CONFORMED COPY
BOWATER INCORPORATED
TRUST COMPANY BANK, as Depositary
and
THE HOLDERS FROM TIME TO TIME OF
THE DEPOSITARY RECEIPTS DESCRIBED HEREIN
IN RESPECT OF THE
7% PRIDES, SERIES B CONVERTIBLE PREFERRED STOCK
_______
Deposit Agreement
_______
Dated as of February 1, 1994
TABLE OF CONTENTS
Page
PARTIES 1
RECITALS 1
ARTICLE I
DEFINITIONS
Business Day 1
Certificate of Designations 2
Certificate of Incorporation 2
Common Stock 2
Company 2
Corporate Office 2
Deposit Agreement 2
Depositary 2
Depositary Share 2
Depositary's Agent 3
Receipt 3
record holder 3
Registrar 3
Rights 3
Securities Act 3
Series B Preferred Stock 3
ARTICLE II
FORM OF RECEIPTS, DEPOSIT OF SERIES B PREFERRED STOCK,
EXECUTION AND DELIVERY, TRANSFER,
SURRENDER AND REDEMPTION OF RECEIPTS
SECTION 2.01. Form and Transferability
of Receipts 3
SECTION 2.02. Deposit of Series B Preferred Stock;
Execution and Delivery of Receipts
in Respect Thereof 5
SECTION 2.03. Redemption of Series B Preferred
Stock 6
SECTION 2.04. Transfer of Receipts 9
SECTION 2.05. Combination and Split-ups of Receipts 10
SECTION 2.06. Surrender of Receipts and Withdrawal
of Series B Preferred Stock 10
SECTION 2.07 Limitations on Execution and Delivery,
Transfer, Split-up, Combination,
Surrender and Exchange of Receipts 11
SECTION 2.08. Lost Receipts, etc. 12
SECTION 2.09. Cancellation and Destruction of
Surrendered Receipts 12
SECTION 2.10. Optional Conversion of Series B Preferred
Stock into Common Stock 12
SECTION 2.11. Mandatory Conversion of Series B Preferred
Stock into Common Stock 16
ARTICLE III
CERTAIN OBLIGATIONS OF HOLDERS
OF RECEIPTS AND THE COMPANY
SECTION 3.01. Filing Proofs, Certificates and Other
Information 18
SECTION 3.02. Payment of Taxes or Other Governmental
Charges 19
SECTION 3.03. Representations and Warranties as to
Series B Preferred Stock 19
ARTICLE IV
THE SERIES B PREFERRED STOCK, NOTICES
SECTION 4.01. Cash Distributions 20
SECTION 4.02. Distributions Other Than Cash 20
SECTION 4.03. Subscription Rights, Preferences or
Privileges 21
SECTION 4.04. Notice of Dividends, Fixing of Record
Date for Holders of Receipts 22
SECTION 4.05. Voting Rights 23
SECTION 4.06. Changes Affecting Series B Preferred
Stock and Reclassifications,
Recapitalizations, etc. 23
SECTION 4.07. Inspection of Reports 24
SECTION 4.08. List of Receipt Holders 24
ARTICLE V
THE DEPOSITARY AND THE COMPANY
SECTION 5.01. Maintenance of Offices, Agencies,
Transfer Books by the Depositary, the
Registrar 24
SECTION 5.02. Prevention of or Delay in Performance
by the Depositary, the Depositary's
Agents or the Company 25
SECTION 5.03. Obligations of the Depositary, the
Depositary's Agents and the Company 26
SECTION 5.04. Resignation and Removal of the
Depositary; Appointment of Successor
Depositary 28
SECTION 5.05. Corporate Notices and Reports 29
SECTION 5.06. Deposit of Series B Preferred Stock
by the Company 29
SECTION 5.07. Indemnification by the Company 30
SECTION 5.08. Fees, Charges and Expenses 30
ARTICLE VI
AMENDMENT AND TERMINATION
SECTION 6.01. Amendment 30
SECTION 6.02. Termination 31
ARTICLE VII
MISCELLANEOUS
SECTION 7.01. Counterparts 32
SECTION 7.02. Exclusive Benefits of Parties 32
SECTION 7.03. Invalidity of Provisions 33
SECTION 7.04. Notices 33
SECTION 7.05. Depositary's Agents 34
SECTION 7.06. Holders of Receipts Are Parties 34
SECTION 7.07. Governing Law 34
SECTION 7.08. Headings 34
TESTIMONIUM 35
SIGNATURES 35
EXHIBIT A: Form of Depositary Receipt
DEPOSIT AGREEMENT
DEPOSIT AGREEMENT dated as of
February 1, 1994, among Bowater Incorporated,
a Delaware corporation, Trust Company Bank,
as depositary (the "Depositary"), and all
holders from time to time of Depositary
Receipts executed and delivered hereunder.
WHEREAS, it is desired to provide, as hereinafter
set forth in this Deposit Agreement, for the deposit of
shares of 7% PRIDES, Series B Convertible Preferred Stock,
par value $1 per share (the "Series B Preferred Stock") of
the Company with the Depositary, as agent for the beneficial
owners of the Series B Preferred Stock, for the purposes set
forth in this Deposit Agreement and for the execution and
delivery hereunder of the Receipts (as defined below)
evidencing Depositary Shares (as defined below) in respect
of the Series B Preferred Stock so deposited; and
WHEREAS, the Receipts are to be substantially in
the form of the Depositary Receipt annexed as Exhibit A,
with appropriate insertions, modifications and omissions, as
hereinafter provided in this Deposit Agreement;
NOW, THEREFORE, in consideration of the premises
contained herein, and for other good and valuable
consideration, the receipt and sufficiency of which are
hereby acknowledged, the parties hereto hereby agree 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 Agreement and the Depositary Receipts:
"Business Day" shall mean any day other than a
Saturday, a Sunday or a day on which commercial banking
institutions in the City of New York, New York, or Atlanta,
Georgia, are authorized or obligated by law or executive
order to close.
"Certificate of Designations" shall mean the
Certificate of Designations of the 7% PRIDES, Series B
Convertible Preferred Stock, par value $1 per share, as
filed with the Secretary of State of the State of Delaware,
establishing and setting forth the rights, preferences,
privileges and limitations of the Series B Preferred Stock.
"Certificate of Incorporation" shall mean the
Restated Certificate of Incorporation, as amended from time
to time, of the Company.
"Common Stock" shall mean the Common Stock, par
value $1 per share, of the Company.
"Company" shall mean Bowater Incorporated, a
Delaware corporation, and its successors.
"Corporate Office" shall mean the office of the
Depositary in the city of Atlanta, Georgia, 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 One Park
Place, Atlanta, Georgia.
"Deposit Agreement" shall mean this agreement, as
the same may be amended, modified or supplemented from time
to time.
"Depositary" shall mean Trust Company Bank, as
Depositary hereunder, and any successor as depositary
hereunder.
"Depositary Share" shall mean an interest in
one-fourth of a share of the Series B Preferred Stock
deposited with the Depositary hereunder and the same
proportional interest in any and all other property received
by the Depositary in respect of such share of Series B
Preferred Stock and held under this Deposit Agreement, all
as evidenced by the Receipts executed and delivered
hereunder. Subject to the terms of this Deposit Agreement,
each owner of a Depositary Share is entitled,
proportionately, to all the rights, preferences and
privileges of the Series B Preferred Stock represented by
such Depositary Share, including the dividend, voting and
liquidation rights contained in the Certificate of
Designations, and to the benefits of all obligations of the
Company under the Certificate of Designations.
"Depositary's Agent" shall mean an agent appointed
by the Depositary as provided, and for the purposes
specified, in Section 7.05.
"Receipt" or "Depositary Receipt" shall mean a
Depositary Receipt executed and delivered hereunder to
evidence one or more Depositary Shares, whether in
definitive or temporary form.
The term "record holder" as applied to a Receipt
shall mean the person in whose name a Receipt is registered
on the books maintained by the Depositary for such purpose.
"Registrar" shall mean any bank or trust company
appointed to register Receipts as herein provided.
"Rights" shall mean the rights issuable under the
Rights Agreement dated as of April 22, 1986, as amended,
between the Company and The Bank of New York as successor
Rights Agent to Morgan Guaranty Trust Company of New York,
as Rights Agent, as such Agreement may be amended, modified
or supplemented from time to time.
"Securities Act" shall mean the Securities Act of
1933, as amended.
"Series B Preferred Stock" shall mean the 7%
PRIDES, Series B Convertible Preferred Stock, par value $1
per share, of the Company.
ARTICLE II
FORM OF RECEIPTS, DEPOSIT OF SERIES B PREFERRED STOCK,
EXECUTION AND DELIVERY, TRANSFER AND SURRENDER OF RECEIPTS
SECTION 2.01. Form and Transferability of
Receipts. Definitive Receipts shall be engraved or printed
or lithographed with steel-engraved borders and shall be
substantially in the form set forth in Exhibit A annexed to
this Deposit Agreement, with appropriate insertions,
modifications and omissions, as hereinafter provided.
Pending preparation of definitive Receipts, the Depositary,
upon the written order of the Company or any holder of
Series B Preferred Stock, as the case may be, delivered for
deposit in compliance with Section 2.02, shall execute and
deliver temporary Receipts which are printed, lithographed,
typewritten, mimeographed or otherwise substantially of the
tenor of the definitive Receipts in lieu of which they are
executed and delivered 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
executed and delivered, 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 an office described in the second to last paragraph of
Section 2.02, without charge to the holder. Upon surrender
for cancellation of any one or more temporary Receipts, the
Depositary shall execute and deliver in exchange therefor
definitive Receipts representing the same number of
Depositary Shares as represented by the surrendered
temporary Receipt or Receipts. Such exchange shall be made
at the Company's expense and without any charge therefor.
Until so exchanged, the temporary Receipts shall in all
respects be entitled to the same benefits under this
Agreement, and with respect to the Series B Preferred Stock
deposited hereunder, as definitive Receipts.
Receipts shall be executed by the Depositary by
the manual signature of a duly authorized signatory of the
Depositary; provided, however, that such signature may be a
facsimile if a Registrar (other than the Depositary) shall
have countersigned the Receipts by the manual signature of a
duly authorized signatory of the Registrar. No Receipt
shall be entitled to any benefits under this Deposit
Agreement or be valid or obligatory for any purpose unless
it shall have been executed as provided in the preceding
sentence. The Depositary shall record on its books each
Receipt executed as provided above and delivered as
hereinafter provided.
Except as the Depositary may otherwise determine,
Receipts shall be in denominations of any number of whole
Depositary Shares. All Receipts shall be dated the date of
their 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 Series
B Preferred 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 Series B Preferred 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 or
endorsement, or other instrument satisfactory to the
Depositary, shall be transferable by delivery; provided,
however, that until a Receipt shall be transferred on the
books of the Depositary as provided in Section 2.04, the
Depositary and the Company may, notwithstanding any notice
to the contrary, treat the record holder thereof at such
time as the absolute owner thereof for the purpose of
determining the person entitled to distribution 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 Series B Preferred
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 Series B
Preferred Stock may deposit shares of Series B Preferred
Stock under this Deposit Agreement by delivery to the
Depositary of a certificate or certificates for the shares
of Series B Preferred Stock to be deposited, properly
endorsed or accompanied by a properly executed instrument of
transfer or endorsement in form satisfactory to the
Depositary, together with (i) all such certifications as may
be required by the Depositary in accordance with the
provisions of this Deposit Agreement and (ii) a written
order 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 Series B
Preferred Stock.
If required by the Depositary, Series B Preferred
Stock presented for deposit at any time, whether or not the
register of holders of Receipts 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 Series B
Preferred Stock or to receive other property that any person
in whose name the Series B Preferred Stock is or has been
registered may thereafter receive upon or in respect of such
deposited Series B Preferred 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 for the shares of Series B Preferred 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
certificates to the registrar and transfer agent of the
Series B Preferred Stock for transfer and registration in
the name of the Depositary or its nominee of the shares of
Series B Preferred Stock being deposited. Deposited Series
B Preferred 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 Series B Preferred 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 Series B
Preferred 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 Corporate Office, except that, at the
request, risk and expense of any person requesting such
delivery, such delivery may be made at such other place as
may be designated by such person. In each case, delivery
will be made only upon payment 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 Series B Preferred 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 of Series B Preferred
Stock. Whenever the Company shall elect to redeem shares of
Series B Preferred 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 notice of the date of such proposed redemption of
the Series B Preferred Stock, which notice shall be given
not less than 3 Business Days prior to the date the
Depositary is to mail notice of the redemption to the record
holders of Receipts, in the case of a redemption of all
outstanding Depositary Shares, and not less than 10 calendar
days prior to the date the Depositary is to mail notice of
the redemption to the record holders of Receipts evidencing
the Depositary Shares to be redeemed, in the case of a
partial redemption of outstanding Depositary Shares, and be
accompanied by a certificate from the Company stating that
such redemption of the Series B Preferred Stock is in
accordance with the provisions of the Certificate of
Designations. Such notice shall be in addition to the
notice required to be given for redemption pursuant to the
Certificate of Designations. On the date of any such
redemption of Series B Preferred Stock, provided that the
Company shall then have deposited with the Depositary the
shares of Common Stock as required pursuant to the
Certificate of Designations to be delivered in exchange for
the Series B Preferred Stock to be redeemed, the Depositary
shall redeem (using the shares of Common Stock and any cash
deposited with it) the number of Depositary Shares
representing such redeemed Series B Preferred Stock.
Subject to the penultimate sentence of this Paragraph, the
Depositary shall mail, first class postage prepaid, notice
of the redemption of Series B Preferred Stock and the
proposed simultaneous redemption of the Depositary Shares
representing the Series B Preferred Stock to be redeemed,
not less than 15 and not more than 60 days prior to the date
fixed for redemption of such Series B Preferred Stock and
Depositary Shares (the "Redemption Date"), to the record
holders of the Receipts evidencing the Depositary Shares to
be so redeemed, at the addresses of such holders as they
appear on the records of the Depositary; but neither failure
to mail any such notice to one or more such holders nor any
defect in any notice to one or more such holders shall
affect the sufficiency of the proceedings for redemption as
to other holders. Each such notice shall state: (i) the
Redemption Date; (ii) 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;
(iii) the number of shares of Common Stock deliverable upon
redemption; (iv) the call price for the Depositary Shares;
(v) the Optional Conversion Rate (calculated in accordance
with paragraph 3 of the Certificate of Designations),
together with a statement that all conversion rights with
respect to Depositary Shares called for redemption will
terminate immediately prior to the close of business on the
date fixed for redemption; (vi) the place or places where
Receipts evidencing Depositary Shares are to be surrendered
for payment of the redemption price; and (vii) that
dividends in respect of the shares of Series B Preferred
Stock represented by the Depositary Shares to be redeemed
will cease to accumulate on such Redemption Date. Any such
notices shall be mailed in the same manner as notices of
redemption of the Series B Preferred Stock are required to
be mailed pursuant to paragraph 3 of the Certificate of
Designations and published in the same manner as notices of
redemption of the Series B Preferred Stock are required to
be published pursuant to said paragraph, if so required. In
case fewer than all the outstanding Depositary Shares are to
be redeemed, the Depositary Shares to be redeemed shall be
selected by lot or pro rata (as nearly as may be) or by any
other equitable method determined by the Depositary to be
consistent with the method determined by the Board of
Directors of the Company with respect to the Series B
Preferred Stock.
Notice having been mailed and published by the
Depositary as aforesaid, from and after the Redemption Date
(unless the Company shall have failed to redeem the shares
of Series B Preferred Stock to be redeemed by it, as set
forth in the Company's notice provided for 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 shares of Common Stock upon
redemption and cash for any fractional share amount) shall,
to the extent of such Depositary Shares, cease and
terminate. Upon surrender in accordance with said notice of
the Receipts evidencing such Depositary Shares (properly
endorsed or assigned for transfer, if the Depositary shall
so require), such Depositary Shares shall be redeemed for
shares of Common Stock and cash for any fractional share
amount at a rate per Depositary Share equal to one-fourth of
the number of shares of Common Stock (including fractional
amounts) delivered upon redemption of a share of Series B
Preferred Stock pursuant to the Certificate of Designations.
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 shares of
Common Stock for the Depositary Shares called for
redemption, a new Receipt evidencing the Depositary Shares
evidenced by such prior Receipt and not called for
redemption.
To the extent that Depositary Shares are redeemed
for shares of Common Stock and all of such shares of Common
Stock cannot be distributed to the record holders of
Receipts without creating fractional interests in such
shares, 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.
In the event that Depositary Shares are redeemed
into shares of Common Stock and certificates evidencing
Rights are issued or to be issued in connection therewith,
such certificates shall be distributed in the same manner
and to the same record holders receiving the shares of
Common Stock associated with such Rights and fractional
interests in Rights shall be subject to the same procedures
set forth in the preceding paragraph for fractional shares
of Common Stock.
Except with respect to a conversion of Depositary
Shares which may occur pursuant to paragraph 3 of the
Certificate of Designations, the Depositary shall not be
required (a) to execute and deliver, transfer or exchange
any Receipts for a period beginning at the opening of
business 15 days next preceding any selection of Depositary
Shares and Series B Preferred 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 third paragraph
of this Section 2.03.
SECTION 2.04. Transfer of Receipts. Subject to
the terms and conditions of this Deposit Agreement, the
Depositary shall make transfers on its books from time to
time of Receipts upon any surrender thereof at the Corporate
Office or such other office as the Depositary may designate
for such purpose, by the holder in person or by a duly
authorized attorney, properly endorsed or accompanied by a
properly executed instrument of transfer or endorsement, or
other instrument satisfactory to the Depositary, 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 or persons 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 or such other office as the Depositary may
designate for the purposes 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 execute and deliver any Receipt evidencing a fractional
Depositary Share.
SECTION 2.06. Surrender of Receipts and
Withdrawal of Series B Preferred Stock. Any holder of a
Receipt or Receipts may withdraw any or all of the Series B
Preferred Stock (but only in whole shares of Series B
Preferred Stock) represented by the Depositary Shares
evidenced by such Receipts and all money and other property,
if any, represented by such Depositary Shares by
surrendering such Receipt or Receipts, properly endorsed or
accompanied by a properly executed instrument of transfer or
endorsement, or other instrument satisfactory to the
Depositary, at the Corporate Office or such other office as
the Depositary may designate for such withdrawals. After
such surrender, without unreasonable delay, the Depositary
shall deliver to such holder, or to the person or persons
designated by such holder as hereinafter provided, the whole
number of shares of Series B Preferred Stock and all such
money and other property, if any, represented by the
Depositary Shares evidenced by the Receipt or Receipts so
surrendered for withdrawal. If the Receipt or Receipts
delivered by the holder to the Depositary in connection with
such withdrawal shall evidence a number of Depositary Shares
in excess of the number of whole Depositary Shares
representing the whole number of shares of Series B
Preferred Stock to be withdrawn, the Depositary shall at the
same time, in addition to such whole number of shares of
Series B Preferred Stock and such money and other property,
if any, to be withdrawn, deliver to such holder, or (subject
to Section 2.04) upon his order, a new Receipt or Receipts
evidencing such excess number of whole Depositary Shares.
Delivery of the Series B Preferred Stock and such money and
other property being withdrawn may be made by the delivery
of such certificates, documents of title, and other
instruments as the Depositary may deem appropriate, which,
if required by the Depositary, shall be properly endorsed or
accompanied by proper instruments of transfer.
If the Series B Preferred 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
Series B Preferred 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 Series B Preferred Stock be properly endorsed
in blank or accompanied by a properly executed instrument of
transfer or endorsement in blank.
The Depositary shall deliver the Series B
Preferred Stock and the money and other property, if any,
represented by the Depositary Shares evidenced by Receipts
surrendered for withdrawal at the Corporate Office, except
that, at the request, risk and expense of the holder
surrendering such Receipt or Receipts and for the account of
the holder thereof, such delivery may be made at such other
place as may be designated by such holder.
SECTION 2.07 Limitations on Execution and
Delivery, Transfer, Split-up, Combination, Surrender and
Exchange of Receipts. As a condition precedent to the
execution and delivery, transfer, split-up, combination,
surrender or exchange of any Receipt, 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 Series B Preferred Stock being deposited or withdrawn or
with respect to the Common Stock, Rights or other securities
or property of the Company being issued upon conversion or
redemption); (ii) the production of proof satisfactory to it
as to the identity and genuineness of any signature; and
(iii) compliance with such regulations, if any, as the
Depositary or the Company may establish not inconsistent
with the provisions of the Deposit Agreement.
The deposit of Series B Preferred Stock may be
refused, the delivery of Receipts against Series B Preferred
Stock may be suspended, the transfer of Receipts may be
refused, and the transfer, split-up, combination, surrender
or exchange of outstanding Receipts may be suspended (i)
during any period when the register of holders of Receipts
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.
SECTION 2.08. Lost Receipts, etc. In case any
Receipt shall be mutilated or destroyed or lost or stolen,
the Depositary in its discretion may execute and deliver a
Receipt of like form and tenor in exchange and substitution
for such mutilated Receipt or in lieu of and in substitution
for such destroyed, lost or stolen Receipt; provided,
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
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.
SECTION 2.10. Optional Conversion of Series B
Preferred Stock into Common Stock. Receipts may be
surrendered with written instructions to the Depositary to
instruct the Company to cause the conversion of any
specified number of whole shares of Series B Preferred Stock
represented by whole Depositary Shares evidenced by such
Receipts into whole shares of Common Stock and cash for any
fractional share amount at the conversion price then in
effect for the Series B Preferred Stock pursuant to the
Certificate of Designations as such conversion price may be
adjusted by the Company from time to time as provided in the
Certificate of Designations. Subject to the terms and
conditions of this Deposit Agreement and the Certificate of
Designations, a holder of a Receipt or Receipts evidencing
Depositary Shares representing whole or fractional shares of
Series B Preferred Stock may surrender such Receipt or
Receipts at the Corporate Office or at such office or to
such Depositary's Agents as the Depositary may designate for
such purpose, together with a notice of conversion duly
completed and executed, thereby directing the Depositary to
instruct the Company to cause the conversion of the number
of whole shares of underlying Series B Preferred Stock
specified in such notice of conversion into shares of Common
Stock, and an assignment of such Receipt or Receipts to the
Company or in blank, duly completed and executed. To the
extent that a holder delivers to the Depositary for
conversion a Receipt or Receipts which in the aggregate are
convertible into less than one whole share of Common Stock,
the holder shall receive payment in cash in lieu of such
fractional share of Common Stock otherwise issuable. If
more than one Receipt shall be delivered for conversion at
one time by the same holder, the number of whole shares of
Common Stock issuable upon conversion thereof shall be
computed on the basis of the aggregate number of Depositary
Shares represented by the Receipts so delivered.
Upon receipt by the Depositary of a Receipt or
Receipts, together with notice of conversion, duly completed
and executed, directing the Depositary to instruct the
Company to cause the conversion of a specified number of
shares of Series B Preferred Stock, and an assignment of
such Receipt or Receipts to the Company or in blank, duly
completed and executed, the Depositary shall instruct the
Company (i) to cause the conversion of the number of whole
shares of Series B Preferred Stock represented by the
Depositary Shares evidenced by the Receipts so surrendered
for conversion as specified in the written notice to the
Depositary and (ii) to cause the delivery to the holders of
such Receipts of a certificate or certificates evidencing
the number of whole shares of Common Stock and the amount of
money, if any, to be delivered to the holders of Receipts
surrendered for conversion in lieu of fractional shares of
Common Stock otherwise issuable. The Company shall as
promptly as practicable after receipt thereof cause the
delivery of (i) a certificate or certificates evidencing the
number of whole shares of Common Stock into which the Series
B Preferred Stock represented by the Depositary Shares
evidenced by such Receipt or Receipts has been converted,
and (ii) any money or other property to which the holder is
entitled by reason of such conversion. Upon such
conversion, the Depositary (i) shall deliver to the holder a
Receipt evidencing the number of Depositary Shares, if any,
that equals the excess of the number of Depositary Shares
evidenced by the surrendered Receipt over the number of
Depositary Shares evidenced by such Receipt that has been so
converted, (ii) shall cancel the Depositary Shares evidenced
by Receipts surrendered for conversion and (iii) shall
deliver to the Company or its transfer agent for the Series
B Preferred Stock for cancellation the shares of Series B
Preferred Stock represented by the Depositary Shares
evidenced by the Receipts so surrendered and so converted.
Upon the delivery of the shares of Series B Preferred Stock
to be cancelled due to such conversion by the Depositary to
the Company, the Company shall deliver to the Depositary a
certificate or certificates evidencing the number of shares
of Series B Preferred Stock, if any, that equals the excess
of the number of shares of Series B Preferred Stock
evidenced by the surrendered certificate over the number of
shares of Series B Preferred Stock evidenced by that
certificate that has been so converted.
If Series B Preferred Stock shall be called by the
Company for redemption, the Depositary Shares representing
such Stock may be converted into Common Stock as provided in
this Deposit Agreement until, but not after, the close of
business on the Redemption Date unless the Company shall
fail to deposit with the Depositary the shares of Common
Stock and cash for any fractional share amounts required to
redeem the Series B Preferred Stock held by the Depositary,
in which case the Depositary Shares representing such Series
B Preferred Stock may continue to be converted into Common
Stock until, but not after, the close of business on the
date on which the Company deposits with the Depositary such
shares of Common Stock and cash for any fractional share
amounts as are required by the Certificate of Designations
to make full payment of the amounts payable upon such
redemption. Upon receipt by the Depositary of a Receipt or
Receipts, together with a properly completed and executed
notice of conversion, representing any Series B Preferred
Stock called for redemption, the shares of Series B
Preferred Stock held by the Depositary represented by such
Depositary Shares for which conversion is requested shall be
deemed to have been received by the Company for conversion
as of immediately prior to the close of business on the date
of such receipt by the Depositary.
The record holder of Depositary Shares on any
dividend payment record date established by the Depositary
pursuant to Section 4.04 shall be entitled to receive the
dividend payable with respect to such Depositary Shares on
the corresponding dividend payment date notwithstanding the
conversion subsequent to such record date of the shares of
Series B Preferred Stock to which such Depositary Shares
relate. If a share of Series B Preferred Stock is converted
between the record date with respect to any dividend payment
on the Series B Preferred Stock and the corresponding
dividend payment date, any holder of Receipts surrendered
with instructions to the Depositary for conversion of the
underlying Series B Preferred Stock shall pay to the
Depositary an amount equal to the dividend attributable to
the current quarterly dividend period payable on such
dividend payment date on the Depositary Shares represented
by the Receipts being surrendered for conversion (except for
Depositary Shares redeemed on a Redemption Date between such
record date and dividend payment date). Any holder of
Receipts on a dividend payment record date who (or whose
transferee) surrenders the Receipts with instructions to the
Depositary for conversion of the underlying Series B
Preferred Stock on the corresponding dividend payment date
will receive the dividend payable with respect to the
Depositary Shares underlying such Receipts and will not be
required to include payment of the amount of such dividend
upon surrender of the Receipts for conversion.
Upon the conversion of any share of Series B
Preferred Stock for which a request for conversion has been
made by the holder of Depositary Shares representing such
share, all dividends in respect of such Depositary Shares
shall cease to accrue, such Depositary Shares shall be
deemed no longer outstanding, all rights of the holder of
the Receipt with respect to such Depositary Shares (except
the right to receive the Common Stock, any cash payable with
respect to any fractional shares of Common Stock as provided
herein and any cash payable on account of accrued dividends
as provided herein and any Receipts evidencing Depositary
Shares not so converted) shall terminate, and the Receipt
evidencing such Depositary Shares shall be cancelled in
accordance with Section 2.09 hereof.
No fractional shares of Common Stock shall be
issuable upon conversion of Series B Preferred Stock
underlying the Depositary Shares. If any holder of Receipts
surrendered with instructions to the Depositary for
conversion of the underlying Series B Preferred Stock would
be entitled to a fractional share of Common Stock upon such
conversion, the Company shall cause to be delivered to such
holder an amount in cash for such fractional share as
provided in the Certificate of Designations.
SECTION 2.11. Mandatory Conversion of Series B
Preferred Stock into Common Stock. With respect to any
Series B Preferred Stock on deposit with the Depositary as
to which the Company has not exercised its right to redeem
and the record holder has not exercised its right of
optional conversion pursuant to the Certificate of
Designations, the Depositary shall mail, first class postage
prepaid, notice of the mandatory conversion of Series B
Preferred Stock and the simultaneous mandatory conversion of
the Depositary Shares representing the Series B Preferred
Stock to be mandatorily converted, not less than 5 and not
more than 15 days prior to the date fixed for mandatory
conversion of such Series B Preferred Stock and Depositary
Shares (the "Mandatory Conversion Date"), to all record
holders of Receipts evidencing Depositary Shares who are of
record on the date that is two Business Days prior to the
date of mailing, at the addresses of such holders as they
appear on the records of the Depositary; but neither failure
to mail any such notice to one or more such holders nor any
defect in any notice to one or more such holders shall
affect the sufficiency of the proceedings for mandatory
conversion as to any record holder (whether or not such
failure or defect affects such record holder). Each such
notice shall state: (i) the Mandatory Conversion Date;
(ii) that all outstanding Depositary Shares on the Mandatory
Conversion Date will be mandatorily converted pursuant to
the Certificate of Designations and this Agreement; (iii)
the Common Equivalent Rate (determined in accordance with
paragraph 3 of the Certificate of Designations); (iv) the
place or places where Receipts evidencing Depositary Shares
are to be surrendered for payment of the mandatory
conversion price; and (v) that dividends in respect of the
shares of Series B Preferred Stock represented by the
Depositary Shares to be mandatorily converted will cease to
accumulate on the Mandatory Conversion Date.
On the Mandatory Conversion Date, all then
outstanding shares of Series B Preferred Stock shall
mandatorily convert into shares of Common Stock, cash for
any fractional share amounts and the right to receive
amounts in cash equal to all accrued and unpaid dividends on
such shares of Series B Preferred Stock to the Mandatory
Conversion Date (other than previously declared dividends
payable to a holder of record as of a prior date), all as
provided in and subject to paragraph 3 of the Certificate of
Designations.
From and after the Mandatory Conversion Date, the
Depositary Shares representing the shares of Series B
Preferred Stock mandatorily converted shall be deemed no
longer to be outstanding and all rights of the record
holders of Receipts evidencing such Depositary Shares
(except the right to receive the shares of Common Stock, any
cash for accrued and unpaid dividends (other than previously
declared dividends payable to a holder of record as of a
prior date) and any fractional share amount deliverable or
payable upon mandatory conversion or in connection
therewith) shall, to the extent of such Depositary Shares,
cease and terminate. Upon surrender, in accordance with
said notice, of the Receipts evidencing such Depositary
Shares (properly endorsed or assigned for transfer, if the
Depositary shall so require), such Depositary Shares shall
be exchanged for shares of Common Stock and cash for any
fractional share amount (and the right to receive cash for
any accrued and unpaid dividends payable in connection
therewith) at a rate per Depositary Share equal to one-
fourth of the number (including fractional amounts) of
shares of Common Stock (and one-fourth of the right to
receive cash for any accrued and unpaid dividends) exchanged
for each share of Series B Preferred Stock pursuant to the
Certificate of Designations. The foregoing shall be subject
further to the terms and conditions of the Certificate of
Designations.
On or prior to the Mandatory Conversion Date, the
Company shall deposit with the Depositary certificates for
the shares of Common Stock and the cash for any fractional
share amounts into which the shares of Series B Preferred
Stock held by the Depositary shall mandatorily convert on
the Mandatory Conversion Date, plus, subject to the
Certificate of Designations, an amount in cash equal to all
accrued and unpaid dividends on such shares of Series B
Preferred Stock (other than previously declared dividends
payable to a holder of record as of a prior date) to the
Mandatory Conversion Date. Using such shares of Common
Stock and cash, the Depositary shall deliver certificates
for the appropriate number of shares of Common Stock and the
appropriate amount of cash, without interest, to record
holders who properly deliver their Receipts to the
Depositary.
No fractional shares of Common Stock shall be
issuable upon mandatory conversion of Series B Preferred
Stock underlying the Depositary Shares. If any holder of
Receipts surrendered to the Depositary for mandatory
conversion of the underlying Series B Preferred Stock would
be entitled to a fractional share of Common Stock upon such
mandatory conversion, the Company shall cause to be
delivered to such holder an amount in cash for such
fractional share as provided in the Certificate of
Designations. To the extent that Depositary Shares are
mandatorily converted into shares of Common Stock and all of
such shares of Common Stock cannot be distributed to the
record holders of Receipts without creating fractional
interest in such shares, 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, without
interest, be distributed or made available for distribution
to such record holders that would otherwise receive
fractional interests in such shares of Common Stock.
ARTICLE III
CERTAIN OBLIGATIONS OF HOLDERS
OF RECEIPTS AND THE COMPANY
SECTION 3.01. Filing Proofs, Certificates and
Other Information. Any person presenting Series B Preferred
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 transfer, redemption, conversion, or
exchange of any Receipt, the withdrawal of the Series B
Preferred Stock or money or other property, if any,
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 any Receipt, the Depositary
Shares evidenced by such Receipt, the Series B Preferred
Stock (or fractional interest therein) represented by such
Depositary Shares or 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. Until such payment
is made, transfer, redemption, conversion, or exchange of
any Receipt or any withdrawal of the Series B Preferred
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 with respect to such
Receipt or the Series B Preferred Stock represented by the
Depositary Shares evidenced by such Receipt may be withheld
and any part or all of the Series B Preferred Stock or other
property represented by the Depositary Shares evidenced by
such Receipt may be sold for the account of the holder
thereof (after attempting by reasonable means to 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. The Depositary shall act as the
withholding agent for any payments, distributions, and
exchanges made with respect to the Depositary Shares and
Receipts, and the Series B Preferred Stock, Common Stock,
Rights 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. In the event the Depositary
is required to pay any such amounts, the Company shall
reimburse the Depositary for payment thereof upon the
request of the Depositary and the Depositary shall, upon the
Company's request and as instructed by the Company, pursue
its rights against such holder at the Company's expense.
SECTION 3.03. Representations and Warranties as
to Series B Preferred Stock. Each person depositing Series
B Preferred Stock under this Deposit Agreement shall be
deemed thereby to represent and warrant that such Series B
Preferred 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 Series B Preferred Stock and the execution
and delivery of Receipts.
ARTICLE IV
THE SERIES B PREFERRED STOCK, NOTICES
SECTION 4.01. Cash Distributions. Whenever the
Depositary shall receive any cash dividend or other cash
distribution on the Series B Preferred 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 portions of such sum as are, as nearly as
practicable, proportionate 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 to withhold and does withhold
from any cash dividend or other cash distribution in respect
of the Series B Preferred Stock an amount on account of
taxes or as otherwise required by law, regulation or court
order, the amount made available for distribution or
distributed in respect of Depositary Shares 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 on the Series B Preferred 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 portions of the securities or property
received by it as are, as nearly as practicable,
proportionate 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 requirement that the Company
or the Depositary withhold an amount on account of taxes or
as otherwise required by law, regulation or court order),
the Depositary deems, after consultation with the Company,
such distribution not to be feasible, the Depositary may,
with the approval of the Company, adopt such method as it
deems equitable and practicable for the purpose of effecting
such distribution, including the 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 Series B
Preferred 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 if the
Company so directs in such manner as the Company shall
instruct (including by the execution and delivery 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 that it is
not lawful or feasible to make such rights, preferences or
privileges available to some or all holders of Receipts (by
the execution and delivery 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, if so instructed by
the Company, and if applicable laws and the terms of such
rights, preferences or privileges so permit, sell such
rights, preferences or privileges of such holders at public
or private sale, at such place or places and upon such terms
as it may deem proper. The net proceeds of any such sale
shall, subject to Section 3.02, be distributed by the
Depositary to the record holders of Receipts entitled
thereto in accordance with the withholding and fractional
amount provisions of Section 4.01.
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 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 notified by the Company in writing that
such registration statement has 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.
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 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 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 Series B Preferred Stock, or
whenever the Depositary shall receive notice of (i) any
meeting at which holders of Series B Preferred Stock are
entitled to vote or of which holders of Series B Preferred
Stock are entitled to notice or (ii) any election on the
part of the Company to call for redemption any shares of
Series B Preferred 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
Series B Preferred Stock) for the determination of the
holders of Receipts (i) who shall be entitled to receive
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
(ii) whose Depositary Shares are to be so redeemed.
SECTION 4.05. Voting Rights. Upon issuance of
notice of any meeting at which the holders of Series B
Preferred Stock are entitled to vote, the Company shall
direct the Depositary, as soon as practicable thereafter, to
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
amount of Series B Preferred 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 amount of Series B
Preferred 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 Series B Preferred Stock or cause
such Series B Preferred 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
Series B Preferred Stock represented by the Depositary
Shares evidenced by such Receipt. After aggregating all
voting Depositary Shares, the Depositary will disregard for
voting purposes any fractional share of Series B Preferred
Stock remaining.
SECTION 4.06. Changes Affecting Series B
Preferred Stock and Reclassifications, Recapitalizations,
etc. Upon any split-up, consolidation or any other
reclassification of Series B Preferred 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, upon the instructions of the
Company, 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 Series B Preferred 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 shares,
other securities or other property so received in exchange
for or upon conversion or in respect of such Series B
Preferred 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
shares, other securities or other property.
SECTION 4.07. Inspection of Reports. The
Depositary shall make available for inspection by holders of
Receipts at the Corporate Office and at such other places as
it may from time to time deem advisable during normal
business hours any reports and communications received from
the Company that are both received by the Depositary as the
holder of Series B Preferred Stock and made generally
available to the holders of Series B Preferred Stock by the
Company.
SECTION 4.08. List of Receipt Holders. Promptly
upon request from time to time by the Company and at the
Company's expense, 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.
ARTICLE V
THE DEPOSITARY 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 Corporate
Office, facilities for the execution and delivery, transfer,
surrender and exchange, split-up and combination of Receipts
and deposit and withdrawal of Series B Preferred Stock and
(ii) at the offices of the Depositary's Agents, if any,
facilities for the delivery, transfer, surrender and
exchange, split-up, combination and redemption of Receipts
and deposit and withdrawal of Series B Preferred Stock, all
in accordance with the provisions of this Deposit Agreement.
The Depositary shall keep books at the Corporate
Office for the registration and transfer of Receipts, which
books during normal business hours shall be open for
inspection by the record holders of Receipts, as provided by
applicable law, and by the Company. 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 Series B Preferred Stock represented by such
Depositary Shares shall be listed on the New York Stock
Exchange, Inc., the Depositary may, 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. Such Registrar (which may be the Depositary
if so permitted by the requirements of such Exchange) may be
removed and a substitute registrar appointed by the
Depositary upon the request or with the approval of the
Company. If the Receipts, such Depositary Shares or such
Series B Preferred Stock are listed on one or more other
stock exchanges, the Company will, with the assistance of
the Depositary, arrange such facilities for the delivery,
transfer, surrender and exchange of such Receipts, such
Depositary Shares or such Series B Preferred Stock as may be
required by law or applicable stock exchange regulations.
SECTION 5.02. Prevention of or Delay in
Performance by the Depositary, the Depositary's Agents or
the Company. Neither the Depositary nor any Depositary's
Agent 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 or the 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
or the Depositary's Agent, by reason of any act of God or
war or other circumstance beyond the control of the relevant
party, the Depositary, any Depositary's Agent 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 or the Company incur any
liability to any holder of a Receipt by reason of any
nonperformance or delay, caused as aforesaid, in the
performance of any act or thing that the terms of this
Deposit Agreement provide shall or may be done or performed
or by reason of any exercise of, or failure to exercise, any
discretion provided for in this Deposit Agreement.
SECTION 5.03. Obligations of the Depositary, the
Depositary's Agents and the Company. Neither the Depositary
nor any Depositary's Agent nor the Company assumes any
obligation or shall be subject to any liability under this
Deposit Agreement or any Receipt to holders of Receipts
other than that each of them agrees to use good faith in the
performance of such duties as are specifically set forth in
this Deposit Agreement.
Neither the Depositary nor any Depositary's Agent
nor the Company shall be under any obligation to appear in,
prosecute or defend any action, suit or other proceeding
with respect to the Series B Preferred 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 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 Series B Preferred 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 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, its parent, affiliates,
subsidiaries, officers, directors or employees and any
Depositary's Agent may own, buy, sell or deal in any class
of securities of the Company and its affiliates and in
Receipts or Depositary Shares or become pecuniarily
interested in any transaction in which the Company or its
officers may be interested or contract with or lend money to
the Company or any of its affiliates or officers or
otherwise act fully or as freely as if it were not the
Depositary or the Depositary's Agent hereunder. The
Depositary may also act as transfer agent or registrar of
any of the securities of the Company and its affiliates.
It is intended that neither the Depositary nor any
Depositary's Agent shall be deemed to be an "issuer" of
securities under the federal securities laws or applicable
state securities laws, it being expressly understood and
agreed that the Depositary and any Depositary's Agent are
acting only in a ministerial capacity as Depositary for the
Series B Preferred Stock; provided, however, that the
Depositary agrees to comply with all information reporting
and withholding requirements applicable to it under law or
this Deposit Agreement in its capacity as Depositary.
Neither the Depositary (or its officers,
directors, employees or agents) nor any Depositary's Agent
makes any representation or has any responsibility as to the
validity of the Registration Statement pursuant to which the
Depositary Shares are registered under the Securities Act,
the Series B Preferred Stock, the Depositary Shares, the
Receipts (except for its countersignatures thereon) or any
instruments referred to therein or herein (other than an
instrument executed by the Depositary or Depositary's
Agent), or as to the correctness of any statement made
therein or herein or for the failure of the Company to
comply with any covenants contained in this Agreement or the
Receipts; 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 Series B Preferred 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 State of
Georgia, with full power, authority and legal right under
such laws 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
notice 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 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 45 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 45 days, the resigning 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 Series B Preferred 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 other records
respecting the Receipts, the Depositary Shares and the
Series B Preferred Stock as the successor shall require in
order to perform its duties. 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, and as
directed by the Company transmit to the record holders of
Receipts, in each case at the most recent 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
Series B Preferred 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 Series B Preferred 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 Series B Preferred Stock
by the Company. Neither the Company nor any company
controlled by the Company will at any time deposit any
Series B Preferred Stock if such Series B Preferred 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 Series B Preferred 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 attorneys' fees) 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 the Depositary incurs fees,
charges or expenses for which it is not otherwise liable
hereunder at the election of a holder of a Receipt or other
person, 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 provisions of this Deposit Agreement may at
any time and from time to time be amended by agreement
between the Company and the Depositary in any respect that
they may deem necessary or desirable. Any amendment that
shall impose any fees, taxes or charges payable by holders
of Receipts (other than taxes and other governmental
charges, fees and other expenses provided for herein or in
the Receipts), or that shall otherwise prejudice any
substantial existing right of holders of Receipts, shall not
become effective as to outstanding Receipts until the
expiration of 90 days after notice of such amendment shall
have been given to the record holders of outstanding
Receipts. Every holder of an outstanding Receipt at the
time any such amendment becomes effective shall be deemed,
by continuing to hold such Receipt, to consent and agree to
such amendment and to be bound by this Deposit Agreement as
amended thereby. In no event shall any amendment impair the
right, subject to the provisions of Sections 2.03, 2.06,
2.07 and 2.10 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 Series B Preferred Stock and all
money and other property, if any, represented thereby, or to
cause the conversion of the underlying Series B Preferred
Stock into Common Stock and cash for any fractional share
amount, except in order to comply with mandatory provisions
of applicable law.
SECTION 6.02. Termination. Whenever so directed
by the Company upon at least five Business Days' prior
notice, the Depositary will terminate this Deposit
Agreement, provided, that notice of such termination has
been given 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 45 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
hereinafter provided in this paragraph and except that the
Depositary shall continue to collect dividends and other
distributions pertaining to Series B Preferred Stock, shall
sell rights, preferences, privileges or other property as
provided in this Deposit Agreement and shall continue to
deliver the Series B Preferred 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 Series B
Preferred Stock then held hereunder at public or private
sale, at such place or places and upon such terms as it
deems proper and may thereafter hold 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 theretofore 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 and a sufficient number
of shares of Series B Preferred Stock remain outstanding,
the Company hereby agrees to use its best efforts to list
the underlying Series B Preferred Stock on the New York
Stock Exchange, Inc. (unless the holders of a majority of
the outstanding shares of Series B Preferred Stock shall
consent to the Company not effecting such listing).
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 counterpart, 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 facsimile
transmission 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
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 facsimile
transmission confirmed by letter, addressed to the Company
at 55 East Camperdown Way, Post Office Box 1028, Greenville,
South Carolina 29602, Attention: Treasurer, with a copy to
Corporate 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 most recent address of such record holder as
it appears on the books of the Depositary or, if such holder
shall have timely filed with the Depositary a written
request that notices intended for such holder be mailed to
some other address, at the address designated in such
request.
Delivery of a notice sent by 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 facsimile transmission, telegram or telex) is
deposited, postage prepaid, in a post office letter box.
The Depositary or the Company may, however, act upon any
facsimile transmission received by it from the other or from
any holder of a Receipt, notwithstanding that such facsimile
transmission shall not subsequently be confirmed by letter
as aforesaid.
SECTION 7.05. Depositary's Agents. The
Depositary may from time to time appoint Depositary's Agents
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 notify the Company of any such action.
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 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 the Receipts or to have any
bearing upon the meaning or interpretation of any provision
contained herein or in the Receipts.
IN WITNESS WHEREOF, Bowater Incorporated and Trust
Company Bank have duly executed this 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 executed and delivered in accordance
with the terms hereof.
BOWATER INCORPORATED,
By /s/ David G. Maffucci
_________________________
Name: David G. Maffucci
Title: Vice President -
Treasurer
TRUST COMPANY BANK,
as Depositary,
By /s/ T.J. Donaldson
________________________
Name: T.J. Donaldson
Title: Group Vice President
EXHIBIT A
DEPOSITARY RECEIPT
FOR
DEPOSITARY SHARES,
EACH REPRESENTING ONE-FOURTH OF A SHARE OF
7% PRIDES, SERIES B CONVERTIBLE PREFERRED STOCK,
par value $1 per share
OF
BOWATER INCORPORATED
(Incorporated under the Laws of the State of Delaware)
No. Depositary Shares
CUSIP
Trust Company Bank, as Depositary (the
"Depositary"), hereby certifies that ___________________ is
the registered owner of __________ Depositary Shares (the
"Depositary Shares"), each Depositary Share representing
one-fourth of a share of 7% PRIDES, Series B Convertible
Preferred Stock, par value $1 per share (the "Series B
Preferred Stock"), of Bowater Incorporated, a corporation
duly organized and existing under the laws of the State of
Delaware (the "Company"), and the same proportionate
interest in any and all other property received by the
Depositary in respect of such shares of Series B Preferred
Stock and held by the Depositary under the Deposit Agreement
(as defined below). Subject to the terms of the Deposit
Agreement, each owner of a Depositary Share is entitled,
proportionately, to all the rights, preferences and
privileges of the Series B Preferred Stock represented
thereby, including the dividend, voting, conversion,
liquidation and other rights contained in the Certificate of
Designations of the 7% PRIDES, Series B Convertible
Preferred Stock, par value $1 per share, establishing the
rights, preferences, privileges and limitations of the
Series B Preferred Stock (the "Certificate of
Designations"), copies of which are on file at the office of
the Depositary at which at any particular time its business
in respect of matters governed by the Deposit Agreement
shall be administered, which at the time of the execution of
the Deposit Agreement is located at One Park Place, Atlanta,
Georgia (the "Corporate Office").
THE DEPOSITARY IS NOT RESPONSIBLE FOR THE VALIDITY OF ANY
DEPOSITED STOCK. THE DEPOSITARY ASSUMES NO RESPONSIBILITY
FOR THE CORRECTNESS OF THE DESCRIPTION SET FORTH IN THIS
RECEIPT, WHICH CAN BE TAKEN AS A STATEMENT OF THE COMPANY
SUMMARIZING CERTAIN PROVISIONS OF THE DEPOSIT AGREEMENT.
UNLESS EXPRESSLY SET FORTH IN THE DEPOSIT AGREEMENT, THE
DEPOSITARY MAKES NO WARRANTIES OR REPRESENTATIONS AS TO THE
VALIDITY, GENUINENESS OR SUFFICIENCY OF ANY STOCK AT ANY
TIME DEPOSITED WITH THE DEPOSITARY UNDER THE DEPOSIT
AGREEMENT OR OF THE DEPOSITARY SHARES OR RECEIPTS (EXCEPT
FOR ITS COUNTERSIGNATURES THEREON), AS TO THE VALIDITY OR
SUFFICIENCY OF THE DEPOSIT AGREEMENT, AS TO THE VALUE OF THE
DEPOSITARY SHARES OR AS TO ANY RIGHT, TITLE OR INTEREST OF
THE RECORD HOLDERS OF THE RECEIPTS IN AND TO THE DEPOSITARY
SHARES.
The Company will furnish to any holder of a
Receipt without charge, upon request addressed to its
executive office or the office of its transfer agent, a
statement or summary of the powers, designations,
preferences and relative, participating, optional or other
special rights of each authorized class of capital stock of
the Company, and of each series of preferred stock of the
Company authorized to be issued, so far as the same may have
been fixed, and of the qualifications, limitations or
restrictions of such preferences and/or rights.
This Depositary Receipt (the "Receipt") is
continued on the reverse hereof and the additional
provisions therein set forth for all purposes have the same
effect as if set forth at this place.
This Receipt shall not be entitled to any benefits
under the Deposit Agreement or be valid or obligatory for
any purpose, unless this Receipt shall have been executed on
behalf of the Company by the manual or facsimile signature
of a duly authorized officer and executed manually or, if a
Registrar for the Receipts (other than the Depositary) shall
have been appointed, by facsimile by the Depositary by the
signature of a duly authorized officer and, if executed by
facsimile signature of the Depositary, shall have been
countersigned manually by such Registrar by the signature of
a duly authorized officer.
Dated:
TRUST COMPANY BANK
Depositary and Registrar
By
------------------------
Authorized Officer
BOWATER INCORPORATED
By
------------------------
Authorized Officer
[FORM OF REVERSE
OF DEPOSITARY RECEIPT]
1. The Deposit Agreement. Depositary Receipts
(the "Receipts"), of which this Receipt is one, are made
available upon the terms and conditions set forth in the
Deposit Agreement, dated as of February 1, 1994 (the
"Deposit Agreement") among the Company, the Depositary and
all holders from time to time of Receipts. The Deposit
Agreement (copies of which are on file at the Corporate
Office and at the office of any Agent of the Depositary)
sets forth the rights of holders of Receipts and the rights
and duties of the Depositary. The statements made on the
face and the reverse of this Receipt are summaries of
certain provisions of the Deposit Agreement and are subject
to the detailed provisions thereof, to which reference is
hereby made. In the event of any conflict between the
provisions of this Receipt and the provisions of the Deposit
Agreement, the provisions of the Deposit Agreement will
govern.
2. Definitions. Unless otherwise expressly
herein provided, all defined terms used herein shall have
the meanings ascribed thereto in the Deposit Agreement.
3. Redemption of Series B Preferred Stock.
Whenever the Company shall elect to redeem shares of Series
B Preferred Stock for shares of its Common Stock, par value
$1.00 per share ("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 the notice required by the
Deposit Agreement. The Depositary shall mail, first class
postage prepaid, notice of such redemption and the proposed
simultaneous redemption of the number of Depositary Shares
representing the Series B Preferred Stock to be redeemed,
not less than 15 and not more than 60 days prior to the date
fixed for redemption of such Series B Preferred Stock and
Depositary Shares (the "Redemption Date"), to the record
holders of the Receipts evidencing the Depositary Shares to
be so redeemed, at the addresses of such holders as they
appear on the records of the Depositary; but neither failure
to mail any such notice to one or more such holders nor any
defect in any notice to one or more such holders shall
affect the sufficiency of the proceedings for redemption as
to other holders. Each such notice shall state: (i) the
Redemption Date; (ii) 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;
(iii) the number of shares of Common Stock deliverable upon
redemption; (iv) the call price for the Depositary Shares;
(v) the Optional Conversion Rate (calculated in accordance
with paragraph 3 of the Certificate of Designations),
together with a statement that all conversion rights with
respect to the Depositary Shares called for redemption will
terminate immediately prior to the close of business on the
date fixed for redemption; (vi) the place or places where
Receipts evidencing Depositary Shares are to be surrendered
for payment of the redemption price; and (vii) that
dividends in respect of the shares of Series B Preferred
Stock represented by the Depositary Shares to be redeemed
will cease to accumulate on such Redemption Date. Any such
notices shall be mailed in the same manner as notices of
redemption of the Series B Preferred Stock are required to
be mailed pursuant to paragraph 3 of the Certificate of
Designations and published in the same manner as notices of
redemption of the Series B Preferred Stock are required to
be published pursuant to said paragraph, if so required. In
case fewer than all the outstanding Depositary Shares are to
be redeemed, the Depositary Shares to be redeemed shall be
selected by lot or pro rata (as nearly as may be) or by any
other equitable method determined by the Depositary to be
consistent with the method determined by the Board of
Directors of the Company with respect to the Series B
Preferred Stock.
Notice having been mailed and published by the
Depositary as aforesaid, from and after the Redemption Date
(unless the Company shall have failed to redeem the shares
of Series B Preferred Stock to be redeemed by it, as set
forth in the Company's notice provided for above), the
Depositary Shares called for redemption shall be deemed no
longer to be outstanding and all rights of the holders of
Receipts evidencing such Depositary Shares (except the right
to receive the shares of Common Stock upon redemption and
cash for any fractional share amount) shall, to the extent
of such Depositary Shares, cease and terminate. Upon
surrender in accordance with said notice of the Receipts
evidencing such Depositary Shares (properly endorsed or
assigned for transfer, if the Depositary shall so require),
such Depositary Shares shall be redeemed for shares of
Common Stock and cash for any fractional share amount at a
rate per Depositary Share equal to one-fourth of the number
of shares of Common Stock (including fractional amounts)
delivered upon redemption of a share of Series B Preferred
Stock pursuant to the Certificate of Designations. The
foregoing shall be subject further to the terms and
conditions of the Certificate of Designations and the
Deposit Agreement.
If fewer than all of the Depositary Shares
evidenced by this Receipt are called for redemption, the
Depositary will deliver to the holder of this Receipt upon
its surrender to the Depositary, together with shares of
Common Stock for the Depositary Shares called for
redemption, a new Receipt evidencing the Depositary Shares
evidenced by such prior Receipt and not called for
redemption.
In the event that Depositary Shares are redeemed
for shares of Common Stock and certificates evidencing
Rights are issued or to be issued in connection therewith,
such certificates shall be distributed in the same manner
and to the same record holders receiving the shares of
Common Stock associated with such Rights.
4. Surrender of Receipts and Withdrawal of Series
B Preferred Stock. Upon surrender of this Receipt to the
Depositary at the Corporate Office or such other offices as
the Depositary may designate, and subject to the provisions
of the Deposit Agreement, the holder hereof is entitled to
withdraw, and to obtain delivery of, to or upon the order of
such holder, any or all of the Series B Preferred Stock (but
only in whole shares of Series B Preferred Stock) and any or
all money and other property, if any, at the time
represented by the Depositary Shares evidenced by this
Receipt; provided, however, that, in the event this Receipt
shall evidence a number of Depositary Shares in excess of
the number of Depositary Shares representing the whole
number of shares of Series B Preferred Stock to be
withdrawn, the Depositary shall, in addition to such whole
number of shares of Series B Preferred Stock and such money
and other property, if any, to be withdrawn, deliver, to or
upon the order of such holder, a new Receipt or Receipts
evidencing such excess number of whole Depositary Shares.
5. Optional Conversion of Series B Preferred
Stock into Common Stock. Subject to the terms and
conditions of the Deposit Agreement and the Certificate of
Designations, this Receipt may be surrendered with written
instructions to the Depositary to instruct the Company to
cause the conversion of any specified number of whole shares
of Series B Preferred Stock represented by whole Depositary
Shares evidenced hereby into whole shares of Common Stock
and cash for any fractional share amount at the conversion
price then in effect for the Series B Preferred Stock
pursuant to the Certificate of Designations as such
conversion price may be adjusted by the Company from time to
time as provided in the Certificate of Designations.
Subject to the terms and conditions of the Deposit Agreement
and the Certificate of Designations, a holder of a Receipt
or Receipts evidencing Depositary Shares representing whole
or fractional shares of Series B Preferred Stock may
surrender such Receipt or Receipts at the Depositary's
Office or at such office or to such Depositary's Agents as
the Depositary may designate for such purpose, together with
a notice of conversion duly completed and executed, thereby
directing the Depositary to instruct the Company to cause
the conversion of the number of whole shares of underlying
Series B Preferred Stock specified in such notice of
conversion into shares of Common Stock, and an assignment of
such Receipt or Receipts to the Company or in blank, duly
completed and executed. To the extent that a holder
delivers to the Depositary for conversion a Receipt or
Receipts which in the aggregate are convertible into less
than one whole share of Common Stock, the holder shall
receive payment in cash in lieu of such fractional share of
Common Stock otherwise issuable. If more than one Receipt
shall be delivered for conversion at one time by the same
holder, the number of whole shares of Common Stock issuable
upon conversion thereof shall be computed on the basis of
the aggregate number of Depositary Shares represented by the
Receipts so delivered.
If Series B Preferred Stock shall be called by the
Company for redemption, the Depositary Shares representing
such Series B Preferred Stock may be converted into Common
Stock as provided in the Deposit Agreement until, but not
after, the close of business on the Redemption Date unless
the Company shall fail to deposit with the Depositary the
shares of Common Stock and cash for any fractional share
amounts required to redeem the Series B Preferred Stock, in
which case the Depositary Shares representing such Series B
Preferred Stock may continue to be converted into Common
Stock until, but not after, the close of business on the
date on which the Company deposits with the Depositary such
shares of Common Stock and cash for any fractional share
amounts as are required by the Certificate of Designations
to make full payment of the amounts payable upon such
redemption. Upon receipt by the Depositary of a Receipt or
Receipts, together with a properly completed and executed
notice of conversion, representing any Series B Preferred
Stock called for redemption, the shares of Series B
Preferred Stock held by the Depositary represented by such
Depositary Shares for which conversion is requested shall be
deemed to have been received by the Company for conversion
as of immediately prior to the close of business on the date
of such receipt by the Depositary.
6. Mandatory Conversion of Series B Preferred
Stock into Common Stock. With respect to any Series B
Preferred Stock on deposit with the Depositary as to which
the Company has not exercised its right to redeem and the
record holder has not exercised its right of optional
conversion pursuant to the Certificate of Designations, the
Depositary shall mail, first class postage prepaid, notice
of the mandatory conversion of Series B Preferred Stock and
the simultaneous mandatory conversion of the Depositary
Shares representing the Series B Preferred Stock to be
mandatorily converted, not less than 5 and not more than
15 days prior to the date fixed for mandatory conversion of
such Series B Preferred Stock and Depositary Shares (the
"Mandatory Conversion Date"), to all record holders of
Receipts evidencing Depositary Shares who are of record on
the date that is two Business Days prior to the date of
mailing, at the addresses of such holders as they appear on
the records of the Depositary; but neither failure to mail
any such notice to one or more such holders nor any defect
in any notice to one or more such holders shall affect the
sufficiency of the proceedings for mandatory conversion as
to any record holder (whether or not such failure or defect
affects such record holder). Each such notice shall
state: (i) the Mandatory Conversion Date; (ii) that all
outstanding Depositary Shares on the Mandatory Conversion
Date will be mandatorily converted pursuant to the
Certificate of Designations and the Deposit Agreement; (iii)
the Common Equivalent Rate (determined in accordance with
paragraph 3 of the Certificate of Designations); (iv) the
place or places where Receipts evidencing Depositary Shares
are to be surrendered for payment of the mandatory
conversion price; and (v) that dividends in respect of the
shares of Series B Preferred Stock represented by the
Depositary Shares to be mandatorily converted will cease to
accumulate on the Mandatory Conversion Date.
On the Mandatory Conversion Date, all then
outstanding shares of Series B Preferred Stock shall
mandatorily convert into shares of Common Stock, cash for
any fractional share amounts and the right to receive
amounts in cash equal to all accrued and unpaid dividends on
such shares of Series B Preferred Stock to the Mandatory
Conversion Date (other than previously declared dividends
payable to a holder of record as of a prior date), all as
provided in and subject to paragraph 3 of the Certificate of
Designations.
From and after the Mandatory Conversion Date, the
Depositary Shares representing the shares of Series B
Preferred Stock mandatorily converted shall be deemed no
longer to be outstanding and all rights of the record
holders of Receipts evidencing such Depositary Shares
(except the right to receive the shares of Common Stock, any
cash for accrued and unpaid dividends (other than previously
declared dividends payable to a holder of record as of a
prior date) and any fractional share amount deliverable or
payable upon mandatory conversion or in connection
therewith) shall, to the extent of such Depositary Shares,
cease and terminate. Upon surrender, in accordance with
said notice, of the Receipts evidencing such Depositary
Shares (properly endorsed or assigned for transfer, if the
Depositary shall so require), such Depositary Shares shall
be exchanged for shares of Common Stock and cash for any
fractional share amount (and the right to receive cash for
any accrued and unpaid dividends payable in connection
therewith) at a rate per Depositary Share equal to one-
fourth of the number (including fractional amounts) of
shares of Common Stock (and one-fourth of the right to
receive cash for any accrued and unpaid dividends) exchanged
for each share of Series B Preferred Stock pursuant to the
Certificate of Designations. The foregoing shall be subject
further to the terms and conditions of the Certificate of
Designations and the Deposit Agreement.
On or prior to the Mandatory Conversion Date, the
Company shall deposit with the Depositary certificates for
the shares of Common Stock and the cash for any fractional
share amounts into which the shares of Series B Preferred
Stock held by the Depositary shall mandatorily convert on
the Mandatory Conversion Date, plus, subject to the
Certificate of Designations, an amount in cash equal to all
accrued and unpaid dividends on such shares of Series B
Preferred Stock (other than previously declared dividends
payable to a holder of record as of a prior date) to the
Mandatory Conversion Date. Using such shares of Common
Stock and cash, the Depositary shall deliver certificates
for the appropriate number of shares of Common Stock and the
appropriate amount of cash, without interest, to record
holders who properly deliver their Receipts to the
Depositary.
7. Transfers, Split-ups, Combinations. Subject
to Paragraphs 8, 9 and 10 below, this Receipt is
transferable on the books of the Depositary upon surrender
of this Receipt to the Depositary at the Corporate Office or
such other offices as the Depositary may designate, properly
endorsed or accompanied by a properly executed instrument of
transfer or endorsement, and upon such transfer the
Depositary shall sign and deliver a Receipt to or upon the
order of the person entitled thereto, all as provided in and
subject to the Deposit Agreement. This Receipt may be split
into other Receipts or combined with other Receipts into one
Receipt evidencing the same aggregate number of Depositary
Shares evidenced by the Receipt or Receipts surrendered;
provided, however, that the Depositary shall not execute and
deliver any Receipt evidencing a fractional Depositary
Share.
8. Conditions to Signing and Delivery, Transfer,
etc., of Receipts. Prior to the execution and delivery,
transfer, split-up, combination, surrender or exchange of
this Receipt, 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 Series B Preferred
Stock being deposited or withdrawn or with respect to Common
Stock, Rights or other securities or property of the Company
being issued upon conversion or redemption); (ii) the
production of proof satisfactory to it as to the identity
and genuineness of any signature; and (iii) compliance with
such regulations, if any, as the Depositary or the Company
may establish not inconsistent with the Deposit Agreement.
Any person presenting Series B Preferred Stock for deposit,
or any holder of this Receipt, may be required to file such
proof of 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 transfer, redemption, conversion or
exchange of any Receipt, the withdrawal of the Series B
Preferred Stock or money or other property, if any,
represented by the Depositary Shares evidenced by this
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.
9. Suspension of Delivery, Transfer, etc. The
deposit of Series B Preferred Stock may be refused, the
delivery of this Receipt against Series B Preferred Stock
may be suspended, and the transfer, split-up, combination,
surrender or exchange of this Receipt may be suspended
(i) during any period when the register of holders of
Receipts 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 the Deposit Agreement, or (iii) with the
approval of the Company, for any other reason. Except with
respect to a conversion of Depositary Shares which may occur
pursuant to paragraph 3 of the Certificate of Designations,
the Depositary shall not be required (a) to execute and
deliver, transfer or exchange any Receipts for a period
beginning at the opening of business 15 days next preceding
any selection of Depositary Shares and Series B Preferred
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 second to last paragraph of Paragraph 3
above.
10. 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 this Receipt, the Depositary Shares evidenced by
this Receipt, the Series B Preferred Stock (or any
fractional interest therein) represented by such Depositary
Shares or any transaction referred to in Section 4.06 of the
Deposit Agreement, such tax (including transfer, issuance or
acquisition taxes, if any) or governmental charge shall be
payable by the holder hereof. Until such payment is made,
transfer, redemption, conversion or exchange of this Receipt
or any withdrawal of the Series B Preferred Stock or money
and other property, if any, represented by the Depositary
Shares evidenced by this Receipt may be refused, any
dividend or other distribution may be withheld and any part
or all of the Series B Preferred Stock or other property
represented by the Depositary Shares evidenced by this
Receipt may be sold for the account of the holder hereof
(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 this Receipt remaining liable for any deficiency.
11. Amendment. The form of the Receipts and any
provision of the Deposit Agreement may at any time and from
time to time be amended by agreement between the Company and
the Depositary in any respect that they may deem necessary
or desirable. Any amendment that shall impose any fees,
taxes or charges payable by holders of Receipts (other than
taxes and other governmental charges, fees and other
expenses provided for herein or in the Deposit Agreement),
or that shall otherwise prejudice any substantial existing
right of holders of Receipts, shall not become 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. The holder of this
Receipt at the time any such amendment becomes effective
shall be deemed, by continuing to hold this 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
Paragraphs 3, 4, 5, 6, 8, 9 and 10 hereof and of
Sections 2.03, 2.06, 2.07, 2.10 and 2.11 and Article III of
the Deposit Agreement, of the owner of the Depositary Shares
evidenced by this Receipt to surrender this Receipt with
instructions to the Depositary to deliver to the holder the
Series B Preferred Stock and all money and other property,
if any, represented hereby, or to cause the conversion of
the underlying Series B Preferred Stock into Common Stock
and cash for any fractional share amount, except in order to
comply with mandatory provisions of applicable law.
12. Fees, Charges and Expenses. The Company will
pay all fees, charges and expenses of the Depositary, except
for taxes (including transfer taxes, if any) and other
governmental charges and such charges as are expressly
provided in the Deposit Agreement to be at the expense of
persons depositing Series B Preferred Stock, holders of
Receipts or other persons.
13. Title to Receipts. It is a condition of this
Receipt, and every successive holder hereof by accepting or
holding the same consents and agrees, that title to this
Receipt (and to the Depositary Shares evidenced hereby) when
properly endorsed or accompanied by a properly executed
instrument of transfer or endorsement, is transferable by
delivery; provided, however, that until this Receipt shall
be transferred on the books of the Depositary as provided in
Section 2.04 of the Deposit Agreement, the Depositary may,
notwithstanding any notice to the contrary, treat the record
holder hereof at such time as the absolute owner hereof for
the purpose of determining the person entitled to
distribution of dividends or other distributions or to any
notice provided for in the Deposit Agreement and for all
other purposes.
14. Dividends and Distributions. Whenever the
Depositary receives any cash dividend or other cash
distribution on the Series B Preferred Stock, the Depositary
will, subject to the provisions of the Deposit Agreement,
distribute such portions of such sum to record holders of
Receipts as are, as nearly as practicable, proportionate 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 to
withhold and does withhold from any cash dividend or other
cash distribution in respect of the Series B Preferred Stock
an amount on account of taxes or as otherwise required by
law, regulation or court order, the amount made available
for distribution or distributed in respect of Depositary
Shares 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.
15. Subscription Rights, Preferences or
Privileges. If the Company shall at any time offer or cause
to be offered to the persons in whose names Series B
Preferred 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, subject to the
provisions of the Deposit Agreement, be made available by
the Depositary to the record holders of Receipts if the
Company so directs in such manner as the Company shall
instruct.
16. Notice of Dividends, Fixing of Record Date.
Whenever any cash dividend or other cash distribution shall
become payable, any distribution other than cash shall be
made, or any rights, preferences or privileges shall at any
time be offered, with respect to the Series B Preferred
Stock, or the Depositary shall receive notice of (i) any
meeting at which holders of Series B Preferred Stock are
entitled to vote or of which holders of Series B Preferred
Stock are entitled to notice or (ii) any election on the
part of the Company to call for redemption any shares of
Series B Preferred 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
Series B Preferred Stock) for the determination of the
holders of Receipts (i) who shall be entitled to receive
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
(ii) whose Depositary Shares are to be so redeemed.
17. Voting Rights. Upon issuance of notice of any
meeting at which the holders of Series B Preferred Stock are
entitled to vote, the Company shall direct the Depositary,
as soon as practicable thereafter, to mail to the record
holders of Receipts a notice, 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 determined as
provided in Paragraph 16 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 amount of Series B Preferred 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 amount of Series B Preferred Stock represented by
the Depositary Shares evidenced by such Receipt in
accordance with the instructions set forth in such request.
The Company has agreed to take all reasonable action that
may be deemed necessary by the Depositary in order to enable
the Depositary to vote such Series B Preferred Stock or
cause such Series B Preferred 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 Series B Preferred Stock represented by the
Depositary Shares evidenced by such Receipt. After
aggregating all voting Depositary Shares, the Depositary
will disregard for voting purposes any fractional share of
Series B Preferred Stock remaining.
18. Reports, Inspection of Transfer Books. The
Depositary shall make available for inspection by holders of
Receipts at the Corporate Office and at such other places as
it may from time to time deem advisable during normal
business hours any reports and communications received from
the Company that are both received by the Depositary as the
holder of Series B Preferred Stock and made generally
available to the holders of Series B Preferred Stock by the
Company. The Depositary shall keep books at the Corporate
Office for the registration and transfer of Receipts, which
books during normal business hours will be open for
inspection by the record holders of Receipts as provided by
applicable law.
19. Liability of the Depositary, the Depositary's
Agents and the Company. Neither the Depositary nor any
Depositary's Agent 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 of any
governmental authority or, in the case of the Depositary or
the 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 or the Depositary's Agent, by reason of any
act of God or war or other circumstance beyond the control
of the relevant party, the Depositary, any Depositary's
Agent or the Company shall be prevented or forbidden from
doing or performing any act or thing that the terms of the
Deposit Agreement provide shall be done or performed; nor
shall the Depositary, any Depositary's Agent or the Company
incur any liability to any holder of a Receipt by reason of
any nonperformance or delay, caused as aforesaid, in the
performance of any act or thing that the terms of the
Deposit Agreement provide shall or may be done or performed
or by reason of any exercise of, or failure to exercise, any
discretion provided for in the Deposit Agreement.
20. Obligations of the Depositary, the
Depositary's Agents and the Company. Neither the Depositary
nor any Depositary's Agent nor the Company assumes any
obligation or shall be subject to any liability hereunder or
under the Deposit Agreement to holders of Receipts other
than that each of them agrees to use good faith in the
performance of such duties as are specifically set forth in
the Deposit Agreement.
Neither the Depositary nor any Depositary's Agent
nor the Company shall be under any obligation to appear in,
prosecute or defend any action, suit or other proceeding
with respect to Series B Preferred 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 Company will be liable for any action or failure to
act by it in reliance upon the advice of or information from
legal counsel, accountants, any person presenting Series B
Preferred 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.
21. Termination of Deposit Agreement. Whenever so
directed by the Company upon at least five Business Days'
prior notice, the Depositary will terminate the Deposit
Agreement, provided, that notice of such termination has
been given 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 the
Deposit Agreement if at any time 45 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 of the Deposit
Agreement. Upon the termination of the Deposit Agreement,
the Company shall be discharged from all obligations
thereunder except for its obligations to the Depositary, any
Depositary's Agent and any Registrar under Sections 5.07 and
5.08 of the Deposit Agreement.
If any Receipts remain outstanding after the date
of termination, the Depositary thereafter shall discontinue
all functions and be discharged from all obligations as
provided in the Deposit Agreement, except as specifically
provided therein.
22. Governing Law. The Deposit Agreement and this
Receipt and all rights thereunder and hereunder and
provisions thereof and hereof 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.
NOTICE OF CONVERSION
The undersigned holder of this Receipt for
Depositary Shares hereby irrevocably exercises the option to
convert that number of whole shares of 7% PRIDES, Series B
Convertible Preferred Stock of the Company represented by [
] Depositary Shares into shares of Common Stock of the
Company and cash for any fractional share amount in
accordance with the terms of and subject to the conditions
of the Series B Preferred Stock, including the Certificate
of Designations in respect thereof, and the Deposit
Agreement, and directs the Depositary to instruct the
Company that the shares of Common Stock deliverable upon
such conversion be registered in the name of, and delivered
together with a check in payment for any fractional shares
of Common Stock to, the undersigned unless a different name
has been indicated below. If the shares of Common Stock are
to be registered in the name of a person other than the
undersigned, the undersigned will pay all transfer and
similar taxes payable with respect thereto. If the number
of whole shares of Series B Preferred Stock represented by
the number of Depositary Shares set forth above is less than
the number of shares of Series B Preferred Stock on deposit
in respect of this Receipt, the undersigned directs that the
Depositary execute and deliver to the undersigned, unless a
different name is indicated below, a new Receipt evidencing
Depositary Shares for the balance of such Series B Preferred
Stock not to be converted.
Dated: _________________________
Signature: _________________
NOTE: The signature on this notice of conversion
must correspond with the name as written upon the
face of this Receipt in every particular without
alteration or enlargement or any change
whatsoever, and must be guaranteed by a commercial
bank, trust company, securities broker or dealer,
credit union, savings association or other
eligible guarantor institution which is a member
of or participant in a signature guarantee program
acceptable to the Depositary.
Name: ______________________________________________________
Address: ___________________________________________________
(Please print names and address of Registered Holder)
Name: ______________________________________________________
Address: ___________________________________________________
(Please indicate other delivery instructions, if applicable)
ASSIGNMENT
FOR VALUE RECEIVED, the undersigned hereby sells,
assigns and transfers unto ____________ the within Receipt
and all rights and interests represented by the Depositary
Shares evidenced thereby, and hereby irrevocably constitutes
and appoints ________________ his attorney, to transfer the
same on the books of the within-named Depositary, with full
power of substitution in the premises.
Dated: Signature: __________________________
NOTE: The signature on this assignment must correspond
with the name as written upon the face of the Receipt in
every particular, without alteration or enlargement, or
any change whatsoever, and must be guaranteed by a
commercial bank, trust company, securities broker or
dealer, credit union, savings association or other
eligible guarantor institution which is a member of or
participant in a signature guarantee program acceptable to
the Depositary.