EXHIBIT 4.2
FORM OF DEPOSIT AGREEMENT
MATTEL, INC.,
[ ], As Depositary
AND
THE HOLDERS FROM TIME TO TIME OF
THE DEPOSITARY RECEIPTS DESCRIBED HEREIN
DEPOSIT AGREEMENT
FOR
SERIES C MANDATORILY CONVERTIBLE
REDEEMABLE PREFERRED STOCK
Dated as of ____________, 1997
TABLE OF CONTENTS
Page
ARTICLE I. Definitions............................. 1
ARTICLE II. Book-Entry, Form of Receipts, Deposit
of Stock, Execution and Delivery,
Transfer, Surrender and Redemption
of Receipts.......................... 3
SECTION 2.01. Book-Entry Form; Form and Transfer of
Receipts............................. 3
SECTION 2.02. Deposit of Stock; Execution and
Delivery of Receipts in Respect
Thereof.............................. 6
SECTION 2.03. Optional Redemption of Stock............ 7
SECTION 2.04. Mandatory Conversion of Stock........... 9
SECTION 2.05. Conversion of Stock at the Option of the
Holder............................... 9
SECTION 2.06. Registration of Transfer of Receipts.... 10
SECTION 2.07. Surrender of Receipts and Withdrawal of
Stock................................ 11
SECTION 2.08. Limitations on Execution and Delivery,
Transfer, Surrender and Exchange of
Receipts............................. 12
SECTION 2.09. Lost Receipts, etc...................... 13
SECTION 2.10. Cancellation and Destruction of
Surrendered Receipts................. 13
SECTION 2.11. Interchangeability of Book-Entry
Receipts and Receipts in Physical,
Certificated Form.................... 13
ARTICLE III. Certain Obligations of Holders of
Receipts and the Company............. 14
SECTION 3.01. Filing Proofs, Certificates and Other
Information.......................... 14
SECTION 3.02. Payment of Taxes or Other Governmental
Charges.............................. 14
SECTION 3.03. Warranty as to Stock.................... 15
SECTION 3.04. Warranty as to Receipts................. 15
ARTICLE IV. The Deposited Securities; Notices....... 15
SECTION 4.01. Cash Distributions...................... 15
SECTION 4.02. Distributions Other than Cash, Rights,
Preferences or Privileges............ 16
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Page
SECTION 4.03. Subscription Rights, Preferences or
Privileges........................... 17
SECTION 4.04. Notice of Dividends, etc.; Fixing
of Record Date for Holders
of Receipts.......................... 18
SECTION 4.05. Voting Rights........................... 18
SECTION 4.06. Changes Affecting Stock and
Reclassifications, Recapitalizations,
etc.................................. 19
SECTION 4.07. Inspection of Reports................... 20
SECTION 4.08. Lists of Receipt Holders................ 20
ARTICLE V. The Depositary, the Depositary's Agents,
the Registrar and the Company........ 20
SECTION 5.01 Maintenance of Offices, Agencies and
Transfer Books by the Depositary;
Registrar............................ 20
SECTION 5.02. Prevention of or Delay in
Performance by the Depositary,
the Depositary's Agents, the
Registrar or the Company............. 21
SECTION 5.03. Obligations of the Depositary, the
Depositary's Agents, the Registrar
and the Company...................... 22
SECTION 5.04. Resignation and Removal of the
Depositary; Appointment of Successor
Depositary........................... 23
SECTION 5.05. Corporate Notices and Reports........... 24
SECTION 5.06. Indemnification by the Company.......... 25
SECTION 5.07. Charges and Expenses.................... 25
ARTICLE VI. Amendment and Termination............... 26
SECTION 6.01. Amendment............................... 26
SECTION 6.02. Termination............................. 26
ARTICLE VII. Miscellaneous........................... 27
SECTION 7.01. Counterparts............................ 27
SECTION 7.02. Exclusive Benefit of Parties............ 27
SECTION 7.03. Invalidity of Provisions................ 28
SECTION 7.04. Notices................................. 28
SECTION 7.05. Depositary's Agents..................... 29
SECTION 7.06. Holders of Receipts Are Parties......... 29
SECTION 7.07. Governing Law........................... 29
SECTION 7.08. Inspection of Deposit Agreement......... 29
SECTION 7.09. Headings................................ 29
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DEPOSIT AGREEMENT
DEPOSIT AGREEMENT dated as of __________, 1997, among Mattel, Inc., a
Delaware corporation, [ ], and the holders from time to time of the
Receipts described herein.
WHEREAS, it is desired to provide, as hereinafter set forth in this
Deposit Agreement, for the deposit of shares of the Stock of the Company with
the Depositary for the purposes set forth in this Deposit Agreement and for the
issuance hereunder of Receipts evidencing Depositary Shares in respect of the
Stock so deposited; and
WHEREAS, the Receipts are to be substantially in the form of Exhibit A
annexed hereto, with appropriate insertions, modifications and omissions, as
hereinafter provided in this Deposit Agreement.
NOW, THEREFORE, in consideration of the premises, the parties hereto
agree as follows:
ARTICLE I
Definitions
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The following definitions shall for all purposes, unless otherwise
indicated, apply to the respective terms used in this Deposit Agreement. Terms
not otherwise defined herein shall be given the meaning assigned to such terms
in the Certificate.
"Certificate" shall mean the Certificate of Designations filed with
the Secretary of State of the State of Delaware establishing the Stock as a
series of preferred stock of the Company designated as "Series C Mandatorily
Convertible Redeemable Preferred Stock."
"Common Stock" shall mean the Company's Common Stock par value $1.00
per share, or any security into which the Common Stock may be converted.
"Company" shall mean Mattel, Inc., a Delaware corporation, and its
successors.
"Deposit Agreement" shall mean this Deposit Agreement, as amended or
supplemented from time to time.
"Depositary" shall mean [ ], and any successor as Depositary
hereunder.
"Depositary Shares" shall mean Depositary Shares, each representing
ownership of one-twentieth of the Stock deposited with the Depositary hereunder
under this Deposit Agreement, all as evidenced by a Receipt. 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 Stock
represented by such Depositary Share, including the dividend, voting,
redemption, conversion and liquidation rights and subject, proportionately, to
all of the limitations of the Stock represented thereby, contained in the
Certificate, and to the benefits of all obligations of the Company under the
Certificate.
"Depositary's Agent" shall mean any agent appointed by the Depositary
pursuant to Section 7.05.
"Depositary's Office" shall mean the corporate trust office of the
Depositary in [ ], at which at any particular time its depositary receipt
business shall be administered.
"Mandatory Conversion Date" shall be July 1, 2000.
"Mandatory Conversion Rate" shall mean the conversion rate, as set
forth in Section III(A) of the Certificate, at which the Stock, and therefore
the Depositary Shares, will convert into Common Stock on the Mandatory
Conversion Date.
"Optional Rate" shall mean the conversion rate, as set forth in
Section III(B) of the Certificate, at which the Stock, and therefore the
Depositary Shares, will be subject to upon conversion, and may be subject to
upon redemption.
"Receipt" shall mean one of the Depositary Receipts issued hereunder
by the Depositary, whether in definitive or temporary form, evidencing interests
held in Depositary Shares in substantially the form set forth in Exhibit A
hereto. When the context requires, the term "Receipt" shall be deemed to
include the DTC Receipt (as defined in Section 2.01 hereof).
"Record Holder" as applied to a Receipt shall mean the person in whose
name a Receipt is registered on the books of the Depositary maintained for such
purpose.
"Redemption Date" shall have the meaning set forth in Section 2.03
hereof.
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"Registrar" shall mean any bank or trust company which shall be
appointed to register ownership and transfers of Receipts as herein provided.
"Securities Act" shall mean the Securities Act of 1933, as amended.
"Stock" shall mean the Company's Series C Mandatorily Convertible
Redeemable Preferred Stock, par value $0.10 per share.
"Stockholder" shall mean holders of the Stock.
"Transaction" shall mean the occurrence of such an event, as set forth
in Section III(E) of the Certificate, which causes the consideration receivable
upon redemption or conversion of the Stock, and therefore the Depositary Shares,
to include securities, cash or other property in replacement of, or in addition
to Common Stock.
ARTICLE II
Book-Entry, Form of Receipts, Deposit
of Stock, Execution and Delivery, Transfer,
Surrender and Redemption of Receipts
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SECTION 2.01. Book-Entry Form; Form and Transfer of Receipts. The
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Company and the Depositary shall make application to The Depository Trust
Company ("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, including, but not limited to,
a letter of representations, in form satisfactory to the Company, the Depositary
and DTC. So long as the Receipts are eligible for book-entry settlement with
DTC, except as provided for in Section 2.11 of this Deposit Agreement, or 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.). [ ]
or such other entity as is agreed to by DTC may hold the DTC Receipt as
custodian for DTC. During any period
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in which any Depositary Shares are evidenced by the DTC Receipts except as
expressly provided for in Section 2.11 of this Deposit Agreement, no person
acquiring Depositary Shares traded on the New York Stock Exchange with book-
entry settlement through DTC shall receive or be entitled to receive physical
delivery of the Receipts evidencing such Depositary Shares. 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.
If DTC subsequently ceases to make its book-entry settlement system
available for the Receipts, the Company may instruct the Depositary regarding
making other arrangements for book-entry settlement. In the event that the
Receipts are not eligible for, or it is no longer necessary to have the Receipts
available in book-entry form, 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 the form annexed hereto as Exhibit A with appropriate insertions,
modifications and omissions, as hereafter provided.
The beneficial owners of Depositary Shares shall, except as stated
above with respect to Depositary Shares in book-entry form represented by the
DTC Receipt, be entitled to receive Receipts in physical, certificated form as
herein provided.
The Receipts shall be typewritten, in the case of the DTC Receipt, and
otherwise shall, upon notice by the Company to the Depositary, be definitive
Receipts which shall be engraved or printed or lithographed on steel-engraved
borders and shall be substantially in the form set forth as 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. Until such time as the Receipts
are so engraved or printed or lithographed in accordance with the preceding
sentence, the Depositary, upon the written order of the Company or any holder of
Stock, as the case may be, 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
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variations as the persons executing such Receipts may determine, as evidenced by
their execution of such Receipts. 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, 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 Depositary's expense and without any charge therefor to the
holder of the Receipts. Until so exchanged, the temporary Receipts shall in all
respects be entitled to the same benefits under this Deposit Agreement, and with
respect to the Stock, as definitive Receipts.
Receipts shall be executed by the Depositary by the manual signature
of a 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 manual or 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 shall be in denominations of any number of whole Depositary
Shares.
Receipts may be endorsed with or have incorporated in the text thereof
such legends or recitals or changes not inconsistent with the provisions of this
Deposit Agreement as may be required by the Depositary or required to comply
with any applicable law or any regulation 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.
Subject to any limitations set forth in a Receipt or in this Deposit
Agreement, title to Depositary Shares evidenced by a Receipt which is properly
endorsed or accompanied by a properly executed instrument of transfer, shall be
transferable
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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
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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, the
exchange of Depositary Shares for Stock, the right to exchange Receipts pursuant
to Section 2.11 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
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Respect Thereof. Subject to the terms and conditions of this Deposit Agreement,
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the Company or any holder of Stock may from time to time deposit shares of the
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 law or 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 or such holder, as the case may be, directing the Depositary to
execute and deliver to, or upon the written order of, the person or persons
stated in such order a Receipt or Receipts for the number of Depositary Shares
representing such deposited Stock.
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 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 Company or a holder of
Stock depositing shares of Stock in accordance with the first paragraph of this
Section, a Receipt or Receipts for the number of Depositary Shares representing
the Stock so deposited and registered in such name or names as may be requested
by the Company or such holder. 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. The DTC Receipt shall
provide that it shall
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evidence the aggregate amount of Depositary Shares from time to time indicated
in the records of the Depositary and that the aggregate amount of Depositary
Shares evidenced thereby may from time to time be increased or decreased by
making adjustments on such records of the Depositary.
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. Optional Redemption of Stock. Whenever the Company
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shall elect to redeem shares of Stock in accordance with the provisions of the
Certificate, it shall (unless otherwise agreed to in writing with the
Depositary) give the Depositary not less than 30 days' notice of the proposed
date of such proposed redemption of Stock and the number of shares of Stock held
by the Depositary to be so redeemed. On the date of such redemption, provided
that the Company shall then have deposited with the Depositary the number of
shares of Common Stock and any cash necessary to effect such redemption, the
Depositary shall redeem the number of Depositary Shares representing such Stock.
The Depositary shall mail notice of such redemption and the proposed
simultaneous redemption of the number of Depositary Shares representing the
Stock to be redeemed, first class postage prepaid, not less than 15 nor more
than 60 days prior to the date fixed for redemption of such Stock and Depositary
Shares (the "Redemption Date"), to the Record Holders on the record date for
such redemption (determined pursuant to Section 4.04 hereof) of the Receipts
evidencing the Depositary Shares to be so redeemed, at the addresses of such
Record Holders as the same appear on the records of the Depositary, but neither
failure to mail any such notice to one or more such Record Holders nor any
defect in any notice shall affect the sufficiency of the proceedings for
redemption as to other Record Holders. Each such notice shall state (i) that
the Company has elected to redeem all or a portion of the Stock represented by
the Depositary Shares, (ii) the record date for purposes of such redemption,
(iii) the Redemption Date, (iv) that all outstanding Depositary Shares are to be
redeemed, or in the case of a redemption of fewer than all outstanding
Depositary Shares in connection with a partial redemption of Stock pursuant to
Section III(B) of the Certificate, the number of such Depositary Shares held by
such Record Holder to be redeemed, (v) the number of shares of Common Stock,
cash in lieu of fractional shares and other consideration (in the event that a
Transaction has occurred) to be received for each Depositary Share held by such
Record Holder (such conversion amounts to be determined by the Company in
accordance with the Certificate),
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(vi) the place or places where Receipts evidencing Depositary Shares are to be
surrendered for shares of Common Stock, (vii) that dividends in respect of the
Stock represented by the Depositary Shares to be redeemed will cease to accrue
at the close of business on such Redemption Date; and (viii) any other
information required by applicable law and any other procedures to be followed
by such Record Holders to receive Common Stock for their redeemed Depositary
Shares. 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 or
pro rata (as nearly as may be) or in any other equitable manner determined by
the Depositary to be consistent with the method determined by the Board of
Directors, in its sole discretion, with respect to the Stock.
The Depositary shall similarly mail notice of such redemption to the
Stockholders, if any, whose shares of Stock are designated by the Company for
redemption at their addresses as they appear on the records of the Depositary,
first class postage prepaid, not less than 15 and not more than 60 days prior to
the Redemption Date. Neither failure to mail any notice to any Stockholder nor
any defect in any notice shall affect the sufficiency of the proceedings for
redemption as to other Stockholders.
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 shares
of Stock so 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 Record Holders of Receipts evidencing such Depositary Shares
(except the right to receive shares of Common Stock, cash in lieu of fractional
shares upon redemption, if applicable, or other consideration resulting from the
occurrence of a Transaction, if any) shall, to the extent of such Depositary
Shares, cease and terminate. Upon any surrender in accordance with said notice
of the Receipts evidencing any such Depositary Shares (properly endorsed or
assigned for transfer, if the Depositary shall so require), each such Depositary
Share shall be redeemed by the Depositary for the number of Common Shares
therefor specified in said notice, plus cash for fractional shares, if any,
represented by such Depositary Share. The foregoing shall further be subject to
the terms and conditions of the Certificate. If less than all the Depositary
Shares evidenced by a Receipt are called for redemption, the Depositary will
deliver to the Record Holder of such Receipt, upon surrender of such Receipt, to
the Depositary, a new Receipt evidencing the Depositary Shares evidenced
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by such prior Receipt and not called for redemption, together with certificates
representing the shares of Common Stock issuable upon redemption of the
Depositary Shares called for redemption.
SECTION 2.04. Mandatory Conversion of Stock. On the Mandatory
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Conversion Date, all outstanding shares of the Stock will automatically convert
into Common Stock at the Mandatory Conversion Rate. Provided that the Company
shall then have deposited with the Depositary the number of shares of Common
Stock, cash in lieu of fractional shares, and other consideration (in the event
that a Transaction has occurred) necessary to effect such conversion, the
Depositary shall convert all outstanding Depositary Shares representing Stock
into Common Stock at the Mandatory Conversion Rate specified to the Depositary
by the Company.
From and after the Mandatory Conversion Date (unless the Company shall
have failed to deposit the shares of Common Stock, cash or other consideration
as required above), (i) all dividends in respect of the shares of Stock shall
cease to accrue, (ii) the Depositary Shares shall be deemed no longer to be
outstanding, (iii) all rights of the holders of Receipts evidencing such
Depositary Shares (except the right to receive the shares of Common Stock and
any other consideration then due) shall, to the extent of such Depositary
Shares, cease and terminate and (iv) upon surrender of the Receipts evidencing
any such Depositary Shares in accordance with such procedures and documentation
as the Depositary may require, such Depositary Shares shall be converted by the
Depositary into whole shares of Common Stock and any other consideration
therefor specified by the Company, plus all money and other property, if any,
represented by such Depositary Shares. The foregoing shall further be subject
to the terms and conditions of the Certificate.
SECTION 2.05. Conversion of Stock at the Option of the Holder. Upon
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the Depositary's receipt from any Record Holder, at any time prior to the
Mandatory Conversion Date or until immediately before the close of business on
any redemption date with respect to such shares, of a written notice of such
Record Holders' election to convert any or all whole shares of the Stock
represented by such holders's Depositary Shares into Common Stock, along with
delivery to the Depositary of such holder's Receipt(s) evidencing such
Depositary Shares, cash payment of an amount equal to the Depositary Share's
portion of the dividends payable on the Stock (for conversions taking place
after the close of business on a record date for any declared dividend and
before the opening of business on the
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next succeeding dividend payment date, as set forth in the Certificate), if
applicable, and a proper assignment of such Receipts(s) to the Company or in
blank, provided that the Company shall then have deposited with the Depositary
the number of shares of Common Stock and any money or other property necessary
to effect such conversion, the Depositary shall, promptly thereafter, (i) cancel
such Receipt(s), (ii) deliver to such Record Holder a certificate for the number
of whole shares of Common Stock into which such Stock is converted, pursuant to
the Optional Rate as calculated by the Company in accordance with the
Certificate, (iii) deliver to such holder all cash in lieu of fractional shares,
if any, or other consideration (in the event a Transaction has occurred) to be
received for each Depositary Share, (iv) if less than all of the Depositary
Shares evidenced by any Receipt are converted, deliver to such holder a new
Receipt or Receipts evidencing the quantity of Depositary Shares evidenced by
such prior Receipt but not converted and (v) cancel (or, if the Depositary is
not the transfer agent for Stock, deliver for cancellation) that number of
shares of Stock held by the Depositary which are represented by the aggregate of
all Depositary Shares so converted. Each such conversion of Depositary Shares
shall be deemed to have been effected immediately before the close of business
on the date on which the foregoing requirements as to delivery of notice of
conversion, Receipt(s), and assignment shall have been satisfied.
After the effective date of such conversion of any Depositary Shares,
(i) all dividends in respect of the shares of Stock represented by such
Depositary Shares shall cease to accrue, (ii) the Depositary Shares being so
converted shall be deemed no longer to be outstanding and (iii) all rights of
the holders of Receipts evidencing such Depositary Shares (except the right to
receive the shares of Common Stock and any money or other property to which such
holders were entitled upon such conversion) shall, to the extent of such
Depositary Shares, cease and terminate. No fractional shares of Stock may be
converted. The foregoing shall further be subject to the terms and conditions
of the Certificate.
SECTION 2.06. Registration of Transfer of Receipts. Subject to the
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terms and conditions of this Deposit Agreement, the Depositary shall make
transfers on its books from time to time of Receipts upon any surrender thereof
at the Depositary's Office by the holder in person or by such holder's duly
authorized attorney, properly endorsed or accompanied by a properly executed
instrument of transfer, and duly stamped as may be required by law. 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
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surrendered and deliver such new Receipt or Receipts to or upon the order of the
person entitled thereto.
SECTION 2.07. Surrender of Receipts and Withdrawal of Stock. Any
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holder of a Receipt or Receipts representing any number of whole shares of Stock
(or such holder's duly authorized attorney) may withdraw the Stock and all money
and other property, if any, represented thereby by surrendering such Receipt or
Receipts at the Depositary's Office or at such other offices as the Depositary
may designate for such withdrawals. If such holder's Depositary Shares are
being held by DTC or its nominee pursuant to Section 2.01, such holder shall
request, in accordance with Section 2.11, withdrawal from the book-entry system
of the number of Depositary Shares specified in the preceding sentence.
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, represented by the Receipt or Receipts so surrendered for withdrawal,
but holders of such whole shares of Stock will not thereafter be entitled to
receive Depositary Shares in exchange therefor. If a Receipt 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 shares of Stock to be so withdrawn, 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 2.06) upon his order, a new Receipt
evidencing such excess number of Depositary Shares. In no event will fractional
shares of Stock (or cash in lieu thereof) be distributed by the Depositary.
Delivery of the Stock and 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.
Stock delivered pursuant to the preceding paragraph may be endorsed
with or have incorporated in the text thereof such legends or recitals or
changes not inconsistent with the provisions of this Deposit Agreement as may be
required by the Depositary or required to comply with any applicable law or any
regulation thereunder or with the rules and regulations of any securities
exchange upon which the Stock may be listed or to conform with any usage with
respect thereto, or to indicate any special limitations or restrictions to which
any particular shares of Stock are subject.
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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 Receipt
or 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 in blank.
Delivery of the Stock and the money and other property, if any,
represented by Receipts surrendered for withdrawal shall be made by the
Depositary at the 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
designated by such holder.
SECTION 2.08. Limitations on Execution and Delivery, Transfer,
------------------------------------------------
Surrender and Exchange of Receipts. As a condition precedent to the execution
----------------------------------
and delivery, registration of transfer, surrender or exchange of any Receipt,
the Depositary, any of the Depositary's Agents or the Company may require (i)
payment to it of a sum sufficient for the payment (or, in the event that the
Depositary or the Company shall have made such payment, the reimbursement to it)
of any charges or expenses payable by the holder of a Receipt pursuant to
Section 5.07 (or evidence reasonably satisfactory to the Company that such
charges and expenses have been paid), (ii) the production of evidence
satisfactory to it as to the identity and genuineness of any signature and (iii)
compliance with such regulations, if any, as the Depositary or the Company may
establish not inconsistent with the provisions of this Deposit Agreement.
The deposit of Stock may be refused, the delivery of Receipts against
Stock may be suspended, the registration of transfer of Receipts may be refused
and the registration of transfer, surrender or exchange of outstanding Receipts
may be suspended (i) during any period when the register of stockholders 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 the Deposit Agreement,
or with the approval of the Company, for any other reason.
Without limitation of the foregoing, the Depositary shall not accept
for deposit under this Deposit Agreement any Stock as to which it has actual
knowledge is required to be
-12-
registered under the Securities Act, unless a registration statement under the
Securities Act is in effect as to such Stock; provided, however, the Depositary
-------- -------
shall have no affirmative duty to determine whether any Stock is required to be
registered under the Securities Act or whether the effectiveness of any
registration statement has been suspended.
SECTION 2.09. 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, of the authenticity thereof and of
his or her ownership thereof, (ii) the furnishing of the Depositary with
reasonable indemnification satisfactory to it, and (ii) the payment of a fee of
two percent (2%) of the value of the Depositary Shares represented by such
receipt, however, in no case shall such fee be in excess of $250.
SECTION 2.10. Cancellation and Destruction of Surrendered Receipts.
----------------------------------------------------
All Receipts surrendered to the Depositary or any Depositary's Agent shall be
cancelled by the Depositary. Except as prohibited by applicable law or
regulation, the Depositary is authorized to destroy all Receipts so cancelled.
Any Receipt evidenced in book-entry form shall be deemed cancelled when the
Depositary has caused the amount of Depositary Shares evidenced by the DTC
Receipt to be reduced in proportion to the number of Depositary Shares evidenced
by the surrendered Receipt.
SECTION 2.11. Interchangeability of Book-Entry Receipts and Receipts
------------------------------------------------------
in Physical, Certificated Form. Subject to the terms and conditions of this
------------------------------
Deposit Agreement, upon receipt by the Depositary of written instructions from a
DTC participant on behalf of any person having a beneficial interest in
Depositary Shares evidenced by the DTC Receipt for the purpose of directing the
Depositary to execute and deliver a Receipt in physical, certificated form
evidencing such Depositary Shares, the Depositary shall follow the customary
procedures established by DTC for the purpose of reducing the number of
Depositary Shares evidenced by the DTC Receipt and, following such reduction,
shall execute and deliver to or upon the order of the person or persons named in
such order a Receipt or Receipts registered in the name or names requested by
such person and evidencing in the aggregate the number of Depositary Shares
equal to the reduction in the number evidenced by the DTC Receipt. The
Depositary may require in such written instructions
-13-
any certification or representation as it shall deem necessary to comply with
applicable law.
Subject to the terms and conditions of this Deposit Agreement, upon
receipt by the Depositary of a Receipt or Receipts in physical, certificated
form, duly endorsed or accompanied by appropriate instruments of transfer, in
form satisfactory to the Depositary, including any required certifications, and
together with written instructions directing the Depositary to adjust its
records to reflect an increase in the aggregate amount of Depositary Shares
evidenced by the DTC Receipt (including, without limitation, information
regarding the DTC participant account to be credited with such increase), and
upon payment of the fees and expenses of the Depositary, the Depositary shall
cancel such Receipt or Receipts in physical, certificated form and shall follow
the customary procedures established by DTC for the purpose of reflecting such
increase in the number of Depositary Shares evidenced by the DTC Receipt.
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 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 Receipt or the withdrawal of the Stock represented by the
Depositary Shares evidenced by any Receipt or the distribution of any dividend
or other distribution or the sale of any rights or of the proceeds thereof 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 Receipts shall be obligated to make payments to the Depositary of
certain charges and expenses as provided in Section 5.07, or provide reasonably
satisfactory evidence to the Depositary that such charges and expenses have been
paid. Registration of transfer of any Receipt or any withdrawal of Stock and
all money or other property, if any, represented by the Depositary Shares
evidenced by such Receipt
-14-
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 Stock
or other property represented by the Depositary Shares evidenced by such Receipt
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, interest payments 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 Receipt remaining liable for any deficiency. The Depositary shall
act as the withholding agent for any payments, distributions and exchanges made
with respect to the Depositary Shares and Receipts, and the Stock, Common Stock
or other securities or assets represented thereby (collectively, the
"Securities"). The Depositary shall be responsible with respect to the
Securities for the timely (i) collection and deposit of any required withholding
or backup withholding tax, and (ii) filing of any information returns or other
documents with federal (and other applicable) taxing authorities. In the event
the Depositary is required to pay any such amounts, the Company shall reimburse
the Depositary for payment thereof upon the request of the Depositary and the
Depositary shall, upon the Company's request and as instructed by the Company,
pursue its rights against such holder at the Company's expense.
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.
SECTION 3.04. Warranty as to Receipts. The Depositary hereby
-----------------------
represents and warrants that the Receipts, 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 Stock, 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 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,
-------- -------
-15-
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 then
outstanding.
SECTION 4.02. Distributions Other than Cash, Rights, Preferences or
-----------------------------------------------------
Privileges. Whenever the Depositary shall receive any distribution other than
----------
cash, rights, preferences or privileges upon Stock, the Depositary shall,
subject to Sections 3.01 and 3.02, distribute to Record Holders 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 evidenced by the Receipts held by such holders,
except that the Depositary may not distribute fractional shares of Common Stock
or of any security not issuable in fractional shares. If in the opinion of the
Company such distribution cannot be made proportionately among such Record
Holders, or if for any other reason (including any requirement that the Company
or the Depositary withhold an amount on account of taxes) the Depositary deems,
after consultation with the Company, such distribution not to be feasible, the
Depositary may, at the direction of the Company, adopt such method as the
Company 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.
No fractional shares or Common Stock will be issued upon conversion or
redemption of Depositary Shares or upon payment of stock dividends or
distributions on the Stock; and, if such conversion, redemption, dividend or
distribution would otherwise result in a fractional share of Common Stock being
issued, the Depositary shall sell the total number of shares of Common Stock
that would have been represented by such fractional shares at public sale at
such place or places and upon such terms it deems 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
-16-
4.01 in the case of a distribution received in cash. The amount distributed in
the foregoing cases will be reduced by any amount required to be withheld by the
Company or the Depositary on account of taxes or otherwise required pursuant to
law, regulation or court process.
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 Receipts in such manner as the Company 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
Company in its discretion with the reasonable approval of the Depositary;
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 (after
consultation with the Depositary) 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
Company, in its discretion (with approval of the Depositary; in any case where
the Company 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 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 an opinion of counsel stating that such rights, preferences
or privileges have been registered under the Securities Act or that the offering
and sale of such rights, preferences or privileges are exempt from registration
under the Securities Act.
If registration under the Securities Act of the securities to which
any rights, preferences or privileges relate is required in order for holders of
Receipts to be offered or sold the securities to which such rights, preferences
or privileges relate, the Company agrees with the Depositary that it will
-17-
file promptly a registration statement pursuant to the Securities Act with
respect to such rights, preferences or privileges and securities and use its
commercially reasonable 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 Receipts any right, preference or
privilege to subscribe for or to purchase any securities unless and until such
registration statement shall have become effective, or unless the offering and
sale of such securities to such holders are exempt from registration under the
provisions of the Securities Act.
If any other action under the 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 agrees with the Depositary that the Company will use
its commercially reasonable 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 Receipts. Whenever (i) any cash dividend or other cash distribution
-------------------
shall become payable, any distribution other than cash shall be made, or any
rights, warrants, preferences or privileges shall at any time be offered, with
respect to Stock, or (ii) the Depositary shall receive notice of any meeting at
which holders of Stock are entitled to vote or of which holders of Stock are
entitled to notice or any solicitation of consents in respect of the Stock, or
any call or conversion of any shares of Stock or at any time the Depositary and
the Company shall decide it is appropriate, the Depositary shall in each such
instance fix a record date (which shall be the same date as the record date
fixed by the Company with respect to the Stock) for the determination of the
holders of Receipts who shall be entitled to (a) receive such dividend,
distribution, rights, warrants, preferences or privileges or the net proceeds of
the sale thereof, (b) receive notice of, and give instructions for the exercise
of voting rights at, any such meeting or (c) receive notice of any such call or
conversion, subject to the provisions hereof.
SECTION 4.05. Voting Rights. Upon receipt of notice of any meeting
-------------
at which the holders of Stock are entitled to vote or any solicitation of
consents in respect of Stock, the
-18-
Depositary shall, as soon as practicable thereafter, mail to the record holders
of Receipts a notice which shall contain (i) such information as is contained in
such notice of meeting or consent solicitation and (ii) a statement that the
holders may, subject to any applicable restrictions, instruct the Depositary as
to the exercise of the voting rights pertaining to the amount of Stock
represented by their respective Depositary Shares and a brief statement as to
the manner in which such instructions may be given. Upon the written request of
a holder of a Receipt on the relevant record date, the Depositary shall use its
best efforts to vote or cause to be voted or deliver a consent with respect to
the amount of Stock 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 fraction of a share of
Stock, the Depositary shall aggregate such fraction with all other fractions
resulting from requests with the same voting instructions and shall vote the
number of whole shares resulting from requests with the same voting instructions
and shall vote the number of whole shares resulting from such aggregation in
accordance with the instructions received in such requests. The Company hereby
agrees to take all reasonable 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
Receipt, the Depositary will abstain from voting to the extent of the Stock
represented by the Depositary Shares evidenced by such Receipt.
Holders of Receipts shall also be entitled to vote on certain
amendments to the Deposit Agreement pursuant to Section 6.01 hereof.
SECTION 4.06. Changes Affecting Stock and Reclassifications,
----------------------------------------------
Recapitalizations, etc. Whenever a Transaction occurs the Company may in its
-----------------------
discretion, direct the Depositary to 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 property into which the Stock may be
converted or redeemed for.
Whenever the Mandatory Conversion Rate and Optional Rate are adjusted
by the Company pursuant to Section II(D) of the Certificate, the Company shall
provide a certificate to the Depositary as required by Section III(F) of the
Certificate. Such certificate shall set forth such adjustments, the method of
calculation thereof and the facts requiring such adjustment and upon which such
adjustment is based. The Depositary shall promptly mail notice containing the
foregoing information to each Record Holder.
-19-
Whenever a Transaction occurs, the Company shall provide notice to the
Depositary containing the date on which such Transaction is expected to become
effective, and the date as of which it is expected that holders of Common Stock
of record shall be entitled to exchange their Common Stock for securities or
other property (including cash), if any, deliverable upon such Transaction. The
Depositary shall promptly mail notice containing the foregoing information to
each Record Holder.
SECTION 4.07. Inspection of Reports. The Depository 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, any reports and
communications received from the Company which are received by the Depositary as
the holder of Stock unless at the time of or prior to receipt the Company
advises the Depositary that such reports or communications have not been
generally available to the stockholders.
SECTION 4.08. Lists of Receipt Holders. Promptly upon request from
------------------------
time to time by the Company, the Depositary shall furnish to it a list, as of
recent date, of the names, addresses and holdings of Depositary Shares of all
persons in whose names Receipts are registered on the books of the Depositary.
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 Office, facilities for the
execution and delivery, registration and registration of transfer, surrender and
exchange of Receipts, and at the offices of the Depositary's Agents, if any,
facilities for the delivery, registration of transfer, surrender and exchange of
Receipts, 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 Receipts, and to reflect potential
split-ups and combinations of Depositary Shares, which books at all reasonable
times shall be open for inspection by the Company.
-20-
The Depositary may close each such books only when the register of
stockholders of the Company is closed or as otherwise required by law.
The Depositary may, with the approval of the Company, appoint a
Registrar (which may be the Depositary) for registration of the Receipts or the
Depositary Shares evidenced thereby. If the Receipts or the Depositary Shares
evidenced thereby or the Stock represented by such Depositary Shares shall be
listed on the New York Stock Exchange, the Depositary will 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 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, the Registrar or the Company. None of the
-----------------------------------------------------------------
Depositary, any Depositary's Agent, any Registrar or the Company shall incur any
liability to any holder of any Receipt if by reason of any provision of any
present or future law, or regulation thereunder, of the United States of America
or of any other governmental authority or, in the case of the Depositary, the
Depositary's Agent or the Registrar, by reason of any provision, present or
future, of the Company's Restated Certificate of Incorporation, as amended
(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, the
Depositary's Agent, the Registrar or the Company shall be prevented or forbidden
from, or subjected to any penalty on account of, 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 Receipt (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 the case of any
such exercise or failure to exercise discretion not caused as aforesaid, if
-21-
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,
-------------------------------------------------------
the Registrar and the Company. None of the Depositary, any Depositary's Agent,
-----------------------------
any Registrar or the Company assumes any obligation or shall be subject to any
liability under this Deposit Agreement to holders of Receipts other than for its
gross negligence or willful misconduct.
None of the Depositary, any Depositary's Agent, any Registrar or 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 Common 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.
None of the Depositary, any Depositary's Agent, any Registrar or 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 Receipt 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 made, as long as any such action or non-action is in good faith
or in accordance with the Depositary Agreement. 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 the Depositary's Agents due to its or their gross
negligence, willful misconduct or bad faith. The Depositary, the Depositary's
Agents, and any Registrar may own and deal in any class of securities of the
Company and its affiliates and in Receipts. The Depositary may also act as
transfer agent or registrar of any of the securities of the Company and its
affiliates.
-22-
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 Stock.
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.
None of the Depositary (or its officers, directors, employees or
agents), any Depositary's Agent or the Registrar makes any representation or has
any responsibility as to the validity of the Registration Statement pursuant to
which the Depositary Shares are registered under the Securities Act, the Stock,
the Depositary Shares or the Receipts (except its countersignature thereon), or
any instruments referred to therein or herein, or as to the correctness of any
statement made therein or herein; provided, however, that the Depositary is
-------- -------
responsible for its representations in this Deposit Agreement.
The Depositary assumes no responsibility for the correctness of the
description that appears in the Receipts, which can be taken as a statement of
the Company summarizing certain provisions of this Deposit Agreement.
Notwithstanding any other provision herein or in the Receipts, the Depositary
makes no warranties or representations as to the validity, genuineness or
sufficiency of any Stock at any time deposited with the Depositary hereunder or
of the Depositary Shares, as to the validity or sufficiency of this Deposit
Agreement, as to the value of the Depositary Shares or as to any right, title or
interest of the record holders of Receipts in and to the Depositary Shares,
except that the Depositary hereby represents and warrants as follows: (i) the
Depositary has been duly organized and is validly existing and in good standing
under the laws of the State of [Delaware], with full power, authority and legal
right under such law to execute, deliver and carry out the terms of this Deposit
Agreement; (ii) this Deposit Agreement has been duly authorized, executed and
delivered by the Depositary; and (iii) this Deposit Agreement constitutes a
valid and binding obligation of the Depositary, enforceable against the
Depositary in accordance with its terms.
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.
-23-
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 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. If no successor Depositary shall have been so appointed and have
accepted appointment 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 Receipts. Any successor Depositary shall promptly mail
notice of its appointment to the record holders of Receipts.
Any corporation into or with which the Depositary may be merged,
consolidated or converted shall be the successor of such Depositary without the
execution or filing of any document or any further act, and notice thereof shall
not be required hereunder. 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 record holders of Receipts, in each case at the
addresses furnished to it pursuant to Section 4.08, all notices and reports
(including without limitation financial statements) required by law, by the
rules of any national securities exchange upon which the Stock, the
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Depositary Shares or the Receipts are listed or by the Company's Restated
Certificate of Incorporation, as amended (including the Certificate), to be
furnished by the Company to holders of Stock. Such transmission will be at the
Company's expense.
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
reasonable attorney fees and expenses) which may arise out of (a) acts performed
or omitted in connection with this Deposit Agreement and the Receipts (i) by the
Depositary, any Registrar or any of their respective agents (including any
Depositary's Agent), except for any liability arising out of gross negligence,
willful misconduct or bad faith on the respective parts of any such person or
persons, or (ii) by the Company or any of its agents, or (b) the offer, sale or
registration of the Receipts, the Common Stock 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, the initial
issuance of the Depositary Shares and any redemption or conversion of the Stock
by the Company and all withdrawals of shares of the Stock by owners of
Depositary Shares. All other transfer and other taxes and governmental charges
shall be at the expense of holders of Depositary Shares. The Depositary may
refuse to effect any transfer of a Receipt or any withdrawal of Stock evidenced
thereby until all such taxes and charges with respect to such Receipt or Stock
are paid by the holder thereof. 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 approximate cost of the performance of such
duties. If such duties are subsequently performed at the request of such
holder, such holder will be liable for such charges and expenses. All other
charges and expenses of the Depositary and any Depositary's Agent hereunder and
of any Registrar (including, in each case, fees and expenses of counsel)
incident to the performance of 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.
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ARTICLE VI
Amendment and Termination
-------------------------
SECTION 6.01. Amendment. The form of Receipt evidencing the
---------
Depositary Shares and any provision of the Deposit Agreement may at any time be
amended by agreement between the Company and the Depositary; provided, however,
-------- -------
that no such amendment (other than any change in the fees of any Depositary,
Registrar or Transfer Agent, which shall go into effect not sooner than 90 days
after notice thereof to the holders of the Receipts) which shall materially and
adversely alter the rights of the holders of Depositary Shares (or, which
relates to or affects rights to receive dividends or distributions, or voting or
redemption rights) will be effective unless such amendment has been approved by
the holders of at least two-thirds of the Depositary Shares then outstanding.
In no event may any amendment impair the right of any holder of Receipts,
subject to the conditions specified in the Deposit Agreement, upon such
surrender of the Receipts evidencing such Depositary Shares, to receive Stock or
upon conversion of the Stock represented by the Depositary Receipts, to receive
shares of Common Stock, and in each case any money or other property represented
thereby, except in order to comply with mandatory provisions of applicable law.
SECTION 6.02. Termination. The Deposit Agreement may be terminated
-----------
by the Company or the Depositary only if (i) all outstanding Depositary Shares
have been redeemed or converted, (ii) there has been a final distribution in
respect of the Stock in connection with any liquidation, dissolution or winding
up of the Company and such distribution has been distributed to the holders of
Receipts or (iii) upon consent of holders of Receipts representing not less than
two-thirds of the Depositary Shares then outstanding.
Whenever the Deposit Agreement has been terminated pursuant to clause
(iii) of the preceding paragraph the Depositary will mail notice of such
termination to the record holders of all Receipts then outstanding at least 30
days prior to the date fixed in such notice for such termination. The
Depositary may likewise terminate the Deposit Agreement if at any time 90 days
shall have expired after the Depositary shall have delivered to the Company a
written notice of its election to resign and successor depositary shall not have
been appointed and accepted its appointment. If any Receipts remain outstanding
after the date of termination, the Depositary thereafter will discontinue the
transfer of Receipts, will suspend the distribution of dividends to the holders
thereof, and will not give any further notices (other than notices of such
termination) or
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perform any further acts under the Deposit Agreement except as provided below
and except that the Depositary will continue to (i) collect dividends on the
Stock and any distributions with respect thereto and (ii) deliver the Stock
together with such dividends and distributions and the net proceeds of any sales
of rights, preferences, privileges or other property, without liability for
interest thereon, in exchange for Receipts surrendered. At any time after the
expiration of two years from the date of termination, the Depositary may sell
the Stock then held by it at public or private sales, at such place or places
and upon such terms as it deems proper and may thereafter hold the net proceeds
of any such sale, together with any money and other property then held by it,
without liability or interest thereon, for the pro rata benefit of the holders
of Receipts which have not been surrendered. Subject to applicable escheat laws,
any monies set aside by the Company in respect of any payment with respect to
the Stock represented by the Depositary Shares, or dividends thereon, and
unclaimed at the end of two years from the date upon which such payment is due
and payable shall revert to the general funds of the Company, after which time
the holders of such Depositary Shares shall look only to the general funds of
the Company for the payment thereof.
The Company does not intend to terminate the Deposit Agreement or to
permit the resignation of the Depositary without appointing a successor
depositary. In the event the Deposit Agreement is terminated, the Company will
use all reasonable efforts to have the Stock listed on the New York Stock
Exchange.
Upon the termination of this Deposit Agreement, the Company shall be
discharged from all obligations under this Deposit Agreement except for its
obligations to the Depositary, any Depositary's Agent and any Registrar under
Sections 5.06 and 5.07.
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
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hereto, including the holders of the Receipts, 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, overnight
courier or facsimile confirmed by letter, addressed to the Company at βββ
βββββββββββ βββββββββ, ββ βββββββ, ββββββββββ βββββ, to the attention of βββββββ
βββββββββ, Esq., facsimile number βββ-βββ-ββββ, 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, overnight courier or facsimile confirmed
by letter, addressed to the Depositary at the Depositary's Office at [__________
___________________________________], facsimile number, 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 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, overnight courier or
facsimile confirmed by letter, addressed to such record holder at the address of
such record holder as it appears on the stock register of the Company, or if
such holder shall have filed with the Depositary or the Company 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, by telegram, telex or facsimile
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, telex or
facsimile message received by it from the other or
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from any holder of a Receipt, notwithstanding that such telegram, telex or
facsimile message shall not subsequently be confirmed by letter or 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 and entitled to the benefits of 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 construed in accordance with, the laws of the State of New
York without giving effect to principles of conflict of laws.
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 Receipt.
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 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.
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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.
MATTEL, INC.
By:________________________________
Name:______________________________
Title:_____________________________
[ ], as Depositary
By:________________________________
Name:______________________________
Title:_____________________________
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