AMENDMENT AND RATIFICATION AGREEMENT
Exhibit
10.1
This
Amendment and Ratification Agreement (“Amendment
and Ratification Agreement”)
is
executed by Computershare Shareholder Services, Inc. (“CSSI”),
a
Delaware corporation, and its wholly-owned subsidiary Computershare Trust
Company, N.A. (the “Trust
Company”
and
collectively with CSSI, “Computershare”)
and
ICO, Inc. (the “Company”).
By
the execution of this Amendment and Ratification Agreement, Computershare and
the Company agree as follows:
1. Acknowledgment.
Computershare acknowledges that (i) Society National Bank, a national banking
association organized under the laws of the United States of America and
headquartered in Cleveland, Ohio (“Society
National Bank”)
and
the Company entered into that certain Deposit Agreement (the “Deposit
Agreement”)
dated
November 1993, and attached hereto as Exhibit A, pursuant to which Society
National Bank served as depositary for the Company’s $6.75 Convertible
Exchangeable Preferred Stock and (ii) by operation of the provisions of Section
5.04 of the Deposit Agreement, Computershare is the successor Depositary.
2. Amendment.
Computershare and the Company hereby amend the Deposit Agreement as
follows:
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A.
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The
definition of the term “business day” contained in Article 1 is hereby
amended by replacing “Cleveland, Ohio” with “Canton, Massachusetts, Jersey
City, New Jersey, Chicago,
Illinois”.
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B.
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The
definition of the term “Depositary” contained in Article 1 is hereby
amended by replacing “Society National Bank, a national banking
association organized under the laws of the United States of America
and
headquartered in Cleveland, Ohio” with “Computershare Shareholder
Services, Inc., a Delaware corporation (“CSSI”), and its wholly-owned
subsidiary Computershare Trust Company, and any successor as Depositary
hereunder; provided, however, that Depositary shall mean only CSSI
and any
successor hereunder where the Depositary is required by the terms
of this
Agreement to handle cash funds”.
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C.
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The
definition of the term “New York Office” contained in Article 1 is hereby
deleted.
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D.
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The
definition of the term “Depositary’s Office” is hereby added to Article 1
and shall mean “any office of the Depositary at which at any particular
time its depositary receipt business shall be
administered”.
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E.
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Section
2.01 is hereby amended by deleting “; provided, however, that such
signature may be a facsimile if a Registrar (other than a Depositary)
shall have been appointed and such Receipts are countersigned by
manual
signature of a duly authorized signatory of the
Registrar”.
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F.
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The
second paragraph of Section 2.02 is hereby amended by deleting “at its
Cleveland offices”.
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G.
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The
fourth paragraph of Section 2.02 is hereby amended by replacing “New York”
with “Depositary’s” and adding “, to the extent practicable” to the end of
the sentence.
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H.
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The
second paragraph of Section 2.03 is hereby amended by deleting “and the
Depositary shall surrender to the Company a certificate or certificates
(properly endorsed or assigned for transfer, if the Company shall
so
require and the notice shall so state) representing the number of
shares
of Stock to be so redeemed” from the first sentence.
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I.
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The
third paragraph of Section 2.04 is hereby amended by deleting the
first
sentence “On the Exchange Date, the Depositary shall surrender to the
Company certificates representing all the shares of
Stock.”
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J.
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The
second paragraph of Section 2.05 is hereby amended by adding
“Notwithstanding the foregoing, to the extent the Depositary’s standard
business conversion procedures at the time of any conversion differ
from
the procedures set forth in this paragraph, the Depositary may utilize
its
then current standard business conversion procedures to the extent
such
procedures do not materially and adversely alter the rights of the
holders
of Depositary Shares.” to the end of the
paragraph.
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K.
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Section
2.06 is hereby amended by replacing “at the New York Office or such other
offices in the city of New York as the Depositary may designate for
such
purpose” with “at the Depositary’s Office” and by adding “properly
endorsed or accompanied by a properly executed instrument of transfer
including a guarantee of the signature thereon by a participant in
a
signature guarantee medallion program approved by the Securities
Transfer
Association” before the word “together” in the first parenthetical of
Section 2.06.
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L.
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The
second paragraph of Section 2.08 is hereby amended by replacing “Cleveland
office” with Depositary’s Office” and by adding “, to the extent
practicable” to the end of the
sentence.
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M.
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Section
2.10 is hereby amended by adding “and the provision of an open penalty
surety bond satisfactory to the Depositary and holding it and the
Company
harmless” after the word “Company”.
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N.
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The
first paragraph of Section 5.01 is hereby amended by replacing “its
Cleveland office” with “the Depositary’s
Office”.
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O.
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The
second paragraph of Section 5.01 is hereby amended by deleting “and
Registrar and transfer agent with respect to the
Stock”.
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P.
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The
third paragraph of Section 5.01 is hereby amended by deleting “, acting as
transfer agent and Registrar,”, by replacing “its Cleveland office” with
“the Depositary’s office” and by deleting “The Depositary shall consult
with the Company upon receipt of any request for
inspection.”
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2
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Q.
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Section
5.01 is hereby amended by addition the following to the end of the
section
“To the extent provisions of this Deposit Agreement regarding transfer
or
registrar functions of the Depositary conflict with the terms of
any
transfer agency agreement into which the Company and the Depositary
may
enter, the transfer agency agreement shall control; provided, however,
that if any such provisions materially and adversely alter the rights
of
the holders of Depositary Shares, then the provisions in the Deposit
Agreement shall control.”
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R.
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The
seventh paragraph of Section 5.03 is hereby amended by replacing
“state of
Ohio” with “United States of
America”.
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S.
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The
first paragraph of Section 7.04 is hereby amended by replacing “▇▇▇
▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇” with “▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇
▇▇▇▇▇”.
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T.
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The
second paragraph of Section 7.04 is hereby amended by replacing “the
Depositary’s Office, c/o Society National Bank, ▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇
▇▇▇▇, ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇, Attention: ▇▇▇▇ ▇. ▇▇▇▇▇▇▇, Assistant
Vice
President” with Computershare Trust Company, N.A., c/o Computershare
Shareholder Services, Inc., ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇▇,
▇▇▇▇▇, Attn: General Counsel, Facsimile No.
781.575.4210”.
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U.
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Section
7.08 is hereby amended by replacing “Cleveland and Dallas office” with
“Office”.
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V.
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The
Deposit Agreement is hereby amended by adding Section 7.10 as follows:
“Section 7.10 Force
Majeure.
Notwithstanding anything to the contrary contained herein, the Depositary,
the Registrar, and the Depositary’s Agents shall not be liable for any
delays or failures in performance resulting from acts beyond its
reasonable control including, without limitation, acts of God, terrorist
acts, shortage of supply, breakdowns or malfunctions, interruptions
or
malfunction of computer facilities, or loss of data due to power
failures
or mechanical difficulties with information storage or retrieval
systems,
labor difficulties, war, or civil unrest.”
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3. Ratification.
Computershare and the Company hereby ratify the terms of the Deposit Agreement,
and agree that, except as expressly modified by this Amendment and Ratification
Agreement, the terms of the Deposit Agreement shall remain unchanged and the
Deposit Agreement shall continue in full force and effect. The Deposit Agreement
and this Amendment and Ratification Agreement shall be considered one and the
same agreement.
4. Definitions.
All
capitalized terms used in this Amendment and Ratification Agreement without
definition shall have the meanings given to them in the Deposit
Agreement.
5. Governing
Law.
This
Amendment and Ratification Agreement shall be construed and enforced in
accordance with the laws of the State of New York without regard to the
conflicts of law principles thereof.
3
6. Counterparts.
This
Amendment and Ratification Agreement may be signed in any number of counterparts
with the same effect as if the signatures on each such counterparts were on
the
same instrument.
4
EXECUTED
AND DATED on this 15th
day of
September, 2006.
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COMPUTERSHARE
SHAREHOLDER
SERVICES,
INC.
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By:
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/s/
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
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Name:
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▇▇▇▇▇▇
▇. ▇▇▇▇▇▇
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Title:
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Managing
Director
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COMPUTERSHARE
TRUST
COMPANY,
N.A.
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By:
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/s/
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
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Name:
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▇▇▇▇▇▇
▇. ▇▇▇▇▇▇
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Title:
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Managing
Director
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ICO,
INC.
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By:
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/s/
▇▇▇ ▇. ▇▇▇▇
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Name:
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▇▇▇
▇. ▇▇▇▇
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Title:
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Chief
Financial Officer and Treasurer
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5
EXHIBIT
A
[1993
DEPOSIT AGREEMENT]
6
ICO,
INC.,
Society
National Bank, As Depositary
AND
THE
HOLDERS FROM TIME TO TIME OF
THE
DEPOSITARY RECEIPTS ISSUED HEREUNDER
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DEPOSIT
AGREEMENT
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Dated
as of November __, 1993
DEPOSIT
AGREEMENT
DEPOSIT
AGREEMENT dated as of November __, 1993, among ICO, INC., a Texas
corporation, Society National Bank, a national banking association organized
under the laws of the United States of America and headquartered in Cleveland,
Ohio and the holders from time to time of the Depositary 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 the Stock with the Depositary, for the purposes
set forth in this Deposit Agreement and for the issuance hereunder of the
Receipts evidencing Depositary Shares representing an interest in the Stock
so
deposited; and
WHEREAS,
the Receipts are to be substantially in the form of Exhibit A annexed hereto,
with appropriate insertions, modifications and omissions, as hereinafter
provided in this Deposit Agreement.
NOW,
THEREFORE, in consideration of the premises contained herein, the parties hereto
agree as follows:
1
DEFINITIONS
The
following definitions shall for all purposes, unless otherwise indicated, apply
to the respective terms used in this Deposit Agreement and the
Receipts;
“Articles
of Incorporation”
shall
mean the Articles of Incorporation, as amended and restated from time to time,
of the Company.
“Business
Day”
shall
mean a day which is not a Saturday, Sunday or other day on which commercial
banking institutions in the City of Houston, Texas, Cleveland, Ohio or the
City
of New York, New York are authorized or obligated by law or executive order
to
close.
“Common
Stock”
shall
mean the Company’s common stock, no par value.
“Commission”
shall
mean the Securities and Exchange Commission.
“Company”
shall
mean ICO, Inc., a Texas corporation, having its principal office at ▇▇▇
▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇, and its
successors.
“Debentures”
shall
mean the Company’s ___% Convertible Subordinated Debentures due 2003, that are
issuable pursuant to the terms of the Indenture in exchange for the
Stock.
“Deposit
Agreement”
shall
mean this Deposit Agreement, as amended, modified or supplemented from time
to
time.
“Depositary”
shall
mean Society National Bank, a national banking association organized under
the
laws of the United States of America and headquartered in Cleveland, Ohio,
and
any successor as Depositary hereunder.
“Depositary
Shares”
shall
mean the rights evidenced by the Receipts executed and delivered hereunder,
including the interests in Stock granted to holders of Depositary Shares
pursuant to the terms and conditions of this Deposit Agreement. Each Depositary
Share shall represent one-
“Depositary’s
Agent”
shall
mean an agent appointed by the Depositary as provided, and for the purposes
specified, in Section 7.05.
“Dividend
Payment Date”
shall
mean a date fixed by the Company for the payment of dividends on the Stock
pursuant to the terms of the Statement of Designations.
“Dividend
Record Date”
shall
mean a date fixed by the Company for determination of holders entitled to
receive dividends on the Stock pursuant to the terms of the Statement of
Designations.
“Exchange
Date”
shall
mean a date fixed by the Company for the exchange of Debentures for the Stock
pursuant to the terms of the Statement of Designations.
“Indenture”
shall
mean the Indenture between the Company and Texas Commerce Trust Company,
National Association, as trustee, relating to the Debentures.
“New
York Office”
shall
mean the office maintained by the Depositary in New York, New York, which at
the
date of this Deposit Agreement is located at ▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇,
▇▇▇
▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇.
“Receipts”
shall
mean the depositary receipt certificates executed and delivered hereunder,
whether in definitive or temporary form, evidencing any whole number of
Depositary Shares, as the same may be amended from time to time in accordance
with the provisions hereunder.
“Record
holder”
or
“holder”
as
applied to a Depositary Share shall mean the person in whose name such
Depositary Share is registered on the books of the Depositary maintained by
or
on behalf of the Depositary for such purpose.
“Redemption
Date”
shall
mean a date fixed by the Company for the redemption, in whole or in part, of
the
Stock pursuant to the terms of the Statement of Designations.
“Redemption
Price”
shall
mean the price to be paid by the Company for the redemption, in whole or in
part, of the Stock pursuant to the terms of the Statement of
Designations.
“Registrar”
shall
mean any bank or trust company appointed to register ownership and transfers
of
Receipts as herein provided.
“Securities
Act”
shall
mean the Securities Act of 1933, as amended.
“Statement
of Designations”
shall
mean the Statement of Designations Establishing the $____ Convertible
Exchangeable Preferred Stock adopted by the Board of Directors of the Company
establishing and setting forth the rights, preferences, privileges and
limitations of the Stock and filed with the Secretary of State of the State
of
Texas establishing the Stock as a series of preferred stock of the
Company.
2
“Stock”
shall
mean up to 345,000 shares of the Company’s $____ Convertible Exchangeable
Preferred Stock, no par value.
“Trustee”
shall
mean Texas Commerce Trust Company, National Association.
Capitalized
terms used herein but not otherwise defined in this Deposit Agreement shall
have
the meanings assigned to them in the Statement of Designations.
2
FORM
OF
RECEIPTS; DEPOSIT OF STOCK;
EXECUTION
AND DELIVERY OF RECEIPTS;
TRANSFER,
SURRENDER, REDEMPTION,
CONVERSION
AND EXCHANGE OF DEPOSITARY SHARES
2.1 Form
and Transfer of Receipts.
Receipts shall be engraved or printed or lithographed or in such other form
as
may be agreed upon by the Company and the Depositary and shall be substantially
in the form set forth in Exhibit A attached hereto, with appropriate insertions,
modifications and omissions, as hereinafter provided. Pending the preparation
of
definitive Receipts, the Depositary, upon written order of the Company delivered
in compliance with Section 2.02, shall execute and deliver temporary Receipts
which are printed, lithographed, typewritten, mimeographed or otherwise
substantially of the tenor of the definitive Receipts in lieu of which they
are
issued and with such appropriate insertions, omissions, substitutions and other
variations as the person executing such Receipts may determine, as evidenced
by
their execution of such Receipts. If temporary Receipts are issued, the Company
and the Depositary will cause definitive Receipts to be prepared without
unreasonable delay. After the preparation of definitive Receipts, the temporary
Receipts shall be exchangeable for definitive Receipts upon the surrender of
the
temporary Receipts to the Depositary at such office, if any, as the Depositary
may designate, without charge to the holder. Upon surrender of any one or more
temporary Receipts, the Depositary shall execute and deliver in exchange
therefor definitive Receipts representing the same number of Depositary Shares
as represented by the surrendered temporary Receipt or Receipts. Such exchange
shall be made at the Company’s expense and without any charge therefor to the
holder of the Receipts. 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. Receipts shall be executed by
the
Depositary by the manual signature of a duty authorized signatory of the
Depositary; provided,
however,
that
such signature may be a facsimile if a Registrar (other than the Depositary)
shall have been appointed and such Receipts are countersigned by manual
signature of a duly authorized signatory of the Registrar. No Receipt shall
be
entitled to any benefits under this Deposit Agreement or be valid or obligatory
for any purpose unless it shall have been executed as provided in the preceding
sentence. The Depositary shall record on its books each Receipt executed as
provided above and delivered as hereinafter provided. Receipts bearing the
facsimile signature of anyone who was at any time a duly authorized signatory
of
the Depositary or a Registrar, as the case may be, shall bind the Depositary
or
Registrar, as the case may be, notwithstanding that such signatory has ceased
to
be an authorized signatory 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.
3
Receipts
may be endorsed with or have incorporated in the text thereof such legends
(in
addition to the legends included in the form of Receipt set forth in Exhibit
A)
or recitals or changes not inconsistent with the provisions of this Deposit
Agreement as may be required by the Depositary (or, at the election of the
Depositary, the Registrar) or required to comply with any applicable law or
any
regulation, or to indicate any special limitations or restrictions which any
particular Receipts are subject by reason of the date of issuance of the
underlying Stock or otherwise.
Title
to
Depositary Shares evidenced by any 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
until transfer of a Receipt shall be registered on the books of the Depositary
as provided in Section 2.06, 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 dividends or
other
distributions or to any notice provided for in this Deposit Agreement and for
all other purposes.
Each
holder of Depositary Shares is entitled, proportionately, to all the rights,
preferences and privileges of the Stock represented thereby (including dividend,
conversion, voting, exchange, redemption and liquidation rights) and the same
proportionate interest in any and all other property received by the Depositary
in respect of such Stock and at the time held under this Deposit
Agreement.
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 may deposit,
on the date of original issuance, all of the Stock required to be deposited
under this Deposit Agreement by delivery to the Depositary of a certificate
or
certificates for the Stock to be deposited, together with all such
certifications as may be required by the Depositary in accordance with the
provisions of this Deposit Agreement, and together with a written order of
the
Company, 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.
Certificates
representing Stock shall be held by the Depositary at its Cleveland
offices.
Upon
receipt by the Depositary of a certificate or certificates for Stock to be
deposited hereunder, together with the other documents required as specified
above, and upon recordation of the Stock on the books of the Company in the
name
of the Depositary or its nominee, the Depositary, subject to the terms and
conditions of this Deposit Agreement, shall execute and deliver, to or upon
the
order of the person or persons named in the written order delivered to the
Depositary referred to in the first paragraph of this Section, a Receipt or
Receipts for the number of Depositary Shares representing the Stock so deposited
and registered in such name or names as may be required by such person or
persons.
The
Depositary shall execute and deliver such Receipt or Receipts at the New York
Office, except that, at the request, risk and expense of the person entitled
to
receive any Receipt, such delivery may be made at such other place as may be
requested by such person.
4
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 Depositary Agreement.
2.3 Redemption
of Stock.
Whenever the Company shall elect to redeem shares of Stock in accordance with
the Statement of Designations, it shall (unless otherwise agreed in writing
with
the Depositary) give the Depositary in its capacity as Depositary not less
than
10 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 the number of shares of Stock to
be
redeemed, which notice shall be accompanied by (i) a certificate from the
Company stating that such redemption of Stock is in accordance with the
provisions of the Statement of Designations and (ii) the form of notice of
redemption (which shall contain substantially the same information as the notice
required by the Statement of Designations for the redemption of the Stock)
to be
delivered by the Depositary. Not more than 60 nor less than 30 days prior to
the
Redemption Date, the Depositary shall, as directed by the Company in writing,
mail or cause to be mailed, first-class postage prepaid, notice (in the form
provided to the Depositary by the Company) of redemption of the Depositary
Shares representing the Stock to be redeemed, to the holders of record of the
Depositary Shares to be so redeemed at the addresses of such holders as shown
on
the records of the Depositary. Any notice which is so mailed shall be
conclusively presumed to have been duly given whether or not the holder receives
such notice; and failure to give such notice by mail, or any defect in such
notice, to the holders of any Depositary Shares designated for redemption shall
not affect the sufficiency of the proceedings for redemption with respect to
other holders. If fewer than all of the then outstanding Depositary Shares
are
to be redeemed, the Depositary Shares to be redeemed shall be selected ratably
or by lot as may be determined by the Company’s Board of Directors, and the
Company shall deliver instructions relating to such manner of redemption to
the
Depositary.
On
the
Redemption Date, the Company shall deliver to the Depositary funds sufficient
to
redeem in full the Stock called for redemption and the Depositary shall
surrender to the Company a certificate or certificates (properly endorsed or
assigned for transfer, if the Company shall so require and the notice shall
so
state) representing the number of shares of Stock to be so redeemed. On or
after
the Redemption Date, upon surrender by the holders thereof of Receipts (properly
endorsed or assigned for transfer, if the Depositary shall so require, and
otherwise in accordance with the notice of redemption of Depositary Shares)
evidencing Depositary Shares and any other documentation as shall be required
by
the Depositary in its sole discretion, the Depositary shall pay to such holders
from the funds received from the Company an amount per Depositary Share equal
to
one-quarter of the Redemption Price per share paid in respect of the shares
of
Stock redeemed. If, on the Redemption Date, the Company shall have delivered
to
the Depositary funds necessary for the redemption in full of the shares of
Stock
called for redemption, then, notwithstanding that the Receipts evidencing
Depositary Shares representing the shares of Stock called for redemption have
not been surrendered, the dividends in respect thereof shall cease to accrue
after the Redemption Date, such Depositary Shares shall no longer be deemed
outstanding and all rights whatsoever with respect to such Depositary Shares
(except the right of the holders to receive the redemption payment therefor
without interest upon surrender of the Receipts evidencing such Depositary
Shares) shall terminate.
If
fewer
than all the Depositary Shares evidenced by a Receipt are redeemed, the
Depositary shall deliver to the holder of such Receipt upon its surrender to
the
Depositary, together with the
5
2.4 Exchange
of Stock.
If the
Company shall be permitted in accordance with the Statement of Designations
and
shall elect to exchange the shares of the Stock in whole, but not in part,
for
Debentures, it shall (unless otherwise agreed to in writing with the Depositary)
give the Depositary not less than 5 Business Days’ prior notice of the proposed
date of the mailing of a notice of exchange of Stock and the simultaneous
exchange of Depositary Shares representing the Stock to be exchanged, which
notice shall be accompanied by (i) a certificate from the Company stating that
such exchange of Stock is in accordance with the provisions of the Statement
of
Designations and (ii) a form of notice of exchange (which shall contain
substantially the same information as the notice required by the Statement
of
Designations for the exchange of the Stock) to be delivered by the
Depositary.
Not
more
than 60 nor less than 30 days prior to the Exchange Date, the Depositary shall,
as directed by the Company in writing, mail or cause to be mailed, first-class
postage paid, notice (in the form provided to the Depositary by the Company)
of
the exchange of Stock and the simultaneous exchange of Depositary Shares
representing the Stock to be exchanged to the holders of record of the
Depositary Shares to be exchanged, at the addresses of such holders as shown
on
the records of the Depositary. Any notice which is so mailed shall be
conclusively presumed to have been duly given whether or not the holder receives
such notice; and failure to give such notice by mail, or any defect in such
notice, to the holders of any Depositary Shares designated for exchange shall
not affect the sufficiency of the proceedings for exchange with respect to
other
holders. No exchange of Debentures for shares of Stock shall be made unless
the
terms and conditions specified in the Statement of Designations shall have
been
satisfied.
On
the
Exchange Date, the Depositary shall surrender to the Company certificates
representing all the shares of the Stock. Upon surrender by a holder thereof
of
a Receipt or Receipts evidencing Depositary Shares in accordance with the terms
of the notice of exchange, the Company will cause the Debentures to be
authenticated and issued in exchange for the Stock underlying such Depositary
Shares and the Depositary will cause the Debentures to be mailed to the holder
of the Receipts so surrendered at such holder’s address of record or such other
address as the holder shall specify upon surrender of such
Receipts.
Upon
such
exchange, the rights of the holders of Receipts evidencing Depositary Shares
shall cease (except the right to receive on the Exchange Date an amount equal
to
the amount of accrued and unpaid dividends on the Stock represented by such
Depositary Shares to the Exchange Date and the Debentures), and the person
or
persons entitled to receive the Debentures issuable upon such exchange shall
be
treated for all purposes as the registered holder or holders of such
Debentures.
2.5 Conversion
at Option of Holder.
In
order to cause the conversion of any whole or fractional share of Stock into
whole shares of Common Stock pursuant to Section 3 of the Statement of
Designations, the holder of the Depositary Shares representing such whole or
fractional shares of Stock shall surrender the Receipts (properly endorsed
or
assigned for transfer as the Depositary shall require) evidencing such
Depositary Shares to the Depositary at the New York Office or at the office
of
such Depositary’s Agent as the Depositary may designate for such purpose,
together with (i) an irrevocable notice of election to cause the conversion
duly
completed and executed, specifying the number of shares of underlying Stock
to
be so converted
6
Upon
receipt by the Depositary of a Receipt or Receipts accompanied by the required
written notice of conversion, the Depositary shall promptly surrender to the
Company for conversion, in accordance with the procedures established in the
Statement of Designations, a certificate or certificates representing at least
the number of shares of Stock to be converted (properly endorsed or assigned
for
transfer), together with a proper notice of conversion and any other required
documentation and, if applicable, funds received by the Depositary in payment
of
any transfer taxes or any other applicable payments from the holder of the
surrendered Receipts, and, as soon as practicable thereafter, the Company shall
deliver to the Depositary for delivery to such holder a certificate or
certificates evidencing the number of whole shares of Common Stock issuable
upon
such conversion, together with cash due in lieu of fractional shares of Common
Stock as hereinafter provided. If less than all the shares of Stock represented
by a certificate or certificates are surrendered by the Depositary for purposes
of conversion, the Company shall issue to the Depositary a new certificate
or
certificates representing the shares of Stock not surrendered for conversion.
If
less than all the Depositary Shares represented by a Receipt or Receipts are
surrendered to the Depositary for purposes of conversion, the Depositary shall
cause the Registrar to issue to the holder thereof a new Receipt or Receipts
for
any whole Depositary Shares not surrendered for conversion. Subject to the
following provisions of this paragraph, such conversion shall be deemed to
have
been made as of the date of surrender of the Receipts evidencing Depositary
Shares representing shares of Stock to be converted and the receipt thereof
by
the Depositary, and the person or persons entitled to receive the Common Stock
deliverable upon such conversion shall be treated for all purposes as the record
holder or holders of such Common Stock on such date; provided,
however,
that
neither the Company nor the Depositary shall be required to cause the conversion
of any shares of Stock while the share transfer books of the Company are closed
for any purpose, but the surrender of Receipts evidencing Depositary Shares
representing Stock for conversion during any period while such books are so
closed shall become effective for conversion immediately upon the reopening
of
such books as if the surrender had been made on the date of such reopening,
and
the conversion shall be at the conversion rate in effect on such
date.
Any
Depositary Shares surrendered to the Depositary for conversion after any
Dividend Record Date and prior to the Dividend Payment Date with respect to
such
dividend, the dividend
7
Upon
the
conversion of any shares of Stock represented by Depositary Shares for which
a
request for conversion has been made by the holder of such Depositary Shares,
all dividends in respect of such Depositary Shares shall cease to accrue, such
Depositary Shares shall no longer be deemed outstanding, all rights of the
holder of the Receipt or Receipts evidencing such Depositary Shares (except
the
right to receive the Common Stock, any cash payable with respect to any
fractional shares of Common Stock as provided herein and in the Statement of
Designations and any Receipts evidencing Depositary Shares not so converted)
shall terminate, and the Receipt or Receipts evidencing the Depositary Shares
so
converted shall be cancelled in accordance with Section 2.11
hereof.
No
fractional shares or scrip representing fractional shares of Common Stock shall
be issuable upon conversion of Stock. If any holder who delivers Receipts to
the
Depositary with instructions for conversion of the underlying Stock would be
entitled to a fractional share of Common Stock upon such conversion, the Company
shall deliver to the Depositary for delivery to such holder the cash payment
in
lieu of such fractional share required to be paid pursuant to the terms of
the
Statement of Designations.
If
any
event occurs that requires prior notice to the holders of shares of Stock
pursuant to Section 3(xi) of the Statement of Designations, then the
Company shall, not less than 20 days prior to the record or effective date
of
such event or, if the notice is required pursuant to Section 9(c) of the
Statement of Designations, the Company shall promptly deliver a form of notice
(which shall contain substantially the same information as the notice required
by the Statement of Designations) to the Depositary. Not less than 15 days
prior
to the record or effective date of such event or, if the notice is required
pursuant to Section 9(c) of the Statement of Designations, promptly following
receipt of such notice from the Company, the Depositary shall mail or cause
to
be mailed, first-class postage prepaid, notice (in the form provided to the
Depositary by the Company) of such event to the holders of record of the
Depositary Shares, at the addresses as
8
Upon
the
occurrence of a Change of Control or a Fundamental Change (both as defined
in
the Statement of Designations), the Company shall, within 5 Business Days after
such occurrence, notify the Depositary in writing of such occurrence and shall
deliver to the Depositary a form of notice (which shall contain substantially
the same information as the notice required by the Statement of Designations).
Upon its receipt of such form of notice from the Company, the Depositary shall
mail or cause to be mailed, first-class postage prepaid, notice (in the form
provided to the Depositary by the Company) of such occurrence to all holders
of
record of Depositary Shares at the addresses as shown on the records of the
Depositary.
Upon
the
occurrence of a Change of Control or Fundamental Change, a holder of a Receipt
or Receipts may direct the Depositary to instruct the Company to cause the
conversion of all, but not less than all, the Stock underlying such holder’s
Depositary Shares into Common Stock at an adjusted conversion price per share
equal to the Special Conversion Price (as defined in the Statement of
Designations), in accordance with the terms and subject to the conditions set
forth in the Statement of Designations. Such a holder of Receipts evidencing
Depositary Shares must exercise this special conversion right within the 45-day
period after the mailing of the notice by the Depositary or such special
conversion right shall expire.
2.6 Registration
of Transfer of Depositary Shares.
Subject
to the terms and conditions of this Deposit Agreement, the Registrar shall
register on its books from time to time transfers of Depositary Shares upon
surrender of the Receipt or Receipts evidencing such Depositary Shares (together
with such certificates of the transferor and the transferee and such other
documents as the Depositary, upon the instructions of the Company, shall require
to demonstrate compliance with any applicable restrictions on transfer of such
Depositary Shares), at the New York Office or at such other offices in the
city
of New York 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 form of assignment appearing on the Receipts,
together with evidence of the payment of any transfer taxes as may be required
by law and any other documentation that may be requested by the Registrar in
its
sole discretion. Upon such surrender, the Registrar 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.
2.7 Split-ups
and Combinations of Receipts.
Upon
surrender of a Receipt or Receipts at the New York Office or at such other
offices as the Registrar 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 Registrar 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.
2.8 Withdrawal
Rights.
A
holder of Depositary Shares representing one or more whole shares of Stock
shall
be entitled to exchange such Depositary Shares for such whole shares of Stock
and all money and other property, if any, represented thereby. In order to
9
Delivery
of the Stock and the money and other property, if any, represented by Receipts
surrendered for withdrawal shall be made by the Depositary at the Cleveland
office, except that, at the request, risk and expenses of the holder
surrendering such Receipt or Receipts and for the account of the holder thereof,
such delivery may be made at such other place as may be designated by such
holder.
2.9 Limitations
on Execution and Delivery; Transfer, Surrender and Exchange of
Receipts.
As a
condition precedent to the execution and delivery, registration of transfer,
split-up, combination, surrender or exchange of any Receipt or the delivery
or
any distribution thereon, the Depositary, any of the Depositary’s Agents of 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 charges or
expenses payable by the holder of a Receipt pursuant to Section 5.07;
(ii) production of proof satisfactory to it as to the identity and
genuineness of any signature; (iii) production of a transfer notice in the
form appearing on the Receipts, together with other documentation required
by
such transfer notice; and (iv) compliance with such reasonable regulations,
if
any, as the Depositary, Registrar or the Company may establish not inconsistent
with the provisions of this Deposit Agreement.
The
registration of transfer, split-up, combination, surrender or exchange of
outstanding Receipts may be refused or suspended (i) during any period when
the
share transfer book of the Company is closed, or (ii) if any such action is
deemed necessary or advisable by the Depositary, any of the Depositary’s Agents
or the Company at any time or from time to time because of any requirement
of
law or of any government or governmental body or commission or under any
provision of this Deposit Agreement, or (iii) with the approval of the Company,
for any other reason.
2.10 Lost
Receipts.
In case
any Receipt shall be mutilated, destroyed, lost or stolen, the Depositary shall
execute and deliver a Receipt of like form and tenor in exchange and
10
2.11 Cancellation
and Destruction of Surrendered Receipts.
All
Receipts surrendered to the Registrar or any Registrar’s Agent shall be
cancelled by the Depositary. The Depositary shall retain or return to the
Company, subject to any applicable law, all Receipts so cancelled.
3
CERTAIN
OBLIGATIONS OF HOLDERS
OF
RECEIPTS AND THE COMPANY
3.1 Filing
Proofs, Certificates and Other Information.
Any
holder of a Receipt may be required from time to time to file such proof of
residence or other information, to execute such certificates and to make such
representations and warranties as the Depositary, Registrar or the Company
may
reasonably deem necessary or proper. The Depositary, Registrar or the Company
may withhold or delay the delivery of any Receipt, the registration of transfer,
split-up or combination of any Receipt, the conversion, redemption or exchange
of any Receipt or the withdrawal of the Stock represented by the Depositary
Shares evidenced by any Receipt or the distribution of any dividend or other
distribution or the sale of any rights or of the proceeds thereof or the
conversion of any Stock until such proof or other information is filed, such
certificates are executed or such representations and warranties are
made.
3.2 Payment
of Taxes or Other Governmental Charges.
Holders
of Receipts shall be obligated to make payments to the Depositary or Registrar
of certain charges and expenses, as provided in Section 5.07. Until such payment
is made, registration of transfer of any Receipt or any withdrawal of Stock
and
all money or other property, if any, represented by the Depositary Shares
evidenced by such Receipt may be refused, any dividend or other distribution
may
be withheld and any part or all the Stock or other property (including Common
Stock received in connection with a conversion of Stock) 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 charges or expenses,
the
holder of such Receipt remaining liable for any deficiency.
3.3 Withholding.
The
Registrar shall act as the tax withholding agent for any payments, distributions
and exchanges made with respect to the Depositary Shares and Receipts, and
the
Stock, Common Stock or other securities or assets represented thereby
(collectively, the “Securities”). The Registrar shall be responsible with
respect to the Securities for the timely (i) collection and deposit of any
required withholding or backup withholding tax, and (ii) filing of any
information returns or other documents with federal taxing
authorities.
11
3.4 Warranties
as to Stock.
The
Company hereby represents and warrants that (i) the Stock, when issued, will
be
duly authorized, validly issued, fully paid and nonassessable; (ii) the deposit
of the Stock and each certificate therefor are valid and (iii) 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.
4
THE
STOCK; NOTICES
4.1 Cash
Distributions.
Whenever the Depositary shall receive any cash dividend or other cash
distribution on the Stock, the Depositary shall, subject to Sections 3.01 and
3.02, distribute to record holders of Depositary Shares on the record date
fixed
pursuant to Section 4.04 such amounts of such dividend or distribution as are,
as nearly as practicable, in proportion to the respective numbers of Depositary
Shares held by such holders; provided,
however,
that in
case the Company or the Depositary shall be required to withhold and shall
withhold from any cash dividend or other cash distribution in respect of the
Stock an amount on account of taxes, the amount made available for distribution
or distributed in respect of Depositary Shares shall be reduced accordingly;
provided further,
that if
such withholding is required only as to a part of the Stock or certain
Depositary Shares, but not all of the Stock or Depositary Shares generally,
such
reduction of the amount made available for distribution or distributed in
respect of the Depositary Shares shall only affect the Depositary Shares as
to
which such withholding is required. 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 record 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 Depositary Shares then outstanding.
4.2 Distributions
Other than Cash, Rights, Preferences or Privileges.
Whenever the Depositary shall receive for distribution securities or property
other than cash, rights, preferences or privileges upon the Stock, the
Depositary shall, subject to Sections 3.01 and 3.02, distribute to record
holders of Depositary Shares on the record date fixed pursuant to Section 4.04
such amounts of the securities or property received by it as are, as nearly
as
practicable, in proportion to the respective numbers of Depositary Shares held
by such holders, in any manner that the Company may deem equitable and
practicable for accomplishing such distribution. If in the opinion of the
Depositary such distribution cannot be made proportionately among such record
holders, or if for any other reason (including any requirement that the Company
or the Depositary withhold an amount on account of taxes) the Depositary deems,
after consultation with the Company, such distribution not to be feasible,
the
Depositary may, with the approval of the Company (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 Sections 3.01 and 3.02, be
distributed or made available for distribution, as the case may be, by the
Depositary to record holders of Depositary Shares as provided by Section 4.01
the case of a distribution received in cash. Neither the Company nor the
Depositary shall make any distribution of securities unless the Company shall
have provided the Depositary an
12
4.3 Subscription
Rights, Preferences or Privileges.
If the
Company shall at any time offer or cause to be offered to the Depositary, as
the
person in whose name the 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 nature, such rights, preferences
or privileges shall in each such instance be made available by the Depositary
to
the record holders of Depositary Shares 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 in writing that
it is not lawful or feasible to make such rights, preferences or privileges
available to some or all holders of Depositary Shares (by the issue of warrants
or otherwise), or (ii) if and to the extent so instructed by holders of
Depositary Shares who do not desire to exercise such rights, preferences or
privileges, the Depositary shall then, in each case, if applicable laws or
the
terms of such rights, preferences or privileges permit such transfer, sell
such
rights, preferences or privileges at public or private sale, at such place
or
places and upon such terms as it may deem proper. The net proceeds of any such
sale shall, subject to Sections 3.01 and 3.02, be distributed by the Depositary
to the record holders of Depositary Shares entitled thereto as provided by
Section 4.01 in the case of a distribution received in cash. The Company shall
not make any distribution of any such rights, preferences or privileges unless
the Company shall have provided the Depositary an opinion of counsel stating
that such rights, preferences or privileges have been registered under the
Securities Act or do not need to be registered to effect such
distribution.
If
registration under the Securities Act of the securities to which any rights,
preferences or privileges relate is required in order for holders of Depositary
Shares to be offered or sold such securities, the Company shall file promptly
a
registration statement pursuant to the Securities Act with respect to such
rights, preferences or privileges and securities and use its best efforts and
take all steps available to it to cause such registration statement to become
effective sufficiently in advance of the expiration of such rights, preferences
or privileges to enable such holders to exercise such rights, preferences or
privileges. In no event shall the Depositary make available to the holders
of
Depositary Shares any right, preference or privilege to subscribe for or to
purchase any securities unless and until such a registration statement shall
have become effective, or unless the offering and sale of such securities to
such holders are exempt from registration under the provisions of the Securities
Act.
If
any
other action under the laws of any jurisdiction or any governmental or
administrative authorization, consent or permit is required in order for such
securities or rights, preferences or privileges to be made available to holders
of Depositary Shares the Company agrees with the Depositary that the Company
will use its best efforts to take such action or obtain such authorization,
consent or permit sufficiently in advance of the expiration of such rights,
preferences or privileges to enable such holders to exercise such rights,
preferences or privileges.
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 if 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
13
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 or cause
to
be mailed to the record holders of Depositary Shares a notice, the form of
which
shall have been delivered by the Company to the Depositary, which shall contain
(i) such information as is contained in such notice of meeting, (ii) a statement
that the holders of Depositary Shares at the close of business on a specified
record date fixed pursuant to Section 4.04 will be entitled, subject to any
applicable provision of law, the Articles of Incorporation or the Statement
of
Designations, to instruct the Depositary as to the exercise of the voting rights
pertaining to the amount of Stock represented by their respective Depositary
Shares (including an express indication that instructions may be given to the
Depositary to give a discretionary proxy to a person designated by the Company)
and (iii) a brief statement as to the manner in which such instructions may
be
given. Upon the written request of a holder of Depositary Shares on such record
date, the Depositary shall endeavor, insofar as practicable, to vote or cause
to
be voted the Stock represented by such Depositary Shares in accordance with
the
instructions set forth in such requests. The Company hereby agrees to take
all
action which may be deemed necessary by the Depositary in order to enable the
Depositary to vote such Stock or cause such Stock to be voted. In the absence
of
specific instructions from the holder of Depositary Shares the Depositary will
abstain from voting (but, at its discretion, not from appearing at any meeting
with respect to such Stock unless directed to the contrary by the holders of
all
Depositary Shares) to the extent of the Stock represented by the Depositary
Shares.
4.6 Changes
Affecting the Stock and Reclassifications, Recapitalizations,
etc.
Upon
any split-up, consolidation or any other reclassification of the Stock or upon
any recapitalization, reorganization, merger, amalgamation or consolidation
affecting the Company or to which it is a party, or sale of all or substantially
all of the Company’s assets, the Depositary may, subject to the terms of the
Statement of Designations, with the approval of, or upon the instructions of,
the Company, (i) make such adjustments as are approved or directed by the
Company in (w) the fraction of an interest represented by one Depositary Share
in one share of Stock, (x) the ratio of the redemption price per Depositary
Share to the redemption price of a share of Stock, (y) the ratio of the
conversion price per Depositary Share to the conversion price of a share of
Stock and (z) the rate at which Debentures are exchanged for Stock in each
case
as may be necessary fully to reflect the effects of such changes in par or
stated value, split-up, combination or other reclassification of Stock, or
of
such recapitalization, reorganization, merger, amalgamation, consolidation,
or
sale of all or substantially all of the Company’s assets, and (ii) treat any
shares of stock or other securities or property (including cash) that shall
be
received by the Depositary in exchange for or upon conversion of or in respect
of the Stock as new deposited property under this Deposit Agreement, and
Depositary Shares then outstanding
14
4.7 Reports.
The
Company or, at the option of the Company, the Depositary shall forward to the
holders of Depositary Shares any reports and communications received from the
Company that are received by the Depositary as the holder of Stock.
4.8 List
of 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 Depositary Shares are
registered on the books of the Depositary. At the expense of the Company, the
Company shall have the right to inspect transfer or 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.
5
THE
DEPOSITARY; THE DEPOSITARY’S AGENTS;
THE
TRANSFER AGENT AND REGISTRAR; AND THE COMPANY
5.1 Maintenance
of Offices, Agencies and Transfer Books by the Depositary; the
Registrar.
Upon
execution of this Deposit Agreement in accordance with its terms, the Depositary
shall maintain (i) at its Cleveland office, facilities for the execution and
delivery, registration, registration of transfer, surrender and exchange,
split-up, combination, redemption and conversion of Receipts and Depositary
Shares and (ii) at the offices of the Depositary’s Agents, if any, facilities
for the delivery, registration, registration of transfer, surrender and
exchange, split-up, combination, conversion and redemption of Receipts and
Depositary Shares, all in accordance with the provisions of this Deposit
Agreement.
The
Company hereby appoints the Depositary to act as the Registrar, transfer agent
and paying agent with respect to the Depositary Shares and Registrar and
transfer agent with respect to the Stock, and the Depositary hereby accepts
such
appointment.
The
Depositary, acting as transfer agent and Registrar, shall keep books at its
Cleveland office for the registration and transfer of Depositary Shares, which
books at all reasonable times shall be open for inspection by the record holders
of Depositary Shares provided,
that
any such holder requesting to exercise such right shall certify to the
Depositary that such inspection shall be for a
15
5.2 Prevention
or Delay in Performance by the Depositary, the Depositary’s Agents, the
Registrar or the Company.
Neither
the Depositary; any Depositary’s Agent; the Registrar nor the Company shall
incur any liability to any holder of any Depositary Shares, if by reason of
any
provision of any present or future law or regulation thereunder of the United
States of America or of any other governmental authority or, in the case of
the
Depositary, the Registrar or any Depositary’s Agent, by reason of any provision,
present or future, of the Articles of Incorporation or the Statement of
Designations or, in the case of the Company, the Depositary, the Registrar
or
any Depositary’s Agent, by reason of any act of God or war or other
circumstances beyond the control of the relevant party, the Depositary, any
Depositary’s Agent, the Registrar or the Company shall be prevented or forbidden
from doing or performing any act or thing that the terms of this Deposit
Agreement provide shall be done or preformed; nor shall the Depositary, any
Depositary’s Agent, the Registrar or the Company incur any liability to any
holder of Depositary Shares (i) by reason of any nonperformance or delay, caused
as aforesaid, in the performance of any act or thing that the terms of this
Deposit Agreement provide shall or may be done or performed, or (ii) by reason
of any exercise of, or failure to exercise, any discretion provided for in
this
Deposit Agreement except, in the case of the Depositary, any Depositary’s Agent
or the Registrar, if any such exercise or failure to exercise discretion is
caused by its negligence or bad faith.
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 to holders of Receipts or other persons, except to perform
such obligations as are specifically set forth and undertaken by it to perform
in this Deposit Agreement other than for its negligence or bad faith. Each
of
the Depositary, the Depositary’s Agents and time Registrar assumes no obligation
and shall be subject to no liability under this Deposit Agreement to holders
of
Receipts or other persons, except to perform such obligations as are
specifically set forth and undertaken by it to perform in this Deposit Agreement
other than for its negligence or bad faith.
Neither
the Depositary, any Depositary’s Agent, the Registrar nor, except as expressly
provided herein, the Company shall be under any obligation to appear in,
prosecute or defend any action, suit or other proceeding that in its opinion
may
involve it in expense or liability, unless indemnity satisfactory to it against
all expense and liability be furnished as often as may be required.
Neither
the Depositary, any Depositary’s Agent, the Registrar nor, except as expressly
provided herein, 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.
16
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 Depositary Shares
The Depositary, the Registrar and any Depositary Agent may also act as transfer
agent or registrar of any of the securities of the Company and its affiliates.
The Depositary may loan money to the Company and its affiliates and may engage
in any other business with or for the Company and its affiliates.
It
is
intended that neither the Depositary; any Depositary’s Agent nor the Registrar
shall be deemed to be an “issuer” of the Stock, the Depositary Shares, the
Receipts or the Common Stock or other securities issued upon conversion 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 agrees to comply with all information reporting and withholding
requirements applicable to it under law or this Deposit Agreement in its
capacity as Depositary.
Neither
the Depositary (or its officers, directors, employees or agents); any
Depositary’s Agent nor the Registrar makes any representation or has any
responsibility as to the validity of 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.
Notwithstanding
any other provision herein or in the Receipts, the Depositary hereby represents
and warrants as follows: (i) the Depositary has been duly organized and is
validly existing and in good standing as a national banking association
qualified to conduct banking and trust business in the state of Ohio, with
full
power, authority and legal right under such law to execute, deliver and carry
out the terms of this Deposit Agreement; (ii) this Deposit Agreement has been
duly authorized, executed and delivered by the Depositary; and (iii) this
Deposit Agreement constitutes a valid and binding obligation of the Depositary,
enforceable against the Depositary in accordance with its terms, except as
enforcement thereof may be limited by bankruptcy, insolvency, reorganization
or
other similar laws affecting enforcement of creditors’ rights generally and
except as enforcement thereof is subject to general principles of equity
(regardless of whether enforcement is considered in a proceeding in equity
or at
law).
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
via
registered mail of its election to do so delivered to the Company, such
resignation to take effect upon the appointment of a successor depositary and
its acceptance of such appointment as hereinafter provided.
The
Depositary may at any time be removed, with or without cause, by the Company
by
written notice of such removal delivered to the Depositary, such removal to
take
effect upon the appointment of a successor depositary and its acceptance of
such
appointment as hereinafter provided.
In
case
at any time the Depositary acting hereunder shall resign or be removed, the
Company shall, within 60 days after the delivery of the notice of resignation
or
removal, as the case may be, appoint a successor depositary, which shall be
a
bank or trust company, or an affiliate of a bank or trust company, having its
principal office in the United States of America and having a combined capital
and surplus of at least $50,000,000. If a successor depositary shall not have
17
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.
5.5 Corporate
Notices and Reports.
The
Company agrees that it will transmit to the record holders of Depositary Shares,
in each case at the addresses furnished to it pursuant to Section 4.08, all
notices and reports (including without limitation financial statements) required
by law, by the rules of any national securities exchange upon which the Stock,
the Depositary Shares or the Receipts are listed, by the Company’s Articles of
Incorporation, or by the Statement of Designations to be furnished by the
Company to holders of Stock. Such transmission will be at the Company’s
expense.
5.6 Indemnification
by the Company.
The
Company shall indemnify the Depositary, any Depositary’s Agent and any Registrar
against, and hold each of them harmless from, any loss, liability or expense
(including the costs and expenses of defending itself) which may arise out
of or
in connection with (i) acts performed or omitted under this Deposit Agreement
and the Receipts (a) by the Depositary, any Registrar or any of their respective
agents (including any Depositary’s Agent), except for any liability arising out
of negligence or bad faith on the respective parts of any such person or
persons, or (b) by the Company or any of its agents, or (ii) the offer, sale
or
registration of the Depositary Shares or the Stock pursuant to the provisions
hereof. The obligations of the Company set forth in this Section 5.06 shall
survive any succession of any Depositary, Registrar or Depositary’s
Agent.
5.7 Fees,
Charges and Expenses.
The
Company shall pay all transfer and other taxes and governmental charges arising
solely from the existence of the depositary arrangements. The Company shall
pay
all charges of the Depositary in connection with the initial deposit of the
Stock and the initial issuance of the Depositary Shares, redemption of the
Stock
at the option of the Company, conversion of the Stock into Common Stock and
all
withdrawals of shares of the Stock by owners of Depositary Shares. All other
transfer and other taxes and governmental charges shall be at the expense of
holders of Depositary Shares. If, at the request of a holder of Depositary
Shares, the Depositary incurs fees, charges or expenses for which it is not
otherwise liable hereunder, such holder 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, fees
and expenses of counsel) incident to the performance of
18
6
AMENDMENT
AND TERMINATION
6.1 Amendment.
The
form of the Receipts and any provisions of this Deposit Agreement may at any
time and from time to time be amended by agreement between the Company and
the
Depositary in any respect which they may deem necessary or desirable;
provided,
however,
that no
such amendment that shall materially and adversely alter the rights of the
holders of Depositary Shares shall be effective unless such amendment shall
have
been approved by the holders of at least a majority of the Depositary Shares
outstanding. Every holder of outstanding Depositary Shares at the time any
such
amendment so becomes effective shall be deemed, by continuing to hold such
Depositary Shares, to consent and agree to such amendment and to be bound by
this Deposit Agreement as amended thereby.
6.2 Termination.
This
Deposit Agreement may be terminated by the Company or the Depositary only after
(i) all outstanding Depositary Shares shall have been redeemed pursuant to
Section 2.03, or exchanged pursuant to Section 2.04 and all shares of Common
Stock, cash and other property shall have been distributed to holders of
Depositary Shares, (ii) each share of Stock shall have been converted into
shares of Common Stock pursuant to Section 2.05, or (iii) there shall have
been
made a final distribution in respect of the Stock in connection with any
liquidation, dissolution or winding up of the Company and such distribution
shall have been distributed to the holders of Depositary Shares pursuant to
Section 4.01 or 4.02, as applicable.
Upon
the
termination of this Deposit Agreement, the Company shall be discharged from
all
obligations under this Deposit Agreement except for its obligations to the
Depositary, any Depositary’s Agent and any Registrar under Sections 5.06 and
5.07.
7
MISCELLANEOUS
7.1 Counterparts.
This
Deposit Agreement may be executed by the Company and the Depositary in separate
counterparts, each of which when so executed and delivered, shall be deemed
an
original, but all such counterparts taken together shall constitute one and
the
same instrument. Delivery of an executed counterpart of a signature page to
the
Deposit Agreement shall be effective as delivery of a manually executed
counterpart of the Deposit Agreement.
7.2 Exclusive
Benefit of Parties.
This
Deposit Agreement is for the exclusive benefit of the parties hereto, and their
respective successors hereunder, and shall not be deemed to give any legal
or
equitable right, remedy or claim to any other person whatsoever.
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
19
7.4 Notices.
Any and
all notices to be given to the Company hereunder or under the Receipts shall
be
in writing and shall be deemed to have been duly given if personally delivered
or sent by mail or by facsimile transmission confirmed by letter, addressed
to
the Company at ▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇,
Attention: Secretary, or any other place to which the Company shall have
notified the Depositary in writing.
Any
and
all notices to be given to the Depositary hereunder or under the Receipts shall
be in writing and shall be deemed to have been duly given if personally
delivered or sent by mail or by facsimile transmission confirmed by letter,
addressed to the Depositary at the Depositary’s Office, c/o Society National
Bank, ▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇, Attention: ▇▇▇▇ ▇.
▇▇▇▇▇▇▇, Assistant Vice President or at any other address of which the
Depositary shall have notified the Company in writing.
Any
and
all notices to be given to any record holder of Depositary Shares hereunder
or
under the Receipts shall be in writing and shall be deemed to have been duly
given if personally delivered or sent by mail or by facsimile transmission
confirmed by letter, addressed to such record holder at the address of such
record holder as it appears on the books of the Depositary or, if such holder
shall have filed with the Depositary a written request that notices intended
for
such holder be mailed to some other address, at the address designated in such
request.
Delivery
of a notice sent by mail or by facsimile transmission 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 facsimile
transmission) is deposited, postage prepaid, in a post office letter box. The
Depositary or the Company may, however, act upon any facsimile transmission
received by it from the other or from any holder of Depositary Shares,
notwithstanding that such facsimile transmission message shall not subsequently
be confirmed by letter as aforesaid.
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 vary or terminate the appointment of such Depositary’s
Agents.
7.6 Holders
are Parties.
Notwithstanding that holders of Depositary Shares have not executed and
delivered this Deposit Agreement or any counterpart hereof, the holders of
Depositary Shares 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.
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 laws of the State of New York without giving effect to principles
of
conflict of laws.
7.8 Inspection
of Deposit Agreement.
Copies
of this Deposit Agreement shall be filed with the Depositary, the Registrar
and
the Depositary’s Agents and shall be open to
20
7.9 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 part of this Deposit Agreement or the
Receipts or have any bearing upon the meaning or interpretation of any provision
contained herein or in the Receipts.
21
IN
WITNESS WHEREOF, ICO Inc. and Society National Bank have duly executed this
Deposit Agreement as of the day and year first above set forth and all holders
of Depositary Shares shall become parties hereto by and upon acceptance by
them
of delivery of Receipts issued in accordance with the terms hereof.
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By:
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Name:
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Title:
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SOCIETY
NATIONAL BANK
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By:
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Name:
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Title:
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