_____________________________________________
FREEPORT-McMoRan COPPER & GOLD INC.
and
MELLON SECURITIES TRUST COMPANY,
As Depositary
and
HOLDERS OF DEPOSITARY RECEIPTS
______________________
DEPOSIT AGREEMENT
______________________
Dated as of July 1, 1993
_____________________________________________
TABLE OF CONTENTS
Page
Parties 1
Recitals 1
ARTICLE I
DEFINITIONS
"Certificate of Designations" 1
"Certificate of Incorporation" 1
"Common Stock" 2
"Company" 2
"Corporate Office" 2
"Deposit Agreement" 2
"Depositary" 2
"Depositary Share" 2
"Depositary's Agent" 2
"New York Office" 3
"Receipt" 3
"record holder" 3
"Registrar" 3
"Securities Act" 3
"Stock" 3
ARTICLE II
FORM OF RECEIPTS, DEPOSIT OF STOCK,
EXECUTION AND DELIVERY, TRANSFER, SURRENDER,
REDEMPTION AND CONVERSION OF RECEIPTS
SECTION 2.01 Form and Transfer of Receipts 3
SECTION 2.02 Deposit of Stock; Execution and Delivery
of Receipts in Respect Thereof 4
SECTION 2.03 Redemption and Conversion of Stock 5
SECTION 2.04 Register of Transfer of Receipts 8
SECTION 2.05 Combination and Split-ups of Receipts 8
SECTION 2.06 Absence of Withdrawal Rights 8
SECTION 2.07 Limitations on Execution and Delivery,
Transfer, Split-up, Combination, Surrender
and Exchange of Receipts and Withdrawal or
Deposit of Stock 8
SECTION 2.08 Lost Receipts, etc 9
SECTION 2.09 Cancellation and Destruction of
Surrendered Receipts 10
ARTICLE III
CERTAIN OBLIGATIONS OF HOLDERS
OF RECEIPTS AND THE COMPANY
SECTION 3.01 Filing Proofs, Certificates and Other
Information 10
SECTION 3.02 Payment of Taxes or Other Governmental
Charges 10
SECTION 3.03 Withholding 11
SECTION 3.04 Representations and Warranties as to Stock 11
ARTICLE IV
THE STOCK, NOTICES
SECTION 4.01 Cash Distributions 12
SECTION 4.02 Distributions Other Than Cash 12
SECTION 4.03 Subscription Rights, Preferences or
Privileges 13
SECTION 4.04 Notice of Dividends, Fixing of Record Date
for Holders of Receipts 14
SECTION 4.05 Voting Rights. 14
SECTION 4.06 Changes Affecting Stock and
Reclassifications, Recapitalizations, etc. 15
SECTION 4.07 Reports 15
SECTION 4.08 Lists of Receipt Holders 15
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 Registration 15
SECTION 5.02 Prevention or Delay in Performance by the
Depositary, the Depositary's Agents, the
Registrar or the Company 16
SECTION 5.03 Obligations of the Depositary, the
Depositary's Agents, the Registrar and the
Company 17
SECTION 5.04 Resignation and Removal of the Depositary,
Appointment of Successor Depositary 19
SECTION 5.05 Corporate Notices and Reports. 20
SECTION 5.06 Deposit of Stock by the Company 20
SECTION 5.07 Indemnification by the Company 20
SECTION 5.08 Fees, Charges and Expenses 21
ARTICLE VI
AMENDMENT AND TERMINATION
SECTION 6.01 Amendment 21
SECTION 6.02 Termination 21
ARTICLE VII
MISCELLANEOUS
SECTION 7.01 Counterparts 22
SECTION 7.02 Exclusive Benefits of Parties 23
SECTION 7.03 Invalidity of Provisions 23
SECTION 7.04 Notices 23
SECTION 7.05 Depositary's Agents 24
SECTION 7.06 Holders of Receipts Are Parties 24
SECTION 7.07 Governing Law 24
SECTION 7.08 Headings 24
TESTIMONIUM 25
SIGNATURES 25
EXHIBIT A A-1
DEPOSIT AGREEMENT
DEPOSIT AGREEMENT, dated as of July 1, 1993 among
Freeport-McMoRan Copper & Gold Inc., a Delaware corporation,
Mellon Securities Trust Company, a New York trust company, 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 Designations" shall mean the Certificate of
Designations establishing and setting forth the rights,
preferences, privileges and limitations of the Stock.
"Certificate of Incorporation" shall mean the Certificate of
Incorporation, as amended and restated from time to time, of the
Company.
"Common Stock" shall mean the Company's Class A Common
Stock, par value $0.10 per share.
"Company" shall mean Freeport McMoRan Copper & Gold Inc., a
Delaware corporation, and its successors.
"Corporate Office" shall mean the office of the Depositary
in Ridgefield Park, New Jersey 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 85 Challenger Road.
"Deposit Agreement" shall mean this agreement, as the same
may be amended, modified or supplemented from time to time.
"Depositary" shall mean Mellon Securities Trust company, 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 0.05 shares 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,
conversion, exchange, voting and liquidation rights contained in
the Certificate of Designations, and to the benefits of all
obligations and duties of the Company in respect of the Stock
under the Certificate of Designations and the Certificate of
Incorporation.
"Depositary's Agent" shall mean an agent appointed by the
Depositary as provided, and for the purposes specified, in
Section 7.05.
"New York Office" shall mean the office maintained by the
Depositary in the Borough of Manhattan, The City of New York,
which at the date of this Deposit Agreement is located at 120
Broadway.
"Receipt" shall mean a Depositary Receipt executed and
delivered hereunder, in substantially the form of Exhibit A
hereto, evidencing 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 bank or trust company appointed
to register ownership and transfers of Receipts as herein
provided.
"Securities Act" shall mean the Securities Act of 1933, as
amended.
"Stock" shall mean shares of the Company's Step-Up
Convertible Preferred Stock, par value $0.10 per share.
ARTICLE II
FORM OF RECEIPTS, DEPOSIT OF STOCK,
EXECUTION AND DELIVERY, TRANSFER, SURRENDER,
REDEMPTION AND CONVERSION OF RECEIPTS
SECTION 2.01. Form and Transfer of Receipts. Receipts shall
be engraved or printed or lithographed on steel-engraved borders
and shall be substantially in the form set forth in Exhibit A
annexed to this Deposit Agreement, with appropriate insertions,
modifications and omissions, as hereinafter provided. Receipts
shall be executed by the Depositary by the manual signature of a
duly authorized 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. 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 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 New York office,
except that, at the request, risk and expense of any person
requesting such delivery and for the account of such person, such
delivery may be made at such other place as may be designated by
such person. In each case, delivery will be made only upon
payment by such person to the Depositary of all taxes and other
governmental charges and any fees payable in connection with such
deposit and the transfer of the deposited Stock.
The Company shall deliver to the Depositary from time to
time such quantities of Receipts as the Depositary may request to
enable the Depositary to perform its obligations under this
Deposit Agreement.
SECTION 2.03. Redemption and Conversion of Stock. Whenever
the Company shall elect to redeem shares of Stock into shares of
Common 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 5
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 15 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 redemption date; the number of
Depositary Shares to be redeemed if fewer than all the Depositary
Shares held by any holder are to be redeemed the number of such
Depositary Shares held by such holder to be so redeemed; in the
case of a call for redemption, the call price payable upon
redemption (and the form of consideration, whether cash,
securities or other consideration, on which the redemption call
price will be paid); the place or places where Receipts
evidencing Depositary Shares to be redeemed are to be surrendered
for redemption; whether the Company is depositing with a bank or
trust company on or before the redemption date, the cash payable
by the Company and the proposed date of such deposit; the amount
of accrued and unpaid dividends payable per share of Stock to be
redeemed to and including such redemption and that dividends in
respect of the Stock represented by the Depositary Shares to be
redeemed will cease to accrue on such redemption date (unless the
Company shall default in delivering cash or other consideration
at the time and place specified in such notice). 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 of Stock provided by the Company
pursuant to the Certificate of Designations. 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. In case fewer than all
the outstanding Depositary Shares are to be redeemed, the
Depositary Shares to be redeemed shall be selected by the
Depositary by lot or on a pro rata basis at the direction of the
Company.
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, securities or form of consideration 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 Designations.
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 (whether to be paid in the
form of cash, shares of Common Stock or other form or forms of
consideration) 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 a record holder of Receipts shall duly deliver, in
person or by a duly authorized attorney, such Receipts (properly
endorsed or assigned for transfer, as the Depositary shall
require) to the Depositary at the New York office, together with
written notice of such record holder's election to convert the
Depositary Shares evidenced by such Receipts into Common Stock
(provided that any delivery of Receipts evidencing Depositary
Shares that have been called for redemption may not occur after
the close of business on the date fixed for redemption), the
Depositary shall promptly notify the Company of such record
holder's election and deliver to the Company certificates
evidencing such Stock as are represented by the Depositary Shares
evidenced by such Receipts delivered by such record holder for
conversion. From and after the close of business on any business
day on which a record holder duly delivers the foregoing
documents to the Depositary, such Depositary Shares shall be
deemed converted into Common Stock at a conversion rate to be
communicated to the Depositary in writing, which conversion rate
will be equal to 0.05 times the conversion rate for each share of
Stock as set forth in the Certificate of Designations.
From and after the conversion date (unless the Company shall
have failed to convert the shares of Stock to be converted by it
upon the surrender of the certificate or certificates therefor by
the Depositary as described in the immediately preceding
paragraph), the Depositary Shares subject to conversion shall be
deemed no longer to be outstanding and all rights of the holders
of Receipts evidencing such Depositary Shares (except the right
to receive the cash, securities or shares of Common Stock payable
upon conversion upon surrender of such Receipts) shall, to the
extent of such Depositary Shares, cease and terminate.
To the extent that Depositary Shares are converted into
shares of Common Stock and all of such shares of Common Stock
cannot be distributed to the record holders of Receipts converted
without creating fractional interests in such shares, the Company
may distribute, or cause to be distributed, cash to such holders
in lieu of delivery of such fractional shares or, if the Company
elects not to make or cause to be made such a distribution, the
Depositary may, with the consent of the Company, adopt such
method as it deems equitable and practicable for the purpose of
effecting such distribution, including the sale (at public or
private sale) of such shares of Common Stock at such place or
places and upon such terms as it may deem proper, and the net
proceeds of any such sale shall, subject to Section 3.02, be
distributed or made available for distribution to such record
holders that would otherwise receive fractional interests in such
shares of Common Stock.
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, the New York Office or such other office as the
Depositary may designate for such purpose, by the record holder
in person or by a duly authorized attorney, properly endorsed or
accompanied by a properly executed instrument of transfer,
together with evidence of the payment of any transfer taxes as
may be required by law. Upon such surrender, the Depositary shall
execute a new Receipt or Receipts and deliver the same to or upon
the order of the person entitled thereto evidencing the same
aggregate number of Depositary Shares evidenced by the Receipt or
Receipts surrendered.
SECTION 2.05. Combination and Split-ups of Receipts. Upon
surrender of a Receipt or Receipts at the Corporate Office, the
New York Office or such other office as the Depositary may
designate for the purpose of effecting a split-up or combination
of Receipts, subject to the terms and conditions of this Deposit
Agreement, the Depositary shall execute and deliver a new Receipt
or Receipts in the authorized denominations requested evidencing
the same aggregate number of Depositary Shares evidenced by the
Receipt or Receipts surrendered; provided, however, that the
Depositary shall not issue any Receipt evidencing a fractional
Depositary Share.
SECTION 2.06. Absence of Withdrawal Rights. Holders of
Depositary Receipts are not entitled to receive the shares of
Stock or money and other property, if any, represented by the
Depositary Shares evidenced by such Receipts.
SECTION 2.07. Limitations on Execution and Delivery,
Transfer, Split-up Combination, Surrender and Exchange of
Receipts and Withdrawal or Deposit of Stock. As a condition
precedent to the execution and delivery, registration of
transfer, split-up, combination, surrender or exchange of any
Receipt, the delivery of any distribution thereon or the
withdrawal or deposit of Stock, the Depositary, any of the
Depositary's Agents or the Company may require any or all of the
following: (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 the Common Stock or other securities or
property of the Company being issued upon conversion or
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, the delivery of
Receipts against Stock or the registration of transfer, split-up,
combination, surrender or exchange of outstanding Receipts and
the withdrawal of deposited Stock may be suspended (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 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 is
authorized to destroy such Receipts so cancelled.
ARTICLE III
CERTAIN OBLIGATIONS OF HOLDERS
OF RECEIPTS AND THE COMPANY
SECTION 3.01. Filing Proofs, Certificates and Other
Information. Any person presenting Stock for deposit or any
holder of a Receipt may be required from time to time to file
such proof of residence or other information, to execute such
certificates and to make such representations and warranties as
the Depositary or the Company may reasonably deem necessary or
proper. The Depositary or the Company may withhold or delay the
delivery of any Receipt, the registration of transfer,
redemption, conversion or exchange of any Receipt, the withdrawal
of the Stock represented by the Depositary Shares evidenced by
any Receipt or the distribution of any dividend or other
distribution until such proof or other information is filed, such
certificates are executed or such representations and warranties
are made.
SECTION 3.02. Payment of Taxes or Other Governmental
Charges. If any tax 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 of transfer of any Receipt or any split-up or
combination thereof or any withdrawal of the Stock or money or
other property, if any, represented by the Depositary Shares
evidenced by such Receipt may be refused, any dividend or other
distribution may be withheld and any part or all of the Stock or
other property (including Common Stock received in connection
with a conversion or redemption of Stock) represented by the
Depositary Shares evidenced by such Receipt may be sold for the
account of the holder thereof (after attempting by reasonable
means to notify such holder prior to such sale). Any dividend or
other distribution so withheld and the proceeds of any such sale
may be applied to any payment of such tax or other governmental
charge, the holder of such Receipt remaining liable for any
deficiency.
SECTION 3.03. Withholding. The Depositary shall act as the
tax withholding agent for any payments, distributions and
exchanges made with respect to the Depositary Shares and
Receipts, and the Stock, Common Stock or other securities or
assets represented thereby (collectively, the "Securities"). The
Depositary shall be responsible with respect to the Securities
for the timely (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.
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 Distribution. 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 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 of the mandatory conversion of,
or any election on the part of the Company to call for the
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 to receive
notice of such meeting or of such conversion, exchange or
redemption.
SECTION 4.05. Voting Rights. Upon receipt of notice of any
meeting at which the holders of Stock are entitled to vote, the
Depositary shall, as soon as practicable thereafter, mail to the
record holders of Receipts a notice, which shall be provided by
the Company and which shall contain (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 fixed pursuant to Section 4.04 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 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 upon conversion of 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 upon conversion or in respect of such
Stock. In any such case the Depositary may, in its discretion,
with the approval of the Company, execute and deliver additional
Receipts, or may call for the surrender of all outstanding
Receipts to be exchanged for new Receipts specifically describing
such new deposited property.
SECTION 4.07. Reports. The 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 New York Office facilities for the
execution and delivery, registration, registration of transfer,
surrender and exchange, split-up, combination, redemption,
exchange and conversion of Receipts and deposit and withdrawal of
Stock and (ii) at the Corporate Office and at the offices of the
Depositary's Agents, if any, facilities for the delivery,
registration, registration of transfer, surrender and exchange,
split-up, combination, conversion, exchange 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 and exchange, split-up, combination,
redemption or conversion of such Receipts, such Depositary Shares
or such Stock as may be required by law or applicable stock
exchange regulations.
SECTION 5.02. Prevention or Delay in Performance by the
Depositary, the Depositary's Agents, the Registrar or the
Company. Neither the Depositary nor any Depositary's Agent nor
the Registrar nor the Company shall incur any liability to any
holder of any Receipt, if by reason of any provision of any
present or future law or regulation thereunder of the United
States of America or of any other governmental authority or, in
the case of the Depositary, the Registrar or any Depositary's
Agent, by reason of any provision, present or future, of the
Certificate of Incorporation or the Certificate of 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 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 negligence or bad faith.
SECTION 5.03. Obligations of the Depositary. the
Depositary's Agents. the Registrar and the Company. The Company
assumes no obligation and shall be subject to no liability under
this Deposit Agreement or the Receipts to holders or other
persons, except to perform in good faith such obligations as are
specifically set forth and undertaken by it to perform in this
Deposit Agreement. Each of the Depositary, the Depositary's
Agents and the Registrar assumes no obligation and shall be
subject to no liability under this Deposit Agreement or the
Receipts to holders or other persons, except to perform such
obligations as are specifically set forth and undertaken by it to
perform in this Deposit Agreement without negligence or bad
faith.
Neither the Depositary nor any Depositary's Agent nor the
Registrar nor the Company shall be under any obligation to appear
in, prosecute or defend any action, suit or other proceeding with
respect to Stock, Depositary Shares, Receipts or Common Stock
that in its opinion may involve it 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, the Receipts or the
Common Stock or other securities issued upon conversion, 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 jurisdiction of its incorporation, with full power,
authority and legal right under such law to execute, deliver and
carry out the terms of this Deposit Agreement; (ii) this Deposit
Agreement has been duly authorized, executed and delivered by the
Depositary; and (iii) this Deposit Agreement constitutes a valid
and binding obligation of the Depositary, enforceable against the
Depositary in accordance with its terms, 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 Designations to be furnished
by the Company to holders of Stock. Such transmission will be at
the Company's expense and the Company will provide the Depositary
with such number of copies of such documents as the Depositary
may reasonably request. In addition, the Depositary will transmit
to the record holders of Receipts at the Company's expense such
other documents as may be requested by the Company.
SECTION 5.06. Deposit of Stock by the Company. The Company
agrees with the Depositary that neither the Company nor any
company controlled by the Company will at any time deposit any
Stock if such Stock is required to be registered under the
provisions of the Securities Act and no registration statement is
at such time in effect as to such Stock.
SECTION 5.07. Indemnification by the Company. The Company
agrees to indemnify the Depositary, any Depositary's Agent and
any Registrar against, and hold each of them harmless from, any
liability, costs and expenses (including reasonable fees and
expenses of counsel) that may arise out of or in connection with
its acting as Depositary, Depositary's Agent or Registrar,
respectively, under this Deposit Agreement and the Receipts,
except for any liability arising out of negligence, bad faith or
willful misconduct on the part of any such person or persons.
SECTION 5.08. Fees, Charges and Expenses. No fees, charges
and expenses of the Depositary or any Depositary's Agent
hereunder or of any Registrar shall be payable by any person
other than the Company, except for any taxes and other
governmental charges and except as provided in this Deposit
Agreement. If, at the request of a holder of a Receipt, the
Depositary incurs fees, charges or expenses for which it is not
otherwise liable hereunder, such holder or other person will be
liable for such fees, charges and expenses. All other fees,
charges and expenses of the Depositary and any Depositary's Agent
hereunder and of any Registrar (including, in each case,
reasonable fees and expenses of counsel) incident to the
performance of their respective obligations hereunder will be
paid from time to time upon consultation and agreement between
the Depositary and the Company as to the amount and nature of
such fees, charges and expenses.
ARTICLE VI
AMENDMENT AND TERMINATION
SECTION 6.01. Amendment. The form of the Receipts and any
provision of this Deposit Agreement may at any time and from time
to time be amended by agreement between the Company and the
Depositary in any respect that they may deem necessary or
desirable; 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. 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 this Deposit Agreement as amended
thereby. 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
Receipts then outstanding at least 30 days prior to the date
fixed in such notice for such termination. The Depositary may
likewise terminate this Deposit Agreement if at any time 90 days
shall have expired after the Depositary shall have delivered to
the Company a written notice of its election to resign and a
successor depositary shall not have been appointed and accepted
its appointment as provided in Section 5.04.
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. In the event this Deposit Agreement is
terminated, the Company hereby agrees to use its best efforts to
list the underlying Stock on the New York Stock Exchange, Inc.
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 New York Office
and the respective offices of the Depositary's Agents, if any, by
any holder of a Receipt.
SECTION 7.02. Exclusive Benefits of Parties. This Deposit
Agreement is for the exclusive benefit of the parties hereto, and
their respective successors hereunder, and shall not be deemed to
give any legal or equitable right, remedy or claim to any other
person whatsoever.
SECTION 7.03. Invalidity of Provisions. In case any one or
more of the provisions contained in this Deposit Agreement or in
the Receipts should be or become invalid, illegal or
unenforceable in any respect, the validity, legality and
enforceability of the remaining provisions contained herein or
therein shall in no way be affected, prejudiced or disturbed
thereby.
SECTION 7.04. Notices. Any notices to be given to the
Company hereunder or under the Receipts shall be in writing and
shall be deemed to have been duly given if personally delivered
or sent by mail, or by telegram or telex or telecopier confirmed
by letter, addressed to the Company at 1615 Poydras St., New
Orleans, Louisiana 70112, Attention: 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.
Any notices given to any record holder of a Receipt
hereunder or under the Receipts shall be in writing and shall be
deemed to have been duly given if personally delivered or sent by
mail, or by telegram or telex or telecopier confirmed by letter,
addressed to such record holder at the address of such record
holder as it appears on the books of the Depositary or, if such
holder shall have filed with the Depositary a written request
that notices intended for such holder be mailed to some other
address, at the address designated in such request.
Delivery of a notice sent by mail, or by telegram or telex
or telecopier shall be deemed to be effected at the time when a
duly addressed letter containing the same (or a duly addressed
letter confirming an earlier notice in the case of a telegram or
telex or telecopier message) is deposited, postage prepaid, in a
post office letter box. The Depositary or the Company may,
however, act upon any telegram or telex or telecopier message
received by it from the other or from any holder of a Receipt,
notwithstanding that such telegram or telex or telecopier message
shall not subsequently be confirmed by letter as aforesaid.
SECTION 7.05. Depositary's Accents. 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 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, Freeport-McMoRan Copper & Gold Inc. and
Mellon Securities Trust Company 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.
FREEPORT-McMoRan COPPER & GOLD INC.
Attest:
By:__________________________ By:______________________________
Authorized Officer
Attest: MELLON SECURITIES TRUST COMPANY
By:__________________________ By:______________________________
Authorized Officer