EXHIBIT 4.6
Draft of November 1, 1994
DEPOSIT AGREEMENT
dated as of November 3, 1994
among
BEST BUY CO., INC.,
a Minnesota corporation,
HARRIS TRUST AND SAVINGS BANK,
an Illinois corporation,
AND THE HOLDERS FROM TIME TO TIME
OF THE RECEIPTS DESCRIBED HEREIN.
WHEREAS, it is desired to provide, as hereinafter set forth in this
Deposit Agreement, for the deposit of shares of Series A Cumulative Convertible
Preferred Stock, par value $1.00 per share (liquidation preference $5,000 per
share), of BEST BUY CO., INC. with the Depositary (as defined herein) for the
purposes set forth in this Deposit Agreement and for the issuance hereunder of
Receipts (as defined herein) by the Depositary evidencing Depositary Shares (as
defined herein) in respect of the Stock (as defined herein) so deposited; and
WHEREAS, the Receipts are to be substantially in the form of EXHIBIT A
hereto, with such appropriate insertions, modifications and omissions as
provided in this Deposit Agreement;
NOW, THEREFORE, in consideration of the premises contained herein and
such other good and valuable consideration, the receipt and sufficiency of which
is hereby acknowledged, the parties hereto agree as follows:
ARTICLE I
DEFINITIONS
The following definitions shall for all purposes, unless otherwise
indicated, apply to the respective terms used in this Deposit Agreement and the
Receipts (as defined herein):
"Certificate" shall mean the Certificate of Designation of Best Buy
Co., Inc. of Series A Cumulative Convertible Preferred Stock filed with the
Secretary of State of the State of Minnesota establishing the Stock as a series
of preferred stock of the Company, as it may be amended from time to time in
accordance with its terms.
"Common Stock" shall mean the Company's Common Stock, par value $.10
per share.
"Company" shall mean Best Buy Co., Inc., a Minnesota corporation, and
its successors.
"Deposit Agreement" shall mean this Deposit Agreement as amended or
supplemented from time to time in accordance with the terms hereof.
"Depositary" shall mean Harris Trust and Savings Bank, an Illinois
corporation, and any successor Depositary hereunder.
"Depositary Shares" shall mean the Depositary Shares, each
representing a one-one hundredth (1/100th) interest in a share of Stock and
evidenced by a Receipt.
"Depositary's Agent" shall mean an agent appointed by the Depositary
pursuant to Section 7.05.
"Depositary's Office" shall mean the principal office of the
Depositary at which at any particular time its depositary business shall be
administered.
"Receipt" shall mean one of the depositary receipts, whether in
definitive or temporary form, issued hereunder by the Depositary, each
representing any number of whole Depositary Shares.
"Record Holder" or "Holder" with respect to a Receipt shall mean the
individual, entity or person in whose name a Receipt is registered on the books
of the Depositary or any register of any Registrar maintained for such purpose
at a given time.
"Registrar" shall mean any bank or trust company appointed by the
Depositary to register ownership and transfers of Receipts as herein provided
(and may include the Depositary).
"Stock" shall mean shares of the Company's Series A Cumulative
Convertible Preferred Stock, par value $1.00 per share (liquidation preference
$5,000.00 per share).
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ARTICLE II
FORM OF RECEIPTS, DEPOSIT OF STOCK, EXECUTION AND DELIVERY,
TRANSFER, SURRENDER AND REDEMPTION OF RECEIPTS
SECTION 2.01. FORM AND TRANSFER OF RECEIPTS. Definitive Receipts
shall be engraved or printed or lithographed with steel-engraved borders and
shall be substantially in the form set forth in EXHIBIT A hereto, with such
appropriate insertions, modifications and omissions, as hereinafter provided.
Pending the preparation of definitive Receipts, the Depositary, upon the written
order of the Company delivered in compliance with Section 2.02, shall execute
and deliver temporary Receipts, which shall be printed, lithographed,
typewritten, mimeographed or otherwise substantially of the tenor of the
definitive Receipts in lieu of which they are issued and with such appropriate
insertions, omissions, substitutions and other variations as the persons
executing such Receipts may determine, as evidenced by their execution of such
Receipts. If temporary Receipts are issued, the Company and the Depositary will
cause definitive Receipts to be prepared without unreasonable delay. After the
preparation of definitive Receipts, the temporary Receipts shall be exchangeable
for definitive Receipts upon surrender of the temporary Receipts at the
Depositary's Office. Upon surrender for cancellation of any one or more
temporary Receipts, the Depositary shall execute and deliver in exchange
therefor definitive Receipts representing the same number of Depositary Shares
as represented by the surrendered temporary Receipt or Receipts registered in
the name (and only the name) of the Holder of the temporary Receipt. Such
exchange shall be made at the Company's expense (and without any charge therefor
to the Holder). Until so exchanged, the temporary Receipts shall in all
respects be entitled to the same benefits under this Deposit Agreement, and with
respect to the Stock, as definitive Receipts.
Receipts shall be executed by the Depositary by the manual signature
of one of its duly authorized officers; PROVIDED, that such signature may be a
facsimile if a Registrar for the Receipts (other than the Depositary) shall have
been appointed and such Receipts are countersigned by 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 manually by a duly authorized officer of the
Depositary or, if a Registrar for the Receipts (other than the Depositary) shall
have been appointed, by facsimile signature of a duly authorized
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officer of the Depositary and countersigned manually by a duly authorized
officer of such Registrar. The Depositary shall record on its books each
Receipt so signed and delivered as hereinafter provided. The manual or
facsimile signatures of individuals who were at any time proper officers of the
Depositary or the Registrar, as the case may be, shall constitute adequate
signatures hereunder, notwithstanding that such individuals or any of them have
ceased to hold such offices prior to the delivery of Receipts bearing such
signatures or did not hold such offices on the date of delivery of such
Receipts.
Receipts shall be in denominations of any number of whole Depositary
Shares.
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 and approved by the
Company or required to comply with any applicable law or regulation or with the
rules and regulations of any securities exchange upon which the Stock, 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 executed
instrument of transfer, shall be transferable by delivery of such Receipt with
the same effect as if such receipt were a negotiable instrument; PROVIDED,
HOWEVER, that until transfer of a Receipt shall be registered on the books of
the Registrar, on behalf of the Depositary, as provided in Section 2.04, the
Depositary may, notwithstanding any notice to the contrary, treat the Record
Holder as the absolute owner thereof for the purpose of determining the person
entitled to distributions of dividends or other distributions with respect to
the Stock or to any notice provided for in this Deposit Agreement and for all
other purposes.
The Depositary shall not lend any Stock deposited hereunder.
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 may from time to time deposit shares of Stock with the Depositary
under this Deposit Agreement by delivery to the Depositary a certificate or
certificates representing the
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Stock to be deposited; PROVIDED, HOWEVER, that other than in the case of
splits, combinations or other reclassifications affecting the Stock, or in the
case of dividends or other distributions of Stock, if any, there shall be
deposited with the Depositary hereunder not more than 46,000 shares of Stock.
Such certificate or certificates representing the Stock shall be properly
endorsed or accompanied, if required by the Depositary, by a duly executed
instrument of transfer or endorsement, in form satisfactory to the Depositary,
together with all such certifications as may be required by the Depositary in
accordance with the provisions of this Deposit Agreement, and together with a
written order of the Company directing the Depositary to execute and deliver to
the person or persons named in such order a Receipt or Receipts evidencing in
the aggregate the number of Depositary Shares representing such deposited
Stock.
All Stock deposited by the Company with the Depositary shall be held
by the Depositary at the Depositary's Office or at such other place or places as
the Depositary shall determine.
If required by the Depositary, Stock presented for deposit at any time
(except for the initial deposit of Stock and any subsequent deposit by the
Company), whether or not the register of shareholders of the Company is closed,
shall also be accompanied by an agreement or assignment, or other instrument
satisfactory to the Depositary, that will provide for the prompt transfer to the
Depositary or its nominee of any dividend or right to subscribe for additional
Stock or to receive other property that any person in whose name the Stock is or
has been registered may thereafter receive upon or in respect of such deposited
Stock, or in lieu thereof such agreement of indemnity or other agreement as
shall be satisfactory to the Depositary.
Upon receipt by the Depositary of a certificate or certificates
representing Stock deposited with the Depositary by the Company in accordance
with the provisions of this Section 2.02, together with the other documents
required as above specified, and upon recordation of the Stock so deposited on
the books of the Company in the name of the Depositary, the Depositary shall
execute and deliver, to 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 evidencing in the aggregate the number of
Depositary Shares relating to the Stock so deposited. Such Receipt or Receipts
shall be registered by the Depositary or the Registrar in such name or names as
may be requested by the person or persons named in the written order of the
Company
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delivered to the Depositary. The Depositary shall execute and deliver
such Receipts at the Depositary's Office or such other offices, if any, as such
person may designate. Delivery at other offices shall be at the risk and
expense of the person requesting such delivery. In each case, delivery will be
made only upon payment by the Company 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 blank Receipts as the Depositary may request to enable it to
perform its obligations under this Deposit Agreement.
SECTION 2.03. REDEMPTION OF STOCK. Whenever the Company shall elect
to redeem shares of Stock in accordance with the Certificate, it shall (unless
otherwise agreed in writing with the Depositary) give the Depositary in its
capacity as Depositary not less than ten days' prior notice of the proposed date
of the mailing of a notice of redemption of Stock to Holders of Receipts to be
effected in connection with a redemption of Stock and of the number of such
shares of Stock held by the Depositary to be redeemed as hereinafter provided.
On the date of any such redemption of Stock, the Depositary shall redeem (using
the proceeds received by the Depositary from the redemption of the Stock) the
number of Depositary Shares representing such redeemed Stock. The Depositary
shall, as directed by the Company, mail, first class postage prepaid, a notice
of the redemption of Stock and the proposed simultaneous redemption of the
Depositary Shares representing the Stock to be redeemed, not less than 30 and
not more than 60 days prior to the date fixed for redemption (the "Redemption
Date") of such Stock and Depositary Shares. Such notice shall be mailed to the
Record 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
proceedings for redemption. The Company shall provide the Depositary with such
notice, and each such notice shall state: the record date for such redemption;
the Redemption Date; that all outstanding Depositary Shares are to be redeemed
or converted; the place or places where Receipts evidencing Depositary Shares to
be redeemed are to be surrendered for 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
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shall default in delivering the money or other property payable by the Company
at the time and place specified in such notice.
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 as set forth in the Company's notice
provided for in the preceding paragraph), all dividends in respect of the shares
of Stock so called for redemption shall cease to accrue (except as otherwise
provided in the Certificate), the Depositary Shares being redeemed shall be
deemed no longer to be outstanding, all rights of the Holders of Receipts
evidencing such Depositary Shares (except the right to receive the amounts
payable upon redemption) shall, to the extent of such Depositary Shares, cease
and terminate. Upon surrender in accordance with such notice of the Receipts
evidencing any such Depositary Shares (properly endorsed or assigned for
transfer, if the Depositary shall so require), the Holders of such Receipts
shall receive for each such Depositary Share an amount of cash or other property
equal to one-one hundredth (1/100th) of the redemption price per share payable
with respect to the Stock redeemed. The foregoing shall be subject further to
the terms and conditions of the Certificate.
The Depositary shall not be required (a) to issue, transfer or
exchange any Receipts for a period beginning at the close of business on the day
the Company first publicly announces the redemption of Stock and ending at the
close of business on the day the Depositary mails the notices 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.
SECTION 2.04. REGISTRATION OF TRANSFER OF RECEIPTS. Subject to the
terms and conditions of this Deposit Agreement, the Registrar, on behalf of the
Depositary, shall register on its books transfers of Receipts from time to time
upon notice to the Registrar by the Depositary of the surrender of a Receipt for
transfer by the Holder in person or by duly authorized attorney, which Receipt
in each case must be properly endorsed or accompanied by a properly executed
instrument of transfer or endorsement together with evidence of the payment of
any transfer taxes as may be required by law. Upon surrender of a properly
endorsed Receipt or a Receipt accompanied by an instrument of transfer or
endorsement, the Depositary shall execute a new Receipt or Receipts evidencing
the same aggregate number of Depositary Shares as those evidenced by the Receipt
or Receipts surrendered and deliver such new
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Receipt or Receipts to or upon the order of the transferee named in the
endorsement or instrument of transfer.
SECTION 2.05. SPLIT-UPS AND COMBINATIONS OF RECEIPTS, SURRENDER OF
RECEIPTS AND WITHDRAWAL OF STOCK. Upon surrender of a Receipt or Receipts at
the Depositary's Office or at such other office as it may designate for the
purpose of effecting a split-up or combination of such Receipt or Receipts, the
Depositary will execute and deliver a new Receipt or Receipts to the Holder
thereof or to such Holder's order in the denominations requested, evidencing the
aggregate number of Depositary Shares evidenced by the Receipt or Receipts
surrendered.
Any Holder of at least 100 Depositary Shares which have not been
previously called for redemption may withdraw the number of whole shares of
Stock underlying such Depositary Shares and all money and other property, if
any, represented thereby by surrendering such Receipt or Receipts at the
Depositary's Office or at such other offices as the Depositary may designate for
such withdrawals. Thereafter, without unreasonable delay, the Depositary shall
deliver to such Holder, or to the person or persons designated by such Holder as
hereinafter provided, the number of whole shares of Stock and all money and
other property, if any, represented by the Receipt or Receipts so surrendered
for withdrawal, but Holders of such whole shares of Stock will not thereafter be
entitled to deposit such Stock 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 in the aggregate a number of
Depositary Shares in excess of the number of Depositary Shares representing the
number of whole shares of Stock to be so withdrawn, the Depositary shall at the
same time, in addition to such number of whole shares of Stock and such money
and other property, if any, to be so withdrawn, deliver to such Holder, or
(subject to Sections 2.04 and 3.02) upon his order, a new Receipt evidencing
such excess number of Depositary Shares. Delivery of the Stock and the 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.
If the Stock and the money and other property being withdrawn are to
be delivered to a person or persons other than the Record Holder of the Receipt
or Receipts being surrendered for withdrawal of Stock, such Holder shall execute
and deliver to the Depositary a written order so directing the Depositary and
the Depositary may require that the Receipt or Receipts surrendered by such
Holder for withdrawal of such shares of Stock be properly endorsed in
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blank or accompanied by a properly executed instrument of transfer in blank.
Delivery of the Stock and the money and other property, if any,
represented by Receipts surrendered for withdrawal shall be made by the
Depositary at the Depositary's Office, except that, at the request, risk and
expense of the Holder surrendering such Receipt or Receipts and for the account
of the Holder thereof, such delivery may be made at such other place as may be
designated by such Holder.
SECTION 2.06. LIMITATIONS ON EXECUTION AND DELIVERY, TRANSFER,
SURRENDER AND EXCHANGE OF RECEIPTS. As a condition precedent to the execution
and delivery, registration of transfer, split-up, combination, surrender or
exchange of any Receipt, the Depositary, any of the Depositary's Agents or the
Company may require payment to it of a sum sufficient for the payment (or, in
the event that the Depositary or the Company shall have made such payment, the
reimbursement to it) of any taxes, charges or expenses payable by the Holder of
a Receipt pursuant to Sections 3.02 and 5.07, may require the production of
evidence satisfactory to it as to the identity and genuineness of any signature
and may also require compliance with the rules and regulations of any
governmental body, any stock exchange or any applicable self-regulatory body,
including, without limitation, the National Association of Securities Dealers,
Inc. (the "NASD") or such procedures, if any, as the Depositary or the Company
may establish consistent with the provisions of this Deposit Agreement.
The delivery of Receipts against Stock deposited with the Depositary
may be suspended, the registration of transfer of Receipts may be refused and
the registration of transfer, surrender, exchange, split-up or combination of
outstanding Receipts may be suspended and the deposit of Stock may be refused
(i) during any period when the register of shareholders of the Company is closed
or (ii) if any such action is deemed necessary 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, governmental body or commission,
stock exchange or the NASD.
SECTION 2.07. LOST RECEIPTS, ETC. If any mutilated Receipt is
surrendered to the Depositary, the Depositary shall execute and deliver in
exchange therefor a new Receipt of like form and tenor in exchange and
substitution for such mutilated Receipt. In case any Receipt shall be
destroyed, lost or stolen, the Depositary
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shall execute and deliver a Receipt to the Holder thereof of like form and
tenor in exchange and substitution for such destroyed or lost or stolen
Receipt, upon (i) the filing by the Holder thereof with the Depositary of
evidence satisfactory to the Depositary of such destruction or loss or theft
of such Receipt, of the authenticity thereof and of such Holder's ownership
thereof and (ii) the Holder's furnishing the Depositary with reasonable
indemnification satisfactory to such Depositary and (iii) payment of any
expenses including fees, charges and expenses of the Depositary in connection
with such execution and delivery. Every new Receipt issued pursuant to this
Section 2.07 in lieu of any mutilated, destroyed, lost or stolen Receipt shall
constitute an original additional contractual obligation under this Deposit
Agreement, whether or not the mutilated, destroyed, lost or stolen Receipt
shall be at any time enforceable by anyone.
SECTION 2.08. CANCELLATION AND DESTRUCTION OF SURRENDERED RECEIPTS.
All Receipts surrendered to the Depositary or any Depositary's Agent shall be
canceled by the Depositary. Except as prohibited by applicable law or
regulation, the Depositary is authorized to destroy all Receipts so cancelled.
SECTION 2.09. CONVERSION OF STOCK INTO COMMON STOCK. At any time
when the Stock is convertible into Common Stock, Receipts may be surrendered
with written instructions to the Depositary to instruct the Company to cause the
conversion of any specified number of whole or fractional shares of Stock
represented by the Depositary Shares evidenced thereby into whole shares of
Common Stock at the conversion price then in effect for the Stock (and,
therefore, for the Depositary Shares) specified in the Certificate, as such
conversion price may be adjusted by the Company from time to time as provided in
the Certificate. Subject to the terms and conditions of this Deposit Agreement
and the Certificate, a Holder of a Receipt or Receipts evidencing Depositary
Shares representing whole or fractional shares of Stock may surrender such
Receipt or Receipts at the Depositary's Office or to such office or to such
Depositary's Agents as the Depositary may designate for such purpose, together
with a notice of conversion duly completed and executed, thereby directing the
Depositary to instruct the Company to cause the conversion of the number of
shares or fractions thereof of underlying Stock specified in such notice of
conversion into shares of Common Stock, and an assignment of such Receipt or
Receipts to the Company or in blank, duly completed and executed. If more than
one Receipt shall be delivered for conversion at one time by the same Holder,
the number of whole shares of Common Stock
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issuable upon conversion thereof shall be computed on the basis of the
aggregate number of Receipts so delivered.
Upon receipt by the Depositary of a Receipt or Receipts, together with
notice of conversion, duly completed and executed, directing the Depositary to
instruct the Company to cause the conversion of a specified number of shares or
fractions thereof of Stock and an assignment of such Receipt or Receipts to the
Company or in blank, duly completed and executed, if the Stock is at such time
convertible into Common Stock, the Depositary shall instruct the Company to
cause (i) the conversion of the Depositary Shares evidenced by the Receipts so
surrendered for conversion as specified in the written notice to the Depositary
and (ii) the delivery to the Holders of such Receipts of a certificate or
certificates evidencing the number of whole shares of Common Stock and the
amount of money, if any, to be delivered to the Holders of Receipts surrendered
for conversion in lieu of fractional shares of Common Stock otherwise issuable.
The Company shall as promptly as practicable after receipt thereof cause the
delivery of (i) a certificate or certificates evidencing the number of whole
shares of Common Stock into which the Stock represented by the Depositary Shares
evidenced by such Receipt or Receipts has been converted, and (ii) any money or
other property to which the Holder is entitled. Upon such conversion the
Depositary shall (i) deliver to the Holder a Receipt evidencing the number of
Depositary Shares, if any, which such Holder has elected not to convert and
evidencing the number of Depositary Shares, if any, in excess of the number of
Depositary Shares representing Stock which has been so converted, (ii) cancel
the Depositary Shares evidenced by Receipts surrendered for conversion and (iii)
deliver to the Company or its transfer agent for the Stock for cancellation, the
shares of Stock represented by the Depositary Shares evidenced by the Receipts
so surrendered and so converted.
The Record Holder of Depositary Shares on any dividend payment record
date established by the Depositary pursuant to Section 4.04 shall be entitled to
receive the dividend payable with respect to such Depositary Shares on the
corresponding dividend payment date notwithstanding the subsequent conversion of
the shares of Stock to which such Depositary Shares relate.
Upon the conversion of any shares of Stock for which a request for
conversion has been made by the Holder of Depositary Shares representing such
shares, all dividends in respect of such Depositary Shares shall cease to
accrue, such Depositary Shares shall be deemed no longer
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outstanding, all rights of the Holders of the Receipts with respect to such
Depositary Shares (except the right to receive the Common Stock, any cash
payable with respect to any fractional shares of Common Stock as provided
herein and any cash payable on account of accrued dividends and any Receipts
evidencing Depositary Shares not so converted) shall terminate, and the
Receipts evidencing such Depositary Shares shall be cancelled in accordance
with Section 2.08 hereof.
No fractional shares of Common Stock shall be issuable upon conversion
of Stock underlying the Depositary Shares. If any Holder of Receipts
surrendered with instructions to the Depositary for conversion of the underlying
Stock would be entitled to a fractional share of Common Stock upon such
conversion, the Company shall cause to be delivered to such Holder an amount in
cash for such fractional share as provided in the Certificate.
ARTICLE III
CERTAIN OBLIGATIONS OF THE HOLDERS
OF RECEIPTS AND THE COMPANY
SECTION 3.01. FILING PROOFS, CERTIFICATES AND OTHER INFORMATION.
Except for the initial deposit of Stock by the Company and any subsequent
deposit by the Company, 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 matters or other information, to obtain such guaranties of signature, to
execute such certificates and to make such customary representations and
warranties consistent with the terms of the Stock as the Depositary or the
Company may reasonably deem necessary or proper. The Depositary or the Company
may withhold the delivery, or delay the registration of transfer, conversion,
redemption or exchange, of any Receipt or the distribution of any dividend or
other distribution or the sale of any rights or of the proceeds thereof until
such proof or other information is filed or such certificates are executed or
such representations and warranties are made.
SECTION 3.02. PAYMENT OF TAXES OR OTHER GOVERNMENTAL CHARGES.
Holders of Receipts shall be obligated to make payments to the Depositary of
certain charges and expenses as provided in Section 5.07. Registration of
transfer of any Receipt and delivery of all money or other property, if any,
represented by the Depositary Shares evidenced by such Receipt may be refused
until any such payment due is made, and any dividends,
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interest payments or other distributions may be withheld or all or any part of
the Stock or other property represented by the Depositary Shares evidenced by
such Receipt and not theretofore sold may be sold for the account of the Holder
thereof (after attempting by reasonable means to notify such Holder prior to
such sale), and such dividends, interest payments or other distributions or the
proceeds of any such sale may be applied to any payment of such charges or
expenses, the Holder of such Receipt remaining liable for any deficiency.
SECTION 3.03. WARRANTY AS TO STOCK. The Company hereby represents
and warrants to the Depositary that the Stock, when issued, will be validly
issued, fully paid and nonassessable. Such representation and warranty shall
survive the deposit of the Stock and the issuance of Receipts.
SECTION 3.04. COVENANTS AND WARRANTIES AS TO COMMON STOCK. The
Company covenants that it will keep reserved or otherwise available a sufficient
number of authorized and unissued shares of Common Stock to meet conversion
requirements in respect of the Stock and that it will give written notice to the
Depositary of any adjustments in the conversion price as set forth in the
Certificate. The Company represents and warrants that the Common Stock issued
upon conversion, when issued, will be validly issued, fully paid and
nonassessable. Such representation and warranty shall survive the conversion of
the Stock into such Common Stock.
ARTICLE IV
THE DEPOSITED SECURITIES; NOTICES
SECTION 4.01. CASH DISTRIBUTIONS. Whenever the Depositary shall
receive any cash dividend or other cash distribution with respect to 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
dividend or distribution as are applicable to the number of Depositary Shares
evidenced by the Receipts held by such Holders; PROVIDED, HOWEVER, that if the
Company or the Depositary shall be required to withhold and shall withhold any
monies from any cash dividend or other cash distribution in respect of the Stock
on account of taxes or as otherwise required by law, regulation or court order,
the distribution in respect of Depositary Shares shall be reduced accordingly.
The Depositary shall distribute or make available for
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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 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 succeeding distribution to Record Holders of
Receipts then outstanding.
SECTION 4.02. DISTRIBUTIONS OTHER THAN CASH. Whenever the Depositary
shall receive any property (including securities) for distribution in a form
other than cash with respect to 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, as nearly as practicable, of such
property (including securities) received by it as are applicable to the number
of Depositary Shares evidenced by the Receipts held by such Holders, in any
manner that the Depositary may deem equitable and practicable for accomplishing
such distribution. If, in the opinion of the Depositary, such distribution
cannot be made proportionately among such Record Holders, or if for any other
reason (including any requirement that the Company or that 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 sale of the property thus
received, or any part thereof, in a commercially reasonable manner. 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 in accordance with the provisions of Section 4.01 for 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 recorded on the books of the Company any rights, preferences or
privileges to subscribe for or to purchase any securities or any rights,
preferences or privileges of any other nature, such rights, preferences or
privileges shall in each such instance be made available by the Depositary to
the Record Holders of Receipts in such manner as the Depositary may determine,
either by the issue to such Record Holders of warrants representing such rights,
preferences or privileges or by such other method as may be approved by the
Depositary in its discretion with the approval of the Company; PROVIDED,
HOWEVER, that (i) if at the time of issue or offer
-14-
of any such rights, preferences or privileges the Depositary determines that it
is not lawful or (after consultation with the Company) not feasible to make
such rights, preferences or privileges available to Holders of Receipts by the
issue of warrants or otherwise, or (ii) if and to the extent so instructed by
Holders of Receipts who do not desire to exercise such rights, preferences or
privileges, then the Depositary, in its discretion (with the approval of the
Company, in any case where the Depositary has determined that it is not
feasible to make such rights, preferences or privileges available), may, if
applicable laws or the terms of such rights, preferences or privileges permit
such transfer, sell such rights, preferences or privileges at public or private
sale, at such place or places and upon such terms as it may deem proper. The
net proceeds of any such sales 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 any action under the laws of any jurisdiction or any governmental
or administrative authorization, consent or permit is required in order for such
rights, preferences or privileges to be made available to Holders of Receipts,
the Company agrees with the Depositary that the Company will use its 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, ETC.; FIXING OF RECORD DATE FOR
HOLDERS OF RECEIPTS. Whenever any cash dividend or other cash distribution
shall become payable or any distribution of property (including securities)
other than cash shall be made, or if rights, preferences or privileges shall at
any time be offered with respect to Stock, or whenever the Depositary shall
receive notice of (i) any meeting at which holders of Stock are entitled to vote
or of which holders of Stock are entitled to notice or (ii) any election on the
part of the Company to redeem any shares of stock, the Depositary, in each such
instance, shall 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 who shall be entitled hereunder to receive a
distribution in respect of such dividend, distribution, rights, preferences or
privileges or the net proceeds of the sale thereof, or to give instructions for
the exercise of voting rights at any such meeting, or to receive notice of such
meeting.
-15-
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 and (ii) a statement that
the Record Holders at the close of business on the specified record date fixed
pursuant to Section 4.04 will be entitled to instruct the Depositary as to the
exercise of the voting rights pertaining to the amount of Stock (or portion
thereof) underlying their respective Depositary Shares and (iii) a brief
statement to the manner in which such instructions may be given. Upon the
written request of the Holders of Receipts on the applicable record date, the
Depositary shall endeavor, insofar as practicable, to vote or cause to be voted,
in accordance with the instructions set forth in such requests, the votes
relating to the shares of Stock (or portion thereof) underlying the Depositary
Shares evidenced by all Receipts as to which any particular voting instructions
are received. The Company hereby agrees to take all necessary action in order
to enable the Depositary to vote such Stock (or portion thereof) or cause such
Stock (or portion thereof) to be voted. Absent specific instructions from the
Holder of a Receipt, the Depositary will abstain from voting (but, at its
discretion, not from appearing at any meeting with respect to such Stock unless
directed to the contrary by the Holders of all the Receipts then outstanding) to
the extent of the Stock (or portion thereof) underlying the Depositary Shares
evidenced by such Receipt.
SECTION 4.06. CHANGES AFFECTING DEPOSITED SECURITIES AND
RECLASSIFICATIONS, RECAPITALIZATIONS, ETC. Upon any change in par or stated
value, split-up, combination or any other reclassification of the Stock, or upon
any recapitalization, reorganization, merger, amalgamation or consolidation to
which the Company is a party or sale of all or substantially all of the
Company's assets (each of the foregoing being referred to herein as a
"Transaction"), the Depositary may with the approval of, and shall upon the
instructions of, the Company, and (in either case) in such manner as to retain
as nearly as possible the percentage ownership interest in Stock of Holders of
Receipts immediately prior to such event, (i) make such adjustments in (a) the
fraction of an interest in one share of Stock underlying one Depositary Share,
(b) the ratio of the redemption price per Depositary Share to the redemption
price of a share of Stock and (c) the ratio of the conversion price per
Depositary Share to the conversion price of a share of Stock, in each case as
may be necessary
-16-
to reflect fully the effects of such Transaction, and (ii) treat any securities
received by the Depositary in exchange for, or upon conversion or in respect
of, the Stock as new deposited securities so received in exchange for, or upon
conversion or in respect of, the Stock. In any such case the Depositary may,
with the approval of the Company, execute and deliver additional Receipts, or
may call for surrender of all outstanding Receipts to be exchanged for new
Receipts specifically describing such new deposited securities.
Anything to the contrary herein or in the Receipt notwithstanding,
Holders of Receipts shall have the right from and after the effective date of
any such Transaction, to the extent that Holders of Stock had the right, prior
to or on the applicable effective date, to convert, exchange or surrender shares
of Stock into or for other stock, securities, property or cash, to surrender
such Receipts to the Depositary with instructions to convert, exchange or
surrender the Stock represented thereby only into or for, as the case may be,
the kind and amount of shares of stock and other securities and property and
cash into which such Stock represented by such Receipts has been converted or
for which such Stock might have been exchanged or surrendered immediately prior
to the effective date of such Transaction.
SECTION 4.07. INSPECTION OF REPORTS. The Depositary shall make
available for inspection by Holders of Receipts during normal business hours at
the Depositary's office, and at such other places as it may from time to time
deem advisable, any reports and communications received from the Company that
are both received by the Depositary as the holder of Stock and made generally
available to the holders of Stock.
SECTION 4.08. LIST OF RECEIPT HOLDERS. Promptly upon request by, and
at the expense of, the Company, the Depositary shall furnish to it a list, as of
a specified date, of the names and addresses of all persons in whose names
Receipts are registered on the books of the Depositary, and the amount of Stock
represented thereby.
-17-
ARTICLE V
THE DEPOSITARY, THE DEPOSITARY'S AGENTS,
THE REGISTRAR AND THE COMPANY
SECTION 5.01. MAINTENANCE OF OFFICES, AGENCIES AND TRANSFER BOOKS BY
THE DEPOSITARY; REGISTRAR. Upon execution of this Deposit Agreement, the
Depositary shall maintain, at the Depositary's Office, facilities for the
execution and delivery, registration and registration of transfer, surrender and
exchange of Receipts, and at the offices of the Depositary's Agents, if any,
facilities for the delivery, registration of transfer, surrender and exchange of
Receipts, all in accordance with the provisions of this Deposit Agreement.
The Depositary shall, with the approval of the Company, appoint a
Registrar for registration of such Receipts or Depositary Shares in accordance
with any requirements of any applicable stock exchange in which the Receipts or
the Depositary Shares are listed. Such Registrar (which may be the Depositary
if so permitted by the requirements of such exchange) may be removed and a
substitute Registrar appointed by the Depositary upon the request or with the
approval of the Company. If the Receipts, the Depositary Shares or the Stock
are listed on one or more other stock exchanges, the Depositary will, at the
request of the Company, arrange such facilities for the delivery, registration,
registration of transfer, surrender and exchange of such Receipts, such
Depositary Shares or such Stock as may be required by law or applicable stock
exchange regulation.
The Registrar shall maintain books at the Depositary's Office for the
registration and registration of transfer of Receipts or at such other place as
shall be approved by the Company and of which the Holders of Receipts shall have
reasonable notice, which books at all reasonable times during normal business
hour shall be open for inspection by the Record Holders of Receipts; PROVIDED,
that any such Holder requesting to exercise such rights shall certify in writing
to the Registrar that such inspection shall be for a proper purpose reasonably
related to such person's interest as an owner of Depositary Shares evidenced by
the Receipts.
The Depositary may cause the Registrar to close the books with respect
to the Receipts, at any time or from time to time, when the register of
shareholders of the Company is closed with respect to the Stock or when such
action is deemed necessary or advisable by the Depositary,
-18-
any Depositary's Agent or the Company because of any requirement of law or of
any government, governmental body or commission, stock exchange or any
applicable self-regulatory body, including, without limitation, the NASD.
SECTION 5.02. PREVENTION OF OR DELAY IN PERFORMANCE BY THE
DEPOSITARY, THE DEPOSITARY'S AGENTS, THE REGISTRAR OR THE COMPANY. Neither the
Depositary nor any Depositary's Agent nor any Registrar nor the Company, nor any
officers, directors, employees or agents thereof, 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 provision, present or future, of the
Company's Amended and Restated Articles of Incorporation (including the
Certificate) or by reason of any act of God, war or civil disorder, failure of
power, fire or other casualty damage or governmental requirements or
restrictions, the Depositary, the Depositary's Agent, the Registrar or the
Company shall be prevented, delayed 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, any Registrar or
the Company, nor any officers, directors, employees or agents thereof, incur any
liability or be subject to any obligation (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 event of the negligence or
misconduct of the party charged with such exercise or failure to exercise.
SECTION 5.03. OBLIGATIONS OF THE DEPOSITARY, THE DEPOSITARY'S AGENTS,
THE REGISTRAR AND THE COMPANY. Neither the Depositary nor any Depositary's
Agent nor any Registrar nor the Company shall be under any obligation to appear
in, prosecute or defend any action, suit or other proceeding in respect of the
Stock, the Depositary Shares or the Receipts that in its opinion may involve it
in expense or liability unless indemnity satisfactory to such party against all
such expense and liability be furnished as required.
Neither the Depositary nor any Depositary's Agent nor the Company, nor
any officer, director, employee or agent thereof, assumes any obligation or
shall be subject to any liability under this Deposit Agreement to Holders of
Receipts other than to use its best judgment and good faith
-19-
in the performance of such duties as are specifically set forth in this Deposit
Agreement. Neither the Depositary nor any Depositary's Agent nor any Registrar
nor the Company, nor any officer, director, employee or agent thereof, shall be
liable to any party hereto for any action or any failure to act by it with
respect to this Deposit Agreement in reliance upon the written advice of legal
counsel or accountants, or information from any person presenting stock for
deposit, any Holder of a Receipt or other persons believed to be authorized or
competent and on documents believed to be genuine. The Depositary, any
Depositary's Agent, any Registrar and the Company, and any officer, director,
employee or agent thereof, 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 undertakes, and shall cause any Registrar to undertake,
to perform such duties as are specifically set forth in this Deposit Agreement
using its best efforts and in good faith. The parties hereto acknowledge that
no implied covenants or obligations shall be read into this Deposit Agreement
against the Depositary or any Registrar or against the Company with respect to
the Depositary and any Registrar. The Depositary hereby indemnifies the Company
against any liability that may arise out of acts performed or omitted by the
Depositary or any Depositary's Agent due to its or their negligence or bad
faith.
The Depositary and its affiliates or subsidiaries, any Depositary's
Agent and the Company (to the extent permitted by law) may own, buy, sell or
deal in any class of securities of the Company and its affiliates and in
Receipts or Depositary Shares. The Depositary and its affiliates or
subsidiaries, and any Depositary's Agent may become pecuniarily interested in
any transaction in which the Company or its affiliates or subsidiaries may be
interested or contract with or lend money to the Company or its affiliates or
subsidiaries or otherwise act as fully or as freely as if it were not the
Depositary or the Depositary's Agent hereunder. The Depositary may also act as
transfer agent or registrar of any of the securities of the Company and its
affiliates or subsidiaries or act in any other capacity for the Company or its
affiliates or subsidiaries. Neither the Depositary (or its officers, directors,
employees or agents) nor any Depositary's Agent makes any representation or has
any responsibility as to the validity of the Registration Statement pursuant to
which the Depositary Shares are registered under the Securities Act of
-20-
1933, as amended, the Stock, the Depositary Shares, the Receipts (except its
signature thereon) or any instruments referred to therein or herein, or as to
the correctness of any statement made therein except the number of Depositary
Shares represented by such Receipts.
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 or as to the value of the Depositary Shares. 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 of its election so to resign 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 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.
If the Depositary acting hereunder shall at any time resign or be
removed, the Company shall, within sixty (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. Every successor Depositary shall execute and deliver to its
predecessor and to the Company an instrument in writing accepting its
appointment hereunder and agreeing to become a party to this Deposit Agreement,
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 execute and deliver an instrument
transferring to such
-21-
successor all rights and powers of such predecessor hereunder, shall duly
assign, transfer and deliver all right, title and interest in the Stock and
any monies 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 or other entity into or with which the Depositary may
be merged, consolidated or converted, or to which the Depositary may sell all or
substantially all its assets, shall be the successor of such Depositary without
the execution or filing of any document or any further act. Such successor
Depositary may authenticate the Receipts 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 furnished to it pursuant to Section 4.08, all notices and reports
(including, without limitation, financial statements) required by law, the rules
of any national securities exchange upon which the Stock, the Depositary Shares
or the Receipts are listed or by the Company's Amended and Restated Articles of
Incorporation (including the Certificate) or By-laws 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 Record 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 shall
indemnify the Depositary, any Depositary's Agent and any Registrar against, and
hold each of them harmless from, any loss, liability or expense (including the
reasonable costs and expenses of defending itself) that may arise out of (i)
acts performed or omitted in connection with this Deposit Agreement and the
Receipts (a) by the Depositary, any Registrar or any of their respective agents
(including any Depositary's Agent) except for any liability arising out of gross
negligence or willful misconduct on the respective parts of any such person or
persons, or (b) by the Company or any of its agents, or (ii) the offer, sale or
registration of the Depositary Shares, Receipts or the Stock
-22-
pursuant to the provisions hereof. This indemnification does not extend in
favor of Holders of Receipts.
SECTION 5.07. 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 charges of
the Depositary in connection with the initial deposit of the Stock and the
initial issuance of the Depositary Shares, any redemption of the Stock and the
issuance of shares of Common Stock upon the surrender of Receipts for
conversion. All other transfer and other taxes and governmental charges shall
be at the expense of Holders of Depositary Shares. If, at the request of a
Holder of Receipts, the Depositary incurs charges or expenses for which it is
not otherwise liable hereunder, such Holder will be liable for such charges and
expenses. All other 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 payable by the Company only after prior
consultation and agreement between the Depositary and the Company and consent by
the Company to the incurrence of such expenses, which consent shall not be
unreasonably withheld. The Depositary shall present any statement for charges
and expenses to the Company promptly, unless the Company shall agree otherwise.
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 which 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 unless such amendment shall have been approved by the Holders of at
least 66-2/3% of the Depositary Shares then outstanding. Every Holder of an
outstanding Receipt at the time any amendment becomes effective shall be deemed,
by continuing to hold such Receipt, to consent and agree to such amendment and
to be bound by the Deposit Agreement as amended thereby. In no event shall any
amendment impair the right, subject to the provisions of Sections 2.05, 2.06 and
2.09 hereof, of any owner of any Depositary Shares to surrender any Receipt
evidencing such Depositary Shares to the Depositary with instructions to cause
the conversion of
-23-
such Receipt into Common Stock or to deliver to the Holder the Stock, all
money and other property, if any, represented thereby, except in order to
comply with mandatory provisions of applicable law or the rules and regulations
of any governmental body, agency or commission, the NASD or any applicable
stock exchange.
SECTION 6.02. TERMINATION. This Agreement may be terminated by the
Company or the Depositary only after (i) all outstanding Depositary Shares shall
have been redeemed pursuant to Section 2.03, (ii) there shall have been made a
final distribution in respect of the Stock in connection with any liquidation,
dissolution or winding up of the Company and such distribution shall have been
distributed to the Holders of Depositary Shares pursuant to Section 4.01 or
4.02, as applicable, or (iii) each share of Stock shall been converted into
shares of Common Stock.
Upon the termination of this Deposit Agreement, the parties hereto
shall be discharged from all obligations under this Deposit Agreement except for
their respective obligations under Sections 5.03, 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 in separate
counterparts, each of which counterparts, when so executed and delivered, shall
be deemed an original, but all of which counterparts when taken together shall
constitute one and the same instrument.
SECTION 7.02. EXCLUSIVE BENEFIT OF PARTIES. This Deposit Agreement
is for the exclusive benefit of the parties hereto, and their respective
successors hereunder, and shall not be deemed to give any legal or equitable
right, remedy or claim to any other person whatsoever.
SECTION 7.03. INVALIDITY OF PROVISIONS. If 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 modified thereby.
SECTION 7.04. NOTICES. All notices hereunder shall be deemed given
by a party hereto if in writing and
-24-
delivered personally or by telegram or facsimile transmission or by registered
or certified mail (return receipt requested) to the other party at the
following address for such party (or at such other address as shall be
specified by like notice):
If to the Company to:
7075 Flying Cloud Drive
Eden Prairie, Minnesota 55344
Telecopy: (612) 947-2706
Attention: Chief Financial Officer
If to the Depositary to:
311 West Monroe, 12th Floor
Chicago, Illinois 60606
Telecopy:
Attention:
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 (i)
personally delivered, (ii) sent by first-class mail, or (iii) sent by telegram,
telex, telecopier or facsimile transmission and confirmed by first-class
letter. Such notice shall be 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 timely filed with the Depositary a written request that notices intended
for such Holder be mailed to some other address, at the address designated in
such request.
Delivery of a notice sent by first class mail, or by telegram or telex
or telecopier or facsimile 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 or facsimile)
is deposited, postage prepaid, in a post office letter box. The Depositary or
the Company may, however, act upon any telegram or telex or telecopier message
received by it from the other or from any Holder of a Receipt, notwithstanding
that such telegram or telex or telecopier message shall not subsequently be
confirmed by letter as aforesaid.
SECTION 7.05. DEPOSITARY'S AGENTS. The Depositary may from time to
time appoint any Depositary's Agent to act in any respect for the Depositary for
the purposes of this Deposit Agreement and may at any time appoint additional
Depositary's Agents and vary or terminate
-25-
the appointment of such Depositary's Agents. The Depositary will promptly
notify the Company of any such action.
SECTION 7.06. HOLDERS OF RECEIPTS ARE PARTIES. By acceptance of
delivery of the Receipts, any Holder of such Receipt from time to time shall be
deemed to have agreed to become a party to this Deposit Agreement and to be
bound by all of the terms and conditions hereof and of the Receipts to the same
extent as though such person executed this Agreement.
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 LAWS OF THE STATE OF NEW
YORK (WITHOUT REFERENCE TO APPLICABLE CONFLICTS OF LAW PROVISIONS).
SECTION 7.08. INSPECTION OF DEPOSIT AGREEMENT. Copies of the Deposit
Agreement shall be filed with the Depositary and the Depositary's Agents and
shall be open to inspection during business hours at the Depositary's Office and
the respective offices of the Depositary's Agents, if any, by any Holder of a
Receipt.
SECTION 7.09. HEADINGS. The headings of articles and sections in
this Deposit Agreement and in the form of the Receipt set forth in EXHIBIT A
hereto have been inserted for convenience only and are not to be regarded as a
part of this Deposit Agreement or the Receipts or to have any bearing upon the
meaning or interpretation of any provision contained herein or in the Receipts.
-26-
IN WITNESS WHEREOF, the Company and the Depositary have caused their
duly authorized officers to execute and deliver 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.
BEST BUY CO., INC.
By:
------------------------------
Richard M. Schulze
Chairman and Chief Executive
Officer
HARRIS TRUST AND SAVINGS BANK
By:
--------------------------------
Authorized Officer
-27-
EXHIBIT A
DEPOSITARY RECEIPT
FOR
DEPOSITARY SHARES
EACH REPRESENTING AN INTEREST IN ONE-ONE HUNDREDTH
(1/100th) OF
A SHARE OF SERIES A CUMULATIVE CONVERTIBLE PREFERRED
STOCK
(Par Value $1.00 Per Share)
OF
BEST BUY CO., INC.
(Incorporated under the Laws of the State of Minnesota)
--------------------------------
Harris Trust and Savings Bank, a corporation duly organized and
existing under the laws of the State of Illinois, with an office at the time of
the execution of the Deposit Agreement (as defined below) at 311 W. Monroe,
Chicago, Illinois 60606, as Depositary (the "Depositary"), hereby certifies
that _______________________________ is the registered owner of _____________
Depositary Shares ("Depositary Shares"), each Depositary Share representing an
interest in one-one hundredth (1/100th) of a share of Series A Cumulative
Convertible Preferred Stock, par value $1.00 per share (the "Stock") of Best Buy
Co., Inc., a corporation duly organized and existing under the laws of the State
of Minnesota (the "Company"). Subject to the terms of the Deposit Agreement,
each owner of a Depositary Share is entitled, proportionately, through the
Depositary to all the rights and preferences of the Stock relating thereto,
including dividend, voting, conversion, redemption and liquidation rights and
preferences contained in the Certificate of Designation of Best Buy Co., Inc. of
Series A Cumulative Convertible Preferred Stock adopted by the Company's Board
of Directors setting forth the number, terms, powers, designations, rights,
preferences, qualifications, restrictions and limitations of the Stock (the
"Certificate"), copies of which are on file at the Depositary's Office.
1. THE DEPOSIT AGREEMENT. Depositary Receipts (the "Receipts"), of
which this Receipt is one, are made available upon the terms and conditions set
forth in the Deposit Agreement, dated as of November 3, 1994 (the "Deposit
Agreement"), among the Company, the Depositary and all Holders from time to time
of Receipts. The Deposit Agreement (copies of which are on file at the
Depositary's
Office) sets forth the rights of Holders of Receipts and the rights
and duties of the Depositary and the Company in respect of the Stock deposited,
and any and all other property and cash deposited from time to time, thereunder.
The statements made on the face and the reverse of this Receipt are summaries of
certain provisions of the Deposit Agreement and are subject to the detailed
provisions thereof, to which reference is hereby made. Unless otherwise
expressly herein provided, all capitalized and undefined terms used herein shall
have the meaning ascribed thereto in the Deposit Agreement.
2. REDEMPTION. Whenever the Company shall elect to redeem shares of
Stock, it shall (unless otherwise agreed in writing with the Depositary) give
the Depositary not less than 10 days' prior notice of the proposed date of the
mailing of a notice of redemption of Stock to Holders of Receipts to be effected
in connection with a redemption of Stock and of the number of such shares of
Stock held by the Depositary to be redeemed as provided herein. On the date of
any such redemption of Stock, the Depositary shall redeem (using the proceeds
received by the Depositary from the redemption of the Stock) the number of
Depositary Shares representing such redeemed Stock. The Depositary shall, as
directed by the Company, mail, first-class postage prepaid, notice of the
redemption of Stock and the proposed simultaneous redemption of the Depositary
Shares representing the Stock to be redeemed, not less than 30 and not more than
60 days prior to the date fixed for redemption (the "Redemption Date") of such
Stock and Depositary Shares. Such notice shall be mailed to the Holders of
record of the Receipts evidencing Depositary Shares to be redeemed on the record
date fixed for such redemption as provided in paragraph 11 below. Notice having
been mailed 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, as set
forth in the Company's notice provided for above), the Depositary Shares called
for redemption shall be deemed no longer to be outstanding and all rights of
the Holders of Receipts evidencing such Depositary Shares (except the right to
receive the redemption price) shall, to the extent of such Depositary Shares,
cease and terminate. Upon surrender in accordance with said notice of the
Receipts evidencing such Depositary Shares (properly endorsed or assigned for
transfer, if the Depositary shall so require), the Holders of such Receipts
shall receive for each such Depositary Share an amount of cash or other property
equal to one-one hundredth (1/100th) of the redemption price per share payable
with respect to the Stock redeemed. The foregoing shall be subject further to
the terms and conditions of the Certificate.
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3. TRANSFER, SPLIT-UPS, COMBINATIONS. This Receipt is transferable
on the books of the Depositary upon surrender of this Receipt to the Depositary,
properly endorsed or accompanied by a properly executed instrument of transfer
or endorsement, and upon such transfer the Depositary shall execute a new
Receipt to or upon the order of the person entitled thereto, as provided in the
Deposit Agreement. This Receipt may be split into other Receipts or combined
with other Receipts into one Receipt, representing the same aggregate number of
Depositary Shares as the Receipt or Receipts surrendered. Any Holder of at
least one hundred (100) Depositary Shares which have not been previously called
for redemption may withdraw the number of whole shares of Stock underlying such
Depositary Shares and all money and other property, if any, represented thereby
by surrendering such Receipt or Receipts at the Depositary's Office or at such
other offices as the Depositary may designate for such withdrawals. Thereafter,
holders of such whole shares will not be entitled to deposit such Stock and
receive Depository Shares therefor.
4. CONVERSION RIGHTS. At any time when the Stock is convertible into
Common Stock, this Receipt may be surrendered with written instructions to the
Depositary to instruct the Company to cause the conversion of any specified
number of whole or fractional shares of Stock represented by the Depositary
Shares evidenced thereby into whole shares of Common Stock at the conversion
price then in effect for the Stock (and, therefore, for the Depositary Shares)
specified in the Certificate, as such conversion price may be adjusted by the
Company from time to time as provided in the Certificate. Subject to the terms
and conditions of the Deposit Agreement and the Certificate, a Holder of a
Receipt or Receipts evidencing Depositary Shares representing whole or
fractional shares of Stock may surrender such Receipt or Receipts at the
Depositary's Office or to such office or to such Depositary's Agents as the
Depositary may designate for such purpose, together with a notice of conversion
duly completed and executed, thereby directing the Depositary to instruct the
Company to cause the conversion of the number of shares or fractions thereof of
underlying Stock specified in such notice of conversion into shares of Common
Stock, and an assignment of such Receipt or Receipts to the Company or in blank,
duly completed and executed.
Upon receipt by the Depositary of a Receipt or Receipts, together with
notice of conversion, duly completed and executed, directing the Depositary to
instruct the Company to cause the conversion of a specified number of shares or
fractions thereof of Stock into Common Stock and
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an assignment of such Receipt or Receipts to the Company or in blank, duly
completed and executed, if the Stock is at such time convertible into Common
Stock, the Depositary shall instruct the Company (i) to cause the conversion of
the Depositary Shares evidenced by the Receipts so surrendered for conversion
as specified in the written notice to the Depositary and (ii) to cause the
delivery to the Holders of such Receipts a certificate or certificates
evidencing the number of whole shares of Common Stock, and the amount of money,
if any, to be delivered to the Holders of Receipts surrendered for conversion
in lieu of fractional shares of Common Stock otherwise issuable. The Company
shall as promptly as practicable after receipt thereof cause the delivery of
(i) a certificate or certificates evidencing the number of whole shares of
Common Stock into which the Stock represented by the Depositary Shares
evidenced by such Receipt or Receipts has been converted, and (ii) any money
or other property to which the Holder is entitled. Upon such conversion, the
Depositary shall (i) deliver to the Holder a Receipt evidencing the number of
Depositary Shares, if any, which such Holder has elected not to convert and
evidencing the number of Depositary Shares, if any, in excess of the number of
Depositary Shares representing Stock which has been so converted, (ii) cancel
the Depositary Shares evidenced by Receipts surrendered for conversion and
(iii) deliver to the Company or its transfer agent for the Stock for
cancellation the shares of Stock represented by the Depositary Shares evidenced
by the Receipts so surrendered and so converted.
The Holder of Depositary Shares on any dividend payment record date
established by the Depositary shall be entitled to receive the dividend payable
with respect to such Depositary Shares on the corresponding dividend payment
date notwithstanding the subsequent conversion of the shares of Stock to which
such Depositary Shares relate.
Upon the conversion of any shares of Stock for which a request for
conversion has been made by the Holder of Depositary Shares representing such
shares, 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 Stock, any cash payable with respect to any
fractional shares of Common Stock as provided herein and any cash payable on
account of accrued dividends and any Receipts evidencing Depositary Shares not
so converted) shall terminate, and the Receipt evidencing such Depositary Shares
shall be cancelled.
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5. SUSPENSION OF DELIVERY, TRANSFER, ETC. The transfer, split-up,
combination or surrender of this Receipt may be suspended and except as
otherwise provided in the Deposit Agreement, the deposit of Stock may be refused
during any period when the register of shareholders of the Company is closed, or
if any such action is deemed necessary or advisable by the Depositary, any agent
of the Depositary or the Company at any time or from time to time because of any
requirement of law or of any government or governmental body or commission, or
under any provision of the Deposit Agreement.
6. WARRANTY BY COMPANY. The Company warrants that the Stock when
issued and any shares of Common Stock issuable upon conversion of the Stock
(which the Company shall keep available for issuance), will be validly issued,
fully paid and nonassessable.
7. AMENDMENT. The form of the Receipts and any provisions of the
Deposit Agreement may at any time and from time to time be amended by agreement
between the Company and the Depositary in any respect which 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 unless such amendment shall have been approved by the Holders of at
least 66 2/3% of the Depositary Shares then outstanding. A Holder of a Receipt
at the time any amendment so becomes effective shall be deemed, by continuing to
hold such Receipt, to consent and agree to such amendment and to be bound by the
Deposit Agreement as amended thereby.
8. CHARGES OF DEPOSITARY. The Company will pay all transfer and
other taxes and governmental charges arising solely from the existence of the
depositary arrangements, and all charges of the Depositary in connection with
the initial deposit of the Stock, the initial issuance of the Depositary Shares,
the redemption of the Stock at the option of the Company, and the issuance of
shares of Common Stock upon the surrender of Receipts for conversion. All other
transfer and other taxes and other governmental charges shall be at the expense
of Holders of Depositary Shares.
9. TITLE TO RECEIPTS. This Receipt (and the Depositary Shares
evidenced hereby), when properly endorsed or accompanied by a properly executed
instrument of transfer, is transferable by delivery with the same effect as in
the case of a negotiable instrument; PROVIDED, HOWEVER, that until transfer of a
Receipt shall be registered on the books of the Registrar, on behalf of the
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Depositary, the Depositary may, notwithstanding any notice to the contrary,
treat the record Holder hereof at such time as the absolute owner hereof for the
purpose of determining the person entitled to distributions of dividends or
other distributions or to any notice provided for in the Deposit Agreement, and
for all other purposes.
10. DIVIDENDS AND DISTRIBUTIONS. Whenever the Depositary receives
any cash dividend or other cash distribution on the Stock, the Depositary will,
subject to the provisions of the Deposit Agreement, make such distribution to
the Receipt Holders in proportion to the number of Depositary Shares held by
them; PROVIDED, HOWEVER, that the amount distributed will be reduced by any
amounts required to be withheld by the Company or the Depositary on account of
taxes or as otherwise required pursuant to law, regulations or court order.
Other distributions received on the Stock may by distributed to Holders of
Receipts as provided in the Deposit Agreement.
11. FIXING OF RECORD DATE. Whenever any cash dividend or other cash
distribution shall become payable or any distribution other than cash shall be
made, or if rights, preferences or privileges shall at any time be offered with
respect to Stock, or whenever 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, the Depositary shall in each instance fix a record date
(which shall be the record date fixed by the Company with respect to the Stock),
for the determination of the Holders of Receipts who shall be entitled to
receive such dividend, distribution, rights, preferences, privileges or the net
proceeds of the sale thereof, or to give instructions for the exercise of voting
rights at any such meeting, or who shall be entitled to notice of such meeting.
12. VOTING RIGHTS. Upon receipt of notice of any meeting at which
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 which shall contain (i) such information as is
contained in such notice of meeting, (ii) a statement informing Holders of
record at the close of business on a specified record date that they may
instruct the Depositary as to the exercise of the voting rights pertaining to
the amount of Stock (or portion thereof) relating to 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
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insofar as practicable to vote or to cause to be voted the amount of Stock (or
portion thereof) relating to such Receipt in accordance with the instructions
set forth in such request. Absent specific instructions from the Holder of a
Receipt, the Depositary will abstain from voting (but, at its discretion, not
from appearing at any meeting with respect to such Stock unless directed to
the contrary by the Holders of all the Receipts then outstanding) to the
extent of the Stock (or portion thereof) underlying the Depositary Shares
evidenced by such Receipt.
13. CHANGES AFFECTING DEPOSITED SECURITIES. Upon any change in par
or stated value, split-up, combination or any, other reclassification of the
Stock or upon any recapitalization, reorganization, merger, amalgamation or
consolidation to which the Company is a party, or upon the sale of all or
substantially all of the Company's assets, the Depositary may with the approval
of, and shall upon the instructions of, the Company, and (in either case) in
such manner as to retain as nearly as possible the percentage ownership interest
in Stock of Holders of Receipts immediately prior to such event, (i) make such
adjustments in (a) the fraction of an interest in one share of Stock underlying
one Depositary Share, (b) the ratio of the redemption price per Depositary Share
to the redemption price of a share of Stock, and (c) the ratio of the conversion
price per Depositary Share to the conversion price of a share of Stock, in each
case as may be necessary fully to reflect the effects of such change, and (ii)
treat any securities received by the Depositary in exchange for, or upon
conversion or in respect of, the Stock as new deposited securities so received
in exchange for, or upon conversion or in respect of, such Stock. In any such
case the Depositary may in its discretion, with the approval of the Company,
execute and deliver additional Receipts, or may call for the surrender of
outstanding Receipts to be exchanged for new Receipts specifically describing
such new deposited securities.
Anything to the contrary herein or in the Depositary Agreement
notwithstanding, Holders of Receipts shall have the right from and after the
effective date of any such transaction, to the extent that holders of Stock had
the right, prior to or on the applicable effective date, to convert, exchange or
surrender shares of Stock into or for other stock, securities, property or cash,
to surrender such Receipts to the Depositary with instructions to convert,
exchange or surrender the Stock represented thereby only into or for, as the
case may be, the kind and amount of shares of stock and other securities and
property and cash into which the Stock represented by such Receipts has been
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converted or for which such Stock might have been exchanged or surrendered
immediately prior to the effective date of such transaction.
14. LIABILITY AND OBLIGATIONS OF THE DEPOSITARY, THE DEPOSITARY'S
AGENTS OR THE COMPANY. Neither the Depositary nor any Depositary's Agent nor
any Registrar nor the Company, nor any officer, director, employee or agent
thereof, 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 provision, present of future, of the Company's Articles of Incorporation
(including the Certificate) or by reason of any act of God, war or civil
disorder, failure of power, fire or other casualty damage or governmental
requirements or restrictions, the Depositary, the Depositary's Agent, the
Registrar or the Company shall be prevented or forbidden from doing or
performing any act or thing that the terms of the Deposit Agreement provide
shall be done or performed; nor shall the Depositary, any Depositary's Agent,
any Registrar or the Company, nor any officer, director, employee or agent
thereof, incur any liability or be subject to any obligation (i) by reason of
nonperformance or delay, caused as aforesaid, in performance of any act or thing
that the terms of the Deposit Agreement provide shall or may be done or
performed, or (ii) by reason of any exercise of, or failure to exercise, any
discretion provided for in the Deposit Agreement, except in the event of the
negligence or misconduct of the party charged with such exercise or failure to
exercise. Neither the Depositary nor any Depositary's Agent nor the Company,
nor any officer, director, employee or agent thereof, assumes any obligation or
shall be subject to any liability under the Deposit Agreement to Holders of
Receipts other than to use its best judgment and good faith in the performance
of such duties as are specifically set forth in the Deposit Agreement. Neither
the Depositary nor any Depositary's Agent nor any Registrar nor the Company
shall be under any obligation to appear in, prosecute or defend any action, suit
or other proceeding in respect of the Stock, the Depositary Shares or the
Receipts that in its opinion may involve it in expense or liability, unless
indemnity satisfactory to it against all such expense and liability be
furnished. The Deposit Agreement contains various other exculpatory,
indemnification and related provisions, to which reference is hereby made.
15. RESIGNATION AND REMOVAL OF DEPOSITARY. The Depositary may at any
time (i) resign by written notice of its election so to resign delivered to the
Company, such
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resignation to take effect upon the appointment of a successor Depositary and
its acceptance of such appointment, or (ii) be removed by the Company, such
removal to take effect upon the appointment of a successor Depositary and its
acceptance of such appointment.
16. TERMINATION OF DEPOSIT AGREEMENT. The Deposit Agreement may be
terminated by the Company or the Depositary upon or after the occurrence of any
of the following events: (i) all outstanding Depositary Shares shall have been
redeemed; (ii) there shall have been made a final distribution in respect of the
Stock in connection with any liquidation, dissolution or winding up of the
Company and such distribution shall have been distributed to the Holders of
Receipts; or (iii) each share of Stock shall have been converted into shares of
Common Stock.
17. GOVERNING LAW. THIS RECEIPT AND THE DEPOSIT AGREEMENT AND ALL
RIGHTS HEREUNDER AND THEREUNDER AND PROVISIONS HEREOF AND THEREOF SHALL BE
GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK
(WITHOUT REFERENCE TO APPLICABLE CONFLICTS OF LAW PROVISIONS).
This receipt shall not be entitled to any benefits under the Deposit
Agreement or be valid or obligatory for any purpose unless this Receipt shall
have been executed manually by a duly authorized officer of the Depositary or,
if a Registrar for the Receipts (other than the Depositary) shall have been
appointed, by facsimile signature of a duly authorized officer of the Depositary
and countersigned manually by a duly authorized officer of such Registrar.
THE DEPOSITARY IS NOT RESPONSIBLE FOR THE VALIDITY OF ANY DEPOSITED STOCK. THE
DEPOSITARY ASSUMES NO RESPONSIBILITY FOR THE CORRECTNESS OF THE FOREGOING
DESCRIPTION, WHICH CAN BE TAKEN AS A STATEMENT OF THE COMPANY SUMMARIZING
CERTAIN PROVISIONS OF THE DEPOSIT AGREEMENT THAT APPEARS IN THE DEPOSITARY
RECEIPTS. THE DEPOSITARY MAKES NO WARRANTIES OR REPRESENTATIONS AS TO THE
VALIDITY, GENUINENESS OR SUFFICIENCY OF ANY STOCK AT ANY TIME DEPOSITED WITH THE
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DEPOSITARY HEREUNDER OR OF THE DEPOSITARY SHARES (EXCEPT ITS SIGNATURE HEREON),
OR AS TO THE VALUE OF THE DEPOSITARY SHARES.
Dated:
HARRIS TRUST AND SAVINGS BANK
By:
---------------------------
Authorized Officer
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NOTICE OF CONVERSION
The undersigned hereby irrevocably exercises the option to convert
this Receipt or a portion hereof below designated into shares of Common Stock of
Best Buy Co., Inc. in accordance with the terms of the Certificate referred to
in this Receipt, and directs the Depositary to instruct the Company that the
shares of Common Stock issuable and deliverable upon the conversion, together
with any check in payment of accrued and unpaid dividends or in lieu of
fractional shares, and any Receipts representing any unconverted Depositary
Shares be issued and delivered to the undersigned unless, in the case of such
shares of Common Stock or Receipts, a different name has been indicated below.
If shares of Common Stock or Receipts are to be issued in the name of a person
other than the undersigned, the undersigned will pay all transfer taxes payable
with respect thereto.
Dated:
-------------- ------------------------------
Signature of Holder (must conform in all respects
to the name of the Holder appearing on the face
hereof)
Signature Guaranteed By:
------------------------------
Number of Depositary Shares
to be Converted
- - -------------------------
Fill in for registration of shares of Common Stock and/or Receipts if to be
issued otherwise than to Holder.
Social Security or Other
- - ------------------------- Taxpayer Identifying Number
(Name)
- - ------------------------- -------------------------
(Address)
- - -------------------------
Print name and address
(including zip code number)
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