Exhibit 4.3
DEPOSIT AGREEMENT
dated as of _______________, 1996
among
ARMSTRONG WORLD INDUSTRIES, INC.
a Pennsylvania corporation,
_____________________________________________
[a national banking association],
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 [title of preferred stock] [, par value $____ per share,] of
ARMSTRONG WORLD INDUSTRIES, INC. with the Depositary (as
hereinafter defined) for the purposes set forth in this
Deposit Agreement and for the issuance hereunder of Receipts
(as hereinafter defined) by the Depositary evidencing
Depositary Shares (as hereinafter defined) in respect of the
Stock (as hereinafter defined) so deposited; and
WHEREAS, the Receipts are to be substantially in the
form of Exhibit A annexed hereto, with appropriate insertions,
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modifications and omissions as hereinafter provided in this
Deposit Agreement;
NOW, THEREFORE, in consideration of the premises
contained herein and such other good and valuable
consideration, receipt of which is hereby acknowledged, the
parties hereto hereby agree as follows:
ARTICLE I
DEFINITIONS
SECTION 1.01. Terms Generally. For all purposes of
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this Deposit Agreement, except as otherwise expressly provided
or unless the context otherwise requires:
(a) the terms defined in this Article I when
used in this Deposit Agreement have the meanings assigned
to them in this Article I and include the plural as well
as the singular (with the singular and plural forms
having correlative meanings except as expressly otherwise
provided);
(b) unless the context otherwise requires, any
reference to an "Article", a "Section", or an "Exhibit"
refers to an Article, a Section, or an Exhibit, as the
case may be, of or to this Deposit Agreement;
(c) the words "include", "includes" and
"including" shall be deemed to be followed by the phrase
"without limitation";
(d) whenever the context may require, any
pronoun shall be deemed to include the corresponding
masculine, feminine and neuter forms;
(e) references to "dollars" or "$" shall be
deemed to be references to the lawful money of the Unit-
ed States; and
(f) the words "herein", "hereof" and
"hereunder" and other words of similar import refer to
this Deposit Agreement as a whole and not to any
particular Article, Section or other subdivision.
SECTION 1.02. Definitions. The following
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definitions shall for all purposes, unless otherwise
indicated, apply to the respective terms used in this Deposit
Agreement and the Receipts (as hereinafter defined):
"Certificate" shall mean the Statement of
Designation filed with the Department of State of the Commonwealth
of Pennsylvania 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.
"Company" shall mean Armstrong World Industries,
Inc., a Pennsylvania corporation, and its successors.
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"Deposit Agreement" shall mean this Deposit
Agreement, as amended or supplemented from time to time in
accordance with the terms hereof.
"Depositary" shall mean _______________, a [national
banking association], and any successor Depositary hereunder.
"Depositary Shares" shall mean the depositary shares
representing ________ of 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 and shall include
the Registrar appointed pursuant to Section 5.01 if such
Registrar is not the Depositary.
"Depositary's Office" shall mean the principal
office of the Depositary at which at any particular time its
depositary business shall be administered.
"holder" or "record holder" with respect to a
Receipt shall mean the individual, entity or person in whose
name a Receipt is registered on the books or any register of
the Registrar maintained for such purpose at a given time.
"NASD" shall mean the National Association of
Securities Dealers, Inc. and its successors.
"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.
"Registrar" shall mean the Depositary or any other
bank or trust company appointed by the Depositary 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 [title of
preferred stock][, par value $____ per share].
"Stockholders" shall mean holders of the Stock.
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ARTICLE II
FORM OF RECEIPTS; DEPOSIT OF STOCK;
EXECUTION AND DELIVERY, TRANSFER
AND SURRENDER OF RECEIPTS
SECTION 2.01. Form and Transfer of Receipts,
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Surrender and Redemption of Receipts. The Receipts may be
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typewritten or shall, upon notice by the Company to the
Depositary, be definitive Receipts which shall be engraved,
printed, lithographed on steel-engraved borders or typewritten
and shall be substantially in the form set forth in Exhibit A
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annexed to this Deposit Agreement, with appropriate
insertions, modifications and omissions, as hereinafter
provided, if required by any securities exchange on which the
Receipts are listed. Pending the preparation of definitive
Receipts (or if definitive Receipts are not required by any
securities exchange on which the Receipts are listed), the
Depositary, upon the written order of the Company (or any
holder of Receipts, as the case may be) 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 or at such other
place as places as the Depositary shall determine, without
charge to the holder thereof. 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 such
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 a duly authorized officer of the
Depositary; provided, however, that such signature may be a
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facsimile if a Registrar for the Receipts (other than the
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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 manual or facsimile signature of a
duly authorized officer of the Depositary and countersigned
manually by a duly authorized officer of such Registrar. The
Depositary shall cause the Registrar to 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. The Company shall deliver to the
Depositary from time to time such quantities of blank Receipts
as the Depositary may request to enable the Depositary to
perform its obligations under this Deposit Agreement.
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
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registered on the books of the Registrar, on behalf of the
Depositary, as provided in Section 2.03, the Depositary may,
notwithstanding any notice to the contrary, treat the record
holder thereof 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.
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The Depositary shall not lend any Stock deposited
hereunder.
SECTION 2.02. Deposit of Stock; Execution and
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Delivery of Receipts in Respect Thereof. Subject to the terms
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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 of a
certificate or certificates representing the Stock to be
deposited properly endorsed or accompanied, if required by the
Depositary, by a duly executed instrument of transfer or
endorsement, in form satisfactory to the Depositary, together
with all such certificates 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, or upon
the written order of, 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
by the Company), whether or not the register of stockholders
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 or its nominee, the Depositary, subject to the
terms 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
evidencing in the aggregate the number of Depositary Shares
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representing 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 delivered to the
Depositary referred to in the next preceding sentence. The
Depositary shall execute and deliver such Receipt or 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.
SECTION 2.03. Registration of Transfer of Receipts.
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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 thereof 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 Receipt or Receipts to or
upon the order of the transferee(s) named in the
endorsement(s) or instrument(s) of transfer.
SECTION 2.04. Split-ups and Combinations of
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Receipts; Surrender of Receipts and Withdrawal of Stock. Upon
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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, and subject to the terms and conditions of this
Deposit Agreement, the Depositary shall execute and deliver a
new Receipt or Receipts to the holder thereof or to such
holder's order in the authorized denominations requested,
evidencing the aggregate number of Depositary Shares evidenced
by the Receipt or Receipts surrendered; provided, however,
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that the Depositary shall not issue any Receipt evidencing a
fractional Depositary Share. The Depositary shall give prompt
notice of such action and the certificate numbers to the
Registrar for the purpose of recording such split-up or
consolidation.
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Any holder of a Receipt or Receipts representing any
number of whole shares of Stock may (unless the related
Depositary Shares have previously been called for redemption)
withdraw the Stock 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
Stockholders 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 thereof 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 upon its order, a new
Receipt evidencing such excess number of Depositary Shares;
provided, however, that the Depositary shall not issue any
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Receipt evidencing a fractional Depositary Share. 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.
Stock delivered pursuant to the preceding paragraph
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
any regulation thereunder or with the rules and regulations of
any securities exchange upon which the Stock may be listed or
to conform with any usage with respect thereto, or to indicate
any special limitations or restrictions to which any
particular shares of Stock are subject.
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 blank or accompanied
by a properly executed instrument of transfer in blank.
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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 2.05. Limitations on Execution and
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Delivery, Transfer, Surrender and Exchange of Receipts. As a
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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 Section 3.02 and
Section 5.07, may require the production of evidence satisfac-
tory 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 the Securities Transfer
Association, Inc., the NASD or such procedures or regulations,
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
stockholders 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 applicable requirement of law or of any
government, governmental body or commission, stock exchange or
the NASD.
SECTION 2.06. Lost Receipts, Etc. If any mutilated
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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 shall execute and deliver a Receipt to
the holder thereof of like form and tenor in exchange and
substitution for such destroyed, lost or stolen Receipt, upon
(i) the filing by the holder thereof with the Depositary of
evidence satisfactory to the Depositary of such destruction or
loss or theft of such Receipt, of the authenticity thereof and
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of such holder's ownership thereof, (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
(which may include the customary premium payable to its
insurance carrier in connection therewith).
SECTION 2.07. Cancellation and Destruction of
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Surrendered Receipts. All Receipts surrendered to the
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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 2.08. Redemption of Stock. Whenever the
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Company shall elect to redeem shares of Stock in accordance
with the provisions of the Certificate, it shall (unless
otherwise agreed in writing with the Depositary) mail notice
to the Depositary of such redemption, by first class mail,
postage prepaid, on the same date on which the Company first
publicly announces such redemption, which date shall not be
less than 35 days prior to the date of such redemption, which
notice shall state the date of such redemption, the number of
shares of Stock deposited with the Depositary to be so
redeemed and the applicable redemption price and shall be
accompanied by a certificate from the Company stating that
such redemption is in accordance with the provisions of the
Certificate. On the date of such redemption, provided that
the Company shall then have deposited with the Depositary an
amount in cash required pursuant to the Certificate in order
to effect a redemption of the number of shares of Stock
specified in the notice of redemption and any other amounts
per share payable with respect to the Stock, the Depositary
shall redeem the Depositary Shares relating to such Stock.
The Depositary shall provide notice of such redemption and the
simultaneous redemption of the number of Depositary Shares
relating to the Stock to be redeemed to the record holders of
the Receipts evidencing the Depositary Shares to be so
redeemed on the record date fixed pursuant to Section 4.04 by
first-class mail, postage prepaid, at the addresses of such
holders as they appear on the records of the Depositary, not
less than 30 and not more than 60 days prior to the date fixed
for redemption of such Stock and Depositary Shares (the
"Redemption Date"). Neither failure to mail any such notice
to one or more such holders nor any defect in any notice or in
the mailing thereof to one or more such holders shall affect
the validity of the proceedings for redemption of any
Depositary Shares as to other holders of Receipts. Each such
notice of redemption provided by the Depositary to the holders
shall state, as appropriate: (i) the Redemption Date; (ii)
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the number of Depositary Shares to be redeemed and, if less
than all the Depositary Shares held by any such holder are to
be redeemed, the number of such Depositary Shares held by such
holder to be so redeemed and the method by which the
Depositary Shares will be chosen for redemption; (iii) the
redemption price per Depositary Share (expressed as an amount
of cash) and any other amounts per share payable with respect
to the Depositary Shares; (iv) the place or places where
Receipts evidencing Depositary Shares are to be surrendered
for redemption; and (v) that dividends in respect of the Stock
to be redeemed, which are represented by the Depositary Shares
to be redeemed, will cease to accrue at the close of business
on the day prior to such Redemption Date, except as otherwise
provided in the Certificate. If less than all the outstanding
Depositary Shares are to be redeemed, the Depositary Shares to
be so redeemed shall be selected by lot or pro rata as may be
determined by the Depositary.
Notice having been mailed by the Depositary as
aforesaid, from and after the Redemption Date (unless the
Company shall have failed to deliver to the Depositary cash
sufficient to redeem the shares of Stock to be redeemed by it
or any other amounts per share payable with respect to the
Stock 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 cash redemption price required to redeem such Depositary
Shares and any other amounts per Share payable with respect to
the Stock) shall, to the extent of such Depositary Shares,
cease and terminate and, upon surrender in accordance with
such redemption notice of the Receipts evidencing any such
Depositary Shares called for redemption (properly endorsed or
assigned for transfer, if the Depositary or applicable law
shall so require), such Depositary Shares shall be redeemed by
the Depositary for an amount of cash per Depositary Share
equal to one ___-________ (1/_____) of the cash amount
required by the Certificate to be delivered in respect of one
share of Stock plus all money and other property, if any,
underlying such Depositary Shares, including all amounts paid
by the Company in respect of dividends that, on the Redemption
Date, have accrued on the shares of Stock to be so redeemed
and relate to dividend periods ending on or prior to the
Redemption Date or to the extent provided in the Certificate,
to the dividend period ending after the Redemption Date, and
have not theretofore been paid.
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If less than all 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 delivery of a cash amount
sufficient to redeem the shares of Stock to be redeemed and
any other amounts per share payable with respect to the Stock,
a new Receipt evidencing such number of Depositary Shares as
were evidenced by such prior Receipt and not called for
redemption.
Upon any redemption, the Company shall deliver to
the Depositary an amount in cash required by the Certificate
in order to effect the redemption of the number of shares of
Stock specified in the notice of redemption mailed by the
Company to the Depositary pursuant to this Section 2.08 and a
sufficient amount of funds to pay any other amounts per share
payable with respect to the Stock. The Depositary shall
deliver to each holder of a Receipt surrendered for redemption
an amount in cash equal to the number or amount required by
the Certificate to effect a redemption of the number of
Depositary Shares evidenced by such Receipt to be redeemed.
ARTICLE III
CERTAIN OBLIGATIONS OF THE HOLDERS
OF RECEIPTS AND THE COMPANY
SECTION 3.01. Filing Proofs, Certificates and Other
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Information. Any person presenting Stock for deposit or any
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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 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, redemption or exchange, of any
Receipt or the withdrawal or conversion of the Stock
represented by the Depositary Shares evidenced by 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
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Governmental Charges. Holders of Receipts shall be obligated
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to make payments to the Depositary of certain charges and
expenses as provided in Section 5.07. Registration of
transfer of any Receipt or any withdrawal of Stock and
delivery of all money or other property, if any, represented
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by the Depositary Shares evidenced by such Receipt may be
refused until any such payment due is made, and any dividends,
interest payments or other distributions may be withheld or
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
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hereby represents and warrants to the Depositary that the
Stock, when issued, will be duly authorized, validly issued,
fully paid and nonassessable. Such representation and
warranty shall survive the deposit of the Stock and the
issuance of Receipts.
ARTICLE IV
THE DEPOSITED SECURITIES; NOTICES
SECTION 4.01. Cash Distributions. Whenever the
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Depositary shall receive any cash dividend or other cash
distribution with respect to the Stock, the Depositary shall,
subject to Section 3.01 and 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, as nearly as practicable, applicable to the number of
Depositary Shares evidenced by the Receipts held by such
holders; provided, however, that if the Company or the
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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
distribution, as the case may be, the amount received by it
after making any necessary adjustments to round (up or down)
to the nearest cent any fraction of one cent attributed to any
holder of Receipts representing Depositary Shares after
aggregating all amounts to be distributed to such holder.
SECTION 4.02. Distributions Other than Cash,
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Rights, Preferences or Privileges. Whenever the Depositary
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shall receive any property (including securities) for
distribution in a form other than cash, rights, preferences or
privileges with respect to the Stock, the Depositary shall,
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subject to Section 3.01 and Section 3.02, distribute to record
holders of Receipts on the record date fixed pursuant to
Section 4.04 such amounts of such property (including
securities) received by it as are, as nearly as practicable,
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 the Depositary
withhold an amount on account of taxes or as otherwise
required by law, regulation or court order) the Depositary
deems, after consultation with the Company, such distribution
not to be feasible, the Depositary may 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 property (including securities) thus received, or
any part thereof, in a commercially reasonable manner and upon
commercially reasonable terms. The net proceeds of any such
sale shall, subject to Section 3.01 and 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 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
-14-
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, subject to Section 3.01 and
Section 3.02, 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 the securities to which such rights,
preferences or privileges relate, the Company will file
promptly a registration statement pursuant to such act with
respect to such rights, preferences or privileges and
securities and use its best efforts and take all steps
available to it to cause such registration statement to become
effective sufficiently in advance of the expiration of such
rights, preferences or privileges to enable such holders to
exercise such rights, preferences or privileges. In no event
shall the Depositary make available to the holders of Receipts
any right, preference or privilege to subscribe for or to
purchase any securities unless and until it has received
written notice from the Company that such registration
statement shall have become effective, or that the offering
and sale of such securities to such holders are exempt from
registration under the provisions of the Securities Act and
the Company shall have provided to the Depositary an opinion
of counsel to such effect.
If any other action under the 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
---------------------------------
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 Stockholders are entitled to vote or of which
Stockholders are entitled to notice, (ii) any election on the
part of the Company to redeem any shares of Stock, or (iii)
-15-
whenever the Depositary and the Company shall agree that it is
appropriate, 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 or otherwise in
accordance with the terms of the Stock) for the determination
of the holders of Receipts who shall be entitled under this
Deposit Agreement 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 or to have any other rights in
respect of the Stock.
SECTION 4.05. Voting Rights. Upon receipt of
-------------
notice of any meeting at which Stockholders 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 of Receipts at the close
of business on the specified record date fixed pursuant to
Section 4.04 will, subject to any applicable restrictions, be
entitled to instruct the Depositary as to the exercise of the
voting rights pertaining to the amount of Stock (or portion
thereof) represented by their respective Depositary Shares
(including an express indication that instructions may be
given to the Depositary to grant a discretionary proxy to a
person designated by the Company) and (iii) a brief statement
as 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)
represented by the Depositary Shares evidenced by all Receipts
as to which any particular voting instructions are received.
The Company hereby agrees to take all reasonable action which
may be deemed necessary by the Depositary in order to enable
the Depositary to vote such Stock (or 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) to the extent of the Stock (or portion thereof)
represented by the Depositary Shares evidenced by such
Receipt.
SECTION 4.06. Changes Affecting Deposited
---------------------------
Securities and Reclassifications, Recapitalization, etc. Upon
- -------------------------------------------------------
any change in par or stated value or liquidation preference,
-16-
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
represented by one Depositary Share and (b) the ratio of the
redemption price per Depositary Share to the redemption price
of a share of Stock, in each case as may be necessary fully to
reflect 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 any Receipt
notwithstanding, holders of Receipts shall have the right from
and after the effective date of any such Transaction, to the
extent that Stockholders 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 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 received by the Depositary as a
Stockholder.
SECTION 4.08. List of Holders of Receipts.
---------------------------
Promptly upon request by, and at the expense of, the Company,
the Depositary shall furnish to the Company a list, as of a
specified date, of the names and addresses of all record
-17-
holders of Receipts and the amount of Stock represented
thereby.
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 may, with the approval of the
Company, appoint a Registrar for registration of the Receipts
or the Depositary Shares evidenced thereby. If the Receipts
or the Depositary Shares evidenced thereby or the Stock
represented by such Depositary Shares shall be listed on one
or more national stock exchanges, the Depositary will appoint
a Registrar (acceptable to the Company) for registration of
such Receipts or Depositary Shares in accordance with any
requirements of such exchange. Such Registrar (which may be
the Depositary if so permitted by the requirements of any such
exchange) may be removed and a substitute Registrar appointed
by the Depositary upon the request or with the approval of the
Company. If the Receipts, such Depositary Shares or such
Stock are listed on one or more other stock exchanges, the
Depositary will, at the request and at the expense 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 any applicable law or regulation of any govern-
ment, governmental body or commission, stock exchange or the
NASD.
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 hours shall be open for
inspection by the record holders of Receipts; provided, that
--------
any such holder requesting to exercise such right shall
certify in writing to the Registrar that such inspection shall
-18-
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 stockholders of the Company is
closed with respect to the Stock or when such action is deemed
necessary or advisable by the Depositary, any Depositary's
Agent or the Company because of any requirement of this
Deposit Agreement, of law or of any government, governmental
body or commission, stock exchange or any applicable self-
regulatory body, including the NASD.
SECTION 5.02. Prevention of or Delay in Performance
-------------------------------------
by the Depositary, the Depositary's Agents, the Registrar or
- ------------------------------------------------------------
the Company. None of the Depositary, the Depositary's Agents,
- -----------
the Registrars and the Company shall incur any liability to
any holder of any Receipt if by reason of any provision of any
present or future law, rule or regulation, or by reason of any
provision, present or future, of the Company's Certificate 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, or subjected to any penalty on account of,
doing or performing any act or thing that the terms of this
Deposit Agreement provide shall be done or performed; nor
shall any such person 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 gross
negligence, willful misconduct or bad faith 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. None of
- --------------------------------------------------
the Depositary, the Depositary's Agents and the Registrars
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 often as may be required.
None of the Depositary, the Depositary's Agents, the
Registrars and the Company assumes any obligation or shall be
-19-
subject to any liability under this 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 this Deposit Agreement, nor shall
any such person 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 or any holder of a Receipt. The Depositary,
any Depositary's Agent, any Registrar and the Company may each
rely and shall each be protected in acting upon any written
notice, request, direction or other document believed by it to
be genuine and to have been signed or presented by the proper
party or parties.
The Depositary undertakes, and shall cause any
Registrar to undertake, to perform such duties and only 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, its affiliates or subsidiaries, the
Depositary's Agents, the Registrars 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, its affiliates
or subsidiaries, the Depositary's Agents and the Registrars
may become pecuniarily interested in any transaction in which
the Company or its affiliates may be interested or contract
with or lend money to the Company or its affiliates or
otherwise act as fully or as freely as if it were not the
Depositary, the Depositary's Agent or the Registrar hereunder.
The Depositary may also act as trustee, transfer agent or
registrar of any of the securities of the Company and its
affiliates or act in any other capacity for the Company or its
affiliates.
The parties hereto intend that none of the
Depositary, the Depositary's Agents and the Registrars, acting
as the Depositary Agent or Registrar, as the case may be,
shall be deemed to be an "issuer" of the securities under the
federal securities laws or applicable state securities laws,
it being expressly understood and agreed that the Depositary,
the Depositary's Agents and the Registrars are acting only in
a ministerial capacity as Depositary or Registrar for the
Stock. None of the Depositary (and its officers, directors,
employees and agents), the Depositary's Agents and the
Registrars makes any representation or has any responsibility
-20-
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, the Receipts
(except its counter signature thereon) or any instruments
referred to therein or herein, or as to the correctness of any
statement made therein, except as to 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 60 days after
the delivery of the notice of resignation or removal, as the
case may be, use its reasonable best efforts to appoint a
successor Depositary, which shall be a bank or trust company
having its principal office in the United States of America
and having a combined capital and surplus of at least
$50,000,000. If no successor Depositary shall have been so
appointed which has accepted its appointment within 60 days
after delivery of such notice, the resigning or removed
Depositary may petition any court of competent jurisdiction
for the appointment of a successor Depositary. Every
successor Depositary shall execute and deliver to its
predecessor and to the Company an instrument in writing
accepting its appointment hereunder and agreeing to become a
party to this Deposit Agreement, and thereupon such successor
-21-
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 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 moneys or property held hereunder to such
successor and shall deliver to such successor a list of the
record holders of all outstanding Receipts and such records,
books and other information in its possession as relate
thereto. 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 addresses
recorded in the Registrar's books, all notices and reports
(including 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 Articles of Incorporation (including the
Certificate) or By-laws to be furnished by the Company to
Stockholders. 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, each Depositary's
Agent and each 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
-22-
negligence or willful misconduct or breach of this Deposit
Agreement 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 pursuant to the provisions hereof. This
indemnification does not extend in favor of holders of
Receipts or owners of Depositary Shares or Stock. The
obligations of the Company set forth in this Section 5.06
shall survive the termination of this Deposit Agreement and
the succession of any Depositary, Depositary's Agent or
Registrar.
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, the initial issuance of the Depositary Shares, all
withdrawals of shares of Stock by holders of Receipts, and any
redemption or exchange of the Stock at the option of the
Company. All other transfer and other taxes and governmental
charges shall be at the expense of holders of Receipts. 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.
SECTION 5.08. Tax Compliance. The Depositary, on
--------------
its own behalf and on behalf of the Company, will comply with
all applicable certification, information reporting and
withholding (including "backup" withholding) requirements
imposed by applicable tax laws, regulations or administrative
practice with respect to (i) any payments made with respect to
the Depositary Shares or (ii) the issuance, delivery, holding,
transfer, redemption or exercise of rights under the Receipts
or the Depositary Shares. Such compliance shall include the
preparation and timely filing of required returns and the
timely payment of all amounts required to be withheld to the
appropriate taxing authority or its designated agent.
-23-
The Depositary shall comply with any direction
received from the Company with respect to the application of
such requirements to particular payments or holders or in
other particular circumstances, and may for purposes of this
Deposit Agreement rely on any such direction in accordance
with the provisions of Section 5.03.
The Depositary shall maintain all appropriate
records documenting compliance with such requirements, and
shall make such records available on request to the Company or
to its authorized representatives.
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 Receipts
representing not less than a majority 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 this Deposit Agreement, of any
owner of any Depositary Shares to surrender any Receipt
evidencing such Depositary Shares to the Depositary with
instructions to deliver to the holder of such Receipt the
Stock and all money, and other property, if any, represented
thereby, except in order to comply with mandatory provisions
of applicable law or the rules and regulations of any
governmental body, agency or commission, the NASD or any
applicable stock exchange.
SECTION 6.02. Termination. This Deposit Agreement
-----------
may be terminated by the Company or the Depositary only after
(i) all outstanding Depositary Shares have been redeemed
pursuant to Section 2.08 or (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 Receipts pursuant to Section 4.01 or
Section 4.02, as applicable.
-24-
If any Receipts shall remain outstanding after the
date of termination of this Deposit Agreement, the Depositary
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 that the Depositary shall continue to collect
dividends and other distributions pertaining to the Stock,
shall sell rights, preferences or privileges as provided in
this Deposit Agreement and shall continue to deliver Stock
certificates together with such dividends and distributions
and the net proceeds of any sales of rights, performances,
privileges, or other property in exchange for Receipts
surrendered. At any time after the expiration of two years
from the date of termination, the Depositary may sell the
Stock and hold the proceeds of such sale, without interest,
for the benefit of the holders of Receipts who have not then
surrendered their Receipts. After making such sale, the
Depositary shall be discharged from all obligations under this
Deposit Agreement except to account for such proceeds and
except as provided in the following paragraph. In the event
this Deposit Agreement is terminated, the Company will use its
best efforts to list the underlying shares of Preferred Stock
on any stock exchange on which the Depositary Shares were
listed.
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 Section 5.03, Section 5.06 and Section 5.07.
ARTICLE VII
MISCELLANEOUS
SECTION 7.01. Counterparts. This Deposit Agreement
------------
may be executed in any number of counterparts, and by each of
the parties hereto on separate counterparts, each of which
counterparts, when so executed and delivered, shall be deemed
an original, but all of which counterparts 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
-25-
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. Any and all notices to be
-------
given to the Company hereunder or under the Receipts shall be
in writing and shall be deemed to have been duly given if
personally delivered or sent by mail or telegram, telecopy or
telex confirmed by letter, addressed to the Company at
Armstrong World Industries, Inc., 313 West Liberty Street,
Lancaster, Pennsylvania 17603, attention: ______________,
telephone (717) 397-0611, facsimile (717) ___________, [with
a copy to _________________], or at any other address and to
the attention of any other person of which the Company shall
have notified the Depositary in writing.
Any and all notices to be given to the Depositary
hereunder or under the Receipts shall be in writing and shall
be deemed to have been duly given if personally delivered or
sent by mail or by telegram, telecopy or telex confirmed by
letter, addressed to the Depositary at the Depositary's
Office, ________________________, ________________, ____
_______, attention ___________, telephone: (____) ________,
facsimile: (____) ________, or at any other address and to
the attention of any other person of which the Depositary
shall have notified the Company in writing.
Any and all notices to be given to any record holder
of a Receipt hereunder or under the Receipts shall be in
writing and shall be deemed to have been duly given if
personally delivered or sent by mail or by telegram, telecopy
or telex confirmed by letter, addressed to such record holder
at the address of such record holder as it appears on the
books of the Registrar, or if such holder shall have timely
filed with the Depositary a written request that notices
intended for such holder be mailed to some other address, at
the address designated in such request.
Delivery of a notice sent by mail or by telegram,
telecopy or telex shall be deemed to be effected at the time
when a duly addressed letter containing the same (or a
confirmation thereof in the case of a telegram or telex
message) is deposited, postage prepaid, in a post office
letter box or sent by overnight courier service. The
Depositary or the Company may, however, act upon any telegram
or telecopy message received by it from the other or from any
holder of a Receipt, notwithstanding that such telegram or
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telecopy message shall not subsequently be confirmed by letter
or 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 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;
-------------------------------
Supremacy of Certificate. (a) By acceptance of delivery of
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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 and
with the same effect as though such person had executed this
Deposit Agreement.
(b) Insofar as the rights of holders of Receipts
and owners of Depositary Shares derive from the rights of the
Stock as specified in the Certificate, in the case of any
inconsistency between the provisions of this Deposit Agreement
and the Certificate, the Certificate shall control; provided,
--------
however, that, this Section 7.06(b) shall not abridge any
- -------
rights of the Depositary, any Depositary's Agent or the
Registrar under Article V.
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 this Deposit Agreement shall be filed with the
Depositary and the Depositary's Agents and shall be open to
inspection during business hours at the Depositary's Office
and the respective offices of the Depositary's Agents, if any,
by any holder of a Receipt.
SECTION 7.09. 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.
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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.
ARMSTRONG WORLD INDUSTRIES, INC.
By:_________________________
Authorized Officer
[DEPOSITARY]
By:_________________________
_________________________
Title:
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EXHIBIT A
DEPOSIT AGREEMENT
FORM OF RECEIPT
TEMPORARY RECEIPT EXCHANGEABLE FOR DEFINITIVE CERTIFICATE FOR
ENGRAVED RECEIPT WHEN READY FOR DELIVERY _________________
DEPOSITARY SHARES
TRANSFERABLE CUSIP _______________
DEPOSITARY RECEIPT
This Certificate is SEE REVERSE FOR
transferable in CERTAIN DEFINITIONS
__________, __________
DEPOSITARY RECEIPT FOR DEPOSITARY SHARES, EACH
DEPOSITARY SHARE REPRESENTING A _________ INTEREST
IN ONE SHARE OF [TITLE OF PREFERRED STOCK]
ARMSTRONG WORLD INDUSTRIES, INC.,
A PENNSYLVANIA CORPORATION
_________________________, as Depositary (the "Depositary"), hereby certifies
that
is the registered owner of _________________________ _____DEPOSITARY SHARES
("Depositary Shares"), each Depositary Share representing a ______ interest in
one share of [title of preferred stock][, par value $_____ per share], $_______
stated value per preferred share (the "Stock"), of Armstrong World Industries,
Inc., a Pennsylvania corporation (the "Corporation"), on deposit with the
Depositary, subject to the terms and entitled to the benefits of the Deposit
Agreement dated as of ___________________, 199__ (the "Deposit Agreement"),
between the Corporation and the Depositary. By accepting this Depositary
Receipt, the holder hereof becomes a party to and agrees to be bound by all
the terms and conditions of the Deposit Agreement. This Depositary Receipt
shall not be valid or obligatory for any purpose or be entitled to any
benefits under the Deposit Agreement unless it shall have been executed by the
Depositary by the manual signature of a duly authorized officer or, if
executed in facsimile by the Depositary, countersigned by a Registrar in
respect of the Depositary Receipts by a duly authorized officer thereof.
Dated:_______ __, 199_
Countersigned
Depositary and Registrar
By
Authorized officer
ARMSTRONG WORLD INDUSTRIES, INC.
ARMSTRONG WORLD INDUSTRIES, INC. WILL FURNISH WITHOUT CHARGE TO EACH HOLDER OF
A RECEIPT WHO SO REQUESTS A COPY OF THE DEPOSIT AGREEMENT AND A STATEMENT OR
SUMMARY OF THE STATEMENT OF DESIGNATION ESTABLISHING THE POWERS, DESIGNA-
TIONS, PREFERENCES AND RELATIVE, PARTICIPATING, OPTIONAL OR OTHER SPECIFIED
RIGHTS OF THE [TITLE OF PREFERRED STOCK] AND EACH OTHER CLASS OF PREFERRED
STOCK OR SERIES THEREOF WHICH THE CORPORATION IS AUTHORIZED TO ISSUE AND OF
THE QUALIFICATIONS, LIMITATIONS OR RESTRICTIONS OF SUCH PREFERENCE AND/OR
RIGHTS. ANY SUCH REQUEST SHOULD BE ADDRESSED TO ARMSTRONG WORLD INDUSTRIES,
INC., 313 WEST LIBERTY STREET, LANCASTER, PENNSYLVANIA 17603, ATTENTION:
__________________________.
________________________
ABBREVIATIONS
The following abbreviations, when used in the inscription on the
face of this Depositary Receipt, shall be construed as though they were
written out in full according to applicable laws or regulations:
TEN COM - as tenants in common
TEN ENT - as tenants by the entireties
JT TEN - as joint tenants with right
of survivorship and not as
tenants in common
UNIF GIFT MIN ACT - ______ Custodian _______
(Cust) (Minor)
under Uniform Gifts to
Minors Act _____________
(State)
UNIF GIFT MIN ACT - ______ Custodian (until age ____)
(Cust)
______ under Uniform Transfers
(Minor)
to Minors Act ___________________
(State)
Additional abbreviations may also be
used though not in the above list.
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