DEPOSIT AGREEMENT among THE GOLDMAN SACHS GROUP, INC., JPMORGAN CHASE BANK, N.A. as Depositary, and THE HOLDERS FROM TIME TO TIME OF THE DEPOSITARY RECEIPTS DESCRIBED HEREIN Dated as of October 21, 2005
Exhibit 5
among
THE ▇▇▇▇▇▇▇ ▇▇▇▇▇ GROUP, INC.,
JPMORGAN CHASE BANK, N.A.
as Depositary,
as Depositary,
and
THE HOLDERS FROM TIME TO TIME OF
THE DEPOSITARY RECEIPTS DESCRIBED HEREIN
THE DEPOSITARY RECEIPTS DESCRIBED HEREIN
Dated as of October 21, 2005
TABLE OF CONTENTS
| Page | ||||||
| ARTICLE I | ||||||
| Defined terms | ||||||
Section 1.1.
|
Definitions. | 1 | ||||
| ARTICLE II | ||||||
| Form of Receipts, Deposit of Stock, Execution and Delivery, Transfer, Surrender and Redemption of Receipts |
||||||
Section 2.1.
|
Form and Transfer of Receipts. | 3 | ||||
Section 2.2.
|
Deposit of Stock; Execution and Delivery of Receipts in Respect Thereof. | 4 | ||||
Section 2.3.
|
Registration of Transfer of Receipts. | 5 | ||||
Section 2.4.
|
Split-ups and Combinations of Receipts; Surrender of Receipts and Withdrawal of Stock. | 6 | ||||
Section 2.5.
|
Limitations on Execution and Delivery, Transfer, Surrender and Exchange of Receipts. | 7 | ||||
Section 2.6.
|
Lost Receipts, etc. | 7 | ||||
Section 2.7.
|
Cancellation and Destruction of Surrendered Receipts. | 8 | ||||
Section 2.8.
|
Redemption of Stock. | 8 | ||||
Section 2.9.
|
Receipts Issuable in Global Registered Form. | 9 | ||||
| ARTICLE III | ||||||
| Certain Obligations of Holders of Receipts and the Company | ||||||
Section 3.1.
|
Filing Proofs, Certificates and Other Information. | 11 | ||||
Section 3.2.
|
Payment of Taxes or Other Governmental Charges. | 11 | ||||
Section 3.3.
|
Warranty as to Stock. | 11 | ||||
Section 3.4.
|
Warranty as to Receipts. | 11 | ||||
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| ARTICLE IV | ||||||
| The Deposited Securities; Notices | ||||||
Section 4.1.
|
Cash Distributions. | 12 | ||||
Section 4.2.
|
Distributions Other than Cash, Rights, Preferences or Privileges. | 12 | ||||
Section 4.3.
|
Subscription Rights, Preferences or Privileges. | 13 | ||||
Section 4.4.
|
Notice of Dividends, etc.; Fixing Record Date for Holders of Receipts. | 14 | ||||
Section 4.5.
|
Voting Rights. | 14 | ||||
Section 4.6.
|
Changes Affecting Deposited Securities and Reclassifications, Recapitalizations, etc. | 15 | ||||
Section 4.7.
|
Delivery of Reports. | 15 | ||||
Section 4.8.
|
Lists of Receipt Holders. | 16 | ||||
| ARTICLE V | ||||||
| The Depositary, the Depositary’s Agents, the Registrar and the Company |
||||||
Section 5.1.
|
Maintenance of Offices, Agencies and Transfer Books by the Depositary; Registrar. | 16 | ||||
Section 5.2.
|
Prevention of or Delay in Performance by the Depositary, the Depositary’s Agents, the Registrar or the Company. | 17 | ||||
Section 5.3.
|
Obligations of the Depositary, the Depositary’s Agents, the Registrar and the Company. | 17 | ||||
Section 5.4.
|
Resignation and Removal of the Depositary; Appointment of Successor Depositary. | 18 | ||||
Section 5.5.
|
Corporate Notices and Reports. | 19 | ||||
Section 5.6.
|
Indemnification by the Company. | 20 | ||||
Section 5.7.
|
Fees, Charges and Expenses. | 20 | ||||
| ARTICLE VI | ||||||
| Amendment and Termination | ||||||
Section 6.1.
|
Amendment. | 20 | ||||
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Section 6.2.
|
Termination. | 21 | ||||
| ARTICLE VII | ||||||
| Miscellaneous | ||||||
Section 7.1.
|
Counterparts. | 22 | ||||
Section 7.2.
|
Exclusive Benefit of Parties. | 22 | ||||
Section 7.3.
|
Invalidity of Provisions. | 22 | ||||
Section 7.4.
|
Notices. | 22 | ||||
Section 7.5.
|
Depositary’s Agents. | 23 | ||||
Section 7.6.
|
Appointment of Registrar and Transfer Agent in Respect of the Receipts. | 23 | ||||
Section 7.7.
|
Appointment of Transfer Agent, Registrar, Dividend Disbursing Agent and Redemption Agent in Respect of the Stock. | 24 | ||||
Section 7.8.
|
Appointment of Calculation Agent. | 24 | ||||
Section 7.9.
|
Holders of Receipts Are Parties. | 24 | ||||
Section 7.10.
|
Governing Law. | 25 | ||||
Section 7.11.
|
Inspection of Deposit Agreement. | 25 | ||||
Section 7.12.
|
Headings. | 25 | ||||
Exhibit A
|
Form of Receipt | A- 1 | ||||
Exhibit B
|
Form of Officer's Certificate | B- 1 | ||||
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DEPOSIT AGREEMENT dated as of October 21, 2005, among (i) THE ▇▇▇▇▇▇▇ ▇▇▇▇▇ GROUP, INC., a
Delaware corporation, (ii) JPMorgan Chase Bank, N.A., a national banking association formed under
the laws of the United States, and (iii) the holders from time to time of the Receipts described
herein.
WHEREAS, it is desired to provide, as hereinafter set forth in this Deposit Agreement, for the
deposit of shares of different series of Preferred Stock of the Company from time to time with the
Depositary for the purposes set forth in this Deposit Agreement and for the issuance hereunder of
Receipts evidencing Depositary Shares in respect of the Stock of each series so deposited; and
WHEREAS, the Receipts are to be substantially in the form of Exhibit A annexed hereto, with
appropriate insertions, modifications and omissions, as hereinafter provided in this Deposit
Agreement;
NOW, THEREFORE, in consideration of the premises, the parties hereto agree as follows:
ARTICLE I
Defined terms
Section 1.1. Definitions.
The following definitions shall for all purposes, unless otherwise indicated, apply to the
respective terms used in this Deposit Agreement:
“Certificate” shall mean the relevant Certificate of Designations filed with the Secretary of
State of the State of Delaware establishing a series of Stock as a series of preferred stock of the
Company.
“Company” shall mean The ▇▇▇▇▇▇▇ ▇▇▇▇▇ Group, Inc., a Delaware corporation, and its
successors.
“Deposit Agreement” shall mean this Deposit Agreement, as amended or supplemented from time to
time in accordance with the terms hereof.
“Depositary” shall mean JPMorgan Chase Bank, N.A., and any successor as Depositary hereunder.
“Depositary Shares” shall mean, with respect to each series of Stock, the depositary shares,
each representing, unless otherwise set forth in the Certificate, one-one thousandth of one share
of Stock of such series and evidenced by a Receipt with respect to such series.
“Depositary’s Agent” shall mean an agent appointed by the Depositary pursuant to Section 7.5.
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“Depositary’s Office” shall mean the principal office of the Depositary, at which at any
particular time its depositary receipt business shall be administered.
“Exchange Event” means with respect to the Global Registered Receipt of any series:
(1) (A) the Global Receipt Depository which is the holder of such Global Registered
Receipt or Receipts notifies the Company that it is no longer willing or able to properly
discharge its responsibilities under the Letter of Representations applicable to such
series or that it is no longer eligible or in good standing under the Securities Exchange
Act of 1934, as amended, and (B) the Company has not appointed a qualified successor Global
Receipt Depository with respect to such series within ninety (90) calendar days after the
Company received such notice, or
(2) the Company in its sole discretion notifies the Depositary in writing that the
Receipts of a particular series or series or portions thereof issued or issuable in the
form of one or more Global Registered Receipts shall no longer be represented by such
Global Receipt or Receipts.
“Global Receipt Depository” means, unless otherwise set forth on the Officer’s Certificate
delivered pursuant to Section 2.2 hereof with respect to a particular series of Stock, with respect
to any Receipt of any series issued hereunder The Depository Trust Company (“DTC”) or such other
successor entity designated as Global Receipt Depository by the Company in or pursuant to this
Deposit Agreement, which Person must be, to the extent required by any applicable law or
regulation, a clearing agency registered under the Securities Exchange Act of 1934, as amended.
“Global Registered Receipts” means, with respect to each series of Depositary Shares, a global
registered Receipt registered in the name of a nominee of the Global Receipt Depositary.
“Letter of Representations” means, with respect to any series of Stock, the applicable
agreement among the Company, the Depositary and a Global Receipt Depository with respect to such
Global Receipt Depository’s rights and obligations with respect to such series of Global Registered
Receipts, as the same may be amended, supplemented, restated or otherwise modified from time to
time and any successor agreement thereto.
“Officer’s Certificate” means a certificate in substantially the form set forth as Exhibit B
hereto, which is signed by an officer of the Company and which shall include the terms and
conditions of a series of Stock to be issued by the Company and deposited with the Depositary from
time to time in accordance with the terms hereof.
“Receipt” shall mean, with respect to each series of Stock, one of the depositary receipts,
substantially in the form set forth as Exhibit A hereto, issued hereunder, whether
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in definitive or temporary form and evidencing the number of Depositary Shares with respect to
such series of Stock held of record by the record holder of such Depositary Shares.
“record holder” or “holder” as applied to a Receipt of a particular series shall mean the
person in whose name such Receipt is registered on the books of the Depositary maintained for such
purpose.
“Registrar” shall mean with respect to each series of Stock, unless otherwise set forth on the
Officer’s Certificate delivered pursuant to Section 2.2 hereof with respect to a particular series
of Stock, the Depositary or such other successor bank or trust company which shall be appointed by
the Company to register ownership and transfers of Receipts of such series as herein provided and
if a successor Registrar shall be so appointed, references herein to “the books” of or maintained
by the Depository shall be deemed, as applicable, to refer as well to the register maintained by
such Registrar for such purpose.
“Securities Act” shall mean the Securities Act of 1933, as amended.
“Stock” shall mean, with respect to each series thereof, such shares of the Company’s
Preferred Stock, designated in the applicable Certificate for such series and described in the
Officer’s Certificate delivered pursuant to Section 2.2 hereof with respect to such particular
series of Stock.
ARTICLE II
Form of Receipts, Deposit of Stock,
Execution and Delivery, Transfer,
Surrender and Redemption of Receipts
Execution and Delivery, Transfer,
Surrender and Redemption of Receipts
Section 2.1. Form and Transfer of Receipts.
Definitive Receipts with respect to each series shall be engraved or printed or lithographed
on steel-engraved borders, with appropriate insertions, modifications and omissions, as hereinafter
provided. Pending the preparation of definitive Receipts, the Depositary, upon the written order of
the Company, delivered in compliance with Section 2.2, shall execute and deliver temporary Receipts
for such series which are printed, lithographed, typewritten, mimeographed or otherwise
substantially of the tenor of the definitive Receipts in lieu of which they are issued and with
such appropriate insertions, omissions, substitutions and other variations as the persons executing
such Receipts may determine, as evidenced by their execution of such Receipts. If temporary
Receipts are issued, the Company and the Depositary will cause definitive Receipts to be prepared
without unreasonable delay. After the preparation of definitive Receipts, the temporary Receipts of
a particular series shall be exchangeable for definitive Receipts of such series upon surrender of
the temporary Receipts of such series at an office described in the penultimate paragraph of
Section 2.2, without charge to the holder. Upon surrender for cancellation of any one or more
temporary Receipts of a particular series, the
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Depositary shall execute and deliver in exchange therefor definitive Receipts representing the same
number of Depositary Shares of such series 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 of a series shall in all respects be entitled to the
same benefits under this Agreement, and with respect to the Stock, as definitive Receipts of such
series.
Receipts shall be executed by the Depositary by the manual signature of a duly authorized
officer of the Depositary; provided, that such signature may be a facsimile if a Registrar for the
Receipts (other than the Depositary) shall have been appointed and such Receipts are countersigned
by a duly authorized officer of the Registrar. No Receipt shall be entitled to any benefits under
this Deposit Agreement or be valid or obligatory for any purpose unless it shall have been executed
manually by a duly authorized officer of the Depositary or, if a Registrar for the Receipts (other
than the Depositary) shall have been appointed, by manual or facsimile signature of a duly
authorized officer of the Depositary and countersigned by a duly authorized officer of such
Registrar. The Depositary shall record on its books each Receipt so signed and delivered as
hereinafter provided.
Receipts of any particular series shall be in denominations of any number of whole Depositary
Shares of such series.
Receipts of a particular series 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
all as may be required by the Depositary and approved by the Company or required to comply with any
applicable law or any regulation thereunder or with the rules and regulations of any securities
exchange upon which the Stock of such series, the Depositary Shares of such series or the Receipts
of such series 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 of a particular series are
subject.
Title to Depositary Shares of a particular series evidenced by a Receipt which is properly
endorsed or accompanied by a properly executed instrument of transfer, shall be transferable by
delivery with the same effect as in the case of a negotiable instrument; provided, however, that
until transfer of any particular Receipt shall be registered on the books of the Depositary as
provided in Section 2.3, 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 2.2. Deposit of Stock; Execution and Delivery of Receipts in Respect Thereof. |
Subject to the terms and conditions of this Deposit Agreement, the Company may from time to
time deposit shares of Stock of a particular series under this Deposit Agreement by delivery to the
Depositary of a certificate or certificates for such Stock of
4
such series to be deposited, properly endorsed or accompanied, if required by the Depositary,
by a duly executed instrument of transfer or endorsement, in form satisfactory to the Depositary,
together with all such certifications as may be required by the Depositary in accordance with the
provisions of this Deposit Agreement, and together with an executed Officer’s Certificate together
with an attached Certificate of Designations that includes a description of the Stock of such
series together with all other information required to be set forth therein, and together with a
written order of the Company directing the Depositary to execute and deliver to, or upon the
written order of, the person or persons stated in such order a Receipt or Receipts with respect to
such series evidencing in the aggregate the number of Depositary Shares representing such deposited
Stock of such series. Each Officer’s Certificate delivered to the Depositary in accordance with
the terms of this Deposit Agreement shall be deemed to be incorporated into this Deposit Agreement
and shall be binding on the Company, the Depositary and the holders of Receipts of such series to
which such Officer’s Certificate relates.
Deposited Stock shall be held by the Depositary at the Depositary’s Office or at such other
place or places as the Depositary shall determine. The Depositary shall not lend any Stock
deposited hereunder.
Upon receipt by the Depositary of a certificate or certificates for Stock of a particular
series deposited in accordance with the provisions of this Section, together with the other
documents required as above specified, and upon recordation of the Stock of such series on the
books of the Company (or its duly appointed transfer agent) in the name of the Depositary or its
nominee, the Depositary, subject to the terms and conditions of this Deposit Agreement, shall
execute and deliver to or upon the order of the person or persons named in the written order
delivered to the Depositary referred to in the first paragraph of this Section, a Receipt or
Receipts evidencing in the aggregate the number of Depositary Shares representing the Stock of such
series so deposited and registered in such name or names as may be requested by such person or
persons. The Depositary shall execute and deliver such Receipt or Receipts at the Depositary’s
Office or such other offices, if any, as the Depositary may designate. Delivery at other offices
shall be at the risk and expense of the person requesting such delivery.
| Section 2.3. Registration of Transfer of Receipts. |
Subject to the terms and conditions of this Deposit Agreement, the Depositary shall register
on its books from time to time transfers of Receipts of a particular series upon any surrender
thereof by the holder in person or by duly authorized attorney, properly endorsed or accompanied by
a properly executed instrument of transfer. Thereupon, the Depositary shall execute a new Receipt
or Receipts evidencing the same aggregate number of Depositary Shares of such series as those
evidenced by the Receipt or Receipts surrendered and deliver such new Receipt or Receipts to or
upon the order of the person entitled thereto.
The Depositary shall not be required (a) to issue, transfer or exchange any Receipts of a
particular series for a period beginning at the opening of business fifteen
5
days next preceding any selection of Depositary Shares and Stock of such series to be redeemed
and ending at the close of business on the day of the mailing of notice of redemption, or (b) to
transfer or exchange for another Receipt of such series any Receipt of a particular series called
or being called for redemption in whole or in part except as provided in Section 2.8.
| Section 2.4. Split-ups and Combinations of Receipts; Surrender of Receipts and Withdrawal of Stock. |
Upon surrender of a Receipt or Receipts of a particular series at the Depositary’s Office or
at such other offices as it may designate for the purpose of effecting a split-up or combination of
such Receipt or Receipts, and subject to the terms and conditions of this Deposit Agreement, the
Depositary shall execute a new Receipt or Receipts in the authorized denomination or denominations
requested, evidencing the aggregate number of Depositary Shares of such series evidenced by the
Receipt or Receipts surrendered, and shall deliver such new Receipt or Receipts to or upon the
order of the holder of the Receipt or Receipts so surrendered.
Any holder of a Receipt or Receipts of a particular series may withdraw the number of whole
shares of Stock of such series and all money and other property, if any, represented thereby by
surrendering such Receipt or Receipts of such series, at the Depositary’s Office or at such other
offices as the Depositary may designate for such withdrawals. Thereafter, without unreasonable
delay, the Depositary shall deliver to such holder, or to the person or persons designated by such
holder as hereinafter provided, the number of whole shares of Stock of such series and all money
and other property, if any, represented by the Receipt or Receipts of such series so surrendered
for withdrawal, but holders of such whole shares of Stock of such series will not thereafter be
entitled to deposit such Stock of such series hereunder or to receive a Receipt evidencing
Depositary Shares therefor. If a Receipt of a particular series delivered by the holder to the
Depositary in connection with such withdrawal shall evidence a number of Depositary Shares of such
series in excess of the number of Depositary Shares representing the number of whole shares of
Stock of such series to be so withdrawn, the Depositary shall at the same time, in addition to such
number of whole shares of Stock of such series and such money and other property, if any, to be so
withdrawn, deliver to such holder, or subject to Section 2.3 upon his order, a new Receipt
evidencing such excess number of Depositary Shares of such series.
In no event will fractional shares of Stock of any series (or any cash payment in lieu
thereof) be delivered by the Depositary. Delivery of the Stock of a particular series and money and
other property, if any, being withdrawn may be made by the delivery of such certificates, documents
of title and other instruments as the Depositary may deem appropriate.
If the Stock of a particular series and the money and other property, if any, being withdrawn
are to be delivered to a person or persons other than the record holder of the related Receipt or
Receipts being surrendered for withdrawal of such Stock, such holder
6
shall execute and deliver to the Depositary a written order so directing the Depositary and
the Depositary may require that the Receipt or Receipts surrendered by such holder for withdrawal
of such shares of Stock be properly endorsed in blank or accompanied by a properly executed
instrument of transfer in blank.
Delivery of the Stock of a particular series and the money and other property, if any,
represented by Receipts of such series surrendered for withdrawal shall be made by the Depositary
at the Depositary’s Office, except that, at the request, risk and expense of the holder
surrendering such Receipt or Receipts of such series and for the account of the holder thereof,
such delivery may be made at such other place as may be designated by such holder.
| Section 2.5. Limitations on Execution and Delivery, Transfer, Surrender and Exchange of Receipts. |
As a condition precedent to the execution and delivery, registration of transfer, split-up,
combination, surrender or exchange of any Receipt of any series, the Depositary, any of the
Depositary’s Agents or the Company may require payment to it of a sum sufficient for the payment
(or, in the event that the Depositary or the Company shall have made such payment, the
reimbursement to it) of any charges or expenses payable by the holder of a Receipt pursuant to
Section 5.7, may require the production of evidence satisfactory to it as to the identity and
genuineness of any signature and may also require compliance with such regulations, if any, as the
Depositary or the Company may establish consistent with the provisions of this Deposit Agreement
and/or applicable law.
The deposit of Stock of a particular series may be refused, the delivery of Receipts against
Stock of a particular series may be suspended, the registration of transfer of Receipts of a
particular series may be refused and the registration of transfer, surrender or exchange of
outstanding Receipts of a particular series may be suspended (i) during any period when the
register of stockholders of the Company is closed or (ii) if any such action is deemed necessary or
advisable by the Depositary, any of the Depositary’s Agents or the Company at any time or from time
to time because of any requirement of law or of any government or governmental body or commission
or under any provision of this Deposit Agreement.
| Section 2.6. Lost Receipts, etc. |
In case any Receipt shall be mutilated, destroyed, lost or stolen, the Depositary in its
discretion may execute and deliver a Receipt of like form and tenor and of the same series in
exchange and substitution for such mutilated Receipt, or in lieu of and in substitution for such
destroyed, lost or stolen Receipt, upon (i) the filing by the holder thereof with the Depositary of
evidence satisfactory to the Depositary of such destruction or loss or theft of such Receipt, of
the authenticity thereof and of his or her ownership thereof and (ii) the holder thereof furnishing
of the Depositary with reasonable indemnification satisfactory to the Depositary.
7
| Section 2.7. Cancellation and Destruction of Surrendered Receipts. |
All Receipts surrendered to the Depositary or any Depositary’s Agent shall be cancelled by the
Depositary. Except as prohibited by applicable law or regulation, the Depositary is authorized and
directed to destroy all Receipts so cancelled.
| Section 2.8. Redemption of Stock. |
Whenever the Company shall be permitted and shall elect to redeem shares of Stock of a
particular series in accordance with the provisions of the Certificate of such series, it shall
(unless otherwise agreed to in writing with the Depositary) give or cause to be given to the
Depositary, not less than 25 days and not more than 75 days prior to the Redemption Date (as
defined below), notice of the date of such proposed redemption of Stock of such series and of the
number of such shares of such series held by the Depositary to be so redeemed and the applicable
redemption price, which notice shall be accompanied by a certificate from the Company stating that
such redemption of Stock of such series is in accordance with the provisions of the Certificate of
such series. On the date of such redemption, provided that the Company shall then have paid or
caused to be paid in full to the Depositary the redemption price of the Stock of such series to be
redeemed, plus an amount equal to any accrued and unpaid dividends thereon to the date fixed for
redemption, in accordance with the provisions of the Certificate of such series, the Depositary
shall redeem the number of Depositary Shares representing such Stock of such series. The Depositary
shall mail notice of the Company’s redemption of Stock of a particular series and the proposed
simultaneous redemption of the number of Depositary Shares of such series representing the Stock to
be redeemed by first-class mail, postage prepaid, not less than 15 and not more than 60 days prior
to the date fixed for redemption of such Stock and Depositary Shares (the “Redemption Date”), to
the record holders of the Receipts evidencing the Depositary Shares of such series to be so
redeemed at the addresses of such holders as they appear on the records of the Depositary; but
neither failure to mail any such notice of redemption of Depositary Shares of such series to one or
more such holders of such series nor any defect in any notice of redemption of Depositary Shares to
one or more such holders shall affect the sufficiency of the proceedings for redemption as to the
other holders. Each such notice shall be prepared by the Company and shall state: (i) the
Redemption Date; (ii) the series of Depositary Shares to be redeemed (iii) the number of
Depositary Shares to be redeemed and, if less than all the Depositary Shares held by any such
holder are to be redeemed, the number of such Depositary Shares held by such holder to be so
redeemed; (iv) the redemption price; (v) the place or places where Receipts evidencing such
Depositary Shares are to be surrendered for payment of the redemption price; and (vi) that
dividends in respect of the Stock represented by such Depositary Shares to be redeemed will cease
to accrue on such Redemption Date. In case less than all the outstanding Depositary Shares of such
series are to be redeemed, the Depositary Shares to be so redeemed shall be selected by the
Depositary by lot or pro rata (as nearly as may be), as determined by the Depositary in its sole
discretion to be equitable.
8
Notice having been mailed by the Depositary as aforesaid, from and after the Redemption Date
(unless the Company shall have failed to provide the funds necessary to redeem the Stock evidenced
by the Depositary Shares called for redemption) (i) dividends on the shares of Stock of such series
so called for Redemption shall cease to accrue from and after such date, (ii) the Depositary Shares
being redeemed from such proceeds shall be deemed no longer to be outstanding, (iii) all rights of
the holders of Receipts evidencing such Depositary Shares (except the right to receive the
redemption price) shall, to the extent of such Depositary Shares, cease and terminate, and (iv)
upon surrender in accordance with such redemption notice of the Receipts evidencing any such
Depositary Shares called for redemption (properly endorsed or assigned for transfer, if the
Depositary or applicable law shall so require), such Depositary Shares shall be redeemed by the
Depositary at a redemption price per Depositary Share equal to one-one thousandth of the redemption
price per share of Stock of such series so redeemed plus all money and other property, if any,
represented by such Depositary Shares, including all amounts paid by the Company in respect of
dividends which on the Redemption Date have accrued on the shares of Stock to be so redeemed and
have not therefore been paid.
If fewer than all of the Depositary Shares of a series evidenced by a Receipt are called for
redemption, the Depositary will deliver to the holder of such Receipt upon its surrender to the
Depositary, together with the redemption payment, a new Receipt evidencing the Depositary Shares of
such series evidenced by such prior Receipt and not called for redemption.
| Section 2.9. Receipts Issuable in Global Registered Form. |
If the Company shall determine in a writing delivered to the Depositary that the Receipts of a
particular series are to be issued in whole or in part in the form of one or more Global Registered
Receipts, then the Depositary shall, in accordance with the other provisions of this Deposit
Agreement, execute and deliver one or more Global Registered Receipts evidencing the Receipts of
such series, which (i) shall represent, and shall be denominated in an amount equal to the
aggregate principal amount of, the Receipts of such series to be represented by such Global
Registered Receipt or Receipts, and (ii) shall be registered in the name of the Global Receipt
Depository therefor or its nominee.
Notwithstanding any other provision of this Deposit Agreement to the contrary, unless
otherwise provided in the Global Registered Receipt of a particular series, a Global Registered
Receipt of a particular series may only be transferred in whole and only by the applicable Global
Receipt Depository for such Global Registered Receipt to a nominee of such Global Receipt
Depository of such series, or by a nominee of such Global Receipt Depository of such series to such
Global Receipt Depository or another nominee of such Global Receipt Depository, or by such Global
Receipt Depository of such series or any such nominee to a successor Global Receipt Depository for
such Global Registered Receipt selected or approved by the Company or to a nominee of such
successor Global Receipt Depository. Except as provided below, owners solely of beneficial
interests in a Global Registered Receipt of a particular series shall not be
9
entitled to receive physical delivery of the Receipts of such series represented by such
Global Registered Receipt. Neither any such beneficial owner nor any direct or indirect
participant of a Global Receipt Depository of any series shall have any rights under this Deposit
Agreement with respect to any Global Registered Receipt held on their behalf by a Global Receipt
Depository and such Global Receipt Depository may be treated by the Company, the Depositary and any
director, officer, employee or agent of the Company or the Depositary as the holder of such Global
Registered Receipt of such series for all purposes whatsoever. Unless and until definitive
Receipts of a particular series are delivered to the owners of the beneficial interests in a Global
Registered Receipt of such series, (1) the applicable Global Receipt Depository for such series
will make book-entry transfers among its participants and receive and transmit all payments and
distributions in respect of such Global Registered Receipts to such participants, in each case, in
accordance with its applicable procedures and arrangements, and (2) whenever any notice, payment or
other communication to the holders of Global Registered Receipts of a particular series is required
under this Deposit Agreement, the Company and the Depositary shall give all such notices, payments
and communications specified herein to be given to such holders to the applicable Global Receipt
Depository of such series.
If an Exchange Event has occurred with respect to any Global Registered Receipt of any
particular series, then, in any such event, the Depositary shall, upon receipt of a written order
from the Company for the execution and delivery of individual definitive registered Receipts of
such series in exchange for such Global Registered Receipt, execute and deliver, individual
definitive registered Receipts for such series, in authorized denominations and of like tenor and
terms in an aggregate principal amount equal to the principal amount of the Global Registered
Receipt for such series in exchange for such Global Registered Receipt.
Definitive registered Receipts of a series issued in exchange for a Global Registered Receipt
pursuant to this Section shall be registered in such names and in such authorized denominations as
the Global Receipt Depository for such Global Registered Receipt, pursuant to instructions from its
participants, shall instruct the Depositary in writing. The Depositary shall deliver such Receipts
to the persons in whose names such Receipts are so registered.
Notwithstanding anything to the contrary in this Deposit Agreement, should the Company
determine that the Receipts of a particular series should be issued as a Global Registered Receipt,
the parties hereto shall comply with the terms of the Letter of Representations applicable to the
Global Registered Receipt of such series.
10
ARTICLE III
Certain Obligations of
Holders of Receipts and the Company
Holders of Receipts and the Company
| Section 3.1. Filing Proofs, Certificates and Other Information. |
Any holder of a Receipt may be required from time to time to file such proof of residence, or
other matters or other information, to execute such certificates and to make such representations
and warranties as the Depositary or the Company may reasonably deem necessary or proper. The
Depositary or the Company may withhold the delivery, or delay the registration of transfer or
redemption, of any Receipt or the withdrawal of the Stock of a particular series represented by the
Depositary Shares of such series and evidenced by a Receipt with respect to such series or the
distribution of any dividend or other distribution or the sale of any rights or of the proceeds
thereof until such proof or other information is filed or such certificates are executed or such
representations and warranties are made.
| Section 3.2. Payment of Taxes or Other Governmental Charges. |
Holders of Receipts shall be obligated to make payments to the Depositary of certain charges
and expenses, as provided in Section 5.7. Registration of transfer of any Receipt of a particular
series or any withdrawal of Stock of a particular series and all money or other property, if any,
represented by the Depositary Shares evidenced by such Receipt may be refused until any such
payment due is made, and any dividends, interest payments or other distributions may be withheld or
any part of or all the Stock or other property represented by the Depositary Shares evidenced by
such Receipt and not theretofore sold may be sold for the account of the holder thereof (after
attempting by reasonable means to notify such holder prior to such sale), and such dividends,
interest payments or other distributions or the proceeds of any such sale may be applied to any
payment of such charges or expenses, the holder of such Receipt remaining liable for any
deficiency.
| Section 3.3. Warranty as to Stock. |
The Company hereby represents and warrants that the Stock of each series, when issued, will be
duly authorized, validly issued, fully paid and nonassessable. Such representation and warranty
shall survive the deposit of such Stock and the issuance of the related Receipts.
| Section 3.4. Warranty as to Receipts. |
The Company hereby represents and warrants that the Receipts of each series, when issued, will
represent legal and valid interests in the Stock of such series. Such representation and warranty
shall survive the deposit of such Stock and the issuance of such Receipts.
11
ARTICLE IV
The Deposited Securities; Notices
| Section 4.1. Cash Distributions. |
Whenever the Depositary shall receive any cash dividend or other cash distribution on Stock of
a particular series, the Depositary shall, subject to Sections 3.1 and 3.2, distribute to record
holders of Receipts of such series on the record date fixed pursuant to Section 4.4 such amounts of
such dividend or distribution as are, as nearly as practicable, in proportion to the respective
numbers of Depositary Shares evidenced by the Receipts of such series held by such holders;
provided, however, that in case the Company or the Depositary shall be required to withhold and
shall withhold from any cash dividend or other cash distribution in respect of the Stock of such
series an amount on account of taxes, the amount made available for distribution or distributed in
respect of Depositary Shares shall be reduced accordingly. The Depositary shall distribute or make
available for distribution, as the case may be, only such amount, however, as can be distributed
without attributing to any holder of Depositary Shares of a particular series 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 of such series then outstanding. Each
holder of a Receipt shall provide the Depositary with its certified tax identification number on a
properly completed Form W-8 or W-9, as may be applicable. Each holder of a Receipt acknowledges
that, in the event of non-compliance with the preceding sentence, the Internal Revenue Code of
1986, as amended, may require withholding by the Depositary of a portion of any of the
distributions to be made hereunder.
| Section 4.2. Distributions Other than Cash, Rights, Preferences or Privileges. |
Whenever the Depositary shall receive any distribution other than cash, rights, preferences or
privileges upon Stock of a particular series, the Depositary shall, subject to Sections 3.1 and
3.2, distribute to record holders of Receipts of such series on the record date fixed pursuant to
Section 4.4 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 such
Receipts held by such holders, in any manner that the Depositary may deem equitable and practicable
for accomplishing such distribution. If in the opinion of the Depositary such distribution cannot
be made proportionately among such record holders, or if for any other reason (including any
requirement that the Company or the Depositary withhold an amount on account of taxes) the
Depositary deems, after consultation with the Company, such distribution not to be feasible, the
Depositary may, with the approval of the Company, adopt such method as it deems equitable and
practicable for the purpose of effecting such distribution, including the sale (at public or
private sale) of the securities or property thus received, or any part thereof, in a commercially
reasonable manner. The net proceeds of any such sale shall, subject to
12
Sections 3.1 and 3.2, be distributed or made available for distribution, as the case may be,
by the Depositary to record holders of Receipts of such series as provided by Section 4.1 in the
case of a distribution received in cash. The Company shall not make any distribution of such
securities or property to the Depositary and the Depositary shall not make any distribution of such
securities or property to the holders of Receipts of such series unless the Company shall have
provided an opinion of counsel stating that such securities or property have been registered under
the Securities Act or do not need to be registered in connection with such distributions.
| Section 4.3. 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 of a particular series is recorded on the books of the Company any rights, preferences or
privileges to subscribe for or to purchase any securities or any rights, preferences or privileges
of any other nature, such rights, preferences or privileges shall in each such instance be made
available by the Depositary to the record holders of Receipts of such series in such manner as the
Depositary may determine, either by the issue to such record holders of warrants representing such
rights, preferences or privileges or by such other method as may be approved by the Depositary in
its discretion with the approval of the Company; provided, however, that (i) if at the time of
issue or offer of any such rights, preferences or privileges the Depositary determines that it is
not lawful or (after consultation with the Company) not feasible to make such rights, preferences
or privileges available to holders of Receipts of such series by the issue of warrants or
otherwise, or (ii) if and to the extent so instructed by holders of Receipts of such series who do
not desire to exercise such rights, preferences or privileges, then the Depositary, in its
discretion (with approval of the Company, in any case where the Depositary has determined that it
is not feasible to make such rights, preferences or privileges available), may, if applicable laws
or the terms of such rights, preferences or privileges permit such transfer, sell such rights,
preferences or privileges at public or private sale, at such place or places and upon such terms as
it may deem proper. The net proceeds of any such sale shall, subject to Sections 3.1 and 3.2, be
distributed by the Depositary to the record holders of Receipts entitled thereto as provided by
Section 4.1 in the case of a distribution received in cash.
The Company shall notify the Depositary whether registration under the Securities Act of the
securities to which any rights, preferences or privileges relate is required in order for holders
of Receipts of a particular series to be offered or sold the securities to which such rights,
preferences or privileges relate, and the Company agrees with the Depositary that it will file
promptly a registration statement pursuant to such Act with respect to such rights, preferences or
privileges and securities and use its best efforts and take all steps available to it to cause such
registration statement to become effective sufficiently in advance of the expiration of such
rights, preferences or privileges to enable such holders to exercise such rights, preferences or
privileges. In no event shall the Depositary make available to the holders of Receipts of such
series any right, preference or privilege to subscribe for or to purchase any securities unless and
until such
13
registration statement shall have become effective, or the Company shall have provided to the
Depositary an opinion of counsel to the effect that the offering and sale of such securities to
such holders are exempt from registration under the provisions of the Securities Act.
The Company shall notify the Depositary whether any other action under the laws of any
jurisdiction or any governmental or administrative authorization, consent or permit is required in
order for such rights, preferences or privileges to be made available to holders of Receipts of a
particular series, and 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 4.4. Notice of Dividends, etc.; Fixing Record Date for Holders of Receipts. |
Whenever any cash dividend or other cash distribution shall become payable or any distribution
other than cash shall be made, or if rights, preferences or privileges shall at any time be
offered, with respect to Stock of a particular series, or whenever the Depositary shall receive
notice of any meeting at which holders of Stock of a particular series are entitled to vote or of
which holders of Stock of such series are entitled to notice, or whenever the Depositary and the
Company shall decide it is appropriate, the Depositary shall in each such instance fix a record
date (which shall be the same date as the record date fixed by the Company with respect to or
otherwise in accordance with the terms of the Stock of such series) for the determination of the
holders of Receipts of such series who shall be entitled to receive such dividend, distribution,
rights, preferences or privileges or the net proceeds of the sale thereof, or to give instructions
for the exercise of voting rights at any such meeting, or who shall be entitled to notice of such
meeting or for any other appropriate reasons.
| Section 4.5. Voting Rights. |
Upon receipt of notice of any meeting at which the holders of Stock of a particular series are
entitled to vote, the Depositary shall, as soon as practicable thereafter, mail to the record
holders of Receipts of such series a notice prepared by the Company which shall contain (i) such
information as is contained in such notice of meeting and (ii) a statement that the holders may,
subject to any applicable restrictions, instruct the Depositary as to the exercise of the voting
rights pertaining to the amount of Stock of such series represented by their respective Depositary
Shares (including an express indication that instructions may be given to the Depositary to give a
discretionary proxy to a person designated by the Company) and a brief statement as to the manner
in which such instructions may be given. Upon the written request of the holders of Receipts of
such series on the relevant record date, the Depositary shall endeavor insofar as practicable to
vote or cause to be voted, in accordance with the instructions set forth in such requests, the
maximum number of whole shares of Stock of such series represented
14
by the Depositary Shares evidenced by all Receipts of such series as to which any particular
voting instructions are received. The Company hereby agrees to take all reasonable action which may
be deemed necessary by the Depositary in order to enable the Depositary to vote such Stock or cause
such Stock to be voted. In the absence of specific instructions from the holder of a Receipt of
such series, the Depositary will not vote (but, at its discretion, may appear at any meeting with
respect to such Stock unless directed to the contrary by the holders of all such Receipts of such
series) to the extent of the Stock of such series represented by the Depositary Shares evidenced by
such Receipt.
| Section 4.6. Changes Affecting Deposited Securities and Reclassifications, Recapitalizations, etc. |
Upon any change in par or stated value, split-up, combination or any other reclassification of
the Stock of a particular series, or upon any recapitalization, reorganization, merger or
consolidation affecting the Company or to which it is a party, the Depositary may in its discretion
with the approval of, and shall upon the instructions of, the Company, and (in either case) in such
manner as the Depositary may deem equitable, (i) make such adjustments as are certified by the
Company in the fraction of an interest represented by one Depositary Share in one share of such
Stock as may be necessary fully to reflect the effects of such change in par or stated value,
split-up, combination or other reclassification of such Stock, or of such recapitalization,
reorganization, merger or consolidation and (ii) treat any securities which shall be received by
the Depositary in exchange for or upon conversion of or in respect of such Stock as new deposited
securities so received in exchange for or upon conversion or in respect of such Stock. In any such
case the Depositary may in its discretion, with the approval of the Company, execute and deliver
additional Receipts with respect to such series or may call for the surrender of all outstanding
Receipts of such series to be exchanged for new Receipts specifically describing such new deposited
securities. Anything to the contrary herein notwithstanding, holders of such Receipts shall have
the right from and after the effective date of any such change in par or stated value, split-up,
combination or other reclassification of the Stock of such series or any such recapitalization,
reorganization, merger or consolidation to surrender such Receipts to the Depositary with
instructions to convert, exchange or surrender the Stock represented thereby only into or for, as
the case may be, the kind and amount of shares of stock and other securities and property and cash
into which the Stock represented by such Receipts might have been converted or for which such Stock
might have been exchanged or surrendered immediately prior to the effective date of such
transaction.
| Section 4.7. Delivery of Reports. |
The Depositary shall furnish to holders of Receipts of any particular series any reports and
communications received from the Company which are received by the Depositary and which the Company
is required to furnish to the holders of the Stock of such series.
15
| Section 4.8. Lists of Receipt Holders. |
Reasonably promptly upon request from time to time by the Company, at the sole expense of the
Company, the Depositary shall furnish to it a list, as of the most recent practicable date, of the
names, addresses and holdings of Depositary Shares of all registered holders of Receipts of any
particular series.
ARTICLE V
The Depositary, the Depositary’s
Agents, the Registrar and the Company
Agents, the Registrar and the Company
| Section 5.1. Maintenance of Offices, Agencies and Transfer Books by the Depositary; Registrar. |
Upon execution of this Deposit Agreement, the Depositary shall maintain at the Depositary’s
Office, facilities for the execution and delivery, registration and registration of transfer,
surrender and exchange of Receipts of each series, and at the offices of the Depositary’s Agents,
if any, facilities for the delivery, registration of transfer, surrender and exchange of Receipts
of each series, all in accordance with the provisions of this Deposit Agreement.
The Depositary shall keep books at the Depositary’s Office for the registration and
registration of transfer of Receipts of each series, which books at all reasonable times shall be
open for inspection by the record holders of Receipts of such series; provided that any such holder
requesting to exercise such right shall certify to the Depositary that such inspection shall be for
a proper purpose reasonably related to such person’s interest as an owner of Depositary Shares
evidenced by the Receipts of such series.
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.
The Depositary may, with the approval of the Company, appoint a Registrar for registration of
the Receipts of a particular series or the Depositary Shares evidenced thereby. If the Receipts of
a particular series or the Depositary Shares evidenced thereby or the Stock of such series
represented by such Depositary Shares shall be listed on one or more national stock exchanges, the
Depositary will appoint a Registrar (acceptable to the Company) for registration of such Receipts
or Depositary Shares in accordance with any requirements of such exchange. Such Registrar (which
may be the Depositary if so permitted by the requirements of any such exchange) may be removed and
a substitute registrar appointed by the Depositary upon the request or with the approval of the
Company. If such Receipts, such Depositary Shares or such Stock are listed on one or more other
stock exchanges, the Depositary will, at the request of the Company, arrange such facilities for
the delivery, registration, registration of transfer, surrender and exchange of such Receipts, such
Depositary Shares or such Stock as may be required by law or applicable stock exchange regulation.
16
| Section 5.2. Prevention of 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 any 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 Depositary’s Agent or the Registrar, by reason of
any provision, present or future, of the Company’s Restated Certificate of Incorporation (including
any particular Certificate) or by reason of any act of God or war or other circumstance beyond the
control of the relevant party, the Depositary, the Depositary’s Agent, the Registrar or the Company
shall be prevented or forbidden from, or subjected to any penalty on account of, doing or
performing any act or thing which the terms of this Deposit Agreement provide shall be done or
performed; nor shall the Depositary, any Depositary’s Agent, any Registrar or the Company incur
liability to any holder of a Receipt (i) by reason of any nonperformance or delay, caused as
aforesaid, in the performance of any act or thing which the terms of this Deposit Agreement shall
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 as otherwise explicitly set
forth in this Deposit Agreement.
| Section 5.3. Obligations of the Depositary, the Depositary’s Agents, the Registrar and the Company. |
Neither the Depositary nor any Depositary’s Agent nor any Registrar nor the Company assumes
any obligation or shall be subject to any liability under this Deposit Agreement to holders of
Receipts other than for its negligence, willful misconduct or bad faith. Notwithstanding anything
in this Agreement to the contrary, neither the Depositary, nor the Depositary’s Agent nor any
Registrar nor the Company shall be liable in any event for special, punitive, incidental, indirect
or consequential losses or damages of any kind whatsoever (including but not limited to lost
profits).
Neither the Depositary nor any Depositary’s Agent nor any Registrar nor the Company shall be
under, any obligation to appear in, prosecute or defend any action, suit or other proceeding in
respect of the Stock of any particular series, the Depositary Shares of such series or the Receipts
of such series which in its opinion may involve it in expense or liability unless indemnity
satisfactory to it against all expense and liability be furnished as often as may be required.
Neither the Depositary nor any Depositary’s Agent nor any Registrar nor the Company shall be
liable for any action or any failure to act by it in reliance upon the written advice of legal
counsel or accountants, or information from any person presenting Stock of any particular series
for deposit, any holder of a Receipt of a particular series or any other person believed by it in
good faith to be competent to give such information. The Depositary, any Depositary’s Agent, any
Registrar and the Company may each rely and shall each be protected in acting upon or omitting to
act upon any written notice,
17
request, direction or other document believed by it to be genuine and to have been signed or
presented by the proper party or parties.
The Depositary shall not be responsible for any failure to carry out any instruction to vote
any of the shares of stock or for the manner or effect of any such vote made, as long as any such
action or non-action is not taken in bad faith. The Depositary undertakes, and any Registrar shall
be required to undertake, to perform such duties and only such duties as are specifically set forth
in this Agreement, and no implied covenants or obligations shall be read into this Agreement
against the Depositary or any Registrar.
The Depositary, the Depositary’s Agents, and any Registrar may own and deal in any class of
securities of the Company and its affiliates and in Receipts of any series. The Depositary may also
act as transfer agent or registrar of any of the securities of the Company and its affiliates.
The Depositary shall not be under any liability for interest on any monies at any time
received by it pursuant to any of the provisions of this Agreement or of the Receipts of any
series, the Depositary Shares of any series or the Stock of any series nor shall it be obligated to
segregate such monies from other monies held by it, except as required by law. The Depositary shall
not be responsible for advancing funds on behalf of the Company and shall have no duty or
obligation to make any payments if it has not timely received sufficient funds to make timely
payments.
In the event the Depositary believes any ambiguity or uncertainty exists hereunder or in any
notice, instruction, direction, request or other communication, paper or document received by the
Depositary hereunder, or in the administration of any of the provisions of this Agreement, the
Depositary shall deem it necessary or desirable that a matter be proved or established prior to
taking, omitting or suffering to take any action hereunder, the Depositary may, in its sole
discretion upon written notice to the Company, refrain from taking any action and shall be fully
protected and shall not be liable in any way to the Company, any holders of Receipts of any series
or any other person or entity for refraining from taking such action, unless the Depositary
receives written instructions or a certificate signed by the Company which eliminates such
ambiguity or uncertainty to the satisfaction of the Depositary or which proves or establishes the
applicable matter to the satisfaction of the Depositary.
| Section 5.4. Resignation and Removal of the Depositary; Appointment of Successor Depositary. |
The Depositary may at any time resign as Depositary hereunder by delivering notice of its
election to do so to the Company, such resignation to take effect upon the appointment of a
successor Depositary and its acceptance of such appointment as hereinafter provided.
The Depositary may at any time be removed by the Company by notice of such removal delivered
to the Depositary, such removal to take effect upon the appointment of
18
a successor depositary hereunder and its acceptance of such appointment as hereinafter
provided.
In case at any time the Depositary acting hereunder shall resign or be removed, the Company
shall, within 60 days after the delivery of the notice of resignation or removal, as the case may
be, appoint a successor Depositary, which shall be a bank or trust company having its principal
office in the United States of America and having a combined capital and surplus of at least
$50,000,000. If no successor Depositary shall have been so appointed and have accepted appointment
within 60 days after delivery of such notice, the resigning or removed Depositary may petition any
court of competent jurisdiction for the appointment of a successor Depositary. Every successor
Depositary shall execute and deliver to its predecessor and to the Company an instrument in writing
accepting its appointment hereunder, and thereupon such successor Depositary, without any further
act or deed, shall become fully vested with all the rights, powers, duties and obligations of its
predecessor and for all purposes shall be the Depositary under this Deposit Agreement, and such
predecessor, upon payment of all sums due it and on the written request of the Company, shall
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 right, title and interest
in the Stock of each series 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 of each series
and such records, books and other information in its possession relating thereto. Any successor
Depositary shall promptly mail notice of its appointment to the record holders of Receipts of each
series.
Any entity into or with which the Depositary may be merged, consolidated or converted shall be
the successor of such Depositary without the execution or filing of any document or any further
act, and notice thereof shall not be required hereunder. Such successor Depositary may authenticate
the Receipts of any series in the name of the predecessor Depositary or in the name of the
successor Depositary.
| Section 5.5. 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 of each series, in each case at
the addresses recorded in the Depositary’s books, copies of all notices and reports (including
without limitation financial statements) required by law, by the rules of any national securities
exchange upon which the Stock of such series, the related Depositary Shares or the Receipts of such
series are listed or by the Company’s Restated Certificate of Incorporation (including each
Certificate), to be furnished to the record holders of Receipts of any particular series. Such
transmission will be at the Company’s expense and the Company will provide the Depositary with such
number of copies of such documents as the Depositary may reasonably request. In addition, the
Depositary will transmit to the record holders of Receipts of any particular series at the
Company’s expense such other documents as may be requested by the Company.
19
| Section 5.6. Indemnification by the Company. |
Notwithstanding Section 5.3 to the contrary, the Company shall indemnify the Depositary, any
Depositary’s Agent and any Registrar (including each of their officers, directors, agents and
employees) against, and hold each of them harmless from, any loss, damage, cost, penalty, liability
or expense (including the reasonable costs and expenses of defending itself) which may arise out of
acts performed, suffered or omitted to be taken in connection with this Agreement and the Receipts
of each series by the Depositary, any Registrar or any of their respective agents (including any
Depositary’s Agent) and any transactions or documents contemplated hereby, except for any liability
arising out of negligence, willful misconduct or bad faith on the respective parts of any such
person or persons. The obligations of the Company set forth in this Section 5.6 shall survive any
succession of any Depositary, Registrar or Depositary’s Agent.
| Section 5.7. Fees, Charges and Expenses. |
The Company agrees promptly to pay the Depositary the compensation to be agreed upon with the
Company for all services rendered by the Depositary hereunder and to reimburse the Depositary for
its reasonable out-of-pocket expenses (including reasonable counsel fees and expenses) incurred by
the Depositary without negligence, willful misconduct or bad faith on its part in connection with
the services rendered by it hereunder. The Company shall pay all charges of the Depositary in
connection with the initial deposit of the Stock of each series and the initial issuance of the
Depositary Shares relating to such Stock, all withdrawals of shares of such Stock by owners of
related Depositary Shares, and any redemption or exchange of such Stock at the option of the
Company. The Company shall pay all transfer and other taxes and governmental charges arising solely
from the existence of the depositary arrangements. All other transfer and other taxes and
governmental charges shall be at the expense of holders of Depositary Shares evidenced by Receipts.
If, at the request of a holder of Receipts, the Depositary incurs charges or expenses for which the
Company is not otherwise liable hereunder, such holder will be liable for such charges and
expenses; provided, however, that the Depositary may, at its sole option, require a holder of a
Receipt to prepay the Depositary any charge or expense the Depositary has been asked to incur at
the request of such holder of Receipts. The Depositary shall present its statement for charges and
expenses to the Company at such intervals as the Company and the Depositary may agree.
ARTICLE VI
Amendment and Termination
| Section 6.1. Amendment. |
The form of the Receipts of any particular series and any provisions of this Deposit Agreement
may at any time and from time to time be amended by agreement between the Company and the
Depositary in any respect which they may deem necessary or desirable; provided, however, that no
such amendment which shall materially and
20
adversely alter the rights of the holders of Receipts of a particular series shall be
effective against the holders of Receipts of such series unless such amendment shall have been
approved by the holders of at least a majority (or, in the case of amendments relating to or
affecting rights to receive dividends or distributions or voting or redemption rights, two-thirds
of the holders) of the Depositary Shares of such series then outstanding. Every holder of an
outstanding Receipt of such series at the time any such amendment becomes effective shall be
deemed, by continuing to hold such Receipt of such series, to consent and agree to such amendment
and to be bound by the Depositary Agreement as amended thereby. In no event shall any amendment
impair the right, subject to the provisions of Sections 2.5 and 2.6 and Article III, of any owner
of Depositary Shares of a particular series to surrender any Receipt evidencing such Depositary
Shares to the Depositary with instructions to deliver to the holder the Stock of such series and
all money and other property, if any, represented thereby, except in order to comply with mandatory
provisions of applicable law or the rules and regulations of any governmental body, agency or
commission, or applicable stock exchange.
| Section 6.2. Termination. |
This Agreement may be terminated by the Company at any time upon not less than 60 days prior
written notice to the Depositary, in which case, at least 30 days prior to the date fixed in such
notice for such termination, the Depositary will mail notice of such termination to the record
holders of all Receipts then outstanding.
If any Receipts of any series shall remain outstanding after the date of termination of this
Deposit Agreement, the Depositary thereafter shall discontinue the transfer of Receipts of all such
series, 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 that the Depositary shall continue to collect dividends and other
distributions pertaining to Stock of each such series, shall sell rights, preferences or privileges
as provided in this Deposit Agreement and shall continue to deliver the Stock of each such series
and any money and other property, if any, represented by Receipts of each such series 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 of each such series then held hereunder at
public or private sale, at such places and upon such terms as it deems proper and may thereafter
hold the net proceeds of any such sale, together with any money and other property held by it
hereunder, without liability for interest, for the benefit, pro rata in accordance with their
holdings, of the holders of Receipts of each such series that have not theretofore 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.
This Agreement may be terminated by the Company or the Depositary only if (i) all outstanding
Depositary Shares of each series issued hereunder have been redeemed pursuant to Section 2.8, (ii)
there shall have been made a final distribution in respect of
21
the Stock of each such series in connection with any liquidation, dissolution or winding up of
the Company and such distribution shall have been distributed to the holders of Depositary Shares
of each such series pursuant to Section 4.1 or 4.2, as applicable or (iii) upon the consent of
holders of Depositary Receipts representing not less than two-thirds of the Depositary Shares of
each series outstanding.
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 5.6 and 5.7.
ARTICLE VII
Miscellaneous
| Section 7.1. Counterparts. |
This Deposit Agreement may be executed in any number of counterparts, and by each of the
parties hereto on separate counterparts, each of which counterparts, when so executed and
delivered, shall be deemed an original, but all such counterparts taken together shall constitute
one and the same instrument.
| Section 7.2. Exclusive Benefit of Parties. |
This Deposit Agreement is for the exclusive benefit of the parties hereto, and their
respective successors hereunder, and shall not be deemed to give any legal or equitable right,
remedy or claim to any other person whatsoever.
| Section 7.3. Invalidity of Provisions. |
In case any one or more of the provisions contained in this Deposit Agreement or in the
Receipts should be or become invalid, illegal or unenforceable in any respect, the validity,
legality and enforceability of the remaining provisions contained herein or therein shall in no way
be affected, prejudiced or disturbed thereby.
| Section 7.4. Notices. |
Any and all notices to be given to the Company hereunder or under the Receipts shall be in
writing and shall be deemed to have been duly given if personally delivered or sent by mail, or by
telegram or facsimile transmission confirmed by letter, addressed to the Company at
The ▇▇▇▇▇▇▇ ▇▇▇▇▇ Group, Inc.
85 ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: Treasury Department
Facsimile No.: (▇▇▇) ▇▇▇-▇▇▇▇
22
or at any other addresses of which the Company shall have notified the Depositary in writing.
Any and all notices to be given to the Depositary hereunder or under the Receipts shall be in
writing and shall be deemed to have been duly given if personally delivered or sent by mail, or by
facsimile transmission confirmed by letter, addressed to the Depositary at the Depositary’s Office
at
JPMorgan Chase Bank, N.A.
4 New York Plaza, 15th Floor
Attention: Institutional Trust Services
Facsimile No.: (▇▇▇) ▇▇▇-▇▇▇▇
or at any other address of which the Depositary shall have notified the Company in writing.
Any and all notices to be given to any record holder of a Receipt hereunder or under the
Receipts shall be in writing and shall be deemed to have been duly given if personally delivered or
sent by mail or facsimile transmission confirmed by letter, addressed to such record holder at the
address of such record holder as it appears on the books of the Depositary, or if such holder shall
have timely filed with the Depositary a written request that notices intended for such holder be
mailed to some other address, at the address designated in such request.
Delivery of a notice sent by mail or by facsimile transmission shall be deemed to be effected
at the time when a duly addressed letter containing the same (or a confirmation thereof in the case
of a facsimile transmission) is deposited, postage prepaid, in a post office letter box. The
Depositary or the Company may, however, act upon any facsimile transmission received by it from the
other or from any holder of a Receipt, notwithstanding that such facsimile transmission shall not
subsequently be confirmed by letter or as aforesaid.
| Section 7.5. Depositary’s Agents. |
The Depositary may from time to time appoint Depositary’s Agents to act in any respect for the
Depositary for the purposes of this Deposit Agreement and may at any time appoint additional
Depositary’s Agents and vary or terminate the appointment of such Depositary’s Agents. The
Depositary will promptly notify the Company of any such action.
| Section 7.6. Appointment of Registrar and Transfer Agent in Respect of the Receipts. |
Unless otherwise set forth on the Officer’s Certificate delivered pursuant to Section 2.2
hereof, the Company hereby appoints the Depositary as Registrar and
23
Transfer Agent in respect of the Receipts of each series issued hereunder and the Depositary
hereby accepts such appointments.
| Section 7.7. Appointment of Transfer Agent, Registrar, Dividend Disbursing Agent and Redemption Agent in Respect of the Stock. |
Unless otherwise set forth on the Officer’s Certificate delivered pursuant to Section 2.2
hereof the Company hereby appoints JPMorgan Chase Bank, N.A. as transfer agent, registrar, dividend
disbursing agent and redemption agent in respect of the Stock of each series deposited with the
Depositary hereunder, and JPMorgan Chase Bank, N.A. hereby accepts such appointments. With respect
to the appointments of JPMorgan Chase Bank, N.A. as transfer agent, registrar, dividend disbursing
agent and redemption agent in respect of the Stock of each such series, each of the Company and
JPMorgan Chase Bank, N.A., in their respective capacities under such appointments, shall be
entitled to the same rights, indemnities, immunities and benefits as the Company and Depositary
hereunder, respectively, as if explicitly named in each such provision.
| Section 7.8. Appointment of Calculation Agent. |
The Officer’s Certificate referred to in Section 2.2 hereof shall set forth the name of the
calculation agent, if any, with respect to calculating the amount of dividends to be paid with
respect to the Stock of any particular series, and if the Officer’s Certificate names JPMorgan
Chase Bank, N.A. as calculation agent, it shall be deemed to be appointed as calculation agent for
such series only if JPMorgan Chase Bank, N.A. has accepted such appointment in writing as agreed
between JPMorgan Chase Bank, N.A. and the Company. If JPMorgan Chase Bank, N.A. is appointed as
such calculation agent, each of the Company and such calculation agent, in their respective
capacities under such appointment, shall be entitled to the same rights, indemnities, immunities
and benefits as the Company and Depositary hereunder, respectively, as if explicitly named in each
such provision. Also, if JPMorgan Chase Bank, N.A. is appointed as such calculation agent, it
shall be entitled to receive a description of the calculations required under the Stock of the
particular series for which it is appointed calculation agent and the categories of information
under which it is entitled to seek guidance from the Company. In furtherance thereof, such
calculation agent may seek guidance from the Company with one day notice in making any
determinations thereunder.
| Section 7.9. Holders of Receipts Are Parties. |
The holders of Receipts of each series from time to time shall be parties to this Deposit
Agreement and shall be bound by all of the terms and conditions hereof and of the Receipts of such
series and of the Officer’s Certificate relating to such series by acceptance of delivery thereof.
24
| Section 7.10. Governing Law. |
This Deposit Agreement and the Receipts of each series and all rights hereunder and thereunder
and provisions hereof and thereof shall be governed by, and construed in accordance with, the laws
of the State of New York without giving effect to applicable conflicts of law principles.
| Section 7.11. Inspection of Deposit Agreement. |
Copies of this Deposit Agreement shall be filed with the Depositary and the Depositary’s
Agents and shall be open to inspection during business hours at the Depositary’s Office and the
respective offices of the Depositary’s Agents, if any, by any holder of a Receipt.
| Section 7.12. Headings. |
The headings of articles and sections in this Deposit Agreement and in the form of the Receipt
set forth in Exhibit A hereto have been inserted for convenience only and are not to be regarded as
a part of this Deposit Agreement or the Receipts or to have any bearing upon the meaning or
interpretation of any provision contained herein or in the Receipts.
IN WITNESS WHEREOF, the Company and the Depositary have duly executed this 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.
| THE ▇▇▇▇▇▇▇ ▇▇▇▇▇ GROUP, INC. | |||||
| By: | /s/ ▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ | ||||
| Name: ▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ | |||||
| Title: Treasurer | |||||
| JPMORGAN CHASE BANK, N.A. | |||||
| Attested by | /s/ ▇▇▇▇▇▇ ▇▇▇▇▇ | by | /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ | ||
| Vice President | Assistant Treasurer | ||||
25
EXHIBIT A
[FORM OF FACE OF RECEIPT]
DEPOSITARY SHARES
DR
DEPOSITARY RECEIPT FOR DEPOSITARY SHARES, EACH
REPRESENTING _______________ OF ONE SHARE OF ______________________
_________________________________________________________,
REPRESENTING _______________ OF ONE SHARE OF ______________________
_________________________________________________________,
OF
THE ▇▇▇▇▇▇▇ ▇▇▇▇▇ GROUP, INC.
INCORPORATED UNDER THE LAWS OF THE STATE OF DELAWARE
CUSIP _______________
SEE REVERSE FOR CERTAIN DEFINITIONS
JPMORGAN CHASE BANK, N.A., as Depositary (the “Depositary”), hereby certifies that Cede & Co.
is the registered owner of DEPOSITARY SHARES (“Depositary Shares”), each Depositary Share
representing ___of one share of
___, liquidation preference
$________ per
share, par value
$________ per share (the “Stock”), of The ▇▇▇▇▇▇▇ ▇▇▇▇▇ Group,
Inc., a Delaware corporation (the “Corporation”), on deposit with the Depositary, subject to the
terms and entitled to the benefits of the Deposit Agreement dated as of October 21, 2005 (the
“Deposit Agreement”), among the Corporation, the Depositary and the holders from time to time of
the Depositary Receipts. By accepting this Depositary Receipt, the holder hereof becomes a party to
and agrees to be bound by all the terms and conditions of the Deposit Agreement. This Depositary
Receipt shall not be valid or obligatory for any purpose or entitled to any benefits under the
Deposit Agreement unless it shall have been executed by the Depositary by the manual signature of a
duly authorized officer or, if executed in facsimile by the Depositary, countersigned by a
Registrar in respect of the Depositary Receipts by the manual signature of a duly authorized
officer thereof.
Dated:
|
||||
JPMORGAN CHASE BANK, N.A., Depositary
A-1
By:
|
||||
| Authorized Officer |
A-2
[FORM OF REVERSE OF RECEIPT]
THE ▇▇▇▇▇▇▇ ▇▇▇▇▇ GROUP, INC.
THE ▇▇▇▇▇▇▇ SACHS GROUP, INC. WILL FURNISH WITHOUT CHARGE TO EACH RECEIPTHOLDER WHO SO
REQUESTS A COPY OF THE DEPOSIT AGREEMENT AND A COPY OR SUMMARY OF THE CERTIFICATE OF DESIGNATIONS
OF THE ___PREFERRED STOCK, SERIES ___, OF
THE ▇▇▇▇▇▇▇ ▇▇▇▇▇ GROUP, INC. ANY SUCH REQUEST IS TO BE ADDRESSED TO THE DEPOSITARY NAMED ON THE
FACE OF THIS RECEIPT.
The Corporation will furnish without charge to each stockholder who so requests the powers,
designations, preferences and relative, participating, optional or other special rights of each
class of stock or series thereof of the Corporation, and the qualifications, limitations or
restrictions of such preferences and/or rights. Such request may be made to the Corporation or to
the Transfer Agent.
EXPLANATION OF ABBREVIATIONS
The following abbreviations when used in the form of ownership on the face of this certificate
shall be construed as though they were written out in full according to applicable laws or
regulations. Abbreviations in addition to those appearing below may be used.
| Abbreviation | Equivalent Phrase | Abbreviation | Equivalent Phrase | |||
JT TEN
|
As joint tenants, with right of survivorship and not as tenants in common | TEN BY ENT | As tenants by the entireties | |||
TEN IN COM
|
As tenants in common | UNIF GIFT MIN ACT | Uniform Gifts to Minors Act |
| Abbreviation | Equivalent Word | Abbreviation | Equivalent Word | Abbreviation | Equivalent Word | |||||
ADM
|
Administrator(s), | Executor(s), | ||||||||
| Administratrix | EX | Executrix | PAR | Paragraph | ||||||
AGMT
|
Agreement | FBO | For the benefit of | PL | Public Law | |||||
ART
|
Article | FDN | Foundation | TR | (As) trustee(s), for, of |
|||||
CH
|
Chapter | GDN | Guardian(s) | U | Under | |||||
CUST
|
Custodian for | GDNSHP | Guardianship | UA | Under agreement | |||||
DEC
|
Declaration | MIN | Minor(s) | UW | Under will of, Of will of, Under last will & testament |
|||||
EST
|
Estate, of Estate of |
A-3
For value received, ___hereby sell(s), assign(s) and transfer(s)
unto
PLEASE INSERT SOCIAL SECURITY OR OTHER IDENTIFYING NUMBER OF ASSIGNEE
PLEASE PRINT OR TYPEWRITE NAME AND ADDRESS INCLUDING POSTAL ZIP CODE OF ASSIGNEE
Depositary Shares represented by the within Receipt, and do(es) hereby irrevocably constitute
and appoint ___Attorney to transfer the said
Depositary Shares on the books of the within named Depositary with full power of substitution in
the premises.
Dated: |
||||
| NOTICE: The signature to the assignment must correspond with the name as written upon the face of this Receipt in every particular, without alteration or enlargement or any change whatsoever. |
SIGNATURE GUARANTEED
NOTICE: The signature(s) should be guaranteed by an eligible guarantor institution (banks,
stockbrokers, savings and loan associations, and credit unions with membership in an approved
signature guarantee medallion program), pursuant to Rule 17Ad-15 under the Securities Exchange Act
of 1934.
A-4
EXHIBIT B
FORM
OF OFFICER’S CERTIFICATE
I, ______,
[title]_______ of The ▇▇▇▇▇▇▇ ▇▇▇▇▇ Group, Inc.
(the “Company”), hereby certify that pursuant to the terms of a Certificate of Designations filed
with the Secretary of State of the State of Delaware on
___ (the “Certificate of
Designations”), and pursuant to resolutions adopted by the Board of Directors or a duly authorized
committee thereof on ___, the Company has established a series of
Stock which the Company desires to deposit with the Depositary for the purposes of being subject to
the terms and conditions of the Deposit Agreement, dated as of October 21, 2005, by and among the
Company, JPMorgan Chase Bank, N.A. and the holders of Receipts issued thereunder from time to time
(the “Deposit Agreement”). In connection therewith, the Board of Directors or a duly authorized
committee thereof has authorized the terms and conditions with respect to such series of Stock as
described in the Certificate of Designations attached as Annex A hereto. Any terms of the Stock
that are not so described in the Certificate of Designations and any
terms of the Receipts representing such Stock that are not described
in the Deposit Agreement are described below:
Aggregate
Number of shares of Stock issued on the day hereof:
CUSIP Number for Receipt:
Denomination of Depositary Share per
share of Stock (if different than
1/1000th of a share of Stock):
share of Stock (if different than
1/1000th of a share of Stock):
Redemption Provisions (if different
than as set forth in the Deposit
Agreement):
than as set forth in the Deposit
Agreement):
Global Registered
Receipts:
[Yes/No]
Name of Global Receipt Depositary:
Name of Registrar and Transfer Agent
with Respect to the Receipts (if
other than JPMorgan Chase Bank,
N.A.):
with Respect to the Receipts (if
other than JPMorgan Chase Bank,
N.A.):
Name of Registrar, Transfer Agent,
Dividend Disbursing Agent, and
Redemption Agent with Respect to the
Stock (if other than JPMorgan Chase
Bank, N.A.):
Dividend Disbursing Agent, and
Redemption Agent with Respect to the
Stock (if other than JPMorgan Chase
Bank, N.A.):
Name of Calculation Agent, if any:
Special
terms and conditions:
B-1
Closing date:
[Pursuant
to the terms of the Deposit Agreement, the Company hereby appoints JPMorgan Chase Bank, N.A. as calculation agent (the “Calculation
Agent”) for the particular series of Stock described in the Certificate of Designations attached
hereto.]
All capitalized terms used but not defined herein shall have such meaning as ascribed thereto
in the Deposit Agreement.
This certificate is dated ___.
| Name: | |||
| Title: |
[Agreed and Accepted by JPMorgan Chase Bank, N.A., as Calculation Agent
Name: |
|||
Title:] |
B-2