Exhibit 4.10
TORCHMARK CORPORATION
and
_________________________________,
As Depositary
and
HOLDERS OF DEPOSITARY RECEIPTS
DEPOSIT AGREEMENT
Dated as of ____________ ___, ___
TABLE OF CONTENTS
ARTICLE I
DEFINITIONS................................. 1
ARTICLE II
FORM OF RECEIPTS, DEPOSIT OF STOCK,
EXECUTION AND DELIVERY, TRANSFER, SURRENDER,
REDEMPTION AND CONVERSION OF RECEIPTS..................... 3
Section 2.01. Form and Transfer of Receipts................................... 3
Section 2.02. Temporary Receipts.............................................. 3
Section 2.03. Deposit of Stock; Execution and Delivery of Receipts
In Respect Thereof.............................................. 4
Section 2.04. Redemption and Conversion of Stock.............................. 4
Section 2.05. Register of Transfer of Receipts................................ 7
Section 2.06. Combination and Split-ups of Receipts........................... 7
Section 2.07. Surrender of Receipts and Withdrawal of Stock................... 7
Section 2.08. Limitations on Execution and Delivery, Transfer, Split-up,
Combination, Surrender and Exchange of Receipts And
Withdrawal or Deposit of Stock.................................. 8
Section 2.09. Lost Receipts, Etc.............................................. 9
Section 2.10. 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 Taxes or Other Governmental Charges.................. 9
Section 3.03. Withholding..................................................... 10
Section 3.04. Representations and Warranties as to Stock...................... 10
ARTICLE IV
THE STOCK, NOTICES.............................. 10
Section 4.01. Cash Distributions.............................................. 10
Section 4.02. Distributions Other than Cash................................... 10
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
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Section 4.06. Changes Affecting Stock and Reclassifications,
Recapitalizations, Etc............................................ 12
Section 4.07. Reports........................................................... 13
Section 4.08. Lists of Receipt Holders.......................................... 13
ARTICLE V
THE DEPOSITARY, THE DEPOSITARY'S AGENTS,
THE REGISTRAR AND THE COMPANY........................... 13
Section 5.01. Maintenance of Offices, Agencies, Transfer Books by
The Depositary; the Registrar..................................... 13
Section 5.02. Prevention or Delay in Performance by the Depositary,
The Depositary's Agents, the Registrar or the Company............. 14
Section 5.03. Obligations of the Depositary, the Depositary's Agents,
The Registrar and the Company..................................... 14
Section 5.04. Resignation and Removal of the Depositary, Appointment of
Successor Depositary.............................................. 16
Section 5.05. Corporate Notices and Reports..................................... 16
Section 5.06. Deposit of Stock by the Company................................... 17
Section 5.07. Indemnification by the Company.................................... 17
Section 5.08. Fees, Charges and Expenses........................................ 17
ARTICLE VI
AMENDMENT AND TERMINATION............................. 17
Section 6.01. Amendment......................................................... 17
Section 6.02. Termination....................................................... 18
ARTICLE VII
MISCELLANEOUS.................................... 19
Section 7.01. Counterparts...................................................... 19
Section 7.02. Exclusive Benefits of Parties..................................... 19
Section 7.03. Invalidity of Provisions.......................................... 19
Section 7.04. Notices........................................................... 19
Section 7.05. Depositary's Agents............................................... 20
Section 7.06. Holders of Receipts Are Parties................................... 20
Section 7.07. Governing Law..................................................... 20
Section 7.08. Headings.......................................................... 20
EXHIBIT A....................................................................... A-1
Parties......................................................................... 1
Recitals........................................................................ 1
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DEPOSIT AGREEMENT
This DEPOSIT AGREEMENT is dated as of ________ ___, ____, by and among
Torchmark Corporation, a Delaware corporation, ___________________________, a
________ banking corporation, as Depositary, and all holders from time to time
of Receipts issued hereunder.
W I T N E S S E T H:
WHEREAS, the Company desires to provide as hereinafter set forth in this
Deposit Agreement, for the deposit of shares of Stock with the Depositary, as
agent for the beneficial owners of the Stock, for the purposes set forth in this
Deposit Agreement and for the issuance hereunder of the Receipts evidencing
Depositary Shares representing an interest in the Stock so deposited; and
WHEREAS, the Receipts are to be substantially in the form annexed as
Exhibit A to this Deposit Agreement, with appropriate insertions, modifications
and omissions, as hereinafter provided in this Deposit Agreement.
NOW, THEREFORE, in consideration of the premises contained herein, it is
agreed by and among the parties hereto as follows:
ARTICLE I
DEFINITIONS
The following definitions shall apply to the respective terms (in the
singular and plural forms of such terms) used in this Deposit Agreement and the
Receipts:
"Certificate of Determination" shall mean the Certificate of Determination
establishing and setting forth the rights, preferences, privileges and
limitations of the Stock.
"Certificate of Incorporation" shall mean the Certificate of Incorporation,
as amended and restated from time to time, of the Company.
"Common Stock" shall mean the Company's common stock.
"Company" shall mean Torchmark Corporation, a Delaware corporation, and its
successors.
"Corporate Office" shall mean the office of the Depositary in __________,
______________ at which at any particular time its business in respect of
matters governed by this Deposit Agreement shall be administered, which at the
date of this Deposit Agreement is located at ______________________.
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"Deposit Agreement" shall mean this agreement, as the same may be amended,
modified or supplemented from time to time.
"Depositary" shall mean _________________________________, as Depositary
hereunder, and any successor as Depositary hereunder.
"Depositary Share" shall mean the rights evidenced by the Receipts executed
and delivered hereunder, including the interests in Stock granted to holders of
Receipts pursuant to the terms and conditions of the Deposit Agreement. Each
Depositary Share shall represent an interest in __________ of a share of Stock
deposited with the Depositary hereunder and the same proportionate interest in
any and all other property received by the Depositary in respect of such share
of Stock and held under this Deposit Agreement. Subject to the terms of this
Deposit Agreement, each record holder of a Receipt evidencing a Depositary Share
or Shares is entitled, proportionately, to all the rights, preferences and
privileges of the Stock represented by such Depositary Share or Shares,
including the dividend, voting and liquidation rights contained in the
Certificate of Determination, and to the benefits of all obligations and duties
of the Company in respect of the Stock under the Certificate of Determination
and the Certificate of Incorporation.
"Depositary's Agent" shall mean an agent appointed by the Depositary as
provided, and for the purposes specified, in Section 7.05.
"New York Office" shall mean the facility maintained by the Depositary in
the Borough of Manhattan, The City of New York, for accepting, executing and
delivering Receipts and other instruments prior to processing such instruments
at the Corporate Office, which facility at the date of this Deposit Agreement is
located at ______________________.
"Receipt" shall mean a Depositary Receipt executed and delivered hereunder,
in substantially the form of Exhibit A hereto, evidencing a Depositary Share or
Depositary Shares, as the same may be amended from time to time in accordance
with the provisions hereof.
"Record Holder" or "Holder" as applied to a Receipt shall mean the person
in whose name a Receipt is registered on the books maintained by or on behalf of
the Depositary for such purpose.
"Registrar" shall mean any bank or trust company appointed to register
ownership and transfers of Receipts as herein provided.
"Securities Act" shall mean the Securities Act of 1933, as amended.
"Stock" shall mean shares of the Company's ___________ Series Preferred
Stock.
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ARTICLE II
FORM OF RECEIPTS, DEPOSIT OF STOCK,
EXECUTION AND DELIVERY, TRANSFER, SURRENDER,
REDEMPTION AND CONVERSION OF RECEIPTS
Section 2.01. Form and Transfer of Receipts. Receipts shall be engraved
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or printed or lithographed on steel-engraved borders 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.
Receipts shall be executed by the Depositary by the manual signature of a duly
authorized signatory of the Depositary; provided, however, that such signature
may be a facsimile if a Registrar (other than the Depositary) shall have
countersigned the Receipts by manual signature of a duly authorized signatory of
the Registrar. No Receipt shall be entitled to any benefits under this Deposit
Agreement or be valid or obligatory for any purpose unless it shall have been
executed as provided in the preceding sentence. The Depositary shall record on
its books each Receipt executed as provided above and delivered as hereinafter
provided. Receipts bearing the facsimile signature of anyone who was at any time
a duly authorized officer of the Depositary shall bind the Depositary,
notwithstanding that such officer has ceased to hold such office prior to the
delivery of such Receipts.
Receipts may be issued in denominations of any number of whole Depositary
Shares. All Receipts shall be dated the date of their execution.
Receipts may be endorsed with or have incorporated in the text thereof such
legends or recitals or changes not inconsistent with the provisions of this
Deposit Agreement as may be required by the Depositary or required to comply
with any applicable law or regulation or with the rules and regulations of any
securities exchange upon which the Stock or the Depositary Shares may be listed
or to conform with any usage with respect thereto, or to indicate any special
limitations or restrictions to which any particular Receipts are subject by
reason of the date of issuance of the Stock or otherwise.
Title to any Receipt (and to the Depositary Shares evidenced by such
Receipt) that is properly endorsed or accompanied by a properly executed
instrument of transfer shall be transferable by delivery with the same effect as
in the case of a negotiable instrument; provided, however, that the Depositary
may, notwithstanding any notice to the contrary, treat the record holder thereof
at such time as the absolute owner thereof for the purpose of determining the
person entitled to distributions of dividends or other distributions or to any
notice provided for in this Deposit Agreement and for all other purposes.
Section 2.02. Temporary Receipts. Pending the preparation of definitive
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Receipts, the Depositary may, upon written order of the Company, issue temporary
Receipts substantially identical to (and entitling the holders thereof to all
the rights pertaining to) the definitive Receipts but not in definitive form.
Definitive Receipts will be prepared thereafter without unreasonable delay, and
such temporary Receipts will be exchangeable for definitive Receipts at the
Company's expense.
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Section 2.03. 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,
---------------
the Company or any holder of Stock may deposit such Stock under this Deposit
Agreement by delivery to the Depositary of a certificate or certificates for the
Stock to be deposited, properly endorsed or accompanied, if required by the
Depositary, by a properly executed instrument of transfer in form satisfactory
to the Depositary, together with (a) all such certifications as may be required
by the Depositary in accordance with the provisions of this Deposit Agreement
and (b) a written order of the Company or such holder, as the case may be,
directing the Depositary to execute and deliver to or upon the written order of
the person or persons stated in such order a Receipt or Receipts for the number
of Depositary Shares representing such deposited Stock.
Upon receipt by the Depositary of a certificate or certificates for Stock
to be deposited hereunder, together with the other documents specified above,
the Depositary shall, as soon as transfer and registration can be accomplished,
present such certificate or certificates to the registrar and transfer agent of
the Stock for transfer and registration in the name of the Depositary or its
nominee of the Stock being deposited. Deposited Stock shall be held by the
Depositary in an account to be established by the Depositary at the Corporate
Office.
Upon receipt by the Depositary of a certificate or certificates for Stock
to be deposited hereunder, together with the other documents specified above,
the Depositary, subject to the terms and conditions of this Deposit Agreement,
shall execute and deliver, to or upon the order of the person or persons named
in the written order delivered to the Depositary referred to in the first
paragraph of this Section 2.03, a Receipt or Receipts for the number of whole
Depositary Shares representing the Stock so deposited and registered in such
name or names as may be requested by such person or persons. The Depositary
shall execute and deliver such Receipt or Receipts at the New York Office,
except that, at the request, risk and expense of any person requesting such
delivery and for the account of such person, such delivery may be made at such
other place as may be designated by such person. In each case, delivery will be
made only upon payment by such person to the Depositary of all taxes and other
governmental charges and any fees payable in connection with such deposit and
the transfer of the deposited Stock.
The Company shall deliver to the Depositary from time to time such
quantities of Receipts as the Depositary may request to enable the Depositary to
perform its obligations under this Deposit Agreement.
Section 2.04. Redemption and Conversion of Stock./1/ Whenever the Company
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shall elect to redeem or be required to convert shares of Stock into shares of
Common Stock in accordance with the Certificate of Determination, it shall
(unless otherwise agreed in writing with the Depositary) give the Depositary in
its capacity as Depositary not less than 5 business days' prior notice of the
proposed date of the mailing of a notice of redemption or conversion of Stock
and the simultaneous redemption or conversion of the Depositary Shares
representing the Stock to be redeemed or converted and of
____________________
/1/ This section to be modified to discuss specific redemption or
conversion terms of the Stock, if any,
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the number of such shares of Stock held by the Depositary to be redeemed or
converted. The Depositary shall, as directed by the Company in writing, mail,
first class postage prepaid, notice of the redemption or conversion of Stock and
the proposed simultaneous redemption or conversion of the Depositary Shares
representing the Stock to be redeemed or converted, not less than 30 days and
not more than 60 days prior to the date fixed for redemption or conversion of
such Stock and Depositary Shares, to the record holders of the Receipts
evidencing the Depositary Shares to be so redeemed or converted, at the
addresses of such holders as the same appear on the records of the Depositary;
provided, that if the effectiveness of a Merger or Consolidation (as defined in
the Certificate of Determination) makes it impracticable to provide at least 30
days' notice, the Depositary shall provide such notice as soon as practicable
prior to such effectiveness. Any such notice shall also be published in the same
manner as notices of redemption or conversion of Stock are required to be
published pursuant to the Certificate of Determination. Notwithstanding the
foregoing, neither failure to mail or publish any such notice to one or more
such holders nor any defect in any notice shall affect the sufficiency of the
proceedings for redemption or conversion. The Company shall provide the
Depositary with such notice, and each such notice shall state: the redemption or
conversion date; the number of Depositary Shares to be redeemed or converted; 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; in the
case of a call for redemption, the call price payable upon redemption and the
Current Market Price (as defined in the Certificate of Determination) to be used
to calculate the number of shares of Common Stock deliverable upon redemption;
whether the Company is exercising any option to deliver shares of Common Stock
in lieu of any cash consideration pursuant to the Certificate of Determination
and the Current Market Price to be used to calculate the number of such shares;
the place or places where Receipts evidencing Depositary Shares to be redeemed
or converted are to be surrendered for redemption or conversion; whether the
Company is depositing with a bank or trust company on or before the redemption
or conversion date, the shares of Common Stock and cash, if any, payable by the
Company and the proposed date of such deposit; the amount of accrued and unpaid
dividends payable per share of Stock to be redeemed or converted to and
including such redemption or conversion date, as the case may be, and that
dividends in respect of the Stock represented by the Depositary Shares to be
redeemed or converted will cease to accrue on such redemption or conversion date
(unless the Company shall default in delivering shares of Common Stock and cash,
if any, at the time and place specified in such notice). On the date of any such
redemption or conversion, the Depositary shall surrender the certificate or
certificates held by the Depositary evidencing the number of shares of Stock to
be redeemed or converted in the manner specified in the notice of redemption or
conversion of Stock provided by the Company pursuant to the Certificate of
Determination. The Depositary shall, thereafter, redeem or convert the number of
Depositary Shares representing such redeemed or converted Stock upon the
surrender of Receipts evidencing such Depositary Shares in the manner provided
in the notice sent to record holders of Receipts; provided, that the Depositary
shall have received, upon surrendering such certificate or certificates as
aforesaid, a sufficient number of shares of Common Stock to convert or redeem
such number of Depositary Shares (including, in the event that the Company
elects pursuant to the Certificate of Determination to exercise any option to
deliver shares of Common Stock in lieu of any cash consideration payable on the
Effective Date (as defined in the Certificate of Determination) of any Merger or
Consolidation, a number of shares of Common Stock equal to such cash
consideration
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(as determined in the manner set forth in the Certificate of Determination)),
plus any accrued and unpaid dividends payable with respect thereto to and
including the date of any such redemption or conversion and any other cash
consideration payable on the Effective Date of a Merger or Consolidation (other
than any dividends or other cash consideration payable on the Effective Date of
a Merger or Consolidation that the Company has elected to pay in shares of
Common Stock pursuant to the Certificate of Determination) as instructed and
calculated by the Company. In case fewer than all the outstanding Depositary
Shares are to be redeemed, the Depositary Shares to be redeemed shall be
selected by the Depositary by lot or on a pro rata basis.
Notice having been mailed by the Depositary as aforesaid, from and after
the redemption or conversion date (unless the Company shall have failed to
redeem or convert the shares of Stock to be redeemed or converted by it upon the
surrender of the certificate or certificates therefor by the Depositary as
described in the preceding paragraph), the Depositary Shares called for
redemption or subject to conversion 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 shares of Common Stock and cash, if any,
payable upon redemption or conversion upon surrender of such Receipts) 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, if the Depositary shall so
require), such Depositary Shares shall be converted into or redeemed for shares
of Common Stock at a rate equal to ______________ of the number of shares of
Common Stock delivered, and the holders thereof shall be entitled to
______________ of the cash, if any, payable, in respect of the shares of Stock
pursuant to the Certificate of Determination. The foregoing shall be subject
further to the terms and conditions of the Certificate of Determination.
If fewer than all of the Depositary Shares evidenced by a Receipt are
called for redemption, the Depositary will deliver to the holder of such Receipt
upon its surrender to the Depositary, together with the shares of Common Stock
and all accrued and unpaid dividends to and including the date fixed for
redemption 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.
To the extent that Depositary Shares are converted into or redeemed for
shares of Common Stock and all of such shares of Common Stock cannot be
distributed to the record holders of Receipts converted or called for redemption
without creating fractional interests in such shares, the Depositary may, with
the consent of the Company, adopt such method as it deems equitable and
practicable for the purpose of effecting such distribution, including the sale
(at public or private sale) of such shares of Common Stock at such place or
places and upon such terms as it may deem proper, and the net proceeds of any
such sale shall, subject to Section 3.02, be distributed or made available for
distribution to such record holders that would otherwise receive fractional
interests in such shares of Common Stock.
The Depositary shall not be required (a) to issue, transfer or exchange any
Receipts for a period beginning at the opening of business 15 days next
preceding any selection of Depositary Shares
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and Stock to be redeemed and ending at the close of business on the day of the
mailing of notice of redemption of Depositary Shares or (b) to transfer or
exchange for another Receipt any Receipt evidencing Depositary Shares called or
being called for redemption, in whole or in part, or subject to conversion
except as provided in the second preceding paragraph of this Section 2.04.
Any funds deposited by the Company with the Depositary for any Depositary
Shares that are not claimed after a period of two years from the date such funds
are so deposited will be returned to the Company.
Section 2.05. Register of Transfer of Receipts. Subject to the terms and
--------------------------------
conditions of this Deposit Agreement, the Depositary shall register on its books
from time to time transfers of Receipts upon any surrender thereof at the
Corporate Office, the New York Office or such other office as the Depositary may
designate for such purpose, by the record holder in person or by a duly
authorized attorney, properly endorsed or accompanied by a properly executed
instrument of transfer, together with evidence of the payment of any transfer
taxes as may be required by law. Upon such surrender, the Depositary shall
execute a new Receipt or Receipts and deliver the same to or upon the order of
the person entitled thereto evidencing the same aggregate number of Depositary
Shares evidenced by the Receipt or Receipts surrendered.
Section 2.06. Combination and Split-ups of Receipts. Upon surrender of a
-------------------------------------
Receipt or Receipts at the Corporate Office, the New York Office or such other
office as the Depositary may designate for the purpose of effecting a split-up
or combination of Receipts, subject to the terms and conditions of this Deposit
Agreement, the Depositary shall execute and deliver a new Receipt or Receipts in
the authorized denominations requested evidencing the same aggregate number of
Depositary Shares evidenced by the Receipt or Receipts surrendered; provided,
however, that the Depositary shall not issue any Receipt evidencing a fractional
Depositary Share.
Section 2.07. Surrender of Receipts and Withdrawal of Stock./2/ Any
---------------------------------------------
holder of a Receipt or Receipts may withdraw any or all of the Stock (but only
in whole shares of Stock) represented by the Depositary Shares evidenced by such
Receipts and all money and other property, if any, represented by such
Depositary Shares by surrendering such Receipt or Receipts at the Corporate
Office, the New York Office or at such other office as the Depositary may
designate for such withdrawals. After such surrender, without unreasonable
delay, the Depositary shall deliver to such holder, or to the person or persons
designated by such holder as hereinafter provided, the whole number of shares of
Stock and all such money and other property, if any, represented by the
Depositary Shares evidenced by the Receipt or Receipts so surrendered for
withdrawal. If the Receipt or Receipts delivered by the holder to the Depositary
in connection with such withdrawal shall evidence a number of Depositary Shares
in excess of the number of whole Depositary Shares representing the whole number
of shares of Stock to be withdrawn, the Depositary shall at the same time, in
addition to such whole number of shares of Stock and such money and other
property, if any, to be withdrawn, deliver to such holder, or (subject to
Section 2.05) upon his order, a new Receipt
_______________
/2/ This section to be modified to reflect any restriction on withdrawal
of underlying securities.
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or Receipts evidencing such excess number of whole Depositary Shares. Delivery
of the Stock and such money and other property being withdrawn may be made by
the delivery of such certificates, documents of title and other instruments as
the Depositary may deem appropriate, which, if required by the Depositary, shall
be properly endorsed or accompanied by proper instruments of transfer.
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 and that the
signature on such instrument of transfer be guaranteed by an eligible guarantor
institution (banks, stockbrokers, savings and loan associations and credit
unions with membership in an approved signature guarantee medallion program)
pursuant to Rule 17Ad-15 of the Securities Exchange Act of 1934, as amended.
The Depositary shall deliver the Stock and the money and other property, if
any, represented by the Depositary Shares evidenced by Receipts surrendered for
withdrawal, without unreasonable delay, at the office at which such Receipts
were surrendered, except that, at the request, risk and expense of the holder
surrendering such Receipt or Receipts and for the account of the holder thereof,
such delivery may be made, without unreasonable delay, at such other place as
may be designated by such holder.
Section 2.08. Limitations on Execution and Delivery, Transfer, Split-up,
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Combination, Surrender and Exchange of Receipts and Withdrawal or Deposit of
----------------------------------------------------------------------------
Stock. As a condition precedent to the execution and delivery, registration of
-----
transfer, split-up, combination, surrender or exchange of any Receipt, the
delivery of any distribution thereon or the withdrawal or deposit of Stock, the
Depositary, any of the Depositary's Agents or the Company may require any or all
of the following: (a) payment to it of a sum sufficient for the payment (or, in
the event that the Depositary or the Company shall have made such payment, the
reimbursement to it) of any tax or other governmental charge with respect
thereto (including any such tax or charge with respect to the Stock being
deposited or withdrawn or with respect to the Common Stock or other securities
or property of the Company being issued upon conversion or redemption); (b)
production of proof satisfactory to it as to the identity and genuineness of any
signature; and (c) compliance with such reasonable regulations, if any, as the
Depositary or the Company may establish not inconsistent with the provisions of
this Deposit Agreement.
The deposit of Stock may be refused, the delivery of Receipts against Stock
or the registration of transfer, split-up, combination, surrender or exchange of
outstanding Receipts and the withdrawal of deposited Stock may be suspended (a)
during any period when the register of shareholders of the Company is closed,
(b) if any such action is deemed necessary or advisable by the Depositary, any
of the Depositary's Agents or the Company at any time or from time to time
because of any requirement of law or of any government or governmental body or
commission, or under any provision of this Deposit Agreement, or (c) with the
approval of the Company, for any other reason.
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Without limitation of the foregoing, the Depositary shall not knowingly accept
for deposit under this Deposit Agreement any shares of Stock that are required
to be registered under the Securities Act unless a registration statement under
the Securities Act is in effect as to such shares of Stock.
Section 2.09. Lost Receipts, Etc. In case any Receipt shall be mutilated
------------------
or destroyed or lost or stolen, the Depositary shall execute and deliver a
Receipt of like form and tenor in exchange and substitution for such mutilated
Receipt or in lieu of and in substitution for such destroyed, lost or stolen
Receipt unless the Depositary has notice that such Receipt has been acquired by
a bona fide purchaser; provided, however, that the holder thereof provides the
Depositary with (a) evidence satisfactory to the Depositary of such destruction,
loss or theft of such Receipt, of the authenticity thereof and of his ownership
thereof, (b) reasonable indemnification satisfactory to the Depositary or the
payment of any charges incurred by the Depositary in obtaining insurance in lieu
of such indemnification and (c) payment of any expense (including fees, charges
and expenses of the Depositary) in connection with such execution and delivery.
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 such Receipts so cancelled.
ARTICLE III
CERTAIN OBLIGATIONS OF HOLDERS
OF RECEIPTS AND THE COMPANY
Section 3.01. Filing Proofs, Certificates and Other Information. Any
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person presenting Stock for deposit or any holder of a Receipt may be required
from time to time to file such proof of residence or other information, to
execute such certificates and to make such representations and warranties as the
Depositary or the Company may reasonably deem necessary or proper. The
Depositary or the Company may withhold or delay the delivery of any Receipt, the
registration of transfer, redemption, conversion or exchange of any Receipt, the
withdrawal of the Stock represented by the Depositary Shares evidenced by any
Receipt or the distribution of any dividend or other distribution until such
proof or other information is filed, such certificates are executed or such
representations and warranties are made.
Section 3.02. Payment of Taxes or Other Governmental Charges. If any tax
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or other governmental charge shall become payable by or on behalf of the
Depositary with respect to (a) any Receipt, (b) the Depositary Shares evidenced
by such Receipt, (c) the Stock (or fractional interest therein) or other
property represented by such Depositary Shares, or (d) any transaction referred
to in Section 4.06, such tax (including transfer, issuance or acquisition taxes,
if any) or governmental charge shall be payable by the holder of such Receipt,
who shall pay the amount thereof to the Depositary. Until such payment is made,
registration of transfer of any Receipt or any split-up or combination thereof
or any withdrawal of the Stock or money or other property, if any, represented
9
by the Depositary Shares evidenced by such Receipt may be refused, any dividend
or other distribution may be withheld and any part or all of the Stock or other
property (including Common Stock received in connection with a conversion or
redemption of Stock) represented by the Depositary Shares evidenced by such
Receipt may be sold for the account of the holder thereof (after attempting by
reasonable means to notify such holder prior to such sale). Any dividend or
other distribution so withheld and the proceeds of any such sale may be applied
to any payment of such tax or other governmental charge, the holder of such
Receipt remaining liable for any deficiency.
Section 3.03. Withholding. The Depositary shall act as the tax
-----------
withholding agent for any payments, distributions and exchanges made with
respect to the Depositary Shares and Receipts, and the Stock, Common Stock or
other securities or assets represented thereby (collectively, the "Securities").
The Depositary shall be responsible with respect to the Securities for the
timely (a) collection and deposit of any required withholding or backup
withholding tax, and (b) filing of any information returns or other documents
with federal (and other applicable) taxing authorities.
Section 3.04. Representations and Warranties as to Stock. In the case of
------------------------------------------
the initial deposit of the Stock, the Company and, in the case of subsequent
deposits thereof, each person so depositing Stock under this Deposit Agreement
shall be deemed thereby to represent and warrant that such Stock and each
certificate therefor are duly issued and that the person making such deposit is
duly authorized to do so. Such representations and warranties shall survive the
deposit of the Stock and the issuance of Receipts therefor.
ARTICLE IV
THE STOCK, NOTICES
Section 4.01. Cash Distributions. Whenever the Depositary shall receive
------------------
any cash dividend or other cash distribution on the Stock, the Depositary shall,
subject to Section 3.02, distribute to record holders of Receipts on the record
date fixed pursuant to Section 4.04 such amounts of such sum as are, as nearly
as practicable, in proportion to the respective numbers of Depositary Shares
evidenced by the Receipts held by such holders; provided, however, that in case
the Company or the Depositary shall be required by law to withhold and does
withhold from any cash dividend or other cash distribution in respect of the
Stock an amount on account of taxes, the amount made available for distribution
or distributed in respect of Depositary Shares shall be reduced accordingly. The
Depositary shall distribute or make available for distribution, as the case may
be, only such amount, however, as can be distributed without attributing to any
owner of Depositary Shares a fraction of one cent and any balance not so
distributable shall be held by the Depositary (without liability for interest
thereon) and shall be added to and be treated as part of the next sum received
by the Depositary for distribution to record holders of Receipts then
outstanding.
Section 4.02. Distributions Other than Cash. Whenever the Depositary shall
-----------------------------
receive any distribution other than cash, rights, preferences or privileges upon
the Stock, the Depositary shall, subject to Section 3.02, distribute to record
holders of Receipts on the record date fixed pursuant to
10
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, in any manner that the
Depositary and the Company may deem equitable and practicable for accomplishing
such distribution. If, in the opinion of the Depositary after consultation with
the Company, such distribution cannot be made proportionately among such record
holders, or if for any other reason (including any tax withholding or securities
law requirement), the Depositary deems, after consultation with the Company,
such distribution not to be feasible, the Depositary may, with the approval of
the Company which approval shall not be unreasonably withheld, adopt such method
as it deems equitable and practicable for the purpose of effecting such
distribution, including the sale (at public or private sale) of the securities
or property thus received, or any part thereof, at such place or places and upon
such terms as it may deem proper. The net proceeds of any such sale shall,
subject to Section 3.02, 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.
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 registered on the books of the Company any rights, preferences or
privileges to subscribe for or to purchase any securities or any rights,
preferences or privileges of any other nature, such rights, preferences or
privileges shall in each such instance be made available by the Depositary to
the record holders of Receipts in such manner as the Company shall instruct
(including by the issue to such record holders of warrants representing such
rights, preferences or privileges); provided, however, that (a) if at the time
of issue or offer of any such rights, preferences or privileges the Company
determines and instructs the Depositary that it is not lawful or feasible to
make such rights, preferences or privileges available to some or all holders of
Receipts (by the issue of warrants or otherwise) or (b) if and to the extent
instructed by holders of Receipts who do not desire to exercise such rights,
preferences or privileges, the Depositary shall then, in each case, and if
applicable laws or the terms of such rights, preferences or privileges so
permit, sell such rights, preferences or privileges of such holders at public or
private sale, at such place or places and upon such terms as it may deem proper.
The net proceeds of any such sale shall be distributed by the Depositary to the
record holders of Receipts entitled thereto as provided by Section 4.01 in the
case of a distribution received in cash.
If registration under the Securities Act of the securities to which any
rights, preferences or privileges relate is required in order for holders of
Receipts to be offered or sold, the Company shall promptly file a registration
statement pursuant to the Securities Act with respect to such securities and use
its best efforts and take all steps available to it to cause such registration
statement to become effective sufficiently in advance of the expiration of such
rights, preferences or privileges to enable such holders to exercise such
rights, preferences or privileges. In no event shall the Depositary make
available to the holders of 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.
11
If any other action under the law of any jurisdiction or any governmental
or administrative authorization, consent or permit is required in order for such
rights, preferences or privileges to be made available to holders of Receipts,
the Company agrees with the Depositary that the Company will use its reasonable
best efforts to take such action or obtain such authorization, consent or permit
sufficiently in advance of the expiration of such rights, preferences or
privileges to enable such holders to exercise such rights, preferences or
privileges.
Section 4.04. Notice of Dividends, Fixing of Record Date for Holders Of
---------------------------------------------------------
Receipts. Whenever (a) any cash dividend or other cash distribution shall become
--------
payable, or any distribution other than cash shall be made, or any rights,
preferences or privileges shall at any time be offered, with respect to the
Stock, or (b) 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 of the mandatory conversion of, or any election on the part of the
Company to call for the redemption of, any shares of Stock, 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 (i) who shall be entitled to receive
such dividend, distribution, rights, preferences or privileges or the net
proceeds of the sale thereof, or (ii) who shall be entitled to give instructions
for the exercise of voting rights at any such meeting or to receive notice of
such meeting or of such conversion or redemption.
Section 4.05. Voting Rights. Upon receipt of notice of any meeting at
-------------
which the holders of Stock are entitled to vote, the Depositary shall, as soon
as practicable thereafter, mail to the record holders of Receipts a notice,
which shall be provided by the Company and which shall contain (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 provision
of law, the Certificate of Incorporation or the Certificate of Determination, to
instruct the Depositary as to the exercise of the voting rights pertaining to
the Stock represented by their respective Depositary Shares and (c) a brief
statement as to the manner in which such instructions may be given. Upon the
written request of a holder of a Receipt on such record date, the Depositary
shall endeavor insofar as practicable to vote or cause to be voted the Stock
represented by the Depositary Shares evidenced by such Receipt in accordance
with the instructions set forth in such request. The Company hereby agrees to
take all reasonable action that may be deemed necessary by the Depositary in
order to enable the Depositary to vote such Stock or cause such Stock to be
voted. In the absence of specific instructions from the holder of a Receipt, the
Depositary will abstain from voting to the extent of the Stock represented by
the Depositary Shares evidenced by such Receipt.
Section 4.06. Changes Affecting Stock and Reclassifications,
----------------------------------------------
Recapitalizations, Etc. Upon any split-up, consolidation or any other
----------------------
reclassification of Stock, or upon any recapitalization, reorganization, merger,
amalgamation or consolidation affecting the Company or to which it is a party
(other than a Merger or Consolidation) or sale of all or substantially all of
the Company's assets, the Depositary shall treat any shares of stock or other
securities or property (including cash) that shall be received by the Depositary
in exchange for or upon conversion of or in respect of the Stock as new
12
deposited property under this Deposit Agreement, and Receipts then outstanding
shall thenceforth represent the proportionate interests of holders thereof in
the new deposited property so received in exchange for or upon conversion or in
respect of such Stock. In any such case the Depositary may, in its discretion,
with the approval of the Company, execute and deliver additional Receipts, or
may call for the surrender of all outstanding Receipts to be exchanged for new
Receipts specifically describing such new deposited property.
Section 4.07. Reports. The Depositary shall make available for inspection
-------
by holders of Receipts at the Corporate Office, the New York 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 received
by the Depositary as the holder of Stock.
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 a recent
date, of the names, addresses and holdings of Depositary Shares of all persons
in whose names Receipts are registered on the books of the Depositary. At the
expense of the Company, the Company shall have the right to inspect transfer and
registration records of the Depositary, any Depositary's Agent or the Registrar,
take copies thereof and require the Depositary, any Depositary's Agent or the
Registrar to supply copies of such portions of such records as the Company may
request.
ARTICLE V
THE DEPOSITARY, THE DEPOSITARY'S AGENTS,
THE REGISTRAR AND THE COMPANY
Section 5.01. Maintenance of Offices, Agencies, Transfer Books by the
-------------------------------------------------------
Depositary; the Registrar. Upon execution of this Deposit Agreement in
-------------------------
accordance with its terms, the Depositary shall maintain (a) at the New York
Office facilities for the execution and delivery, registration, registration of
transfer, surrender and exchange, split-up, combination, redemption and
conversion of Receipts and deposit and withdrawal of Stock and (b) at the
Corporate Office and at the offices of the Depositary's Agents, if any,
facilities for the delivery, registration, registration of transfer, surrender
and exchange, split-up, combination, conversion and redemption of Receipts and
deposit and withdrawal of Stock, all in accordance with the provisions of this
Deposit Agreement.
The Depositary shall keep books at the Corporate Office for the
registration and transfer of Receipts, which books at all reasonable times shall
be open for inspection by the record holders of Receipts; provided that any such
holder requesting to exercise such right shall certify to the Depositary that
such inspection shall be for a proper purpose reasonably related to such
person's interest as a holder of Depositary Shares. The Depositary shall consult
with the Company upon receipt of any request for inspection. The Depositary may
close such books, at any time or from time to time, when deemed necessary by it
in connection with the performance of its duties hereunder.
13
If the Receipts or the Depositary Shares evidenced thereby or the Stock
represented by such Depositary Shares shall be listed on one or more stock
exchanges, the Depositary shall, with the approval of the Company, appoint a
Registrar for registry of such Receipts or Depositary Shares in accordance with
the requirements of such exchange or exchanges. Such Registrar (which may be the
Depositary if so permitted by the requirements of such exchange or exchanges)
may be removed and a substitute registrar appointed by the Depositary upon the
request or with the approval of the Company. In addition, if the Receipts, such
Depositary Shares or such Stock are listed on one or more stock exchanges, the
Depositary will, at the request of the Company, arrange such facilities for the
delivery, registration, registration of transfer, surrender and exchange, split-
up, combination, redemption or conversion of such Receipts, such Depositary
Shares or such Stock as may be required by law or applicable stock exchange
regulations.
Section 5.02. Prevention or Delay in Performance by the Depositary, the
---------------------------------------------------------
Depositary's Agents, the Registrar or the Company. Neither the Depositary nor
-------------------------------------------------
any Depositary's Agent nor the Registrar nor the Company shall incur any
liability to any holder of any Receipt, if by reason of any provision of any
present or future law or regulation thereunder of the United States of America
or of any other governmental authority or, in the case of the Depositary, the
Registrar or any Depositary's Agent, by reason of any provision, present or
future, of the Certificate of Incorporation or the Certificate of Determination
or, in the case of the Company, the Depositary, the Registrar or any
Depositary's Agent, by reason of any act of God or war or other circumstances
beyond the control of the relevant party, the Depositary, any Depositary's
Agent, the Registrar or the Company shall be prevented or forbidden from doing
or performing any act or thing that the terms of this Deposit Agreement provide
shall be done or performed; nor shall the Depositary, any Depositary's Agent,
the Registrar or the Company incur any liability to any holder of a Receipt (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
except, in the case of the Depositary, any Depositary's Agent or the Registrar,
if any such exercise or failure to exercise discretion is caused by its
negligence or bad faith.
Section 5.03. Obligations of the Depositary, the Depositary's Agents, the
-----------------------------------------------------------
Registrar and the Company. The Company assumes no obligation and shall be
-------------------------
subject to no liability under this Deposit Agreement or the Receipts to holders
or other persons, except to perform in good faith such obligations as are
specifically set forth and undertaken by it to perform in this Deposit
Agreement. Each of the Depositary, the Depositary's Agents and the Registrar
assumes no obligation and shall be subject to no liability under this Deposit
Agreement or the Receipts to holders or other persons, except to perform such
obligations as are specifically set forth and undertaken by it to perform in
this Deposit Agreement without negligence or bad faith.
Neither the Depositary nor any Depositary's Agent nor the Registrar nor the
Company shall be under any obligation to appear in, prosecute or defend any
action, suit or other proceeding with respect to Stock, Depositary Shares,
Receipts or Common Stock that in its opinion may involve it
14
in expense or liability, unless indemnity satisfactory to it against all expense
and liability be furnished as often as may be required.
Neither the Depositary nor any Depositary's Agent nor the Registrar nor the
Company shall be liable for any action or any failure to act by it in reliance
upon the advice of or information from legal counsel, accountants, any person
presenting Stock for deposit, any holder of a Receipt or any other person
believed by it in good faith to be competent to give such advice or information.
The Depositary, any Depositary's Agent, the Registrar and the Company may each
rely and shall each be protected in acting upon any written notice, request,
direction or other document believed by it to be genuine and to have been signed
or presented by the proper party or parties.
The Depositary, the Registrar and any Depositary's Agent may own and deal
in any class of securities of the Company and its affiliates and in Receipts or
Depositary Shares. The Depositary may also act as transfer agent or registrar of
any of the securities of the Company and its affiliates.
It is intended that neither the Depositary nor any Depositary's Agent shall
be deemed to be an "issuer" of the Stock, the Depositary Shares, the Receipts or
the Common Stock issued upon conversion or redemption of the Stock under the
federal securities laws or applicable state securities laws, it being expressly
understood and agreed that the Depositary and any Depositary's Agent are acting
only in a ministerial capacity as Depositary for the Stock; provided, however,
that the Depositary agrees to comply with all information reporting and
withholding requirements applicable to it under law or this Deposit Agreement in
its capacity as Depositary.
Neither the Depositary (or its officers, directors, employees or agents)
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 are registered under the Securities Act, the Stock, the Depositary Shares
or any instruments referred to therein or herein, or as to the correctness of
any statement made therein or herein; provided, however, that the Depositary is
responsible for its representations in this Deposit Agreement.
The Depositary assumes no responsibility for the correctness of the
description that appears in the Receipts, which can be taken as a statement of
the Company summarizing certain provisions of this Deposit Agreement.
Notwithstanding any other provision herein or in the Receipts, the Depositary
makes no warranties or representations as to the validity, genuineness or
sufficiency of any Stock at any time deposited with the Depositary 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: (a) the
Depositary has been duly organized and is validly existing and in good standing
under the laws of the State of ____________, with full power, authority and
legal right under such law to execute, deliver and carry out the terms of this
Deposit Agreement; (b) this Deposit Agreement has been duly authorized, executed
and delivered by the Depositary; and (c) this Deposit Agreement constitutes a
valid and binding obligation of the Depositary, enforceable against the
Depositary in accordance with its terms, except as enforcement
15
thereof may be limited by bankruptcy, insolvency, reorganization or other
similar laws affecting enforcement of creditors' rights generally and except as
enforcement thereof is subject to general principles of equity (regardless of
whether enforcement is considered in a proceeding in equity or at law). The
Depositary shall not be accountable for the use or application by the Company of
the Depositary Shares or the Receipts or the proceeds thereof.
Section 5.04. Resignation and Removal of the Depositary; Appointment Of
---------------------------------------------------------
Successor Depositary. The Depositary may at any time resign as Depositary
--------------------
hereunder by written notice via registered mail of its election to do so
delivered to the Company, such resignation to take effect upon the appointment
of a successor depositary and its acceptance of such appointment as hereinafter
provided.
The Depositary may at any time be removed by the Company by written notice
of such removal delivered to the Depositary, such removal to take effect upon
the appointment of a successor depositary and its acceptance of such appointment
as hereinafter provided.
In case at any time the Depositary acting hereunder shall resign or be
removed, the Company shall, within 60 days after the delivery of the notice of
resignation or removal, as the case may be, appoint a successor depositary,
which shall be a bank or trust company, or an affiliate of a bank or trust
company, having its principal office in the United States of America and having
a combined capital and surplus of at least $50,000,000. If a successor
depositary shall not have been appointed in 60 days, the resigning or removed
Depositary may petition a court of competent jurisdiction to appoint a successor
depositary. Every successor depositary shall execute and deliver to its
predecessor and to the Company an instrument in writing accepting its
appointment hereunder, and thereupon such successor depositary, without any
further act or deed, shall become fully vested with all the rights, powers,
duties and obligations of its predecessor and for all purposes shall be the
Depositary under this Deposit Agreement, and such predecessor, upon payment of
all sums due it and on the written request of the Company, shall promptly
execute and deliver an instrument transferring to such successor all rights and
powers of such predecessor hereunder, shall duly assign, transfer and deliver
all rights, title and interest in the Stock and any moneys or property held
hereunder to such successor and shall deliver to such successor a list of the
record holders of all outstanding Receipts. Any successor depositary shall
promptly mail notice of its appointment to the record holders of Receipts.
Any corporation into or with which the Depositary may be merged,
consolidated or converted shall be the successor of such Depositary without the
execution or filing of any document or any further act. Such successor
depositary may execute the Receipts either in the name of the predecessor
depositary or in the name of the successor depositary.
Section 5.05. 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 address
recorded in the Depositary's books, copies of all notices and reports (including
financial statements) required by law, by the rules of any national securities
16
exchange upon which the Stock, the Depositary Shares or the Receipts are listed
or by the Certificate of Incorporation and the Certificate of Determination to
be furnished by the Company to holders of Stock. Such transmission will be at
the Company's expense and the Company will provide the Depositary with such
number of copies of such documents as the Depositary may reasonably request. In
addition, the Depositary will transmit to the record holders of Receipts at the
Company's expense such other documents as may be requested by the Company.
Section 5.06. Deposit of Stock by the Company. The Company agrees with the
-------------------------------
Depositary that neither the Company nor any company controlled by the Company
will at any time deposit any Stock if such Stock is required to be registered
under the provisions of the Securities Act and no registration statement is at
such time in effect as to such Stock.
Section 5.07. Indemnification by the Company. The Company agrees to
------------------------------
indemnify the Depositary, any Depositary's Agent and any Registrar against, and
hold each of them harmless from, any liability, costs and expenses (including
reasonable fees and expenses of counsel) that may arise out of or in connection
with its acting as Depositary, Depositary's Agent or Registrar, respectively,
under this Deposit Agreement and the Receipts, except for any liability arising
out of negligence, bad faith or willful misconduct on the part of any such
person or persons.
Section 5.08. Fees, Charges and Expenses. No fees, charges and expenses of
--------------------------
the Depositary or any Depositary's Agent hereunder or of any Registrar shall be
payable by any person other than the Company, except for any taxes and other
governmental charges and except as provided in this Deposit Agreement. If, at
the request of a holder of a Receipt, the Depositary incurs fees, charges or
expenses for which it is not otherwise liable hereunder, such holder or other
person will be liable for such fees, charges and expenses. All other fees,
charges and expenses of the Depositary and any Depositary's Agent hereunder and
of any Registrar (including, in each case, reasonable fees and expenses of
counsel) incident to the performance of their respective obligations hereunder
will be paid from time to time upon consultation and agreement between the
Depositary and the Company as to the amount and nature of such fees, charges and
expenses.
ARTICLE VI
AMENDMENT AND TERMINATION
Section 6.01. 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
agreement between the Company and the Depositary in any respect that they may
deem necessary or desirable. Any amendment that shall impose or increase any
fees, taxes or charges payable by holders of Receipts (other than taxes and
other governmental charges, fees and other expenses payable by holders pursuant
to the terms hereof or of the Receipts), or that otherwise prejudices any
substantial existing right of holders of Receipts, shall not become effective as
to outstanding Receipts until the expiration of 30 days after notice of such
amendment shall have been mailed to the record holders of outstanding Receipts.
Every holder of an outstanding Receipt at the time any such amendment becomes
effective shall be
17
deemed, by continuing to hold such Receipt, to consent and agree to such
amendment and to be bound by this Deposit Agreement as amended thereby. In no
event shall any amendment impair the right, subject to the provisions of
Sections 2.04, 2.07 and 2.08 and Article III, of any owner of any Depositary
Shares to surrender the Receipt evidencing such Depositary Shares with
instructions to the Depositary to deliver to the holder the Stock and all money
and other property, if any, represented thereby, except in order to comply with
mandatory provisions of applicable law.
Section 6.02. Termination. Whenever so directed by the Company, the
-----------
Depositary will terminate this Deposit Agreement by mailing 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 this 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 a successor depositary shall not have been
appointed and accepted its appointment as provided in Section 5.04. In either
case, on a date not less than 90 days after such notice, the Depositary shall
deliver or make available for delivery to holders of Receipts, upon surrender of
such Receipts evidencing Depositary Shares, such number of whole or fractional
shares of the Stock as are represented by the Depositary Shares.
This Deposit Agreement shall automatically terminate after all outstanding
Depositary Shares have been redeemed or 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
the Receipts.
If any Receipts shall remain outstanding after the date of termination of
this Deposit Agreement, the Depositary thereafter shall discontinue the transfer
of Receipts, shall suspend the distribution of dividends to the holders thereof
and shall not give any further notices (other than notice of such termination)
or perform any further acts under this Deposit Agreement, except as provided
below and that the Depositary shall continue to collect dividends and other
distributions pertaining to Stock, shall sell rights, preferences or privileges
as provided in this Deposit Agreement and shall continue to deliver the Stock
and any money and other property represented by Receipts, without liability for
interest thereon, upon surrender thereof by the holders thereof. At any time
after the expiration of two years from the date of termination, the Depositary
may sell Stock then held hereunder at public or private sale, at such places and
upon such terms as it deems proper and may thereafter hold in a segregated
account the net proceeds of any such sale, together with any money and other
property held by it hereunder, without liability for interest, for the benefit,
pro rata in accordance with their holdings, of the holders of Receipts that have
not heretofore been surrendered. After making such sale, the Depositary shall be
discharged from all obligations under this Deposit Agreement except to account
for such net proceeds and money and other property. Upon the termination of this
Deposit Agreement, the Company shall be discharged from all obligations under
this Deposit Agreement except for its obligations to the Depositary, any
Depositary's Agent and any Registrar under Sections 5.07 and 5.08.
ARTICLE VII
18
MISCELLANEOUS
Section 7.01. Counterparts. This Deposit Agreement may be executed by the
------------
Company and the Depositary in separate counterparts, each of which counterparts,
when so executed and delivered, shall be deemed an original, but all such
counterparts taken together shall constitute one and the same instrument.
Delivery of an executed counterpart of a signature page to this Deposit
Agreement by telecopier shall be effective as delivery of a manually executed
counterpart of this Deposit Agreement. Copies of this Deposit Agreement shall be
filed with the Depositary and the Depositary's Agents and shall be open to
inspection during business hours at the Corporate Office and the New York Office
and the respective offices of the Depositary's Agents, if any, by any holder of
a Receipt.
Section 7.02. Exclusive Benefits of Parties. This Deposit Agreement is
-----------------------------
for the exclusive benefit of the parties hereto, and their respective successors
hereunder, and shall not be deemed to give any legal or equitable right, remedy
or claim to any other person whatsoever.
Section 7.03. 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 notices to be given to the Company hereunder
-------
or under the Receipts shall be in writing and shall be deemed to have been duly
given if personally delivered or sent by mail, or by telegram or telex or
telecopier confirmed by letter, addressed to the Company at ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇, Attention: General Counsel, or at any other
place to which the Company may have transferred its principal executive office.
Any notices to be given to the Depositary hereunder or under the Receipts
shall be in writing and shall be deemed to have been duly given if personally
delivered or sent by mail, or by telegram or telex or telecopier confirmed by
letter, addressed to the Depositary at the Corporate Office.
Any notices given to any record holder of a Receipt hereunder or under the
Receipts shall be in writing and shall be deemed to have been duly given if
personally delivered or sent by mail, or by telegram or telex or telecopier
confirmed by letter, addressed to such record holder at the address of such
record holder as it appears on the books of the Depositary or, if such holder
shall have filed with the Depositary a written request that notices intended for
such holder be mailed to some other address, at the address designated in such
request.
Delivery of a notice sent by mail, or by telegram or telex or telecopier
shall be deemed to be effected at the time when a duly addressed letter
containing the same (or a duly addressed letter confirming an earlier notice in
the case of a telegram or telex or telecopier message) is deposited, postage
prepaid, in a post office letter box. The Depositary or the Company may,
however, act upon any telegram or telex or telecopier message received by it
from the other or from any holder of a
19
Receipt, notwithstanding that such telegram or telex or telecopier message shall
not subsequently be confirmed by letter as aforesaid.
Section 7.05. Depositary's Agents. The Depositary may, with the approval
-------------------
of the Company which approval shall not be unreasonably withheld, from time to
time appoint one or more Depositary's Agents to act in any respect for the
Depositary for the purposes of this Deposit Agreement and may vary or terminate
the appointment of such Depositary's Agents.
Section 7.06. Holders of Receipts Are Parties. Notwithstanding that
-------------------------------
holders of Receipts have not executed and delivered this Deposit Agreement or
any counterpart thereof, the holders of Receipts from time to time shall be
deemed to be parties to this Deposit Agreement and shall be bound by all of the
terms and conditions, and be entitled to all of the benefits, hereof and of the
Receipts by acceptance of delivery of Receipts.
Section 7.07. 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 LAW OF THE STATE OF NEW YORK,
INCLUDING, WITHOUT LIMITATION, SECTION 5-1401 OF THE NEW YORK GENERAL
OBLIGATIONS LAW.
Section 7.08. Headings. The headings of articles and sections in this
--------
Deposit Agreement and in the form of the Receipt set forth in Exhibit A hereto
have been inserted for convenience only and are not to be regarded as a part of
this Deposit Agreement or to have any bearing upon the meaning or interpretation
of any provision contained herein or in the Receipts.
20
IN WITNESS WHEREOF, Torchmark Corporation and ________________ have duly
executed this Deposit Agreement as of the day and year first above set forth and
all holders of Receipts shall become parties hereto by and upon acceptance by
them of delivery of Receipts issued in accordance with the terms hereof.
TORCHMARK CORPORATION
Attest:
By:___________________________ By:___________________________
Name:
Title:
Attest:
By:___________________________ By:___________________________
Name:
Title:
21
EXHIBIT A
DEPOSITARY RECEIPT
FOR
DEPOSITARY SHARES
EACH REPRESENTING ______________ OF A SHARE OF
_______________ SERIES PREFERRED
STOCK
OF
TORCHMARK CORPORATION
(Incorporated under the Laws of the State of Delaware)
No._____________
_________________________________ (the "Depositary") hereby certifies that
____________ is the registered owner of ___________ Depositary Shares (the
"Depositary Shares"), each Depositary Share representing _____________ of a
share of ____________________________ Preferred Stock (the "Stock"), of
Torchmark Corporation, a corporation duly organized and existing under the laws
of the State of Delaware (the "Company"), and the same proportionate interest in
any and all other property received by the Depositary in respect of such shares
of Stock and held by the Depositary under the Deposit Agreement (as defined
below). Subject to the terms of the Deposit Agreement, each owner of a
Depositary Share is entitled, proportionately, to all the rights, preferences
and privileges of the Stock represented thereby, including the dividend, voting,
liquidation and other rights contained in the Certificate of Determination
establishing the rights, preferences, privileges and limitations of the Stock
(the "Certificate of Determination"), copies of which are on file at the office
of the Depositary at which at any particular time its business in respect of
matters governed by the Deposit Agreement shall be administered, which at the
time of the execution of the Deposit Agreement is located at ________________,
______________, ____ ______ (the "Corporate Office").
This Depositary Receipt ("Receipt") shall not be entitled to any benefits
under the Deposit Agreement or be valid or obligatory for any purpose unless
this Receipt shall have been executed manually or, if a Registrar for the
Receipts (other than the Depositary) shall have been appointed, by facsimile by
the Depositary by the signature of a duly authorized signatory and, if executed
by facsimile signature of the Depositary, shall have been countersigned manually
by such Registrar by the signature of a duly authorized signatory.
THE DEPOSITARY IS NOT RESPONSIBLE FOR THE VALIDITY OF ANY DEPOSITED STOCK.
THE DEPOSITARY ASSUMES NO RESPONSIBILITY FOR THE CORRECTNESS OF THE DESCRIPTION
SET FORTH IN THIS RECEIPT, WHICH CAN BE TAKEN AS A STATEMENT OF THE COMPANY
SUMMARIZING CERTAIN
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PROVISIONS OF THE DEPOSIT AGREEMENT. UNLESS EXPRESSLY SET FORTH IN THE DEPOSIT
AGREEMENT, THE DEPOSITARY MAKES NO WARRANTIES OR REPRESENTATIONS AS TO THE
VALIDITY, GENUINENESS OR SUFFICIENCY OF ANY STOCK AT ANY TIME DEPOSITED WITH THE
DEPOSITARY UNDER THE DEPOSIT AGREEMENT OR OF THE DEPOSITARY SHARES, AS TO THE
VALIDITY OR SUFFICIENCY OF THE DEPOSIT AGREEMENT, AS TO THE VALUE OF THE
DEPOSITARY SHARES OR AS TO ANY RIGHT, TITLE OR INTEREST OF THE RECORD HOLDERS OF
THE DEPOSITARY RECEIPTS IN AND TO THE DEPOSITARY SHARES.
The Company will furnish to any holder of this Receipt without charge, upon
request addressed to its executive office, a full statement of the designations,
relative rights, preferences and limitations of the shares of each authorized
class, and of each class of preferred stock authorized to be issued, so far as
the same may have been fixed, and a statement of the authority of the Board of
Directors of the Company to designate and fix the relative rights, preferences
and limitations of other classes.
This Receipt is continued on the reverse hereof and the additional
provisions therein set forth for all purposes have the same effect as if set
forth at this place.
Dated:
____________________________,
as Depositary and Registrar
By:_________________________
Authorized Signatory
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[FORM OF REVERSE
OF DEPOSITARY RECEIPT]
1. THE DEPOSIT AGREEMENT. Depositary Receipts (the "Receipts"), of which
this Receipt is one, are made available upon the terms and conditions set forth
in the Deposit Agreement, dated as of _________ ____, _____ (the "Deposit
Agreement"), among the Company, the Depositary and all holders from time to time
of Receipts. The Deposit Agreement (copies of which are on file at the Corporate
Office, the office maintained by the Depositary in the Borough of Manhattan, The
City of New York, which at the time of the execution of the Deposit Agreement is
located at ________________________ (the "New York Office") and at the office of
any agent of the Depositary) sets forth the rights of holders of Receipts and
the rights and duties of the Depositary. The statements made on the face and the
reverse of this Receipt are summaries of certain provisions of the Deposit
Agreement and are subject to the detailed provisions thereof, to which reference
is hereby made. In the event of any conflict between the provisions of this
Receipt and the provisions of the Deposit Agreement, the provisions of the
Deposit Agreement will govern.
2. DEFINITIONS. Unless otherwise expressly herein provided, all defined
terms used herein shall have the meanings ascribed thereto in the Deposit
Agreement.
3. REDEMPTION AND CONVERSION OF STOCK./3/ Whenever the Company shall
elect to redeem or be required to convert shares of Stock into shares of Common
Stock in accordance with the Certificate of Determination, it shall (unless
otherwise agreed in writing with the Depositary) give the Depositary in its
capacity as Depositary not less than 5 business days' prior notice of the
proposed date of the mailing of a notice of redemption or conversion of Stock
and the simultaneous redemption or conversion of the Depositary Shares
representing the Stock to be redeemed or converted and of the number of such
shares of Stock held by the Depositary to be redeemed or converted. The
Depositary shall, as directed by the Company in writing, mail, first class
postage prepaid, notice of the redemption or conversion of Stock and the
proposed simultaneous redemption or conversion of Depositary Shares representing
the Stock to be redeemed or converted, not less than 30 and not more than 60
days prior to the date fixed for redemption or conversion of such Stock and
Depositary Shares, to the record holders of the Receipts evidencing the
Depositary Shares to be so redeemed or converted, at the addresses of such
holders as the same appear on the records of the Depositary; provided, that if
the effectiveness of a Merger or Consolidation (as defined in the Certificate of
Determination) makes it impracticable to provide at least 30 days' notice, the
Depositary shall provide such notice as soon as practicable prior to such
effectiveness. Any such notice shall also be published in the same manner as
notices of redemption or conversion of the Stock are required to be published
pursuant to the Certificate of Determination. On the date of any such redemption
or conversion, the Depositary shall surrender the certificate or certificates
held by the Depositary evidencing the number of shares of Stock to be redeemed
or converted in the manner specified in the notice of redemption or conversion
of Stock provided by the Company pursuant to the Certificate of Determination.
The Depositary shall, thereafter, redeem or convert the number of Depositary
_______________
/3/ This section to be modified to discuss specific redemption or
conversion terms of the Stock, if any.
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Shares representing such redeemed or converted Stock upon the surrender of
Receipts evidencing such Depositary Shares in the manner provided in the notice
sent to record holders of Receipts; provided, that the Depositary shall have
received, upon surrendering such certificate or certificates as aforesaid, a
sufficient number of shares of Common Stock to convert or redeem such number of
Depositary Shares (including, in the event that the Company elects pursuant to
the Certificate of Determination to exercise any option to deliver shares of
Common Stock in lieu of any cash consideration payable on the Effective Date (as
defined in the Certificate of Determination) of any Merger or Consolidation, a
number of shares of Common Stock equal to such cash consideration (as determined
in the manner set forth in the Certificate of Determination)), plus any accrued
and unpaid dividends payable with respect thereto to and including the date of
any such redemption or conversion and any other cash consideration payable on
the Effective Date of a Merger or Consolidation (other than any dividends or
other cash consideration payable on the Effective Date of a Merger or
Consolidation that the Company has elected to pay in shares of Common Stock
pursuant to the Certificate of Determination). In case fewer than all the
outstanding Depositary Shares are to be redeemed, the Depositary Shares to be
redeemed shall be selected by the Depositary by lot or on a pro rata basis.
Notice having been mailed and published as aforesaid, from and after the
redemption or conversion date (unless the Company shall have failed to redeem or
convert the shares of Stock to be redeemed or converted by it upon the surrender
of the certificate or certificates therefor by the Depositary as described
above), the Depositary Shares called for redemption or subject to conversion
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
shares of Common Stock and cash, if any, payable upon redemption or conversion
upon surrender of such Receipts) 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, if the Depositary shall so require), such Depositary Shares shall be
converted into or redeemed for shares of Common Stock at a rate equal to
______________ of the number of shares of Common Stock delivered, and the
holders thereof shall be entitled to ______________ of the cash, if any,
payable, in respect of the shares of Stock pursuant to the Certificate of
Determination. The foregoing is subject further to the terms and conditions of
the Certificate of Determination. If fewer than all of the Depositary Shares
evidenced by this Receipt are called for redemption, the Depositary will deliver
to the holder of this Receipt upon its surrender to the Depositary, together
with shares of Common Stock and all accrued and unpaid dividends to and
including the date fixed for redemption 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.
4. SURRENDER OF RECEIPTS AND WITHDRAWAL OF STOCK. Upon surrender of this
Receipt to the Depositary at the Corporate Office, the New York Office or at
such other offices as the Depositary may designate, and subject to the
provisions of the Deposit Agreement, the holder hereof is entitled to withdraw,
and to obtain delivery, without unreasonable delay, to or upon the order of such
holder, any or all of the Stock (but only in whole shares of Stock) and all
money and other property, if any, at the time represented by the Depositary
Shares evidenced by this Receipt;
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provided, however, that, in the event this Receipt shall evidence a number of
Depositary Shares in excess of the number of Depositary Shares representing the
whole number of shares of Stock to be withdrawn, the Depositary shall, in
addition to such whole number of shares of Stock and such money and other
property, if any, to be withdrawn, deliver, to or upon the order of such holder,
a new Receipt or Receipts evidencing such excess number of whole Depositary
Shares.
5. TRANSFERS, SPLIT-UPS, COMBINATIONS. Subject to Paragraphs 6, 7 and 8
below, this Receipt is transferable on the books of the Depositary upon
surrender of this Receipt to the Depositary at the Corporate Office or the New
York Office, or at such other offices as the Depositary may designate, properly
endorsed or accompanied by a properly executed instrument of transfer, and upon
such transfer the Depositary shall sign and deliver a Receipt or Receipts to or
upon the order of the person entitled thereto, all as provided in and subject to
the Deposit Agreement. This Receipt may be split into other Receipts or combined
with other Receipts into one Receipt evidencing the same aggregate number of
Depositary Shares evidenced by the Receipt or Receipts surrendered; provided,
however, that the Depositary shall not issue any Receipt evidencing a fractional
Depositary Share.
6. CONDITIONS TO SIGNING AND DELIVERY, TRANSFER, ETC., OF RECEIPTS. Prior
to the execution and delivery, registration of transfer, split-up, combination,
surrender or exchange of this Receipt, the delivery of any distribution hereon
or the withdrawal or deposit of Stock, the Depositary, any of the Depositary's
Agents or the Company may require any or all of the following: (a) payment to it
of a sum sufficient for the payment (or, in the event that the Depositary or the
Company shall have made such payment, the reimbursement to it) of any tax or
other governmental charge with respect thereto (including any such tax or charge
with respect to Stock being deposited or withdrawn or with respect to Common
Stock or other securities or property of the Company being issued upon
conversion or redemption); (b) production of proof satisfactory to it as to the
identity and genuineness of any signature; and (c) compliance with such
reasonable regulations, if any, as the Depositary or the Company may establish
not inconsistent with the Deposit Agreement. Any person presenting Stock for
deposit, or any holder of this Receipt, may be required to file such proof of
information, to execute such certificates and to make such representations and
warranties as the Depositary or the Company may reasonably deem necessary or
proper. The Depositary or the Company may withhold or delay the delivery of this
Receipt, the registration of transfer, redemption, conversion or exchange of
this Receipt, the withdrawal of the Stock represented by the Depositary Shares
evidenced by this Receipt or the distribution of any dividend or other
distribution until such proof or other information is filed, such certificates
are executed or such representations and warranties are made.
7. SUSPENSION OF DELIVERY, TRANSFER, ETC. The deposit of Stock may be
refused and the delivery of this Receipt against Stock or the registration of
transfer, split-up, combination, surrender or exchange of this Receipt and the
withdrawal of deposited Stock may be suspended (a) during any period when the
register of shareholders of the Company is closed, (b) 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
A-5
government or governmental body or commission, or under any provision of the
Deposit Agreement, or (c) with the approval of the Company, for any other
reason. The Depositary shall not be required (x) to issue, transfer or exchange
any Receipts for a period beginning at the opening of business 15 days next
preceding any selection of Depositary Shares and Stock to be redeemed and ending
at the close of business on the day of the mailing of notice of redemption of
Depositary Shares or (y) to transfer or exchange for another Receipt any Receipt
evidencing Depositary Shares called or being called for redemption, in whole or
in part, or subject to conversion except as provided in the last sentence of
Paragraph 3.
8. PAYMENT OF TAXES OR OTHER GOVERNMENTAL CHARGES. If any tax or other
governmental charge shall become payable by or on behalf of the Depositary with
respect to (a) this Receipt, (b) the Depositary Shares evidenced by this
Receipt, (c) the Stock (or fractional interest therein) or other property
represented by such Depositary Shares, or (d) any transaction referred to in
Section 4.06 of the Deposit Agreement, such tax (including transfer, issuance or
acquisition taxes, if any) or governmental charge shall be payable by the holder
of this Receipt, who shall pay the amount thereof to the Depositary. Until such
payment is made, registration of transfer of this Receipt or any split-up or
combination hereof or any withdrawal of the Stock or money or other property, if
any, represented by the Depositary Shares evidenced by this Receipt may be
refused, any dividend or other distribution may be withheld and any part or all
of the Stock or other property (including Common Stock received in connection
with a conversion or redemption of Stock) represented by the Depositary Shares
evidenced by this Receipt may be sold for the account of the holder hereof
(after attempting by reasonable means to notify such holder prior to such sale).
Any dividend or other distribution so withheld and the proceeds of any such sale
may be applied to any payment of such tax or other governmental charge, the
holder of this Receipt remaining liable for any deficiency.
9. AMENDMENT. The form of the Receipts and any provision of the Deposit
Agreement may at any time and from time to time be amended by agreement between
the Company and the Depositary in any respect that they may deem necessary or
desirable. Any amendment that shall impose or increase any fees, taxes or
charges payable by holders of Receipts (other than taxes and other governmental
charges, fees and other expenses payable by holders as provided herein or in the
Deposit Agreement), or that shall otherwise prejudice any substantial existing
right of holders of Receipts, shall not become effective as to outstanding
Receipts until the expiration of 30 days after such notice of such amendment
shall have been given to the record holders of outstanding Receipts. The holder
of this Receipt at the time any such amendment becomes effective shall be
deemed, by continuing to hold this Receipt, to consent and agree to such
amendment and to be bound by the Deposit Agreement as amended thereby. In no
event shall any amendment impair the right, subject to the provisions of
Paragraphs 3, 4, 6, 7 and 8 hereof and of Sections 2.04, 2.07 and 2.08 and
Article III of the Deposit Agreement, of the owner of the Depositary Shares
evidenced by this Receipt to surrender this Receipt with instructions to the
Depositary to deliver to the holder the Stock and all money and other property,
if any, represented thereby, except in order to comply with mandatory provisions
of applicable law.
A-6
10. FEES, CHARGES AND EXPENSES. The Company will pay all fees, charges and
expenses of the Depositary, except for taxes (including transfer taxes, if any)
and other governmental charges and such charges as are expressly provided in the
Deposit Agreement to be at the expense of persons depositing Stock, holders of
Receipts or other persons.
11. TITLE TO RECEIPTS. It is a condition of this Receipt, and every
successive holder hereof by accepting or holding the same consents and agrees,
that title to this Receipt (and to the Depositary Shares evidenced hereby), when
properly endorsed or accompanied by a properly executed instrument of transfer,
is transferable by delivery with the same effect as in the case of a negotiable
instrument; provided, however, that the Depositary may, notwithstanding any
notice to the contrary, treat the record holder hereof at such time as the
absolute owner hereof for the purpose of determining the person entitled to
distribution of dividends or other distributions or to any notice provided for
in the Deposit Agreement and for all other purposes.
12. DIVIDENDS AND DISTRIBUTIONS. Whenever the Depositary shall receive any
cash dividend or other cash distribution on the Stock, the Depositary shall,
subject to the provisions of the Deposit Agreement, distribute to record holders
of Receipts such amounts of such sums as are, as nearly as practicable, in
proportion to the respective numbers of Depositary Shares evidenced by the
Receipts held by such holders; provided, however, that in case the Company or
the Depositary shall be required by law to withhold and does withhold from any
cash dividend or other cash distribution in respect of the Stock an amount on
account of taxes, the amount made available for distribution or distributed in
respect of Depositary Shares shall be reduced accordingly. The Depositary shall
distribute or make available for distribution, as the case may be, only such
amount, however, as can be distributed without attributing to any owner of
Depositary Shares a fraction of one cent and any balance not so distributable
shall be held by the Depositary (without liability for interest thereon) and
shall be added to and be treated as part of the next sum received by the
Depositary for distribution to record holders of Receipts then outstanding.
13. SUBSCRIPTION RIGHTS, PREFERENCES OR PRIVILEGES. If the Company shall
at any time offer or cause to be offered to the persons in whose name Stock is
registered on the books of the Company any rights, preferences or privileges to
subscribe for or to purchase any securities or any rights, preferences or
privileges of any other nature, such rights, preferences or privileges shall in
each such instance, subject to the provisions of the Deposit Agreement, be made
available by the Depositary to the record holders of Receipts in such manner as
the Company shall instruct.
14. NOTICE OF DIVIDENDS, FIXING OF RECORD DATE. Whenever (a) any cash
dividend or other cash distribution shall become payable, or any distribution
other than cash shall be made, or any rights, preferences or privileges shall at
any time be offered, with respect to the Stock, or (b) 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 of the mandatory conversion
of, or any election on the part of the Company to call for redemption of, any
shares of Stock, the Depositary shall in each such instance fix a record date
(which shall be the same date as the record date fixed by the
A-7
Company with respect to the Stock) for the determination of the holders of
Receipts (i) who shall be entitled to receive such dividend, distribution,
rights, preferences or privileges or the net proceeds of the sale thereof, or
(ii) who shall be entitled to give instructions for the exercise of voting
rights at any such meeting or of such meeting or to receive notice of such
conversion or redemption.
15. VOTING RIGHTS. Upon receipt of notice of any meeting at which the
holders of Stock are entitled to vote, the Depositary shall, as soon as
practicable thereafter, mail to the record holders of Receipts a notice, which
shall contain (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 determined as provided in Paragraph 14 will be entitled,
subject to any applicable provision of law, the Certificate of Incorporation or
the Certificate of Determination, to instruct the Depositary as to the exercise
of the voting rights pertaining to the Stock represented by their respective
Depositary Shares, and (c) a brief statement as to the manner in which such
instructions may be given. Upon the written request of a holder of this Receipt
on such record date the Depositary shall endeavor insofar as practicable to vote
or cause to be voted the Stock represented by the Depositary Shares evidenced by
this Receipt in accordance with the instructions set forth in such request. The
Company hereby agrees to take all reasonable action that may be deemed necessary
by the Depositary in order to enable the Depositary to vote such Stock or cause
such Stock to be voted. In the absence of specific instructions from the holder
of this Receipt, the Depositary will abstain from voting to the extent of the
Stock represented by the Depositary Shares evidenced by this Receipt.
16. REPORTS, INSPECTION OF TRANSFER BOOKS. The Depositary shall make
available for inspection by holders of Receipts at the Corporate Office, the New
York 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 received by the Depositary as the holder of Stock. The
Depositary shall keep books at the Corporate Office for the registration and
transfer of Receipts, which books at all reasonable times will be open for
inspection by the record holders of Receipts; provided that any such holder
requesting to exercise such right shall certify to the Depositary that such
inspection shall be for a proper purpose reasonably related to such person's
interest as an owner of Depositary Shares.
17. LIABILITY OF THE DEPOSITARY, THE DEPOSITARY'S AGENTS, THE REGISTRAR
AND THE COMPANY. Neither the Depositary nor any Depositary's Agent nor the
Registrar nor the Company shall incur any liability to any holder of this
Receipt, if by reason of any provision of any present or future law or
regulation thereunder of any governmental authority or, in the case of the
Depositary, the Registrar or any Depositary's Agent, by reason of any provision
present or future, of the Certificate of Incorporation or the Certificate of
Determination or, in the case of the Company, the Depositary, the Registrar or
any Depositary's Agent, by reason of any act of God or war or other
circumstances beyond the control of the relevant party, the Depositary, any
Depositary's Agent, the Registrar or the Company shall be prevented or forbidden
from doing or performing any act or thing that the terms of the Deposit
Agreement provide shall be done or performed; nor shall the Depositary, any
Depositary's Agent, the Registrar or the Company incur any liability to any
holder of this Receipt (a) by reason of any nonperformance or delay, caused as
A-8
aforesaid, in the performance of any act or thing that the terms of the Deposit
Agreement provide shall or may be done or performed, or (b) by reason of any
exercise of, or failure to exercise, any discretion provided for in the Deposit
Agreement except, in the case of the Depositary, any Depositary's Agent or the
Registrar, if such exercise or failure to exercise discretion is caused by its
negligence or bad faith.
18. OBLIGATIONS OF THE DEPOSITARY, THE DEPOSITARY'S AGENTS, THE REGISTRAR
AND THE COMPANY. The Company assumes no obligation and shall be subject to no
liability under the Deposit Agreement or this Receipt to the holder hereof or
other persons, except to perform in good faith such obligations as are
specifically set forth and undertaken by it to perform in the Deposit Agreement.
Each of the Depositary, the Depositary's Agents and the Registrar assumes no
obligation and shall be subject to no liability under the Deposit Agreement or
this Receipt to the holder hereof or other persons, except to perform such
obligations as are specifically set forth and undertaken by it to perform in the
Deposit Agreement without negligence or bad faith.
Neither the Depositary nor any Depositary's Agent nor the Registrar nor the
Company shall be under any obligation to appear in, prosecute or defend any
action, suit or other proceeding with respect to Stock, Depositary Shares or
Receipts or Common Stock that in its opinion may involve it in expense or
liability, unless indemnity satisfactory to it against all expense and liability
be furnished as often as may be required.
Neither the Depositary nor any Depositary's Agent nor the Registrar nor the
Company will be liable for any action or failure to act by it in reliance upon
the advice of or information from legal counsel, accountants, any person
presenting Stock for deposit, any holder of this Receipt or any other person
believed by it in good faith to be competent to give such advice or information.
19. TERMINATION OF DEPOSIT AGREEMENT. Whenever so directed by the Company,
the Depositary will terminate the Deposit Agreement by mailing 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 a successor depositary shall not have been
appointed and accepted its appointment as provided in Section 5.04 of the
Deposit Agreement. In either case, on a date not less than 90 days after such
notice, the Depositary shall deliver or make available for delivery to holders
of Receipts, upon surrender of the such Receipts evidencing Depositary Shares,
such number of whole or fractional shares of the Stock as are represented by the
Depositary Shares.
The Deposit Agreement shall automatically terminate after all outstanding
Depositary Shares have been redeemed or 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
the Receipts.
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Upon the termination of the Deposit Agreement, the Company shall be
discharged from all obligations thereunder except for its obligations to the
Depositary, any Depositary's Agent and any Registrar under Sections 5.07 and
5.08 of the Deposit Agreement.
If any Receipts remain outstanding after the date of termination of the
Deposit Agreement, the Depositary thereafter shall discontinue all functions and
be discharged from all obligations as provided in the Deposit Agreement, except
as specifically provided therein.
20. GOVERNING LAW. THE DEPOSIT AGREEMENT AND THIS RECEIPT AND ALL RIGHTS
THEREUNDER AND HEREUNDER AND PROVISIONS THEREOF AND HEREOF SHALL BE GOVERNED BY,
AND CONSTRUED IN ACCORDANCE WITH, THE LAW OF THE STATE OF NEW YORK, INCLUDING,
WITHOUT LIMITATION, SECTIONS 5-1401 OF THE NEW YORK GENERAL OBLIGATIONS LAW.
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FORM OF ASSIGNMENT
For value received _____________________________ hereby sell(s), assign(s)
and transfer(s) unto _________________________________________________ (Please
insert social security or other taxpayer identification number of assignee.) the
within Receipt and all rights and interests represented by the Depositary Shares
evidenced thereby, and hereby irrevocably constitutes and appoints
_______________________ attorney to transfer the same on the books of the
within-named Depositary, with full power of substitution in the premises.
Dated:______________
Signature(s) ____________________________
____________________________
____________________________
Signature Guarantee*
NOTICE: The above signatures of the holder(s) hereof must correspond with
the name as written upon the face of this Security in every particular without
alteration or enlargement or any change whatever.
* (Signature must be guaranteed by an "eligible guarantor institution,"
that is, a bank, stockbroker, savings and loan association or credit union
meeting the requirements of the Conversion Agent, which requirements include
membership or participation in the Securities Transfer Agents Medallion Program
("STAMP") or such other "signature guarantee program" as may be determined by
the Conversion Agent in addition to, or in substitution for, STAMP, all in
accordance with the Securities Exchange Act of 1934, as amended.)
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