Exhibit 4.3
DEPOSIT AGREEMENT
among
ACE LIMITED,
MELLON INVESTOR SERVICES LLC, as Depositary,
and
THE HOLDERS FROM TIME TO TIME OF
THE DEPOSITARY RECEIPTS DESCRIBED HEREIN
(May 30, 2003)
TABLE OF CONTENTS
Page
ARTICLE I DEFINITIONS .................................................................... 1
ARTICLE II FORM OF RECEIPTS, DEPOSIT OF PREFERRED SHARES, EXECUTION AND
DELIVERY, TRANSFER, SURRENDER AND REDEMPTION OF RECEIPTS ....................... 3
Section 2.01 Form and Transferability of Receipts ........................................... 3
Section 2.02 Deposit of Preferred Shares; Execution and Delivery of Receipts
in Respect Thereof ............................................................. 5
Section 2.03 Optional Redemption of Preferred Shares ........................................ 6
Section 2.04 Registration of Transfer of Receipts ........................................... 7
Section 2.05 Split-ups and Combinations of Receipts ......................................... 7
Section 2.06 Surrender of Receipts and Withdrawal of Preferred Shares ....................... 8
Section 2.07 Limitations on Execution and Delivery, Transfer, Surrender and
Exchange of Receipts ........................................................... 8
Section 2.08 Lost Receipts, etc ............................................................. 9
Section 2.09 Cancellation and Destruction of Surrendered Receipts ........................... 9
ARTICLE III CERTAIN OBLIGATIONS OF HOLDERS OF RECEIPTS AND THE COMPANY ..................... 9
Section 3.01 Filing Proofs, Certificates and Other Information .............................. 9
Section 3.02 Payment of Fees and Expenses ................................................... 10
Section 3.03 Representation and Warranty as to Preferred Shares ............................. 10
Section 3.04 Representation and Warranty as to Receipts and Depositary Shares ............... 10
ARTICLE IV THE PREFERRED SHARES; NOTICES .................................................. 10
Section 4.01 Cash Distributions ............................................................. 10
Section 4.02 Distributions Other Than Cash, Rights, Preferences or Privileges ............... 11
Section 4.03 Subscription Rights, Preferences or Privileges ................................. 11
Section 4.04 Notice of Dividends; Fixing of Record Date for Holders of
Receipts ....................................................................... 12
Section 4.05 Voting Rights .................................................................. 12
Section 4.06 Changes Affecting Preferred Shares and Reclassifications,
Recapitalizations, etc ......................................................... 13
Section 4.07 Inspection of Reports .......................................................... 14
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TABLE OF CONTENTS
(continued)
Page
Section 4.08 Lists of Receipt Holders ....................................................... 14
Section 4.09 Tax and Regulatory Compliance .................................................. 14
Section 4.10 Withholding .................................................................... 14
ARTICLE V THE DEPOSITARY, THE DEPOSITARY'S AGENTS, THE REGISTRAR, THE
TRANSFER AGENT AND THE COMPANY ................................................. 14
Section 5.01 Maintenance of Offices, Agencies and Transfer Books by the
Depositary; Registrar .......................................................... 15
Section 5.02 Prevention of or Delay in Performance by the Depositary, the
Depositary's Agents, the Registrar or the Company .............................. 15
Section 5.03 Obligations of the Depositary, the Depositary's Agents, the
Registrar, the Transfer Agent and the Company .................................. 16
Section 5.04 Resignation and Removal of the Depositary; Appointment of
Successor Depositary ........................................................... 18
Section 5.05 Corporate Notices and Reports .................................................. 19
Section 5.06 Indemnification by the Company ................................................. 19
Section 5.07 Fees and Expenses .............................................................. 19
ARTICLE VI AMENDMENT AND TERMINATION ...................................................... 20
Section 6.01 Amendment ...................................................................... 20
Section 6.02 Termination .................................................................... 20
ARTICLE VII MISCELLANEOUS .................................................................. 21
Section 7.01 Counterparts ................................................................... 21
Section 7.02 Exclusive Benefit of Parties ................................................... 21
Section 7.03 Invalidity of Provisions ....................................................... 21
Section 7.04 Notices ........................................................................ 21
Section 7.05 Depositary's Agents ............................................................ 22
Section 7.06 Holders of Receipts Are Parties ................................................ 22
Section 7.07 Governing Law .................................................................. 22
Section 7.08 Inspection of Deposit Agreement ................................................ 22
Section 7.09 Headings ....................................................................... 23
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DEPOSIT AGREEMENT
This DEPOSIT AGREEMENT, dated as of May 30, 2003, is entered into by and
among ACE Limited, a Cayman Islands company (the "Company"), Mellon Investor
Services LLC, a New Jersey limited liability company ("MIS"), as Depositary, and
the holders from time to time of the Receipts (as hereinafter defined) issued
hereunder.
WHEREAS, it is desired to provide, as hereinafter set forth in this Deposit
Agreement, for the deposit of shares of 7.80% Cumulative Redeemable Preferred
Shares, Series C, par value $1.00, of the Company ("Preferred Shares") with the
Depositary for the purposes set forth in this Deposit Agreement and for the
issuance hereunder of Receipts evidencing Depositary Shares (as hereinafter
defined) representing a fractional interest in the Preferred Shares deposited;
and
WHEREAS, the Receipts are to be substantially in the form of Exhibit A
annexed hereto, with appropriate insertions, modifications and omissions, as
hereinafter provided in this Deposit Agreement;
NOW, THEREFORE, in consideration of the premises, the parties hereto agree
as follows:
ARTICLE I
Definitions
The following definitions shall for all purposes, unless otherwise
indicated, apply to the respective terms used in this Deposit Agreement and the
Receipts:
"Affiliate" shall mean, with respect to any person or entity, any person or
entity directly or indirectly controlling, controlled by, or under common
control with, such other person or entity. For the purpose of this definition,
"controlling," "controlled by" or "under common control with," mean the
ownership, direct or indirect, of the power to direct or cause the direction of
the operation or management and policies of a person or entity, whether through
the ownership or control of voting interests, by contract or otherwise.
"Articles of Association" shall mean the Amended and Restated Articles of
Association of the Company, as amended and restated from time to time.
"cash redemption date" shall have the meaning set forth in Section 2.03(a).
"Company" shall have the meaning set forth in the preamble hereto.
"Deposit Agreement" shall mean this Deposit Agreement, as amended or
supplemented from time to time.
"Depositary" shall mean MIS, and any successor Depositary hereunder.
"Depositary Shares" shall mean a fractional interest of one-tenth of a
Preferred Share deposited with the Depositary hereunder and the same
proportionate interest in any and all other
property received by the Depositary in respect to such Preferred Shares and held
under this Deposit Agreement, all as evidenced by the Receipts issued hereunder.
Subject to the terms of this Deposit Agreement, each owner of a Depositary Share
is entitled, proportionately, to all the rights, preferences and privileges of
the Preferred Share represented by such Depositary Share, including the
dividend, voting, redemption and liquidation rights contained in the Special
Resolutions, and to the benefits of all obligations and duties of the Company in
respect of the Preferred Shares under the Articles of Association and Memorandum
of Association.
"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 which at
any particular time its business in respect of matters governed by this Deposit
Agreement shall be administered, which at the date hereof is located at ▇▇
▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇.
"Dollars" or "$" shall mean U.S. dollars.
"DTC" means The Depository Trust Company.
"DTC Receipt" has the meaning set forth in Section 2.01(a).
"Memorandum of Association" shall mean the Memorandum of Association of the
Company, as amended and restated from time to time.
"Preferred Shares" shall have the meaning set forth in the recitals hereto.
"Receipt" shall mean a Depositary Receipt issued hereunder to evidence one
or more Depositary Shares, whether in definitive or temporary form,
substantially in the form set forth as Exhibit A hereto. If the context so
requires, the term "Receipt" shall be deemed to include the DTC Receipt (as
defined in Section 2.01(a) hereof).
"record date" shall mean the date fixed pursuant to Section 4.04.
"record holder" of "holder" as applied to a Receipt shall mean the person
in whose name a Receipt is registered on the books of the Registrar maintained
for such purpose.
"Registrar" shall mean MIS, who is appointed to register ownership and
transfers of Receipts, Depositary Shares and the deposited Preferred Shares, as
the case may be, as herein provided.
"Securities Act" shall mean the Securities Act of 1933, as amended.
"Special Resolution" shall mean the resolutions adopted by the special
committee of the Board of Directors of the Company in accordance with the
Articles of Association and establishing the Preferred Shares as a series of
preferred shares of the Company and evidencing the preferences and rights of
such Preferred Shares.
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"Transfer Agent" shall mean MIS, who is appointed to serve as transfer
agent for the Receipts, Depositary Shares and the deposited Preferred Shares, as
the case may be, as herein provided.
ARTICLE II
Form of Receipts, Deposit of Preferred Shares, Execution and
Delivery, Transfer, Surrender and Redemption of Receipts
Section 2.01 Form and Transferability of Receipts. (a) The Company and the
Depositary shall make application to DTC for acceptance of all or a portion of
the Receipts for its book-entry settlement system. The Company hereby appoints
the Depositary acting through any authorized officer thereof as its
attorney-in-fact, with full power to delegate, for purposes of executing any
agreements, certifications or other instruments or documents necessary or
desirable in order to effect the acceptance of such Receipts for DTC
eligibility. So long as the Receipts are eligible for book-entry settlement with
DTC, unless otherwise required by law, all Depositary Shares to be traded on the
New York Stock Exchange with book-entry settlement through DTC shall be
represented by a single receipt (the "DTC Receipt"), which shall be deposited
with DTC (or its designee) evidencing all such Depositary Shares and registered
in the name of the nominee of DTC (initially expected to be Cede & Co.). The
Depositary or such other entity as is agreed to by DTC may hold the DTC Receipt
as custodian for DTC. Ownership of beneficial interests in the DTC Receipt shall
be shown on, and the transfer of such ownership shall be effected through,
records maintained by (i) DTC or its nominee for such DTC Receipt, or (ii)
institutions that have accounts with DTC.
(b) Notwithstanding the foregoing, the DTC Receipt shall be exchangeable
for definitive Receipts only if (i) DTC notifies the Company at any time that it
is unwilling or unable to continue to make its book-entry settlement system
available for the Receipts and a successor to DTC is not appointed by the
Company within 90 days of the date the Company is so informed in writing, (ii)
DTC notifies the Company at any time that it has ceased to be a clearing agency
registered under applicable law and a successor to DTC is not appointed by the
Company within 90 days of the date the Company is so informed in writing or
(iii) the Company executes and delivers to DTC, with a copy to the Depositary, a
notice to the effect that such DTC Receipt shall be so exchangeable. The Company
shall promptly forward to the Depositary any notice that it receives from DTC as
described in the preceding sentence. If the beneficial owners of interests in
Depositary Shares are entitled to exchange such interests for definitive
Receipts as the result of an event described in clause (i), (ii) or (iii) of the
preceding sentence, then without unnecessary delay but in any event not later
than the earliest date on which such beneficial interests may be so exchanged,
the Depositary shall provide written instructions to DTC to deliver to the
Depositary for cancellation the DTC Receipt, and the Company shall instruct the
Depositary to deliver to the beneficial owners of the Depositary Shares
previously evidenced by the DTC Receipt definitive Receipts in physical form
evidencing such Depositary Shares. Such definitive Receipts shall be in
substantially the form annexed hereto as Exhibit A, with appropriate insertions,
modifications and omissions, as hereafter provided.
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(c) The beneficial owners of Depositary Shares shall not, except as stated
above with respect to Depositary Shares in book-entry form issued in exchange
for the DTC Receipt, be entitled to receive Receipts in physical, certificated
form as herein provided.
(d) Definitive Receipts shall be engraved or printed or lithographed on
steel-engraved borders by the Company 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. The DTC
Receipt shall bear such legend or legends as may be required by DTC in order for
it to accept the Depositary Shares for its book-entry settlement system. Pending
the preparation of definitive Receipts, the Depositary, upon the written order
of the Company or any holder of Preferred Shares, as the case may be, delivered
in compliance with Section 2.02, shall execute and deliver temporary Receipts,
which may be 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 Company may determine, as evidenced by a writing delivered to
the Depositary. 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
the Depositary's Office or such offices, if any, as the Depositary may
designate, without charge to the holder. Upon surrender for cancellation of any
one or more temporary Receipts, the Depositary shall execute and deliver in
exchange therefor definitive Receipts representing the same number of Depositary
Shares as represented by the surrendered temporary Receipt or Receipts;
provided, the Depositary has been provided with all necessary information that
it may request in order to execute and deliver such definitive Receipts. Such
exchange shall be made at the Company's expense and without any charge to the
holder. Until so exchanged, the temporary Receipts shall in all respects be
entitled to the same benefits under this Deposit Agreement, and with respect to
the Preferred Shares, as definitive Receipts.
(e) Receipts shall be executed by the Depositary by the manual or facsimile
signature of a duly authorized signatory of the Depositary; provided, that if a
Registrar (other than the Depositary) shall have been appointed then such
Receipts shall also be countersigned by manual or facsimile 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 or the Registrar, as applicable, shall record on its books each
Receipt so executed as provided above and delivered as hereinafter provided.
Receipts bearing the signature of anyone who was a duly authorized officer of
the Depositary shall bind the Depositary, notwithstanding that such person has
ceased to hold such office prior to the delivery of the Receipts.
(f) Receipts shall be in denominations of any number of whole Depositary
Shares and the Company shall provide the Depositary with a writing containing
the calculations therefor. All Receipts shall be dated the date of their
issuance.
(g) 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 regulation or with the rules and
regulations of any securities exchange upon which the
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Preferred Shares, 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.
(h) Title to any Receipt (and the beneficial ownership of the Depositary
Shares evidenced by such Receipt) that is properly endorsed or accompanied by a
properly executed instrument of transfer or endorsement shall be transferable by
delivery with the same effect as in the case of a negotiable instrument;
provided, however, that until transfer of a Receipt shall be registered on the
books of the Depositary as provided in Section 2.04, the Depositary may,
notwithstanding any notice to the contrary, treat the record holder thereof at
such time as the absolute owner thereof for all purposes, including for the
purpose of determining the person entitled to (i) distribution of dividend or
other distributions or (ii) any notice provided for in this Deposit Agreement.
Section 2.02 Deposit of Preferred Shares; Execution and Delivery of
Receipts in Respect Thereof. (a) Subject to the terms and conditions of this
Deposit Agreement, the Company or any holder of Preferred Shares may from time
to time deposit Preferred Shares under this Deposit Agreement by delivery to the
Depositary of a certificate or certificates for the Preferred Shares to be
deposited, accompanied by a duly executed instrument of transfer or endorsement,
in form satisfactory to the Depositary, together with all such certifications as
may be required by the Depositary in accordance with the provisions of this
Deposit Agreement, and together with a written order of the Company or such
holder, as the case may be, directing the Depositary to execute and deliver to,
or upon the written order of, the person or persons stated in such order a
Receipt or Receipts for, and specifying, the number of whole Depositary Shares
representing such deposited Preferred Shares. The Company hereby appoints the
Depositary as the Registrar and Transfer Agent for the Preferred Shares
deposited hereunder, and the Depositary hereby accepts such appointment and, as
such, will reflect changes in the number of deposited Preferred Shares
(including any fractional shares) held by it by notation, book-entry or other
appropriate method.
(b) If required by the Depositary, Preferred Shares presented for deposit
by the Company at any time, whether or not the register of shareholders of the
Company is closed, shall also be accompanied by an agreement or assignment, or
other instrument satisfactory to the Depositary, that will provide for the
prompt transfer to the Depositary or its nominee of any dividend or any right to
subscribe for additional Preferred Shares or to receive other property that any
person in whose name the Preferred Shares is or has been registered may
thereafter receive upon or in respect of such deposited Preferred Shares, or in
lieu thereof such agreement of indemnity or other agreement as shall be
satisfactory to the Depositary.
(c) Upon receipt by the Depositary of a certificate or certificates for
Preferred Shares deposited in accordance with the provisions of this Section
2.02, together with the other documents specified above, and upon proper
registration of the Preferred Shares 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 in the written order delivered to the Depositary
referred to in Section 2.02(a), a Receipt or Receipts for the number of whole
Depositary Shares representing the Preferred Shares so deposited and registered
in such name or as may be requested by such person or persons. The
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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, except that, at the request, risk and expense of any person
requesting such delivery, such delivery may be made at such other place as may
be designated by such person.
(d) Other than in the case of splits, combinations or other
reclassifications affecting the Preferred Shares, or in the case of dividends or
other distributions of Preferred Shares, if any, there shall be deposited
hereunder not more than the number of Preferred Shares as set forth in the
Special Resolutions or the Memorandum of Association. The Depositary shall have
no duty or obligation to monitor the number of Preferred Shares to be deposited
for purposes of this Section 2.02(d).
(e) The Company shall deliver to the Depositary from time to time such
quantities of Receipts as shall be necessary to enable the Depositary to perform
its obligations under this Deposit Agreement.
Section 2.03 Optional Redemption of Preferred Shares. (a) Whenever the
Company shall elect to redeem deposited Preferred Shares for cash in accordance
with the provisions of the Special Resolutions, it shall (unless otherwise
agreed in writing with the Depositary) give the Depositary not less than 60
days' prior written notice of the date of such proposed redemption and of the
number of such Preferred Shares held by the Depositary to be so redeemed and the
applicable redemption price, determined pursuant to the Special Resolution,
including the amount, if any, of accrued and unpaid dividends to the date of
such redemption. The Depositary shall mail, first-class postage prepaid, notice
of the redemption of Preferred Shares and the proposed simultaneous redemption
of the Depositary Shares representing the Preferred Shares to be redeemed, not
less than 30 and not more than 60 days prior to the date fixed for redemption of
such Preferred Shares and Depositary Shares (the "cash redemption date"), to the
holders of record on the record date fixed for such redemption pursuant to
Section 4.04 of the Receipts evidencing the Depositary Shares to be so redeemed,
at the addresses of such holders as the same appear on the records of the
Depositary; but neither failure to mail any such notice to one or more such
holders nor any defect in any such notice shall affect the sufficiency of the
proceedings for redemption as to other holders. The Company shall provide the
Depositary with such notice, and each such notice shall state: the cash
redemption date; the cash redemption price; the number of deposited Preferred
Shares and Depositary Shares to be redeemed; if fewer than all the Depositary
Shares held by any holder are to be redeemed, the number of such Depositary
Shares held by such holder to be so redeemed; the place or places where Receipts
evidencing Depositary Shares to be redeemed are to be surrendered for payment of
the cash redemption price; and that from and after the cash redemption date
dividends in respect of the Preferred Shares represented by the Depositary
Shares to be redeemed will cease to accrue. If fewer than all the outstanding
Depositary Shares are to be redeemed, the Depositary Shares to be redeemed shall
be selected by lot or pro rata (as nearly as may be practicable without creating
fractional Depositary Shares) or by any other equitable method determined by the
Company (as set forth in a writing given to the Depositary). The Company shall
also cause notice of redemption to be published in a newspaper of general
circulation in the City of New York at least once a week for two successive
weeks commencing not less than 30 days nor more than 60 days prior to the cash
redemption date. On any cash redemption date, upon the written request of the
Company, the Depositary shall surrender the certificate or certificates held by
the Depositary
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evidencing the number of shares of Preferred Shares to be redeemed in the manner
specified in the notice of redemption provided by the Company pursuant to the
Special Resolutions.
(b) In the event that notice of redemption has been made as described in
Section 2.03(a) and the Company shall then have paid in full to the Depositary
the cash redemption price determined pursuant to the Special Resolutions for the
Preferred Shares deposited with the Depositary to be redeemed (including any
accrued and unpaid dividends to the date of redemption), the Depositary shall
redeem the number of Depositary Shares representing such Preferred Shares so
called for redemption by the Company and from and after the cash redemption date
(unless the Company shall have failed to redeem the Preferred Shares to be
redeemed by it as set forth in the Company's notice provided for in Section
2.03(a)), all dividends in respect of the Preferred Shares called for redemption
shall cease to accrue, the Depositary Shares called for redemption shall be
deemed no longer to be outstanding and all rights of the holders of Receipts
evidencing such Depositary Shares (except the right to receive the cash
redemption price and any money or other property to which holders of such
Receipts were entitled upon such redemption) shall, to the extent of such
Depositary Shares, cease and terminate. Upon surrender in accordance with said
notice of the Receipts evidencing such Depositary Shares (properly endorsed or
assigned for transfer), such Depositary Shares shall be redeemed at a cash
redemption price determined pursuant to the Special Resolutions per Depositary
Share plus any other money and other property payable in respect of such
Preferred Shares. The foregoing shall be further subject to the terms and
conditions of the Special Resolutions.
(c) If fewer 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 payment of the cash
redemption price for, and all other amounts payable in respect of, the
Depositary Shares called for redemption, 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. The Company hereby
appoints the Depositary as the Registrar and Transfer Agent for the Receipts,
and the Depositary hereby accepts such appointment and, as such, shall register
on its books from time to time transfers of Receipts upon any surrender thereof
by the holder, in person or by duly authorized attorney, properly endorsed or
accompanied by a properly executed instrument of transfer or endorsement,
together with evidence of the payment of any applicable taxes or governmental
charges as may be required by law. Upon such surrender, 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. Upon surrender of a
Receipt or Receipts at the Depositary's Office or at such other offices as it
may designate for the purpose of effecting a split-up or combination of such
Receipt or Receipts, and subject to the terms and conditions of this Deposit
Agreement, the Depositary shall execute and deliver a new Receipt or Receipts in
the authorized denominations requested, evidencing the same aggregate number of
Depositary Shares evidenced by the Receipt or Receipts surrendered.
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Section 2.06 Surrender of Receipts and Withdrawal of Preferred Shares. (a)
Any holder of a Receipt or Receipts may withdraw any or all of the deposited
Preferred Shares represented by the Depositary Shares evidenced by such Receipt
or Receipts and all money and other property, if any, represented by such
Depositary Shares by surrendering such Receipt or Receipts at the Depositary's
Office or at such other office as the Depositary may designate for such
withdrawals, provided that a holder of a Receipt or Receipts may not withdraw
such Preferred Shares (or money and other property, if any, represented thereby)
which have previously been called for redemption. After such surrender and upon
written instructions from the holder of such Receipt or Receipts, without
unreasonable delay (provided that the Company has provided the Depositary with
all necessary documentation and a sufficient amount of cash), the Depositary
shall deliver to such holder, or to the person or persons designated by such
holder as hereinafter provided, the number of whole Preferred Shares and all
such money and other property, if any, represented by the Depositary Shares
evidenced by the Receipt or Receipts so surrendered for withdrawal. Holders of
such whole Preferred Shares will not thereafter be entitled to deposit such
Preferred Shares hereunder or to receive Depositary Shares therefor. If the
Receipt or Receipts delivered by the holder to the Depositary in connection with
such withdrawal shall evidence a number of Depositary Shares in excess of the
number of Depositary Shares representing the number of whole deposited Preferred
Shares to be withdrawn, the Depositary shall at the same time, in addition to
such number of whole deposited Preferred Shares and such money and other
property, if any, to be withdrawn, deliver to such holder upon the holder's
written order, a new Receipt or Receipts evidencing such excess number of
Depositary Shares. In no event will fractional Preferred Shares be delivered
upon surrender of Receipts. Delivery of such Preferred Shares and such money and
other property being withdrawn may be made by the delivery of such certificates,
documents of title and other instruments as the Depositary may deem appropriate,
which, if required by the Depositary, shall be properly endorsed or accompanied
by proper instruments of transfer.
(b) If the deposited Preferred Shares and the money and other property
being withdrawn are to be delivered to a person or persons other than the record
holder of the Receipt or Receipts being surrendered for withdrawal of Preferred
Shares, 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 Preferred Shares be
properly endorsed in blank or accompanied by a properly executed instrument of
transfer or endorsement in blank and that the signature on such instrument of
transfer be guaranteed by an eligible guarantor institution pursuant to Rule
17Ad-15 of the Securities Exchange Act of 1934, as amended.
(c) Delivery of the Preferred Shares and the money and other property, if
any, represented by Receipts surrendered for withdrawal shall be made by the
Depositary at the Depositary's Office, except that, at the request, risk and
expense of the holder surrendering such Receipt or Receipts and for the account
of the holder thereof, such delivery may be made at such other place as may be
designed by such holder.
Section 2.07 Limitations on Execution and Delivery, Transfer, Surrender and
Exchange of Receipts. (a) As a condition precedent to the execution and
delivery, transfer, split-up, combination, surrender or exchange of any Receipt,
the Depositary, any of the Depositary's Agents or the Company may require any or
all of the following: (i) payment to it of a sum
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sufficient for the payment (or, in the event that the Company shall have made
such payment, the reimbursement to it) of any tax or other governmental charge
with respect thereto (including any such tax or charge with respect to the
Preferred Shares being deposited or withdrawn); (ii) the production of proof
satisfactory to it as to the identity and genuineness of any signature (or the
authority of any signature); and (iii) compliance with such regulations, if any,
as the Depositary or the Company may establish consistent with the provisions of
this Deposit Agreement as may be required by any securities exchange upon which
the deposited Preferred Shares, the Depositary Shares or the Receipts may be
included for quotation or listed.
(b) The deposit of Preferred Shares may be refused, the delivery of
Receipts against Preferred Shares may be suspended, the transfer of Receipts may
be refused and the transfer, split-up, combination, surrender or exchange of
outstanding Receipts may be suspended (i) during any period when the register of
shareholders of the Company is closed or (ii) if any such action is deemed
necessary or advisable by the Depositary, any of the Depositary's Agents or the
Company at any time or from time to time because of any requirement of law or of
any government or governmental body or commission or under any provision of this
Deposit Agreement.
Section 2.08 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, provided that the holder thereof provides the Depositary with
(a) evidence reasonably satisfactory to the Depositary of such destruction, loss
or theft of such Receipt, of the authenticity thereof and of his or her
ownership thereof, including, without limitation, an affidavit of loss, (b)
indemnification satisfactory to the Depositary and the Company, including,
without limitation, a bond of indemnity and (c) payment of any expense
(including fees, charges and expenses of the Depositary and its agents and
counsel) in connection with such execution and delivery.
Section 2.09 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 Holders of Receipts and the Company
Section 3.01 Filing Proofs, Certificates and Other Information. Any holder
of a Receipt may be required from time to time to file such proof of residence
or other 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, delay the transfer, redemption or exchange, of any Receipt or the
withdrawal of the Preferred Shares represented by the Depositary Shares
evidenced by any Receipt, 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.
9
Section 3.02 Payment of Fees and Expenses. Holders of Receipts shall be
obligated to make payments to the Depositary of certain fees and expenses, as
provided in Section 5.07. Transfer of any Receipt or any withdrawal of Preferred
Shares and all money or other property, if any, represented by the Depositary
Shares evidenced by such Receipt may be refused until any such payment due is
made, and any dividends, interest payments or other distributions may be
withheld or any part of or all the Preferred Shares or other property
represented by the Depositary Shares evidenced by such Receipt and not
theretofor sold may be sold for the account of the holder thereof (after
attempting by reasonable means to notify such holder prior to such sale), and
such dividends, interest payments or other distributions or the proceeds of any
such sale may be applied to any payment of such fees or expenses, the holder of
such Receipt remaining liable for any deficiency.
Section 3.03 Representation and Warranty as to Preferred Shares. The
Company hereby represents and warrants that the Preferred Shares, when issued,
will be validly issued, fully paid and nonassessable. Such representation and
warranty shall survive the deposit of the Preferred Shares and the issuance of
Receipts.
Section 3.04 Representation and Warranty as to Receipts and Depositary
Shares. The Company hereby represents and warrants that the Receipts, when
issued, will evidence legal and valid interests in the Depositary Shares and
each Depositary Share will represent a legal and valid one-tenth interest in a
deposited Preferred Share. Such representation and warranty shall survive the
deposit of the Preferred Shares and the issuance of Receipts evidencing the
Depositary Shares.
ARTICLE IV
The Preferred Shares; Notices
Section 4.01 Cash Distributions. Whenever the Depositary shall receive any
cash dividend or other cash distribution on the Preferred Shares, the Depositary
shall, upon written instructions from the Company and subject to Sections 3.01
and 3.02, distribute to record holders of Receipts on the record date fixed
pursuant to Section 4.04 such amounts, as determined by the Company, of such
dividend or distribution as are, as nearly as practicable, in proportion to the
respective numbers of Depositary Shares evidenced by the Receipts held by such
holders; provided, however, that in case the Company or the Depositary shall be
required to withhold and does withhold from any cash dividend or other cash
distribution in respect of the Preferred Shares 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 and in accordance with
the Company's instructions, such amount as can be distributed without
attributing to any holder of Receipts a fraction of one cent by rounding the
amount of any distribution to the record holder of Receipts to the nearest whole
cent; provided, however, that in the event the Depositary requires an additional
amount in connection with such rounding to avoid the distribution of a fraction
of one cent to any holder, the Depositary shall notify the Company of the amount
necessary and the Company shall promptly deliver such amount to the Depositary.
10
Section 4.02 Distributions Other Than Cash, Rights, Preferences or
Privileges. Whenever the Depositary shall receive any distribution other than
cash on the deposited Preferred Shares, the Depositary shall, subject to
Sections 3.01 and 3.02, distribute to record holders of Receipts on the record
date fixed pursuant to Section 4.04 such amounts, as determined by the Company
and set forth in a writing, of the securities or property received by it as are,
as nearly as practicable, in proportion to the respective numbers of Depositary
Shares evidenced by the Receipts held by such holders. If the Company determines
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 the Company determines
such distribution not to be feasible, then the Company shall 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 received by the Depositary, or any part thereof, at such place or
places and upon such terms as it may deem proper. The net proceeds of any such
sale shall, subject to Sections 3.01 and 3.02, be distributed or made available
for distribution, as the case may be, by the Depositary to record holders of
Receipts as provided by Section 4.01 in the case of a distribution received in
cash. The Company shall not make any distribution of such securities unless the
Company shall have provided an opinion of counsel to the Depositary stating that
such securities have been registered under the Securities Act or that
registration is not required. The Company shall advise the Depositary in writing
of the nature of any property, and if the Depositary in its judgment determines
that it may incur liability by reason of being deemed an owner thereof, the
Depositary shall have the right to refuse such property, but the Depositary
shall assist the Company in determining an appropriate means of distributing
such property.
Section 4.03 Subscription Rights, Preferences or Privileges. (a) If the
Company shall at any time offer or cause to be offered to the persons in whose
names deposited Preferred Shares are recorded on the books of the Company any
rights, preferences or privileges to subscribe for or to purchase any securities
or any rights, preferences or privileges of any other nature, such rights,
preferences or privileges shall in each such instance be made available by the
Depositary to the record holders of Receipts in such manner as the Company shall
instruct in writing, 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 Company in its discretion; provided, however, that (i) if
at the time of issue or offer of any such rights, preferences or privileges the
Company determines that it is not lawful or not feasible to make such rights,
preferences or privileges available to holders of Receipts by the issue of
warrants or otherwise or (ii) if and to the extent so instructed by holders of
Receipts who do not desire to exercise such rights, preferences or privileges,
then the Depositary, if so instructed by Company in writing, and 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, upon written
notice to the Depositary, be distributed by the Depositary to the record holders
of Receipts entitled thereto as provided by Section 4.01 in the case of a
distribution received in cash. The Company shall not make any distribution of
any such rights, preferences or privileges unless the Company shall have
provided to the Depositary an opinion of counsel stating that the distribution
of such rights, preferences or privileges have been registered under the
Securities Act or that registration is not required.
11
(b) If, in order for holders of Receipts to be offered or sold the
securities to which any rights, preferences or privileges relate, registration
under the Securities Act of the securities to which such rights, preferences or
privileges relate is required, the Company agrees that it will promptly file a
registration statement pursuant to the Securities Act with respect to such
rights, preferences or privileges and securities and use its reasonable best
efforts and take all steps 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, and the Company shall so notify the Depositary in
writing when such registration statement becomes effective. In no event shall
the Depositary make available to the holders of Receipts any right, preference
or privilege to subscribe for or to purchase any securities unless and until
such a registration statement shall have become effective or unless the offering
and sale of such securities to such holders are exempt from registration under
the provisions of the Securities Act and the Company shall have provided to the
Depositary an opinion of counsel to such effect.
(c) If any other action under the laws of any jurisdiction or any
governmental or administrative authorization, consent or permit is required in
order for such rights, preferences or privileges to be made available to holders
of Receipts, the Company will use its reasonable best efforts to take such
action or obtain such authorization, consent or permit sufficiently in advance
of the expiration of such rights, preferences or privileges to enable such
holders to exercise such rights, preferences or privileges.
Section 4.04 Notice of Dividends; Fixing of Record Date for Holders of
Receipts. Whenever any cash dividend or other cash distribution shall become
payable, any distribution other than cash shall be made, or any rights,
preferences or privileges shall at any time be offered, with respect to the
deposited Preferred Shares, or whenever the Depositary shall receive written
notice of (a) any meeting at which holders of such Preferred Shares are entitled
to vote or of which holders of such Preferred Shares are entitled to notice or
(b) any election on the part of the Company to redeem any such Preferred Shares,
the Depositary shall in each such instance fix a record date (which shall be the
same date as the record date fixed by the Company with respect to the Preferred
Shares) for the determination of the holders of Receipts who shall be entitled
to receive such dividend, distribution, rights, preferences or privileges or the
net proceeds of the sale thereof, to give instructions for the exercise of
voting rights at any such meeting or to receive notice of such meeting or the
determination of which Depositary Shares are to be so redeemed.
Section 4.05 Voting Rights. Upon receipt of written notice of any meeting
at which the holders of deposited Preferred Shares are entitled to vote, the
Depositary shall, as soon as practicable thereafter, mail to the record holders
of Receipts a notice to be provided by the Company and which shall contain (a)
such information as is contained in such notice of meeting, (b) a statement that
the holders of Receipts at the close of business on a specified record date
fixed pursuant to Section 4.04 will be entitled, subject to any applicable law,
to instruct the Depositary as to the exercise of the voting rights pertaining to
the amount of Preferred Shares 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 (c) a brief statement as to the manner in which such instructions may be
given. Upon the written request of a holder of Receipts on such record date, the
Depositary shall
12
vote or cause to be voted the amount of Preferred Shares represented by the
Depositary Shares evidenced by such Receipt in accordance with the instructions
set forth in such request. To the extent any such instructions request the
voting of a fractional interest of a share of deposited Preferred Shares, the
Depositary shall aggregate such interest with all other fractional interests
resulting from requests with the same voting instructions and shall vote the
number of whole votes resulting from such aggregation in accordance with the
instructions received in such requests. Each Preferred Share is entitled to one
vote on all matters as to which the Preferred Shares vote and, accordingly, each
Depositary Share is entitled to one-tenth of a vote on such matters. The Company
hereby agrees to take all reasonable action that may be deemed necessary by the
Depositary in order to enable the Depositary to vote such Preferred Shares or
cause such Preferred Shares to be voted. In the absence of specific instructions
from the holder of a Receipt, the Depositary will abstain from voting to the
extent of the Preferred Shares represented by the Depositary Shares evidenced by
such Receipt. The Depositary shall not be required to exercise discretion in
voting any Preferred Shares represented by the Depositary Shares evidenced by
such Receipt.
Section 4.06 Changes Affecting Preferred Shares and Reclassifications,
Recapitalizations, etc. Upon any change in par or stated value, split-up,
combination or any other reclassification of the Preferred Shares, or upon any
recapitalization, reorganization, merger, amalgamation or consolidation
affecting the Company or to which it is a party or sale of all or substantially
all of the Company's assets, the Depositary shall, upon the written instructions
of the Company, (a) make such adjustments as are certified by the Company in (i)
the fraction of an interest represented by one Depositary Share in one Preferred
Share and (ii) the ratio of the redemption price per Depositary Share to the
redemption price of a Preferred Share, in each case as may be necessary to fully
reflect the effects of such change in par or stated value, split-up, combination
or other reclassification, or of such recapitalization, reorganization, merger,
amalgamation, consolidation or sale and (b) treat any shares 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 Preferred Shares as new
deposited property under this Deposit Agreement, and Receipts then outstanding
shall thereafter represent the proportionate interests of holders thereof in the
new deposited property so received in exchange for or upon conversion or in
respect of such Preferred Shares. In any such case the Depositary shall, upon
the written instructions of the Company, execute and deliver additional
Receipts, or may call for the surrender of all outstanding Receipts to be
exchanged for new Receipts specifically describing such new deposited property.
Anything to the contrary herein notwithstanding, holders of Receipts shall have
the right from and after the effective date of any such change in par or stated
value, split-up, combination or other reclassification of the Preferred Shares
or any such recapitalization, reorganization, merger, amalgamation or
consolidation or sale of substantially all the assets of the Company to
surrender such Receipts to the Depositary with written instructions to convert,
exchange or surrender the Preferred Shares represented thereby only into or for,
as the case may be, the kind and amount of Preferred Shares and other securities
and property and cash into which the Preferred Shares evidenced by such Receipts
might have been converted or for which such Preferred Shares might have been
exchanged or surrendered immediately prior to the effective date of such
transaction. The Company shall cause an effective provision to be made in the
corporate charter of the resulting or surviving corporation (if other than the
Company) for protection of such rights as may be applicable upon exchange of the
deposited Preferred Shares for securities or property or cash of the surviving
corporation in
13
connection with the transactions set forth above. The Company shall cause any
such surviving corporation (if other than the Company) expressly to assume the
obligations of the Company hereunder.
Section 4.07 Inspection of Reports. The Depositary shall make available for
inspection by holders of Receipts at the Depositary's Office and at such other
places as it may from time to time deem advisable during normal business hours,
any reports and communications received from the Company that are both received
by the Depositary as the holder of the Preferred Shares and made generally
available to the holders of the Preferred Shares. In addition, the Depositary
shall transmit certain notices and reports to the holders of Receipts as
provided in Section 5.05.
Section 4.08 Lists of Receipt Holders. Promptly upon written request from
time to time by the Company, the Depositary shall furnish to the Company a list,
as of a recent date specified by the Company, of the names, addresses and
holdings of Depositary Shares of all persons in whose names Receipts are
registered on the books of the Depositary.
Section 4.09 Tax and Regulatory Compliance. The Depositary shall be
responsible for (a) preparation and mailing of 1099 forms for all open and
closed accounts, (b) foreign tax withholding, (c) withholding 31% (or any
withholding as may be required at the then applicable rate) of dividends from
holders of Receipts subject to back-up withholding, (d) mailing W-9 forms to new
holders of Receipts without a certified taxpayer identification number, (e)
processing certified W-9 forms, (f) preparation and filing of state information
returns and (g) escheatment services.
Section 4.10 Withholding. Notwithstanding any other provision of this
Deposit Agreement, in the event that the Depositary determines that any
distribution in property is subject to any tax that the Depositary is obligated
by law to withhold, the Depositary may dispose of all or a portion of such
property in such amounts and in such manner as the Depositary deems necessary
and practicable to pay such taxes, by public or private sale, and the Depositary
shall distribute the net proceeds of any such sale or the balance of any such
property after deduction of such taxes to the holders of Receipts entitled
thereto in proportion to the number of Depositary Shares held by them,
respectively.
ARTICLE V
The Depositary, the Depositary's Agents, the Registrar, the Transfer Agent
and the Company
For purposes of Article V herein, "Depositary" shall also mean Registrar
and/or Transfer Agent, as the case may be.
Section 5.01 Maintenance of Offices, Agencies and Transfer Books by the
Depositary; Registrar. (a) The Depositary shall maintain at the Depositary's
Office facilities for the execution and delivery, transfer, surrender and
exchange, split-up, combination and redemption of Receipts and for the deposit
and withdrawal of Preferred Shares and at the offices of the Depositary's
Agents, if any, facilities for the delivery, transfer, surrender and exchange,
split-up,
14
combination and redemption of Receipts and for the deposit and withdrawal of
Preferred Shares, all in accordance with the provisions of this Deposit
Agreement.
(b) The Depositary shall keep books at the Depositary's Office for the
registration and transfer of Receipts, which books at all reasonable times
during normal business hours shall be open for inspection by the record holders
of Receipts as provided by applicable law; provided, that any such holder
requesting to exercise such right shall certify to the Depositary that such
inspection shall be for a proper purpose reasonably related to such person's
interest as an owner of Depositary Shares evidenced by the Receipts. The
Depositary may close such books, at any time or from time to time, when deemed
expedient by it in connection with the performance of its duties hereunder.
(c) If the Receipts or the Depositary Shares evidenced thereby or the
Preferred Shares represented by such Depositary Shares shall be listed on the
New York Stock Exchange, the Depositary may, with the written approval of the
Company, appoint a Registrar (acceptable to the Company) for registration of
such Receipts or Depositary Shares in accordance with any requirements of such
exchange. Such Registrar (which may be the Depositary if so permitted by the
requirements of such exchange) may be removed and a substitute registrar
appointed by the Depositary upon the written request or with the written
approval of the Company. If the Receipts, such Depositary Shares or such
Preferred Shares are listed on one or more other stock exchanges, the Depositary
will, at the written request and expense of the Company, arrange such facilities
for the delivery, registration, transfer, surrender, redemption and exchange of
such Receipts, such Depositary Shares or such Preferred Shares as may be
required by law or applicable stock exchange regulations.
Section 5.02 Prevention of or Delay in Performance by the Depositary, the
Depositary's Agents, the Registrar or the Company. Neither the Depositary, any
Depositary's Agent, any Registrar nor the Company shall incur any liability to
any holder of any Receipt or any beneficial owner, 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 Company,
the Depositary, the Depositary's Agent or any Registrar, by reason of any
provision, present or future, of the Company's Articles of Association
(including the Special Resolution adopted in accordance thereto) or Memorandum
of Association 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, or
subject to any penalty on account of, doing or performing any act or thing that
the terms of this Deposit Agreement provide shall be done or performed; nor
shall the Depositary, any Depositary's Agent, any Registrar or the Company incur
any liability to any holder of a Receipt or any beneficial owner (a) 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 (b) by reason of any exercise of, or failure to exercise,
any discretion provided for in this Deposit Agreement.
Section 5.03 Obligations of the Depositary, the Depositary's Agents, the
Registrar, the Transfer Agent and the Company. (a) Neither the Depositary, any
Depositary's Agent, any Registrar, any Transfer Agent nor the Company assumes
any obligation or shall be subject to any liability under this Deposit Agreement
or any Receipt to holders of Receipts or beneficial owners
15
other than from acts or omissions arising out of conduct constituting bad faith,
gross negligence or willful misconduct in the performance of such duties (each
as finally determined by a court of competent jurisdiction) as are specifically
set forth in this Deposit Agreement. Any liability of the Depositary, any
Depositary's Agent, any Transfer Agent and any Registrar shall be limited to the
amount of fees paid by the Company hereunder and under no circumstances shall
the Depositary, any Depositary's Agent and any Registrar be liable for any
special, punitive, indirect, incidental or consequential loss or damage of any
kind whatsoever (including, but not limited to, lost profits), even if they have
been advised of the likelihood of such loss or damage and regardless of the form
of action.
(b) Neither the Depositary, any Depositary's Agent, any Registrar nor the
Company shall be under any obligation to appear in, prosecute or defend any
action, suit or other proceeding in respect of the Preferred Shares, the
Depositary Shares or the Receipts that in its opinion may involve it in expense
or liability, unless indemnity reasonably satisfactory to it against all expense
and liability be furnished as often as may be required.
(c) Neither the Depositary, any Depositary's Agent, any Registrar nor the
Company shall be liable for any action or any failure to act by it in reliance
upon the advice of legal counsel or accountants, or information provided by any
person presenting Preferred Shares for deposit, any holder of a Receipt or any
other person believed by it 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 authorized and 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.
(d) In the event the Depositary shall receive conflicting claims, requests
or instructions from any holders of Receipts, on the one hand, and the Company,
on the other hand, the Depositary shall be entitled to act on such claims,
requests or instructions received from the Company and shall be entitled to the
full indemnification set forth in Section 5.06 hereof in connection with any
action so taken. In the event the Depositary believes any ambiguity or
uncertainty exists in any notice, instruction, direction, request or other
communication, paper or document received by the Depositary from the Company
pursuant hereto, the Depositary will promptly notify the Company of the details
of such alleged ambiguity or uncertainty, and may, in its sole discretion,
refrain from taking any action, and shall be fully protected and shall not be
liable in any way to any person for refraining from taking such action, absent
gross negligence or willful misconduct (each as finally determined by court of
competent jurisdiction), unless the Depositary receives written instructions
with respect to such matter signed by the Company which eliminates such
ambiguity or uncertainty to the satisfaction of the Depositary.
(e) The Depositary shall not be responsible for any failure to carry out
any instruction to vote any of the Preferred Shares or for the manner or effect
of any such vote made, as long as any such action or non-action does not result
from bad faith, gross negligence or willful misconduct of the Depositary (each
as finally determined by a court of competent jurisdiction). The Depositary
undertakes, and any Registrar and Transfer Agent 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 or imposed upon the Depositary or any Registrar.
16
(f) The Depositary shall have no liability to the Company under this
Deposit Agreement other than from acts or omissions by the Depositary or its
agents arising out of conduct constituting bad faith, gross negligence or
willful misconduct (each as finally determined by a court of competent
jurisdiction).
(g) The Depositary, its parent, affiliates, or subsidiaries, any
Depositary's Agent, and any Registrar or Transfer Agent may own, buy, sell or
deal in any class of securities of the Company and its affiliates and in
Receipts or Depositary Shares or become pecuniarily interested in any
transaction in which the Company or its affiliates may be interested or contract
with or lend money to or otherwise act as fully or as freely as if it were not
the Depositary or the Depositary's Agent hereunder. The Depositary or its
affiliates may also act as transfer agent or registrar of any of the securities
of the Company and its affiliates or act in any other capacity for the Company
or its affiliates.
(h) It is intended that neither the Depositary nor any Depositary's Agent
shall be deemed to be an "issuer" of the securities under the federal securities
laws or applicable state securities laws, it being expressly understood and
agreed that the Depositary and any Depositary's Agent are acting only in a
ministerial capacity as Depositary for the deposited Preferred Shares; 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.
(i) Neither the Depositary (or its officers, directors, employees or
agents) nor any Depositary's Agent makes any representation or has any
responsibility as to the validity of any registration statement pursuant to
which the Depositary Shares may be registered under the Securities Act, the
deposited Preferred Shares, the Depositary Shares, the Receipts (except its
countersignature thereon) or any instruments referred to therein or herein, or
as to the correctness of any statement made in any such registration statement
or herein.
(j) The Company agrees that it will register the issuance of the Preferred
Shares and the Depositary Shares to the extent required by the Securities Act.
(k) The Depositary hereunder:
(i) shall have no duties or obligations other than those specifically
set forth herein (and no implied duties or obligations), or as may subsequently
be agreed to in writing by the parties;
(ii) shall have no obligation to make payment hereunder unless the
Company shall have provided the necessary federal or other immediately available
funds or securities or property, as the case may be, to pay in full amounts due
and payable with respect thereto;
(iii) shall not be obligated to take any legal or other action
hereunder; if, however, the Depositary determines to take any legal or other
action hereunder, and, where the taking of such action might in the Depositary's
judgment subject or expose it to any expense or liability, the Depositary shall
not be required to act unless it shall have been furnished with an indemnity
satisfactory to it;
17
(iv) may rely on and shall be authorized and protected in acting or
failing to act upon any certificate, instrument, opinion, notice, letter,
telegram, telex, facsimile transmission or other document or security
delivered to the Depositary and believed by the Depositary to be genuine
and to have been signed by the proper party or parties, and shall have no
responsibility for determining the accuracy thereof;
(v) may rely on and shall be authorized and protected in acting or
failing to act upon the written, telephonic, electronic and oral
instructions, with respect to any matter relating to the Depositary's
actions as depositary covered by this Deposit Agreement (or supplementing
or qualifying any such actions) of officers of the Company;
(vi) may consult counsel satisfactory to it, and the advice of such
counsel shall be full and complete authorization and protection in respect
of any action taken, suffered or omitted by the Depositary hereunder in
accordance with the advice of such counsel;
(vii) shall not be called upon at any time to advise any person with
respect to the Preferred Shares or Receipts;
(viii) shall not be liable or responsible for any recital or statement
contained in any documents relating hereto or the Preferred Shares or
Receipts; and
(ix) shall not be liable in any respect on account of the identity,
authority or rights of the parties (other than with respect to the
Depositary) executing or delivering or purporting to execute or deliver
this Deposit Agreement or any documents or papers deposited or called for
under this Deposit Agreement.
Section 5.04 Resignation and Removal of the Depositary; Appointment of
Successor Depositary. (a) The Depositary may at any time resign as Depositary
hereunder by having notice 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 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.
(b) In case at any time the Depositary acting hereunder shall resign or be
removed, the Company shall, within 60 days after the delivery of the notice of
resignation or removal, as the case may be, appoint a successor Depositary,
which shall be a bank or trust company having its principal office in the United
States of America and having a combined capital and surplus of at least
$50,000,000 or shall be an Affiliate of such bank or trust company. If a
successor Depositary shall not have been so appointed within 60 days after
delivery of such notice, the resigning or removed Depositary, at the expense of
the Company, may petition any court of competent jurisdiction to appoint a
successor Depositary. Every successor Depositary shall execute and deliver to
its predecessor and to the Company an instrument in writing accepting its
appointment hereunder, and thereupon such successor Depositary, without any
further act or deed, shall become fully vested with all the rights, powers,
duties and obligations of its predecessor and for all purposes shall be the
Depositary under this Deposit Agreement, and such predecessor, upon payment of
all sums due it and on the written request of the Company, shall
18
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 deposited Preferred Shares and any moneys
or property held hereunder to such successor, and shall deliver to such
successor a list of the record holders of all outstanding Receipts. Any
successor Depositary shall promptly mail notice of its appointment to the record
holders of Receipts.
(c) Any corporation or association into or with which the Depositary may be
merged, consolidated or converted shall be the successor of such Depositary
without the execution or filing of any document or any further act, and notice
thereof shall not be required hereunder. Such successor Depositary may execute
the Receipts either 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
deliver to the Depositary, and the Depositary will, promptly after receipt
thereof, transmit to the record holders of Receipts, in each case at the
addresses furnished to it pursuant to Section 4.08, copies of all notices and
reports (including financial statements) required by law, by the rules of any
national securities exchange upon which the Preferred Shares, the Depositary
Shares or the Receipts are included for quotation or listed or by the Company's
Articles of Association (including the Special Resolutions adopted in accordance
thereto) to be furnished by the Company to holders of deposited Preferred Shares
and, if requested by the holder of any Receipt, a copy of this Deposit
Agreement, the Articles of Association, the Memorandum of Association and the
form of Preferred Shares. Such transmission will be at the Company's expense and
the Company will provide the Depositary with such number of copies of such
documents as the Depositary may reasonably request. In addition, the Depositary
will transmit to the record holders of Receipts at the Company's expense such
other documents as may be requested by the Company.
Section 5.06 Indemnification by the Company. The Company agrees to
indemnify the Depositary, any Depositary's Agents, any Transfer Agent and any
Registrar against, and hold each of them harmless from and against, any fee,
loss, claim, penalty, fine, settlement, damages, judgment, liability, costs and
expenses (including reasonable attorneys' fees and expenses) that may arise out
of, or in connection with, its acting as Depositary, Depositary's Agent,
Transfer Agent or Registrar, respectively, under this Deposit Agreement and the
Receipts, except to the extent such liability shall have been finally determined
by a court of competent jurisdiction to be a result of the willful misconduct,
gross negligence or bad faith on the part of any such person or persons. The
obligations of the Company set forth in this Section 5.06 shall survive any
resignation or removal of any Depositary, Registrar, Transfer Agent or
Depositary's Agent or termination of this Deposit Agreement.
Section 5.07 Fees and Expenses. No fees and expenses of the Depositary or
any Depositary's Agent hereunder shall be payable by any person, except as
provided in this Section 5.07. The Company shall pay all transfer and other
taxes and governmental charges arising solely from the existence of this Deposit
Agreement. The Company shall also pay all fees and expenses of the Depositary,
Registrar, Transfer Agent and Depositary's Agent in connection with the initial
deposit of the Preferred Shares and the issuance of the Depositary Shares
evidenced by the Receipts, any redemption of the Preferred Shares at the option
of the Company and all
19
withdrawals of the Preferred Shares 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 a holder of Receipts requests the Depositary to
perform duties not required under this Deposit Agreement, the Depositary shall
notify the holder of the cost of the performance of such duties prior to the
performance thereof. Such holder will be liable for the fees and expenses
related to such performance. All other fees and expenses of the Depositary and
any Depositary's Agent hereunder and of the Registrar and Transfer Agent
(including, in each case, fees and expenses of counsel) incident to the
performance of their respective obligations hereunder will be promptly paid as
previously agreed between the Depositary and the Company. The Depositary shall
present its statement for fees and expenses to the Company every quarter 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 provision of this
Deposit Agreement may at any time and from time to time be amended by written
agreement between the Company and the Depositary in any respect that they may
deem necessary or desirable; provided, however, that no such amendment (other
than any change in the fees of any Depositary, Registrar or Transfer Agent)
which would materially and adversely alter the rights of the holders of Receipts
shall be effective unless such amendment shall have been approved by the holders
of at least a majority of the Depositary Shares then outstanding, or, in the
case of amendments affecting rights to receive dividends or distributions or
voting or redemption rights, 66 2/3% of the Depositary Shares then outstanding.
In no event shall any amendment impair the right, subject to the provisions of
Section 2.06 and Section 2.07 and Article III, of any holder of any Depositary
Shares to surrender the Receipt evidencing such Depositary Shares with
instructions to the Depositary to deliver to the holder the deposited Preferred
Shares and all money and other property, if any, represented thereby, except in
order to comply with mandatory provisions of applicable law. Every holder of an
outstanding Receipt at the time any such amendment becomes effective shall be
deemed, by continuing to hold such Receipt, to consent and agree to such
amendment and to be bound by the Deposit Agreement as amended thereby.
Section 6.02 Termination. (a) This Deposit Agreement may be terminated by
the Company or the Depositary only if (i) all outstanding Depositary Shares
shall have been redeemed pursuant to Section 2.03, (ii) there shall have been
made a final distribution in respect of the deposited Preferred Shares in
connection with any liquidation, dissolution or winding up of the Company and
such distribution shall have been distributed to the holders of Receipts
entitled thereto or (iii) with the consent of owners representing not less than
66 2/3% of the Depositary Shares then outstanding. The party terminating this
Deposit Agreement in accordance with the preceding sentence shall provide
written notice of such termination to the Company or the Depositary, as the case
may be.
(b) 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, the Transfer Agent and
the Registrar under Sections 5.06 and 5.07.
20
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. (a) 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 facsimile
transmission (confirmed by letter), addressed to the Company at ▇▇ ▇▇▇▇▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇ 08, Bermuda, facsimile No. 441.296.0087, to the attention of
the Secretary, or at any other address of which the Company shall have notified
the Depositary in writing.
(b) 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 facsimile transmission
(confirmed by letter), addressed to the Depositary at:
Mellon Investor Services LLC
▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇
Attention: Relationship Administrator
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
With a copy to:
Mellon Investor Services LLC
▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇
Attention: General Counsel
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
or at any other address of which the Depositary shall
have notified the Company in writing.
21
(c) Any and all notices to be given to any record holder of a Receipt
hereunder or under the Receipts shall be in writing and shall be deemed to have
been duly given if personally delivered or sent by mail or by telegram or
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 in a timely manner a
written request that notices intended for such holder be mailed to some other
address, at the address designated in such request.
(d) Delivery of a notice to the Company or the Depositary sent by mail or
by telegram or facsimile transmission shall be deemed to be effected at the time
when written confirmation is received by the person or entity delivering such
notice. The Depositary or the Company may, however, act upon any notice sent by
mail, telegram or facsimile transmission received by it from the other or from
any holder of a Receipt, notwithstanding that such notice shall not subsequently
be confirmed as aforesaid.
Section 7.05 Depositary's Agents. The Depositary may from time to time
appoint Depositary's Agents to act in any respect for the Depositary for the
purposes of this Deposit Agreement and may at any time appoint additional
Depositary's Agents and vary or terminate the appointment of such Depositary's
Agents. The Depositary will notify the Company of any such action.
Section 7.06 Holders of Receipts Are Parties. The holders of Receipts from
time to time shall be parties to this Deposit Agreement and shall be bound by
all of the terms and conditions hereof and of the Receipts by acceptance of
delivery thereof.
Section 7.07 Governing Law. This Deposit Agreement and the Receipts and all
rights hereunder and thereunder and provisions hereof and thereof shall be
governed by, and constructed in accordance with, the laws of the State of New
York, without regard to choice of law principles. The Company hereby submits to
the non-exclusive jurisdiction of the Federal and state courts in the Borough of
Manhattan in The City of New York in any suit or proceeding arising out of or
relating to this Deposit Agreement or the transactions contemplated thereby. The
Company irrevocably appoints ACE USA, Inc., 1133 Avenue of the Americas, ▇▇▇▇
▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇ as its authorized agent in the Borough of
Manhattan in The City of New York upon which process may be served in any such
suit or proceeding, and agrees that service of process upon such agent, and
written notice of said service to the Company by the person serving the same to
the address provided in Section 7.04(a), shall be deemed in every respect
effective service of process upon the Company in any such suit or proceeding.
The Company further agrees to take any and all action as may be necessary to
maintain such designation and appointment of such agent in full force and effect
for a period of seven years from the date of this Deposit Agreement.
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 normal business hours at the Depositary's
Office and the respective offices of the Depositary's Agents, if any, by any
holder of a Receipt.
22
Section 7.09 Headings. The headings of articles and sections in this
Deposit Agreement and in the form of the Receipt set forth in Exhibit A hereunto
have been inserted for convenience only and are not to be regarded as a 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.
23
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 Receipts shall become parties hereto by and upon acceptance by them of
delivery of Receipts issued in accordance with the terms hereof.
ACE LIMITED
By:
-------------------------------------------------
Name:
Title:
MELLON INVESTOR SERVICES LLC, as Depositary
By:
-------------------------------------------------
Name:
Title:
S-1
[DTC Receipts Legend] [Unless this certificate is presented by an authorized
representative of The Depository Trust Company, a New York corporation ("DTC"),
to the Company or its agent for registration of transfer, exchange or payment,
and any certificate issued is registered in the name of Cede & Co. or in such
other name as is requested by an authorized representative of DTC (and any
payment is made to Cede & Co. or to such other entity as is requested by an
authorized representative of DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR
VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL in as much as the registered
owner hereof, Cede & Co., has an interest herein.]
Exhibit A
NUMBER DEPOSITARY SHARES
DEPOSITARY RECEIPT FOR DEPOSITARY SHARES,
REPRESENTING _____________
7.80% CUMULATIVE REDEEMABLE PREFERRED SHARES,
SERIES C, PAR VALUE $1.00
ACE LIMITED
SEE REVERSE SIDE
FOR ADDITIONAL
INFORMATION
INCORPORATED UNDER THE LAWS OF THE CAYMAN ISLANDS
THIS DEPOSITARY RECEIPT IS TRANSFERABLE IN
THE CITY OF NEW YORK
CUSIP
This certifies that __________ is the registered owner of __________
DEPOSITARY SHARES ("Depositary Shares"), each Depositary Share representing
one-tenth (1/10) of one share of 7.80% Cumulative Redeemable Preferred Shares,
Series C, par value $1.00, of ACE Limited, a Cayman Islands Company (the
"Company"), and the same proportionate interest in any and all other property
received by MELLON INVESTOR SERVICES LLC, as Depositary (the "Depositary") in
respect of such shares of Preferred Shares and held by the Depositary under the
Deposit Agreement dated as of May 30, 2003 (the "Deposit Agreement"), among the
Company, the Depositary and all holders from time to time of Receipts. Subject
to the terms of the Deposit Agreement, each owner of a Depositary Share is
entitled, proportionately, to all the rights, preferences and privileges of the
Preferred Shares represented thereby, including the dividend, voting,
liquidation and other rights contained in the Special Resolutions adopted by the
special committee of the Board of Directors of the Company, copies of which are
on file at the Depositary's Office.
A-1
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 or facsimile signature of a duly
authorized signatory of the Depositary or, if applicable, countersigned by a
Registrar in respect of the Depositary Receipts by the manual or facsimile
signature of a duly authorized signatory thereof.
This Receipt is continued on the reverse hereof and the additional
provisions therein set forth for all purposes have the same effect as if set
forth at this place.
Dated
Countersigned and Registered:
MELLON INVESTOR SERVICES LLC, as MELLON INVESTOR SERVICES LLC, as
Registrar Depositary
By: ____________________________ By: __________________________________
Authorized Signatory Authorized Signatory
A-2
(Form of Reverse Receipt)
ACE LIMITED
Depositary Receipts, of which this Receipt is one, are made available upon
the terms and conditions set forth in the Deposit Agreement. The Deposit
Agreement sets forth the rights of holders of Receipts and the rights and duties
of the Depositary. The statements made on the face and the reverse of this
Receipt are summaries of certain provisions of the Deposit Agreement and are
subject to the detailed provisions thereof, to which reference is hereby made.
ACE LIMITED (THE "COMPANY") WILL FURNISH WITHOUT CHARGE TO EACH RECEIPT
HOLDER 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
THE COMPANY IS AUTHORIZED TO ISSUE AND OF THE QUALIFICATIONS, LIMITATIONS OR
RESTRICTIONS OF SUCH PREFERENCES AND/OR RIGHTS. ANY SUCH REQUESTS IS TO BE
ADDRESSED TO THE OFFICE OF THE SECRETARY OF THE COMPANY.
-----------------
The following abbreviations, when used in the inscription on the face of
this Receipt, shall be construed as though they were written out in full
according to applicable laws or regulations.
TEN COM - as tenants in common UNIF GIFT MIN ACT - ________ Custodian _______
TEN ENT - as tenants by the (Cust) (Minor)
entireties under Uniform Gifts to Minors Act
JT TEN - as joint tenants with
right of survivorship ________________________________
and not as tenants in common (State)
Additional abbreviations may also be used though not in the above list
For value received, ________________________________________________________
hereby sell, assign and transfer 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 do hereby irrevocably constitute and
appoint
________________________________________________________________________________
Attorney to transfer the said Depositary Shares on the books of the within-named
Depositary with full power of substitution in the premises.
Dated: ___________________
A-2
__________________________________________________
NOTICE: The signature to this assignment must
correspond with the name as written upon the face
of this receipt in every particular, without
alteration or enlargement or any change whatever.
Signature Guarantee*
_____________________________________
*Signatures must be guaranteed by an "eligible guarantor institution" as
defined in Rule 17Ad-15 promulgated under the Securities Exchange Act of 1934,
as amended. Guarantees by a notary public are not acceptable.
A-3