
other documents specified above, the Depositary shall, as soon as
transfer and registration can be accomplished, present such
certificate or certificates to the registrar and transfer agent of
the Stock for transfer and registration in the name of the
Depositary or its nominee of the Stock being deposited. Deposited
Stock shall be held by the Depositary in an account to be
established by the Depositary at the corporate office.
Upon receipt by the Depositary of a certificate or
certificates for Stock to be deposited hereunder, together with the
other documents specified above, the Depositary, subject to the
terms and conditions of this Deposit Agreement, shall execute and
deliver, to or upon the order of the person or persons named in the
written order delivered to the Depositary referred to in the first
paragraph of this Section 2.02, a Receipt or Receipts for the
number of whole 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 New York Office, except
that, at the request, risk and expense of any person requesting
such delivery and for the account of such person, such delivery may
be made at such other place as may be designated by such person.
In each case, delivery will be made only upon payment by such
person to the Depositary of all taxes and other governmental
charges and any fees payable in connection with such deposit and
the transfer of the deposited Stock.
The Company shall deliver to the Depositary from time to
time such quantities of Receipts as the Depositary may request to
enable the Depositary to perform its obligations under this Deposit
Agreement.
SECTION 2.03. Redemption, Exchange and Conversion of
Stock. Whenever the Company shall elect to redeem or exchange or
be required to convert shares of Stock in accordance with the
Certificate of Designations, it shall (unless otherwise agreed in
writing with the Depositary) give the Depositary in its capacity as
Depositary not less than 5 business days' prior notice of the
proposed date of the mailing of a notice of redemption, exchange or
conversion of Stock and the simultaneous redemption, exchange or
conversion of the Depositary Shares representing the Stock to be
redeemed, exchanged or converted and of the number of such shares
of Stock held by the Depositary to be redeemed, exchanged or
converted. The Depositary shall, as directed by the Company in
writing, mail, first class postage prepaid, notice of the
redemption, exchange or conversion of Stock and the proposed
simultaneous redemption, exchange or conversion of the Depositary
Shares representing the Stock to be redeemed, exchanged or
converted, not less than 15 and not more than 60 days prior to the
date fixed for redemption, exchange or conversion of such Stock and
Depositary Shares, to the record holders of the Receipts evidencing
the Depositary Shares to be so redeemed, exchanged or
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converted, at
the addresses of such holders as the same appear on the records of
the Depositary; provided, that if the effectiveness of a Merger or
consolidation (as defined in the Certificate of Designations) makes
it impracticable to provide at least 15 days' notice, the
Depositary shall provide such notice as soon as practicable prior
to such effectiveness. Any such notice shall also be published in
the same manner as notices of redemption, exchange or conversion of
Stock are required to be published pursuant to Section _____ of the
Certificate of Designations. Notwithstanding the foregoing,
neither failure to mail or publish any such notice to one or more
such holders nor any defect in any notice shall affect the
sufficiency of the proceedings for redemption, exchange or
conversion. The Company shall provide the Depositary with such
notice, and each such notice shall state: the redemption, exchange
or conversion date; the number of Depositary Shares to be redeemed,
exchanged or converted; if fewer than all the Depositary Shares
held by any holder are to be redeemed or exchanged, the number of
such Depositary Shares held by such holder to be so redeemed or
exchanged; in the case of a call for redemption, the call price
payable upon redemption (and the form of consideration, whether
cash, securities or other consideration, on which the redemption
call Price will be paid), the place or places where Receipts
evidencing Depositary Shares to be redeemed, exchanged or converted
are to be surrendered for redemption, exchange or conversion;
whether the Company is depositing with a bank or trust company on
or before the redemption, exchange or conversion date, the cash
payable by the Company and the proposed date of such deposit; the
amount of accrued and unpaid dividends payable per share of Stock
to be redeemed, exchanged or converted to and including such
redemption, exchange or conversion date, as the case may be, and
that dividends in respect of the Stock represented by the
Depositary Shares to be redeemed, exchange or converted will cease
to accrue on such redemption, exchange or conversion date (unless
the Company shall default in delivering cash at the time and place
specified in such notice). On the date of any such redemption,
exchange or conversion, the Depositary shall surrender the
certificate or certificates held by the Depositary evidencing the
number of shares of Stock to be redeemed, exchanged or converted in
the manner specified in the notice of redemption, exchange or
conversion of Stock provided by the Company pursuant to Section
____ of the Certificate of Designations. The Depositary shall,
thereafter, redeem, exchange or convert the number of Depositary
Shares representing such redeemed, exchanged or converted Stock
upon the surrender of Receipts evidencing such Depositary Shares in
the manner provided in the notice sent to record holders of
Receipts. In case fewer than all the outstanding Depositary Shares
are to be redeemed, the Depositary Shares to be redeemed shall be
selected by the Depositary by lot or on a pro rata basis at the
direction of the Company.
Notice having been mailed and published by the Depositary
as aforesaid, from and after the redemption, exchange or conversion
date (unless the Company shall have failed to redeem, exchange or
convert the shares of Stock to be redeemed, exchanged or converted
by it upon the surrender of the certificate or certificates
therefor by the Depositary as described in the preceding
paragraph), the Depositary Shares called for redemption or exchange
or subject to conversion shall be deemed no longer to be
outstanding and all rights of the holders of Receipts evidencing
such Depositary Shares (except the right to receive the cash,
securities or Form of consideration payable upon redemption,
exchange or conversion upon surrender of such Receipts) shall, to
the extent of such Depositary Shares, cease and terminate. Upon
surrender in accordance with said notice of the Receipts evidencing
such Depositary Shares (properly endorsed or assigned for transfer,
if the Depositary shall
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so require), such Depositary Shares shall
be converted into or redeemed or exchanged for shares of Stock at
a rate equal to ______ of the number of shares of Stock delivered,
and the holders thereof shall be entitled to ____________of the
cash payable, in respect of the shares of Stock pursuant to the
Certificate of Designation. The foregoing shall be subject further
to the terms and conditions of the Certificate of Designations.
If fewer than all of 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 Price (whether to be paid in the form
of cash, shares of Stock or other form or forms of consideration)
and all accrued and unpaid dividends to and including the date
fixed for redemption payable in respect of the Depositary shares
called for redemption, a new Receipt evidencing the Depositary
Shares evidenced by such prior Receipt and not called for
redemption.
To the extent that Depositary Shares are converted into
shares of Stock and all of such shares of Stock cannot be
distributed to the record holders of Receipts converted or called
for redemption without creating fractional interests in such
shares, the Company may distribute, or cause to be distributed,
cash to such holders in lieu of delivery of such fractional shares
or, if the Company elects not to make or cause to be made such a
distribution, the Depositary may, with the consent 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 such shares of Stock at such place or
places and upon such terms as it may deem proper, and the net
proceeds of any such sale shall, subject to Section 3.02, be
distributed or made available for distribution to such record
holders that would otherwise receive fractional interests in such
shares of Stock.
The Depositary shall not be required (a) to issue,
transfer or exchange any Receipts for a period beginning at the
opening of business 15 days next preceding any selection of
Depositary Shares and Stock to be redeemed and ending at the close
of business on the day of the mailing of notice of redemption of
Depositary Shares or (b) to transfer or exchange for another
Receipt any Receipt evidencing Depositary Shares called or being
called for redemption, in whole or in part, or subject to
conversion except as provided in the second preceding paragraph of
this Section 2.03.
SECTION 2.04. Register 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 at the Corporate Office, the
New York Office or such other office as the Depositary may
designate for such purpose, by the record holder in person or by a
duly authorized attorney, properly endorsed or accompanied by a
properly executed instrument of transfer, together with evidence of
the payment of any transfer taxes as may be required by law. Upon
such surrender, the Depositary shall execute a new Receipt or
Receipts and deliver the same to or upon the order of the person
entitled thereto evidencing the same aggregate number of Depositary
Shares evidenced by the Receipt or Receipts surrendered.
SECTION 2.05. Combination and Split-ups of Receipts.
Upon surrender of a Receipt or Receipts at the Corporate Office,
the New York Office or such other office as the Depositary may
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designate for the purpose of effecting a split-up or combination of
Receipts, subject to the terms and conditions of this Deposit
Agreement, the Depositary shall execute and deliver a new Receipt
or Receipts in the authorized denominations requested evidencing
the same aggregate number of Depositary Shares evidenced by the
Receipt or Receipts surrendered; provided, however, that the
Depositary shall not issue any Receipt evidencing a fractional
Depositary Share.
SECTION 2.06. Surrender of Receipts and Withdrawal of
Stock. Any holder of a Receipt or Receipts may withdraw any or all
of the Stock (but only in whole shares of Stock) represented by the
Depositary Shares evidenced by such Receipts and all money and
other property, if any, represented by such Depositary Shares by
surrendering such Receipt or Receipts at the Corporate Office, the
New York Office or at such other office as the Depositary may
designate for such withdrawals. After such surrender, without
unreasonable delay, the Depositary shall deliver to such holder, or
to the person or persons designated by such holder as hereinafter
provided, the whole number of shares of Stock and all such money
and other property, if any, represented by the Depositary Shares
evidenced by the Receipt or Receipts so surrendered for withdrawal.
If the Receipt or Receipts 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 whole
Depositary Shares representing the whole number of shares of Stock
to be withdrawn, the Depositary shall at the same time, in addition
to such whole number of shares of Stock and such money and other
property, if any, to be withdrawn, deliver to such holder, or
(subject to Section 2.04) upon his order, a new Receipt or Receipts
evidencing such excess number of whole Depositary Shares. Delivery
of the Stock and such money and other property being withdrawn may
be made by the delivery of such certificates, documents of title
and other instruments as the Depositary may deem appropriate,
which, if required by the Depositary, shall be properly endorsed or
accompanied by proper instruments of transfer.
If the Stock and the money and other property being
withdrawn are to be delivered to a person or persons other than the
record holder of the Receipt or Receipts being surrendered for
withdrawal of Stock, such holder shall execute and deliver to the
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.
The Depositary shall deliver the Stock and the money and
other property, if any, represented by the Depositary Shares
evidenced by Receipts surrendered for withdrawal, without
unreasonable delay, at the office at which such Receipts were
surrendered, 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, without unreasonable
delay, at such other place as may be designated by such holder.
SECTION 2.07. Limitations on Execution and Delivery,
Transfer, Split-up, Combination, Surrender and Exchange of Receipts
and Withdrawal or Deposit of Stock. As a condition precedent to
the execution and delivery, registration of transfer, split-up,
combination, surrender or exchange of any Receipt, the delivery of
any distribution thereon or the withdrawal or deposit of Stock, the
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Depositary, any of the Depositary's Agents or the Company may
require any or all of the following: (i) 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 tax or other governmental charge with respect thereto
(including any such tax or charge with respect to the Stock being
deposited or withdrawn or with respect to the Stock or other
securities or property of the Company being issued upon conversion
or redemption); (ii) production of proof satisfactory to it as to
the identity and genuineness of any signature; and (iii) compliance
with such reasonable regulations, if any, as the Depositary or the
Company may establish not inconsistent with the provisions of this
Deposit Agreement.
The deposit of Stock may be refused, the delivery of
Receipts against Stock or the registration of transfer, split-up,
combination, surrender or exchange of outstanding Receipts and the
withdrawal of deposited Stock may be suspended (i) during any
period when the register of stockholders of the Company is closed,
(ii) if any such action is deemed necessary or advisable by the
Depositary, any of the Depositary's Agents or the Company at any
time or from time to time because of any requirement of law or of
any government or governmental body or commission, or under any
provision of this Deposit Agreement, or (iii) with the approval of
the Company, for any other reason. Without limitation of the
foregoing, the Depositary shall not knowingly accept for deposit
under this Deposit Agreement any shares of Stock that are required
to be registered under the Securities Act unless a registration
statement under the Securities Act is in effect as to such shares
of Stock.
SECTION 2.08. Lost Receipts, etc. In case any Receipt
shall be mutilated or destroyed or lost or stolen, the Depositary
shall 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
unless the Depositary has notice that such Receipt has been
acquired by a bona fide purchaser; provided, however, that the
holder thereof provides the Depositary with (i) evidence
satisfactory to the Depositary of such destruction, loss or theft
of such Receipt, of the authenticity thereof and of his ownership
thereof, (ii) reasonable indemnification satisfactory to the
Depositary or the payment of any charges incurred by the Depositary
in obtaining insurance in lieu of such indemnification and (iii)
payment of any expense (including fees, charges and expenses of the
Depositary) in connection with such execution and delivery.
SECTION 2.09. Cancellation and Destruction of Surrendered
Receipts. All Receipts surrendered to the Depositary or any
Depositary's Agent shall be cancelled by the Depositary. Except as
prohibited by applicable law or regulation, the Depositary is
authorized to destroy such Receipts so cancelled.
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ARTICLE III
CERTAIN OBLIGATIONS OF HOLDERS
OF RECEIPTS AND THE COMPANY
SECTION 3.01. Filing Proofs, Certificates and Other
Information. Any person presenting Stock for deposit or any holder
of a Receipt may be required from time to time to file such proof
of residence 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 or delay the delivery of any
Receipt, the registration of transfer, redemption, conversion or
exchange of any Receipt, the withdrawal of the Stock represented by
the Depositary Shares evidenced by any Receipt or the distribution
of any dividend or other distribution until such proof or other
information is filed, such certificates are executed or such
representations and warranties are made.
SECTION 3.02. Payment of Taxes or Other Governmental
Charges. If any tax or other governmental charge shall become
payable by or on behalf of the Depositary with respect to (i) any
Receipt, (ii) the Depositary Shares evidenced by such Receipt,
(iii) the Stock (or fractional interest therein) or other property
represented by such Depositary Shares, or (iv) any transaction
referred to in Section 4.06, such tax (including transfer, issuance
or acquisition taxes, if any) or governmental charge shall be
payable by the holder of such Receipt, who shall pay the amount
thereof to the Depositary. Until such payment is made,
registration of transfer of any Receipt or any split-up or
combination thereof or any withdrawal of the Stock or money or
other property, if any, represented by the Depositary Shares
evidenced by such Receipt may be refused, any dividend or other
distribution may be withheld and any part or all of the Stock or
other property represented by the Depositary Shares evidenced by
such Receipt may be sold for the account of the holder thereof
(after attempting by reasonable means to notify such holder prior
to such sale). Any dividend or other distribution so withheld and
the proceeds of any such sale may be applied to any payment of such
tax or other governmental charge, the holder of such Receipt
remaining liable for any deficiency.
SECTION 3.03. Withholding. The Depositary shall act as
the tax withholding agent for any payments, distributions and
exchanges made with respect to the Depositary Shares and Receipts,
and the Stock represented thereby (collectively, the "Securities").
The Depositary shall be responsible with respect to the Securities
for the timely (i) collection and deposit of any required
withholding or backup withholding tax, and (ii) filing of any
information returns or other documents with federal (and other
applicable) taxing authorities.
SECTION 3.04. Representations and Warranties as to Stock.
In the case of the initial deposit of the Stock, the Company
and, in the case of subsequent deposits thereof, each person so
depositing Stock under this Deposit Agreement shall be deemed
thereby to represent and warrant that such Stock and each
certificate therefor are valid and that the person making such
deposit is duly authorized to do so. Such representations and
warranties shall survive the deposit of the Stock and the issuance
of Receipts therefor.
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ARTICLE IV
THE STOCK, 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 Section
3.02, distribute to record holders of Receipts on the record date
fixed pursuant to Section 4.04 such amounts of such sum 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 by law to withhold and does 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 owner 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. Whenever the
Depositary shall receive any distribution other than cash, rights,
preferences or privileges upon the Stock, the Depositary shall,
subject to Section 3.02, distribute to record holders of Receipts
on the record date fixed pursuant to Section 4.04 such amounts of
the securities or property received by it as are, as nearly as
practicable, in proportion to the respective numbers of Depositary
Shares evidenced by the Receipts held by such holders, in any
manner that the Depositary and the Company may deem equitable and
practicable for accomplishing such distribution. If, in the
opinion of the Company after consultation with the Depositary, such
distribution cannot be made proportionately among such record
holders, or if for any other reason (including any tax withholding
or securities law requirement), the Depositary deems, after
consultation with the Company, such distribution not to be
feasible, the Depositary may, with the approval of the Company
which approval shall not be unreasonably withheld, adopt such
method as it deems equitable and practicable for the purpose of
effecting such distribution, including the sale (at public or
private sale) of the securities or property thus received, or any
part thereof, at such place or places and upon such terms as it may
deem proper. The net proceeds of any such sale shall, subject to
Section 3.02, be 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.
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 registered 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 company shall instruct (including by the issue
to such record holders of warrants representing such rights,
preferences or privileges); provided, however, that (a) if at the
time of issue or offer of
10
any such rights, preferences or
privileges the Company determines and instructs the Depositary that
it is not lawful or feasible to make such rights, preferences or
privileges available to some or all holders of Receipts (by the
issue of warrants or otherwise) or (b) if and to the extent
instructed by holders of Receipts who do not desire to exercise
such rights, preferences or privileges, the Depositary shall then,
in each case, and if applicable laws or the terms of such rights,
preferences or privileges so permit, sell such rights, preferences
or privileges of such holders 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 distributed by the
Depositary to the record holders of Receipts entitled thereto as
provided by Section 4.01 in the case of a distribution received in
cash.
If registration under the Securities Act of the
securities to which any rights, preferences or privileges relate is
required in order for holders of Receipts to be offered or sold
such securities, the Company shall promptly file a registration
statement pursuant to the Securities Act with respect to such
rights, preferences or privileges and securities and use its best
efforts and take all steps available to it to cause such
registration statement to become effective sufficiently in advance
of the expiration of such rights, preferences or privileges to
enable such holders to exercise such rights, preferences or
privileges. In no event shall the Depositary make available to the
holders of Receipts any right, preference or privilege to subscribe
for or to purchase any securities unless and until such
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.
If any other action under the law 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 reasonable best
efforts to take such action or obtain such authorization, consent
or permit sufficiently in advance of the expiration of such rights,
preferences or privileges to enable such holders to exercise such
rights, preferences or privileges.
SECTION 4.04. Notice of Dividends, Fixing of Record Date
for Holders of Receipts. Whenever (i) any cash dividend or other
cash distribution shall become payable, or any distribution other
than cash shall be made, or any rights, preferences or privileges
shall at any time be offered, with respect to the Stock, or (ii)
the Depositary shall receive notice of any meeting at which holders
of Stock are entitled to vote or of which holders of Stock are
entitled to notice or of the mandatory conversion of, or any
election on the part of the Company to call for the redemption or
exchange of, any shares of Stock, the Depositary shall in each such
instance fix a record date (which shall be the same date as the
record date fixed by the Company with respect to the Stock) for the
determination of the holders of Receipts (x) who shall be entitled
to receive such dividend, distribution, rights, preferences or
privileges or the net proceeds of the sale thereof, or (y) who
shall be entitled to give instructions for the exercise of voting
rights at any such meeting or to receive notice of such meeting or
of such conversion, exchange or redemption.
SECTION 4.05. Voting Rights. Upon receipt of notice of
any meeting at which the holders of Stock are entitled to vote, the
Depositary shall, as soon as practicable thereafter, mail to the
record
11
holders of Receipts a notice, which shall be provided by the
Company and which shall contain (i) such information as is
contained in such notice of meeting, (ii) a statement that the
holders of Receipts at the close of business on a specified record
date fixed pursuant to Section 4.04 will be entitled, subject to
any applicable provision of law, the Certificate of Incorporation
or the Certificate of Designations, to instruct the Depositary as
to the exercise of the voting rights pertaining to the Stock
represented by their respective Depositary Shares and (iii) 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 Stock represented by the Depositary Shares
evidenced by such Receipt in accordance with the instructions set
forth in such request. The Company hereby agrees to take all
reasonable action that may be deemed necessary by the Depositary in
order to enable the Depositary to vote such Stock or cause such
Stock to be voted. In the absence of specific instructions from
the holder of a Receipt, the Depositary will abstain from voting to
the extent of the Stock represented by the Depositary Shares
evidenced by such Receipt.
SECTION 4.06. Changes Affecting Stock and Reclassification,
Recapitalize, etc. Upon any split-up, consolidation or any other
reclassification of Stock, or upon any recapitalization,
reorganization, merger, amalgamation or consolidation affecting the
Company or to which it is a party or sale of all or substantially
all of the Company's assets, the Depositary shall treat any shares
of stock or other securities or property (including cash) that
shall be received by the Depositary in exchange for or upon
conversion of or in respect of the Stock as new deposited property
under this Deposit Agreement, and Receipts then outstanding shall
thenceforth represent the proportionate interests of holders
thereof in the new deposited property 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 property.
SECTION 4.07. Reports. The Company or, at the option of
the Company, the Depositary shall forward to the holders of
Receipts any reports and communications received from the Company
that are received by the Depositary as the holder of Stock.
SECTION 4.08. Lists of Receipt Holders. 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. At the
expense of the Company, the Company shall have the right to inspect
transfer and registration records of the Depositary, any
Depositary's Agent or the Registrar, take copies thereof and
require the Depositary, any Depositary's Agent or the Registrar to
supply copies of such portions of such records as the Company may
request.
12
ARTICLE V
THE DEPOSITARY, THE DEPOSITARY'S AGENTS,
THE REGISTRAR AND THE COMPANY
SECTION 5.01. Maintenance of Offices, Agencies,
Transfer Books by the Depositary; the Registrar. Upon execution of
this Deposit Agreement in accordance with its terms, the Depositary
shall maintain (i) at the New York Office facilities for the
execution and delivery, registration, registration of transfer,
surrender and exchange, split-up, combination, redemption, exchange
and conversion of Receipts and deposit and withdrawal of Stock and
(ii) at the Corporate Office and at the offices of the Depositary's
Agents, if any, facilities for the delivery, registration,
registration of transfer, surrender and exchange, split-up,
combination, conversion, exchange and redemption of Receipts and
deposit and withdrawal of Stock, all in accordance with the
provisions of this Deposit Agreement.
The Depositary, acting as transfer agent and Registrar,
shall keep books at the Corporate Office for the registration and
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. The Depositary shall consult with
the Company upon receipt of any request for inspection. The
Depositary may close such books, at any time or from time to time,
when deemed expedient by it in connection with the performance of
its duties hereunder.
If the Receipts or the Depositary Shares evidenced
thereby or the Stock represented by such Depositary Shares shall be
listed on one or more stock exchanges, the Depositary shall, with
the approval of the Company, appoint a Registrar for registry of
such Receipts or Depositary Shares in accordance with the
requirements of such exchange or exchanges. Such Registrar (which
may be the Depositary if so permitted by the requirements of such
exchange or exchanges) may be removed and a substitute registrar
appointed by the Depositary upon the request or with the approval
of the Company. In addition, if the Receipts, such Depositary
Shares or such Stock are listed on one or more stock exchanges, the
Depositary will, at the request of the Company, arrange such
facilities for the delivery, registration, registration of
transfer, surrender and exchange, split-up, combination, redemption
or conversion of such Receipts, such Depositary Shares or such
Stock as may be required by law or applicable stock exchange
regulations.
SECTION 5.02. Prevention of Delay in Performance by the
Depositary, The Depositary's Agents, the Registrar or the Company.
Neither the Depositary nor any Depositary's Agent nor the
Registrar nor the Company shall incur any liability to any holder
of any Receipt, if by reason of any provision of any present or
future law or regulation thereunder of the United States of America
or of any other governmental authority or, in the case of the
Depositary, the Registrar or any
13
Depositary's Agent, by reason of
any provision, present or future, of the Certificate of
Incorporation or the Certificate of Designations or, in the case of
the Company, the Depositary, the Registrar or any Depositary's
Agent, by reason of any act of God or war or other circumstances
beyond the control of the relevant party, the Depositary, any
Depositary's Agent, the Registrar or the Company shall be prevented
or forbidden from doing or performing any act or thing that the
terms of this Deposit Agreement provide shall be done or performed;
nor shall the Depositary, any Depositary's Agent, the Registrar 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 that the terms of this Deposit
Agreement provide shall or may be done or performed, or (ii) by
reason of any exercise of, or failure to exercise, any discretion
provided for in this Deposit Agreement except, in the case of the
Depositary, any Depositary's Agent or the Registrar, if any such
exercise or failure to exercise discretion is caused by its
negligence or bad faith.
SECTION 5.03. Obligations of the Depositary, the Depositary's
Agents, the Registrar and the Company. The Company assumes no
obligation and shall be subject to no liability under this Deposit
Agreement or the Receipts to holders or other persons, except to
perform in good faith such obligations as are specifically set
forth and undertaken by it to perform in this Deposit Agreement.
Each of the Depositary, the Depositary's Agents and the Registrar
assumes no obligation and shall be subject to no liability under
this Deposit Agreement or the Receipts to holders or other persons,
except to perform such obligations as are specifically set forth
and undertaken by it to perform in this Deposit Agreement without
negligence or bad faith.
Neither the Depositary nor any Depositary's Agent nor the
Registrar nor the Company shall be under any obligation to appear
in, prosecute or defend any action, suit or other proceeding with
respect to Stock, Depositary Shares or Receipts that 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 the
Registrar nor the Company shall be liable for any action or any
failure to act by it in reliance upon the advice of or information
from legal counsel, accountants, 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 advice or information.
The Depositary, any Depositary's Agent, the Registrar and the
company may each rely and shall each be protected in acting upon
any written notice, request, direction or other document believed
by it to be genuine and to have been signed or presented by the
proper party or parties.
The Depositary, the Registrar and any Depositary's Agent
may own and deal in any class of securities of the Company and its
affiliates and in Receipts or Depositary Shares. The Depositary
may also act as transfer agent or registrar of any of the
securities of the Company and its affiliates.
It is intended that neither the Depositary nor any
Depositary's Agent nor the Registrar shall be deemed to be an
"issuer" of the Stock, the Depositary Shares or the Receipts or
other securities issued upon conversion, exchange or redemption of
the Stock under the federal securities laws or applicable state
securities laws, it being expressly understood and agreed that the
Depositary and any Depositary's Agent and the Registrar are acting
only in a ministerial capacity; provided, however, that
14
the
Depositary agrees to comply with all information reporting and
withholding requirements applicable to it under law or this Deposit
Agreement in its capacity as Depositary.
Neither the Depositary (or its officers, directors, employees
or agents) nor any Depositary's Agent nor the Registrar makes any
representation or has any responsibility as to the validity of the
Registration Statement pursuant to which the Depositary Shares are
registered under the Securities Act, the Stock, the Depositary
Shares or any instruments referred to therein or herein, or as to
the correctness of any statement made therein or herein; provided,
however, that the Depositary is responsible for its representations
in this Deposit Agreement.
The Depositary assumes no responsibility for the
correctness of the description that appears in the Receipts, which
can be taken as a statement of the Company summarizing certain
provisions of this Deposit Agreement. Notwithstanding any other
provision herein or in the Receipts, the Depositary makes no
warranties or representations as to the validity, genuineness or
sufficiency of any Stock at any time deposited with the Depositary
hereunder or of the Depositary Shares, as to the validity or
sufficiency of this Deposit Agreement, as to the value of the
Depositary Shares or as to any right, title or interest of the
record holders of Receipts in and to the Depositary Shares except
that the Depositary hereby represents and warrants as follows: (i)
the Depositary has been duly organized and is validly existing and
in good standing under the laws of the jurisdiction of its
incorporation, with full power, authority and legal right under
such law to execute, deliver and carry out the terms of this
Deposit Agreement; (ii) this Deposit Agreement has been duly
authorized, executed and delivered by the Depositary; and (iii)
this Deposit Agreement constitutes a valid and binding obligation
of the Depositary, enforceable against the Depositary in accordance
with its terms, except as enforcement thereof may be limited by
bankruptcy, insolvency, reorganization or other similar laws
affecting enforcement of creditors, rights generally and except as
enforcement thereof is subject to general principles of equity
(regardless of whether enforcement is considered in a proceeding in
equity or at law). The Depositary shall not be accountable for the
use or application by the Company of the Depositary Shares or the
Receipts or the proceeds thereof.
SECTION 5.04. Resignation and Removal of the Depositary,
Appointment of Successor Depositary. The Depositary may at any
time resign as Depositary hereunder by written notice via
registered mail 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 written 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, or an affiliate of a bank or trust company, having its
principal office in the United States of America and having a
combined
15
capital and surplus of at least $50,000,000. If a
successor depositary shall not have been appointed in 60 days, the
resigning or removed Depositary may petition a court of competent
jurisdiction to appoint 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 promptly execute and deliver
an instrument transferring to such successor all rights and powers
of such predecessor hereunder, shall duly assign, transfer and
deliver all rights, title and interest in the Stock and any moneys
or property held hereunder to such successor and shall deliver to
such successor a list of the record holders of all outstanding
Receipts. 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. Such successor depositary may execute the Receipts
either in the name of the predecessor depositary or in the name of
the successor depositary.
SECTION 5.05. Corporate Notices and Reports. The Company
agrees that it will deliver to the Depositary, and the Depositary
will, promptly after receipt thereof, transmit to the record
holders of Receipts, in each case at the address recorded in the
Depositary's books, copies of all notices and reports (including
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 Certificate of Incorporation and
the Certificate of Designations to be furnished by the Company to
holders of Stock. Such transmission will be at the Company's
expense and the Company will provide the Depositary with such
number of copies of such documents as the Depositary may reasonably
request. In addition, the Depositary will transmit to the record
holders of Receipts at the Company's expense such other documents
as may be requested by the Company.
SECTION 5.06. Deposit of Stock by the Company. The
Company agrees with the Depositary that neither the Company nor any
company controlled by the Company will at any time deposit any
Stock if such Stock is required to be registered under the
provisions of the Securities Act and no registration statement is
at such time in effect as to such Stock.
SECTION 5.07. Indemnification by the Company. The
Company agrees to indemnify the Depositary, any Depositary's Agent
and any Registrar against, and hold each of them harmless from, any
liability, costs and expenses (including reasonable fees and
expenses of counsel) that may arise out of or in connection with
its acting as Depositary, Depositary's Agent or Registrar,
respectively, under this Deposit Agreement and the Receipts, except
for any liability arising out of negligence, bad faith or willful
misconduct on the part of any such person or persons.
SECTION 5.08. Fees, Charges and Expenses. No fees,
charges and expenses of the Depositary or any Depositary's Agent
hereunder or of any Registrar shall be payable by any person other
than the
16
Company, except for any taxes and other governmental
charges and except as provided in this Deposit Agreement. If, at
the request of a holder of a Receipt, the Depositary incurs fees,
charges or expenses for which it is not otherwise liable hereunder,
such holder or other person will be liable for such fees, charges
and expenses. All other fees, charges and expenses of the
Depositary and any Depositary's Agent hereunder and of any
Registrar (including, in each case, reasonable fees and expenses of
counsel) incident to the performance of their respective
obligations hereunder will be paid from time to time upon
consultation and agreement between the Depositary and the Company
as to the amount and nature of such fees, charges and expenses.
ARTICLE VI
AMENDMENT AND TERMINATION
SECTION 6.01. Amendment. The form of the Receipts and
any provision 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 that they may deem necessary or
desirable; provided, however, that no such amendment that shall
materially and adversely alter the rights of the holders of
Receipts shall be effective as to outstanding Receipts until the
expiration of 90 days after notice of such amendment shall have
been given to the record holders of outstanding Receipts and unless
such amendment shall have been approved by the holders of at least
a majority of the Depositary Shares outstanding. Every holder of
an outstanding Receipt at the time 90 days after such notice of
amendment shall have been given shall be deemed, by continuing to
hold such Receipt, to consent and agree to such amendment and to be
bound by this Deposit Agreement as amended thereby. In no event
shall any amendment impair the right, subject to the provisions of
Sections 2.03, 2.06 and 2.07 and Article III, of any owner of any
Depositary Shares to surrender the Receipt evidencing such
Depositary Shares with instructions to the Depositary to deliver to
the holder the Stock and all money and other property, if any,
represented thereby, except in order to comply with mandatory
provisions of applicable law.
SECTION 6.02. Termination. Whenever so directed by the
Company, the Depositary will terminate this Deposit Agreement by
mailing notice of such termination to the record holders of all
Receipts then outstanding at least 30 days prior to the date fixed
in such notice for such termination. The Depositary may likewise
terminate this Deposit Agreement if at any time 60 days shall have
expired after the Depositary shall have delivered to the Company a
written notice of its election to resign and a successor depositary
shall not have been appointed and accepted its appointment as
provided in Section 5.04.
If any Receipts shall remain outstanding after the date
of termination of this Deposit Agreement, the Depositary thereafter
shall discontinue the transfer of Receipts, shall suspend the
distribution of dividends to the holders thereof and shall not give
any further notices (other than notice of such termination) or
perform any further acts under this Deposit Agreement, except as
provided below and that the Depositary shall continue to collect
dividends and other distributions pertaining to Stock, shall sell
rights, preferences or privileges as provided in this Deposit
Agreement and shall continue to
17
deliver the Stock and any money and
other property represented by Receipts, without liability for
interest thereon, upon surrender thereof by the holders thereof.
At any time after the expiration of two years from the date of
termination, the Depositary may sell Stock then held hereunder at
public or private sale, at such places and upon such terms as it
deems proper and may thereafter hold in a segregated account the
net proceeds of any such sale, together with any money and other
property held by it hereunder, without liability for interest, for
the benefit, pro rata in accordance with their holdings, of the
holders of Receipts that have not heretofore been surrendered.
After making such sale, the Depositary shall be discharged from all
obligations under this Deposit Agreement except to account for such
net proceeds and money and other property. Upon the termination of
this Deposit Agreement, the Company shall be discharged from all
obligations under this Deposit Agreement except for its obligations
to the Depositary, any Depositary's Agent and any Registrar under
Sections 5.07 and 5.08. In the event this Deposit Agreement is
terminated, the Company hereby agrees to use its best efforts to
list the underlying Stock on the New York Stock Exchange, Inc.
ARTICLE VII
MISCELLANEOUS
SECTION 7.01. Counterparts. This Deposit Agreement may
be executed by the Company and the Depositary in 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.
Delivery of an executed counterpart of a signature page to this
Deposit Agreement by telecopier shall be effective as delivery of
a manually executed counterpart of this 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 corporate office and the New York Office and
the respective offices of the Depositary's Agents, if any, by any
holder of a Receipt.
SECTION 7.02. Exclusive Benefits 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 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 by telegram or telex or telecopier confirmed by
letter, addressed to the Company at 0000 Xxxxxxx Xx., Xxx Xxxxxxx,
Xxxxxxxxx 00000, Attention: Secretary, or at any other place to
which the Company may have transferred its principal executive
office.
18
Any 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 or telecopier confirmed by letter, addressed to
the Depositary at the Corporate Office.
Any notices 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 or telecopier 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 or telecopier shall be deemed to be effected at the time when
a duly addressed letter containing the same (or a duly addressed
letter confirming an earlier notice in the case of a telegram or
telex or telecopier message) is deposited, postage prepaid, in a
post office letter box. The Depositary or the Company may,
however, act upon any telegram or telex or telecopier message
received by it from the other or from any holder of a Receipt,
notwithstanding that such telegram or telex or telecopier message
shall not subsequently be confirmed by letter as aforesaid.
SECTION 7.05. Depositary's Agents. The Depositary may,
with the approval of the Company which approval shall not be
unreasonably withheld, from time to time appoint one or more
Depositary's Agents to act in any respect for the Depositary for
the purposes of this Deposit Agreement and may vary or terminate
the appointment of such Depositary's Agents.
SECTION 7.06. Holders of Receipts Are Parties.
Notwithstanding that holders of Receipts have not executed and
delivered this Deposit Agreement or any counterpart thereof, the
holders of Receipts from time to time shall be deemed to be parties
to this Deposit Agreement and shall be bound by all of the terms
and conditions, and be entitled to all of the benefits, hereof and
of the Receipts by acceptance of delivery of Receipts.
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 law of the State of New York without giving
effect to principles of conflict of laws.
SECTION 7.08. 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 to have any bearing upon the meaning or interpretation of any
provision contained herein or in the Receipts.
19
IN WITNESS WHEREOF, Freeport-McMoRan Copper & Gold Inc.
and _____________________________ have duly executed this Deposit
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.
FREEPORT-MCMORAN
COPPER & GOLD INC.
Attest:
--------------------
By:
---------------------
Authorized Officer
Attest:
____________
By:
-----------------------
Authorized Officer
20
Exhibit A
[See Exhibit 4.11 to this Registration Statement.]
21
