Exhibit 4.4
DEPOSIT AGREEMENT
DATED AS OF __________________,
AMONG
PRIMUS GUARANTY, LTD.,
A BERMUDA COMPANY,
________________, A [NATIONAL BANKING ASSOCIATION],
AND THE HOLDERS
FROM TIME TO TIME OF THE DEPOSITARY SHARES
DESCRIBED HEREIN.
WHEREAS it is desired to provide, as hereinafter set forth in this
Deposit Agreement, for the deposit of shares of ____ Preferred Shares, Series
__, par value $__per share, of Primus Guaranty, Ltd. with the Depositary (as
hereinafter defined) for the purposes set forth in this Deposit Agreement and
for the issuance hereunder of Receipts (as hereinafter defined) evidencing
Depositary Shares (as hereinafter defined) in respect of the Stock (as
hereinafter defined) so deposited;
NOW, THEREFORE, in consideration of the premises, the parties hereto
agree as follows:
ARTICLE I
DEFINITIONS
The following definitions shall for all purposes, unless otherwise
indicated, apply to the respective terms used in this Deposit Agreement and the
Receipts:
"Certificate" shall mean the certificate of designation of terms
establishing the Stock as a series of preferred shares of the Company.
"Company" shall mean Primus Guaranty, Ltd., a Bermuda company, and its
successors.
"Deposit Agreement" shall mean this Deposit Agreement, as amended or
supplemented from time to time.
"Depositary" shall mean ___________________, a [national banking
association], and any successor as Depositary hereunder.
"Depositary Shares" shall mean Depositary Shares, each representing a
fractional interest in a share of the Stock and evidenced by a Receipt.
"Depositary's Agent" shall mean an agent appointed by the Depositary
pursuant to Section 7.05.
"Depositary's Office" shall mean the office of the Depositary at
___________________, ___________________, ___________________, at which at any
particular time its depositary receipt business shall be administered.
"Receipt" shall mean one of the depositary receipts issued hereunder,
whether in definitive or temporary form.
"Record Holder" as applied with respect to a Depositary Share shall
mean the person in whose name a Receipt evidencing such Depositary Share is
registered on the books of the Depositary maintained for such purpose.
"Registrar" shall mean any bank or trust company which shall be
appointed to register ownership and transfers of Receipts as herein provided.
"Stock" shall mean shares of the Company's _____% Preferred Shares,
Series __, $_____ par value.
ARTICLE II
FORM OF RECEIPTS, DEPOSIT OF STOCK, EXECUTION AND DELIVERY, TRANSFER,
SURRENDER AND REDEMPTION OF RECEIPTS
SECTION 2.01. Form and Transfer of Receipts. Definitive Receipts shall
be engraved or printed or lithographed and shall be substantially in the form
set forth in Exhibit A annexed to this Deposit Agreement, with appropriate
insertions, modifications and omissions, as hereinafter provided. Pending the
preparation of definitive Receipts, the Depositary, upon the written order of
the Company delivered in compliance with Section 2.02, shall execute and deliver
temporary Receipts which are printed, lithographed, typewritten, mimeographed or
otherwise substantially of the tenor of the definitive Receipts in lieu of which
they are issued and with such appropriate insertions, omissions, substitutions
and other variations as the persons executing such Receipts may determine, as
evidenced by their execution of such Receipts. If temporary Receipts are issued,
the Company and the Depositary will cause definitive Receipts to be prepared
without unreasonable delay. After the preparation of definitive Receipts, the
temporary Receipts shall be exchangeable for definitive Receipts upon surrender
of the temporary Receipts at an office described in the third paragraph of
Section 2.02, without charge to the holder. Upon surrender for cancellation of
any one or more temporary Receipts, the Depositary shall execute and deliver in
exchange therefor definitive Receipts representing the same number of Depositary
Shares as represented by the surrendered temporary Receipt or Receipts. Such
exchange shall be made at the Company's expense and without any charge therefor.
Until so exchanged, the temporary Receipts shall in all respects be entitled to
the same benefits under this Deposit Agreement, and with respect to the Stock,
as definitive Receipts.
Receipts shall be executed by the Depositary by the manual signature
of a duly authorized officer of the Depositary; provided, that such signature
may be a facsimile if a Registrar for the Receipts (other than the Depositary)
shall have been appointed and such
Receipts are countersigned by manual signature of a duly authorized officer of
the Registrar. No Receipt shall be entitled to any benefits under this Deposit
Agreement or be valid or obligatory for any purpose unless it shall have been
executed manually by a duly authorized officer of the Depositary or, if a
Registrar for the Receipts (other than the Depositary) shall have been
appointed, by facsimile signature of a duly authorized officer of the Depositary
and countersigned manually by a duly authorized officer of such Registrar. The
Depositary shall record on its books each Receipt so signed and delivered as
hereinafter provided.
Receipts 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 Company or the Depositary or
required to comply with any applicable law or any regulation thereunder or with
the rules and regulations of any securities exchange upon which the Stock, the
Depositary Shares or the Receipts may be listed or to conform with any usage
with respect thereto, or to indicate any special limitations or restrictions to
which any particular Receipts are subject.
Title to Depositary Shares evidenced by a Receipt which is properly
endorsed, or accompanied by a properly executed instrument of transfer, shall be
transferable by delivery with the same effect as in the case of a negotiable
instrument; provided, however, that until transfer of a Depositary Share shall
be registered on the books of the Depositary as provided in Section 2.04, the
Depositary may, notwithstanding any notice to the contrary, treat the Record
Holder thereof at such time as the absolute owner thereof for the purpose of
determining the person entitled to distributions of dividends or other
distributions or to any notice provided for in this Deposit Agreement and for
all other purposes.
SECTION 2.02. Deposit of Stock; Execution and Delivery of Receipts in
Respect Thereof. Subject to the terms and conditions of this Deposit Agreement,
the Company may from time to time deposit shares of 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 duly executed instrument of transfer or endorsement, in form
satisfactory to the Depositary, together with all such certifications as may be
required by the Depositary in accordance with the provisions of this Deposit
Agreement, and together with a written order of the Company 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 relating to such deposited Stock.
Deposited Stock shall be held by the Depositary at the Depositary's
Office or at such other place or places as the Depositary shall determine.
Upon receipt by the Depositary of a certificate or certificates for
Stock deposited in accordance with the provisions of this Section, together with
the other documents required as above specified, and upon recordation of the
Stock so deposited 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 relating to 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
Depositary's Office or such other offices, if any, as the Depositary may
designate. Delivery at other offices shall be at the risk and expense of the
person requesting such delivery.
Other than in the case of splits, combinations or other
reclassifications affecting the Stock, or in the case of dividends or other
distributions of Stock, if any, there shall be deposited hereunder not more than
____________________ shares of Stock.
SECTION 2.03. Redemption of Stock. Whenever the Company shall elect to
redeem shares of Stock in accordance with the provisions of the Certificate, it
shall (unless otherwise agreed in writing with the Depositary) give notice to
the Depositary of such proposed redemption, by first class mail, postage prepaid
not less than 40 or more than 70 days prior to the date fixed for redemption of
Stock in accordance with the Certificate. On the date of such redemption,
provided that the Company shall then have paid in full to the Depositary the
redemption price of the Stock to be redeemed, plus any accrued and unpaid
dividends thereon, the Depositary shall redeem the Depositary Shares relating to
such Stock. The Depositary shall mail notice of such redemption and the proposed
simultaneous redemption of the number of Depositary Shares relating to the Stock
to be redeemed, by first-class mail, postage prepaid, not less than 30 and not
more than 60 days prior to the date fixed for redemption of such Stock and
Depositary Shares (the "Redemption Date"), to the Record Holders of the
Depositary Shares to be so redeemed, at the addresses of such holders as they
appear on the records of the Depositary; but neither failure to mail any such
notice to one or more such holders nor any defect in any notice to one or more
such holders shall affect the sufficiency of the proceedings for redemption as
to other holders. Each such notice shall state: (i) the Redemption Date; (ii)
the number of Depositary Shares to be redeemed and, if less than all the
Depositary Shares held by any such holder are to be redeemed, the number of such
Depositary Shares held by such holder to be so redeemed; (iii) the redemption
price; (iv) the place or places where Receipts evidencing Depositary Shares are
to be surrendered for payment of the redemption price; and (v) that dividends in
respect of the Stock underlying the Depositary Shares to be redeemed will cease
to accrue and accumulate at the close of business on such Redemption Date. In
case less than all the outstanding Depositary Shares are to be redeemed, the
Depositary Shares to be so redeemed shall be selected by lot, pro rata or such
other method as may be determined by the Depositary to be equitable.
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 as set forth in the Company's notice
provided for in the preceding paragraph) all dividends in respect of the
Depositary Shares so called for redemption shall cease to accrue and accumulate,
the Depositary Shares being redeemed from such proceeds shall be deemed no
longer to be outstanding, all rights of the holders of Receipts evidencing such
Depositary Shares (except the right to receive the redemption price) shall, to
the extent of such Depositary Shares, cease and terminate and, upon surrender in
accordance with such notice of the Receipts evidencing any such Depositary
Shares (properly endorsed or assigned for transfer, if the Depositary shall so
require), such Depositary Shares shall be redeemed by the Depositary at a
redemption price per Depositary Share equal to the proportionate part of the
redemption price per share paid in respect of the shares of Stock plus all money
and other property, if any, paid with respect to such Depositary Shares,
including all amounts paid by the Company in respect of
dividends which on the Redemption Date have accumulated on the shares of Stock
to be so redeemed and have not theretofore been paid.
If less than all the Depositary Shares evidenced by a Receipt are
called for redemption, the Depositary will deliver to the holder of such Receipt
upon its surrender to the Depositary, together with the redemption payment, a
new Receipt evidencing the Depositary Shares evidenced by such prior Receipt and
not called for redemption.
SECTION 2.04. Registration of Transfer of Receipts. Subject to the
terms and conditions of this Deposit Agreement, the Depositary shall register on
its books from time to time transfers of Depositary Shares upon any surrender of
the Receipt or Receipts evidencing such Depositary Shares by the holder in
person or by duly authorized attorney, properly endorsed or accompanied by a
properly executed instrument of transfer. Thereupon the Depositary shall execute
a new Receipt or Receipts evidencing the same aggregate number of Depositary
Shares as those evidenced by the Receipt or Receipts surrendered and deliver
such new Receipt or Receipts to or upon the order of the person entitled
thereto.
SECTION 2.05. Split-ups and Combinations of Receipts; Surrender of
Depositary Shares and Withdrawal of Stock. Upon surrender of a Receipt or
Receipts at the Depositary's Office or at such other offices as it may designate
for the purpose of effecting a split-up or combination of such Receipt or
Receipts, and subject to the terms and conditions of this Deposit Agreement, the
Depositary shall execute and deliver a new Receipt or Receipts in the
denominations requested, evidencing the aggregate number of Depositary Shares
evidenced by the Receipt or Receipts surrendered.
Any holder of Depositary Shares may withdraw the number of whole
shares of Stock underlying such Depositary Shares and all money and other
property, if any, underlying such Depositary Shares by surrendering Receipts
evidencing such Depositary Shares at the Depositary's Office or at such other
offices as the Depositary may designate for such withdrawals. Thereafter,
without unreasonable delay, the Depositary shall deliver to such holder, or to
the person or persons designated by such holder as hereinafter provided, the
number of whole shares of Stock and all money and other property, if any,
underlying the Depositary Shares so surrendered for withdrawal, but holders of
such whole shares of Stock will not thereafter be entitled to deposit such Stock
hereunder or to receive Receipts evidencing Depositary Shares therefor. If a
Receipt delivered by a holder to the Depositary in connection with such
withdrawal shall evidence a number of Depositary Shares relating to other than a
number of whole shares of Stock, the Depositary shall at the same time, in
addition to such number of whole shares of Stock and such money and other
property, if any, to be so withdrawn, deliver to such holder, or (subject to
Section 3.02) upon his order, a new Receipt evidencing such excess number of
Depositary Shares. Delivery of the Stock and money and other property being
withdrawn may be made by delivery of such certificates, documents of title and
other instruments as the Depositary may deem appropriate.
If the Stock and the money and other property being withdrawn are to
be delivered to a person or persons other than the Record Holder of the
Depositary Shares evidenced by the Receipts being surrendered for withdrawal of
Stock, such holder shall execute and deliver to the Depositary a written order
so directing the Depositary, and the Depositary may
require that the Receipt or Receipts surrendered by such holder for withdrawal
of such shares of Stock be properly endorsed in blank or accompanied by a
properly executed instrument of transfer.
Delivery of the Stock and money and other property, if any, underlying
the Depositary Shares surrendered for withdrawal shall be made by the Depositary
at the Depositary's Office, except that, at the request, risk and expense of the
holder surrendering such Depositary Shares and for the account of such holder,
such delivery may be made at such other place as may be designated by such
holder.
SECTION 2.06. Limitations on Execution and Delivery, Transfer,
Surrender and Exchange of Receipts. As a condition precedent to the execution
and delivery, registration of transfer, split-up, combination, surrender or
exchange of any Receipt, the Depositary, any of the Depositary's Agents or the
Company may require payment to it of a sum sufficient for the payment (or, in
the event that the Depositary or the Company shall have made such payment, the
reimbursement to it) of any charges or expenses payable by the holder of a
Receipt pursuant to Section 5.07, may require the production of evidence
satisfactory to it as to the identity and genuineness of any signature and may
also require compliance with such regulations, if any, as the Depositary or the
Company may establish consistent with the provisions of this Deposit Agreement.
The delivery of Receipts against Stock may be suspended, the
registration of transfer of Depositary Shares may be refused and the
registration of transfer, surrender or exchange of outstanding Depositary Shares
may be suspended (i) during any period when the register of shareholders of the
Company is closed or (ii) if any such action is deemed necessary or advisable by
the Depositary, any of the Depositary's Agents or the Company at any time or
from time to time because of any requirement of law or of any government or
governmental body or commission or under any provision of this Deposit
Agreement.
SECTION 2.07. Lost Receipts, etc. In case any Receipt shall be
mutilated, destroyed, lost or stolen, the Depositary in its discretion may
execute and deliver a Receipt of like form and tenor in exchange and
substitution for such mutilated Receipt, or in lieu of and in substitution for
such destroyed, lost or stolen Receipt, upon (i) the filing by the holder
thereof with the Depositary of evidence satisfactory to the Depositary of such
destruction or loss or theft of such Receipt, or the authenticity thereof and of
his or her ownership thereof and (ii) the furnishing of the Depositary with
reasonable indemnification satisfactory to it.
SECTION 2.08. Cancellation and Destruction of Surrendered Receipts.
All Receipts surrendered to the Depositary or any Depositary's Agent shall be
canceled by the Depositary. Except as prohibited by applicable law or
regulation, the Depositary is authorized to destroy all Receipts so canceled.
ARTICLE III
CERTAIN OBLIGATIONS OF THE HOLDERS
OF RECEIPTS AND THE COMPANY
SECTION 3.01. Filing Proofs, Certificates and Other Information. Any
holder of a Depositary Share may be required from time to time to file such
proof of residence, or other matters or other information, to execute such
certificates and to make such representations and warranties as the Depositary
or the Company may reasonably deem necessary or proper. The Depositary or the
Company may withhold the delivery, or delay the registration of transfer,
redemption or exchange, of any Depositary Share or the withdrawal of any Stock
underlying Depositary Shares or the distribution of any dividend or other
distribution or the sale of any rights or of the proceeds thereof until such
proof or other information is filed or such certificates are executed or such
representations and warranties are made.
SECTION 3.02. Payment of Taxes or Other Governmental Charges. Holders
of Depositary Shares shall be obligated to make payments to the Depositary of
certain charges and expenses, as provided in Section 5.07. Registration of
transfer of any Depositary Share or any withdrawal of Stock and delivery of all
money or other property, if any, underlying such Depositary Share may be refused
until any such payment due is made, and any dividends or other distributions may
be withheld or all or any part of the Stock or other property relating to such
Depositary Shares and not theretofore sold may be sold for the account of the
holder thereof (after attempting by reasonable means to notify such holder prior
to such sale) and such dividends or other distributions or the proceeds of any
such sale may be applied to any payment of such charges or expenses, the holder
of such Depositary Share remaining liable for any deficiency.
SECTION 3.03. Warranty as to Stock. The Company hereby represents and
warrants that the Stock, when issued, will be validly issued, fully paid and
nonassessable. Such representation and warranty shall survive the deposit of the
Stock and the issuance of the Receipts.
ARTICLE IV
THE DEPOSITED SECURITIES; NOTICES
SECTION 4.01. Cash Distributions. Whenever the Depositary shall
receive any cash dividend or other cash distribution on the Stock, the
Depositary shall, subject to Sections 3.01 and 3.02, distribute to the 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. 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 Depositary Shares then
outstanding.
SECTION 4.02. Distributions Other than Cash. Whenever the Depositary
shall receive any distribution other than cash on the Stock, the Depositary
shall, subject to Sections 3.01 and 3.02, distribute to the 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 Depositary may deem equitable and practicable
for accomplishing such distribution. If in the opinion of the Depositary such
distribution cannot be made proportionately among such Record Holders, or if for
any other reason (including any requirement that the Company or the Depositary
withhold an amount on account of taxes or governmental charges) the Depositary
deems, after consultation with the Company, such distribution not to be
feasible, the Depositary may, with the approval of the Company, adopt such
method as it deems equitable and practicable for the purpose of effecting such
distribution, including the sale (at public or private sale) of the securities
or property thus received, or any part thereof, at such place or places and upon
such terms as it may deem proper. The net proceeds of any such sale shall,
subject to Sections 3.01 and 3.02, be distributed or made available for
distribution, as the case may be, by the Depositary to 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
such securities unless the Company shall have provided an opinion of counsel to
the effect that such securities have been registered under the Securities Act of
1933 or do not need to be registered.
SECTION 4.03. Subscription Rights, Preferences or Privileges. If the
Company shall at any time offer or cause to be offered to the persons in whose
names Stock is recorded on the books of the Company any rights, preferences or
privileges to subscribe for or to purchase any securities or any rights,
preferences or privileges of any other nature, such rights, preferences or
privileges shall in each such instance be made available by the Depositary to
the Record Holders of Depositary Shares in such manner as the Depositary may
determine, either by the issue to such Record Holders of warrants representing
such rights, preferences or privileges or by such other method as may be
approved by the Depositary in its discretion with the approval of the Company;
provided, however, that (i) if at the time of issue or offer of any such rights,
preferences or privileges the Depositary determines that it is not lawful or
(after consultation with the Company) not feasible to make such rights,
preferences or privileges available to holders of 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, then the Depositary, in its discretion (with the approval of the
Company, in any case where the Depositary has determined that it is not feasible
to make such rights, preferences or privileges available), may, if applicable
laws or the terms of such rights, preferences or privileges permit such
transfer, sell such rights, preferences or privileges at public or private sale,
at such place or places and upon such terms as it may deem proper. The net
proceeds of any such sale shall, 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 such rights,
preferences or privileges unless the Company shall have provided an opinion of
counsel to the
effect that such rights, preferences or privileges have been registered under
the Securities Act of 1933 or do not need to be registered.
If registration under the Securities Act of 1933 of the securities to
which any rights, preferences or privileges relate is required in order for
holders of Depositary Shares to be offered or sold the securities to which such
rights, preferences or privileges relate, the Company agrees with the Depositary
that it will file promptly a registration statement pursuant to such Act with
respect to such rights, preferences or privileges and securities and use its
best efforts and take all steps available to it to cause such registration
statement to become effective sufficiently in advance of the expiration of such
rights, preferences or privileges to enable such holders to exercise such
rights, preferences or privileges. In no event shall the Depositary make
available to the holders of 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
provision of such Act.
If any other action under the laws of any jurisdiction or any
governmental or administrative authorization, consent or permit is required in
order for such rights, preferences or privileges to be made available to the
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.
SECTION 4.04. Notice of Dividends, etc.; Fixing of Record Date for
Holders of Depositary Shares. Whenever any cash dividend or other cash
distribution shall become payable or any distribution other than cash shall be
made, or if rights, preferences or privileges shall at any time be offered, with
respect to the Stock, or whenever 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, 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
Depositary Shares who shall be entitled to receive a distribution in respect of
such dividend, distribution, rights, preferences or privileges or the net
proceeds of the sale thereof, or to give instructions for the exercise of voting
rights at any such meeting, or who shall be entitled to receive notice of such
meeting.
SECTION 4.05. Voting Rights. Upon receipt of notice of any meeting at
which the holders of the Stock are entitled to vote, the Depositary shall, as
soon as practicable thereafter, mail to the Record Holders of Depositary Shares
a notice which shall contain (i) such information as is contained in such notice
of meeting and (ii) a statement informing holders of Depositary Shares that they
may instruct the Depositary as to the exercise of the voting rights pertaining
to the amount of Stock underlying their respective Depositary Shares and a brief
statement as to the manner in which such instructions may be given. Upon the
written request of the holders of Depositary Shares on the record date
established in accordance with Section 4.04, the Depositary shall endeavor
insofar as practicable to vote or cause to be voted, in accordance with the
instructions set forth in such requests, the maximum number of whole shares of
Stock underlying the Depositary Shares as to which any particular voting or
consent instructions are received. The Company hereby agrees to take all action
which may be deemed necessary by the
Depositary in order to enable the Depositary to vote such Stock or cause such
Stock to be voted. In the absence of specific instructions from the holder of a
Depositary Share, 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 the Depositary Shares) to the
extent of the Stock underlying the Depositary Shares.
SECTION 4.06. Changes Affecting Deposited Securities and
Reclassifications Recapitalizations, etc. Upon any change in par or liquidation
value, split-up, combination 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, the Depositary may in its
discretion, with the approval of, and shall upon the instructions of, the
Company, and (in either case) in such manner as the Depositary may deem
equitable, (i) make such adjustments in (a) the fraction of an interest in one
share of Stock underlying one Depositary Share and (b) the ratio of the
redemption price per Depositary Share to the redemption price of a share of the
Stock, in each case as may be necessary fully to reflect the effects of such
change in par or liquidation value, split-up, combination or other
reclassification of the Stock, or of such recapitalization, reorganization,
merger, amalgamation or consolidation and (ii) treat any securities which shall
be received by the Depositary in exchange for or upon conversion of or in
respect of the Stock as new deposited securities so received in exchange for or
upon conversion of 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
securities.
SECTION 4.07. Delivery of Reports. The Depositary will forward to
Record Holders of Receipts, at their respective addresses appearing in the
Depositary's books, all notices, reports and communications received from the
Company which are delivered to the Depositary and which the Company is required
to furnish to the holders of Stock or Receipts.
SECTION 4.08. 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 or
Registrar, as the case may be.
ARTICLE V
THE DEPOSITARY, THE DEPOSITARY'S AGENTS,
THE REGISTRAR AND THE COMPANY
SECTION 5.01. Maintenance of Offices, Agencies and Transfer Books by
the Depositary; Registrar. Upon execution of this Deposit Agreement, the
Depositary shall maintain at the Depositary's Offices, or at any Registrar's
Office, at which the Depositary shall have complete access to all books and
records maintained on the Company's behalf, facilities for the execution and
delivery, surrender and exchange of Receipts and the registration and
registration of transfer of Depositary Shares, and at the offices of the
Depositary's Agents, if any, facilities for the delivery, surrender and exchange
of Receipts and the registration of transfer of Depositary Shares, all in
accordance with the provisions of this Deposit Agreement.
The Depositary shall keep books at the Depositary's Office for the
registration and registration of transfer of 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 proper
purpose reasonably related to such person's interest as an owner of Depositary
Shares.
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 underlying such Depositary Shares shall be listed on the New York Stock
Exchange, the Depositary may, with the approval of the Company, appoint a
Registrar for registration of such Receipts or Depositary Shares in accordance
with any requirements of such Exchange. Such Registrar (which may be the
Depositary if so permitted by the requirements of such Exchange) may be removed
and a substitute registrar appointed by the Depositary upon the request or with
the approval of the Company. If the Receipts, such Depositary Shares or such
Stock are listed on one or more other stock exchanges, the Depositary will, at
the request of the Company, arrange such facilities for the delivery,
registration, registration of transfer, surrender and exchange of such Receipts,
such Depositary Shares or such Stock as may be required by law or applicable
stock exchange regulation.
SECTION 5.02. Prevention of or Delay in Performance by the Depositary,
the Depositary's Agents, any Registrar or the Company. Neither the Depositary
nor any Depositary's Agent nor any Registrar nor the Company shall incur any
liability to any holder or any Depositary Share 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, any Depositary's Agent or any Registrar, by reason of any provision,
present or future, of the organizational documents of the Company (including the
Certificate) or by reason of any act of God or war or other circumstance beyond
the control of the relevant party, the Depositary, any Depositary's Agent, any
Registrar or the Company shall be prevented or forbidden from doing or
performing any act or thing which the terms of this Deposit Agreement provide
shall be done or performed; nor shall the Depositary, any Depositary's Agent,
any Registrar or the Company incur any liability to any holder of a Depositary
Share (i) by reason of any nonperformance or delay, caused as aforesaid, in the
performance of any act or thing which the terms of this Deposit Agreement
provide shall or may be done or performed, or (ii) by reason of any exercise of,
or failure to exercise, any discretion provided for in this Deposit Agreement
except, in case of any such exercise or failure to exercise discretion not
caused as aforesaid, if caused by the gross negligence or willful misconduct of
the party charged with such exercise or failure to exercise.
SECTION 5.03. Obligations of the Depositary, the Depositary's Agents,
any Registrar and the Company. Neither the Depositary nor any Depositary's Agent
nor any Registrar nor the Company assumes any obligation or shall be subject to
any liability under this Deposit Agreement to holders of Depositary Shares other
than for its negligence or willful misconduct.
Neither the Depositary nor any Depositary's Agent nor any Registrar
nor the
Company shall be under any obligation to appear in, prosecute or defend any
action, suit or other proceeding in respect of the Stock, the Depositary Shares
or the Receipts which in its opinion may involve it in expense or liability
unless indemnity satisfactory to it against all expense and liability be
furnished as often as may be required.
Neither the Depositary nor any Depositary's Agent nor any Registrar
nor the Company shall be liable for any action or any failure to act by it in
reliance upon the written advice of legal counsel or accountants, or information
from any person presenting Stock for deposit, any holder of a Depositary Share
or any other person believed by it in good faith to be competent to give such
information. The Depositary, any Depositary's Agent, any Registrar and the
Company may each rely and shall each be protected in acting upon any written
notice, request, direction or other document believed by it to be genuine and to
have been signed or presented by the proper party or parties.
The Depositary shall not be responsible for any failure to carry out
any instruction to vote any of the shares of Stock or for the manner or effect
of any such vote, as long as any such action or non-action is in good faith. The
Depositary undertakes, and any Registrar shall be required to undertake, to
perform such duties and only such duties as are specifically set forth in this
Deposit Agreement, and no implied covenants or obligations shall be read into
this Deposit Agreement against the Depositary or any Registrar. The Depositary
will indemnify the Company against any liability which may arise out of acts
performed or omitted by the Depositary or its agents due to its or their
negligence or bad faith. The Depositary, the Depositary's Agents, any Registrar
and the Company may own and deal in any class of securities of the Company and
its affiliates and in Depositary Shares. The Depositary may also act as transfer
agent or registrar of any of the securities of the Company and its affiliates.
SECTION 5.04. Resignation and Removal of the Depositary; Appointment
of Successor Depositary. The Depositary may at any time resign as Depositary
hereunder by notice of its election so to do delivered to the Company, such
resignation to take effect upon the appointment of a successor Depositary and
its acceptance of such appointment as hereinafter provided.
The Depositary may at any time be removed by the Company by notice of
such removal delivered to the Depositary, such removal to take effect upon the
appointment of a successor Depositary and its acceptance of such appointment as
hereinafter provided.
In case the Depositary acting hereunder shall at any time resign or be
removed, the Company shall, within 60 days after the delivery of the notice of
resignation or removal, as the case may be, appoint a successor Depositary,
which shall be a bank or trust company having its principal office in the United
States of America and having a combined capital and surplus of at least
$50,000,000. If no successor Depositary shall have been so appointed within 60
days after delivery of such notice, the resigning or removed Depositary may
petition any court of competent jurisdiction for the appointment of a successor
Depositary. Every successor Depositary shall execute and deliver to its
predecessor and to the Company an instrument in writing accepting its
appointment hereunder, and thereupon such successor Depositary, without any
further act or deed, shall become fully vested with all the rights, powers,
duties and obligations of its predecessor and for all purposes shall be the
Depositary under this Deposit
Agreement, and such predecessor, upon payment of all sums due it and on the
written request of the Company, shall execute and deliver an instrument
transferring to such successor all rights and powers of such predecessor
hereunder, shall duly assign, transfer and deliver all right, title and interest
in the 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
Depositary Shares. Any successor Depositary shall promptly mail notice of its
appointment to the Record Holders of Depositary Shares.
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 authenticate the Receipts in the name of the predecessor
Depositary or in the name of the successor Depositary.
SECTION 5.05. Corporate Notices and Reports. The Company agrees that
it will transmit to the Depositary all notices, reports and communications
(including, without limitation, financial statements) required by law, the rules
of any national securities exchange upon which the Stock, the Depositary Shares
or the Receipts are listed or by the organizational documents of the Company
(including the Certificate) to be furnished by the Company to holders of the
Stock.
SECTION 5.06. Indemnification by the Company. The Company shall
indemnify the Depositary, any Depositary's Agent and any Registrar against, and
hold each of them harmless from, any loss, liability or expense (including the
costs and expenses of defending itself) which may arise out of (i) acts
performed or omitted in connection with this Deposit Agreement and the
Depositary Shares (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, willful misconduct 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.
SECTION 5.07. Charges and Expenses. The Company shall pay all transfer
and other taxes and governmental charges arising solely from the existence of
the depositary arrangements. The Company shall pay all charges of the Depositary
in connection with the initial deposit of the Stock and the initial issuance of
the Receipts, any redemption of the Stock at the option of the Company and any
withdrawals of Stock by holders 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 a Depositary Share, the
Depositary incurs charges or expenses for which it is not otherwise liable
hereunder, such holder will be liable for such charges and expenses. All other
charges and expenses of the Depositary, any Depositary's Agent hereunder and any
Registrar (including, in each case, fees and expenses of counsel) incident to
the performance of their respective obligations hereunder will be paid upon
consultation and agreement between the Depositary and the Company as to the
amount and nature of such charges and expenses. The Depositary shall present its
statement for charges and expenses to the Company once every three months or at
such other intervals as the Company and the Depositary may agree.
ARTICLE VI
AMENDMENT AND TERMINATION
SECTION 6.01. Amendment. The form of the Receipts and any provisions
of this Deposit Agreement may at any time and from time to time be amended by
agreement between the Company and the Depositary in any respect which they may
deem necessary or desirable; provided, however, that no such amendment which
shall materially and adversely alter the rights of the existing 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 then
outstanding. Every holder of an outstanding Depositary Share at the time any
such amendment becomes effective shall be deemed, by continuing to hold such
Depositary Share, to consent and agree to such amendment and to be bound by this
Deposit Agreement as amended thereby.
SECTION 6.02. Termination. This Deposit Agreement may be terminated by
the Company or the Depositary only after (i) all outstanding Depositary Shares
shall have been redeemed and any accumulated and unpaid dividends on the Stock
represented by the Depositary Shares, together with all other moneys and
property, if any, to which holders of the related Receipts are entitled under
the terms of such Receipts or this Deposit Agreement, have been paid or
distributed as provided in this Deposit Agreement or provision therefor has been
duly made pursuant to Section 2.03 or (ii) 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 Receipts 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 Agents and any Registrar under
Sections 5.06 and 5.07.
ARTICLE VII
MISCELLANEOUS
SECTION 7.01. Counterparts. This Deposit Agreement may be executed in
any number of counterparts, and by each of the parties hereto on separate
counterparts, each of which counterparts, when so executed and delivered, shall
be deemed an original, but all such counterparts taken together shall constitute
one and the same instrument.
SECTION 7.02. Exclusive Benefit of Parties. This Deposit Agreement is
for the exclusive benefit of the parties hereto, and their respective successors
hereunder, and shall not be deemed to give any legal or equitable right, remedy
or claim to any other person whatsoever.
SECTION 7.03. Invalidity of Provisions. In case any one or more of the
provisions contained in this Deposit Agreement or in the Receipts should be or
become invalid, illegal or unenforceable in any respect, the validity, legality
and enforceability of the remaining provisions contained herein or therein shall
in no way be affected, prejudiced or disturbed thereby.
SECTION 7.04. Notices. Any and all notices to be given to the Company
hereunder or under the Receipts shall be in writing and shall be deemed to have
been duly given if personally delivered or sent by mail or telegram or telex
confirmed by letter, addressed to the Company at c/o CT Corporation System, ▇▇▇
▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇, to the attention of the General Counsel, or
at any other address of which the Company shall have notified the Depositary in
writing.
Any and all notices to be given to the Depositary hereunder or under
the Receipts shall be in writing and shall be deemed to have been duly given if
personally delivered or sent by mail or by telegram or telex confirmed by
letter, addressed to the Depositary at the Depositary's office, at
_______________, _________________, ______________, or at any other address of
which the Depositary shall have notified the Company in writing.
Any and all notices to be given to any Record Holder of a Depositary
Share hereunder or under the Receipts shall be in writing and shall be deemed to
have been duly given if personally delivered or sent by mail or by telegram or
telex confirmed by letter, addressed to such Record Holder at the address of
such Record Holder as it appears on the books of the Depositary, or if such
holder shall have filed with the Depositary a written request that notices
intended for such holder be mailed to some other address, at the address
designated in such request.
Delivery of a notice sent by mail or by telegram or telex shall be
deemed to be effected at the time when a duly addressed letter containing the
same (or a confirmation thereof in the case of a telegram or telex message) is
deposited, postage prepaid, in a post office letter box. The Depositary or the
Company may, however, act upon any telegram or telex message received by it from
the other or from any holder of a Depositary Share, notwithstanding that such
telegram or telex message shall not subsequently be confirmed by letter or as
aforesaid.
SECTION 7.05. Depositary's Agents. The Depositary may from time to
time, with the prior approval of the Company, appoint Depositary's Agents to act
in any respect for the Depositary for the purposes of this Deposit Agreement and
may at any time appoint additional Depositary's Agents and vary or terminate the
appointment of such Depositary's Agents. The Depositary will notify the Company
of any such action.
SECTION 7.06. Holders of Receipts Are Parties. The holders of
Depositary Shares from time to time shall be parties to this Deposit Agreement
and shall be bound by all of the terms and conditions hereof and of the Receipts
evidencing such Depositary Shares by acceptance of delivery thereof.
SECTION 7.07. Governing Law. THIS DEPOSIT AGREEMENT AND THE RECEIPTS
AND ALL RIGHTS HEREUNDER AND THEREUNDER AND PROVISIONS HEREOF AND THEREOF SHALL
BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW
YORK.
SECTION 7.08. Inspection of Deposit Agreement. Copies of this Deposit
Agreement shall be filed with the Depositary and the Depositary's Agents and
shall be open to
inspection during business hours at the Depositary's Office and the respective
offices of the Depositary's Agents, if any, by any holder of a Depository Share.
SECTION 7.09. Headings. The headings of articles and sections in this
Deposit Agreement and in the form of 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 to have any bearing upon the meaning or
interpretation of any provision contained herein or in the Receipts.
IN WITNESS WHEREOF, the Company and the Depositary 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 hereof by and upon acceptance
by them of delivery of Receipts evidencing such Depositary Shares and issued in
accordance with the terms hereof.
PRIMUS GUARANTY, LTD.
By
-----------------------------------
Name:
Title:
[DEPOSITARY]
By
-----------------------------------
Authorized Officer
EXHIBIT A
FORM OF DEPOSITARY RECEIPT
FOR DEPOSITARY SHARES
[GENERAL FORM OF FACE OF RECEIPT]
NUMBER DEPOSITARY SHARES
DEPOSITARY RECEIPT FOR DEPOSITARY SHARES,
REPRESENTING ___________________ PREFERRED SHARES
PRIMUS GUARANTY, LTD.
Incorporated under the laws of Bermuda
This Depositary Receipt is transferable
in the City of __________________
_____________________________, as Depositary, (the "Depositary"),
hereby certifies that _____________________ is the registered owner of
____________________ Depositary Shares ("Depositary Shares"), each Depositary
Share representing ___________________ of one share of ___________________
Preferred Shares, Series _____, par value $______ per share (the "Stock"), of
Primus Guaranty, Ltd., a Bermuda company (the "Company"), on deposit with the
Depositary, subject to the terms and entitled to the benefits of the Deposit
Agreement, dated as of __________________, 20__ (the "Deposit Agreement"),
between the Company, the Depositary and all holders from time to time of
Depositary Receipts. By accepting this Depositary Receipt the holder hereof
becomes a party to and agrees to be bound by all the terms and conditions of the
Deposit Agreement. This Depositary Receipt shall not be valid or obligatory for
any purpose or entitled to any benefits under the Deposit Agreement unless it
shall have been executed by the Depositary by the manual signature of a duly
authorized officer or, if executed in facsimile by the Depositary, countersigned
by a Registrar in respect of the Depositary Receipts by the manual signature of
a duly authorized officer thereof.
A-1
Dated: Depositary
By:
----------------------------------
Authorized Officer
Registrar
By:
----------------------------------
Authorized Officer
A-2
[GENERAL FORM OF REVERSE OF RECEIPT]
PRIMUS GUARANTY, LTD.
Primus Guaranty, Ltd. will furnish without charge to each
receiptholder who so requests a copy of the Deposit Agreement and a statement or
summary of the powers, designations, preferences and relative, participating,
optional or other special rights of each class of shares or series thereof which
Primus Guaranty, Ltd. is authorized to issue and the qualifications, limitations
or restrictions of such preferences and/or rights. Any such request is to be
addressed to the Secretary of Primus Guaranty, Ltd.
The following abbreviations, when used in the inscription on the face
of this certificate, shall be construed as though they were written out in full
according to applicable laws or regulations:
TEN COM - as tenants in common
TEN ENT - as tenants by the entireties
JT TEN - as joint tenants with right of survivorship and
not as tenants in common
UNIF GIFT MIN ACT - ____________ Custodian ___________
(Cust) (Minor)
under the Uniform Gifts to Minors Act ________
(State)
Additional abbreviations may also be used though not in the above
list.
For value received, ___________________ hereby sell(s), assign(s) and
transfer(s) unto ___________________________________________
(Please insert social security or other
identifying number of Assignee)
________________________________________________________________________
Please print or typewrite Name and address including postal
Zip Code of Assignee
__________________________ Depositary Shares represented by the within receipt
and all rights thereunder, and do hereby irrevocably constitute and appoint
__________________________
A-3
Attorney to transfer said Depositary Shares on the books of the within-named
Depositary with full power of substitution in the premises.
Dated:
--------------------
------------------------------
NOTICE. The signature to this
assignment must correspond with
the name as written upon the
face of this instrument in every
particular, without alteration
or enlargement or any change whatever.
A-4