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EXHIBIT 4.3
APACHE CORPORATION
and
NORWEST BANK MINNESOTA, NATIONAL ASSOCIATION,
As Depositary
and
HOLDERS OF DEPOSITARY RECEIPTS
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DEPOSIT AGREEMENT
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Dated as of August ____, 1998
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TABLE OF CONTENTS
Page
Parties . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
Recitals . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
ARTICLE I
DEFINITIONS
"Certificate of Designation" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
"Certificate of Incorporation" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
"Company" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
"Corporate Office" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
"Deposit Agreement" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
"Depositary" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
"Depositary Share" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
"Depositary's Agent" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
"Receipt" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
"record holder" or "holder" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
"Registrar" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
"Securities Act" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
"Stock" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
ARTICLE II
FORM OF RECEIPTS, DEPOSIT OF STOCK,
EXECUTION AND DELIVERY, TRANSFER, SURRENDER
AND REDEMPTION AND REPURCHASE OF RECEIPTS
SECTION 2.01 Form and Transfer of Receipts . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
SECTION 2.02 Deposit of Stock; Execution and Delivery of Receipts in Respect Thereof . . . . . . . . . . . 3
SECTION 2.03 Redemption and Repurchase of Stock . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
SECTION 2.04 Register of Transfer of Receipts . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
SECTION 2.05 Combination and Split-ups of Receipts . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
SECTION 2.06 Surrender of Receipts and Withdrawal of Stock . . . . . . . . . . . . . . . . . . . . . . . . 6
SECTION 2.07 Limitations on Execution and Delivery, Transfer, Split-up, Combination and
Surrender of Receipts and Withdrawal or Deposit of Stock . . . . . . . . . . . . . . 7
SECTION 2.08 Lost Receipts, etc. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
SECTION 2.09 Cancellation and Destruction of Surrendered Receipts . . . . . . . . . . . . . . . . . . . . 8
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ARTICLE III
CERTAIN OBLIGATIONS OF HOLDERS OF RECEIPTS AND THE COMPANY
SECTION 3.01 Filing Proofs, Certificates and Other Information . . . . . . . . . . . . . . . . . . . . . . 8
SECTION 3.02 Payment of Taxes or Other Governmental Charges . . . . . . . . . . . . . . . . . . . . . . . 8
SECTION 3.03 Withholding . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
SECTION 3.04 Representations and Warranties as to Stock . . . . . . . . . . . . . . . . . . . . . . . . . 9
ARTICLE IV
THE STOCK, NOTICES
SECTION 4.01 Cash Distributions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
SECTION 4.02 Distributions Other Than Cash . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
SECTION 4.03 Subscription Rights, Preferences or Privileges . . . . . . . . . . . . . . . . . . . . . . . 9
SECTION 4.04 Notice of Dividends, Fixing of Record Date for Holders of Receipts . . . . . . . . . . . . 10
SECTION 4.05 Voting Rights . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
SECTION 4.06 Changes Affecting Stock and Reclassifications, Recapitalizations, etc. . . . . . . . . . . 11
SECTION 4.07 Reports . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
SECTION 4.08 Lists of Receipt Holders . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
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 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
SECTION 5.02 Prevention or Delay in Performance by the Depositary, the Depositary's
Agents, the Registrar or the Company . . . . . . . . . . . . . . . . . . . . . . . . . 12
SECTION 5.03 Obligations of the Depositary, the Depositary's Agents, the Registrar
and the Company . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
SECTION 5.04 Resignation and Removal of the Depositary, Appointment of
Successor Depositary . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
SECTION 5.05 Corporate Notices and Reports . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
SECTION 5.06 Deposit of Stock by the Company . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15
SECTION 5.07 Indemnification by the Company . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15
SECTION 5.08 Fees, Charges and Expenses . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15
ARTICLE VI
AMENDMENT AND TERMINATION
SECTION 6.01 Amendment . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15
SECTION 6.02 Termination . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15
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ARTICLE VII
MISCELLANEOUS
SECTION 7.01 Counterparts . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16
SECTION 7.02 Exclusive Benefits of Parties . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16
SECTION 7.03 Invalidity of Provisions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16
SECTION 7.04 Notices . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17
SECTION 7.05 Depositary's Agents . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17
SECTION 7.06 Holders of Receipts Are Parties . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17
SECTION 7.07 Governing Law . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17
SECTION 7.08 Headings . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17
SIGNATURES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18
EXHIBIT A
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DEPOSIT AGREEMENT
DEPOSIT AGREEMENT, dated as of August ___, 1998, among Apache
Corporation, a Delaware corporation, Norwest Bank Minnesota, National
Association, 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 the 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 Designation" shall mean the Certificate of
Designations, Preferences and Rights establishing and setting forth the rights,
preferences, privileges and limitations of the Stock, as filed with the
Secretary of State of the State of Delaware.
"Certificate of Incorporation" shall mean the Restated Certificate of
Incorporation, as amended and restated from time to time, of the Company.
"Company" shall mean Apache Corporation, a Delaware corporation, and
its successors.
"Corporate Office" shall mean the office of the Depositary in South
St. ▇▇▇▇, Minnesota, 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 ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇▇▇
▇▇. ▇▇▇▇, ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇.
"Deposit Agreement" shall mean this agreement, as the same may be
amended, modified or supplemented from time to time.
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"Depositary" shall mean Norwest Bank Minnesota, National Association,
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 one-tenth
(1/10) of one 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,
redemption, voting and liquidation rights contained in the Certificate of
Designation, and to the benefits of all obligations and duties of the Company
in respect of the Stock under the Certificate of Designation 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.
"Receipt" shall mean a Depositary Receipt executed and delivered
hereunder, in substantially the form of Exhibit A hereto, evidencing a
Depositary Share or 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 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 ______% Cumulative
Preferred Stock, Series B, no par value per share.
ARTICLE II
FORM OF RECEIPTS, DEPOSIT OF STOCK,
EXECUTION AND DELIVERY, TRANSFER, SURRENDER
AND REDEMPTION AND REPURCHASE OF RECEIPTS
SECTION 2.01. Form and Transfer of Receipts. Receipts 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 officer 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 officer of the Registrar. Pending the preparation of definitive
Receipts, the Depositary, upon the written order of the Company delivered in
accordance with Section 2.02, shall
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execute and deliver temporary Receipts which shall be printed, lithographed,
typewritten or otherwise substantially of the tenor of the definitive Receipts
in lieu of which they are issued and with appropriate insertions, omissions,
substitutions and other variations as the persons executing such Receipts may
determine are necessary for such temporary Receipts, as evidenced by their
execution of such temporary Receipts. If temporary Receipts are issued, the
Company and the Depositary will cause definitive Receipts to be prepared
without unreasonable delay; provided that, if such temporary Receipts are
global Receipts, definitive Receipts need not be prepared until the Receipts
cease to be held in global form. After the preparation of definitive Receipts,
the temporary Receipts shall be exchangeable for definitive Receipts upon
surrender of the temporary Receipts at the Corporate Office or such other
office as the Depositary may designate, without charge to the holder. Upon
surrender for cancellation of any one or more temporary Receipts, the
Depositary shall execute and deliver in exchange therefor definitive Receipts
representing the same number of Depositary Shares as represented by the
surrendered temporary Receipt or Receipts. Such exchange shall be made at the
Company's expense and without any charge therefor. Until so exchanged, the
temporary Receipts shall in all respects be entitled to the same benefits under
this Agreement, and with respect to the Stock, as definitive Receipts.
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 investment securities in general; 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. Deposit of Stock; Execution and Delivery of Receipts
in 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 (i) all such certifications
as may be required by the Depositary in accordance with the provisions of
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this Deposit Agreement and (ii) 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 2.02, 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 Corporate
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 2.03. Redemption and Repurchase of Stock. Whenever the
Company shall redeem shares of Stock in accordance with the Certificate of
Designation, it shall (unless otherwise agreed in writing with the Depositary)
give the Depositary in its capacity as Depositary not less than five business
days' prior notice of the proposed date of the mailing of a notice of
redemption of Stock and the simultaneous redemption of the Depositary Shares
representing the Stock to be redeemed and of the number of such shares of Stock
held by the Depositary to be redeemed. The Depositary shall, as directed by
the Company in writing, mail, first class postage prepaid, notice of the
redemption of Stock and the proposed simultaneous redemption of the Depositary
Shares representing the Stock to be redeemed not less than 30 and not more than
60 days prior to the date fixed for redemption of such Stock and Depositary
Shares, to the record holders of the Receipts evidencing the Depositary Shares
to be so redeemed at the addresses of such holders as the same appear on the
records of the Depositary. 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. The
Company shall provide the Depositary with such notice, and each such notice
shall state: the method for determining the amount payable per Depositary
Share; the redemption date; the number of Depositary Shares to be redeemed; and
shall call upon each holder of Depositary Shares to surrender, on the
redemption date and at the place or places designated by the Company, the
Receipts evidencing Depositary Shares to be redeemed. On the date of any such
redemption the Depositary shall surrender
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the certificate or certificates held by the Depositary evidencing the number of
shares of Stock to be redeemed in the manner specified in the notice of
redemption of Stock provided by the Company pursuant to the Certificate of
Designation. The Depositary shall, thereafter, redeem the number of Depositary
Shares representing such redeemed Stock upon the surrender of Receipts
evidencing such Depositary Shares in the manner provided in the notice sent to
record holders of Receipts.
Notice having been mailed by the Depositary as aforesaid, from and
after the redemption date (unless the Company shall have failed to redeem the
shares of Stock to be redeemed by it upon the surrender of the certificate or
certificates therefor by the Depositary as described in the preceding
paragraph), the Depositary Shares called for redemption shall be deemed no
longer to be outstanding and all rights of the holders of Receipts evidencing
such Depositary Shares (except the right to receive the cash payable upon
redemption upon surrender of such Receipts) shall, to the extent of such
Depositary Shares, cease and terminate. The foregoing shall be subject further
to the terms and conditions of the Certificate of Designation.
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 redemption
price (to be paid in the form of cash) 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.
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 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 except as provided in the immediately preceding
paragraph of this Section 2.03.
Whenever the Company shall be required to make an offer to repurchase
Depositary Shares representing Stock in accordance with the Certificate of
Designation, it shall give the Depositary in its capacity as Depositary not
less than five business days' prior notice of the required date of the mailing
of a notice of the repurchase offer. The Depositary shall, as directed by the
Company in writing, mail, first class postage prepaid, notice of the relevant
terms of the repurchase offer, as provided by the Company, including: (i) that
such notice is being given pursuant to a repurchase offer, (ii) the number of
Depositary Shares and Stock for which the offer is being made, (iii) the method
for determining the amount payable per Depositary Share, (iv) the last date,
which shall not be less than 30 nor more than 60 days after the date of such
notice, by which a holder must elect to accept the repurchase offer, (v) the
procedures that such holder must follow to exercise its rights and (vi) the
procedures for withdrawing an election.
The Depositary shall, thereafter, receive from each holder electing to
have Depositary Shares repurchased pursuant to the repurchase offer in
accordance with the instructions in the notice, the holder's Receipts, with an
appropriate form duly completed prior to the repurchase date. Holders will be
entitled to withdraw an election by a written notice of withdrawal delivered to
the Depositary prior to the close of business on the repurchase date. The
notice of withdrawal shall state the number of
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Depositary Shares and the Receipt numbers to which the notice of withdrawal
relates and the number of Depositary Shares and Receipt numbers, if any, which
remain subject to election. In case the aggregate number of Depositary Shares
offered for repurchase by the holders exceeds the amount of Depositary Shares
which the Company has offered to repurchase pursuant to the repurchase offer,
the Depositary Shares to be repurchased shall be selected by the Depositary on
a pro rata basis at the direction of the Company. The Depositary shall, at the
direction of the Company, cause payment to be mailed or delivered to each
tendering holder as promptly as reasonably practicable after the repurchase
date, in the amount of the repurchase price, and any unpurchased Depositary
Shares to be returned to the holder thereof. The foregoing is subject further
to the terms and conditions of the Certificate of Designation.
SECTION 2.04. 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, 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 2.05. Combination and Split-ups of Receipts. Upon
surrender of a Receipt or Receipts at the Corporate 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 2.06. Surrender of Receipts and Withdrawal of Stock.
(a) Except as provided in Section 2.06(b), no holder of a Receipt
or Receipts shall have the right to withdraw any of the shares of Stock
represented by such Receipts.
(b) Notwithstanding Section 2.06(a), the Company shall have the
right to withdraw any or all of the Stock (but only in whole shares of Stock)
represented by the Depositary Shares and all money and other property, if any,
represented by such Depositary Shares by surrendering the Receipt or Receipts
evidencing such Depositary Shares at the Corporate Office, or at such other
office as the Depositary may designate for such withdrawals (and cancellation
of the surrendered Receipts as provided in Section 2.09). After such
surrender, without unreasonable delay, the Depositary shall deliver to the
Company 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 Company 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 the Company, or (subject to Section 2.04) upon its order,
a new Receipt or Receipts evidencing such excess number of whole Depositary
Shares.
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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.
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 Company such delivery may be made, without unreasonable delay, at such
other place as may be designated by the Company.
For purposes of determining the number of Depositary Shares
outstanding on any dividend payment date for purposes of [Section 4(b)] of the
Certificate of Designation, the Receipts representing Depositary Shares
acquired by the Company on or prior to such dividend payment date and not
theretofore delivered to the Depositary for withdrawal and cancellation shall
be deemed to be outstanding.
SECTION 2.07. Limitations on Execution and Delivery, Transfer,
Split-up, Combination and Surrender of Receipts and Withdrawal or Deposit of
Stock. As a condition precedent to the execution and delivery, registration of
transfer, split-up, combination, or surrender of any Receipt, the delivery of
any distribution thereon or deposit of Stock, the Depositary, any of the
Depositary's Agents or the Company may require any or all of the following:
(i) payment to it of a sum 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 property of the Company being issued upon redemption); (ii)
production of proof satisfactory to it as to the identity and genuineness of
any signature; and (iii) 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, or the registration of transfer,
split-up, combination or surrender of outstanding Receipts and the withdrawal
of deposited Stock may be suspended (i) during any period when the register of
stockholders of the Company is closed, (ii) if any such action is deemed
necessary or advisable by the Depositary, any of the Depositary's Agents or the
Company at any time or from time to time because of any requirement of law or
of any government or governmental body or commission, or under any provision of
this Deposit Agreement, or (iii) with the approval of the Company, for any
other reason. 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 2.08. 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 (i) evidence satisfactory to the Depositary of
such destruction, loss or theft of such Receipt, of the authenticity thereof
and of his
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ownership thereof, (ii) 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 (iii) payment of any
expense (including fees, charges and expenses of the Depositary) in connection
with such execution and delivery.
SECTION 2.09. Cancellation and Destruction of Surrendered Receipts.
All Receipts surrendered to the Depositary or any Depositary's Agent shall be
cancelled by the Depositary. Except as prohibited by applicable law or
regulation, the Depositary shall, from time to time, deliver such cancelled
Receipts to the Company, who will retain them in compliance with applicable
regulations of the Securities and Exchange Commission.
ARTICLE III
CERTAIN OBLIGATIONS OF HOLDERS
OF RECEIPTS AND THE COMPANY
SECTION 3.01. Filing Proofs, Certificates and Other Information.
Any 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 or redemption 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 or other governmental charge shall become payable by or on behalf of
the Depositary with respect to (i) any Receipt, (ii) the Depositary Shares
evidenced by such Receipt, (iii) the Stock (or fractional interest therein) or
other property represented by such Depositary Shares, or (iv) 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 or 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 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 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 made with respect to the
Depositary Shares and Receipts, and the Stock. The Depositary shall be
responsible with respect to the Depositary Shares, Receipts and Stock for the
timely (i) collection and deposit of any required withholding or backup
withholding tax, and (ii) filing of any information returns or other documents
with federal (and other applicable) taxing authorities.
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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 valid 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
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 Company after consultation with
the Depositary, 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
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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 such securities, the Company shall promptly
file a registration statement pursuant to the Securities Act with respect to
such rights, preferences or privileges and securities and use its best efforts
and take all steps available to it to cause such registration statement to
become effective sufficiently in advance of the expiration of such rights,
preferences or privileges to enable such holders to exercise such rights,
preferences or privileges. In no event shall the Depositary make available to
the holders of Receipts any right, preference or privilege to subscribe for or
to purchase any securities unless and until such registration statement shall
have become effective or unless the offering and sale of such securities to
such holders are exempt from registration under the provisions of the
Securities Act.
If any other action under the 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 (i) 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 (ii) the Depositary shall receive notice of any meeting at which
holders of Stock are entitled to vote or of which holders of Stock are entitled
to notice or any 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 (x) who shall be entitled to receive such dividend, distribution,
rights, preferences or privileges or the net proceeds of the sale thereof, or
(y) 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
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 (i) such
information as is contained in such notice of meeting, (ii) a statement that
the holders of Receipts at the
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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 Designation, to instruct the Depositary
as to the exercise of the voting rights pertaining to the Stock represented by
their respective Depositary Shares and (iii) 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 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 in
respect of the Stock as new 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 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 Company or, at the option of the
Company, the Depositary shall forward to the holders of Receipts 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 (i) at the Corporate
Office facilities for the execution and delivery, registration, registration of
transfer, surrender, split-up, combination and redemption of Receipts and
deposit and withdrawal of Stock and (ii) at the offices of the Depositary's
Agents, if any, facilities for the delivery, registration,
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registration of transfer, surrender, split-up, combination, and redemption of
Receipts and deposit and withdrawal of Stock, all in accordance with the
provisions of this Deposit Agreement.
The Depositary, acting as transfer agent and Registrar, 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 an owner 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 expedient by it in connection with the
performance of its duties hereunder.
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, split-up, combination or redemption 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 Designation
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 (i)
by reason of any nonperformance or delay, caused as aforesaid, in the
performance of any act or thing that the terms of this Deposit Agreement
provide shall or may be done or performed, or (ii) by reason of any exercise
of, or failure to exercise, any discretion provided for in this Deposit
Agreement except, in the case of the Depositary, any Depositary's Agent or the
Registrar, if any such exercise or failure to exercise discretion is caused by
its gross negligence or willful misconduct.
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
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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 gross
negligence or willful misconduct.
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 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 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
nor the Registrar shall be deemed to be an "issuer" of the Stock, the
Depositary Shares, or the Receipts or other securities issued upon exchange or
redemption of the Stock under the federal securities laws or applicable state
securities laws, it being expressly understood and agreed that the Depositary
and any Depositary's Agent and the Registrar are acting only in a ministerial
capacity; provided, however, that the Depositary agrees to comply with all
information reporting and withholding requirements applicable to it under law
or this Deposit Agreement in its capacity as Depositary.
Neither the Depositary (or its officers, directors, employees or
agents) nor any Depositary's Agent nor the Registrar makes any representation
or has any responsibility as to the validity of the Registration Statement
pursuant to which the Depositary Shares are registered under the Securities
Act, the Stock, the Depositary Shares or any instruments referred to therein or
herein, or as to the correctness of any statement made therein or herein;
provided, however, that the Depositary is responsible for its representations
in this Deposit Agreement.
The Depositary assumes no responsibility for the correctness of the
description that appears in the Receipts, which can be taken as a statement of
the Company summarizing certain provisions of this Deposit Agreement.
Notwithstanding any other provision herein or in the Receipts, the Depositary
makes no warranties or representations as to the validity, genuineness or
sufficiency of any Stock at any time deposited with the Depositary hereunder or
of the Depositary Shares, as to the validity or sufficiency of this Deposit
Agreement, as to the value of the Depositary Shares or as to any right, title
or interest of the record holders of Receipts in and to the Depositary Shares
except that the Depositary hereby represents and warrants as follows: (i) the
Depositary has been duly organized and is validly existing and in good standing
under the laws of the State of Minnesota, with full power, authority and legal
right under such law to execute, deliver and carry out the terms of this
Deposit Agreement; (ii) this Deposit Agreement has been duly authorized,
executed and delivered by the Depositary; and (iii) this
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Deposit Agreement constitutes, and when executed and delivered, each Receipt
will constitute, a valid and binding obligation of the Depositary, enforceable
against the Depositary in accordance with its terms, except as enforcement
thereof may be limited by bankruptcy, insolvency, reorganization or other
similar laws affecting enforcement of creditors' rights generally and except as
enforcement thereof is subject to general principles of equity (regardless of
whether enforcement is considered in a proceeding in equity or at law). 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 exchange upon which the Stock, the Depositary Shares or the
Receipts are listed or by the Certificate of Incorporation and the Certificate
of Designation 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
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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 shall
indemnify the Depositary for, and hold it harmless against, any loss,
liability, claim or expense ("Loss") arising out of or in connection with its
duties under this Agreement, including the reasonable costs and expenses of
defending itself against Loss, unless such Loss shall have been determined by a
court of competent jurisdiction to be a result of the Depositary's gross
negligence or willful misconduct. Anything to the contrary notwithstanding, in
no event shall the Depositary be liable for special, indirect, consequential or
incidental loss or damage of any kind whatsoever (including but not limited to
lost profits), even if the Depositary has been advised of the likelihood of
such damages.
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; provided, however, that no such amendment
that shall materially and adversely alter the rights of the holders of Receipts
shall be effective as to outstanding Receipts until the expiration of 90 days
after notice of such amendment shall have been given to the record holders of
outstanding Receipts and unless such amendment shall have been approved by the
holders of at least a majority of the Depositary Shares outstanding. In no
event shall any amendment impair the right, subject to the provisions of
Sections 2.03, 2.06 and 2.07 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
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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 45 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.
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
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 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.
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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 ▇▇▇▇ ▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇- 4400, Attention: Corporate
Secretary, 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.
Except as provided in the next paragraph, 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.
In addition, whenever the Certificate of Designation requires any
notice to be published, the Depositary will, if requested by the Company, cause
such notice to be published in the manner directed by the Company.
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 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 without giving effect to principles of conflict of laws.
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
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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.
IN WITNESS WHEREOF, Apache Corporation and Norwest Bank Minnesota, National
Association, 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.
APACHE CORPORATION
Attest:
By: By:
--------------------------------- ----------------------------
Authorized Officer
NORWEST BANK MINNESOTA, NATIONAL
ASSOCIATION, as Depositary
Attest:
By: By:
--------------------------------- ----------------------------
Authorized Officer
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EXHIBIT A
Unless this certificate is presented by an authorized representative of The
Depository Trust Company, a New York corporation ("DTC"), to the Company or its
agent for registration of transfer, exchange or payment, and any certificate
issued is registered in the name of Cede & Co. or in such other name as is
requested by an authorized representative of DTC (and any payment is made to
Cede & Co. or to such other entity as is requested by an authorized
representative of DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL in as much as the registered owner
hereof, Cede & Co., has an interest herein.
DEPOSITARY RECEIPT
FOR
DEPOSITARY SHARES
EACH REPRESENTING 1/10 OF A SHARE OF
______% CUMULATIVE PREFERRED STOCK, SERIES B
OF
APACHE CORPORATION
No. 1 CUSIP: 037411 ____________
Norwest Bank Minnesota, National Association (the "Depositary") hereby
certifies that Cede & Co. is the registered owner of __________________
Depositary Shares (the "Depositary Shares"), each Depositary Share representing
1/10 of a share of _______% Cumulative Preferred Stock, Series B, no par value
(the "Stock"), of Apache Corporation, a corporation duly organized and existing
under the laws of the State of Delaware (the "Company"), deposited with the
Depositary 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, conversion, exchange, voting,
liquidation and other rights contained in the Certificate of Designations,
Preferences and Rights establishing the rights, preferences, privileges and
limitations of the Stock (the "Certificate of Designations"), copies of which
are on file at the office of the Depositary in The City of South St. ▇▇▇▇, 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 officer and,
if executed by facsimile signature of the Depositary, shall have been
countersigned manually by such Registrar by the signature of a duly authorized
officer.
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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 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
designation, 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: August ___, 1998
NORWEST BANK MINNESOTA, NATIONAL ASSOCIATION,
as Depositary and Registrar
By:
-----------------------------------
Authorized Officer
Further Conditions and Agreements Forming Part of this Receipt Appear on the
Reverse Side.
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[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 August ___, 1998 (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 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 by the Company; Repurchase by the Company.
Whenever the Company shall redeem shares of Stock in accordance with the
Certificate of Designations, it shall (unless otherwise agreed in writing with
the Depositary) give the Depositary in its capacity as Depositary not less than
five business days' prior notice of the proposed date of the mailing of a
notice of redemption and of the number of such shares of Stock held by the
Depositary to be redeemed. The Depositary shall, as directed by the Company in
writing, mail, first class postage prepaid, notice of the redemption not less
than 30 and not more than 60 days prior to the date fixed for redemption of
such Stock and Depositary Shares, to the record holders of the Receipts
evidencing the Depositary Shares to be so redeemed, at the addresses of such
holders as the same appear on the records of such holders as the same appear on
the records of the Depositary. On the date of any such redemption, the
Depositary shall surrender the certificate or certificates held by the
Depositary evidencing the number of shares of Stock to be redeemed in the
manner specified in the notice of redemption. The Depositary shall,
thereafter, redeem the number of Depositary shares representing such redeemed
Stock upon the surrender of Receipts evidencing such Depositary Shares in the
manner provided in the notice sent to record holders of Receipts. Notice
having been mailed and published as aforesaid, from and after the redemption
date (unless the Company shall have failed to redeem the shares of Stock to be
redeemed by it upon the surrender of the certificate or certificates therefor
by the Depositary as described above), the Depositary Shares called for
redemption shall be deemed no longer to be outstanding and all rights of the
holders of Receipts evidencing such Depositary Shares shall, to the extent of
such Depositary Shares, cease and terminate.
Whenever the Company shall be required to make a repurchase of
Depositary Shares in accordance with the Certificate of Designations, it shall
give the Depositary in its capacity as Depositary not less than five business
days' prior notice of the required date of the mailing of a notice of the
repurchase offer. The Depositary shall, as directed by the Company in writing,
mail, first class postage prepaid, notice of the relevant terms and conditions
of the repurchase offer, as provided by the Company, to the record holders of
the Receipts evidencing the Depositary Shares to be repurchased by the Company,
at the addresses of such holders as the same appear on the records of the
Depositary. The Depositary shall, thereafter, collect any notices, guarantees
and Receipts evidencing the Depositary
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Shares from the holders in the manner provided for in the notice sent to the
holders from the Company. In case the aggregate number of Depositary Shares
exceeds the amount the Company is required to repurchase, the Depositary Shares
to be repurchased shall be selected by the Depositary on a pro rata basis at
the direction of the Company. The foregoing is subject further to the terms
and conditions of the Certificate of Designations.
4. Withdrawal of Stock Not Permitted. Holders of Receipts are
not entitled to receive any of the shares of Stock represented by such
Receipts.
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 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, the Depositary, any of the Depositary's Agents or the
Company may require any or all of the following: (i) payment to it of a sum
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 other
securities or property of the Company being issued upon redemption); (ii)
production of proof satisfactory to it as to the identity and genuineness of
any signature; and (iii) 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, 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 registration of
transfer, split-up, combination, surrender or exchange of this Receipt may be
suspended (i) during any period when the register of stockholders of the
Company is closed, (ii) if any such action is deemed necessary or advisable by
the Depositary, any of the Depositary's Agents or the Company at any time or
from time to time because of any requirement of law or of any government or
governmental body or commission, or under any provision of the Deposit
Agreement, or (iii) with the approval of the Company, for any other reason.
The Depositary shall not be required 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.
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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 (i) this Receipt, (ii) the Depositary Shares
evidenced by this Receipt, (iii) the Stock (or fractional interest therein) or
other property represented by such Depositary Shares, or (iv) 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 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; provided, however, that no such amendment that shall
materially and adversely alter the rights of the holders of Receipt shall be
effective as to outstanding Receipts until the expiration of 90 days after
notice of such amendment shall have been given to the record holders of
outstanding Receipts and unless such amendment shall have been approved by the
holders of at least a majority of the Depositary Shares outstanding. Every
holder of an outstanding Receipt at the time 90 days after such notice of
amendment shall have been given shall be deemed, by continuing to hold such
Receipt, to consent and agree to such amendment and to be bound by the Deposit
Agreement as amended thereby. 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 2.03, 2.06 and 2.07 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.
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 investment securities in general; 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.
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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 (i) 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 (ii) the
Depositary shall receive notice of any meeting at which holders of Stock are
entitled to vote or of which holders of Stock are entitled to notice, or of the
mandatory conversion of, or any election on the part of the Company to call for
redemption or exchange 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 (x) who shall be entitled to receive such dividend,
distribution, rights, preferences or privileges or the net proceeds of the sale
thereof, or (y) 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, exchange 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 (i) such information as is contained in such notice of meeting,
(ii) 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 Designations, to instruct the Depositary as to the exercise
of the voting rights pertaining to the Stock represented by their respective
Depositary Shares, and (iii) 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.
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16. Reports, Inspection of Transfer Books. The Depositary shall
make available for inspection by holders of Receipts at the Corporate 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,
acting as transfer agent and Registrar, 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
Designations or, in the case of the Company, the Depositary, the Registrar or
any Depositary's Agent, by reason of any act of God or war or other
circumstances beyond the control of the relevant party, the Depositary, any
Depositary's Agent, the Registrar or the Company shall be prevented or
forbidden from doing or performing any act or thing that the terms of 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 (i) by reason of any nonperformance or delay, caused as
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 (ii) 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 Agent, 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.
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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. 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
without giving effect to principles of conflict of laws.
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FORM OF ASSIGNMENT
FOR VALUE RECEIVED, the undersigned hereby sells, assigns and
transfers unto ______________________ the within Receipt and all rights and
interests represented by the Depositary Shares evidenced thereby, and hereby
irrevocably constitutes and appoints ______________________ his attorney, to
transfer the same on the books of the within-named Depositary, with full power
of substitution in the premises.
Dated: Signature:
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NOTE: The signature to this assignment
must correspond with the name as written
upon the face of the Receipt in every
particular, without alteration or
enlargement, or any change whatever.
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