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EXHIBIT 4.3
FORM OF DEPOSIT AGREEMENT
WITH RESPECT TO THE DEPOSITARY SHARES
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FIDELITY NATIONAL FINANCIAL, INC.,
[_______________________________], AS DEPOSITARY
AND
THE HOLDERS FROM TIME TO TIME OF
THE DEPOSITARY RECEIPTS DESCRIBED HEREIN
DEPOSIT AGREEMENT
DATED AS OF ___________
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TABLE OF CONTENTS
PAGE
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ARTICLE I
DEFINITIONS
Certificate............................................................................... 1
Company................................................................................... 1
Deposit Agreement......................................................................... 1
Depositary................................................................................ 1
Depositary Shares......................................................................... 1
Depositary's Agent........................................................................ 1
Depositary's Office....................................................................... 2
Receipt................................................................................... 2
Record holder............................................................................. 2
Registrar................................................................................. 2
Stock..................................................................................... 2
ARTICLE II
FORM OF RECEIPTS; DEPOSIT OF PREFERRED STOCK; EXECUTION AND DELIVERY;
TRANSFER, SURRENDER AND REDEMPTION OF RECEIPTS
Section 2.01. Form and Transfer of Receipts.............................................. 2
Section 2.02. Deposit of Preferred Stock; Execution and Delivery of Receipts in
Respect Thereof............................................................ 3
Section 2.03. Redemption of Preferred Stock.............................................. 4
Section 2.04. Registration of Transfer of Receipts....................................... 5
Section 2.05. Split-ups and Combinations of Receipts; Surrender of Receipts and
Withdrawal of Preferred Stock.............................................. 5
Section 2.06. Limitations on Execution and Delivery, Transfer, Surrender and
Exchange of Receipts....................................................... 6
Section 2.07. Lost Receipts, etc......................................................... 6
Section 2.08. Cancellation and Destruction of Surrendered Receipts....................... 7
Section 2.09. Conversion of Preferred Stock into Common Stock............................ 7
ARTICLE III
CERTAIN OBLIGATIONS OF HOLDERS OF RECEIPTS AND THE COMPANY
Section 3.01. Filing Proofs, Certificates and Other Information.......................... 7
Section 3.02. Payment of Taxes or Other Governmental Charges............................. 7
Section 3.03. Warranty as to Preferred Stock............................................. 8
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TABLE OF CONTENTS (Continued)
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ARTICLE IV
THE DEPOSITED SECURITIES; NOTICES
Section 4.01. Cash Distributions......................................................... 8
Section 4.02. Distributions Other than Cash, Rights, Preferences or Privileges........... 8
Section 4.03. Subscription Rights, Preferences or Privileges............................. 9
Section 4.04. Notice of Dividends, etc.; Fixing of Record Date for Holders of
Receipts................................................................... 10
Section 4.05. Voting Rights.............................................................. 10
Section 4.06. Changes Affecting Deposited Securities and Reclassifications,
Recapitalizations, etc..................................................... 10
Section 4.07. Inspection of Reports...................................................... 11
Section 4.08. Lists of Receipt Holders................................................... 11
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...................................................... 11
Section 5.02. Prevention of or Delay in Performance by the Depositary,
the Depositary's Agents, the Registrar or the Company...................... 12
Section 5.03. Obligations of the Depositary, the Depositary's Agents, the
Registrar and the Company.................................................. 12
Section 5.04. Resignation and Removal of the Depositary; Appointment of
Successor Depositary....................................................... 13
Section 5.05. Corporate Notices and Reports.............................................. 14
Section 5.06. Indemnification by the Company............................................. 14
Section 5.07. Charges and Expenses....................................................... 14
ARTICLE VI
AMENDMENT AND TERMINATION
Section 6.01. Amendment.................................................................. 15
Section 6.02. Termination................................................................ 15
ARTICLE VII
MISCELLANEOUS
Section 7.01. Counterparts............................................................... 15
Section 7.02. Exclusive Benefit of Parties............................................... 15
Section 7.03. Invalidity of Provisions................................................... 15
Section 7.04. Notices.................................................................... 16
Section 7.05. Depositary's Agents........................................................ 16
Section 7.06. Holders of Receipts Are Parties............................................ 16
Section 7.07. Governing Law.............................................................. 16
Section 7.08. Inspection of Deposit Agreement............................................ 16
Section 7.09. Headings................................................................... 17
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DEPOSIT AGREEMENT
dated as of _________,
among
FIDELITY NATIONAL FINANCIAL, INC.,
a Delaware corporation,
[_____________________________________],
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 [Cumulative] [Convertible]
Preferred Stock, Series ___, par value [$.0001] per share (the "Preferred
Stock"), of FIDELITY NATIONAL FINANCIAL, INC. 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 Preferred 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 terms used in this Deposit Agreement:
"Certificate" shall mean the certificate of designations filed with the
Secretary of State of Delaware establishing the Preferred Stock as a series of
preferred stock of the Company.
"Company" shall mean Fidelity National Financial, Inc., a Delaware
corporation, and its successors.
"Deposit Agreement" shall mean this Deposit Agreement, as amended or
supplemented from time to time.
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"Depositary" shall mean [__________________________], and any successor
as Depositary hereunder.
"Depositary Shares" shall mean Depositary Shares, each representing [one
quarter] of a share of Preferred Stock and evidenced by a Receipt.
"Depositary's Agent" shall mean an agent appointed by the Depositary
pursuant to Section 7.05.
"Depositary's Office" shall mean the office of the Depositary in
[________________________], 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.
"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 to register ownership and transfers of Receipts as herein provided.
ARTICLE II
FORM OF RECEIPTS; DEPOSIT OF PREFERRED STOCK; EXECUTION AND DELIVERY;
TRANSFER, SURRENDER AND REDEMPTION OF RECEIPTS
SECTION 201. 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 Preferred
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 an office
described in the last 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 Deposit Agreement, and with respect to the Preferred Stock, as definitive
Receipts.
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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.
Receipts shall be in denominations of any number of whole Depositary
Shares up to but not in excess of __________ Depositary Shares for any
particular Receipt.
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 Preferred 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 PREFERRED 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 Preferred Stock may from time to time
deposit shares of the Preferred Stock under this Deposit Agreement by delivery
to the Depositary of a certificate or certificates for the Preferred 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 Preferred Stock.
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Deposited Preferred Stock shall be held by the Depositary at the
Depositary's Office or at such other place or places as the Depositary shall
determine.
Upon receipt by the Depositary of a certificate or certificates for
Preferred Stock deposited in accordance with the provisions of this Section,
together with the other documents required as above specified, and upon
recordation of the Preferred Stock on the books of the Company in the name of
the Depositary or its nominee, the Depositary, subject to the terms and
conditions of this Deposit Agreement, shall execute and deliver, to or upon the
order of the person or persons named in the written order delivered to the
Depositary referred to in the first paragraph of this Section, a Receipt or
Receipts for the number of Depositary Shares representing the Preferred 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.
Other than in the case of splits, combinations or other
reclassifications affecting the Preferred Stock, or in the case of dividends or
other distributions of Preferred Stock, if any, there shall be deposited
hereunder not more than _________ shares of Preferred Stock.
SECTION 2.03. REDEMPTION OF PREFERRED STOCK. Whenever the Company shall
elect to redeem shares of Preferred Stock in accordance with the provisions of
the Certificate, if the Certificate provides for such redemption, 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 Preferred Stock, which notice shall be accompanied by a
certificate from the Company stating that such redemption of Preferred Stock is
in accordance with the provisions of the Certificate. Such notice, if given more
than 50 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 Preferred Stock to be redeemed, plus any
accrued and unpaid dividends thereon, the Depositary shall redeem the number of
Depositary Shares representing such Preferred Stock. The Depositary shall mail
notice of such redemption and the proposed simultaneous redemption of the number
of Depositary Shares representing the Preferred 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 Preferred 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
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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 Preferred Stock
represented by the Depositary Shares to be redeemed will cease to accumulate on
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 on
a pro rata basis as determined by the Company.
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 Preferred 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 Preferred 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) shall, to the extent
of such Depositary Shares cease and terminate and, upon surrender in accordance
with such notice of the Receipts evidencing any such Depositary Shares (properly
endorsed or assigned for transfer, if the Depositary shall so require), such
Depositary Shares shall be redeemed by the Depositary at a redemption price per
Depositary Share equal to [ %] of the redemption price per share paid in respect
of the shares of Preferred Stock plus all money and other property, if any,
represented by such Depositary Shares, including all amounts paid by the Company
in respect of dividends which on the Redemption Date have accumulated on the
shares of Preferred Stock to be so redeemed and have not theretofore been paid.
If less than all the Depositary Shares are called for redemption, the
Depositary will call for redemption Receipts evidencing the number of Depositary
Shares to be redeemed on a pro rata basis. If less than all the Depositary
Shares evidenced by a Receipt are called for redemption, the Depositary will
deliver to the holder of such Receipt upon its surrender to the Depositary,
together with the redemption payment, a new Receipt evidencing the Depositary
Shares evidenced by such prior Receipt and not called for redemption.
SECTION 2.04. 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 shall execute a new Receipt or Receipts evidencing the same aggregate
number of Depositary Shares as those evidenced by the Receipt or Receipts
surrendered and deliver such new Receipt or Receipts to or upon the order of the
person entitled thereto.
SECTION 2.05. SPLIT-UPS AND COMBINATIONS OF RECEIPTS; SURRENDER OF
RECEIPTS AND WITHDRAWAL OF PREFERRED 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.
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Any holder of a Receipt or Receipts representing any number of whole
shares of Preferred Stock may withdraw the Preferred Stock and all money and
other property, if any, represented thereby by surrendering such Receipt or
Receipts at the Depositary's Office or at such other offices as the Depositary
may designate for such withdrawals. Thereafter, without unreasonable delay, the
Depositary shall deliver to such holder, or to the person or persons designated
by such holder as hereinafter provided, the number of whole shares of Preferred
Stock and all money and other property, if any, represented by the Receipt or
Receipts so surrendered for withdrawal, but holders of such whole shares of
Preferred Stock will not thereafter be entitled to deposit such Preferred Stock
hereunder or to receive Depositary Shares therefor. 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 Preferred Stock to be so withdrawn,
the Depositary shall at the same time, in addition to such number of whole
shares of Preferred Stock and such money and other property, if any, to be so
withdrawn, deliver to such holder, or (subject to Section 2.03) upon his order,
a new Receipt evidencing such excess number of Depositary Shares. Delivery of
the Preferred Stock and money and other property being withdrawn may be made by
the delivery of such certificates, documents of title and other instruments as
the Depositary may deem appropriate.
If the Preferred 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 Preferred 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 Preferred Stock be
properly endorsed in blank or accompanied by a properly executed instrument of
transfer in blank.
Delivery of the Preferred Stock and the money and other property, if
any, represented by Receipts surrendered for withdrawal shall be made by the
Depositary at the Depositary's Office, except that, at the request, risk and
expense of the holder surrendering such Receipt or Receipts and for the account
of the holder thereof, 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 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, may require the production of evidence
satisfactory to it as to the identity and genuineness of any signature and may
also require compliance with such regulations, if any, as the Depositary or the
Company may establish consistent with the provisions of this Deposit Agreement.
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The deposit of Preferred Stock may be refused, the delivery of Receipts
against Preferred 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 shareholders of the Company is closed, or (ii) if any such action is deemed
necessary or advisable by the Depositary, any of the Depositary's Agents or the
Company at any time or from time to time because of any requirement of law or of
any government or governmental body or commission or under any provision of this
Deposit Agreement.
SECTION 2.07. 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 an
indemnity bond 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
cancelled by the Depositary. Except as prohibited by applicable law or
regulation, the Depositary is authorized to destroy all Receipts so cancelled.
[SECTION 2.09. CONVERSION OF PREFERRED STOCK INTO COMMON STOCK. It is
understood and agreed that the Depositary Shares are not convertible into the
Common Stock, par value [$0.0001] per share, of the Company (the "Common Stock")
or any other securities or property of the Company. Nevertheless, as a matter of
convenience, the Company hereby agrees to accept (or to cause its conversion
agent to accept) the delivery of Receipts for the purpose of effecting
conversions of the Preferred Stock utilizing the same procedures as those
provided for delivery of Preferred Stock certificates to effect such conversions
in accordance with the terms and conditions of the Certificate; provided,
however, that only whole Depositary Shares may be so submitted for conversion.
If fewer than all of the Depositary Shares evidenced by a Receipt are to be
converted, the Company shall instruct the Depositary to issue a new Receipt or
Receipts for the Depositary Shares not to be converted. For this purpose, a
holder of a Receipt or Receipts may surrender such Receipt or Receipts to the
Company at the Depositary's Office or at such other office as the Company may
from time to time designate for such purpose, together with a duly completed and
executed Notice of Conversion in the form included in the Receipt. In all cases,
the foregoing shall be conditioned upon compliance in full by the holder of such
Receipt or Receipts with the terms and conditions of the Certificate and of this
Deposit Agreement. The Company shall instruct the Depositary to cancel each
Receipt surrendered for such conversion and to deliver to the Company any
certificates for related Preferred Stock so converted, and the Company will
cancel such Preferred Stock certificates.]
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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
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 Preferred 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 Preferred Stock and all money or other
property, if any, represented by the Depositary Shares evidenced by such Receipt
may be refused until any such payment due is made, and any dividends, interest
payments or other distributions may be withheld or any part of or all the
Preferred 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 PREFERRED STOCK. The Company hereby
represents and warrants that the Preferred Stock, when issued, will be validly
issued, fully paid and nonassessable. Such representation and warranty shall
survive the deposit of the Preferred Stock and the issuance of Receipts.
ARTICLE IV
THE DEPOSITED SECURITIES; NOTICES
SECTION 4.01. CASH DISTRIBUTIONS. Whenever the Depositary shall receive
any cash dividend or other cash distribution on Preferred Stock, the Depositary
shall, subject to Sections 3.01 and 3.02, distribute to record holders of
Receipts on the record date fixed pursuant to Section 4.04 such amounts of 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 Preferred 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
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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, rights, preferences or privileges upon Preferred Stock, the Depositary
shall, subject to Sections 3.01 and 3.02, distribute to record holders of
Receipts on the record date fixed pursuant to Section 4.04 such amounts of the
securities or property received by it as are, as nearly as practicable, in
proportion to the respective numbers of Depositary Shares evidenced by the
Receipts held by such holders, in any manner that the Depositary may deem
equitable and practicable for accomplishing 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,
subject to Sections 3.01 and 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. The Company shall not make any distribution of such securities 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
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 Preferred Stock is recorded on the books of the Company any rights,
preferences or privileges to subscribe for or to purchase any securities or any
rights, preferences or privileges of any other nature, such rights, preferences
or privileges shall in each such instance be made available by the Depositary to
the record holders of Receipts in such manner as the Depositary may determine,
either by the issue to such record holders of warrants representing such rights,
preferences or privileges or by such other method as may be approved by the
Depositary in its discretion with the approval of the Company; provided,
however, that (i) if at the time of issue or offer of any such rights,
preferences or privileges the Depositary determines that it is not lawful or
(after consultation with the Company) not feasible to make such rights,
preferences or privileges available to holders of Receipts by the issue of
warrants or otherwise, or (ii) if and to the extent so instructed by holders of
Receipts who do not desire to exercise such rights, preferences or privileges,
then the Depositary, in its discretion (with the approval of the Company, in any
case where the Depositary has determined that it is not feasible to make such
rights, preferences or privileges available), may, if applicable laws or the
terms of such rights, preferences or privileges permit such transfer, sell such
rights, preferences or privileges at public or private sale, at such place or
places and upon such terms as it may deem proper. The net proceeds of any such
sale shall,
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subject to Sections 3.01 and 3.02, 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. The Company 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 registered.
If registration under the Securities Act of 1933 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
Preferred Stock, or whenever the Depositary shall receive notice of any meeting
at which holders of Preferred Stock are entitled to vote or of which holders of
Preferred 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 Preferred Stock) for the determination
of the holders of Receipts who shall be entitled to receive such dividend,
distribution, rights, preferences or privileges or the net proceeds of the sale
thereof, or to give instructions for the exercise of voting rights at any such
meeting, or who shall be entitled to notice of such meeting or for any other
appropriate reasons.
SECTION 4.05. VOTING RIGHTS. Upon receipt of notice of any meeting at
which the holders of Preferred 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 holders may, subject to any applicable
restrictions, instruct the Depositary as to the exercise of the voting
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rights pertaining to the amount of Preferred 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 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 Preferred
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 Preferred Stock or cause such Preferred Stock
to be voted. In the absence of specific instructions from the holder of a
Receipt, the Depositary will abstain from voting (but, at its discretion, not
from appearing at any meeting with respect to such Preferred Stock unless
directed to the contrary by the holders of all the Receipts) to the extent of
the Preferred 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 Preferred
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
Preferred Stock, and (y) the ratio of the redemption price per Depositary Share
to the redemption price of a share of Preferred Stock, in each case as may be
necessary fully to reflect the effects of such changes in par or stated value,
split-up, combination or other reclassification of Preferred 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 Preferred Stock as new deposited
securities so received in exchange for or upon conversion or in respect of such
Preferred Stock. In any such case the Depositary may in its discretion, with the
approval of the Company, execute and deliver additional Receipts, or may call
for the surrender of all outstanding Receipts to be exchanged for new Receipts
specifically describing such new deposited securities. Anything to the contrary
herein notwithstanding, holders of Receipts shall have the right from and after
the effective date of any such change in par or stated value, split-up,
combination or other reclassification of the Preferred Stock or any such
recapitalization, reorganization, merger, amalgamation or consolidation to
surrender such Receipts to the Depositary with instructions to convert, exchange
or surrender the Preferred Stock represented thereby only into or for, as the
case may be, the kind and amount of shares of stock and other securities and
property and cash into which the Preferred Stock represented by such Receipts
might have been converted or for which such Preferred Stock might have been
exchanged or surrendered immediately prior to the effective date of such
transaction.
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SECTION 4.07. INSPECTION OF REPORTS. The Depositary shall make available
for inspection by 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 Preferred 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.
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. Upon execution of this Deposit Agreement, the Depositary
shall maintain at the Depositary's Office facilities for the execution and
delivery, registration and registration of transfer, surrender and exchange of
Receipts, and at the offices of the Depositary's Agents, if any, facilities for
the delivery, registration of transfer, surrender and exchange of Receipts, all
in accordance with the provisions of this Deposit Agreement.
The Depositary shall keep books at the Depositary's Office for the
registration and registration of transfer of Receipts, which books 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
Preferred 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 substituted registrar appointed by the Depositary upon the request or with
the approval of the Company. If the Receipts, such Depositary Shares or such
Preferred 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 Preferred Stock as may be required by law or
applicable stock exchange regulation.
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SECTION 5.02. PREVENTION OF OR DELAY IN PERFORMANCE BY THE DEPOSITARY,
THE DEPOSITARY'S AGENTS, THE REGISTRAR OR THE COMPANY. Neither the Depositary
nor any Depositary's Agent nor any Registrar nor the Company shall incur any
liability to any holder of any Receipt if by reason of any provision of any
present or future law, or regulation thereunder, of the United States of America
or of any other governmental authority or, in the case of the Depositary, the
Depositary's Agent or the Registrar, by reason of any provision, present or
future, of the Company's Articles of Incorporation (including the Certificate)
or by reason of any act of God or war or other circumstance beyond the control
of the relevant party, the Depositary, the Depositary's Agent, the Registrar 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 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 AND THE COMPANY . Neither the Depositary nor any Depositary's
Agent nor any Registrar nor the Company assumes any obligation or shall be
subject to any liability under this Deposit Agreement to holders of Receipts
other than for its negligence or willful misconduct.
Neither the Depositary nor any Depositary's Agent nor any Registrar nor
the Company shall be under any obligation to appear in, prosecute or defend any
action, suit or other proceeding in respect of the Preferred Stock, the
Depositary Shares or the Receipts which in its opinion may involve it in expense
or liability unless indemnity satisfactory to it against all expense and
liability be furnished as often as may be required.
Neither the Depositary nor any Depositary's Agent nor any Registrar nor
the Company shall be liable for any action or any failure to act by it in
reliance upon the written advice of legal counsel or accountants, or information
from any person presenting Preferred Stock for deposit, any holder of a Receipt
or any other person believed by it in good faith to be competent to give such
information. The Depositary, any Depositary's Agent, any Registrar and 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 shall not be responsible for any failure to carry out any
instruction to vote any of the shares of Preferred 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 shall be required to
undertake, to perform such duties and only such duties as are specifically set
forth in this Deposit Agreement, and no implied covenants or obligations shall
be read into this Deposit Agreement against the Depositary or any Registrar. The
Depositary will indemnify the
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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 and any Registrar may own and deal in any
class of securities of the Company and its affiliates and Receipts. The
Depositary may also act as transfer agent or registrar of any of the securities
of the Company and its affiliates.
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 so to do 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 Preferred 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, 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
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by law, by the rules of any national securities exchange upon which the
Preferred Stock, the Depositary Shares or the Receipts are listed or by the
Company's Articles of Incorporation (including the Certificate) to be furnished
by the Company to holders of Preferred 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 and any Registrar against, and
hold each of them harmless from, any loss, liability or expense (including the
costs and expenses of defending itself) which may arise out of (i) acts
performed or omitted in connection with this Deposit Agreement and the Receipts
(a) by the Depositary, any Registrar or any of their respective agents
(including any Depositary's Agent), except for any liability arising out of
negligence, bad faith or willful misconduct on the respective parts of any such
person or persons, or (b) by the Company or any of its agents, or (ii) the
offer, sale or registration of the Receipts or the Preferred 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 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 agreed upon charges of
the Depositary in connection with the initial deposit of the Preferred Stock and
the initial issuance of the Depositary Shares, redemption of the Preferred Stock
at the option of the Company and all withdrawals of shares of the Preferred
Stock by owners of Depositary Shares. All other transfer and other taxes and
governmental charges shall be at the expense of holders of Depositary Shares.
If, at the request of a holder of Receipts, the Depositary incurs charges or
expenses for which it is not otherwise liable hereunder, such holder will be
liable for such charges and expenses. All other charges and expenses of the
Depositary and any Depositary's Agent hereunder and of any Registrar (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 each month 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 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 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 this Deposit
Agreement as amended thereby.
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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 Preferred Stock in connection with any
liquidation, dissolution or winding up of the Company and such distribution
shall have been distributed to the holders of Depositary Shares pursuant to
Section 4.01 or 4.02, as applicable.
Upon the termination of this Deposit Agreement, the Company shall be
discharged from all obligations under this Deposit Agreement except for its
obligations to the Depositary, any Depositary's Agent and any Registrar 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 by telegram or telex
confirmed by letter, addressed to the Company at βββββ βββ ββββββ ββββββ, βββββ
βββ, ββββββ, ββββββββββ βββββ, to the attention of the Senior Vice President and
General Counsel, 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.
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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 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. The Depositary may from time to time
appoint Depositary's Agents to act in any respect for the Depositary for the
purposes of this Deposit Agreement and may at any time appoint additional
Depositary's Agents and vary or terminate the appointment of such Depositary's
Agents. The Depositary will notify the Company of any such action.
SECTION 7.06. HOLDERS OF RECEIPTS ARE PARTIES. The holders of Receipts
from time to time shall be parties to this Deposit Agreement and shall be bound
by all of the terms and conditions hereof and of the Receipts by acceptance of
delivery 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
_____________.
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 have any bearing upon the meaning or
interpretation of any provision contained herein or in the Receipts.
[Remainder of page intentionally left blank]
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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.
FIDELITY NATIONAL FINANCIAL, INC.
By _________________________________
Name:____________________________
Title:___________________________
Attested by
_____________________________________
Name:________________________________
[_________________________________]
as Depositary
By _________________________________
Name:____________________________
Title:___________________________
Attested by
_____________________________________
Name:________________________________
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EXHIBIT A
NUMBER DEPOSITARY SHARES
DR CERTIFICATE FOR NOT MORE THAN
_______ DEPOSITARY SHARES
DEPOSITARY RECEIPT FOR DEPOSITARY SHARES, REPRESENTING
[CUMULATIVE] [CONVERTIBLE] PREFERRED STOCK, SERIES __, OF
FIDELITY NATIONAL FINANCIAL, INC.
INCORPORATED UNDER THE LAWS OF THE STATE OF DELAWARE
CUSIP
SEE REVERSE FOR CERTAIN DEFINITIONS
____________________________________, AS DEPOSITARY (THE "DEPOSITARY"), HEREBY
CERTIFIES THAT
Is the registered owner of ___________________________________ DEPOSITARY SHARES
("Depositary Shares"), each Depositary Share representing [one quarter (1/4)] of
one share of [Cumulative] [Convertible] Preferred Stock, Series ___, par value
[$.0001] per share, of Fidelity National Financial, Inc., a Delaware corporation
(the "Corporation"), on deposit with the Depositary, subject to the terms and
entitled to the benefits of the Deposit Agreement dated as of ______________,
_____, (the "Deposit Agreement") between the Corporation and the Depositary. By
accepting this Depositary Receipt the holder hereof becomes a party to and
agrees to be bound by all the terms and conditions of the Deposit Agreement.
This Depositary Receipt shall not be valid or obligatory for any purpose or
entitled to any benefits under the Deposit Agreement unless it shall have been
executed by the Depositary by the manual signature of a duly authorized officer
and shall have been countersigned manually by a Registrar or by the Depositary
as Registrar in respect of the Depositary Receipts by the manual signature of a
duly authorized officer thereof.
Dated: __________________________
COUNTERSIGNED AND
REGISTERED:
_________________________________
_________________________________
DEPOSITARY AND REGISTRAR
By:______________________________
Name:____________________________
Title:___________________________
Authorized Officer [SEAL]
A-1
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FIDELITY NATIONAL FINANCIAL, INC.
THE CORPORATION WILL FURNISH TO ANY SHAREHOLDER UPON REQUEST AND WITHOUT
CHARGE, A FULL STATEMENT OF THE DESIGNATIONS, PREFERENCES, LIMITATIONS, AND
RELATIVE RIGHTS OF THE SHARES OF EACH CLASS OR SERIES AUTHORIZED TO BE ISSUED,
SO FAR AS THEY HAVE BEEN DETERMINED, AND THE AUTHORITY OF THE BOARD OF DIRECTORS
TO DETERMINE THE RELATIVE RIGHTS AND PREFERENCES OF SUBSEQUENT CLASSES OR
SERIES.
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The following abbreviations, when used in the inscription on the face of
this certificate, shall be construed as though they were written out in full
according to applicable laws or regulations:
TEN COM - as tenants in common
TEN ENT - as tenants by the entireties
JT TEN - as joint tenants with right of survivorship and not as tenants in
common
UNIF GIFT MIN ACT - ________ Custodian _________ under the Uniform Gifts to
(Cust) (Minor)
Minors Act_______
(State)
Additional abbreviations may also be used though not in the above list.
For value received, _______________ hereby sell(s), assign(s) and transfer(s)
unto ___________________________________
(Please insert social security or
other identifying number of Assignee)
________________________________________________________________________________
(Please print or typewrite Name and address
including postal zip code of Assignee)
__________ Depositary Shares represented by the within Receipt and all rights
thereunder, and do hereby irrevocably constitute and appoint _____________
Attorney to transfer said Depositary Shares on the books of the within-named
Depositary with full power of substitution in the premises.
Dated: _______________
________________________
NOTICE. The signature(s) to this assignment must correspond with the name(s) as
written upon the face of this instrument in every particular, without alteration
or enlargement or any change whatever.
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