EXHIBIT 4-6
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DEPOSIT AGREEMENT<*>
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Dated as of _______________, 19___
among
ARVIN INDUSTRIES, INC.,
______________________, as Depositary
and
THE HOLDERS FROM TIME TO TIME OF
THE DEPOSITARY RECEIPTS DESCRIBED HEREIN
<*>OPTIONS REPRESENTED BY BRACKETED OR BLANK SECTIONS HEREIN SHALL BE
DETERMINED IN CONFORMITY WITH APPLICABLE PROSPECTUS SUPPLEMENT OR
SUPPLEMENTS.
TABLE OF CONTENTS<*>
Page
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ARTICLE I DEFINITIONS
SECTION 1.01. "Agent" . . . . . . . . . . . . . . . . . . . 1
SECTION 1.02. "Articles of Incorporation" . . . . . . . . . 1
SECTION 1.03. "Common Shares" . . . . . . . . . . . . . . . 1
SECTION 1.04. "Company" . . . . . . . . . . . . . . . . . . 1
SECTION 1.05. "Corporate Office" . . . . . . . . . . . . . . 1
SECTION 1.06. "Deposit Agreement" . . . . . . . . . . . . . 2
SECTION 1.07. "Depositary" . . . . . . . . . . . . . . . . 2
SECTION 1.08. "Depositary Share" . . . . . . . . . . . . . . 2
SECTION 1.09. "Holder" . . . . . . . . . . . . . . . . . . . 2
SECTION 1.10. "Preferred Share Amendment" . . . . . . . . . 2
SECTION 1.11. "Preferred Shares" . . . . . . . . . . . . . 2
SECTION 1.12. "Receipt" . . . . . . . . . . . . . . . . . . 2
SECTION 1.13. "Registrar" . . . . . . . . . . . . . . . . . 2
SECTION 1.14. "Securities Act" . . . . . . . . . . . . . . 2
ARTICLE II FORM OF RECEIPTS, DEPOSIT OF PREFERRED SHARES,
EXECUTION AND DELIVERY, TRANSFER, SURRENDER AND REDEMPTION
OF RECEIPTS
SECTION 2.01. Form and Transferability of Receipts. . . . . 2
SECTION 2.02. Deposit of Preferred Shares; Execution and
Delivery of Receipts in Respect Thereof. . . . . . . . 4
SECTION 2.03. Optional Redemption of Preferred Shares. . . 5
SECTION 2.04. Registration of Transfer of Receipts. . . . . 7
SECTION 2.05. Combinations and Split-Ups of Receipts. . . . 7
SECTION 2.06. Limitations on Execution and Delivery,
Transfer, Split-up, Combination, Surrender and Exchange
of Receipts . . . . . . . . . . . . . . . . . . . . . . 7
SECTION 2.07. Lost Receipts, Etc. . . . . . . . . . . . . . 8
SECTION 2.08. Cancellation and Destruction of Surrendered
Receipts . . . . . . . . . . . . . . . . . . . . . . . 8
SECTION 2.09. Conversion or Exchange of Preferred Shares
Into Common Shares or Other Securities . . . . . . . . 8
SECTION 2.10. Prohibition Against Lending Depositary Shares
or Receipts . . . . . . . . . . . . . . . . . . . . . . 11
[Section 2.11. Surrender of Receipts and Withdrawal of
Preferred Shares . . . . . . . . . . . . . . . . . . . 12
ARTICLE III CERTAIN OBLIGATIONS OF HOLDERS OF RECEIPTS AND THE
COMPANY
SECTION 3.01. Filing Proofs, Certificates and Other
Information . . . . . . . . . . . . . . . . . . . . . . 13
SECTION 3.02. Payment of Fees and Expenses . . . . . . . . 13
SECTION 3.03. Representations and Warranties as to
Preferred Shares . . . . . . . . . . . . . . . . . . . 13
SECTION 3.04. Representation and Warranty as to Receipts . 14
<*>The Table of Contents is not part of the Deposit Agreement.
SECTION 3.05. Covenants and Representation and Warranty as
to Common Shares or Other Securities . . . . . . . . . 14
ARTICLE IV THE PREFERRED SHARES; NOTICES
SECTION 4.01. Rights of Owners of Depositary Shares . . . . 14
SECTION 4.02. Cash Distributions . . . . . . . . . . . . . 14
SECTION 4.03. Distributions Other Than Cash . . . . . . . . 15
SECTION 4.04. Subscription Rights, Preferences or
Privileges . . . . . . . . . . . . . . . . . . . . . . 15
SECTION 4.05. Notice of Dividends; Fixing of Record Date
for Holders of Receipts . . . . . . . . . . . . . . . . 16
SECTION 4.06. Voting Rights . . . . . . . . . . . . . . . . 17
SECTION 4.07. Changes Affecting Preferred Shares and
Reclassifications, Recapitalizations, Etc. . . . . . . 17
SECTION 4.08. Inspection of Reports . . . . . . . . . . . . 18
SECTION 4.09. Lists of Receipt Holders . . . . . . . . . . 18
SECTION 4.10. Tax and Regulatory Compliance . . . . . . . . 18
ARTICLE V THE DEPOSITARY AND THE COMPANY
SECTION 5.01. Maintenance of Offices, Agencies and Transfer
Books by the Depositary and the Registrar . . . . . . . 18
SECTION 5.02. Prevention or Delay in Performance by the
Depositary, Any Agent, the Registrar or the Company . . 19
SECTION 5.03. Obligations of the Depositary, any Agent, the
Registrar and the Company . . . . . . . . . . . . . . . 19
SECTION 5.04. Resignation and Removal of the Depositary;
Appointment of Successor Depositary . . . . . . . . . . 21
SECTION 5.05. Corporate Notices and Reports . . . . . . . . 22
SECTION 5.06 Indemnification by the Company . . . . . . . . 22
SECTION 5.07. Fees, Charges and Expenses . . . . . . . . . 22
ARTICLE VI AMENDMENT AND TERMINATION
SECTION 6.01. Amendment. . . . . . . . . . . . . . . . . . 23
SECTION 6.02. Termination . . . . . . . . . . . . . . . . . 23
ARTICLE VII MISCELLANEOUS
SECTION 7.01. Counterparts . . . . . . . . . . . . . . . . 25
SECTION 7.02. Exclusive Benefits of Parties . . . . . . . . 25
SECTION 7.03. Invalidity of Provisions . . . . . . . . . . 25
SECTION 7.04. Notices . . . . . . . . . . . . . . . . . . . 25
SECTION 7.05. Holders of Receipts are Parties . . . . . . . 26
SECTION 7.06. Governing Law . . . . . . . . . . . . . . . . 26
SECTION 7.07. Inspection of Deposit Agreement and Preferred
Share Amendment. . . . . . . . . . . . . . . . . . . . 26
SECTION 7.08. Headings . . . . . . . . . . . . . . . . . . 26
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DEPOSIT AGREEMENT
DEPOSIT AGREEMENT, dated as of ________, 19___, among ARVIN
INDUSTRIES, INC. an Indiana corporation, ____________________, as
Depositary, and all Holders from time to time of the Receipts
described herein.
WITNESSETH:
WHEREAS, it is desired to provide, as hereinafter set forth in
this Deposit Agreement, for the deposit by the Company of certain of
the Company's Preferred Shares with the Depositary 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 Preferred Shares deposited; and
WHEREAS, the Receipts are to be substantially in the form of
Exhibit A annexed 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:
SECTION 1.01. "Agent" shall mean any agent of the Depositary
appointed by the Depositary from time to time to act in any respect
for the Depositary for purposes of this Deposit Agreement and the
appointment of which may be modified or terminated by the Depositary.
The Depositary will notify the Company of any such action.
SECTION 1.02. "Articles of Incorporation" shall mean the Restated
Articles of Incorporation, as amended and/or restated from time to
time, of the Company.
SECTION 1.03. "Common Shares" shall mean the Company's Common
Shares, $2.50 par value per share, or shares of any class resulting
from any reclassification thereof.
SECTION 1.04. "Company" shall mean Arvin Industries, Inc., an
Indiana corporation, and its successors.
SECTION 1.05. "Corporate Office" shall mean the corporate office
of the Depositary in _________________________________ at which at any
particular time its business in respect of matters governed by this
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Deposit Agreement shall be administered, which at the date of this
Deposit Agreement is located at ____________________.
SECTION 1.06. "Deposit Agreement" shall mean this agreement, as
the same may be amended, modified or supplemented from time to time.
SECTION 1.07. "Depositary" shall mean ____________________, a
company having its principal office in the United States and having a
combined capital and surplus of at least $50,000,000, and any
successor as depositary hereunder.
SECTION 1.08. "Depositary Share" shall mean an interest in the
following specified fraction, namely one ______ (1/__), of one share
of the Preferred Shares deposited by the Company with the Depositary
hereunder and the same proportionate interest in any and all other
property received by the Depositary in respect of such Preferred
Shares and held under this Deposit Agreement, all as evidenced by the
Receipts.
SECTION 1.09. "Holder", as applied to a Receipt, shall mean the
person in whose name an outstanding Receipt is registered on the books
maintained by the Depositary for such purpose.
SECTION 1.10. "Preferred Share Amendment" shall mean the
Preferred Share Amendment of the Restated Articles of Incorporation
filed with the Secretary of State of Indiana establishing the
Preferred Shares as a series of Preferred Shares.
SECTION 1.11. "Preferred Shares" shall mean shares of the
Company's ________________________________ Preferred Shares, with no
par value per share, as specified in the Preferred Share Amendment.
SECTION 1.12. "Receipt" shall mean a depositary receipt issued
hereunder to evidence one or more Depositary Shares, whether in
definitive or temporary form, substantially in the form set forth as
Exhibit A hereto.
SECTION 1.13. "Registrar" shall mean any bank or trust company
appointed to register ownership and transfers of Receipts as herein
provided.
SECTION 1.14. "Securities Act" shall mean the Securities Act of
1933, as amended.
ARTICLE II
FORM OF RECEIPTS, DEPOSIT OF PREFERRED SHARES, EXECUTION AND
DELIVERY, TRANSFER, SURRENDER AND REDEMPTION OF RECEIPTS
SECTION 2.01. Form and Transferability of Receipts. Definitive
Receipts shall be engraved, printed or lithographed, with steel-
engraved borders and underlying tint, and shall be substantially in
the form set forth in Exhibit A attached hereto, with appropriate
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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
2.02, shall execute and deliver temporary Receipts, which may be
printed, lithographed, typewritten, reproduced 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 shall be exchangeable for definitive Receipts upon
surrender of the temporary Receipts at the Corporate Office or such
other office or offices, if any, as the Depositary may designate,
without charge to the Holder. Upon surrender for cancellation of any
one or more temporary Receipts, the Depositary shall execute and
deliver in exchange therefor definitive Receipts representing the same
number of Depositary Shares represented by the surrendered temporary
Receipt or Receipts. Such exchange shall be made at the Company's
expense and without any charge therefor. Until so exchanged, the
temporary Receipts shall in all respects be entitled to the same
benefits under this Agreement, and with respect to the Preferred
Shares deposited hereunder, as definitive Receipts.
Receipts shall be executed by the Depositary by the manual
signature of a duly authorized signatory of the Depositary, provided
that such signature may be a facsimile if a Registrar (other than the
Depositary) shall have countersigned the Receipts by manual signature
of a duly authorized signatory of the Registrar. No Receipt shall be
entitled to any benefits under this Deposit Agreement or be valid or
obligatory for any purpose unless it shall have been executed as
provided in the preceding sentence. The Depositary shall record on
its books each Receipt executed as provided above and delivered as
hereinafter provided.
Except as the Depositary may otherwise determine, Receipts shall
be in denominations of any number of whole Depositary Shares. All
Receipts shall be dated the date of their issuance.
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 Preferred Shares, the Depositary Shares or the Receipts may
be listed or to conform with any usage with respect thereto, or to
indicate any special limitations or restrictions to which any
particular Receipts are subject.
Title to any Receipt (and to the Depositary Shares evidenced by
such Receipt) that is properly endorsed or accompanied by a properly
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executed instrument of transfer or endorsement shall be transferable
by delivery with the same effect as in the case of a negotiable
instrument; provided, however, that until a Receipt shall be
transferred on the books of the Depositary as provided in Section
2.04, the Depositary and the Company may, notwithstanding any notice
to the contrary, treat the Holder thereof at such time as the absolute
owner thereof for the purpose of determining the person entitled to
receive dividends and other distributions and notices provided for in
this Deposit Agreement and for all other purposes.
SECTION 2.02. Deposit of Preferred Shares; 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 Preferred Shares under this Deposit Agreement by delivery
to the Depositary of a certificate or certificates for the Preferred
Shares 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 (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 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 Preferred Shares.
Upon receipt by the Depositary of a certificate or certificates
for Preferred Shares to be deposited hereunder, together with the
other documents specified above, the Depositary shall, as soon as
transfers and registration can be accomplished, present such
certificate or certificates to the registrar and transfer agent of the
Preferred Shares for transfer and registration in the name of the
Depositary or its nominee of the Preferred Shares being deposited.
Deposited Preferred Shares shall be held by the Depositary in an
account to be established by the Depositary at the Corporate Office or
at such other office as the Depositary shall determine.
Upon receipt by the Depositary of a certificate or certificates
for Preferred Shares to be deposited hereunder, together with the
other documents specified above, and upon registration of the
Preferred Shares on the books of the Company in the name of the
Depositary or its nominee, the Depositary, subject to the terms and
conditions of this Deposit Agreement, shall execute and deliver to or
upon the order of the 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 Preferred Shares so deposited, registered in
such name or names as may be requested by such person or persons. The
Depositary shall execute and deliver such Receipt or Receipts at the
Corporate Office, except that, at the request, risk and expense of any
person requesting such delivery, 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 to the Depositary of all taxes
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and other governmental charges and any fees payable in connection with
such deposit and the transfer of the deposited Preferred Shares.
Other than in the case of splits, combinations or other
reclassifications affecting the Preferred Shares or in the case of
dividends or other distributions of Preferred Shares, if any, there
shall be deposited hereunder not more than the number of shares
constituting the Preferred Shares as set forth in the Preferred Share
Amendment, as it may be amended.
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. Optional Redemption of Preferred Shares. If the
Preferred Share Amendment provides for redemption of the Preferred
Shares at the option of the Company, the Company (unless otherwise
agreed in writing with the Depositary), whenever it elects to redeem
Preferred Shares, shall give the Depositary not less than _____ days'
prior written notice of the date of such proposed redemption and of
the number of Preferred Shares held by the Depositary to be redeemed
and the applicable redemption price, as set forth in the Preferred
Share Amendment, including the amount, if any, of accrued and unpaid
dividends to the date of such redemption. Provided that the Company
shall have paid such redemption price in full to the Depositary on or
prior to the date of such redemption, the Depositary shall redeem
(using the proceeds of such redemption) the number of Depositary
Shares representing such Preferred Shares so redeemed by the Company.
The Depositary shall mail, first-class postage prepaid, notice of the
redemption of Preferred Shares and the proposed simultaneous
redemption of the Depositary Shares representing the Preferred Shares
to be redeemed, not less than [30] nor more than [60] days prior to
the date fixed for redemption of such Preferred Shares and Depositary
Shares (the "redemption date"), to the Holders on the record date
fixed for such redemption, pursuant to Section 4.04 hereof, 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; but neither failure to mail any such notice to one or more
such Holders nor any defect in any notice shall affect the sufficiency
of the redemption as to other Holders. The Company shall provide the
Depositary with such notice, and each such notice shall state: (i) the
record date for the purposes of such redemption; (ii) the redemption
date; (iii) the number of Depositary Shares to be redeemed; (iv) 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; (v) the redemption price; (vi) the place or places
where Receipts evidencing Depositary Shares to be redeemed are to be
surrendered for payment of the redemption price; (vii) that, from and
after the redemption date, dividends in respect of the Preferred
Shares represented by the Depositary Shares to be redeemed will cease
to accrue and all other rights with respect to such Depositary Shares
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will cease and terminate; and (viii) in the event that the Depositary
Shares evidence Preferred Shares convertible into or exchangeable for
Common Shares or other securities of the Company, that all conversion
and exchange rights, as the case may be, in respect of such Preferred
Shares will terminate at the close of business on the last business
day preceding such redemption date. If fewer than all the outstanding
Depositary Shares are to be redeemed, the Depositary Shares to be
redeemed shall be selected by lot or pro rata (as nearly as may be) or
in any other equitable manner, in each case as may be determined by
the Company.
From and after the redemption date (unless the Company shall have
failed to redeem the Preferred Shares to be redeemed by it as set
forth in the Company's notice mailed by the Depositary in accordance
with the preceding paragraph), (i) all dividends in respect of the
Preferred Shares called for redemption shall cease to accrue; (ii) in
the event that the Depositary Shares evidence Preferred Shares
convertible into or exchangeable for Common Shares or other securities
of the Company, the conversion and exchange rights, as the case may
be, in respect of such Preferred Shares shall terminate; (iii) the
Depositary Shares called for redemption shall be deemed no longer to
be outstanding; and (iv) all rights of the Holders of Receipts
evidencing such Depositary Shares (except the right to receive the
redemption price) shall cease and terminate. Upon surrender in
accordance with said notice of the Receipts evidencing such Depositary
Shares (properly endorsed or assigned for transfer, if the Depositary
shall so require), such Depositary Shares shall be redeemed at a
redemption price per Depositary Share equal to [specify fraction] of
the redemption price per share paid in respect of the Preferred Shares
pursuant to the Preferred Share Amendment plus any other money and
other property represented by each such Depositary Share. The
foregoing shall be further subject to the terms and conditions of the
Preferred Share Amendment.
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
payment of the redemption price for 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
Preferred Shares 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 preceding paragraph of this Section
2.03.]
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SECTION 2.04. Registration of Transfer of Receipts. Subject to
the terms and conditions of this Deposit Agreement, the Depositary
shall register on its books transfers of Receipts upon any surrender
thereof by the Holder in person or by a duly authorized attorney,
properly endorsed or accompanied by a properly executed instrument of
transfer or endorsement, together with evidence of the payment of any
transfer taxes and other governmental charges 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. Combinations and Split-Ups of Receipts. Upon
surrender by a Holder of a Receipt or Receipts at the Corporate Office
or such other office as the Depositary may designate for the purpose
of effecting a split-up or combination of Receipts, subject to the
terms and conditions of this Deposit Agreement, the Depositary shall
execute and deliver a new Receipt or Receipts in the authorized
denominations requested evidencing the same aggregate number of
Depositary Shares evidenced by the Receipt or Receipts surrendered;
provided, however, that the Depositary shall not issue any Receipt
evidencing a fractional Depositary Share.
SECTION 2.06. Limitations on Execution and Delivery, Transfer,
Split-up, Combination, Surrender and Exchange of Receipts. As a
condition precedent to the execution and delivery, transfer, split-up,
combination, surrender or exchange of any Receipt or, in the event
that the Depositary Shares evidence Preferred Shares convertible into
or exchangeable for Common Shares or other securities of the Company,
to the exercise of any conversion or exchange right referred to in
Section 2.09, the Depositary, any Agent 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 Company shall
have made such payment, the reimbursement) of any tax or other
governmental charge with respect thereto (including any such tax or
charge with respect to the Preferred Shares being deposited or
withdrawn, provided that, in the event that the Depositary Shares
evidence Preferred Shares convertible into or exchangeable for Common
Shares or other securities of the Company, the Company shall pay any
documentary, stamp or similar issue or transfer tax or other
governmental charge due on the issuance of Common Shares or other
securities upon such conversion or exchange, as the case may be; and
provided further that the Holder of such Receipt shall pay the amount
of any tax or other governmental charge due if such Common Shares or
such other securities are to be issued in a name other than that of
such Holder); (ii) the production of proof satisfactory to it as to
the identity and genuineness of any signature (or the authority of any
signature); and (iii) compliance with such regulations, if any, as the
Depositary or the Company may establish consistent with the provisions
of this Deposit Agreement.
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The delivery of Receipts against Preferred Shares may be
suspended, the transfer of Receipts may be refused, the transfer,
split-up, combination, surrender or exchange of outstanding Receipts
may be suspended and, in the event that the Depositary Shares evidence
Preferred Shares convertible into or exchangeable for Common Shares or
other securities of the Company, the exercise of any conversion or
exchange right referred to in Section 2.09 may be suspended (i) during
any period when the register of holders of the Preferred Shares is
closed or (ii) if any such action is deemed necessary or advisable by
the Depositary or any Agent 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. Without
limitation of the foregoing, the Depositary shall not knowingly accept
for deposit under this Deposit Agreement any Preferred Shares that are
required to be, but are not, registered under the Securities Act and
the Company shall deliver to the Depositary written notice that, at
the time of deposit, a registration statement under the Securities Act
is in effect as to such Preferred Shares.
SECTION 2.07. Lost Receipts, Etc. In case any Receipt shall be
mutilated or destroyed or lost or stolen, the Depositary in its
discretion may execute and deliver a Receipt of like form and tenor in
exchange and substitution for such mutilated Receipt or in lieu of and
in substitution for such destroyed, lost or stolen Receipt, provided
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 or her ownership
thereof and (ii) reasonable indemnification satisfactory to the
Depositary and the Company.
SECTION 2.08. Cancellation and Destruction of Surrendered
Receipts. All Receipts surrendered to the Depositary or any Agent
shall be cancelled by the Depositary. Except as prohibited by
applicable law or regulation, the Depositary is authorized to destroy
such cancelled Receipts.
SECTION 2.09. Conversion or Exchange of Preferred Shares Into
Common Shares or Other Securities. (a) The Depositary Shares are not
convertible into or exchangeable for Common Shares or any other
securities or property of the Company. Nevertheless, as a matter of
convenience, in the event that the Depositary Shares evidence
Preferred Shares that are convertible into or exchangeable for Common
Shares or other securities of the Company, the Company hereby agrees
to cause the Depositary to accept (or to cause the Company's
conversion agent or exchange agent, as the case may be, to accept) the
delivery of Receipts for the purpose of effecting conversions or
exchanges of the Preferred Shares utilizing the same procedures as
those provided for delivery of Preferred Share certificates to effect
such conversions or exchanges in accordance with the terms and
conditions of the Preferred Share Amendment; provided, however, that
only whole Depositary Shares may be so submitted for conversion or
exchange.
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(b) Receipts may be surrendered with written instructions to the
Depositary to instruct the Company to cause the conversion or exchange
of any specified number of whole or fractional Preferred Shares,
convertible into or exchangeable for Common Shares or other securities
of the Company, that is represented by the Depositary Shares evidenced
by such Receipts into the number of whole Common Shares or whole
number of such other securities of the Company obtained by dividing
the aggregate [liquidation preference] of such Depositary Shares by
the [Conversion Price] (as such term is defined in the Preferred Share
Amendment) or exchange ratio, as the case may be, then in effect, as
such [Conversion Price] or exchange ratio may be adjusted by the
Company from time to time as provided in the Preferred Share
Amendment. Subject to the terms and conditions of this Deposit
Agreement and the Preferred Share Amendment, a Holder of a Receipt or
Receipts evidencing Depositary Shares representing whole or fractional
Preferred Shares may surrender such Receipt or Receipts to the
Depositary at the Corporate Office or to such office or to such Agents
as the Depositary may designate for such purpose, together with (i) a
notice of conversion or exchange thereof, as the case may be, duly
completed and executed (a "Notice of Conversion/Exchange"), and (ii)
any payment in respect of dividends required by Section 2.09(e),
thereby directing the Depositary to instruct the Company to cause the
conversion or exchange, as the case may be, of the number of whole
shares or fractions thereof of underlying Preferred Shares specified
in such Notice of Conversion/Exchange into whole Common Shares or a
whole number of such other securities of the Company. In the event
that a Holder delivers to the Depositary for conversion or exchange a
Receipt or Receipts which in the aggregate are convertible into or
exchangeable for less than (i) one whole Common Shares or any number
of whole Common Shares plus an excess constituting less than one whole
Common Share or (ii) any whole number of such other securities plus an
excess constituting less than one security, the Holder shall receive
payment in lieu of such fractional Common Shares or fractional
interest in such securities otherwise issuable in accordance with
Section 2.09(g). If more than one Receipt shall be delivered for
conversion or exchange, as the case may be, at one time by the same
Holder, the number of whole Common Shares or the whole number of such
other securities issuable upon conversion or exchange, as the case may
be, thereof shall be computed on the basis of the aggregate number of
Receipts so delivered.
(c) Upon receipt by the Depositary of one or more Receipts,
together with a duly completed and executed Notice of
Conversion/Exchange, the Depositary shall, on the date of receipt of
such Notice of Conversion/Exchange, instruct the Company (i) to cause
the conversion or exchange, as the case may be, of the Depositary
Shares evidenced by the Receipts so surrendered for conversion or
exchange as specified in the Notice of Conversion/Exchange and (ii) to
cause the delivery to the Holder or Holders of such Receipts of a
certificate or certificates evidencing the number of whole Common
Shares or the whole number of such other securities and the amount of
money, if any, to be delivered to the Holders of Receipts surrendered
-9-
for conversion or exchange in payment of any fractional Common Shares
or of any fractional interest in such other securities otherwise
issuable, as the case may be. The Company shall, as promptly as
practicable after receipt thereof, cause the delivery to such Holder
or Holders of (i) a certificate or certificates evidencing the number
of whole Common Shares or the whole number of such other securities
into or for which the Preferred Shares represented by the Depositary
Shares evidenced by such Receipt or Receipts has been converted or
exchanged, as the case may be, and (ii) any money or other property to
which the Holder or Holders are entitled. The person or persons in
whose name or names any certificate or certificates for Common Shares
or for such securities shall be issuable upon such conversion or
exchange, as the case may be, shall be deemed to have become the
holder or holders of record of the shares or securities represented
thereby at the close of business on the date such Receipt or Receipts
shall have been surrendered to and a Notice of Conversion/Exchange
received by the Depositary, unless the share or securities transfer
books of the Company shall be closed on that date, in which event such
person or persons shall be deemed to have become such Holder or
Holders of record on the next succeeding day on which such share or
securities transfer books are open. Upon such conversion or exchange,
the Depositary (i) shall deliver to the Holder a Receipt evidencing
the number of Depositary Shares, if any, which such Holder has elected
not to convert or exchange in excess of the number of Depositary
Shares representing Preferred Shares which has been so converted or
exchanged, as the case may be, (ii) shall cancel the Depositary Shares
evidenced by Receipts surrendered for conversion or exchange, as the
case may be, and (iii) shall deliver for cancellation to the transfer
agent for the Preferred Shares the Preferred Shares represented by the
Depositary Shares evidenced by the Receipts so surrendered and so
converted or exchanged, as the case may be.
(d) If any Preferred Shares convertible into or exchangeable for
Common Shares or other securities of the Company shall be called by
the Company for redemption, the Depositary Shares representing such
Preferred Shares may be converted or exchanged into Common Shares or
such securities as provided in this Deposit Agreement until and
including, but not after, the close of business on the redemption date
(as defined in Section 2.03) unless the Company shall default in
making payment of the redemption price pursuant to the Preferred Share
Agreement and this Depositary Agreement. Upon receipt by the
Depositary of a Receipt or Receipts representing any Preferred Shares
called for redemption, together with a properly completed and executed
Notice of Conversion/Exchange, the Preferred Shares held by the
Depositary represented by such Depositary Shares as to which
conversion or exchange, as the case may be, is requested shall be
deemed to have been received by the Company for conversion or
exchange.
(e) Upon any conversion or exchange, as the case may be, of the
Preferred Shares underlying the Depositary Shares, no allowance,
adjustment or payment shall be made with respect to accrued dividends
-10-
upon such Preferred Shares[, except that if any Holder of a Receipt
surrenders such Receipt with instructions to the Depositary for
conversion or exchange of the underlying Preferred Shares evidenced
thereby during the period between the opening of business on any
dividend record date and the close of business on the corresponding
dividend payment date (except shares called for redemption on a
redemption date during such period), such Receipt must be accompanied
by a payment equal to the dividend thereon, if any, which the Holder
of such Receipt is entitled to receive on such dividend payment date
in respect of the underlying Preferred Shares to be converted or
exchanged.]
(f) Upon the conversion or exchange, as the case may be, of any
Preferred Shares for which a duly completed and executed Notice of
Conversion/Exchange has been received by the Depositary, all dividends
in respect of such Depositary Shares shall cease to accrue, such
Depositary Shares shall be deemed no longer outstanding, all rights of
the Holder of the Receipt with respect to such Depositary Shares
(except the right to receive the Common Shares or other securities of
the Company, any cash payable with respect to any fractional Common
Shares or fractional interest in such securities, as the case may be,
as provided herein and under the Preferred Share Amendment and any
cash payable on account of accrued dividends in respect of the
Preferred Shares so converted or exchanged and any Receipts evidencing
Depositary Shares not so converted or exchanged) shall terminate, and
the Receipt evidencing such Depositary Shares shall be cancelled in
accordance with Section 2.08 hereof.
(g) No fractional Common Shares or fractional interest in such
other securities shall be issuable upon conversion or exchange of
Preferred Shares underlying the Depositary Shares. If, except for the
provisions of this Section 2.09 and the Preferred Share Amendment, any
Holder of Receipts surrendered to the Depositary for conversion or
exchange of the underlying Preferred Shares would be entitled to a
fractional Common Share or a fractional security upon such conversion
or exchange, the Company shall cause to be delivered to such Holder an
amount in cash for such fractional share or security determined in
accordance with the Preferred Share Amendment.
(h) In the event that there exists any inconsistency between
this Section 2.09 and any provisions of the Preferred Share Amendment
then in effect, the applicable provisions of the Preferred Share
Amendment shall control.
SECTION 2.10. Prohibition Against Lending Depositary Shares or
Receipts. The Depositary shall not lend any Depositary Shares or
Receipts at any time held hereunder.
[Section 2.11. Surrender of Receipts and Withdrawal of Preferred
Shares. Any Holder of a Receipt or Receipts may withdraw any or all
of the Preferred Shares represented by the Depositary Shares evidenced
by such Receipts and all money and other property, if any, represented
-11-
by such Depositary Shares by surrendering such Receipt or Receipts at
the Corporate Office or at such other office as the Depositary may
designate for such withdrawals; provided that a Holder may not
withdraw Preferred Shares (or money and other property, if any,
represented thereby) which has previously been called for redemption.
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 Preferred Shares and all
such money and other property, if any, represented by the Depositary
Shares evidenced by the Receipt or Receipts so surrendered for
withdrawal, but holders of such whole Preferred Shares will not be
entitled to deposit such Preferred Shares hereunder or to receive
Depositary Shares therefor. If the Receipt or Receipts delivered by
the Holder to the Depositary in connection with such withdrawal shall
evidence a number of Depositary Shares in excess of the number of
whole Depositary Shares representing the number of whole Preferred
Shares to be withdrawn, the Depositary shall at the same time, in
addition to such number of whole Preferred Shares and such money and
other property, if any, to be withdrawn, deliver to such Holder, or
(subject to Sections 2.04 and 2.05) upon his order, a new Receipt or
Receipts evidencing such excess number of whole Depositary Shares. In
no event will fractional Preferred Shares or Receipts evidencing
fractional Depositary Shares be distributed or issued by the
Depositary. Delivery of the Preferred Shares and such money and other
property being withdrawn may be made by the delivery of such
certificates, documents of title and other instruments as the
Depositary may deem appropriate, which, if required by the Depositary,
shall be properly endorsed or accompanied by proper instruments of
transfer.
If the Preferred Shares and the money and other property being
withdrawn are to be delivered to a person or persons other than the
Holder of the Receipt or Receipts being surrendered for withdrawal of
Preferred Shares, such Holder shall execute and deliver to the
Depositary a written order so directing the Depositary, and the
Depositary may require that the Receipt or Receipts surrendered by
such Holder for withdrawal of such Preferred Shares be properly
endorsed in blank or accompanied by a properly executed instrument of
transfer or endorsement in blank; provided that the Holder of such
Receipt shall pay the amount of any tax or other governmental charge
due.
The Depositary shall deliver the Preferred Shares and the money
and other property, if any, represented by the Depositary Shares
evidenced by Receipts surrendered for withdrawal at the Corporate
Office, except that, at the request, risk and expense of the Holder
surrendering such Receipt or Receipts and for the account of the
Holder thereof, such delivery may be made at such other place as may
be designated by such Holder.]
ARTICLE III
CERTAIN OBLIGATIONS OF HOLDERS OF RECEIPTS AND THE COMPANY
-12-
SECTION 3.01. Filing Proofs, Certificates and Other Information.
Any Holder may be required from time to time to file such proof of
residence or other information, to execute such certificate 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, transfer, redemption
or exchange of any Receipt, [the withdrawal of the Preferred Shares
represented by the Depositary Shares evidenced by any Receipt,] the
distribution of any dividend or other distribution, the sale of any
rights or of the proceeds thereof, the exercise of any conversion or
exchange right referred to in Section 2.09 or the delivery of any
Common Shares or other securities of the Company upon such conversion
or exchange until such proof or other information is filed, such
certificates are executed or such representations and warranties are
made.
SECTION 3.02. Payment of Fees and Expenses. Holders of Receipts
shall be obligated to make payments to the Depositary of certain fees
and expenses, as provided in Section 5.07, or provide evidence
reasonably satisfactory to the Depositary that such fees and expenses
have been paid. Until such payment is made, transfer of any Receipt
[or any withdrawal of the Preferred Shares 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, any conversion or exchange right may be refused and any part
or all of the Preferred Shares or other property represented by the
Depositary Shares evidenced by such Receipt may be sold for the
account of the Holder thereof (after attempting by reasonable means to
obtain such payment prior to such sale), provided that notice of such
sale shall be sent by the Depositary to such Holder. Any dividend or
other distribution so withheld and the proceeds of any such sale may
be applied to any payment of such fees or expenses, the Holder of such
Receipt remaining liable for any deficiency. In the event the
Depositary is required to pay any such amounts, the Company shall
reimburse the Depositary for payment thereof upon the request of the
Depositary and the Depositary shall, upon the Company's request and as
instructed by the Company, pursue its rights against such Holder at
the Company's expense.
SECTION 3.03. Representations and Warranties as to Preferred
Shares. The Company hereby represents and warrants that (i) the
Preferred Shares deposited hereunder have been duly authorized and,
when issued and deposited hereunder, will be validly issued, fully
paid and nonassessable, (ii) the Depositary Shares have been duly
authorized and, when the Receipts are executed, countersigned, issued
and delivered in the manner provided for herein, such Depositary
Shares will represent legal and valid interests in the Preferred
Shares deposited hereunder, and (iii) all corporate action required to
be taken for the authorization, issuance and delivery of such
Preferred Shares and Depositary Shares has been validly taken. Such
representations and warranties shall survive the deposit of the
Preferred Shares and the issuance of Receipts.
-13-
SECTION 3.04. Representation and Warranty as to Receipts. The
Company hereby represents and warrants that the Depositary Shares,
when the Receipts evidenced thereby are duly executed by the
Depositary or duly countersigned by an authorized signatory of the
Registrar and issued, will represent legal and valid interests in the
Preferred Shares. Such representation and warranty shall survive the
deposit of the Preferred Shares and the issuance of Receipts.
SECTION 3.05. Covenants and Representation and Warranty as to
Common Shares or Other Securities. In the event that the Depositary
Shares evidence Preferred Shares convertible into or exchangeable for
Common Shares or other securities of the Company, the Company
covenants that it will give written notice to the Depositary of any
adjustments in the conversion price or exchange ratio made pursuant to
the Preferred Share Amendment. The Company hereby represents and
warrants that the Common Shares or other securities of the Company
issuable upon conversion or exchange of the Preferred Shares, when
issued, will be duly authorized, validly issued, fully paid and
nonassessable. Such representation and warranty shall survive the
conversion or exchange of the Preferred Shares into such Common Shares
or other securities.
ARTICLE IV
THE PREFERRED SHARES; NOTICES
SECTION 4.01. Rights of Owners of Depositary Shares. Subject to
the terms of this Deposit Agreement, each owner of a Depositary Share
is entitled, in proportion to the applicable fractional interests in
the Preferred Shares, to all the rights, preferences and privileges of
the Preferred Shares represented by such Depositary Share, including
any and all dividend, voting, redemption, conversion, exchange and
liquidation rights provided for in the Certificate of Designations.
SECTION 4.02. Cash Distributions. Whenever the Depositary shall
receive any cash dividend or other cash distribution on the Preferred
Shares, except for any cash received upon redemption of any Preferred
Shares pursuant to Section 2.03 that is not to be distributed pro
rata, the Depositary shall, subject to Section 3.02, distribute to
Holders of Receipts on the record date fixed pursuant to Section 4.05
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 withhold from any cash dividend or
other cash distribution in respect of the Preferred Shares represented
by the Receipts held by any Holder an amount on account of taxes or as
otherwise required by law, regulation or court order, the amount made
available for distribution or distributed in respect of Depositary
Shares represented by such Receipts subject to such withholding shall
be reduced accordingly. The Depositary shall distribute or make
available for distribution, as the case may be, only such amount,
however, as can be distributed without attributing to any Holder of
Depositary Shares a fraction of one cent, and any balance not so
-14-
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 Holders of
Receipts then outstanding.
SECTION 4.03. Distributions Other Than Cash. Whenever the
Depositary shall receive any distribution other than cash on the
Preferred Shares, the Depositary shall, subject to Section 3.02,
distribute to Holders of Receipts on the record date fixed pursuant to
Section 4.05 such amounts of the securities or property received by it
as are, as nearly as practicable, in proportion to the respective
numbers of Depositary Shares evidenced by the Receipts held by such
Holders, in any manner that the Depositary and the Company may deem
equitable and practicable for accomplishing such distribution. If, in
the opinion of the Depositary after consultation with the Company,
such distribution cannot be made proportionately among such Holders,
or if for any other reason (including any requirement that the Company
or the Depositary withhold an amount on account of taxes or as
otherwise required by law, regulation or court order), 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 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 Holders of Receipts as provided by
Section 4.02 in the case of a distribution received in cash. The
Depositary shall not make any distribution of such securities to the
Holders of Receipts unless the Company shall have provided to the
Depositary an opinion of counsel stating that such securities have
been registered under the Securities Act or do not need to be
registered.
SECTION 4.04. Subscription Rights, Preferences or Privileges.
If the Company shall at any time offer or cause to be offered to the
persons in whose names Preferred Shares are 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, if the
Company so directs, in each such instance be made available by the
Depositary to the Holders in such manner as the Company shall instruct
(including, if so directed, by the issue to such Holders of warrants
representing such rights, preferences or privileges); provided,
however, that (a) if at the time of the issuance or offering of any
such rights, preferences or privileges the Company determines 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 who do not desire to exercise such rights, preferences or
privileges, the Depositary shall, if so instructed by the Company, and
-15-
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, subject to Section 3.02, be distributed by the Depositary
to the Holders of Receipts entitled thereto as provided by Section
4.02 in the case of a distribution received in cash. The Company
shall not make any distribution of such rights, preferences or
privileges, unless the Company shall have provided to the Depositary
an opinion of counsel stating that such rights, preferences or
privileges have been registered under the Securities Act or do not
need to be registered.
If registration under the Securities Act of any securities to
which any rights, preferences or privileges relate is required in
order for Holders to be offered or sold the securities to which such
rights, preferences or privileges relate, the Company agrees that it
will promptly file a registration statement pursuant to the Securities
Act with respect to such rights, preferences or privileges and
securities and use all reasonable efforts 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 a registration statement shall have
become effective or unless the offering and sale of such securities to
such Holders shall be exempt from registration under the Securities
Act and the Company shall have provided to the Depositary an opinion
of counsel to such effect.
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, the Company agrees to use all reasonable
efforts to take such action or obtain such authorization, consent or
permit sufficiently in advance of the expiration of such rights,
preferences or privileges to enable such Holders to exercise such
rights, preferences or privileges.
SECTION 4.05. Notice of Dividends; Fixing of Record Date for
Holders of Receipts. Whenever any cash dividend or other cash
distribution shall become payable, any distribution other than cash
shall be made, or any rights, preferences or privileges shall at any
time be offered, with respect to the Preferred Shares, or whenever the
Depositary shall receive notice of (i) any meeting at which holders of
Preferred Shares are entitled to vote or of which they are entitled to
notice or (ii) any election on the part of the Company to redeem any
Preferred Shares, the Depositary shall in each such instance fix a
record date (which shall be the same date as the record date therefor
fixed by the Company with respect to the Preferred Shares) for the
determination of the Holders who shall be entitled to receive such
-16-
dividend, distribution, rights, preferences or privileges or the net
proceeds of the sale thereof, to give instructions for the exercise of
voting rights at any such meeting or to receive notice of such meeting
or whose Depositary Shares are to be so redeemed.
SECTION 4.06. Voting Rights. Upon receipt of notice of any
meeting at which the holders of Preferred Shares are entitled to vote,
the Depositary shall, as soon as practicable thereafter, mail to the
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 Articles of Incorporation or the Preferred Share Amendment,
to instruct the Depositary as to the exercise of the voting rights
pertaining to the amount of Preferred Shares 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, to the extent practicable, vote or cause to be voted the amount
of Preferred Shares 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 Preferred Shares or cause such Preferred
Shares 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 Preferred Shares represented by the Depositary Shares
evidenced by such Receipt. The Depositary shall not be required to
exercise discretion in voting any Preferred Shares represented by the
Depositary Shares evidenced by such Receipt.
SECTION 4.07. Changes Affecting Preferred Shares and
Reclassifications, Recapitalizations, Etc. Upon any change in the par
value, or upon any split-up, combination or any other
reclassification, of the Preferred Shares, or upon any
recapitalization, reorganization, merger, amalgamation or
consolidation affecting the Company or to which it is a party or the
sale of all or substantially all of the Company's assets, the
Depositary shall, upon the instructions of the Company, treat any
shares of capital 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 Preferred Shares 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 of or in respect of such Preferred Shares. 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.
[Subject to the provisions of the Preferred Share Amendment, Holders
-17-
of Receipts shall have the right from and after the effective date of
any such change in par value, or upon any such split-up, combination
or other reclassification, of the Preferred Shares or any such
recapitalization, reorganization, merger, amalgamation or
consolidation affecting the Company, or sale of all or substantially
all of the Company's assets to surrender such Receipts to the
Depositary with instructions to convert, exchange or surrender the
Preferred Shares represented thereby only into or for, as the case may
be, the kind and amount of shares of capital stock and other
securities and property and cash into which the Preferred Shares
represented by such Receipts might have been converted or for which
such Preferred Shares might have been exchanged or surrendered
immediately prior to the effective date of such transaction.]
SECTION 4.08. Inspection of Reports. The Depositary shall
furnish to Holders of Receipts any reports and communications received
from the Company that are received by the Depositary as the holder of
Preferred Shares and that the Company is required to furnish to
Holders of the Preferred Shares.
SECTION 4.09. Lists of Receipt Holders. Promptly upon request
from time to time by the Company, the Depositary shall furnish to the
Company a list, as of a recent date specified by the Company, of the
names, addresses and holdings of Depositary Shares of all persons in
whose names Receipts are registered on the books of the Depositary.
[SECTION 4.10. Tax and Regulatory Compliance. The Depositary
shall be responsible for (i) preparation and mailing of form 1099s (or
successor forms) for all open and closed accounts, (ii) foreign tax
withholding, (iii) withholding of tax on dividends payable to eligible
Holders of Receipts, (iv) mailing W-9 forms (or successor forms) to
new Holders of Receipts without a certified taxpayer identification
number, (v) processing certified W-9 forms (or successor forms), (vi)
preparation and filing of state information returns and (vii)
escheatment services.]
ARTICLE V
THE DEPOSITARY AND THE COMPANY
SECTION 5.01. Maintenance of Offices, Agencies and Transfer
Books by the Depositary and the Registrar. Upon execution of this
Deposit Agreement in accordance with its terms, the Depositary shall
maintain at the Corporate Office facilities for the execution and
delivery, transfer, surrender and exchange, split-up, combination and
redemption of Receipts and deposit and [withdrawal of Preferred
Shares] and at the offices of any Agent, facilities for the delivery,
transfer, surrender and exchange, split-up, combination and redemption
of Receipts and deposit and [withdrawal of Preferred Shares,] all in
accordance with the provisions of this Deposit Agreement.
The Depositary shall keep books at the Corporate Office for the
registration and transfer of Receipts, which books shall be open at
-18-
all reasonable times for inspection by the Holders of Receipts, as
provided by applicable law. 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
Preferred Shares represented by such Depositary Shares shall be listed
on any stock exchange, and if required by any such stock exchange, the
Depositary shall appoint, at the expense of the Company, a Registrar
(acceptable to the Company) for registry of Receipts or Depositary
Shares in accordance with the requirements of such exchange. Such
Registrar (which may be the Depositary if so permitted by such
exchange) may be removed, and a substitute registrar appointed, by the
Depositary upon the request or with the approval of the Company.
The Company hereby also appoints the Depositary as Registrar and
Transfer Agent in respect of the Receipts, and the Depositary hereby
accepts such appointments.
SECTION 5.02. Prevention or Delay in Performance by the
Depositary, Any Agent, the Registrar or the Company. Neither the
Depositary, any Agent, 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 by reason
of any present or future provision of the Articles of Incorporation or
the Preferred Share Amendment, or by reason of any act of God or war
or other circumstance beyond the control of the relevant party, the
Depositary, any 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 Agent, any Registrar or the Company incur
any liability to any Holder of a Receipt 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 by reason of any exercise of, or
failure to exercise, any discretion provided for in this Deposit
Agreement.
SECTION 5.03. Obligations of the Depositary, any Agent, the
Registrar and the Company. Neither the Depositary, any Agent, any
Registrar nor the Company assumes any obligation or shall be subject
to any liability under this Deposit Agreement or any Receipt to
Holders of Receipts so long as each of them acts in good faith in the
performance of such duties as are specifically set forth in this
Deposit Agreement.
Neither the Depositary, any Agent, any Registrar nor the Company
shall be under any obligation to appear in, prosecute or defend any
action, suit or other proceeding with respect to Preferred Shares,
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Depositary Shares or Receipts that in its opinion may subject it to
expense or liability, unless indemnity satisfactory to it against all
such expense and liability be furnished.
Neither the Depositary, any Agent, any Registrar nor the Company
shall be liable for any action taken or any failure to act in reliance
upon the advice of legal counsel, or the advice of or information
provided by any accountant, 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 Agent, any Registrar and
the Company may each rely and shall each be protected in acting upon
any written notice, request, direction or other document believed by
it to be genuine and to have been signed or presented by the proper
party or parties.
In the event the Depositary shall receive conflicting claims,
requests or instructions from any Holders of Receipts, on the one
hand, and the Company, on the other hand, the Depositary shall be
entitled to act on such claims, requests or instructions received from
the Company, and shall be entitled to the full indemnification set
forth in Section 5.06 hereof in connection with any action so taken.
The Depositary shall not be responsible for any failure to carry
out any instruction to vote any of the Preferred Shares or for the
manner or effect of any such vote, as long as any such action or non-
action is in good faith and does not result from negligence or willful
misconduct of the Depositary. The Depositary undertakes, and any
Registrar shall be required to undertake, to perform such duties and
only such duties as are specifically set forth in this Deposit
Agreement, and no covenants or obligations shall be implied against
the Depositary or any Registrar. The Depositary, its parents,
affiliates, or subsidiaries, any Depositary's Agent, and any Registrar
may own, buy, sell or deal in any class of securities of the Company
and its affiliates and in Receipts or Depositary shares or become
pecuniarily interested in any transaction in which the Company or its
affiliates may be interested or contract with or lend money to or
otherwise act as fully or as freely as if it were not the Depositary,
any Agent or the Registrar hereunder. The Depositary may also act as
transfer agent, registrar or indenture trustee of any of the
securities of the Company and its affiliates or act in any other
capacity for the Company or its affiliates.
Neither the Depositary nor any Agent shall be deemed to be an
"issuer" of the securities under the federal securities laws or
applicable state securities laws; the Depositary and any Agent are
acting only in a ministerial capacity as depositary for the Preferred
Shares; provided, however, that the Depositary agrees to comply with
all information reporting and withholding requirements applicable to
it under law or this Deposit Agreement in its capacity as Depositary.
Neither the Depositary (or its officers, directors, employees or
agents) nor any Depositary's Agent makes any representation or has any
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responsibility with respect to any registration statement pursuant to
which the Depositary Shares, the Receipts or the Preferred Shares are
registered under the Securities Act, or as to the validity of the
Preferred Shares, the Depositary Shares, the Receipts (except as to
the authenticity of its countersignature thereon) or any instruments
referred to therein or herein, or as to the correctness of any
statement made therein or herein; provided, however, that the
Depositary is responsible for its representations in this Deposit
Agreement.
SECTION 5.04. Resignation and Removal of the Depositary;
Appointment of Successor Depositary. The Depositary may at any time
resign as Depositary hereunder by notice of its election to do so
delivered to the Company, such resignation to take effect upon the
appointment of a successor depositary and the 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 a successor depositary and the
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 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 Preferred Shares and any moneys or property held hereunder to such
successor and shall deliver to such successor a list of the Holders of
all outstanding Receipts and all records, books and other information
relating thereto. Any successor Depositary shall promptly mail notice
of its appointment to the Holders of Receipts.
Any corporation into or with which the Depositary may be merged,
consolidated or converted shall be the successor 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.
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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 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 Preferred Shares, the Depositary Shares or the Receipts may be
listed or by the Articles of Incorporation and the Preferred Share
Amendment to be furnished by the Company to Holders of Preferred
Shares. 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 Holders of Receipts at the Company's
expense such other documents as may be requested by the Company.
SECTION 5.06 Indemnification by the Company. The Company agrees
to indemnify the Depositary, any Agent and any Registrar against, and
hold each of them harmless from, any liability, costs and expenses
(including reasonable attorneys' fees) that may arise out of, or in
connection with, its acting as Depositary, Agent or Registrar,
respectively, under this Deposit Agreement and the Receipts, except
for any liability arising out of negligence or bad faith on the part
of any such entity. The obligations of the Company set forth in this
Section 5.06 shall survive any succession of any Depositary, Registrar
or Agent or termination of this Deposit Agreement.
SECTION 5.07. Fees, Charges and Expenses. The Company shall pay
all transfer and other taxes and governmental charges arising solely
from the existence of the depositary arrangements. The Company shall
pay all fees of the Depositary in connection with the initial deposit
of the Preferred Shares and the initial issuance of the Depositary
Shares evidenced by the Receipts, any redemption of the Preferred
Shares at the option of the Company [and all withdrawals of Preferred
Shares by Holders of Depositary Shares]. Other than payment of any
tax or other governmental charge due upon the issuance of Common
Shares or other securities of the Company issuable upon conversion or
exchange of the Preferred Shares or upon delivery of Preferred Shares
[and the money and/or other property being withdrawn pursuant to
Section 2.11 to a person other than the Holder as specified in the
conversion/exchange notice relating thereto] or in the written order
delivered to the Depositary by the Holder, the Company will pay any
and all issue and other taxes (other than taxes based on income) that
may be payable in respect of any issue or delivery of Common Shares or
other securities of the Company on conversion or exchange of the
Preferred Shares. All other transfer and other taxes and governmental
charges shall be at the expense of Holders of Depositary Shares. If a
Holder of Receipts requests the Depositary to perform duties not
required under this Deposit Agreement, the Depositary shall notify the
Holder of the cost of such performance of such duties before
performing such duties, and such Holder will be liable for the charges
and expenses related to such performance. Except as otherwise
provided herein, all other reasonable fees and expenses of the
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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 upon consultation and agreement between the Depositary
and the Company as to the amount and nature of such fees and expenses.
The Depositary shall present its statement for fees and expenses to
the Company at such interval as the Company and the Depositary may
agree.
ARTICLE VI
AMENDMENT AND TERMINATION
SECTION 6.01. Amendment. The form of the Receipts 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 that they may deem necessary or desirable; provided,
however, that no such amendment which (i) shall materially and
adversely alter the rights of the Holders of Receipts (provided that
any change in the fees of any Depositary, Registrar or transfer agent
shall be deemed not to materially and adversely alter the rights of
such Holders) or (ii) would be materially and adversely inconsistent
with the rights granted to the holders of the Preferred Shares
pursuant to the Preferred Share Amendment shall be effective unless
such amendment shall have been approved by the Holders of at least a
majority of the Depositary Shares then outstanding. Any amendment
that shall impose any fees, taxes or charges (other than fees and
charges provided for herein or in the Receipts), or that shall
otherwise prejudice any substantial existing right of Holders of
Receipts, shall not become effective as to Receipts until the
expiration of 90 days after notice of such amendment shall have been
given to the Holders. Every Holder of a Receipt at the time any such
amendment becomes effective 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 of the Holder of any Receipt to surrender
such Receipt and receive the Preferred Shares therefor, subject to the
terms hereof.]
SECTION 6.02. Termination. (a) This Deposit 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, upon a date
that is not later than [30] days after the date of such notice, the
Depositary shall deliver or make available for delivery to each
Holder, upon surrender of such Holder's Receipt or Receipts, such
number of whole Preferred Shares represented by such Receipt or
Receipts. In the event that such Receipt or Receipts should represent
a fractional number of Preferred Shares, the Depositary shall
aggregate all such interests in fractional Preferred Shares and, with
the approval of the Company, adopt such methods as it deems equitable
and practicable for the purpose of effecting the distribution of such
interests, including the public or private sale of the whole number of
Preferred Shares so aggregated, or any part thereof, at such place or
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places and upon such terms as it may deem proper. The net proceeds of
any such sale shall be distributed or made available for distribution,
as the case may be, by the Depositary to Holders of such Receipts
evidencing an interest in fractional Preferred Shares. If a Holder
shall not have so surrendered such Holder's Receipt or Receipts in
exchange for whole Preferred Shares on or prior to the effective date
of termination of this Deposit Agreement, such Holder shall for all
purposes, including the payment of dividends, be deemed to be a Holder
of the appropriate number of Depositary Shares previously represented
by such Receipt or Receipts and shall thereafter surrender to the
Company such Receipt or Receipts in exchange for whole Preferred
Shares. In the event that such Receipt or Receipts should represent
an interest in fractional Preferred Shares, the Company shall
aggregate all such interests in fractional Preferred Shares and adopt
such method as it deems equitable and practicable for the purpose of
effecting the distribution of such interest, including the public or
private sale of the whole number of Preferred Shares so aggregated, 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 be
distributed by the Company to Holders of such Receipts evidencing an
interest in fractional Preferred Shares. Upon termination of this
Deposit Agreement, the Depositary shall surrender to the Company any
Preferred Shares held by the Depositary and the Company shall hold
such Preferred Shares for the benefit of the Holder of Receipts which
previously represented such Preferred Shares.
(b) This Agreement shall automatically terminate after (i) all
outstanding Depositary Shares shall have been redeemed pursuant to
section 2.03 [or withdrawn pursuant to Section 2.11], (ii) in the
event that the Depositary Shares represent Preferred Shares
convertible into or exchangeable for Common Shares or other securities
of the Company, each Preferred Share shall have been converted into or
exchanged for Common Shares or other securities of the Company
pursuant to Section 2.09, as the case may be, or (iii) there shall
have been made a final distribution in respect of the Preferred Shares
in connection with any liquidation, dissolution or winding up of the
Company and such distribution shall have been distributed to the
Holders of Receipts pursuant to Section 4.02 or 4.03, as applicable.
(c) Upon the termination of this Deposit Agreement pursuant to
this Section 6.02, the Company shall be discharged from all
obligations under this Deposit Agreement except for its obligations to
the Depositary, any Depositary's Agent and any Registrar under
Sections 5.06 and 5.07.
ARTICLE VII
MISCELLANEOUS
SECTION 7.01. Counterparts. This Deposit Agreement may be
executed in any number of counterparts, and by each of the parties
hereto on separate counterparts, each of which counterparts, when so
executed and delivered, shall be deemed an original, but all such
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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.
SECTION 7.02. Exclusive Benefits of Parties. This Deposit
Agreement is for the exclusive benefit of the parties hereto,
including Holders of the Receipts, and their respective successors
hereunder, and shall not be deemed to give any legal or equitable
right, remedy or claim to any other person whatsoever.
SECTION 7.03. Invalidity of Provisions. In case any one or more
of the provisions contained in this Deposit Agreement or in the
Receipts should be or become invalid, illegal or unenforceable in any
respect, the validity, legality and enforceability of the remaining
provisions contained herein or therein shall in no way be affected,
prejudiced or disturbed thereby.
SECTION 7.04. Notices. Any and all notices to be given to the
Company hereunder or under the Receipts shall be in writing and shall
be deemed to have been duly given if personally delivered or sent by
mail, or by telegram, facsimile transmission or other electronic means
of communication confirmed by letter, addressed to the Company at:
ARVIN INDUSTRIES, INC.
One Noblitt Plaza
Columbus, Indiana 47202-3000
Attention: Treasurer (with a copy to Secretary)
Telephone No.: (812) 379-3000
Facsimile No.: (812) 379-3688
or at any other address of which the Company shall have notified the
Depositary in writing.
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,
facsimile transmission or other electronic means of communication
confirmed by letter, addressed to the Depositary at the Corporate
Office.
Any notices given to any 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,
facsimile transmission or other electronic means of communication,
addressed to such Holder at the address of such Holder as it appears
on the books of the Depositary or, if such Holder shall have filed
with the Depositary in a timely manner a written request that notices
intended for such Holder be mailed to some other address, at the
address designated in such request.
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SECTION 7.05. Holders of Receipts are Parties. 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 hereof and of the Receipts by acceptance of delivery
thereof.
SECTION 7.06. 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 [__________] applicable to contracts made and
to be performed entirely within such State.
SECTION 7.07. Inspection of Deposit Agreement and Preferred
Share Amendment. Copies of this Deposit Agreement and the Preferred
Share Amendment shall be filed with the Depositary and any Agent and
shall be open to inspection by any Holder of a Receipt during business
hours at the Corporate Office and the respective offices of any Agent.
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, ARVIN INDUSTRIES, INC. and [Depositary] have
duly executed this Deposit Agreement as of the day and year first
above set forth, and all Holders of Receipts shall become parties
hereto by and upon acceptance by them of delivery of Receipts issued
in accordance with the terms hereof.
ARVIN INDUSTRIES, INC.
Attest: By: ________________________________
Authorized Officer
[Depositary]
Attest: By: _______________________________
Authorized Signatory
Exhibit A
FORM OF FACE OF RECEIPT
NUMBER DEPOSITARY SHARES
CERTIFICATE FOR NOT MORE THAN ________________ DEPOSITARY SHARES
DEPOSITARY RECEIPT FOR DEPOSITARY SHARES, EACH
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REPRESENTING ONE ________ (1/__) OF ONE ________ PREFERRED SHARE OF
ARVIN INDUSTRIES, INC.
CUSIP ___________
INCORPORATED UNDER THE LAWS SEE REVERSE FOR
OF THE STATE OF INDIANA CERTAIN DEFINITIONS
___________________________________, as Depositary (the "Depositary"),
hereby certifies that ______________________________________
______________________ is the registered owner of
__________________________________________ DEPOSITARY SHARES
("Depositary Shares"), each Depositary Shares representing [specify
fraction] of one _______ Preferred Share, no par value (the "Preferred
Shares") of ARVIN INDUSTRIES, INC., a corporation duly organized and
existing under the laws of the State of Indiana (the "Company"), on
deposit with the Depositary, subject to the terms and entitled to the
benefits of the Deposit Agreement dated as of ______________, 199__
(the "Deposit Agreement"), among the Company, the Depositary and the
Holders from time to time of Receipts for Depositary Shares. By
accepting this Receipt the Holder hereof becomes a party to and agrees
to be bound by all the terms and conditions of the Deposit Agreement.
This 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 Receipts by the manual
signature of a duly authorized officer thereof.
Dated: Countersigned:
By _____________________________ By _____________________________
Depositary Registrar
[FORM OF REVERSE OF RECEIPT]
ARVIN INDUSTRIES, INC.
ARVIN INDUSTRIES, INC. WILL FURNISH WITHOUT CHARGE TO EACH
REGISTERED HOLDER OF RECEIPTS WHO SO REQUESTS A COPY OF THE DEPOSIT
AGREEMENT AND A COPY OF THE PREFERRED SHARE AMENDMENT WITH RESPECT TO
THE ______ PREFERRED SHARES OF ARVIN INDUSTRIES, INC. ANY SUCH REQUEST
IS TO BE ADDRESSED TO THE DEPOSITARY NAMED ON THE FACE OF THIS
RECEIPT.
--------------------------------------
The following abbreviations when used in the instructions on the
face of this receipt shall be construed as though they were written
out in full according to applicable laws or regulations.
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TEN COM -- as tenants in common
TEN ENT -- as tenants by the entireties
JT ENT -- as joint tenants with right of survivorship and not as
tenants in common
UNIF GIFT MIN ACT -- _________________ Custodian __________________
(Cust) (Minor)
Under Uniform Gifts to Minors
Act _________________________
(State)
Additional abbreviations may also be used though not in the above
list.
ASSIGNMENT
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 does 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 whatever.
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