CELL GENESYS, INC. Issuer and
EXHIBIT
4.14
CELL
GENESYS, INC.
Issuer
and
AS
DEPOSITARY
and
HOLDERS
OF DEPOSITARY RECEIPTS
Dated
as of
[
__________________ ]
TABLE
OF CONTENTS
|
ARTICLE
I
|
DEFINITIONS
|
1 | ||
|
ARTICLE
II
|
FORM
OF RECEIPTS, DEPOSIT OF
STOCK, EXECUTION AND DELIVERY, TRANSFER, SURRENDER AND REDEMPTION
AND
REPURCHASE OF RECEIPTS
|
2 | ||
|
Section
2.1
|
Form
and Transfer of
Receipts
|
2 | ||
|
Section
2.2
|
Deposit
of Stock; Execution
and Delivery of Receipts in Respect Thereof
|
3 | ||
|
Section
2.3
|
Redemption
and Repurchase of
Stock
|
4 | ||
|
Section
2.4
|
Register
of Transfer of
Receipts
|
5 | ||
|
Section
2.5
|
Combination
and Split-ups of
Receipts
|
5 | ||
|
Section
2.6
|
Surrender
of Receipts and
Withdrawal of Stock
|
5 | ||
|
Section
2.7
|
Limitations
on Execution and
Delivery, Transfer, Split-up, Combination and Surrender of Receipts
and
Withdrawal or Deposit of Stock
|
6
|
||
|
Section
2.8
|
Lost
Receipts,
etc
|
6 | ||
|
Section
2.9
|
Cancellation
and Destruction
of Surrendered Receipts
|
6 | ||
|
Section 2.10
|
Conversion
|
6 | ||
|
ARTICLE
III
|
CERTAIN
OBLIGATIONS OF HOLDERS
OF RECEIPTS AND THE COMPANY
|
7 | ||
|
Section
3.1
|
Filing
Proofs, Certificates
and Other Information
|
7 | ||
|
Section
3.2
|
Payment
of Taxes or Other
Governmental Charges
|
7 | ||
|
Section
3.3
|
Withholding
|
8 | ||
|
Section
3.4
|
Representations
and Warranties
as to Stock
|
8 | ||
|
ARTICLE IV
|
THE
STOCK,
NOTICES
|
8 | ||
|
Section
4.1
|
Cash
Distributions
|
8 | ||
|
Section
4.2
|
Distributions
Other Than
Cash
|
8 | ||
|
Section
4.3
|
Subscription
Rights,
Preferences or Privileges
|
9 | ||
|
Section
4.4
|
Notice
of Dividends, Fixing of
Record Date for Holders of Receipts
|
9 | ||
|
Section
4.5
|
Voting
Rights
|
9 | ||
|
Section
4.6
|
Changes
Affecting Stock and
Reclassifications, Recapitalizations, etc
|
10 | ||
|
Section
4.7
|
Reports
|
10 | ||
|
Section
4.8
|
Lists
of Receipt
Holders
|
10 | ||
|
ARTICLE
V
|
THE
DEPOSITARY, THE
DEPOSITARY’S AGENTS, THE REGISTRAR AND THE COMPANY
|
10 | ||
|
Section
5.1
|
Maintenance
of Offices,
Agencies, Transfer Books by the Depositary; the ▇▇▇▇▇▇▇▇▇
|
▇▇ | ||
|
Section
5.2
|
Prevention
or Delay in
Performance by the Depositary, the Depositary’s Agents, the Registrar or
the Company
|
11 | ||
|
Section
5.3
|
Obligations
of the Depositary,
the Depositary’s Agents, the Registrar and the Company
|
11 | ||
|
Section
5.4
|
Resignation
and Removal of the
Depositary, Appointment of Successor Depositary
|
12 | ||
|
Section
5.5
|
Corporate
Notices and
Reports
|
12 | ||
|
Section
5.6
|
Deposit
of Stock by the
Company
|
12 | ||
|
Section
5.7
|
Indemnification
by the
Company
|
13 | ||
|
Section
5.8
|
Fees,
Charges and
Expenses
|
13 | ||
|
ARTICLE VI
|
AMENDMENT
AND
TERMINATION
|
13 | ||
|
Section
6.1
|
Amendment
|
13 | ||
|
Section
6.2
|
Termination
|
13 | ||
|
ARTICLE VII
|
MISCELLANEOUS
|
13 | ||
|
Section
7.1
|
Counterparts
|
13 | ||
|
Section
7.2
|
Exclusive
Benefits of
Parties
|
14 | ||
|
Section
7.3
|
Invalidity
of
Provisions
|
14 | ||
|
Section
7.4
|
Notices
|
14 | ||
|
Section
7.5
|
Depositary’s
Agents
|
14 | ||
|
Section
7.6
|
Holders
of Receipts Are
Parties
|
14 | ||
|
Section
7.7
|
Governing
Law
|
14 | ||
|
Section
7.8
|
Headings
|
15 | ||
DEPOSIT
AGREEMENT, dated as of
[ ]
among Cell Genesys, Inc., a Delaware corporation,
[ ],
a under the laws of the State of
[ ],
as Depositary, and all holders from time to time of Receipts issued hereunder.
W
I T N E S S E T H:
WHEREAS,
the Company desires to
provide as hereinafter set forth in this Deposit Agreement, for the deposit
of
shares of the Stock with the Depositary, as agent for the holders of the
Receipts evidencing Depositary Shares representing an interest in the Stock
so
deposited, for the purposes set forth in this Deposit Agreement and for the
issuance hereunder of such Receipts; and
WHEREAS,
the Receipts are to be
substantially in the form annexed as Exhibit A to this Deposit Agreement, with
appropriate insertions, modifications and omissions to reflect the terms of
any
Certificate of Designation and otherwise, as hereinafter provided in this
Deposit Agreement.
NOW,
THEREFORE, in consideration of
the premises contained herein, it is agreed by and among the parties hereto
as
follows:
ARTICLE
I
DEFINITIONS
The
following definitions shall
apply to the respective terms (in the singular and plural forms of such terms)
used in this Deposit Agreement and the Receipts:
“CERTIFICATE
OF DESIGNATION” shall
mean the Certificate of Designation establishing and setting forth the rights,
preferences, privileges, limitations and restrictions of the Stock, as filed
with the Secretary of State of the State of Delaware.
“CERTIFICATE
OF INCORPORATION” shall
mean the Amended and Restated Certificate of Incorporation, as amended or as
amended and restated from time to time, of the Company.
“COMPANY”
shall
mean Cell Genesys,
Inc., a Delaware corporation, and its successors.
“CORPORATE
OFFICE” shall mean the
office of the Depositary in
[ ],
at which at any particular time its business in respect of matters governed
by
this Deposit Agreement shall be administered, which at the date of this Deposit
Agreement is located at
[ ]
.
“DEPOSIT
AGREEMENT” shall mean this
agreement, as the same may be amended, modified or supplemented from time to
time to reflect the terms of any Certificate of Designation or otherwise in
accordance with the provisions hereof.
“DEPOSITARY”
shall
mean
[ ],
as Depositary hereunder, and any successor as Depositary hereunder.
“DEPOSITARY
SHARE” shall mean the
rights evidenced by the Receipts executed and delivered hereunder, including
the
interests in Stock granted to holders of Receipts pursuant to the terms and
conditions of the Deposit Agreement. Each Depositary Share shall represent
an
interest in
[ ]
of one share of Stock deposited with the Depositary hereunder and the same
proportionate interest in any and all other property received by the Depositary
in respect of such share of Stock and held under this Deposit Agreement. Subject
to the terms of this Deposit Agreement, each record holder of a Receipt
evidencing a Depositary Share or Shares is entitled,
1
proportionately,
to all the rights,
preferences and privileges, and subject to all the qualifications and
restrictions, of the Stock represented by such Depositary Share or Shares,
including any dividend, voting, conversion, redemption, liquidation and sinking
fund rights contained in the Certificate of Designation, and to the benefits
of
all obligations and duties of the Company in respect of the Stock under the
Certificate of Designation and the Certificate of Incorporation.
“DEPOSITARY’S
AGENT” shall mean an
agent appointed by the Depositary as provided, and for the purposes specified,
in Section 7.5.
“RECEIPT”
shall
mean a Depositary
Receipt executed and delivered hereunder, in substantially the form of Exhibit
A
hereto, evidencing a Depositary Share or Shares, as the same may be amended
from
time to time to reflect the terms of any Certificate of Designation or otherwise
in accordance with the provisions hereof.
“RECORD
HOLDER” or “HOLDER” as
applied to a Receipt shall mean the person in whose name a Receipt is registered
on the books maintained by or on behalf of the Depositary for such purpose.
“REGISTRAR”
shall
mean any company
appointed to register ownership and transfers of Receipts as herein provided.
“SECURITIES
ACT” shall mean the
Securities Act of 1933, as amended.
“STOCK”
shall
mean shares of the
Company’s Preferred Stock, Series
[ ],
par value $0.001 per share.
ARTICLE
II
FORM
OF RECEIPTS, DEPOSIT OF STOCK,
EXECUTION AND DELIVERY,
TRANSFER,
SURRENDER AND REDEMPTION
AND REPURCHASE OF RECEIPTS
SECTION
2.1 FORM AND TRANSFER OF
RECEIPTS. Receipts shall be engraved or printed or lithographed unless they
are
evidenced by a global receipt held by a depositary for a clearing system and
shall be substantially in the form set forth in Exhibit A annexed to this
Deposit Agreement, with appropriate insertions, modifications and omissions
to
reflect the terms of any Certificate of Designation or otherwise, as hereinafter
provided. Receipts shall be executed by the Depositary by the manual signature
of a duly authorized officer of the Depositary; provided, however, that such
signature may be a facsimile if a Registrar (other than the Depositary) shall
have countersigned the Receipts by manual signature of a duly authorized officer
of the Registrar. Pending the preparation of definitive Receipts, the
Depositary, upon the written order of the Company delivered in accordance with
Section 2.2, shall execute and deliver temporary Receipts which shall be
printed, lithographed, typewritten, or otherwise reproduced substantially of
the
tenor of the definitive Receipts in lieu of which they are issued and with
appropriate insertions, modifications, omissions, substitutions and other
variations as the persons executing such Receipts may determine are necessary
for such temporary Receipts, as evidenced by their execution of such temporary
Receipts. If temporary Receipts are issued, the Company and the Depositary
will
cause definitive Receipts to be prepared without unreasonable delay; provided
that if such temporary Receipts are global Receipts held by a depositary for
a
clearing system, definitive Receipts need not be prepared until the Receipts
cease to be so held. After the preparation of definitive Receipts, the temporary
Receipts shall be exchangeable for definitive Receipts upon surrender of the
temporary Receipts at the Corporate Office or such other office as the
Depositary may designate, without charge to the holder. Upon surrender for
cancellation of any one or more temporary Receipts, the Depositary shall execute
and deliver in exchange therefore 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 therefore. 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 Stock, as definitive Receipts.
No
Receipt shall be entitled to any
benefits under this Deposit Agreement or be valid or obligatory for any purpose
unless it shall have been executed as provided in the preceding paragraph.
2
The
Depositary shall record on its
books each Receipt executed as provided above and delivered as hereinafter
provided. Receipts bearing the facsimile signature of anyone who was at any
time
a duly authorized officer of the Depositary shall bind the Depositary,
notwithstanding that such officer has ceased to hold such office prior to the
delivery of such Receipts.
Receipts
may be issued in
denominations of any number of whole Depositary Shares. All Receipts shall
be
dated the date of their execution.
Receipts
may be endorsed with or
have incorporated in the text thereof such legends or recitals or changes not
inconsistent with the provisions of this Deposit Agreement as may be required
by
the Depositary or required to comply with any applicable law or regulation
or
with the rules and regulations of any securities exchange upon which the Stock
or the Depositary Shares may be listed or to conform with any usage with respect
thereto, or to indicate any special limitations or restrictions to which any
particular Receipts are subject by reason of the date of issuance of the Stock
or otherwise.
Title
to any Receipt (and to the
Depositary Shares evidenced by such Receipt) that is properly endorsed or
accompanied by a properly executed instrument of transfer shall be transferable
by delivery with the same effect as in the case of investment securities in
general; provided, however, that the Depositary may, notwithstanding any notice
to the contrary, treat the record holder thereof at such time as the absolute
owner thereof for the purpose of determining the person entitled to
distributions of dividends or other distributions or to any notice provided
for
in this Deposit Agreement and for all other purposes.
SECTION
2.2 DEPOSIT OF STOCK;
EXECUTION AND DELIVERY OF RECEIPTS IN RESPECT THEREOF. Subject to the terms
and
conditions of this Deposit Agreement, the Company or any holder of Stock may
deposit such Stock under this Deposit Agreement by delivery to the Depositary
of
a certificate or certificates for the Stock to be deposited, properly endorsed
or accompanied, if required by the Depositary, by a properly executed instrument
of transfer in form satisfactory to the Depositary, together with (i) all
such certifications as may be required by the Depositary in accordance with
the
provisions of this Deposit Agreement and (ii) a written order of the
Company or such holder, as the case may be, directing the Depositary to execute
and deliver to or upon the written order of the person or persons stated in
such
order a Receipt or Receipts for the number of Depositary Shares representing
such deposited Stock.
Upon
receipt by the Depositary of a
certificate or certificates for Stock to be deposited hereunder, together with
the other documents specified above, the Depositary shall, as soon as transfer
and registration can be accomplished, present such certificate or certificates
to the registrar and transfer agent of the Stock for transfer and registration
in the name of the Depositary or its nominee of the Stock being deposited.
Deposited Stock shall be held by the Depositary in an account to be established
by the Depositary at the Corporate Office.
Upon
receipt by the Depositary of a
certificate or certificates for Stock to be deposited hereunder, together with
the other documents specified above, the Depositary, subject to the terms and
conditions of this Deposit Agreement, shall execute and deliver, to or upon
the
order of the person or persons named in the written order delivered to the
Depositary referred to in the first paragraph of this Section 2.2, a
Receipt or Receipts for the number of whole Depositary Shares representing
the
Stock so deposited and registered in such name or names as may be requested
by
such person or persons. The Depositary shall execute and deliver such Receipt
or
Receipts at the Corporate Office, except that, at the request, risk and expense
of any person requesting such delivery and for such person’s account or, upon
the order of such person, any other person’s account, such delivery may be made
at such other place as may be designated by such person. In each case, delivery
will be made only upon payment to the Depositary of all taxes and other
governmental charges and any fees payable in connection with such deposit and
the transfer of the deposited Stock.
The
Company shall deliver to the
Depositary from time to time such quantities of Receipts as the Depositary
may
request to enable the Depositary to perform its obligations under this Deposit
Agreement.
3
SECTION
2.3 REDEMPTION AND
REPURCHASE OF STOCK. Whenever the Company shall redeem shares of Stock in
accordance with a Certificate of Designation, it shall (unless otherwise agreed
in writing with the Depositary) give the Depositary in its capacity as
Depositary not less than 3 business days’ prior notice of the proposed date of
the mailing of a notice of redemption of Stock and the simultaneous redemption
of the Depositary Shares representing the Stock to be redeemed and of the number
of such shares of Stock held by the Depositary to be redeemed. Unless the
Certificate of Designation for a specific series of Stock provides for a
different notice period with respect to that Stock in the event of its
redemption, the Depositary shall, as directed by the Company in writing, mail,
first class postage prepaid, notice of the redemption of Stock and the proposed
simultaneous redemption of the Depositary Shares representing the Stock to
be
redeemed not less than 30 and not more than 60 days prior to the date fixed
for
redemption of such Stock and Depositary Shares, to the record holders of the
Receipts evidencing the Depositary Shares to be so redeemed at the addresses
of
such holders as the same appear on the records of the Depositary or any
Depositary’s Agent or Registrar. Notwithstanding the foregoing, neither failure
to mail or publish any such notice to one or more such holders nor any defect
in
any notice shall affect the sufficiency of the proceedings for redemption.
The
Company shall provide the Depositary with such notice, and each such notice
shall state the method for determining the amount payable per Depositary Share,
the redemption date, and the number of Depositary Shares to be redeemed, and
such notice shall call upon each holder of Depositary Shares to surrender,
on
the redemption date and at the place or places designated by the Company, the
Receipts evidencing Depositary Shares to be redeemed. On the date of any such
redemption the Depositary shall surrender the certificate or certificates held
by the Depositary evidencing the number of shares of Stock to be redeemed in
the
manner specified in the notice of redemption of Stock provided by the Company
pursuant to the applicable Certificate of Designation. The Depositary shall,
thereafter, redeem the number of Depositary Shares representing such redeemed
Stock upon the surrender of Receipts evidencing such Depositary Shares in the
manner provided in the notice sent to record holders of Receipts.
Notice
having been mailed by the
Depositary as aforesaid, from and after the redemption date (unless the Company
shall have failed to redeem the shares of Stock to be redeemed by it upon the
surrender of the certificate or certificates therefore by the Depositary as
described in the preceding paragraph), the Depositary Shares called for
redemption shall be deemed no longer to be outstanding and all rights of the
holders of Receipts evidencing such Depositary Shares (except the right to
receive the cash, securities or other property payable upon redemption upon
surrender of such Receipts) shall, to the extent of such Depositary Shares,
cease and terminate. The foregoing shall be subject further to the terms and
conditions of the applicable Certificate of Designation.
If
fewer than all the Depositary
Shares are to be redeemed, the Depositary Shares to be redeemed will be selected
by lot or proportionately, as may be determined by the Depositary. If fewer
than
all of the Depositary Shares evidenced by a Receipt are called for redemption,
the Depositary will deliver to the holder of such Receipt upon its surrender
to
the Depositary, cash, securities or other property payable upon redemption
in
respect of the Depositary Shares called for redemption and a new Receipt
evidencing the Depositary Shares evidenced by such prior Receipt and not called
for redemption.
The
Depositary shall not be required
to transfer or exchange for another Receipt any Receipt evidencing Depositary
Shares called or being called for redemption, in whole or in part except as
provided in the immediately preceding paragraph of this Section 2.3.
Whenever
the Company shall be
required to make an offer to repurchase Depositary Shares representing Stock
in
accordance with a Certificate of Designation, it shall (unless otherwise agreed
in writing with the Depositary) give the Depositary in its capacity as
Depositary not less than 3 business days’ prior notice of the required date of
the mailing of a notice of the repurchase offer. The Depositary shall, as
directed by the Company in writing, mail, first class postage prepaid, notice
of
the relevant terms of the repurchase offer, as provided by the Company, to
the
record holders of the Receipts at the addresses of such holders as the same
appear on the records of the Depositary or any Depositary’s Agent or Registrar,
including: (i) that such notice is being given pursuant to a repurchase
offer, (ii) the number of Depositary Shares and Stock for which the offer
is being made, (iii) the method for determining the amount payable per
Depositary Share, (iv) the last date, which, unless the Certificate of
Designation for a specific series of Stock provides for a different period
with
respect to that Stock in the event that the Company is required to make an
offer
to repurchase it, shall not be less than 30 nor more than 60 days after the
date
of such notice, by which a holder must elect to accept the repurchase offer,
(v) the procedures that such holder must follow to exercise its rights, and
(vi) the procedures for withdrawing an election.
4
The
Depositary shall, thereafter,
receive from each holder electing to have Depositary Shares repurchased pursuant
to the repurchase offer in accordance with the instructions in the notice,
the
holder’s Receipts, with an appropriate form duly completed prior to the
repurchase date. Holders will be entitled to withdraw an election by a written
notice of withdrawal delivered to the Depositary prior to the close of business
on the repurchase date. The notice of withdrawal shall state the number of
Depositary Shares and the Receipt numbers to which the notice of withdrawal
relates and the number of Depositary Shares and Receipt numbers, if any, which
remain subject to election. In case the aggregate number of Depositary Shares
offered for repurchase by the holders exceeds the amount of Depositary Shares
which the Company has offered to repurchase pursuant to the repurchase offer,
the Depositary Shares to be repurchased shall be selected by the Depositary
by
lot or proportionately, as may be determined by the Depositary. The Depositary
shall, at the direction of the Company, cause payment to be mailed or delivered
to each tendering holder as promptly as reasonably practicable after the
repurchase date, in the amount of the repurchase price for the Depositary Shares
tendered, and any unpurchased Depositary Shares to be returned to the holder
thereof. The foregoing is subject further to the terms and conditions of the
applicable Certificate of Designation.
SECTION
2.4 REGISTER OF TRANSFER OF
RECEIPTS. Subject to the terms and conditions of this Deposit Agreement, the
Depositary shall register on its books from time to time transfers of Receipts
upon any surrender thereof at the Corporate Office, or such other office as
the
Depositary may designate for such purpose, by the record holder in person or
by
a duly authorized attorney, properly endorsed or accompanied by a properly
executed instrument of transfer, together with evidence of the payment of any
transfer taxes as may be required by law. Upon such surrender, the Depositary
shall execute a new Receipt or Receipts and deliver the same to or upon the
order of the person entitled thereto evidencing the same aggregate number of
Depositary Shares evidenced by the Receipt or Receipts surrendered.
SECTION
2.5 COMBINATION AND
SPLIT-UPS OF RECEIPTS. Upon surrender of a Receipt or Receipts at the Corporate
Office, or such other office as the Depositary may designate for the purpose
of
effecting a split-up or combination of Receipts, subject to the terms and
conditions of this Deposit Agreement, the Depositary shall execute and deliver
a
new Receipt or Receipts in the authorized denominations requested evidencing
the
same aggregate number of Depositary Shares evidenced by the Receipt or Receipts
surrendered; provided, however, that the Depositary shall not issue any Receipt
evidencing a fractional Depositary Share.
SECTION
2.6 SURRENDER OF RECEIPTS
AND WITHDRAWAL OF STOCK. Any holder of a Receipt, including the Company, shall
have the right, upon payment of any amount due to the Depositary with respect
to
the Receipt, to withdraw any or all of the Stock (but only in whole shares
of
Stock) represented by the Depositary Shares and all money and other property,
if
any, represented by such Depositary Shares by surrendering the Receipt or
Receipts evidencing such Depositary Shares at the Corporate Office, or at such
other office as the Depositary may designate for such withdrawals (and
cancellation of the surrendered Receipts as provided in Section 2.9). After
such surrender, without unreasonable delay, the Depositary shall deliver to
the
holder the whole number of shares of Stock and all such money and other
property, if any, represented by the Depositary Shares evidenced by the Receipt
or Receipts so surrendered for withdrawal. If the Receipt or Receipts delivered
by the holder to the Depositary in connection with such withdrawal shall
evidence a number of Depositary Shares in excess of the number of whole
Depositary Shares representing the whole number of shares of Stock to be
withdrawn, the Depositary shall at the same time, in addition to such whole
number of shares of Stock and such money and other property, if any, to be
withdrawn, deliver to the holder, or (subject to Section 2.4) upon its
order, a new Receipt or Receipts evidencing such excess number of whole
Depositary Shares.
Delivery
of the Stock and such money
and other property being withdrawn may be made by the delivery of such
certificates, documents of title and other instruments as the Depositary may
deem appropriate, which, if required by the Depositary, shall be properly
endorsed or accompanied by proper instruments of transfer.
The
Depositary shall deliver the
Stock and the money and other property, if any, represented by the Depositary
Shares evidenced by Receipts surrendered for withdrawal, without unreasonable
delay, at the office at which such Receipts were surrendered, except that,
at
the request, risk and expense of the Company such delivery may be made, without
unreasonable delay, at such other place as may be designated by the Company.
5
For
purposes of determining the
number of Depositary Shares outstanding on any dividend payment date, the
Receipts representing Depositary Shares acquired by the Company on or prior
to
such dividend payment date and not theretofore delivered to the Depositary
for
withdrawal and cancellation shall be deemed to be outstanding.
SECTION
2.7 LIMITATIONS ON EXECUTION
AND DELIVERY, TRANSFER, SPLIT-UP, COMBINATION AND SURRENDER OF RECEIPTS AND
WITHDRAWAL OR DEPOSIT OF STOCK. As a condition precedent to the execution and
delivery, registration of transfer, split-up, combination, or surrender of
any
Receipt, the delivery of any distribution thereon or withdrawal or deposit
of
Stock, or the exercise of any conversion right referred to in Section 2.10,
the Depositary, any of the Depositary’s Agents, the Registrar or the Company may
require any or all of the following: (i) payment to it of a sum sufficient
for the payment (or, in the event that the Depositary or the Company shall
have
made such payment, the reimbursement to it) of any tax or other governmental
charge or fee with respect thereto (including any such tax or charge or fee
with
respect to the Stock being deposited or the Stock being withdrawn or with
respect to property of the Company being issued upon redemption or conversion);
(ii) production of proof satisfactory to it as to the identity and
genuineness of any signature; and (iii) compliance with such reasonable
regulations, if any, as the Depositary or the Company may establish not
inconsistent with the provisions of this Deposit Agreement.
The
deposit of Stock may be refused,
or the registration of transfer, split-up, combination or surrender of
outstanding Receipts and the withdrawal of deposited Stock or the exercise
of
any conversion right referred to in Section 2.10 may be suspended
(i) during any period when the register of stockholders of the Company is
closed, (ii) if any such action is deemed necessary or advisable by the
Depositary, any of the Depositary’s Agents or the Company at any time or from
time to time because of any requirement of law or of any government or
governmental body or commission, or under any provision of this Deposit
Agreement, or (iii) with the approval of the Company, for any other reason.
Without limitation of the foregoing, the Depositary shall not knowingly accept
for deposit under this Deposit Agreement any shares of Stock that are required
to be registered under the Securities Act unless a registration statement under
the Securities Act is in effect as to such shares of Stock.
SECTION
2.8 LOST RECEIPTS, ETC. In
case any Receipt shall be mutilated or destroyed or lost or stolen, the
Depositary shall execute and deliver a Receipt of like form and tenor in
exchange and substitution for such mutilated Receipt or in lieu of and in
substitution for such destroyed, lost or stolen Receipt unless the Depositary
has notice that such Receipt has been acquired by a bona fide purchaser;
provided, however, that the holder thereof provides the Depositary with
(i) evidence satisfactory to the Depositary of such destruction, loss or
theft of such Receipt, of the authenticity thereof and of his ownership thereof,
(ii) reasonable indemnification satisfactory to the Depositary or the
payment of any charges incurred by the Depositary in obtaining insurance in
lieu
of such indemnification and (iii) payment of any expense (including fees,
charges and expenses of the Depositary) in connection with such execution and
delivery.
SECTION
2.9 CANCELLATION AND
DESTRUCTION OF SURRENDERED RECEIPTS. All Receipts surrendered to the Depositary
or any Depositary’s Agent shall be cancelled by the Depositary. Except as
prohibited by applicable law or regulation, the Depositary is authorized to
destroy such Receipts so canceled.
SECTION
2.10 CONVERSION. In the
event that the Stock, in accordance with its Certificate of Designation, is
convertible into the Company’s common stock or other securities, subject to the
terms and conditions of this Deposit Agreement, a holder of a Receipt or
Receipts may surrender such Receipt or Receipts at the Corporate Office or
at
such other office or to a Depositary’s Agent that the Depositary may designate
for such purpose, together with a notice of conversion duly completed and
executed, thereby directing the Depositary or such Depositary’s Agent to
instruct the Company to cause the conversion of the number of shares of Stock
specified in such notice of conversion into shares of the Company’s common stock
or other securities at the rate specified in the applicable Certificate of
Designation, and an assignment of such Receipt or Receipts to the Company or
in
blank, duly completed and executed, along with any other documents or
instruments and any amounts required by the applicable Certificate of
Designation.
Upon
receipt by the Depositary or a
Depositary’s Agent of a Receipt or Receipts, together with a notice of
conversion, duly completed and executed, directing the Depositary or such
Depositary’s Agent to instruct the Company to cause the conversion of a
specified number of shares of Stock at the rate specified in the applicable
Certificate of Designation, and an assignment of such Receipt or Receipts to
the
Company or in blank, duly
6
completed
and executed, along with
any other documents or instruments or amounts referred to in the preceding
paragraph, the Depositary or such Depositary’s Agent shall instruct the Company,
subject to any adjustment provided for in the applicable Certificate of
Designation, (i) to cause the conversion at the rate specified in the
applicable Certificate of Designation of the number of shares of Stock
represented by the Depositary Shares evidenced by the Receipt or Receipts so
surrendered for conversion as specified in the written notice to the Depositary
or such Depositary’s Agent and (ii) to cause the delivery to the holder of
such Receipt or Receipts of (a) a certificate or certificates evidencing
the number of whole shares of the Company’s common stock or other securities
into which such Stock has been converted, and (b) the amount of cash or
other property, if any, to which such holder is entitled in lieu of fractional
shares of, or fractional interests in, the Company’s common stock or other
securities otherwise deliverable by the Company upon such conversion, calculated
in accordance with the applicable Certificate of Designation. The Company shall
as promptly as practicable after receipt thereof cause the delivery of the
certificate or certificates and cash or other property, if any, referred to
in
clauses (a) and (b) above, and such conversion shall be deemed to have
been effected immediately prior to the close of business on the date of such
receipt and shall occur at the rate specified in the Certificate of Designation
in effect at such time and on such date. Upon such conversion, the Depositary
or
such Depositary’s Agent (i) shall deliver to the holder a Receipt
evidencing the number of Depositary Shares evidenced by the surrendered Receipt
or Receipts in excess of the number of Depositary Shares evidenced by such
Receipt or Receipts that have been so converted, (ii) shall cancel the
Receipts surrendered for conversion and (iii) shall deliver to the Company
for cancellation the number of shares of Stock evidenced by the Receipts so
surrendered and so converted. Upon the delivery of the shares of Stock to be
cancelled due to such conversion by the Depositary or such Depositary’s Agent to
the Company, the Company shall deliver to the Depositary or such Depositary’s
Agent, as applicable, a certificate or certificates evidencing the number of
shares of Stock, if any, that equals the excess of the number of shares
evidenced by the surrendered certificate over the number of shares evidenced
by
that certificate that have been so converted. Depositary Shares converted in
connection with conversion of the Stock represented thereby shall only be
converted in whole, and not in part.
Upon
the conversion of any Stock for
which a notice of conversion has been provided to the Depositary or a
Depositary’s Agent by the holder of the Receipt or Receipts representing such
Stock, the Depositary Shares evidenced by such Receipt or Receipts shall be
deemed no longer outstanding, all rights of the holder of the Receipt or
Receipts evidencing such Depositary Shares (except the right to receive
(i) the Company’s common stock or other securities to which such holder is
entitled upon conversion in accordance with the applicable Certificate of
Designation, (ii) any cash or other property payable in accordance with the
applicable Certificate of Designation with respect to any fractional shares
or
other fractional interests in the Company’s common stock or other securities
otherwise deliverable by the Company upon conversion, (iii) any Receipts
evidencing Depositary Shares representing Stock which was not so converted
and
(iv) any other securities, property or cash to which such holder is
entitled under this Deposit Agreement) shall cease and terminate, and the
Receipt or Receipts evidencing such Depositary Shares shall be cancelled. No
fractional shares or other fractional interests in the Company’s common stock or
other securities shall be deliverable by the Company upon conversion of the
Stock represented by the Depositary Shares.
ARTICLE
III
CERTAIN
OBLIGATIONS OF HOLDERS OF
RECEIPTS AND THE COMPANY
SECTION
3.1 FILING PROOFS,
CERTIFICATES AND OTHER INFORMATION. Any person presenting Stock for deposit
or
any holder of a Receipt may be required from time to time to file such proof
of
residence or other information, to execute such certificates and to make such
representations and warranties as the Depositary or the Company may reasonably
deem necessary or proper. The Depositary or the Company may withhold or delay
the delivery of any Receipt, the registration of transfer or redemption of
any
Receipt, the withdrawal of the Stock represented by the Depositary Shares
evidenced by any Receipt, the distribution of any dividend or other distribution
or the exercise of any conversion right referred to in Section 2.10, or
refuse to accept Receipts that are delivered for surrender, until such proof
or
other information is filed, such certificates are executed or such
representations and warranties are made.
SECTION
3.2 PAYMENT OF TAXES OR
OTHER GOVERNMENTAL CHARGES. If any tax or other governmental charge or fee
shall
become payable by or on behalf of the Depositary with respect to (i) any
Receipt, (ii) the Depositary Shares evidenced by such Receipt,
(iii) the Stock (or fractional interest therein) or other property
represented by such Depositary Shares, or (iv) any transaction referred to
in Section 4.6, such tax (including transfer,
7
issuance
or acquisition taxes, if
any) or governmental charge or fee shall be payable by the holder of such
Receipt, who shall pay the amount thereof to the Depositary. Until such payment
is made, registration or transfer of any Receipt or any split-up or combination
thereof or any withdrawal of the Stock or money or other property, if any,
represented by the Depositary Shares evidenced by such Receipt or Receipts
delivered for surrender or the exercise of any conversion right referred to
in
Section 2.10 may be refused, any dividend or other distribution may be
withheld and any part or all of the Stock or other property represented by
the
Depositary Shares evidenced by such Receipt may be sold for the account of
the
holder thereof (after attempting by reasonable means to notify such holder
prior
to such sale). Any dividend or other distribution so withheld and the proceeds
of any such sale may be applied to any payment of such tax or other governmental
charge or fee, the holder of such Receipt remaining liable for any deficiency.
SECTION
3.3 WITHHOLDING. The
Depositary shall act as the tax withholding agent for any payments,
distributions made with respect to the Depositary Shares and Receipts, and
the
Stock. The Depositary shall be responsible with respect to the Depositary
Shares, Receipts and Stock for the timely (i) collection and deposit of any
required withholding or backup withholding tax, and (ii) filing of any
information returns or other documents with federal (and other applicable)
taxing authorities.
SECTION
3.4 REPRESENTATIONS AND
WARRANTIES AS TO STOCK. In the case of the initial deposit of the Stock, the
Company and, in the case of subsequent deposits thereof, each person so
depositing Stock under this Deposit Agreement shall be deemed thereby to
represent and warrant that such Stock and each certificate therefore are valid
and that the person making such deposit is duly authorized to do so. Such
representations and warranties shall survive the deposit of the Stock and the
issuance of Receipts therefor.
ARTICLE
IV
THE
STOCK, NOTICES
SECTION
4.1 CASH DISTRIBUTIONS.
Whenever the Depositary shall receive any cash dividend or other cash
distribution on the Stock (other than cash dividends or cash distributions
paid
by the Company in lieu of fractional shares or other fractional interests in
the
Company’s common stock or other securities otherwise deliverable by the Company
in accordance with the applicable Certificate of Designation), the Depositary
shall, subject to Section 3.2, distribute to record holders of Receipts on
the record date fixed pursuant to Section 4.4 such amounts of such sum as
are, as nearly as practicable, in proportion to the respective numbers of
Depositary Shares evidenced by the Receipts held by such holders; provided,
however, that in case the Company or the Depositary shall be required by law
to
withhold and does withhold from any cash dividend or other cash distribution
in
respect of the Stock an amount on account of taxes, the amount made available
for distribution or distributed in respect of Depositary Shares shall be reduced
accordingly. The Depositary shall distribute or make available for distribution,
as the case may be, only such amount, however, as can be distributed without
attributing to any 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
4.2 DISTRIBUTIONS OTHER THAN
CASH. Whenever the Depositary shall receive any distribution other than cash,
rights, preferences or privileges upon the Stock, the Depositary shall, subject
to Section 3.2, distribute to record holders of Receipts on the record date
fixed pursuant to Section 4.4 such amounts of the securities or property
received by it as are, as nearly as practicable, in proportion to the respective
numbers of Depositary Shares evidenced by the Receipts held by such holders,
in
any manner that the Depositary and the Company may deem equitable and
practicable for accomplishing such distribution. If, in the opinion of the
Company after consultation with the Depositary, such distribution cannot be
made
proportionately among such record holders, or if for any other reason (including
any tax withholding or securities law requirement), the Depositary deems, after
consultation with the Company, such distribution not to be feasible, the
Depositary may, with the approval of the Company which approval shall not be
unreasonably withheld, adopt such method as it deems equitable and practicable
for the purpose of effecting such distribution, including the sale (at public
or
private sale) of the securities or property thus received, or any part thereof,
at such place or places and upon such terms as it may deem proper. The net
proceeds of any such sale shall, subject to Section 3.2, be distributed or
made available for distribution, as the case may be, by the Depositary to record
holders of Receipts as provided by Section 4.1 in the case of a
distribution received in cash.
8
SECTION
4.3 SUBSCRIPTION RIGHTS,
PREFERENCES OR PRIVILEGES. If the Company shall at any time offer or cause
to be
offered to the persons in whose names Stock is registered on the books of the
Company any rights, preferences or privileges to subscribe for or to purchase
any securities or any rights, preferences or privileges of any other nature,
such rights, preferences or privileges shall in each such instance be made
available by the Depositary to the record holders of Receipts in such manner
as
the Company shall instruct (including by the issue to such record holders of
warrants representing such rights, preferences or privileges); provided,
however, that (i) if at the time of issue or offer of any such rights,
preferences or privileges the Company determines and instructs the Depositary
that it is not lawful or feasible to make such rights, preferences or privileges
available to some or all holders of Receipts (by the issue of warrants or
otherwise) or (ii) if and to the extent instructed by holders of Receipts
who do not desire to exercise such rights, preferences or privileges, the
Depositary shall then, in each case, and if applicable laws or the terms of
such
rights, preferences or privileges so permit, sell such rights, preferences
or
privileges of such holders at public or private sale, at such place or places
and upon such terms as it may deem proper. The net proceeds of any such sale
shall be distributed by the Depositary to the record holders of Receipts
entitled thereto as provided by Section 4.1 in the case of a distribution
received in cash.
If
registration under the Securities
Act of the securities to which any rights, preferences or privileges relate
is
required in order for holders of Receipts to be offered or sold such securities,
the Company shall promptly file a registration statement pursuant to the
Securities Act with respect to such rights, preferences or privileges and
securities and use its reasonable best efforts and take all steps reasonably
available to it to cause such registration statement to become effective
sufficiently in advance of the expiration of such rights, preferences or
privileges to enable such holders to exercise such rights, preferences or
privileges. In no event shall the Depositary make available to the holders
of
Receipts any right, preference or privilege to subscribe for or to purchase
any
securities unless and until such registration statement shall have become
effective or unless the offering and sale of such securities to such holders
are
exempt from registration under the provisions of the Securities Act.
If
any other action under the law of
any jurisdiction or any governmental or administrative authorization, consent
or
permit is required in order for such rights, preferences or privileges to be
made available to holders of Receipts, the Company agrees with the Depositary
that the Company will use its reasonable best efforts to take such action or
obtain such authorization, consent or permit sufficiently in advance of the
expiration of such rights, preferences or privileges to enable such holders
to
exercise such rights, preferences or privileges.
SECTION
4.4 NOTICE OF DIVIDENDS,
FIXING OF RECORD DATE FOR HOLDERS OF RECEIPTS. Whenever (i) any cash
dividend or other cash distribution shall become payable, or any distribution
other than cash shall be made, or any rights, preferences or privileges shall
at
any time be offered, with respect to the Stock, or (ii) the Depositary
shall receive notice of any meeting at which holders of Stock are entitled
to
vote or of which holders of Stock are entitled to notice, or (iii) of any
mandatory conversion of, or any election on the part of the Company to call
for
the redemption or exchange of, any shares of Stock, in accordance with the
provisions of the applicable Certificate of Designation or otherwise, the
Depositary shall in each such instance fix a record date (which shall be the
same date as the record date fixed by the Company with respect to the Stock)
for
the determination of the holders of Receipts (x) who shall be entitled to
receive such dividend, distribution, rights, preferences or privileges or the
net proceeds of the sale thereof, or (y) who shall be entitled to give
instructions for the exercise of voting rights at any such meeting or to receive
notice of such meeting or of such conversion, exchange or redemption.
SECTION
4.5 VOTING RIGHTS. Upon
receipt of notice of any meeting at which the holders of Stock are entitled
to
vote, the Depositary shall, as soon as practicable thereafter, mail to the
record holders of Receipts a notice, which shall be provided by the Company
and
which shall contain (i) such information as is contained in such notice of
meeting, (ii) a statement that the holders of Receipts at the close of
business on a specified record date fixed pursuant to Section 4.4 will be
entitled, subject to any applicable provision of law, the Certificate of
Incorporation or the applicable Certificate of Designation, to instruct the
Depositary as to the exercise of the voting rights pertaining to the Stock
represented by their respective Depositary Shares and (iii) a brief
statement as to the manner in which such instructions may be given. Upon the
written request of a holder of a Receipt on such record date, the Depositary
shall endeavor insofar as practicable to vote or cause to be voted the Stock
represented by the Depositary Shares evidenced by such Receipt in accordance
with the instructions set forth in such request. The
9
Company
hereby agrees to take all
reasonable action that may be deemed necessary by the Depositary in order to
enable the Depositary to vote such Stock or cause such Stock to be voted. In
the
absence of specific instructions from the holder of a Receipt, the Depositary
will abstain from voting to the extent of the Stock represented by the
Depositary Shares evidenced by such Receipt.
SECTION
4.6 CHANGES AFFECTING STOCK
AND RECLASSIFICATIONS, RECAPITALIZATIONS, ETC. Upon any split-up, consolidation
or any other reclassification of Stock, or upon any recapitalization,
reorganization, merger, amalgamation or consolidation affecting the Company
or
to which it is a party or sale of all or substantially all of the Company’s
assets, the Depositary shall treat any shares of Stock or other securities
or
property (including cash) that shall be received by the Depositary in exchange
for or in conversion of or in respect of the Stock as new deposited property
under this Deposit Agreement, and Receipts then outstanding shall thenceforth
represent the proportionate interests of holders thereof in the new deposited
property so received in exchange for or in respect of such Stock. In any such
case the Depositary may, in its discretion, with the approval of the Company,
execute and deliver additional Receipts, or may call for the surrender of all
outstanding Receipts to be exchanged for new Receipts specifically describing
such new deposited property.
SECTION
4.7 REPORTS. The Company or,
at the option of the Company, the Depositary shall forward to the holders of
Receipts any reports and communications received from the Company that are
received by the Depositary as the holder of Stock.
SECTION
4.8 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, any Depositary’s Agent or the
Registrar. At the expense of the Company, the Company shall have the right
to
inspect transfer and registration records of the Depositary, any Depositary’s
Agent or the Registrar, take copies thereof and require the Depositary, any
Depositary’s Agent or the Registrar to supply copies of such portions of such
records as the Company may request.
ARTICLE
V
THE
DEPOSITARY, THE DEPOSITARY’S
AGENTS, THE REGISTRAR AND THE COMPANY
SECTION
5.1 MAINTENANCE OF OFFICES,
AGENCIES, TRANSFER BOOKS BY THE DEPOSITARY; THE REGISTRAR. Upon execution of
this Deposit Agreement in accordance with its terms, the Depositary shall
maintain (i) at the Corporate Office facilities for the execution and
delivery, registration, registration of transfer, surrender, split-up,
combination, redemption and conversion of Receipts and deposit and withdrawal
of
Stock, and (ii) at the offices of the Depositary’s Agents, if any,
facilities for the delivery, registration, registration of transfer, surrender,
split-up, combination, redemption and conversion of Receipts and deposit and
withdrawal of Stock, all in accordance with the provisions of this Deposit
Agreement.
The
Depositary, acting as transfer
agent and Registrar, shall keep books at the Corporate Office for the
registration and transfer of Receipts, which books at all reasonable times
shall
be open for inspection by the record holders of Receipts; provided that any
such
holder requesting to exercise such right shall certify to the Depositary that
such inspection shall be for a proper purpose reasonably related to such
person’s interest as an owner of Depositary Shares. The Depositary shall consult
with the Company upon receipt of any request for inspection. The Depositary
may
close such books, at any time or from time to time, when deemed expedient by
it
in connection with the performance of its duties hereunder.
If
the Receipts or the Depositary
Shares evidenced thereby or the Stock represented by such Depositary Shares
shall be listed on one or more securities exchanges, the Depositary shall,
with
the approval of the Company, appoint a Registrar for registry of such Receipts
or Depositary Shares in accordance with the requirements of such exchange or
exchanges. Such Registrar (which may be the Depositary if so permitted by the
requirements of such exchange or exchanges) may be removed and a substitute
Registrar appointed by the Depositary upon the request or with the approval
of
the Company. In addition, if the Receipts, such Depositary Shares or such Stock
are listed on one or more securities exchanges, the Depositary will, at the
request of the Company, arrange such facilities for the delivery, registration,
registration of transfer, surrender, split-up, combination, redemption and
conversion of such Receipts, such Depositary Shares or such Stock as may be
required by law or applicable security exchange regulations.
10
SECTION
5.2 PREVENTION 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 the Registrar nor
the Company shall incur any liability to any holder of any Receipt, if by reason
of any provision of any present or future law or regulation thereunder of the
United States of America or of any other governmental authority or of any
provision, present or future, of the Certificate of Incorporation or the
applicable Certificate of Designation or by reason of any act of god or war
or
other circumstances beyond the control of the relevant party, the Depositary,
any Depositary’s Agent, the Registrar or the Company shall be prevented or
forbidden from doing or performing any act or thing that the terms of this
Deposit Agreement provide shall be done or performed; nor shall the Depositary,
any Depositary’s Agent, the Registrar or the Company incur any liability to any
holder of a Receipt (i) by reason of any nonperformance or delay, caused as
aforesaid, in the performance of any act or thing that the terms of this Deposit
Agreement provide shall or may be done or performed, or (ii) by reason of
any exercise of, or failure to exercise, any discretion provided for in this
Deposit Agreement except, in the case of the Depositary, any Depositary’s Agent
or the Registrar, if any such exercise or failure to exercise discretion is
caused by its negligence or willful misconduct.
SECTION
5.3 OBLIGATIONS OF THE
DEPOSITARY, THE DEPOSITARY’S AGENTS, THE REGISTRAR AND THE COMPANY. The Company
assumes no obligation and shall be subject to no liability under this Deposit
Agreement or the Receipts to holders or other persons, except to perform its
obligations as are specifically set forth and undertaken by it to perform in
this Deposit Agreement without negligence or bad faith. Each of the Depositary,
the Depositary’s Agents and the Registrar assumes no obligation and shall be
subject to no liability under this Deposit Agreement or the Receipts to holders
or other persons, except to perform such obligations as are specifically set
forth and undertaken by it to perform in this Deposit Agreement without
negligence or willful misconduct.
Neither
the Depositary nor any
Depositary’s Agent nor the Registrar nor the Company shall be liable for any
action or any failure to act by it in reliance upon the advice of or information
from legal counsel, accountants, any person presenting Stock for deposit, any
holder of a Receipt or any other person believed by it in good faith to be
competent to give such advice or information. The Depositary, any Depositary’s
Agent, the Registrar and the Company may each rely and shall each be protected
in acting upon any written notice, request, direction or other document believed
by it to be genuine and to have been signed or presented by the proper party
or
parties.
The
Depositary, the Registrar and
any Depositary’s Agent may own and deal in any class of securities of the
Company and its affiliates and in Receipts or Depositary Shares. The Depositary
may also act as transfer agent or Registrar of any of the securities of the
Company and its affiliates.
It
is intended that neither the
Depositary nor any Depositary’s Agent nor the Registrar shall be deemed to be an
“issuer” of the Stock, the Depositary Shares, or the Receipts or other
securities issued upon conversion, exchange or redemption of the Stock under
the
federal securities laws or applicable state securities laws, it being expressly
understood and agreed that the Depositary and any Depositary’s Agent and the
Registrar are acting only in a ministerial capacity; provided, however, that
the
Depositary and any Depositary’s Agent agree to comply with all information
reporting and withholding requirements applicable to each of them under law
or
this Deposit Agreement in their capacity as such.
Neither
the Depositary (or its
officers, directors, employees or agents) nor any Depositary’s Agent nor the
Registrar makes any representation or has any responsibility as to the validity
of the registration statement pursuant to which the Depositary Shares are
registered under the Securities Act, the Stock, the Depositary Shares or any
instruments referred to therein or herein, or as to the correctness of any
statement made therein or herein; provided, however, that the Depositary is
responsible for its representations in this Deposit Agreement.
The
Depositary assumes no
responsibility for the correctness of the description that appears in the
Receipts, which can be taken as a statement of the Company summarizing certain
provisions of this Deposit Agreement. Notwithstanding any other provision herein
or in the Receipts, the Depositary makes no warranties or representations as
to
the validity, genuineness or sufficiency of any Stock at any time deposited
with
the Depositary
11
hereunder
or of the Depositary
Shares, as to the validity or sufficiency of this Deposit Agreement, as to
the
value of the Depositary Shares or as to any right, title or interest of the
record holders of Receipts in and to the Depositary Shares except that the
Depositary hereby represents and warrants as follows: (i) the Depositary
has been duly organized and is validly existing and in good standing under
the
laws of the State of
[ ],
with full power, authority and legal right under such law to execute, deliver
and carry out the terms of this Deposit Agreement; (ii) this Deposit
Agreement has been duly authorized, executed and delivered by the Depositary;
and (iii) this Deposit Agreement constitutes, and when executed and
delivered, each Receipt will constitute, a valid and binding obligation of
the
Depositary, enforceable against the Depositary in accordance with its terms,
except as enforcement thereof may be limited by bankruptcy, insolvency,
reorganization or other similar laws affecting enforcement of creditors’ rights
generally and except as enforcement thereof is subject to general principles
of
equity (regardless of whether enforcement is considered in a proceeding in
equity or at law). The Depositary shall not be accountable for the use or
application by the Company of its proceeds from the Depositary Shares or the
Receipts.
SECTION
5.4 RESIGNATION AND REMOVAL
OF THE DEPOSITARY, APPOINTMENT OF SUCCESSOR DEPOSITARY. The Depositary may
at
any time resign as Depositary hereunder by written notice to the Company of
its
election to do so, such resignation to take effect upon the appointment of
a
successor Depositary and its acceptance of such appointment as hereinafter
provided.
The
Depositary may at any time be
removed by the Company by written notice to the Depositary of such removal,
such
removal to take effect upon the appointment of a successor depositary and its
acceptance of such appointment as hereinafter provided.
In
case at any time the Depositary
acting hereunder shall resign or be removed, the Company shall, within 60 days
after the delivery of the notice of resignation or removal, as the case may
be,
appoint a successor depositary, which shall be a bank or trust company, or
an
affiliate of a bank or trust company, having its principal office in the United
States of America and having a combined capital and surplus of at least
$50,000,000. If a successor depositary shall not have been appointed in 60
days,
the resigning or removed Depositary may petition a court of competent
jurisdiction to appoint a successor depositary. Every successor depositary
shall
execute and deliver to its predecessor and to the Company an instrument in
writing accepting its appointment hereunder, and thereupon such successor
depositary, without any further act or deed, shall become fully vested with
all
the rights, powers, duties and obligations of its predecessor and for all
purposes shall be the Depositary under this Deposit Agreement, and such
predecessor, upon payment of all sums due it and on the written request of
the
Company, shall promptly execute and deliver an instrument transferring to such
successor all rights and powers of such predecessor hereunder, shall duly
assign, transfer and deliver all rights, title and interest in the Stock and
any
moneys or property held hereunder to such successor and shall deliver to such
successor a list of the record holders of all outstanding Receipts. Any
successor Depositary shall promptly mail notice of its appointment to the record
holders of Receipts.
Any
corporation into or with which
the Depositary may be merged, consolidated or converted shall be the successor
of such Depositary without the execution or filing of any document or any
further act. Such successor Depositary may execute the Receipts either in the
name of the predecessor Depositary or in the name of the successor Depositary.
SECTION
5.5 CORPORATE NOTICES AND
REPORTS. The Company agrees that it will deliver to the Depositary, and the
Depositary will, promptly after receipt thereof, transmit to the record holders
of Receipts, in each case at the address recorded in the Depositary’s books or
the books of any Depositary’s Agent or the Registrar, copies of all notices and
reports (including financial statements) required by law, by the rules of any
national securities exchange upon which the Stock, the Depositary Shares or
the
Receipts are listed or by the Certificate of Incorporation or the applicable
Certificate of Designation to be furnished by the Company to holders of Stock.
Such transmission will be at the Company’s expense and the Company will provide
the Depositary with such number of copies of such documents as the Depositary
may reasonably request. In addition, the Depositary will transmit to the record
holders of Receipts at the Company’s expense such other documents as may be
requested by the Company.
SECTION
5.6 DEPOSIT OF STOCK BY THE
COMPANY. The Company agrees with the Depositary that neither the Company nor
any
Company controlled by the Company will at any time deposit any Stock if such
Stock is required to be registered under the provisions of the Securities Act
and no registration statement is at such time in effect as to such Stock.
12
SECTION
5.7 INDEMNIFICATION BY THE
COMPANY. The Company shall indemnify the Depositary for, and hold it harmless
against, any loss, liability, claim or expense (“Loss”) arising out of or in
connection with its duties under this Deposit Agreement, including the
reasonable costs and expenses of defending itself against Loss, unless such
Loss
shall have been determined by a court of competent jurisdiction to be a result
of the Depositary’s negligence or willful misconduct.
SECTION
5.8 FEES, CHARGES AND
EXPENSES. No fees, charges and expenses of the Depositary or any Depositary’s
Agent hereunder or of any Registrar shall be payable by any person other than
the Company, except for any taxes and other governmental charges and except
as
provided in this Deposit Agreement. If, at the request of a holder of a Receipt,
the Depositary incurs fees, charges or expenses for which it is not otherwise
liable hereunder, such holder or other person will be liable for such fees,
charges and expenses. All other fees, charges and expenses of the Depositary
and
any Depositary’s Agent hereunder and of any Registrar (including, in each case,
reasonable fees and expenses of counsel) incident to the performance of their
respective obligations hereunder will be paid from time to time upon
consultation and agreement between the Depositary and the Company as to the
amount and nature of such fees, charges and expenses.
ARTICLE
VI
AMENDMENT
AND TERMINATION
SECTION
6.1 AMENDMENT. The form of
the Receipts and any provision of this Deposit Agreement may at any time and
from time to time be amended by agreement between the Company and the Depositary
in any respect that they may deem necessary or desirable, including to reflect
the terms of any Certificate of Designation; provided, however, that no such
amendment that shall materially and adversely alter the rights of the holders
of
Receipts shall be effective as to outstanding Receipts until the expiration
of
90 days after notice of such amendment shall have been given to the record
holders of outstanding Receipts. Each 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. In no event shall any amendment impair
the
right, subject to the provisions of this Deposit Agreement, of any holder of
any
Depositary Shares to surrender the Receipt evidencing such Depositary Shares
with instructions to the Depositary to deliver to the holder the Stock or to
cause the conversion of such Stock into the Company’s common stock or other
securities in accordance with the applicable Certificate of Designation and
to
deliver all securities, money and other property, if any, represented thereby,
except in order to comply with mandatory provisions of applicable law.
SECTION
6.2 TERMINATION. This
Deposit Agreement may be terminated by either the Company or the Depositary,
upon notice to the other, only if (i) all of the outstanding Depositary
Shares have been redeemed or converted for any other securities into which
the
Stock is convertible, or (ii) there has been a final distribution of the
Stock to the holders of Receipts in connection with the Company’s liquidation,
dissolution or winding up. The Depositary will mail notice of such termination
to the record holders of all Receipts then outstanding at least 30 days prior
to
the date fixed in such notice for such termination. If any Receipts shall remain
outstanding after the date of termination of this Deposit Agreement, the
Depositary thereafter shall discontinue the transfer of Receipts, and shall
not
give any further notices or perform any further acts under this Deposit
Agreement, except that the Depositary shall continue to deliver the Stock and
any money and other property represented by Receipts, without liability for
interest thereon, upon surrender thereof by the holders thereof, and the
Depositary shall be discharged from all obligations under this Deposit Agreement
except to account for such Stock, money and other property. Upon the termination
of this Deposit Agreement, the Company shall be discharged from all obligations
under this Deposit Agreement except for its obligations to the Depositary,
any
Depositary’s Agent and any Registrar under Sections 5.7 and 5.8.
ARTICLE
VII
MISCELLANEOUS
SECTION
7.1 COUNTERPARTS. This
Deposit Agreement may be executed by the Company and the Depositary in separate
counterparts, each of which counterparts, when so executed and delivered, shall
be deemed
13
an
original, but all such
counterparts taken together shall constitute one and the same instrument.
Delivery of an executed counterpart of a signature page to this Deposit
Agreement by telecopier shall be effective as delivery of a manually executed
counterpart of this Deposit Agreement. Copies of this Deposit Agreement shall
be
filed with the Depositary and the Depositary’s Agents and shall be open to
inspection during business hours at the Corporate Office and the respective
offices of the Depositary’s Agents, if any, by any holder of a Receipt.
SECTION
7.2 EXCLUSIVE BENEFITS OF
PARTIES. This Deposit Agreement is for the exclusive benefit of the parties
hereto, and their respective successors hereunder, and shall not be deemed
to
give any legal or equitable right, remedy or claim to any other person
whatsoever.
SECTION
7.3 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
7.4 NOTICES. Any notices to
be given to the Company hereunder or under the Receipts shall be in writing
and
shall be deemed to have been duly given if personally delivered or sent by
mail
(first class postage prepaid), by a nationally recognized overnight courier
service, or by telecopier confirmed by letter, addressed to the Company at
▇▇▇
▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, Attention: General
Counsel, or at any other place to which the Company may have transferred its
principal executive office.
Any
notices to be given to the
Depositary hereunder or under the Receipts shall be in writing and shall be
deemed to have been duly given if personally delivered or sent by mail (first
class postage), by a nationally recognized overnight courier service, or by
telecopier confirmed by letter, addressed to the Depositary at the Corporate
Office.
Except
as provided in the next
paragraph, any notices given to any record holder of a Receipt hereunder or
under the Receipts shall be in writing and shall be deemed to have been duly
given if personally delivered or sent by mail (first class postage), by a
nationally recognized overnight courier service or by telecopier confirmed
by
letter, addressed to such record holder at the address of such record holder
as
it appears on the books of the Depositary or, if such holder shall have filed
with the Depositary a written request that notices intended for such holder
be
mailed to some other address, at the address designated in such request.
In
addition, whenever the
Certificate of Designation requires any notice to be published, the Depositary
will, if requested by the Company, cause such notice to be published in the
manner directed by the Company.
Delivery
of a notice sent by mail,
by overnight courier or by telecopier shall be deemed to be effected at the
time
when a duly addressed letter containing the same (or a duly addressed letter
confirming an earlier notice in the case of a telecopier message) is deposited,
postage prepaid, in a post office letter box or with the overnight courier
service. The Depositary or the Company may, however, act upon any telecopier
message received by it from the other or from any holder of a Receipt,
notwithstanding that such telecopier message shall not subsequently be confirmed
by letter as aforesaid.
SECTION
7.5 DEPOSITARY’S AGENTS. The
Depositary may, with the approval of the Company which approval shall not be
unreasonably withheld, from time to time appoint one or more Depositary’s Agents
to act in any respect for the Depositary for the purposes of this Deposit
Agreement and may vary or terminate the appointment of such Depositary’s Agents.
SECTION
7.6 HOLDERS OF RECEIPTS ARE
PARTIES. Notwithstanding that holders of Receipts have not executed and
delivered this Deposit Agreement or any counterpart thereof, the holders of
Receipts from time to time shall be deemed to be parties to this Deposit
Agreement and shall be bound by all of the terms and conditions, and be entitled
to all of the benefits, hereof and of the Receipts by acceptance of delivery
of
Receipts.
SECTION
7.7 GOVERNING LAW. This
Deposit Agreement and the Receipts and all rights hereunder and thereunder
and
provisions hereof and thereof shall be governed by, and construed in accordance
with, the law of the State of New York without giving effect to principles
of
conflict of laws.
14
SECTION
7.8 HEADINGS. The headings
of articles and sections in this Deposit Agreement and in the form of the
Receipt set forth in Exhibit A hereto have been inserted for convenience only
and are not to be regarded as a part of this Deposit Agreement or to have any
bearing upon the meaning or interpretation of any provision contained herein
or
in the Receipts.
IN
WITNESS WHEREOF, Cell Genesys,
Inc. and
[ ]
have duly executed this Deposit Agreement as of the day and year first above
set
forth and all holders of Receipts shall become parties hereto by and upon
acceptance by them of delivery of Receipts issued in accordance with the terms
hereof.
Cell
Genesys, Inc.
By:
Authorized
Officer
, AS DEPOSITARY
By:
Authorized
Officer
15
Exhibit
A to Deposit Agreement
[FORM
OF DEPOSITARY RECEIPT]
[Unless
this certificate is
presented by an authorized representative of The Depository Trust Company,
a New
York corporation (“DTC”), to the Company or its agent for registration of
transfer, conversion, exchange or payment, and any certificate issued is
registered in the name of Cede & Co. or in such other name as is
requested by an authorized representative of DTC (and any payment is made to
Cede & Co. or to such other entity as is requested by an authorized
representative of DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE
OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL in as much as the registered owner
hereof, Cede & Co., has an interest herein.]
DEPOSITARY
RECEIPT
FOR
DEPOSITARY
SHARES
EACH
REPRESENTING
[ ]
OF A SHARE OF
PREFERRED
STOCK, SERIES
[ ]
OF
Cell
Genesys, Inc.
No.
CUSIP:
[ ](the
“Depositary”) hereby certifies that [Cede & Co.]
[ ]is
the registered holder of
[ ]
Depositary Shares (the “Depositary Shares”), each Depositary Share representing
[ ]
of a share of
[ ]
Preferred Stock, Series
[ ],
$0.001 par value (the “Stock”), of Cell Genesys, Inc., a corporation duly
organized and existing under the laws of the State of Delaware (the “Company”),
deposited with the Depositary and the same proportionate interest in any and
all
other property received by the Depositary in respect of such shares of Stock
and
held by the Depositary under the Deposit Agreement (as defined below). Subject
to the terms of the Deposit Agreement, each owner of a Depositary Share is
entitled, proportionately, to all the rights, preferences and privileges, and
subject to all the limitations and restrictions, of the Stock represented
thereby, including any dividend, voting, conversion, redemption, liquidation
and
sinking fund rights contained in the Certificate of Designation establishing
the
rights, preferences, privileges, limitations and restrictions of the Stock
(the
“Certificate of Designation”), copies of which are on file at the office of the
Depositary in the City of New York, Borough of Manhattan
[ ]
at which at any particular time its business in respect of matters governed
by
the Deposit Agreement shall be administered, which at the time of the execution
of the Deposit Agreement is located at
[ ]
(the “Corporate Office”).
16
This
Depositary Receipt (“Receipt”)
shall not be entitled to any benefits under the Deposit Agreement or be valid
or
obligatory for any purpose unless this Receipt shall have been executed manually
or, if a Registrar for the Receipts (other than the Depositary) shall have
been
appointed, by facsimile by the Depositary by the signature of a duly authorized
officer and, if executed by facsimile signature of the Depositary, shall have
been countersigned manually by such Registrar by the signature of a duly
authorized officer.
THE
DEPOSITARY IS NOT RESPONSIBLE
FOR THE VALIDITY OF ANY DEPOSITED STOCK. THE DEPOSITARY ASSUMES NO
RESPONSIBILITY FOR THE CORRECTNESS OF THE DESCRIPTION SET FORTH IN THIS RECEIPT,
WHICH CAN BE TAKEN AS A STATEMENT OF THE COMPANY SUMMARIZING CERTAIN PROVISIONS
OF THE DEPOSIT AGREEMENT. UNLESS EXPRESSLY SET FORTH IN THE DEPOSIT AGREEMENT,
THE DEPOSITARY MAKES NO WARRANTIES OR REPRESENTATIONS AS TO THE VALIDITY,
GENUINENESS OR SUFFICIENCY OF ANY STOCK AT ANY TIME DEPOSITED WITH THE
DEPOSITARY UNDER THE DEPOSIT AGREEMENT OR OF THE DEPOSITARY SHARES, AS TO THE
VALIDITY OR SUFFICIENCY OF THE DEPOSIT AGREEMENT, AS TO THE VALUE OF THE
DEPOSITARY SHARES OR AS TO ANY RIGHT, TITLE OR INTEREST OF THE RECORD HOLDERS
OF
THE RECEIPTS IN AND TO THE DEPOSITARY SHARES.
The
Company will furnish to any
holder of this Receipt without charge, upon request addressed to its executive
office, a full statement of the designation, relative rights, preferences,
privileges, limitations and restrictions of the shares of each authorized class,
and of each class of preferred stock authorized to be issued, so far as the
same
may have been fixed, and a statement of the authority of the board of directors
of the Company to designate and fix the relative rights, preferences,
privileges, limitations and restrictions of other classes.
This
Receipt is continued on the
reverse hereof and the additional provisions therein set forth for all purposes
have the same effect as if set forth at this place.
Dated:
as
Depositary and Registrar
By:
Authorized
Officer
Further
Conditions and Agreements
Forming Part of this Receipt Appear on the Reverse Side.
17
[REVERSE
OF DEPOSITARY RECEIPT]
1.
THE DEPOSIT AGREEMENT. Receipts,
of which this Receipt is one, are made available upon the terms and conditions
set forth in the Deposit Agreement, dated as of
[ ] (the
“Deposit Agreement”), among the Company, the Depositary and all holders from
time to time of Receipts. The Deposit Agreement (copies of which are on file
at
the Corporate Office and at the office of any agent of the Depositary) sets
forth the rights of holders of Receipts and the rights and duties of the
Depositary. The statements made on the face and the reverse of this Receipt
are
summaries of certain provisions of the Deposit Agreement and are subject to
the
detailed provisions thereof, to which reference is hereby made. In the event
of
any conflict between the provisions of this Receipt and the provisions of the
Deposit Agreement, the provisions of the Deposit Agreement will govern.
2.
DEFINITIONS. Unless otherwise
expressly herein provided, all defined terms used herein shall have the meanings
ascribed thereto in the Deposit Agreement.
3.
REDEMPTION BY THE COMPANY;
REPURCHASE BY THE COMPANY. Whenever the Company shall redeem shares of Stock
in
accordance with a Certificate of Designation, it shall (unless otherwise agreed
in writing with the Depositary) give the Depositary in its capacity as
Depositary not less than 3 business days’ prior notice of the proposed date of
the mailing of a notice of redemption of Stock and the simultaneous redemption
of the Depositary Shares representing the Stock to be redeemed and of the number
of such shares of Stock held by the Depositary to be redeemed. Unless the
Certificate of Designation for a specific series of Stock provides for a
different notice period with respect to that Stock in the event of its
redemption, the Depositary shall, as directed by the Company in writing, mail,
first class postage prepaid, notice of the redemption not less than 30 and
not
more than 60 days prior to the date fixed for redemption of such Stock and
Depositary Shares, to the record holders of the Receipts evidencing the
Depositary Shares to be so redeemed, at the addresses of such holders as the
same appear on the records of the Depositary or any Depositary’s Agent or
Registrar. Notwithstanding the foregoing, neither failure to mail or publish
any
such notice to one or more such holders nor any defect in any notice shall
affect the sufficiency of the proceedings for redemption. On the date of any
such redemption, the Depositary shall surrender the certificate or certificates
held by the Depositary evidencing the number of shares of Stock to be redeemed
in the manner specified in the notice of redemption. The Depositary shall,
thereafter, redeem the number of Depositary Shares representing such redeemed
Stock upon the surrender of Receipts evidencing such Depositary Shares in the
manner provided in the notice sent to record holders of Receipts. Notice having
been mailed as aforesaid, from and after the redemption date (unless the Company
shall have failed to redeem the shares of Stock to be redeemed by it upon the
surrender of the certificate or certificates therefore by the Depositary as
described above), the Depositary Shares called for redemption shall be deemed
no
longer to be outstanding and all rights of the holders of Receipts evidencing
such Depositary Shares (except the right to receive the cash, securities or
other property payable upon redemption upon surrender of such Receipts) shall,
to the extent of such Depositary Shares, cease and terminate. The foregoing
shall be subject further to the terms and conditions of the applicable
Certificate of Designation.
Whenever
the Company shall be
required to make an offer to repurchase Depositary Shares in accordance with
a
Certificate of Designation, it shall (unless otherwise agreed in writing with
the Depositary) give the Depositary in its capacity as Depositary not less
than
3 business days’ prior notice of the required date of the mailing of a notice of
the repurchase offer. The Depositary shall, as directed by the Company in
writing, mail, first class postage prepaid, notice of the relevant terms of
the
repurchase offer, as provided by the Company, to the record holders of the
Receipts at the addresses of such holders as the same appear on the records
of
the Depositary or any Depositary’s Agent or Registrar. The Depositary shall,
thereafter, receive from each holder electing to have Depositary Shares
repurchased pursuant to the repurchase offer in accordance with the instructions
in the notice, the holder’s Receipts, with an appropriate form duly completed
prior to the repurchase date. In case the aggregate number of Depositary Shares
offered for repurchase by the holders exceeds the amount of Depositary Shares
which the Company has offered to repurchase pursuant to the repurchase offer,
the Depositary Shares to be repurchased shall be selected by the Depositary
by
lot or proportionately, as may be determined by the Depositary. The foregoing
is
subject further to the terms and conditions of the applicable Certificate of
Designation.
4.
CONVERSION. In the event that the
Stock, in accordance with its Certificate of Designation, is convertible into
the Company’s common stock or other securities, subject to the terms and
conditions of the Deposit Agreement, a holder of a Receipt or Receipts may
surrender such Receipt or Receipts at the Corporate Office or at such other
office or to a Depositary’s Agent that the Depositary may designate for such
purpose, together with a notice of
18
conversion
duly completed and
executed, thereby directing the Depositary or such Depositary’s Agent to
instruct the Company to cause the conversion of the number of shares of Stock
specified in such notice of conversion into shares of the Company’s common stock
or other securities at the rate specified in the applicable Certificate of
Designation, and an assignment of such Receipt or Receipts to the Company or
in
blank, duly completed and executed, along with any other documents or
instruments and any amounts required by the applicable Certificate of
Designation.
Upon
receipt by the Depositary or a
Depositary’s Agent of a Receipt or Receipts of such notice, assignment and other
documents, instruments or amounts, the Depositary or such Depositary’s Agent
shall instruct the Company, subject to any adjustment provided for in the
applicable Certificate of Designation, (i) to cause the conversion at the
rate specified in the applicable Certificate of Designation of the number of
shares of Stock evidenced by the Receipt or Receipts so surrendered for
conversion as specified in the written notice to the Depositary or such
Depositary’s Agent and (ii) to cause the delivery to the holder of such
Receipt or Receipts of (a) a certificate or certificates evidencing the
number of whole shares of the Company’s common stock or other securities into
which such Stock has been converted, and (b) the amount of cash or other
property, if any, to which such holder is entitled in lieu of fractional shares
of, or fractional interests in, the Company’s common stock or other securities
otherwise deliverable by the Company upon such conversion, calculated in
accordance with the applicable Certificate of Designation. Upon such conversion,
the Depositary or such Depositary’s Agent (i) shall deliver to the holder a
Receipt evidencing the number of Depositary Shares evidenced by the surrendered
Receipt or Receipts in excess of the number of Depositary Shares evidenced
by
such Receipt or Receipts that have been so converted, (ii) shall cancel the
Receipts surrendered for conversion and (iii) shall deliver to the Company
for cancellation the number of shares of Stock evidenced by the Receipts so
surrendered and so converted.
Upon
the conversion of any Stock for
which a notice of conversion has been provided to the Depositary or a
Depositary’s Agent by the holder of the Receipt or Receipts representing such
Stock, the Depositary Shares evidenced by such Receipt or Receipts shall be
deemed no longer outstanding, all rights of the holder of the Receipt or
Receipts evidencing such Depositary Shares (except the right to receive
(i) the Company’s common stock or other securities to which such holder is
entitled upon conversion in accordance with the applicable Certificate of
Designation, (ii) any cash or other property payable in accordance with the
applicable Certificate of Designation with respect to any fractional shares
or
other fractional interests in the Company’s common stock or other securities
otherwise deliverable by the Company upon conversion, (iii) any Receipts
evidencing Depositary Shares representing Stock which was not so converted
and
(iv) any other securities, property or cash to which such holder is
entitled under this Deposit Agreement) shall cease and terminate, and the
Receipt or Receipts evidencing such Depositary Shares shall be cancelled.
No
fractional shares or other
fractional interests in the Company’s common stock or other securities shall be
deliverable by the Company upon conversion of the Stock represented by the
Depositary Shares.
5.
WITHDRAWAL OF STOCK. Holders of
Receipts shall have the right, upon payment of any amount due to the Depositary
with respect to the Receipts, to withdraw any or all of the Stock (but only
in
whole shares of Stock) represented by the Depositary Shares and all money and
other property, if any, represented by such Depositary Shares by surrendering
the Receipt or Receipts evidencing such Depositary Shares at the Corporate
Office, or at such other offices as the Depositary may designate for such
withdrawal (and cancellation of the surrendered Receipts as provided in the
Deposit Agreement).
6.
TRANSFERS, SPLIT-UPS,
COMBINATIONS. Subject to Paragraphs 7, 8 and 9 below, this Receipt is
transferable on the books of the Depositary upon surrender of this Receipt
to
the Depositary at the Corporate Office or at such other offices as the
Depositary may designate for such purchase, properly endorsed or accompanied
by
a properly executed instrument of transfer, together with evidence of the
payment of any transfer taxes as may be required by law, and upon such transfer
the Depositary shall execute and deliver a Receipt or Receipts to or upon the
order of the person entitled thereto, all as provided in and subject to the
Deposit Agreement. Subject to the Deposit Agreement, this Receipt may be split
into other Receipts or combined with other Receipts into one Receipt evidencing
the same aggregate number of Depositary Shares evidenced by the Receipt or
Receipts surrendered; provided, however, that the Depositary shall not issue
any
Receipt evidencing a fractional Depositary Share.
7.
CONDITIONS TO SIGNING AND
DELIVERY, TRANSFER, ETC., OF RECEIPTS.
Prior
to the execution and delivery,
registration of transfer, split-up, combination, or surrender of this Receipt,
the delivery of any distribution hereon or withdrawal or deposit of the Stock
evidenced hereby, or the exercise of any
19
applicable
conversion right, the
Depositary, any of the Depositary’s Agents, the Registrar or the Company may
require any or all of the following:
(i)
payment to it of a sum
sufficient for the payment (or, in the event that the Depositary or the Company
shall have made such payment, the reimbursement to it) of any tax or other
governmental charge or fee with respect thereto (including any such tax or
charge or fee with respect to Stock being deposited or withdrawn or with respect
to other property of the Company being issued upon redemption or conversion);
(ii) production of proof satisfactory to it as to the identity and
genuineness of any signature; and (iii) compliance with such reasonable
regulations, if any, as the Depositary or the Company may establish not
inconsistent with the Deposit Agreement. Any person presenting Stock for
deposit, or any holder of this Receipt, may be required to file such proof
of
residence or other information, to execute such certificates and to make such
representations and warranties as the Depositary or the Company may reasonably
deem necessary or proper. The Depositary or the Company may withhold or delay
the delivery of this Receipt, the registration of transfer or redemption of
this
Receipt, the withdrawal of the Stock represented by the Depositary Shares
evidenced by this Receipt, the distribution of any dividend or other
distribution or the exercise of any applicable conversion right, until such
proof or other information is filed, such certificates are executed or such
representations and warranties are made.
8.
SUSPENSION OF DELIVERY, TRANSFER,
ETC. The registration of transfer, split-up, combination or surrender of this
Receipt and the withdrawal of deposited Stock or the exercise of any applicable
conversion right may be suspended (i) during any period when the register
of stockholders of the Company is closed, (ii) if any such action is deemed
necessary or advisable by the Depositary, any of the Depositary’s Agents or the
Company at any time or from time to time because of any requirement of law
or of
any government or governmental body or commission, or under any provision of
the
Deposit Agreement, or (iii) with the approval of the Company, for any other
reason.
9.
PAYMENT OF TAXES OR OTHER
GOVERNMENTAL CHARGES. If any tax or other governmental charge or fee shall
become payable by or on behalf of the Depositary with respect to (i) this
Receipt, (ii) the Depositary Shares evidenced by this Receipt,
(iii) the Stock (or fractional interest therein) or other property
represented by such Depositary Shares, or (iv) any transaction referred to
in Section 4.6 of the Deposit Agreement, such tax (including transfer,
issuance or acquisition taxes, if any) or governmental charge or fee shall
be
payable by the holder of this Receipt, who shall pay the amount thereof to
the
Depositary. Until such payment is made, registration or transfer of this Receipt
or any split-up or combination of this Receipt or any withdrawal of the Stock
or
money or other property, if any, represented by the Depositary Shares evidenced
by this Receipt upon its surrender or the exercise of any applicable conversion
right may be refused, any dividend or other distribution may be withheld and
any
part or all of the Stock or other property represented by the Depositary Shares
evidenced by this Receipt may be sold for the account of the holder hereof
(after attempting by reasonable means to notify such holder prior to such sale).
Any dividend or other distribution so withheld and the proceeds of any such
sale
may be applied to any payment of such tax or other governmental charge or fee,
the holder of this Receipt remaining liable for any deficiency.
10.
AMENDMENT. The form of the
Receipts and any provision of the Deposit Agreement may at any time and from
time to time be amended by agreement between the Company and the Depositary
in
any respect that they may deem necessary or desirable, including to reflect
the
terms of any Certificate of Designation; provided, however, that no such
amendment that shall materially and adversely alter the rights of the holders
of
Receipts shall be effective as to outstanding Receipts until the expiration
of
90 days after notice of such amendment shall have been given to the record
holders of outstanding Receipts. Each holder of an outstanding Receipt at the
time any such amendment becomes effective shall be deemed, by continuing to
hold
such Receipt, to consent and agree to such amendment and to be bound by the
Deposit Agreement as amended thereby. In no event shall any amendment impair
the
right, subject to the provisions of the Deposit Agreement, of the holder of
the
Depositary Shares evidenced by this Receipt to surrender this Receipt with
instructions to the Depositary to deliver to the holder the Stock or to cause
the conversion of such Stock into the Company’s common stock or other securities
in accordance with the applicable Certificate of Designation and to deliver
all
securities, money and other property, if any, represented thereby, except in
order to comply with mandatory provisions of applicable law.
11.
FEES, CHARGES AND EXPENSES. The
Company will pay all fees, charges and expenses of the Depositary, except for
taxes and other governmental charges and such charges as are otherwise expressly
provided for in the Deposit Agreement.
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12.
TITLE TO RECEIPTS. It is a
condition of this Receipt, and every successive holder hereof by accepting
or
holding the same consents and agrees, that title to this Receipt (and to the
Depositary Shares evidenced hereby), when properly endorsed or accompanied
by a
properly executed instrument of transfer, is transferable by delivery with
the
same effect as in the case of investment securities in general; provided,
however, that the Depositary may, notwithstanding any notice to the contrary,
treat the record holder hereof at such time as the absolute owner hereof for
the
purpose of determining the person entitled to distribution of dividends or
other
distributions or to any notice provided for in the Deposit Agreement and for
all
other purposes.
13.
DIVIDENDS AND DISTRIBUTIONS.
Whenever the Depositary shall receive any cash dividend or other cash
distribution on the Stock (other than cash dividends or cash distributions
paid
by the Company in lieu of fractional shares or other fractional interests in
the
Company’s common stock or other securities otherwise deliverable by the Company
in accordance with the applicable Certificate of Designation), the Depositary
shall, subject to the provisions of the Deposit Agreement, distribute to record
holders of Receipts on the record date fixed pursuant to paragraph 15 such
amounts of such sums as are, as nearly as practicable, in proportion to the
respective numbers of Depositary Shares evidenced by the Receipts held by such
holders; provided, however, that in case the Company or the Depositary shall
be
required by law to withhold and does withhold from any cash dividend or other
cash distribution in respect of the Stock an amount on account of taxes, the
amount made available for distribution or distributed in respect of Depositary
Shares shall be reduced accordingly. The Depositary shall distribute or make
available for distribution, as the case may be, only such amount, however,
as
can be distributed without attributing to any 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.
14.
SUBSCRIPTION RIGHTS, PREFERENCES
OR PRIVILEGES. If the Company shall at any time offer or cause to be offered
to
the persons in whose name Stock is registered on the books of the Company any
rights, preferences or privileges to subscribe for or to purchase any securities
or any rights, preferences or privileges of any other nature, such rights,
preferences or privileges shall in each such instance, subject to the provisions
of the Deposit Agreement, be made available by the Depositary to the record
holders of Receipts in such manner as the Company shall instruct.
15.
NOTICE OF DIVIDENDS, FIXING OF
RECORD DATE. Whenever (i) any cash dividend or other cash distribution
shall become payable, or any distribution other than cash shall be made, or
any
rights, preferences or privileges shall at any time be offered, with respect
to
the Stock, or (ii) the Depositary shall receive notice of any meeting at
which holders of Stock are entitled to vote or of which holders of Stock are
entitled to notice, or (iii) of any mandatory conversion of, or any
election on the part of the Company to call for redemption or exchange of,
any
shares of Stock, in accordance with the applicable Certificate of Designation
or
otherwise, the Depositary shall in each such instance fix a record date (which
shall be the same date as the record date fixed by the Company with respect
to
the Stock) for the determination of the holders of Receipts (x) who shall
be entitled to receive such dividend, distribution, rights, preferences or
privileges or the net proceeds of the sale thereof, or (y) who shall be
entitled to give instructions for the exercise of voting rights at any such
meeting or to receive notice of such meeting or of such conversion, exchange
or
redemption.
16.
VOTING RIGHTS. Upon receipt of
notice of any meeting at which the holders of Stock are entitled to vote, the
Depositary shall, as soon as practicable thereafter, mail to the record holders
of Receipts a notice, which shall contain (i) such information as is
contained in such notice of meeting, (ii) a statement that the holders of
Receipts at the close of business on a specified record date determined as
provided in paragraph 15 will be entitled, subject to any applicable provision
of law, the Certificate of Incorporation or the applicable Certificate of
Designation, to instruct the Depositary as to the exercise of the voting rights
pertaining to the Stock represented by their respective Depositary Shares,
and
(iii) a brief statement as to the manner in which such instructions may be
given. Upon the written request of a holder of this Receipt on such record
date,
the Depositary shall endeavor insofar as practicable to vote or cause to be
voted the Stock represented by the Depositary Shares evidenced by this Receipt
in accordance with the instructions set forth in such request. The Company
hereby agrees to take all reasonable action that may be deemed necessary by
the
Depositary in order to enable the Depositary to vote such Stock or cause such
Stock to be voted. In the absence of specific instructions from the holder
of
this Receipt, the Depositary will abstain from voting to the extent of the
Stock
represented by the Depositary Shares evidenced by this Receipt.
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17.
REPORTS, INSPECTION OF TRANSFER
BOOKS. The Company agrees that it will deliver to the Depositary, and the
Depositary will, promptly after receipt thereof, transmit to the record holders
of Receipts, in each case at the address recorded in the Depositary’s books or
the books of any Depositary’s Agent or the Registrar, copies of all notices and
reports (including financial statements) required by law, by the rules of any
national securities exchange upon which the Stock, the Depositary Shares or
the
Receipts are listed or by the Certificate of Incorporation or the applicable
Certificate of Designation to be furnished by the Company to holders of Stock.
The Depositary, acting as transfer agent and Registrar, shall keep books at
the
Corporate Office for the registration and transfer of Receipts, which books
at
all reasonable times shall be open for inspection by the record holders of
Receipts; provided that any such holder requesting to exercise such right shall
certify to the Depositary that such inspection shall be for a proper purpose
reasonably related to such person’s interest as an owner of Depositary Shares.
18.
LIABILITY OF THE DEPOSITARY, THE
DEPOSITARY’S AGENTS, THE REGISTRAR AND THE COMPANY. Neither the Depositary nor
any Depositary’s Agent nor the Registrar nor the Company shall incur any
liability to any holder of this Receipt, if by reason of any provision of any
present or future law or regulation thereunder of any governmental authority
or
of any provision, present or future, of the Certificate of Incorporation or
the
applicable Certificate of Designation or by reason of any act of god or war
or
other circumstances beyond the control of the relevant party, the Depositary,
any Depositary’s Agent, the Registrar or the Company shall be prevented or
forbidden from doing or performing any act or thing that the terms of the
Deposit Agreement provide shall be done or performed; nor shall the Depositary,
any Depositary’s Agent, the Registrar or the Company incur any liability to any
holder of this Receipt (i) by reason of any nonperformance or delay, caused
as aforesaid, in the performance of any act or thing that the terms of the
Deposit Agreement provide shall or may be done or performed or (ii) by
reason of any exercise of, or failure to exercise, any discretion provided
for
in the Deposit Agreement except, in the case of the Depositary, any Depositary’s
Agent or the Registrar, if such exercise or failure to exercise discretion
is
caused by its negligence or willful misconduct.
19.
OBLIGATIONS OF THE DEPOSITARY,
THE DEPOSITARY’S AGENT, THE REGISTRAR AND THE COMPANY. The Company assumes no
obligation and shall be subject to no liability under the Deposit Agreement
or
this Receipt to the holder hereof or other persons, except to perform its
obligations as are specifically set forth and undertaken by it to perform in
the
Deposit Agreement without negligence or bad faith. Each of the Depositary,
the
Depositary’s Agents and the Registrar assumes no obligation and shall be subject
to no liability under the Deposit Agreement or this Receipt to the holder hereof
or other persons, except to perform such obligations as are specifically set
forth and undertaken by it to perform in the Deposit Agreement without
negligence or willful misconduct.
Neither
the Depositary nor any
Depositary’s Agent nor the Registrar nor the Company shall be liable for any
action or failure to act by it in reliance upon the advice of or information
from legal counsel, accountants, any person presenting Stock for deposit, any
holder of this Receipt or any other person believed by it in good faith to
be
competent to give such advice or information.
20.
TERMINATION OF DEPOSIT
AGREEMENT. The Deposit Agreement may be terminated only if (i) all of the
outstanding Depositary Shares have been redeemed or converted for any other
securities into which the Stock is convertible or (ii) there has been a
final distribution of the Stock to the holders of Receipts in connection with
the Company’s liquidation, dissolution or winding up. The Depositary will mail
notice of such termination to the record holders of all Receipts then
outstanding at least 30 days prior to the date fixed in such notice for such
termination. Upon the termination of the Deposit Agreement, the Company shall
be
discharged from all obligations thereunder except for its obligations to the
Depositary, any Depositary’s Agent and any Registrar under Sections 5.7 and 5.8
of the Deposit Agreement.
If
any Receipts remain outstanding
after the date of termination of the Deposit Agreement, the Depositary
thereafter shall discontinue all functions and be discharged from all
obligations as provided in the Deposit Agreement, except as specifically
provided therein.
21.
GOVERNING LAW. The Deposit
Agreement and this Receipt and all rights thereunder and hereunder and
provisions thereof and hereof shall be governed by, and construed in accordance
with, the law of the State of New York without giving effect to principles
of
conflict of laws.
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FORM
OF ASSIGNMENT
FOR
VALUE RECEIVED, the undersigned
hereby sells, assigns and transfers unto the within Receipt and all rights
and
interests represented by the Depositary Shares evidenced thereby, and hereby
irrevocably constitutes and appoints
[ ]
attorney, to transfer the same on the books of the within-named Depositary,
with
full power of substitution in the premises.
Dated:
Signature:
NOTE:
The signature to this
assignment
must
correspond with the name as
written
upon
the face of the Receipt in
every
particular,
without alteration or
enlargement,
or any change whatever.
23