Exhibit 4.5
FREEPORT-McMoRan COPPER & GOLD INC.
and
MELLON SECURITIES TRUST COMPANY,
As Depositary
and
HOLDERS OF DEPOSITARY RECEIPTS
____________
DEPOSIT AGREEMENT
____________
Dated as of July 1, 1993
__________________________________________________
TABLE OF CONTENTS
Page
Parties . . . . . . . . . . . . . . . . . . . . 1
Recitals . . . . . . . . . . . . . . . . . . . 1
ARTICLE I
DEFINITIONS
"Certificate of Designations" . . . . . . . . . 1
"Certificate of Incorporation" . . . . . . . . 1
"Common Stock" . . . . . . . . . . . . . . . . 2
"Company" . . . . . . . . . . . . . . . . . . . 2
"Corporate Office" . . . . . . . . . . . . . . 2
"Deposit Agreement" . . . . . . . . . . . . . . 2
"Depositary" . . . . . . . . . . . . . . . . . 2
"Depositary Share" . . . . . . . . . . . . . . 2
"Depositary's Agent" . . . . . . . . . . . . . 2
"New York Office" . . . . . . . . . . . . . . . 3
"Receipt" . . . . . . . . . . . . . . . . . . . 3
"record holder" . . . . . . . . . . . . . . . . 3
"Registrar" . . . . . . . . . . . . . . . . . . 3
"Securities Act" . . . . . . . . . . . . . . . 3
"Stock" . . . . . . . . . . . . . . . . . . . . 3
ARTICLE II
FORM OF RECEIPTS, DEPOSIT OF STOCK,
EXECUTION AND DELIVERY, TRANSFER, SURRENDER,
REDEMPTION AND CONVERSION OF RECEIPTS
SECTION 2.01 Form and Transfer of Receipts . 3
SECTION 2.02 Deposit of Stock; Execution and
Delivery of Receipts in
Respect Thereof . . . . . . . 4
SECTION 2.03 Redemption and Conversion
of Stock . . . . . . . . . . . 5
SECTION 2.04 Register of Transfer of Receipts 8
SECTION 2.05 Combination and Split-ups
of Receipts . . . . . . . . . 8
SECTION 2.06 Absence of Withdrawal Rights . . 8
SECTION 2.07 Limitations on Execution and Delivery,
Transfer, Split-up, Combination,
Surrender and Exchange of Receipts
and Withdrawal or Deposit of Stock 8
SECTION 2.08 Lost Receipts, etc. . . . . . . . 9
SECTION 2.09 Cancellation and Destruction of
Surrendered Receipts . . . . . 10
ARTICLE III
CERTAIN OBLIGATIONS OF HOLDERS OF RECEIPTS
AND THE COMPANY
SECTION 3.01 Filing Proofs, Certificates and
Other Information . . . . . . 10
SECTION 3.02 Payment of Taxes or Other
Governmental Charges . . . . . 10
SECTION 3.03 Withholding . . . . . . . . . . 11
SECTION 3.04 Representations and Warranties
as to Stock . . . . . . . . . 11
ARTICLE IV
THE STOCK, NOTICES
SECTION 4.01 Cash Distributions . . . . . . . 12
SECTION 4.02 Distributions Other Than Cash . 12
SECTION 4.03 Subscription Rights, Preferences
or Privileges . . . . . . . . 13
SECTION 4.04 Notice of Dividends, Fixing of Record
Date for Holders of Receipts . 14
SECTION 4.05 Voting Rights . . . . . . . . . 14
SECTION 4.06 Changes Affecting Stock and
Reclassifications,
Recapitalizations, etc. . . . 15
SECTION 4.07 Reports . . . . . . . . . . . . 15
SECTION 4.08 Lists of Receipt Holders . . . . 15
ARTICLE V
THE DEPOSITARY, THE DEPOSITARY'S AGENTS,
THE REGISTRAR AND THE COMPANY
SECTION 5.01 Maintenance of Offices, Agencies,
Transfer Books by the Depositary;
the Registrar . . . . . . . . 15
SECTION 5.02 Prevention or Delay in Performance
by the Depositary, the Depositary's
Agents, the Registrar or the
Company . . . . . . . . . . . 16
SECTION 5.03 Obligations of the Depositary, the
Depositary's Agents, the Registrar
and the Company . . . . . . . 17
SECTION 5.04 Resignation and Removal of the
Depositary, Appointment of
Successor Depositary . . . . . 19
SECTION 5.05 Corporate Notices and Reports . 20
SECTION 5.06 Deposit of Stock by the Company 20
SECTION 5.07 Indemnification by the Company . 20
SECTION 5.08 Fees, Charges and Expenses . . . 21
ARTICLE VI
AMENDMENT AND TERMINATION
SECTION 6.01 Amendment . . . . . . . . . . . 21
SECTION 6.02 Termination . . . . . . . . . . 21
ARTICLE VII
MISCELLANEOUS
SECTION 7.01 Counterparts . . . . . . . . . . 22
SECTION 7.02 Exclusive Benefits of Parties . 23
SECTION 7.03 Invalidity of Provisions . . . . 23
SECTION 7.04 Notices . . . . . . . . . . . . 23
SECTION 7.05 Depositary's Agents . . . . . . 24
SECTION 7.06 Holders of Receipts Are Parties 24
SECTION 7.07 Governing Law . . . . . . . . . 24
SECTION 7.08 Headings . . . . . . . . . . . . 24
TESTIMONIUM . . . . . . . . . . . . . . . . . . 25
SIGNATURES . . . . . . . . . . . . . . . . . . 25
EXHIBIT A . . . . . . . . . . . . . . . . . . . A-1
DEPOSIT AGREEMENT
DEPOSIT AGREEMENT, dated as of July 1, 1993
among Freeport-McMoRan Copper & Gold Inc., a Delaware
corporation, Mellon Securities Trust Company, a New
York trust company, as Depositary, and all holders
from time to time of Receipts issued hereunder.
W I T N E S S E T H:
WHEREAS, the Company desires to provide as
hereinafter set forth in this Deposit Agreement, for
the deposit of shares of the Stock with the
Depositary, as agent for the beneficial owners of the
Stock, for the purposes set forth in this Deposit
Agreement and for the issuance hereunder of the
Receipts evidencing Depositary Shares representing an
interest in the Stock so deposited; and
WHEREAS, the Receipts are to be substantially
in the form annexed as Exhibit A to this Deposit
Agreement, with appropriate insertions, modifications
and omissions, as hereinafter provided in this Deposit
Agreement.
NOW, THEREFORE, in consideration of the
premises contained herein, it is agreed by and among
the parties hereto as follows:
ARTICLE I
DEFINITIONS
The following definitions shall apply to the
respective terms (in the singular and plural forms of
such terms) used in this Deposit Agreement and the
Receipts:
"Certificate of Designations" shall mean the
Certificate of Designations establishing and setting
forth the rights, preferences, privileges and
limitations of the Stock.
"Certificate of Incorporation" shall mean the
Certificate of Incorporation, as amended and restated
from time to time, of the Company.
"Common Stock" shall mean the Company's Class
A Common Stock, par value $0.10 per share.
"Company" shall mean Freeport McMoRan Copper
& Gold Inc., a Delaware corporation, and its
successors.
"Corporate Office" shall mean the office of
the Depositary in Ridgefield Park, New Jersey at which
at any particular time its business in respect of
matters governed by this Deposit Agreement shall be
administered, which at the date of this Deposit
Agreement is located at 85 Challenger Road.
"Deposit Agreement" shall mean this
agreement, as the same may be amended, modified or
supplemented from time to time.
"Depositary" shall mean Mellon Securities
Trust Company, as Depositary hereunder, and any
successor as Depositary hereunder.
"Depositary Share" shall mean the rights
evidenced by the Receipts executed and delivered
hereunder, including the interests in Stock granted to
holders of Receipts pursuant to the terms and
conditions of the Deposit Agreement. Each Depositary
Share shall represent an interest in 0.05 shares of
Stock deposited with the Depositary hereunder and the
same proportionate interest in any and all other
property received by the Depositary in respect of such
share of Stock and held under this Deposit Agreement.
Subject to the terms of this Deposit Agreement, each
record holder of a Receipt evidencing a Depositary
Share or Shares is entitled, proportionately, to all
the rights, preferences and privileges of the Stock
represented by such Depositary Share or Shares,
including the dividend, conversion, exchange, voting
and liquidation rights contained in the Certificate of
Designations, and to the benefits of all obligations
and duties of the Company in respect of the Stock
under the Certificate of Designations and the
Certificate of Incorporation.
"Depositary's Agent" shall mean an agent
appointed by the Depositary as provided, and for the
purposes specified, in Section 7.05.
"New York Office" shall mean the office
maintained by the Depositary in the Borough of
Manhattan, The City of New York, which at the date of
this Deposit Agreement is located at 120 Broadway.
"Receipt" shall mean a Depositary Receipt
executed and delivered hereunder, in substantially the
form of Exhibit A hereto, evidencing Depositary Share
or Shares, as the same may be amended from time to
time in accordance with the provisions hereof.
"record holder" or "holder" as applied to a
Receipt shall mean the person in whose name a Receipt
is registered on the books maintained by or on behalf
of the Depositary for such purpose.
"Registrar" shall mean any bank or trust
company appointed to register ownership and transfers
of Receipts as herein provided.
"Securities Act" shall mean the Securities
Act of 1933, as amended.
"Stock" shall mean shares of the Company's
Step-Up Convertible Preferred Stock, par value $0.10
per share.
ARTICLE II
FORM OF RECEIPTS, DEPOSIT OF STOCK,
EXECUTION AND DELIVERY, TRANSFER, SURRENDER,
REDEMPTION AND CONVERSION OF RECEIPTS
SECTION 2.01. Form and Transfer of Receipts.
Receipts shall be engraved or printed or lithographed
on steel-engraved borders and shall be substantially
in the form set forth in Exhibit A annexed to this
Deposit Agreement, with appropriate insertions,
modifications and omissions, as hereinafter provided.
Receipts shall be executed by the Depositary by the
manual signature of a duly authorized officer of the
Depositary; provided, however, that such signature may
be a facsimile if a Registrar (other than the
Depositary) shall have countersigned the Receipts by
manual signature of a duly authorized officer of the
Registrar. No Receipt shall be entitled to any
benefits under this Deposit Agreement or be valid or
obligatory for any purpose unless it shall have been
executed as provided in the preceding sentence. The
Depositary shall record on its books each Receipt
executed as provided above and delivered as
hereinafter provided. Receipts bearing the facsimile
signature of anyone who was at any time a duly
authorized officer of the Depositary shall bind the
Depositary, notwithstanding that such officer has
ceased to hold such office prior to the delivery of
such Receipts.
Receipts may be issued in denominations of
any number of whole Depositary Shares. All Receipts
shall be dated the date of their execution.
Receipts may be endorsed with or have
incorporated in the text thereof such legends or
recitals or changes not inconsistent with the
provisions of this Deposit Agreement as may be
required by the Depositary or required to comply with
any applicable law or regulation or with the rules and
regulations of any securities exchange upon which the
Stock or the Depositary Shares may be listed or to
conform with any usage with respect thereto, or to
indicate any special limitations or restrictions to
which any particular Receipts are subject by reason of
the date of issuance of the Stock or otherwise.
Title to any Receipt (and to the Depositary
Shares evidenced by such Receipt) that is properly
endorsed or accompanied by a properly executed
instrument of transfer shall be transferable by
delivery with the same effect as in the case of
investment securities in general; provided, however,
that the Depositary may, notwithstanding any notice to
the contrary, treat the record holder thereof at such
time as the absolute owner thereof for the purpose of
determining the person entitled to distributions of
dividends or other distributions or to any notice
provided for in this Deposit Agreement and for all
other purposes.
SECTION 2.02. Deposit of Stock; Execution
and Delivery of Receipts in Respect Thereof. Subject
to the terms and conditions of this Deposit Agreement,
the Company or any holder of Stock may deposit such
Stock under this Deposit Agreement by delivery to the
Depositary of a certificate or certificates for the
Stock to be deposited, properly endorsed or
accompanied, if required by the Depositary, by a
properly executed instrument of transfer in form
satisfactory to the Depositary, together with (i) all
such certifications as may be required by the
Depositary in accordance with the provisions of this
Deposit Agreement and (ii) a written order of the
Company or such holder, as the case may be, directing
the Depositary to execute and deliver to or upon the
written order of the person or persons stated in such
order a Receipt or Receipts for the number of
Depositary Shares representing such deposited Stock.
Upon receipt by the Depositary of a
certificate or certificates for Stock to be deposited
hereunder, together with the other documents specified
above, the Depositary shall, as soon as transfer and
registration can be accomplished, present such
certificate or certificates to the registrar and
transfer agent of the Stock for transfer and
registration in the name of the Depositary or its
nominee of the Stock being deposited. Deposited Stock
shall be held by the Depositary in an account to be
established by the Depositary at the Corporate Office.
Upon receipt by the Depositary of a
certificate or certificates for Stock to be deposited
hereunder, together with the other documents specified
above, the Depositary, subject to the terms and
conditions of this Deposit Agreement, shall execute
and deliver, to or upon the order of the person or
persons named in the written order delivered to the
Depositary referred to in the first paragraph of this
Section 2.02, a Receipt or Receipts for the number of
whole Depositary Shares representing the Stock so
deposited and registered in such name or names as may
be requested by such person or persons. The
Depositary shall execute and deliver such Receipt or
Receipts at the New York Office, except that, at the
request, risk and expense of any person requesting
such delivery and for the account of such person, such
delivery may be made at such other place as may be
designated by such person. In each case, delivery
will be made only upon payment by such person to the
Depositary of all taxes and other governmental charges
and any fees payable in connection with such deposit
and the transfer of the deposited Stock.
The Company shall deliver to the Depositary
from time to time such quantities of Receipts as the
Depositary may request to enable the Depositary to
perform its obligations under this Deposit Agreement.
SECTION 2.03. Redemption and Conversion of
Stock. Whenever the Company shall elect to redeem
shares of Stock into shares of Common Stock in
accordance with the Certificate of Designations, it
shall (unless otherwise agreed in writing with the
Depositary) give the Depositary in its capacity as
Depositary not less than 5 business days' prior notice
of the proposed date of the mailing of a notice of
redemption of Stock and the simultaneous redemption of
the Depositary Shares representing the Stock to be
redeemed and of the number of such shares of Stock
held by the Depositary to be redeemed. The Depositary
shall, as directed by the Company in writing, mail,
first class postage prepaid, notice of the redemption
of Stock and the proposed simultaneous redemption of
the Depositary Shares representing the Stock to be
redeemed not less than 15 and not more than 60 days
prior to the date fixed for redemption of such Stock
and Depositary Shares, to the record holders of the
Receipts evidencing the Depositary Shares to be so
redeemed at the addresses of such holders as the same
appear on the records of the Depositary.
Notwithstanding the foregoing, neither failure to mail
or publish any such notice to one or more such holders
nor any defect in any notice shall affect the
sufficiency of the proceedings for redemption. The
Company shall provide the Depositary with such notice,
and each such notice shall state: the redemption date;
the number of Depositary Shares to be redeemed if
fewer than all the Depositary Shares held by any
holder are to be redeemed the number of such
Depositary Shares held by such holder to be so
redeemed; in the case of a call for redemption, the
call price payable upon redemption (and the form of
consideration, whether cash, securities or other
consideration, on which the redemption call price will
be paid); the place or places where Receipts
evidencing Depositary Shares to be redeemed are to be
surrendered for redemption; whether the Company is
depositing with a bank or trust company on or before
the redemption date, the cash payable by the Company
and the proposed date of such deposit; the amount of
accrued and unpaid dividends payable per share of
Stock to be redeemed to and including such redemption
and that dividends in respect of the Stock represented
by the Depositary Shares to be redeemed will cease to
accrue on such redemption date (unless the Company
shall default in delivering cash or other
consideration at the time and place specified in such
notice). On the date of any such redemption the
Depositary shall surrender the certificate or
certificates held by the Depositary evidencing the
number of shares of Stock to be redeemed in the manner
specified in the notice of redemption of Stock
provided by the Company pursuant to the Certificate of
Designations. The Depositary shall, thereafter,
redeem the number of Depositary Shares representing
such redeemed Stock upon the surrender of Receipts
evidencing such Depositary Shares in the manner
provided in the notice sent to record holders of
Receipts. In case fewer than all the outstanding
Depositary Shares are to be redeemed, the Depositary
Shares to be redeemed shall be selected by the
Depositary by lot or on a pro rata basis at the
direction of the Company.
Notice having been mailed by the Depositary
as aforesaid, from and after the redemption date
(unless the Company shall have failed to redeem the
shares of Stock to be redeemed by it upon the
surrender of the certificate or certificates therefor
by the Depositary as described in the preceding
paragraph), the Depositary Shares called for
redemption shall be deemed no longer to be outstanding
and all rights of the holders of Receipts evidencing
such Depositary Shares (except the right to receive
the cash, securities or form of consideration payable
upon redemption upon surrender of such Receipts)
shall, to the extent of such Depositary Shares, cease
and terminate. The foregoing shall be subject further
to the terms and conditions of the Certificate of
Designations.
If fewer than all of the Depositary Shares
evidenced by a Receipt are called for redemption, the
Depositary will deliver to the holder of such Receipt
upon its surrender to the Depositary, together with
the redemption price (whether to be paid in the form
of cash, shares of Common Stock or other form or forms
of consideration) and all accrued and unpaid dividends
to and including the date fixed for redemption payable
in respect of the Depositary Shares called for
redemption, a new Receipt evidencing the Depositary
Shares evidenced by such prior Receipt and not called
for redemption.
The Depositary shall not be required (a) to
issue, transfer or exchange any Receipts for a period
beginning at the opening of business 15 days next
preceding any selection of Depositary Shares and Stock
to be redeemed and ending at the close of business on
the day of the mailing of notice of redemption of
Depositary Shares or (b) to transfer or exchange for
another Receipt any Receipt evidencing Depositary
Shares called or being called for redemption, in whole
or in part except as provided in the immediately
preceding paragraph of this Section 2.03.
Whenever a record holder of Receipts shall
duly deliver, in person or by a duly authorized
attorney, such Receipts (properly endorsed or assigned
for transfer, as the Depositary shall require) to the
Depositary at the New York Office, together with
written notice of such record holder's election to
convert the Depositary Shares evidenced by such
Receipts into Common Stock (provided that any delivery
of Receipts evidencing Depositary Shares that have
been called for redemption may not occur after the
close of business on the date fixed for redemption),
the Depositary shall promptly notify the Company of
such record holder's election and deliver to the
Company certificates evidencing such Stock as are
represented by the Depositary Shares evidenced by such
Receipts delivered by such record holder for
conversion. From and after the close of business on
any business day on which a record holder duly
delivers the foregoing documents to the Depositary,
such Depositary Shares shall be deemed converted into
Common Stock at a conversion rate to be communicated
to the Depositary in writing, which conversion rate
will be equal to 0.05 times the conversion rate for
each share of Stock as set forth in the Certificate of
Designations.
From and after the conversion date (unless
the Company shall have failed to convert the shares of
Stock to be converted by it upon the surrender of the
certificate or certificates therefor by the Depositary
as described in the immediately preceding paragraph),
the Depositary Shares subject to conversion shall be
deemed no longer to be outstanding and all rights of
the holders of Receipts evidencing such Depositary
Shares (except the right to receive the cash,
securities or shares of Common Stock payable upon
conversion upon surrender of such Receipts) shall, to
the extent of such Depositary Shares, cease and
terminate.
To the extent that Depositary Shares are
converted into shares of Common Stock and all of such
shares of Common Stock cannot be distributed to the
record holders of Receipts converted without creating
fractional interests in such shares, the Company may
distribute, or cause to be distributed, cash to such
holders in lieu of delivery of such fractional shares
or, if the Company elects not to make or cause to be
made such a distribution, the Depositary may, with the
consent of the Company, adopt such method as it deems
equitable and practicable for the purpose of effecting
such distribution, including the sale (at public or
private sale) of such shares of Common Stock at such
place or places and upon such terms as it may deem
proper, and the net proceeds of any such sale shall,
subject to Section 3.02, be distributed or made
available for distribution to such record holders that
would otherwise receive fractional interests in such
shares of Common Stock.
SECTION 2.04. Register of Transfer of
Receipts. Subject to the terms and conditions of
this Deposit Agreement, the Depositary shall register
on its books from time to time transfers of Receipts
upon any surrender thereof at the Corporate Office,
the New York Office or such other office as the
Depositary may designate for such purpose, by the
record holder in person or by a duly authorized
attorney, properly endorsed or accompanied by a
properly executed instrument of transfer, together
with evidence of the payment of any transfer taxes as
may be required by law. Upon such surrender, the
Depositary shall execute a new Receipt or Receipts and
deliver the same to or upon the order of the person
entitled thereto evidencing the same aggregate number
of Depositary Shares evidenced by the Receipt or
Receipts surrendered.
SECTION 2.05. Combination and Split-ups of
Receipts. Upon surrender of a Receipt or Receipts at
the Corporate Office, the New York Office or such
other office as the Depositary may designate for the
purpose of effecting a split-up or combination of
Receipts, subject to the terms and conditions of this
Deposit Agreement, the Depositary shall execute and
deliver a new Receipt or Receipts in the authorized
denominations requested evidencing the same aggregate
number of Depositary Shares evidenced by the Receipt
or Receipts surrendered; provided, however, that the
Depositary shall not issue any Receipt evidencing a
fractional Depositary Share.
SECTION 2.06. Absence of Withdrawal Rights.
Holders of Depositary Receipts are not entitled to
receive the shares of Stock or money and other
property, if any, represented by the Depositary Shares
evidenced by such Receipts.
SECTION 2.07. Limitations on Execution and
Delivery, Transfer, Split-up, Combination, Surrender
and Exchange of Receipts and Withdrawal or Deposit of
Stock. As a condition precedent to the execution and
delivery, registration of transfer, split-up,
combination, surrender or exchange of any Receipt, the
delivery of any distribution thereon or the withdrawal
or deposit of Stock, the Depositary, any of the
Depositary's Agents or the Company may require any or
all of the following: (i) payment to it of a sum
sufficient for the payment (or, in the event that the
Depositary or the Company shall have made such
payment, the reimbursement to it) of any tax or other
governmental charge with respect thereto (including
any such tax or charge with respect to the Stock being
deposited or withdrawn or with respect to the Common
Stock or other securities or property of the Company
being issued upon conversion or redemption); (ii)
production of proof satisfactory to it as to the
identity and genuineness of any signature; and (iii)
compliance with such reasonable regulations, if any,
as the Depositary or the Company may establish not
inconsistent with the provisions of this Deposit
Agreement.
The deposit of Stock may be refused, the
delivery of Receipts against Stock or the registration
of transfer, split-up, combination, surrender or
exchange of outstanding Receipts and the withdrawal of
deposited Stock may be suspended (i) during any period
when the register of stockholders of the Company is
closed, (ii) if any such action is deemed necessary or
advisable by the Depositary, any of the Depositary's
Agents or the Company at any time or from time to time
because of any requirement of law or of any government
or governmental body or commission, or under any
provision of this Deposit Agreement, or (iii) with the
approval of the Company, for any other reason.
Without limitation of the foregoing, the Depositary
shall not knowingly accept for deposit under this
Deposit Agreement any shares of Stock that are
required to be registered under the Securities Act
unless a registration statement under the Securities
Act is in effect as to such shares of Stock.
SECTION 2.08. Lost Receipts, etc. In case
any Receipt shall be mutilated or destroyed or lost or
stolen, the Depositary shall execute and deliver a
Receipt of like form and tenor in exchange and
substitution for such mutilated Receipt or in lieu of
and in substitution for such destroyed, lost or stolen
Receipt unless the Depositary has notice that such
Receipt has been acquired by a bona fide purchaser;
provided, however, that the holder thereof provides
the Depositary with (i) evidence satisfactory to the
Depositary of such destruction, loss or theft of such
Receipt, of the authenticity thereof and of his
ownership thereof, (ii) reasonable indemnification
satisfactory to the Depositary or the payment of any
charges incurred by the Depositary in obtaining
insurance in lieu of such indemnification and (iii)
payment of any expense (including fees, charges and
expenses of the Depositary) in connection with such
execution and delivery.
SECTION 2.09. Cancellation and Destruction
of Surrendered Receipts. All Receipts surrendered to
the Depositary or any Depositary's Agent shall be
cancelled by the Depositary. Except as prohibited by
applicable law or regulation, the Depositary is
authorized to destroy such Receipts so cancelled.
ARTICLE III
CERTAIN OBLIGATIONS OF HOLDERS
OF RECEIPTS AND THE COMPANY
SECTION 3.01. Filing Proofs, Certificates
and Other Information. Any person presenting Stock
for deposit or any holder of a Receipt may be required
from time to time to file such proof of residence or
other information, to execute such certificates and to
make such representations and warranties as the
Depositary or the Company may reasonably deem
necessary or proper. The Depositary or the Company
may withhold or delay the delivery of any Receipt, the
registration of transfer, redemption, conversion or
exchange of any Receipt, the withdrawal of the Stock
represented by the Depositary Shares evidenced by any
Receipt or the distribution of any dividend or other
distribution until such proof or other information is
filed, such certificates are executed or such
representations and warranties are made.
SECTION 3.02. Payment of Taxes or Other
Governmental Charges. If any tax or other
governmental charge shall become payable by or on
behalf of the Depositary with respect to (i) any
Receipt, (ii) the Depositary Shares evidenced by such
Receipt, (iii) the Stock (or fractional interest
therein) or other property represented by such
Depositary Shares, or (iv) any transaction referred to
in Section 4.06, such tax (including transfer,
issuance or acquisition taxes, if any) or governmental
charge shall be payable by the holder of such Receipt,
who shall pay the amount thereof to the Depositary.
Until such payment is made, registration of transfer
of any Receipt or any split-up or combination thereof
or any withdrawal of the Stock or money or other
property, if any, represented by the Depositary Shares
evidenced by such Receipt may be refused, any dividend
or other distribution may be withheld and any part or
all of the Stock or other property (including Common
Stock received in connection with a conversion or
redemption of Stock) represented by the Depositary
Shares evidenced by such Receipt may be sold for the
account of the holder thereof (after attempting by
reasonable means to notify such holder prior to such
sale). Any dividend or other distribution so withheld
and the proceeds of any such sale may be applied to
any payment of such tax or other governmental charge,
the holder of such Receipt remaining liable for any
deficiency.
SECTION 3.03. Withholding. The Depositary
shall act as the tax withholding agent for any
payments, distributions and exchanges made with
respect to the Depositary Shares and Receipts, and the
Stock, Common Stock or other securities or assets
represented thereby (collectively, the "Securities").
The Depositary shall be responsible with respect to
the Securities for the timely (i) collection and
deposit of any required withholding or backup
withholding tax, and (ii) filing of any information
returns or other documents with federal (and other
applicable) taxing authorities.
SECTION 3.04. Representations and Warranties
as to Stock. In the case of the initial deposit of
the Stock, the Company and, in the case of subsequent
deposits thereof, each person so depositing Stock
under this Deposit Agreement shall be deemed thereby
to represent and warrant that such Stock and each
certificate therefor are valid and that the person
making such deposit is duly authorized to do so. Such
representations and warranties shall survive the
deposit of the Stock and the issuance of Receipts
therefor.
ARTICLE IV
THE STOCK, NOTICES
SECTION 4.01. Cash Distributions. Whenever
the Depositary shall receive any cash dividend or
other cash distribution on the Stock, the Depositary
shall, subject to Section 3.02, distribute to record
holders of Receipts on the record date fixed pursuant
to Section 4.04 such amounts of such sum as are, as
nearly as practicable, in proportion to the respective
numbers of Depositary Shares evidenced by the Receipts
held by such holders; provided, however, that in case
the Company or the Depositary shall be required by law
to withhold and does withhold from any cash dividend
or other cash distribution in respect of the Stock an
amount on account of taxes, the amount made available
for distribution or distributed in respect of
Depositary Shares shall be reduced accordingly. The
Depositary shall distribute or make available for
distribution, as the case may be, only such amount,
however, as can be distributed without attributing to
any owner of Depositary Shares a fraction of one cent
and any balance not so distributable shall be held by
the Depositary (without liability for interest
thereon) and shall be added to and be treated as part
of the next sum received by the Depositary for
distribution to record holders of Receipts then
outstanding.
SECTION 4.02. Distributions Other Than Cash.
Whenever the Depositary shall receive any distribution
other than cash, rights, preferences or privileges
upon the Stock, the Depositary shall, subject to
Section 3.02, distribute to record holders of Receipts
on the record date fixed pursuant to Section 4.04 such
amounts of the securities or property received by it
as are, as nearly as practicable, in proportion to the
respective numbers of Depositary Shares evidenced by
the Receipts held by such holders, in any manner that
the Depositary and the Company may deem equitable and
practicable for accomplishing such distribution. If,
in the opinion of the Company after consultation with
the Depositary, such distribution cannot be made
proportionately among such record holders, or if for
any other reason (including any tax withholding or
securities law requirement), the Depositary deems,
after consultation with the Company, such distribution
not to be feasible, the Depositary may, with the
approval of the Company which approval shall not be
unreasonably withheld, adopt such method as it deems
equitable and practicable for the purpose of effecting
such distribution, including the sale (at public or
private sale) of the securities or property thus
received, or any part thereof, at such place or places
and upon such terms as it may deem proper. The net
proceeds of any such sale shall, subject to Section
3.02, be distributed or made available for
distribution, as the case may be, by the Depositary to
record holders of Receipts as provided by Section 4.01
in the case of a distribution received in cash.
SECTION 4.03. Subscription Rights,
Preferences or Privileges. If the Company shall at
any time offer or cause to be offered to the persons
in whose names Stock is registered on the books of the
Company any rights, preferences or privileges to
subscribe for or to purchase any securities or any
rights, preferences or privileges of any other nature,
such rights, preferences or privileges shall in each
such instance be made available by the Depositary to
the record holders of Receipts in such manner as the
Company shall instruct (including by the issue to such
record holders of warrants representing such rights,
preferences or privileges); provided, however, that
(a) if at the time of issue or offer of any such
rights, preferences or privileges the Company
determines and instructs the Depositary that it is not
lawful or feasible to make such rights, preferences or
privileges available to some or all holders of
Receipts (by the issue of warrants or otherwise) or
(b) if and to the extent instructed by holders of
Receipts who do not desire to exercise such rights,
preferences or privileges, the Depositary shall then,
in each case, and if applicable laws or the terms of
such rights, preferences or privileges so permit, sell
such rights, preferences or privileges of such holders
at public or private sale, at such place or places and
upon such terms as it may deem proper. The net
proceeds of any such sale shall be distributed by the
Depositary to the record holders of Receipts entitled
thereto as provided by Section 4.01 in the case of a
distribution received in cash.
If registration under the Securities Act of
the securities to which any rights, preferences or
privileges relate is required in order for holders of
Receipts to be offered or sold such securities, the
Company shall promptly file a registration statement
pursuant to the Securities Act with respect to such
rights, preferences or privileges and securities and
use its best efforts and take all steps available to
it to cause such registration statement to become
effective sufficiently in advance of the expiration of
such rights, preferences or privileges to enable such
holders to exercise such rights, preferences or
privileges. In no event shall the Depositary make
available to the holders of Receipts any right,
preference or privilege to subscribe for or to
purchase any securities unless and until such
registration statement shall have become effective or
unless the offering and sale of such securities to
such holders are exempt from registration under the
provisions of the Securities Act.
If any other action under the law of any
jurisdiction or any governmental or administrative
authorization, consent or permit is required in order
for such rights, preferences or privileges to be made
available to holders of Receipts, the Company agrees
with the Depositary that the Company will use its
reasonable best efforts to take such action or obtain
such authorization, consent or permit sufficiently in
advance of the expiration of such rights, preferences
or privileges to enable such holders to exercise such
rights, preferences or privileges.
SECTION 4.04. Notice of Dividends, Fixing of
Record Date for Holders of Receipts. Whenever (i) any
cash dividend or other cash distribution shall become
payable, or any distribution other than cash shall be
made, or any rights, preferences or privileges shall
at any time be offered, with respect to the Stock, or
(ii) the Depositary shall receive notice of any
meeting at which holders of Stock are entitled to vote
or of which holders of Stock are entitled to notice or
of the mandatory conversion of, or any election on the
part of the Company to call for the redemption or
exchange of, any shares of Stock, the Depositary shall
in each such instance fix a record date (which shall
be the same date as the record date fixed by the
Company with respect to the Stock) for the
determination of the holders of Receipts (x) who shall
be entitled to receive such dividend, distribution,
rights, preferences or privileges or the net proceeds
of the sale thereof, or (y) who shall be entitled to
give instructions for the exercise of voting rights at
any such meeting or to receive notice of such meeting
or of such conversion, exchange or redemption.
SECTION 4.05. Voting Rights. Upon receipt
of notice of any meeting at which the holders of Stock
are entitled to vote, the Depositary shall, as soon as
practicable thereafter, mail to the record holders of
Receipts a notice, which shall be provided by the
Company and which shall contain (i) such information
as is contained in such notice of meeting, (ii) a
statement that the holders of Receipts at the close of
business on a specified record date fixed pursuant to
Section 4.04 will be entitled, subject to any
applicable provision of law, the Certificate of
Incorporation or the Certificate of Designations, to
instruct the Depositary as to the exercise of the
voting rights pertaining to the Stock represented by
their respective Depositary Shares and (iii) a brief
statement as to the manner in which such instructions
may be given. Upon the written request of a holder of
a Receipt on such record date, the Depositary shall
endeavor insofar as practicable to vote or cause to be
voted the Stock represented by the Depositary Shares
evidenced by such Receipt in accordance with the
instructions set forth in such request. The Company
hereby agrees to take all reasonable action that may
be deemed necessary by the Depositary in order to
enable the Depositary to vote such Stock or cause such
Stock to be voted. In the absence of specific
instructions from the holder of a Receipt, the
Depositary will abstain from voting to the extent of
the Stock represented by the Depositary Shares
evidenced by such Receipt.
SECTION 4.06. Changes Affecting Stock and
Reclassifications, Recapitalizations, etc. Upon any
split-up, consolidation or any other reclassification
of Stock, or upon any recapitalization,
reorganization, merger, amalgamation or consolidation
affecting the Company or to which it is a party or
sale of all or substantially all of the Company's
assets, the Depositary shall treat any shares of stock
or other securities or property (including cash) that
shall be received by the Depositary in exchange for or
upon conversion of or in respect of the Stock as new
deposited property under this Deposit Agreement, and
Receipts then outstanding shall thenceforth represent
the proportionate interests of holders thereof in the
new deposited property so received in exchange for or
upon conversion or in respect of such Stock. In any
such case the Depositary may, in its discretion, with
the approval of the Company, execute and deliver
additional Receipts, or may call for the surrender of
all outstanding Receipts to be exchanged for new
Receipts specifically describing such new deposited
property.
SECTION 4.07. Reports. The Company or, at
the option of the Company, the Depositary shall
forward to the holders of Receipts any reports and
communications received from the Company that are
received by the Depositary as the holder of Stock.
SECTION 4.08. Lists of Receipt Holders.
Promptly upon request from time to time by the
Company, the Depositary shall furnish to it a list, as
of a recent date, of the names, addresses and holdings
of Depositary Shares of all persons in whose names
Receipts are registered on the books of the
Depositary. At the expense of the Company, the
Company shall have the right to inspect transfer and
registration records of the Depositary, any
Depositary's Agent or the Registrar, take copies
thereof and require the Depositary, any Depositary's
Agent or the Registrar to supply copies of such
portions of such records as the Company may request.
ARTICLE V
THE DEPOSITARY, THE DEPOSITARY'S AGENTS,
THE REGISTRAR AND THE COMPANY
SECTION 5.01. Maintenance of Offices,
Agencies, Transfer Books by the Depositary; the
Registrar. Upon execution of this Deposit Agreement
in accordance with its terms, the Depositary shall
maintain (i) at the New York Office facilities for the
execution and delivery, registration, registration of
transfer, surrender and exchange, split-up,
combination, redemption, exchange and conversion of
Receipts and deposit and withdrawal of Stock and (ii)
at the Corporate Office and at the offices of the
Depositary's Agents, if any, facilities for the
delivery, registration, registration of transfer,
surrender and exchange, split-up, combination,
conversion, exchange and redemption of Receipts and
deposit and withdrawal of Stock, all in accordance
with the provisions of this Deposit Agreement.
The Depositary, acting as transfer agent and
Registrar, shall keep books at the Corporate Office
for the registration and transfer of Receipts, which
books at all reasonable times shall be open for
inspection by the record holders of Receipts; provided
that any such holder requesting to exercise such right
shall certify to the Depositary that such inspection
shall be for a proper purpose reasonably related to
such person's interest as an owner of Depositary
Shares. The Depositary shall consult with the
Company upon receipt of any request for inspection.
The Depositary may close such books, at any time or
from time to time, when deemed expedient by it in
connection with the performance of its duties
hereunder.
If the Receipts or the Depositary Shares
evidenced thereby or the Stock represented by such
Depositary Shares shall be listed on one or more stock
exchanges, the Depositary shall, with the approval of
the Company, appoint a Registrar for registry of such
Receipts or Depositary Shares in accordance with the
requirements of such exchange or exchanges. Such
Registrar (which may be the Depositary if so permitted
by the requirements of such exchange or exchanges) may
be removed and a substitute registrar appointed by the
Depositary upon the request or with the approval of
the Company. In addition, if the Receipts, such
Depositary Shares or such Stock are listed on one or
more stock exchanges, the Depositary will, at the
request of the Company, arrange such facilities for
the delivery, registration, registration of transfer,
surrender and exchange, split-up, combination,
redemption or conversion of such Receipts, such
Depositary Shares or such Stock as may be required by
law or applicable stock exchange regulations.
SECTION 5.02. Prevention or Delay in
Performance by the Depositary, the Depositary's
Agents, the Registrar or the Company. Neither the
Depositary nor any Depositary's Agent nor the
Registrar nor the Company shall incur any liability to
any holder of any Receipt, if by reason of any
provision of any present or future law or regulation
thereunder of the United States of America or of any
other governmental authority or, in the case of the
Depositary, the Registrar or any Depositary's Agent,
by reason of any provision, present or future, of the
Certificate of Incorporation or the Certificate of
Designations or, in the case of the Company, the
Depositary, the Registrar or any Depositary's Agent,
by reason of any act of God or war or other
circumstances beyond the control of the relevant
party, the Depositary, any Depositary's Agent, the
Registrar or the Company shall be prevented or
forbidden from doing or performing any act or thing
that the terms of this Deposit Agreement provide shall
be done or performed; nor shall the Depositary, any
Depositary's Agent, the Registrar or the Company incur
any liability to any holder of a Receipt (i) by reason
of any nonperformance or delay, caused as aforesaid,
in the performance of any act or thing that the terms
of this Deposit Agreement provide shall or may be done
or performed, or (ii) by reason of any exercise of, or
failure to exercise, any discretion provided for in
this Deposit Agreement except, in the case of the
Depositary, any Depositary's Agent or the Registrar,
if any such exercise or failure to exercise discretion
is caused by its negligence or bad faith.
SECTION 5.03. Obligations of the Depositary,
the Depositary's Agents, the Registrar and the
Company. The Company assumes no obligation and shall
be subject to no liability under this Deposit
Agreement or the Receipts to holders or other persons,
except to perform in good faith such obligations as
are specifically set forth and undertaken by it to
perform in this Deposit Agreement. Each of the
Depositary, the Depositary's Agents and the Registrar
assumes no obligation and shall be subject to no
liability under this Deposit Agreement or the Receipts
to holders or other persons, except to perform such
obligations as are specifically set forth and
undertaken by it to perform in this Deposit Agreement
without negligence or bad faith.
Neither the Depositary nor any Depositary's
Agent nor the Registrar nor the Company shall be under
any obligation to appear in, prosecute or defend any
action, suit or other proceeding with respect to
Stock, Depositary Shares, Receipts or Common Stock
that in its opinion may involve it in expense or
liability, unless indemnity satisfactory to it against
all expense and liability be furnished as often as may
be required.
Neither the Depositary nor any Depositary's
Agent nor the Registrar nor the Company shall be
liable for any action or any failure to act by it in
reliance upon the advice of or information from legal
counsel, accountants, any person presenting Stock for
deposit, any holder of a Receipt or any other person
believed by it in good faith to be competent to give
such advice or information. The Depositary, any
Depositary's Agent, the Registrar and the Company may
each rely and shall each be protected in acting upon
any written notice, request, direction or other
document believed by it to be genuine and to have been
signed or presented by the proper party or parties.
The Depositary, the Registrar and any
Depositary's Agent may own and deal in any class of
securities of the Company and its affiliates and in
Receipts or Depositary Shares. The Depositary may
also act as transfer agent or registrar of any of the
securities of the Company and its affiliates.
It is intended that neither the Depositary
nor any Depositary's Agent nor the Registrar shall be
deemed to be an "issuer" of the Stock, the Depositary
Shares, the Receipts or the Common Stock or other
securities issued upon conversion, exchange or
redemption of the Stock under the federal securities
laws or applicable state securities laws, it being
expressly understood and agreed that the Depositary
and any Depositary's Agent and the Registrar are
acting only in a ministerial capacity; provided,
however, that the Depositary agrees to comply with all
information reporting and withholding requirements
applicable to it under law or this Deposit Agreement
in its capacity as Depositary.
Neither the Depositary (or its officers,
directors, employees or agents) nor any Depositary's
Agent nor the Registrar makes any representation or
has any responsibility as to the validity of the
Registration Statement pursuant to which the
Depositary Shares are registered under the Securities
Act, the Stock, the Depositary Shares or any
instruments referred to therein or herein, or as to
the correctness of any statement made therein or
herein; provided, however, that the Depositary is
responsible for its representations in this Deposit
Agreement.
The Depositary assumes no responsibility for
the correctness of the description that appears in the
Receipts, which can be taken as a statement of the
Company summarizing certain provisions of this Deposit
Agreement. Notwithstanding any other provision herein
or in the Receipts, the Depositary makes no warranties
or representations as to the validity, genuineness or
sufficiency of any Stock at any time deposited with
the Depositary hereunder or of the Depositary Shares,
as to the validity or sufficiency of this Deposit
Agreement, as to the value of the Depositary Shares or
as to any right, title or interest of the record
holders of Receipts in and to the Depositary Shares
except that the Depositary hereby represents and
warrants as follows: (i) the Depositary has been duly
organized and is validly existing and in good standing
under the laws of the jurisdiction of its
incorporation, with full power, authority and legal
right under such law to execute, deliver and carry out
the terms of this Deposit Agreement; (ii) this Deposit
Agreement has been duly authorized, executed and
delivered by the Depositary; and (iii) this Deposit
Agreement constitutes a valid and binding obligation
of the Depositary, enforceable against the Depositary
in accordance with its terms, except as enforcement
thereof may be limited by bankruptcy, insolvency,
reorganization or other similar laws affecting
enforcement of creditors' rights generally and except
as enforcement thereof is subject to general
principles of equity (regardless of whether
enforcement is considered in a proceeding in equity or
at law). The Depositary shall not be accountable for
the use or application by the Company of the
Depositary Shares or the Receipts or the proceeds
thereof.
SECTION 5.04. Resignation and Removal of the
Depositary, Appointment of Successor Depositary. The
Depositary may at any time resign as Depositary
hereunder by written notice via registered mail of its
election to do so delivered to the Company, such
resignation to take effect upon the appointment of a
successor depositary and its acceptance of such
appointment as hereinafter provided.
The Depositary may at any time be removed by
the Company by written notice of such removal
delivered to the Depositary, such removal to take
effect upon the appointment of a successor depositary
and its acceptance of such appointment as hereinafter
provided.
In case at any time the Depositary acting
hereunder shall resign or be removed, the Company
shall, within 60 days after the delivery of the notice
of resignation or removal, as the case may be, appoint
a successor depositary, which shall be a bank or trust
company, or an affiliate of a bank or trust company,
having its principal office in the United States of
America and having a combined capital and surplus of
at least $50,000,000. If a successor depositary shall
not have been appointed in 60 days, the resigning or
removed Depositary may petition a court of competent
jurisdiction to appoint a successor depositary. Every
successor depositary shall execute and deliver to its
predecessor and to the Company an instrument in
writing accepting its appointment hereunder, and
thereupon such successor depositary, without any
further act or deed, shall become fully vested with
all the rights, powers, duties and obligations of its
predecessor and for all purposes shall be the
Depositary under this Deposit Agreement, and such
predecessor, upon payment of all sums due it and on
the written request of the Company, shall promptly
execute and deliver an instrument transferring to such
successor all rights and powers of such predecessor
hereunder, shall duly assign, transfer and deliver all
rights, title and interest in the Stock and any moneys
or property held hereunder to such successor and shall
deliver to such successor a list of the record holders
of all outstanding Receipts. Any successor depositary
shall promptly mail notice of its appointment to the
record holders of Receipts.
Any corporation into or with which the
Depositary may be merged, consolidated or converted
shall be the successor of such Depositary without the
execution or filing of any document or any further
act. Such successor depositary may execute the
Receipts either in the name of the predecessor
depositary or in the name of the successor depositary.
SECTION 5.05. Corporate Notices and Reports.
The Company agrees that it will deliver to the
Depositary, and the Depositary will, promptly after
receipt thereof, transmit to the record holders of
Receipts, in each case at the address recorded in the
Depositary's books, copies of all notices and reports
(including financial statements) required by law, by
the rules of any national securities exchange upon
which the Stock, the Depositary Shares or the Receipts
are listed or by the Certificate of Incorporation and
the Certificate of Designations to be furnished by the
Company to holders of Stock. Such transmission will
be at the Company's expense and the Company will
provide the Depositary with such number of copies of
such documents as the Depositary may reasonably
request. In addition, the Depositary will transmit to
the record holders of Receipts at the Company's
expense such other documents as may be requested by
the Company.
SECTION 5.06. Deposit of Stock by the
Company. The Company agrees with the Depositary that
neither the Company nor any company controlled by the
Company will at any time deposit any Stock if such
Stock is required to be registered under the
provisions of the Securities Act and no registration
statement is at such time in effect as to such Stock.
SECTION 5.07. Indemnification by the
Company. The Company agrees to indemnify the
Depositary, any Depositary's Agent and any Registrar
against, and hold each of them harmless from, any
liability, costs and expenses (including reasonable
fees and expenses of counsel) that may arise out of or
in connection with its acting as Depositary,
Depositary's Agent or Registrar, respectively, under
this Deposit Agreement and the Receipts, except for
any liability arising out of negligence, bad faith or
willful misconduct on the part of any such person or
persons.
SECTION 5.08. Fees, Charges and Expenses.
No fees, charges and expenses of the Depositary or any
Depositary's Agent hereunder or of any Registrar shall
be payable by any person other than the Company,
except for any taxes and other governmental charges
and except as provided in this Deposit Agreement. If,
at the request of a holder of a Receipt, the
Depositary incurs fees, charges or expenses for which
it is not otherwise liable hereunder, such holder or
other person will be liable for such fees, charges and
expenses. All other fees, charges and expenses of the
Depositary and any Depositary's Agent hereunder and of
any Registrar (including, in each case, reasonable
fees and expenses of counsel) incident to the
performance of their respective obligations hereunder
will be paid from time to time upon consultation and
agreement between the Depositary and the Company as to
the amount and nature of such fees, charges and
expenses.
ARTICLE VI
AMENDMENT AND TERMINATION
SECTION 6.01. Amendment. The form of the
Receipts and any provision of this Deposit Agreement
may at any time and from time to time be amended by
agreement between the Company and the Depositary in
any respect that they may deem necessary or desirable;
provided, however, that no such amendment that shall
materially and adversely alter the rights of the
holders of Receipts shall be effective as to
outstanding Receipts until the expiration of 90 days
after notice of such amendment shall have been given
to the record holders of outstanding Receipts and
unless such amendment shall have been approved by the
holders of at least a majority of the Depositary
Shares outstanding. Every holder of an outstanding
Receipt at the time 90 days after such notice of
amendment shall have been given shall be deemed, by
continuing to hold such Receipt, to consent and agree
to such amendment and to be bound by this Deposit
Agreement as amended thereby. In no event shall any
amendment impair the right, subject to the provisions
of Sections 2.03, 2.06 and 2.07 and Article III, of
any owner of any Depositary Shares to surrender the
Receipt evidencing such Depositary Shares with
instructions to the Depositary to deliver to the
holder the Stock and all money and other property, if
any, represented thereby, except in order to comply
with mandatory provisions of applicable law.
SECTION 6.02. Termination. Whenever so
directed by the Company, the Depositary will terminate
this Deposit Agreement by mailing notice of such
termination to the record holders of all Receipts then
outstanding at least 30 days prior to the date fixed
in such notice for such termination. The Depositary
may likewise terminate this Deposit Agreement if at
any time 90 days shall have expired after the
Depositary shall have delivered to the Company a
written notice of its election to resign and a
successor depositary shall not have been appointed and
accepted its appointment as provided in Section 5.04.
If any Receipts shall remain outstanding
after the date of termination of this Deposit
Agreement, the Depositary thereafter shall discontinue
the transfer of Receipts, shall suspend the
distribution of dividends to the holders thereof and
shall not give any further notices (other than notice
of such termination) or perform any further acts under
this Deposit Agreement, except as provided below and
that the Depositary shall continue to collect
dividends and other distributions pertaining to Stock,
shall sell rights, preferences or privileges as
provided in this Deposit Agreement and shall continue
to deliver the Stock and any money and other property
represented by Receipts, without liability for
interest thereon, upon surrender thereof by the
holders thereof. At any time after the expiration of
two years from the date of termination, the Depositary
may sell Stock then held hereunder at public or
private sale, at such places and upon such terms as it
deems proper and may thereafter hold in a segregated
account the net proceeds of any such sale, together
with any money and other property held by it
hereunder, without liability for interest, for the
benefit, pro rata in accordance with their holdings,
of the holders of Receipts that have not heretofore
been surrendered. After making such sale, the
Depositary shall be discharged from all obligations
under this Deposit Agreement except to account for
such net proceeds and money and other property. Upon
the termination of this Deposit Agreement, the Company
shall be discharged from all obligations under this
Deposit Agreement except for its obligations to the
Depositary, any Depositary's Agent and any Registrar
under Sections 5.07 and 5.08. In the event this
Deposit Agreement is terminated, the Company hereby
agrees to use its best efforts to list the underlying
Stock on the New York Stock Exchange, Inc.
ARTICLE VII
MISCELLANEOUS
SECTION 7.01. Counterparts. This Deposit
Agreement may be executed by the Company and the
Depositary in separate counterparts, each of which
counterparts, when so executed and delivered, shall be
deemed an original, but all such counterparts taken
together shall constitute one and the same instrument.
Delivery of an executed counterpart of a signature
page to this Deposit Agreement by telecopier shall be
effective as delivery of a manually executed
counterpart of this Deposit Agreement. Copies of this
Deposit Agreement shall be filed with the Depositary
and the Depositary's Agents and shall be open to
inspection during business hours at the Corporate
Office and the New York Office and the respective
offices of the Depositary's Agents, if any, by any
holder of a Receipt.
SECTION 7.02. Exclusive Benefits of Parties.
This Deposit Agreement is for the exclusive benefit of
the parties hereto, and their respective successors
hereunder, and shall not be deemed to give any legal
or equitable right, remedy or claim to any other
person whatsoever.
SECTION 7.03. Invalidity of Provisions. In
case any one or more of the provisions contained in
this Deposit Agreement or in the Receipts should be or
become invalid, illegal or unenforceable in any
respect, the validity, legality and enforceability of
the remaining provisions contained herein or therein
shall in no way be affected, prejudiced or disturbed
thereby.
SECTION 7.04. Notices. Any notices to be
given to the Company hereunder or under the Receipts
shall be in writing and shall be deemed to have been
duly given if personally delivered or sent by mail, or
by telegram or telex or telecopier confirmed by
letter, addressed to the Company at 1615 Poydras St.,
New Orleans, Louisiana 70112, Attention: Secretary,
or at any other place to which the Company may have
transferred its principal executive office.
Any notices to be given to the Depositary
hereunder or under the Receipts shall be in writing
and shall be deemed to have been duly given if
personally delivered or sent by mail, or by telegram
or telex or telecopier confirmed by letter, addressed
to the Depositary at the Corporate Office.
Any notices given to any record holder of a
Receipt hereunder or under the Receipts shall be in
writing and shall be deemed to have been duly given if
personally delivered or sent by mail, or by telegram
or telex or telecopier confirmed by letter, addressed
to such record holder at the address of such record
holder as it appears on the books of the Depositary
or, if such holder shall have filed with the
Depositary a written request that notices intended for
such holder be mailed to some other address, at the
address designated in such request.
Delivery of a notice sent by mail, or by
telegram or telex or telecopier shall be deemed to be
effected at the time when a duly addressed letter
containing the same (or a duly addressed letter
confirming an earlier notice in the case of a telegram
or telex or telecopier message) is deposited, postage
prepaid, in a post office letter box. The Depositary
or the Company may, however, act upon any telegram or
telex or telecopier message received by it from the
other or from any holder of a Receipt, notwithstanding
that such telegram or telex or telecopier message
shall not subsequently be confirmed by letter as
aforesaid.
SECTION 7.05. Depositary's Agents. The
Depositary may, with the approval of the Company which
approval shall not be unreasonably withheld, from time
to time appoint one or more Depositary's Agents to act
in any respect for the Depositary for the purposes of
this Deposit Agreement and may vary or terminate the
appointment of such Depositary's Agents.
SECTION 7.06. Holders of Receipts Are
Parties. Notwithstanding that holders of Receipts
have not executed and delivered this Deposit Agreement
or any counterpart thereof, the holders of Receipts
from time to time shall be deemed to be parties to
this Deposit Agreement and shall be bound by all of
the terms and conditions, and be entitled to all of
the benefits, hereof and of the Receipts by acceptance
of delivery of Receipts.
SECTION 7.07. Governing Law. This Deposit
Agreement and the Receipts and all rights hereunder
and thereunder and provisions hereof and thereof shall
be governed by, and construed in accordance with, the
law of the State of New York without giving effect to
principles of conflict of laws.
SECTION 7.08. Headings. The headings of
articles and sections in this Deposit Agreement and in
the form of the Receipt set forth in Exhibit A hereto
have been inserted for convenience only and are not to
be regarded as a part of this Deposit Agreement or to
have any bearing upon the meaning or interpretation of
any provision contained herein or in the Receipts.
IN WITNESS WHEREOF, Freeport-McMoRan Copper &
Gold Inc. and Mellon Securities Trust Company have
duly executed this Deposit Agreement as of the day and
year first above set forth and all holders of Receipts
shall become parties hereto by and upon acceptance by
them of delivery of Receipts issued in accordance with
the terms hereof.
FREEPORT-McMoRan
COPPER & GOLD INC.
Attest:
By:_______________________ By:_______________________
Authorized Officer
MELLON SECURITIES TRUST
COMPANY
Attest:
By:_______________________ By:_______________________
Authorized Officer