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DEPOSITARY AGREEMENT
Date: Dec. 19, 1997
ChaseMellon Shareholder Services, L.L.C.
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▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: Reorganization Administration
Gentlemen:
Templeton Vietnam Opportunities Fund, Inc., a closed-end management investment
company (the "Purchaser"), is offering to purchase up to 4,029,302 shares of its
issued and outstanding Common Stock, $.01 par value (the "Shares"), for cash at
a price equal to their net asset value ("NAV") determined as of the close of the
regular trading session of the New York Stock Exchange ("NYSE") on January 20,
1998, unless the offer is extended, subject to the terms and conditions set
forth in its Offer to Purchase dated December 19, 1997 (the "Offer to Purchase")
and in the related Letter of Transmittal (which shall include the Internal
Revenue Service Form W-8 or Form W-9), copies of which are attached hereto as
Exhibits A and B, respectively, and which together, as they may be amended from
time to time, constitute the "Offer." The "Expiration Date" for the Offer shall
be 12:00 Midnight Eastern Standard time, on January 20, 1998 unless and until
the Purchaser shall have extended the period of time for which the Offer is
open, in which event the term "Expiration Date" shall mean the latest time and
date at which the Offer, as so extended by the Purchaser from time to time,
shall expire. All terms not defined herein shall have the same meaning as in the
Offer.
The Purchaser hereby agrees with you as follows:
1) Subject to the terms and conditions of this Agreement, you will act
as Depositary in connection with the Offer, and in such capacity are authorized
and directed to accept tenders of Shares.
2) (a) Tenders of Shares may be made only as set forth in Section
2 of the Offer to Purchase, and Shares shall be considered validly tendered to
you only if:
(i) you receive prior to the Expiration Date (x) certificates
for such Shares, (or a Confirmation (as defined in paragraph (b) below) relating
to such Shares) and (y) a properly completed and duly executed Letter of
Transmittal (or facsimile thereof) or an Agent's Message (as defined in
paragraph (b) below) relating thereto; or
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(ii) you receive (x) a Notice of Guaranteed Delivery (as
defined in paragraph (b) below) relating to such Shares from an Eligible
Institution (as defined in paragraph (b) below) prior to the Expiration Date and
(y) certificates for such Shares (or a Confirmation relating to such Shares) and
either a properly completed and duly executed Letter of Transmittal (or
facsimile thereof) or an Agent's Message relating thereto at or prior to 5:00
P.M., Eastern Standard time, on the third New York Stock Exchange, Inc. (the
"NYSE") trading day after the date of execution of such Notice of Guaranteed
Delivery; and
(iii) in the case of either clause (i) or (ii) above, a final
determination of the adequacy of the items received, as provided in Section 4
hereof, has been made by Purchaser.
(b) For the purpose of this Agreement: (i) a "Confirmation"
shall be a confirmation of book-entry transfer of Shares into your account at
The Depository Trust Company, (hereinafter referred to as "DTC") to be
established and maintained by you in accordance with Section 3 hereof; (ii) a
"Notice of Guaranteed Delivery" shall be a notice of guaranteed delivery
substantially in the form attached as Exhibit C hereto or a telegram, telex,
facsimile transmission or letter substantially in such form, or if sent by DTC,
a message transmitted through electronic means in accordance with the usual
procedures of DTC and the Depositary, substantially in such form; provided,
however, that if such notice is sent by DTC through electronic means, it must
state that DTC has received an express acknowledgment from the participant on
whose behalf such notice is given that such participant has received and agrees
to become bound by the form of such notice; (iii) an "Eligible Institution"
shall be a firm which is a bank, broker, dealer, credit union, savings
association or other entity which is a member in good standing of a Stock
Transfer Association approved medallion program (such as STAMP, SEMP or MSP);
(iv) an "Agent's Message" shall be a message from DTC transmitted to, and
received by, the Depositary forming a part of a timely Confirmation, which
states that (a) DTC has received an express acknowledgment from the DTC
participant tendering the Shares that are the subject of the Confirmation, (b)
the DTC participant has received and agrees to be bound by the terms of the
Letter of Transmittal and (c) the Purchaser may enforce the agreement against
the DTC participant; and (v) an "Alternative Fund" shall be one or more open-end
investment companies, distributed by Franklin/▇▇▇▇▇▇▇▇▇ Distributors, Inc. and
designated in the Offer to Purchase, into which tendering shareholders may elect
to direct all or a portion of their cash proceeds from the tender of shares to
be used to purchase shares of such funds. The term Agent's Message shall also
include any hard copy printout evidencing such message generated by a computer
terminal maintained at the Depositary's office.
(c) We acknowledge that in connection with the Offer you may
enter into agreements or arrangements with DTC which, among other things,
provide that (i) delivery of an Agent's Message will satisfy the terms of the
Offer with respect to the Letter of Transmittal, (ii) such agreements or
arrangements are enforceable against the Purchaser by DTC or participants
therein and (iii) you, as Depositary, are authorized to enter into such
agreements or arrangements on behalf of the Purchaser. Without limiting any
other provision of this Agreement, you are expressly authorized to enter into
any such agreements or arrangements on behalf of the Purchaser and to make any
necessary representations or warranties in connection thereunder, and any such
agreement or arrangement shall be enforceable against the Purchaser.
3) You shall take steps to establish and, subject to such
establishments, maintain an account at DTC for book-entry transfers of Shares,
as set forth in the Letter of Transmittal
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and Section 2 of the Offer to Purchase, and you shall comply with the provisions
of Rule 17Ad-14 under the Securities Exchange Act of 1934, as amended.
4) (a) You are authorized and directed to examine any certificate
representing Shares, Letter of Transmittal (or facsimile thereof), Notice of
Guaranteed Delivery or Agent's Message and any other document required by the
Letter of Transmittal received by you to determine whether you believe any
tender may be defective. In the event you conclude that any Letter of
Transmittal, Notice of Guaranteed Delivery, Agent's Message or other document
has been improperly completed, executed or transmitted, any of the certificates
for Shares is not in proper form for transfer (as required by the aforesaid
instructions) or if some other irregularity in connection with the tender of
Shares exists, you are authorized subject to Section 4(b) hereof to advise the
tendering stockholder, or DTC, as the case may be, of the existence of the
irregularity, but you are not authorized to accept any tender of fractional
Shares, any tender not in accordance with the terms and subject to the
conditions set forth in the Offer, or any other tender which you deem to be
defective, unless you shall have received from the Purchaser the Letter of
Transmittal which was surrendered (or if the tender was made by means of a
Confirmation containing an Agent's Message, a written notice), duly dated and
signed by an authorized officer of the Purchaser, indicating that any defect or
irregularity in such tender has been cured or waived and that such tender has
been accepted by the Purchaser.
(b) Promptly upon your concluding that any tender is
defective, you shall, after consultation with and on the written instructions of
the Purchaser, use reasonable efforts in accordance with your regular procedures
to notify the person tendering such Shares, or DTC transmitting the Agent's
Message, as the case may be, of such determination and, when necessary, return
the certificates involved to such person in the manner described in Section 11
hereof. The Purchaser shall have full discretion to determine whether any tender
is complete and proper and shall have the absolute right to reject any or all
tenders of any particular Shares determined by it not to be in proper form and
to determine whether the acceptance of or payment for such tenders may, in the
opinion of counsel for the Purchaser, be unlawful; it being specifically agreed
that you shall have neither discretion nor responsibility with respect to these
determinations. To the extent permitted by applicable law, the Purchaser also
reserves the absolute right to waive any of the conditions of the Offer or any
defect or irregularity with respect to the tender of any particular Shares. The
interpretation by the Purchaser of the terms and conditions of the Offer to
Purchase, the Letter of Transmittal and the instructions thereto, a Notice of
Guaranteed Delivery or an Agent's Message (including without limitation the
determination of whether any tender is complete and proper) shall be final and
binding.
(c) If less than all of the Shares validly tendered pursuant
to the Offer are to be accepted because the Offer is oversubscribed by the
Expiration Date, the Purchaser shall provide you with instructions regarding
proration as soon as practicable. You agree to maintain accurate records as to
all Shares tendered prior to or on the Expiration Date.
5) You are authorized and directed to return to any person tendering
Shares, in the manner described in Section 11 hereof, any certificates
representing Shares tendered by such person but duly withdrawn pursuant to the
Offer to Purchase. To be effective, a written, telegraphic, telex or facsimile
transmission notice of withdrawal must be received by you within the time period
specified for withdrawal in the Offer to Purchase at your address set forth on
the back page of the Offer to Purchase. Any notice of withdrawal must specify
the
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name of the person having deposited the Shares to be withdrawn, the number of
Shares to be withdrawn and, if the certificates representing such Shares have
been delivered or otherwise identified to you, the name of the registered
holder(s) of such Shares as set forth in such certificates. If the certificates
have been delivered to you, then prior to the release of such certificates the
tendering stockholder must also submit the serial numbers shown on the
particular certificates evidencing such Shares and the signature on the notice
of withdrawal must be guaranteed by an Eligible Institution. You are authorized
and directed to examine any notice of withdrawal to determine whether you
believe any such notice may be defective. In the event you conclude that any
such notice is defective you shall, after consultation with and on the
instructions of the Purchaser, use reasonable efforts in accordance with your
regular procedures to notify the person delivering such notice of such
determination. All questions as to the form and validity (including time of
receipt) of notices of withdrawal will be determined by the Purchaser in its
sole discretion, whose determination shall be final and binding. Any Shares so
withdrawn shall no longer be considered to be properly tendered unless such
Shares are re-tendered prior to the Expiration Date pursuant to the Offer.
6) Subject to Sections 18 and 25 hereof, any amendment to or extension
of the Offer, as the Purchaser shall from time to time determine, shall be
effective upon notice to you from the Purchaser given prior to the time the
Offer would otherwise have expired, and shall be promptly confirmed by the
Purchaser in writing; provided that you may rely on and shall be authorized and
protected in acting or failing to act upon any such notice even if such notice
is not confirmed in writing or such confirmation conflicts with such notice. If
at any time the Offer shall be terminated as permitted by the terms thereof, the
Purchaser shall promptly notify you of such termination.
7) At 11:00 A.M. Eastern Standard time, or as promptly as practicable
thereafter on each business day, or more frequently if reasonably requested
to tally major figures, you shall advise each of the parties named below by
facsimile transmission your preliminary review (and at all times subject to
final determination by Purchaser), as of the close of business on the preceding
business day or the most recent practicable time prior to such request, as the
case may be: (i) the number of Shares duly tendered on such day; (ii) the number
of Shares duly tendered represented by certificates physically held by you on
such day; (iii) the number of Shares represented by Notices of Guaranteed
Delivery on such day; (iv) the number of Shares withdrawn on such day; and (v)
the cumulative totals of Shares in categories (i) thru (iv) above through 12:00
Noon, Eastern Standard time, on such day:
(a) ▇▇▇▇▇▇▇ ▇▇▇▇▇
(b) ▇▇▇▇ ▇▇▇▇▇
(c) ▇▇▇ ▇▇▇▇
(d) ▇▇▇▇ ▇▇▇▇▇▇
You shall also furnish to each of the above-named persons a written report
confirming the above information which has been communicated orally on the day
following such oral communication. Additionally, you shall notify ▇▇▇▇ ▇▇▇▇▇▇ or
any other persons approved by the Purchase of the number of Alternative Fund
applications received as of the close of business on the preceding day and shall
furnish copies of each such application by 2:00 P.M., Eastern Standard time, or
the next business day following receipt of the application. You shall furnish to
the Purchaser, such reasonable information, to the extent such information has
been furnished to you, on the tendering stockholders as may be requested from
time to time.
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You shall furnish to the Purchaser, upon request, master lists of Shares
tendered for purchase, including an A-to-Z list of the tendering stockholders.
You are also authorized and directed to provide the persons listed above or any
other persons approved by the Purchaser with such other information relating to
the Shares, Offer to Purchase, Letters of Transmittal, Agent's Messages or
Notices of Guaranteed Delivery as the Purchaser may reasonably request from time
to time.
8) Letters of Transmittal, Notices of Guaranteed Delivery, Agent's
Messages, telegrams, telexes, facsimile transmissions, notices and letters
submitted to you pursuant to the Offer shall be stamped by you to indicate the
date and time of the receipt thereof and these documents, or copies thereof,
shall be preserved by you for a reasonable time not to exceed one year or the
term of this Agreement, whichever is longer, and thereafter shall be delivered
by you to the Purchaser. Thereafter, any inquiries relating to or requests for
any of the foregoing shall be directed solely to the Purchaser and not the
Depositary.
9) (a) If under the terms and conditions set forth in the Offer
the Purchaser becomes obligated to accept and pay for Shares tendered, upon
instruction by the Purchaser and as promptly as practicable, but in any event
not later than 5:00 P.M., Eastern Standard time, on the third NYSE trading day
after the latest of: (i) the Expiration Date; (ii) the physical receipt by you
of a certificate or certificates representing tendered Shares (in proper form
for transfer by delivery), a properly completed and duly executed Letter of
Transmittal (or a facsimile thereof) or a Confirmation including an Agent's
Message and any other documents required by the Letter of Transmittal; and (iii)
the deposit by the Purchaser with you of sufficient federal or other immediately
available funds to pay, subject to the terms and conditions of the Offer, all
stockholders for whom checks representing payment for Shares are to be drawn,
less any adjustments required by the terms of the Offer, and all applicable tax
withholdings, you shall, subject to Section 16 hereof, deliver or cause to be
delivered to the tendering stockholders, designated payees and/or Alternative
Funds, consistent with this Agreement and the Letter of Transmittal, official
checks of the Depositary, as agent for the Purchaser, and payable through the
Depositary, or its Agent, in the amount of the applicable purchase price
specified in the Offer (less any applicable tax withholding) for the Shares
theretofore properly tendered and purchased under the terms and conditions of
the Offer. Notwithstanding the foregoing, where a tendering stockholder has
indicated in the Letter of Transmittal that either all or a portion of the
proceeds from the tender of Shares be applied toward the purchase of one or more
Alternative Funds, you shall deliver by wire transfer to the account of the
Alternative Funds all such amounts, and shall forward the Alternative Fund
application forms, completed by each such tendering stockholder and sent in with
the Letters of Transmittal, to the Alternative Funds no later than the close of
business on the date that the wire transfer is sent. The Purchaser will also
deposit with you on your request federal or other immediately available funds in
an amount equal to the total stock transfer taxes or other governmental charges,
if any, payable in respect of the transfer or issuance to the Purchaser or its
nominee or nominees of all Shares so purchased. Upon request by the Purchaser
you will apply to the proper authorities for the refund of money paid on account
of such transfer taxes or other governmental charges. On receipt of such refund,
you will promptly pay over to the Purchaser all money refunded. Shares tendered
pursuant to the Offer and Funds transferred to you to pay for the purchase of
tendered shares shall not be subject to any right, charge, security interest,
lien or claim of any kind in your favor, except for their safe custody or
administration.
(b) At such time as you shall be notified by the Purchaser,
you shall request the transfer agent for the Shares to effect the transfer of
all Shares purchased pursuant to the
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Offer and to issue certificates for such Shares so transferred, in accordance
with written instructions from the Purchaser, and upon your receipt thereof
notify the Purchaser.
10) (a) On or before January 31st of the year following the year
in which the Purchaser accepts Shares for payment, you will prepare and mail to
each tendering stockholder whose Shares were accepted, other than stockholders
who demonstrate their status as nonresident aliens in accordance with United
States Treasury Regulations ("Foreign Stockholders"), a Form 1099-B reporting
the purchase of Shares as of the date such Shares are accepted for payment. You
will also prepare and file copies of such Forms 1099-B by magnetic tape with the
Internal Revenue Service in accordance with Treasury Regulations on or before
February 28th of the year following the year in which the Shares are accepted
for payment.
(b) You will deduct and withhold 31% backup withholding tax
from the purchase price payable with respect to Shares tendered by any
stockholder, other than a Foreign Stockholder, who has not properly provided you
with his taxpayer identification number, in accordance with Treasury
Regulations.
(c) Should any issue arise regarding federal income tax
reporting or withholding, you will take such action as the Purchaser instructs
you in writing.
11) If, pursuant to the terms and conditions of the Offer, the
Purchaser has notified you that it does not accept certain of the Shares
tendered or purported to be tendered or a stockholder withdraws any tendered
Shares, you shall promptly return the deposited certificates for such Shares,
together with any other documents received, to the person who deposited the
same, without expense to such person. Certificates for such unpurchased Shares
shall be forwarded by you, at your option, by: (i) first class mail under a
blanket surety bond protecting you and the Purchaser from losses or liabilities
arising out of the non-receipt or nondelivery of such Shares; or (ii) registered
mail insured separately for the value of such Shares. If any such Shares were
tendered or purported to be tendered by means of a Confirmation containing an
Agent's Message, you shall notify DTC of the Purchaser's decision not to accept
the Shares.
12) You shall take all reasonable action with respect to the Offer as
may from time to time be requested by the Purchaser or the Information Agent.
You are authorized to cooperate with and furnish information to the Information
Agent, any of its representatives or any other organization (or its
representatives) designated from time to time by the Purchaser, in any manner
reasonably requested by any of them in connection with the Offer and tenders
thereunder.
13) Any instructions given to you orally, as permitted by any provision
of this Agreement, shall be confirmed in writing by the Purchaser or Information
Agent, as the case may be, as soon as practicable. You shall be fully authorized
and protected for acting, or failing to act, in accordance with any oral
instructions which do not conform with the written confirmation received in
accordance with this Section.
14) Whether or not any Shares are tendered or the Offer is consummated,
for your services as Depositary hereunder we shall pay to you compensation in
accordance with the fee schedule attached as Schedule 1 hereto, together with
reimbursement for out-of-pocket expenses, including reasonable fees and
disbursements of your counsel. Such additional out-of-pocket expenses must be
approved by the Purchaser prior to being secured.
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15) In the event any question or dispute arises with respect to the
proper interpretation of this Agreement or your duties hereunder or the rights
of the Purchaser or of any stockholders surrendering certificates for Shares
pursuant to the Offer, you shall not be required to act and shall not be held
liable or responsible for your refusal to act until the question or dispute has
been judicially settled (and you may, if you in your sole discretion deem it
advisable, but shall not be obligated to, file a suit in interpleader or for a
declaratory judgment for such purpose) by final judgment rendered by a court of
competent jurisdiction, binding on all stockholders and parties interested in
the matter which is no longer subject to review or appeal, or settled by a
written document in form and substance satisfactory to you and executed by the
Purchaser and each such stockholder and party. In addition, you may require for
such purpose, but shall not be obligated to require, the execution of such
written settlement by all the stockholders and all other parties that may have
an interest in the settlement.
16) As Depositary hereunder you:
(a) shall have no duties or obligations other than those specifically
set forth herein or in Exhibits A, B, and C hereto, or as may subsequently be
agreed to in writing by you and the Purchaser;
(b) shall have no obligation to make payment for any tendered Shares
unless the Purchaser shall have provided the necessary federal or other
immediately available funds to pay in full amounts due and payable with respect
thereto;
(c) shall be regarded as making no representations and having no
responsibilities as to the validity, sufficiency, value, or genuineness of any
certificates or the Shares represented thereby deposited with you or tendered
through an Agent's Message hereunder and will not be required to and will make
no representations as to or be responsible for the validity, sufficiency, value,
or genuineness of the Offer;
(d) shall not be obligated to take any legal action hereunder; if,
however, you determine to take any legal action hereunder, and, where the taking
of such action might in your judgment subject or expose you to any expense or
liability, you shall not be required to act unless you shall have been furnished
with an indemnity satisfactory to you;
(e) may rely on and shall be authorized and protected in acting or
failing to act upon any certificate, instrument, opinion, notice, letter,
telegram, telex, facsimile transmission, Agent's Message or other document or
security delivered to you and believed by you to be genuine and to have been
signed by the proper party or parties;
(f) may rely on and shall be authorized and protected in acting upon
the written, telephonic, electronic and oral instructions, with respect to any
matter relating to your actions as Depositary covered by this Agreement (or
supplementing or qualifying any such actions) of officers of the Purchaser;
(g) may consult counsel satisfactory to you, and the advice of such
counsel shall be full and complete authorization and protection in respect of
any action taken, suffered, or omitted by you hereunder in good faith and in
accordance with the advice of such counsel;
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(h) shall not be called upon at any time to advise any person tendering
or considering tendering pursuant to the Offer as to the wisdom of making such
tender or as to the market value of any security tendered thereunder;
(i) may perform any of your duties hereunder either directly or by or
through agents or attorneys and you shall not be responsible for any misconduct
or negligence on the part of any agent or attorney appointed with reasonable
care by you hereunder;
(j) shall not be liable or responsible for any recital or statement
contained in the Offer or any other documents relating thereto;
(k) shall not be liable or responsible for any failure of the Purchaser
to comply with any of its obligations relating to the Offer, including without
limitation obligations under applicable securities laws;
(l) are not authorized, and shall have no obligation, to pay any
brokers, dealers, or soliciting fees to any person, including without limitation
the Information Agent;
(m) shall not be liable or responsible for any delay, failure,
malfunction, interruption or error in the transmission or receipt of
communications or messages through electronic means to or from DTC, or for the
actions of any other person in connection with any such message or
communication; and
(n) shall take all other actions necessary or appropriate as
Depositary under the terms of the Offer and under the customs and practices
reasonably applied to transactions of this type.
17) The Purchaser covenants to indemnify and hold you and your
officers, directors, employees, agents, contractors, subsidiaries and affiliates
harmless from and against any loss, liability, damage or expense (including
without limitation any loss, liability, damage or expense incurred for
submitting for transfer Shares tendered without a signature guarantee pursuant
to the Letter of Transmittal, or in connection with any communication or message
transmitted or purported to be transmitted through electronic means to or from
DTC, and the fees and expenses of counsel) incurred (a) without negligence or
intentional misconduct or (b) as a result of your acting or failing to act upon
the instructions of the Purchaser arising out of or in connection with the
Offer, this Agreement or the administration of your duties hereunder, including
without limitation the costs and expenses of defending and appealing against any
action, proceeding, suit or claim in the premises. You shall promptly notify the
Purchaser of any action, proceeding, suit or claim by letter or telex or
facsimile transmission confirmed by letter. The Purchaser shall be entitled to
participate at its own expense in the defense of any such action, proceeding,
suit or claim. Anything in this agreement to the contrary notwithstanding, in no
event shall you be liable for special, indirect or consequential loss or damage
of any kind whatsoever (including but not limited to lost profits), even if you
have been advised of the likelihood of such loss or damage and regardless of the
form of action.
18) Unless terminated earlier by the parties hereto, this Agreement
shall terminate upon (a) Purchaser's termination or withdrawal of the Offer, (b)
if Purchaser does not terminate or withdraw the Offer, the date which is two (2)
months after the later of (i) your sending of checks to tendering stockholders
in accordance with Section 9(a) hereof and (ii) your delivery of certificates to
the Purchaser in accordance with Section 9(b) hereof or (c) if not terminated or
withdrawn earlier, the date which is two (2) months after the date of this
Agreement. Upon any termination of this Agreement, you shall promptly deliver to
the Purchaser any certificates, funds or property then held by you as Depositary
under this
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Agreement, and after such time any party entitled to such certificates, funds or
property shall look solely to the Purchaser and not the Depositary therefore,
and all liability of the Depositary with respect thereto shall cease, provided,
however, that the Depositary, before being required to make such delivery to the
Purchaser, may at the expense of the Purchaser cause to be published in a
newspaper of general circulation in the City of New York, or mail to each person
who has tendered Shares but not received payment, or both, notice that such
certificates, funds or property remain unclaimed and that after a date specified
therein, which shall not be less than 30 days from the date of publication or
mailing, any unclaimed balance of such certificates, funds or property will be
delivered to the Purchaser. Sections 14, 16 and 17 hereof shall survive any
termination of this Agreement.
19) In the event that any claim of inconsistency between this Agreement
and the terms of the Offer arise, as they may from time to time be amended, the
terms of the Offer shall control, except with respect to the duties, liabilities
and rights, including without limitation compensation and indemnification, of
you as Depositary, which shall be controlled by the terms of this Agreement.
20) If any provision of this Agreement shall be held illegal, invalid,
or unenforceable by any court, this Agreement shall be construed and enforced as
if such provision had not been contained herein and shall be deemed an Agreement
among us to the full extent permitted by applicable law.
21) Purchaser represents and warrants that (a) it is each duly
incorporated, validly existing and in good standing under the laws of its
jurisdiction of incorporation, (b) the making and consummation of the Offer and
the execution, delivery and performance of all transactions contemplated thereby
(including without limitation this Agreement) have been duly authorized by all
necessary corporate action, (c) this Agreement has been duly executed and
delivered by the Purchaser and constitutes the legal, valid, binding and
enforceable obligation of it, (d) the Offer will comply in all material respects
with all applicable requirements of law and (e) to the best of its knowledge,
there is no litigation pending or threatened as of the date hereof in connection
with the Offer.
22) Set forth in Exhibit D hereto is a list of the names and specimen
signatures of the persons authorized to act for the Purchaser under this
Agreement. The Secretary of the Purchaser may, from time to time, certify to you
the names and signatures of any other persons authorized to act for the
Purchaser, as the case may be, under this Agreement.
23) Except as expressly set forth elsewhere in this Agreement, all
notices, instructions and communication under this Agreement shall be in
writing, shall be effective upon receipt and shall be addressed, if to the
Purchaser, to its address set forth beneath its signature to this Agreement, or,
if to the Depositary, to ChaseMellon Shareholder Services, L.L.C., ▇▇ ▇▇▇▇▇▇▇▇▇▇
▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇, Attn Reorganization Administration, or to such
other address as a party hereto shall notify the other parties.
24) This Agreement shall be governed by and construed in accordance
with the laws of the State of New York, without giving effect to conflict of
laws rules or principles, and shall inure to the benefit of and be binding upon
the successors and assigns of the parties hereto;
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provided that this Agreement may not be assigned by any party without the prior
written consent of all other parties.
25) No provision of this Agreement may be amended, modified or waived,
except in a writing signed by all of the parties hereto.
Please acknowledge receipt of this Letter, the Offer to Purchase, the Letter of
Transmittal, and the Notice of Guaranteed Delivery, and confirm the arrangements
herein provided by signing and returning the enclosed copy hereof, whereupon
this Agreement and your acceptance of the terms and conditions herein provided
shall constitute a binding Agreement among us.
Very truly yours,
Purchaser
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
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Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: Secretary
Address for notices: ▇▇▇ ▇. ▇▇▇▇▇▇▇ ▇▇▇▇.
▇▇▇▇▇ ▇▇▇
▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇, ▇▇
▇▇▇▇▇-▇▇▇▇
TEL: (▇▇▇) ▇▇▇-▇▇▇▇
FAX: (▇▇▇) ▇▇▇-▇▇▇▇
Accepted as of the date
above first written:
ChaseMellon Shareholder Services, L.L.C.
as Depositary
By: /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
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Name: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Title: Assistant Vice President
TEL: (▇▇▇) ▇▇▇-▇▇▇▇
FAX: (▇▇▇) ▇▇▇-▇▇▇▇
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