EXHIBIT 4(u)
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PREMIER PARKS INC.
As Issuer
AND
THE BANK OF NEW YORK
As Depositary
AND
OWNERS AND HOLDERS OF DEPOSITARY RECEIPTS
Deposit Agreement
Dated as of April , 1998
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DEPOSIT AGREEMENT
DEPOSIT AGREEMENT dated as of April , 1998 among PREMIER PARKS INC.,
incorporated under the laws of Delaware (herein called the Issuer), THE BANK OF
NEW YORK, a New York banking corporation (herein called the Depositary), and all
Owners and holders from time to time of Depositary Receipts issued hereunder.
W I T N E S S E T H :
WHEREAS, the Issuer desires to provide, as hereinafter set forth in
this Deposit Agreement, for the deposit of Shares (as hereinafter defined) of
the Issuer with the Depositary for the purposes set forth in this Deposit
Agreement, for the creation of Depositary Shares representing the Shares so
deposited and for the execution and delivery of Depositary Receipts
evidencing the Depositary Shares; and
WHEREAS, the Depositary Receipts are to be substantially in the form of
Exhibit A annexed hereto, with appropriate insertions, modifications and
omissions, as hereinafter provided in this Deposit Agreement;
NOW, THEREFORE, in consideration of the premises, it is agreed by and
between the parties hereto as follows:
ARTICLE I
DEFINITIONS
The following definitions shall for all purposes, unless otherwise
clearly indicated, apply to the respective terms used in this Deposit Agreement:
SECTION 1.1 Depositary Shares.
The term "Depositary Shares" shall mean the securities
representing the interests in the Deposited Securities and evidenced by the
Receipts issued hereunder. Each Depositary Share shall represent 1/500 of a
Share and the same proportional interest in any and all other securities,
property and cash received by the Depositary in respect thereof and held
hereunder, until there shall occur
a change in Deposited Securities covered by Section 4.8 with respect to which
additional Receipts are not executed and delivered, and thereafter Depositary
Shares shall evidence the amount of Shares or Deposited Securities specified in
such Sections.
SECTION 1.2 Article; Section.
Wherever references are made in this Deposit Agreement to an
"Article" or "Articles" or to a "Section" or "Sections", such references shall
mean an article or articles or a section or sections of this Deposit Agreement,
unless otherwise required by the context.
SECTION 1.3 Certificate of Designation.
The term "Certificate of Designation" shall mean the
Certificate of Designation adopted by the Board of Directors of the Issuer
establishing and setting forth the rights, preferences, privileges and
limitations of the Shares.
SECTION 1.4 Closing Price.
The term "Closing Price" of any security shall mean on any
date of determination (i) the closing sale price (or, if no closing sale price
is reported, the last reported sale price) of such security (regular way) on the
New York Stock Exchange (the "NYSE") on such date, (ii) if such security is not
listed for trading on the NYSE on any such date, as reported in the composite
transactions for the principal United States securities exchange on which such
security is so listed, (iii) if such security is not so listed on a United
States national or regional securities exchange, as reported by the NASDAQ Stock
Market, (iv) if such security is not so reported, the last quoted bid price for
such security in the over-the-counter market as reported by the National
Quotation Bureau or similar organization, or (v) if such security is not so
quoted, the average of the mid-point of the last bid and ask prices for such
security from each of at least three nationally recognized investment banking
firms selected by the Issuer for such purpose.
SECTION 1.5 Commission.
The term "Commission" shall mean the Securities and Exchange
Commission of the United States or any successor governmental agency in the
United States.
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SECTION 1.6 Deposit Agreement.
The term "Deposit Agreement" shall mean this Agreement, as the
same may be amended from time to time in accordance with the provisions hereof.
SECTION 1.7 Depositary; Corporate Trust Office.
The term "Depositary" shall mean The Bank of New York, a New
York banking corporation and any successor as depositary hereunder. The term
"Corporate Trust Office", when used with respect to the Depositary, shall mean
the office of the Depositary which at the date of this Agreement is 101 Barclay
Street, New York, New York, 10286.
SECTION 1.8 Deposited Securities.
The term "Deposited Securities" as of any time shall mean
Shares at such time deposited under this Deposit Agreement and any and all
other securities, property and cash received by the Depositary in respect
thereof and at such time held hereunder.
SECTION 1.9 Issuer.
The term "Issuer" shall mean Premier Parks Inc., incorporated
under the laws of Delaware, and its successors.
SECTION 1.10 Owner.
The term "Owner" shall mean the person in whose name a Receipt
is registered on the books of the Depositary maintained for such purpose.
SECTION 1.11 Receipts.
The term "Receipts" shall mean the Depositary Receipts issued
hereunder evidencing Depositary Shares.
SECTION 1.12 Registrar.
The term "Registrar" shall mean any bank or trust company
having an office in the Borough of Manhattan, The City of New York, which shall
be appointed to register Receipts and transfers of Receipts as herein provided.
SECTION 1.13 Restricted Securities.
The term "Restricted Securities" shall mean Shares, or
Receipts evidencing Depositary Shares representing such Shares, which are
acquired directly or indirectly from the Issuer or its affiliates (as defined in
Rule 144 under the Securities Act of 1933) in a transaction or chain of
transactions not involving any public offering or which are subject to resale
limitations under Regulation
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D under that Act or both, or which are held by an officer, director (or persons
performing similar functions) or other affiliate of the Issuer, or which are
subject to other restrictions on sale or deposit under the laws of the United
States, or under a shareholder agreement or the Restated Certificate of
Incorporation or by-laws of the Issuer.
SECTION 1.14 Securities Act of 1933.
The term "Securities Act of 1933" shall mean the United States
Securities Act of 1933, as from time to time amended.
SECTION 1.15 Shares.
The term "Shares" shall mean the Issuer's % Mandatorily
Convertible Preferred Stock, par value $1.00 per share, heretofore validly
issued and outstanding and fully paid, nonassessable and free of any pre-emptive
rights of the holders of outstanding capital stock of the Issuer or hereafter
validly issued and outstanding and fully paid, nonassessable and free of any
pre-emptive rights of the holders of outstanding capital stock of the Issuer or
interim certificates representing such Shares.
SECTION 1.16 Trading Day.
The term "Trading Day" shall mean a business day on which the
security, the Closing Price of which is being determined, (i) is not suspended
from trading on any national or regional securities exchange or association or
over-the-counter market at the close of business and (ii) has traded at least
once on the national or regional securities exchange or association or
over-the-counter market that is the primary market for the trading of such
security.
ARTICLE II
FORM OF RECEIPTS, DEPOSIT OF SHARES,
EXECUTION AND DELIVERY, TRANSFER
AND SURRENDER OF RECEIPTS
SECTION 2.1 Form and Transferability of Receipts.
Definitive Receipts shall be substantially in the form set
forth in Exhibit A annexed to this Deposit Agreement, with appropriate
insertions, modifications and
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omissions, as hereinafter provided. No Receipt shall be entitled to any benefits
under this Deposit Agreement or be valid or obligatory for any purpose, unless
such Receipt shall have been executed by the Depositary by the manual or
facsimile signature of a duly authorized signatory of the Depositary and, if a
Registrar for the Receipts shall have been appointed, countersigned by the
manual or facsimile signature of a duly authorized officer of the Registrar. The
Depositary shall maintain books on which each Receipt so executed and delivered
as hereinafter provided and the transfer of each such Receipt shall be
registered. Receipts bearing the manual or facsimile signature of a duly
authorized signatory of the Depositary who was at any time a proper signatory of
the Depositary shall bind the Depositary, notwithstanding that such signatory
has ceased to hold such office prior to the execution and delivery of such
Receipts by the Registrar or did not hold such office on the date of issuance of
such Receipts.
The Receipts may be endorsed with or have incorporated in the
text thereof such legends or recitals or modifications 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 regulations thereunder or with the
rules and regulations of any securities exchange upon which Depositary Shares
may be listed or to indicate any special limitations or restrictions to which
any particular Receipts are subject by reason of the date of issuance of the
underlying Deposited Securities or otherwise.
Title to a Receipt (and to the Depositary Shares evidenced
thereby), when properly endorsed or accompanied by proper instruments of
transfer, shall be transferable by delivery with the same effect as in the case
of a negotiable instrument; provided, however, that the Depositary,
notwithstanding any notice to the contrary, may treat the Owner thereof 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 2.2 Deposit of Shares.
Subject to the terms and conditions of this Deposit
Agreement, Shares may be deposited by delivery thereof by the Issuer to the
Depositary on any closing date for the sale of the Depositary Shares
representing such Shares to an underwriter in connection with the public
offering of such Depositary Shares, accompanied by any appropriate instrument
or
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instruments of transfer, or endorsement, in form satisfactory to the
Depositary, together with all such certifications as may be required by the
Depositary in accordance with the provisions of this Deposit Agreement, and,
if the Depositary requires, together with a written order directing the
Depositary to execute and deliver to, or upon the written order of, the
Issuer, a Receipt or Receipts for the number of Depositary Shares
representing such deposit. All shares so deposited shall be recorded in the
name of the Depositary on the books of the Issuer.
Deposited Securities shall be held by the Depositary for the
account and to the order of the Depositary or at such other place or places as
the Depositary shall determine.
SECTION 2.3 Execution and Delivery of Receipts.
Upon receipt by the Depositary of any deposit pursuant to
Section 2.2 hereunder (and in addition, if the transfer books of the Issuer are
open, the Depositary may in its sole discretion require a proper acknowledgment
or other evidence from the Issuer that any Deposited Securities have been
recorded upon the books of the Issuer in the name of the Depositary or its
nominee), together with the other documents required as above specified, the
Depositary, subject to the terms and conditions of this Deposit Agreement, shall
execute and deliver at its Corporate Trust Office, to or upon the written order
of the Issuer,
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a Receipt or Receipts, registered in the name or names and evidencing any
authorized number of Depositary Shares deliverable in respect of such deposit
requested by the Issuer, but only upon payment to the Depositary of all taxes
and governmental charges and stock transfer and registration fees payable in
connection with such deposit and the transfer of the Deposited Securities.
SECTION 2.4 Transfer of Receipts; Combination and Split-up of Receipts.
The Depositary, subject to the terms and conditions of this
Deposit Agreement, shall register transfers of Receipts on its transfer books
from time to time, upon any surrender of a Receipt, by the Owner in person or by
a duly authorized attorney, properly endorsed or accompanied by proper
instruments of transfer, and duly stamped as may be required by the laws of the
State of New York and of the United States of America. Thereupon the Depositary
shall execute a new Receipt or Receipts and deliver the same to or upon the
order of the person entitled thereto.
The Depositary, subject to the terms and conditions of this
Deposit Agreement, shall upon surrender of a Receipt or Receipts for the purpose
of effecting a split-up or combination of such Receipt or Receipts, execute and
deliver a new Receipt or Receipts for any authorized number of Depositary Shares
requested, evidencing the same aggregate number of Depositary Shares as the
Receipt or Receipts surrendered.
The Depositary may appoint one or more co-transfer agents for
the purpose of effecting transfers, combinations and split-ups of Receipts at
designated transfer offices on behalf of the Depositary. In carrying out its
functions, a co-transfer agent may require evidence of authority and compliance
with applicable laws and other requirements by Owners or persons entitled to
Receipts and will be entitled to protection and indemnity to the same extent as
the Depositary.
SECTION 2.5 Surrender of Receipts and Withdrawal of Shares.
Upon surrender at the Corporate Trust Office of the Depositary
of a Receipt for the purpose of withdrawal of the Deposited Securities (it being
understood that, with
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respect to any withdrawal of Shares, only whole Shares may be withdrawn)
represented by the Depositary Shares evidenced by such Receipt, and upon payment
of all taxes and governmental charges payable in connection with such surrender
and withdrawal of the Deposited Securities, and subject to the terms and
conditions of this Deposit Agreement, the Owner of such Receipt shall be
entitled to delivery, to him or upon his order, of the amount of Deposited
Securities at the time represented by the Depositary Shares evidenced by such
Receipt. Delivery of such Deposited Securities may be made by the delivery of
(i) certificates for Shares being withdrawn in the name of such Owner or as
ordered by him or by certificates for Shares being withdrawn properly endorsed
or accompanied by proper instruments of transfer to such Owner or as ordered by
him and (ii) any other securities, property and cash to which such Owner is then
entitled in respect of such Receipt to such Owner or as ordered by him. Such
delivery shall be made, as hereinafter provided, without unreasonable delay.
A Receipt surrendered for such purposes may be required by the
Depositary to be properly endorsed in blank or accompanied by proper instruments
of transfer in blank, and if the Depositary so requires, the Owner thereof shall
execute and deliver to the Depositary a written order directing the Depositary
to cause the Deposited Securities being withdrawn to be delivered to or upon the
written order of a person or persons designated in such order. Thereupon the
Depositary shall, subject to Sections 2.6, 3.1 and 3.2 and to the other terms
and conditions of this Deposit Agreement, deliver at the Corporate Trust Office
to or upon the written order of the person or persons designated in the order
delivered to the Depositary as above provided, the amount of Deposited
Securities represented by the Depositary Shares evidenced by such Receipt.
SECTION 2.6 Limitations on Execution and Delivery, Transfer and
Surrender of Receipts.
As a condition precedent to the execution and delivery,
registration of transfer, split-up, combination or surrender of any Receipt or
withdrawal of any Deposited Securities or the exercise of any conversion right
referred to in Section 2.10, the Depositary, any of the Depositary's agents or
the Registrar may require any or all of the following: (i) payment to it of a
sum sufficient to reimburse it for any tax or other governmental charge and any
stock transfer or registration fee with respect thereto
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(including any such tax or charge and fee with respect to Shares being deposited
or withdrawn or with respect to the Common Stock (as defined in Section 2.9) of
the Issuer being delivered upon conversion); (ii) the production of proof
satisfactory to it as to the identity and genuineness of any signature and (iii)
compliance with any regulations the Depositary may establish consistent with the
provisions of this Deposit Agreement, including, without limitation, this
Section 2.6.
The transfer of Receipts in particular instances may be
refused or the registration of transfer of outstanding Receipts generally may
be suspended, during any period when the transfer books of the Depositary are
closed, or if any such action is deemed necessary or advisable by the
Depositary or the Issuer 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, with the approval of
the Issuer, for any other reason. Notwithstanding any other provision of this
Deposit Agreement or the Receipts, the surrender of outstanding Receipts and
withdrawal of Deposited Securities may not be suspended subject only to (i)
temporary delays caused by closing the transfer books of the Depositary or
the Issuer or the payment of dividends, (ii) the payment of taxes, stock
transfer or registration fees and similar charges, and (iii) compliance with
any U.S. laws or governmental regulations relating to the Receipts or to the
withdrawal of the Deposited Securities.
SECTION 2.7 Lost Receipts, etc.
In case any Receipt shall be mutilated, destroyed, lost or
stolen, the Depositary shall execute and deliver a new Receipt of like tenor in
exchange and substitution for such mutilated Receipt upon cancelation thereof,
or in lieu of and in substitution for such destroyed, lost or stolen Receipt.
Before the Depositary shall execute and deliver a new Receipt in substitution
for a destroyed, lost or stolen Receipt, the Owner thereof shall have (i) filed
with the Depositary (a) a request for such execution and delivery before the
Depositary has notice that the Receipt has been acquired by a bona fide
purchaser and (b) a sufficient indemnity bond and (ii) satisfied any other
reasonable requirements imposed by the Depositary.
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SECTION 2.8 Cancelation and Destruction of Surrendered Receipts.
All Receipts surrendered to the Depositary shall be canceled
by the Depositary. The Depositary is authorized to destroy Receipts so canceled.
SECTION 2.9 Mandatory Conversion of Shares into Common Stock.
On the date fixed for mandatory conversion of the Shares by
the Certificate of Designation (the "Mandatory Conversion Date"), all then
outstanding Shares other than Shares represented by Depositary Shares shall
mandatorily convert into (i) shares of common stock, par value $0.05 per
share (the "Common Stock"), of the Issuer at the applicable rate specified in
the Certificate of Designation, (ii) cash in lieu of fractional shares of
Common Stock otherwise deliverable by the Issuer upon such conversion and
(iii) the right to receive amounts in cash equal to all accrued and unpaid
dividends on such Shares to the Mandatory Conversion Date (other than
previously declared dividends payable to a holder of record of the Shares as
of a prior date), all as provided in and subject to the Certificate of
Designation.
From and after the Mandatory Conversion Date, Shares
represented by Depositary Shares shall also be mandatorily converted, and
such Depositary Shares shall be deemed no longer outstanding and all rights
of the Owners of the Receipts evidencing such Depositary Shares (except the
right to receive (i) the Common Stock to which such Owner is entitled upon
conversion, (ii) any cash payable with respect to any fractional shares of
Common Stock otherwise deliverable by the Depositary upon conversion, (iii)
any cash for accrued and unpaid dividends on such Shares (other than
previously declared dividends payable to an Owner as of a prior date) and
(iv) any other securities, property or cash to which such Owner is entitled
hereunder) shall cease and terminate. Upon surrender of the Receipts
evidencing such Depositary Shares at the Corporate Trust Office or at such
office or to such agent of the Depositary as the Depositary may designate for
such purpose (properly endorsed or assigned for transfer, as the Depositary
or such agent shall so require), such Depositary Shares shall be converted
into, subject to adjustment as provided in the Certificate of Designation and
this Deposit Agreement, (i) a number of shares of Common Stock per Depositary
Share equal to one-five hundredth of the number (including fractional shares)
of shares of Common Stock which each Share converted into at the applicable
rate
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specified in the Certificate of Designation, (ii) cash in lieu of fractional
shares of Common Stock otherwise deliverable by the Depositary upon such
conversion, calculated in accordance with Section 4.12 hereof, (iii) the right
to receive cash for any accrued and unpaid dividends on the Shares represented
by such Depositary Shares (other than previously declared dividends payable to
an Owner as of a prior date) and (iv) the right to receive any other securities,
property or cash to which Owners are entitled hereunder.
On the Mandatory Conversion Date, for each Owner of a
Receipt or Receipts, the Issuer shall deposit with the Depositary (i)
certificates for the number of shares of Common Stock and (ii) the amount of
cash in lieu of fractional shares determined as set forth in the preceding
paragraph into which the Depositary Shares evidenced by such Receipt or
Receipts shall convert on the Mandatory Conversion Date (assuming proper
surrender of such Receipt or Receipts to the Depositary or any of its agents)
and (iii) subject to the Certificate of Designation, an amount in cash equal
to all accrued and unpaid dividends on the Shares represented by such
Depositary Shares to the Mandatory Conversion Date (other than previously
declared dividends payable to an Owner as of a prior date). With respect to
Owners which hold a Receipt or Receipts eveidencing more than one Depositary
Share on the Mandatory Conversion Day, the number of shares of Common Stock
and the amount of cash in lieu of fractional shares to be deposited by the
Issuer with the Depositary on that date shall be computed on the basis of the
aggregate number of Depositary Shares evidenced by such Receipt or Receipts.
Using such shares of Common Stock and cash, the Depositary shall as promptly
as practicable deliver to each Owner of a Receipt or Receipts which properly
delivers such Receipt or Receipts to the Depositary or any of its agents
certificates for the number of shares of Common Stock and the amount of cash,
without interest, to which such Owner is entitled pursuant to the preceding
provisions.
No fractional shares of Common Stock will be delivered by the
Depositary in connection with mandatory conversion of Shares represented by
Depositary Shares on the Mandatory Conversion Date.
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SECTION 2.10 Optional Conversion of Shares into Common Stock.
Subject to the terms and conditions of this Deposit
Agreement, an Owner of a Receipt or Receipts evidencing Depositary Shares
representing whole or fractional Shares may surrender such Receipt or
Receipts at the Corporate Trust Office or at such office or to such agents of
the Depositary as the Depositary may designate for such purpose, together
with a notice of conversion duly completed and executed, thereby directing
the Depositary or any such agent to instruct the Issuer to cause the
conversion (which may include partial conversions) of the number of Shares
(which instruction may be given by reference to the number of Depositary
Shares representing such Shares) specified in such notice of conversion into
shares of Common Stock at the rate specified in the Certificate of
Designation, and an assignment of such Receipt or Receipts to the Issuer or
in blank, duly completed and executed (and, if such conversion is to occur
after the close of business on a record date for any payment of declared
dividends on the Shares and before the opening of business on the next
succeeding dividend payment date, payment in cash of an amount equal to the
dividend payable on such date on the Shares so converted). To the extent that
an Owner delivers to the Depositary for conversion a Receipt or Receipts
evidencing Depositary Shares representing Shares which in the aggregate
(including fractional Shares) would result in a fractional share of Common
Stock being deliverable by the Issuer upon such Shares' conversion at the
rate specified in the Certificate of Designation, the Issuer shall deliver to
such Owner payment in cash in lieu of such fractional share of Common Stock,
calculated in accordance with Section 4.12 hereof. If a Receipt or Receipts
eveidencing more than one Depositary Share shall be surrendered for
conversion of the Shares represented thereby at one time by the same Owner,
the number of shares of Common Stock and the amount of cash in lieu of
fractional shares deliverable by the Issuer upon such conversion shall be
computed on the basis of the aggregate number of Shares (including fractional
Shares) represented by Depositary Shares evidenced by the Receipt or Receipts
so surrendered.
Upon receipt by the Depositary or an agent of the Depositary
of a Receipt or Receipts, together with a notice of conversion, duly completed
and executed, directing the Depositary or such agent to instruct the Issuer to
cause the conversion (which may be a partial conversion) of a specified number
of Shares (which instruction may be by
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reference to the number of Depositary Shares representing such Shares) at the
rate specified in the Certificate of Designation, and an assignment of such
Receipt or Receipts to the Issuer or in blank, duly completed and executed, the
Depositary or such agent shall instruct the Issuer, subject to adjustment as
provided in the Certificate of Designation and this Deposit Agreement, (i) to
cause the conversion (which may be a partial conversion) at the rate specified
in the Certificate of Designation of the number of Shares represented by the
Depositary Shares evidenced by the Receipt or Receipts so surrendered for
conversion as specified in the written notice to the Depositary or such agent
and (ii) to cause the delivery to the Owner of such Receipt or Receipts of (a) a
certificate or certificates evidencing the number of whole shares of Common
Stock into which the Shares (including fractional Shares) represented by the
Depositary Shares evidenced by such Receipt or Receipts have been converted, and
(b) the amount of cash to which such Owner is entitled in lieu of fractional
shares of Common Stock otherwise deliverable by the Issuer upon such conversion,
calculated in accordance with Section 4.12 hereof. The Issuer shall as promptly
as practicable after receipt thereof cause the delivery of the certificate or
certificates and cash referred to in (a) and (b) above, and such conversion
shall be deemed to have been effected immediately prior to the close of business
on the date of such receipt and shall occur at the rate specified in the
Certificate of Designation in effect at such time and on such date. Upon such
conversion, the Depositary or such agent (i) shall deliver to the Owner a
Receipt evidencing the number of Depositary Shares evidenced by the surrendered
Receipt or Receipts over the number of Depositary Shares evidenced by such
Receipt or Receipts that have been so converted, (ii) shall cancel the
Depositary Shares evidenced by Receipts surrendered for conversion and (iii)
shall deliver to the Issuer or its transfer agent for the Shares for cancelation
the number of Shares (including fractional Shares) represented by the Depositary
Shares evidenced by the Receipts so surrendered and so converted. Upon the
delivery of the Shares to be canceled due to such conversion by the Depositary
or such agent to the Issuer or its transfer agent, the Issuer or its transfer
agent shall deliver to the Depositary or such agent, as applicable, a
certificate or certificates evidencing the number of Shares, if any, that equals
the excess of the number of Shares evidenced by the surrendered certificate over
the number of Shares evidenced by that certificate that have been so
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converted. Depositary Shares converted in connection with conversion of the
Shares represented thereby shall only be converted in whole, and not in part.
The Owner of a Receipt or Receipts on any dividend payment
record date established by the Depositary as provided in Section 4.6 hereof
shall be entitled to receive the dividend payable with respect to the Depositary
Shares evidenced by such Receipt or Receipts on the dividend payment date
notwithstanding the conversion (which may be a partial conversion) subsequent to
such record date of the Shares represented by such Depositary Shares. However,
if a Receipt or Receipts are surrendered for conversion after the close of
business on a dividend payment record date established by the Depositary and
before the opening of business on the next succeeding dividend payment date, the
Owner of such Receipt or Receipts shall pay to the Depositary an amount equal to
the dividend payable on such dividend payment date on the Depositary Shares
evidenced by the Receipt or Receipts being surrendered for conversion. Any Owner
of a Receipt or Receipts on a dividend payment record date established by the
Depositary who (or whose transferee) surrenders such Receipt or Receipts with
instructions to the Depositary for conversion of the underlying Shares on the
next succeeding dividend payment date shall receive the dividend payable with
respect to the Depositary Shares evidenced by such Receipt or such Receipts and
shall not be required to include payment of the amount of such dividend on such
Depositary Shares upon surrender of such Receipt or Receipts for conversion.
Upon the conversion of any Share for which a notice of
conversion has been provided to the Depositary or an agent of the Depositary by
the Owner of the Receipt or Receipts evidencing the Depositary Shares
representing such Share, dividends shall cease to become payable on such
Depositary Shares, such Depositary Shares shall be deemed no longer outstanding,
all rights of the Owner of the Receipt or Receipts evidencing such Depositary
Shares (except the right to receive (i) the Common Stock to which such Owner is
entitled upon conversion, (ii) any cash payable with respect to any fractional
shares of Common Stock otherwise deliverable by the Issuer upon conversion,
(iii) any Receipts evidencing Depositary Shares representing Shares which were
not so converted and (iv) any other securities, property or cash to which such
Owner is entitled hereunder)
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shall cease and terminate, and the Receipt or Receipts evidencing such
Depositary Shares shall be cancelled.
No fractional shares of Common Stock shall be deliverable by
the Issuer upon conversion of the Shares represented by the Depositary Shares.
ARTICLE III
CERTAIN OBLIGATIONS OF OWNERS OF RECEIPTS
SECTION 3.1 Filing Proofs, Certificates and Other
Information.
Any Owner of a Receipt may be required from time to time to
file with the Depositary such proof of citizenship or residence, to execute
such certificates and to make such representations and warranties, as the
Depositary may deem necessary or proper. The Depositary may withhold the
registration of transfer of any Receipt or the distribution of any dividend
or sale or distribution of rights or of the proceeds thereof or the delivery
of any Deposited Securities or the exercise of any conversion right referred
to in Section 2.9 and 2.10 or the delivery of any Common Stock upon such
conversion until such proof or other information is filed or such
certificates are executed or such representations and warranties made.
SECTION 3.2 Liability of Owner for Taxes.
If any tax or other governmental charge shall become payable
with respect to any Receipt or any Deposited Securities represented by
Depositary Shares evidenced by any Receipt or with respect to any conversion
right referred to in Section 2.10, such tax or other governmental charge shall
be payable by the Owner of such Receipt to the Depositary. The Depositary may
refuse to effect any transfer of such Receipt or any withdrawal of Deposited
Securities represented by Depositary Shares evidenced by such Receipt or any
such conversion until such payment is made, and may withhold any dividends or
other distributions, or may sell for the account of the Owner thereof any part
or all of the Deposited Securities represented by the Depositary Shares
evidenced by such Receipt, and may apply such dividends or other distributions
or the proceeds of any such sale in payment of such tax or other governmental
charge and the
15
Owner of such Receipt shall remain liable for any deficiency.
SECTION 3.3 Warranties on Deposit of Shares.
The Issuer, upon depositing Shares under this Deposit
Agreement, shall be deemed thereby to represent and warrant that such Shares
and each certificate therefor are validly issued, fully paid, nonassessable
and free of any pre-emptive rights of the holders of outstanding capital
stock of the Issuer and that the person making such deposit is duly
authorized so to do. The Issuer shall also be deemed to represent that the
deposit of such Shares and the sale of Receipts evidencing Depositary Shares
representing Shares by the Issuer are not restricted under the Securities Act
of 1933. Such representations and warranties shall survive the deposit of
Shares and issuance of Receipts.
ARTICLE IV
THE DEPOSITED SECURITIES
SECTION 4.1 Cash Distributions.
Whenever the Depositary shall receive any cash dividend or
other cash distribution on any Deposited Securities (other than cash dividends
or cash distributions paid by the Issuer to the Depositary in lieu of fractional
shares of Common Stock otherwise deliverable by the Issuer upon conversion of
the Depositary Shares or in payment of dividends on the Depositary Shares), the
Depositary shall distribute the dividend or distribution thus received to the
Owners entitled thereto, in proportion, insofar as practicable, to the number of
Depositary Shares representing such Deposited Securities held by them
respectively. In the event that the Issuer or the Depositary shall be required
to withhold and does withhold from any such cash dividend or such other cash
distribution an amount on account of taxes, the amount distributed to the Owner
of the Receipts evidencing Depositary Shares representing such Deposited
Securities shall be reduced accordingly. The Depositary shall distribute only
such amount, however, as can be distributed without attributing to any Owner a
fraction of one cent. Any such fractional amounts shall be rounded to the
nearest whole cent and so distributed to Owners entitled thereto. The Depositary
will forward to the Issuer or its
16
agent such information from its records as the Issuer may reasonably request to
enable the Issuer or its agent to file necessary reports with governmental
agencies.
SECTION 4.2 Regular Share Dividends Payable in Common
Stock.
Pursuant to and subject to the terms of the Certificate of
Designation, the Issuer may pay dividends (in whole or in part) on the Shares
through the delivery of shares of Common Stock, so long as shares of Common
Stock delivered in payment of a dividend are delivered on the regular dividend
payment date (as set forth in the Certificate of Designation) for such dividend.
Dividends paid by the Issuer on Shares represented by Depositary Shares shall be
paid to the Depositary, as record holder of such Shares (assuming the Depositary
was also the record holder for such Shares on the related record date for such
dividend payment). The Depositary shall distribute, on the related regular
dividend payment date, shares of Common Stock paid to it by the Issuer as
dividends on the Shares to persons who were Owners on the related record date
for such dividend, as established by the Depositary in accordance with Section
4.6 hereof. The Depositary shall distribute to each such Owner on such date, for
each Depositary Share evidenced by a Receipt or Receipts held by such Owner on
the related record date for such dividend (it being understood that the number
of fractional shares of Common Stock to which such Owner is entitled with
respect to such dividend shall be determined on the basis of its aggregate
holdings of such Depositary Shares), (i) a number of shares (subject to clause
(ii) of this sentence) of Common Stock equal to one-five hundredth of the number
of shares of Common Stock (including fractional shares) payable per Share in
payment of the related dividend as determined pursuant to the Certificate of
Designation and (ii) the amount of cash to which such Owner is entitled in lieu
of fractional shares of Common Stock otherwise distributable by the Depositary
under clause (i), calculated in accordance with Section 4.12 hereof. The Issuer
shall deposit with the Depositary, on or prior to the regular dividend payment
date (as set forth in the Certificate of Designation) for any dividend which the
Issuer has elected to pay in whole or in part in shares of Common Stock, for
each Owner which held a Receipt or Receipts on the related record date for such
dividend as established by the Depositary, (i) certificates for the number of
shares of Common Stock and (ii) the amount of cash
17
in lieu of fractional shares to which such Owner is entitled pursuant to the
preceding sentence.
No fractional shares of Common Stock will be delivered by the
Depositary to persons who were Owners on the related record date for a dividend
on the Shares in connection with the Depositary's distribution of a dividend on
the Shares paid by the Issuer to it in shares of Common Stock.
SECTION 4.3 Distributions Other Than Cash, Share Dividends Paid in
Common Stock, Shares or Rights.
Subject to the provisions of Section 4.8, whenever the
Depositary shall receive any distribution other than a distribution described in
Sections 4.1, 4.2, 4.4 or 4.5, the Depositary shall cause the securities or
property received by it to be distributed to the Owners entitled thereto, in
proportion to the number of Depositary Shares representing Deposited Securities
held by them respectively, in any manner that the Depositary may deem equitable
and practicable for accomplishing such distribution; provided, however, that if
in the opinion of the Depositary such distribution cannot be made
proportionately among the Owners entitled thereto, or if for any other reason
(including, but not limited to, any requirement that the Issuer or the
Depositary withhold an amount on account of taxes or other governmental charges
or that such securities must be registered under the Securities Act of 1933 in
order to be distributed to Owners or holders) the Depositary deems such
distribution not to be feasible, the Depositary may adopt such method as it may
deem equitable and practicable for the purpose of effecting such distribution,
including, but not limited to, the public or private sale of the securities or
property thus received, or any part thereof, and the net proceeds of any such
sale shall be distributed by the Depositary to the Owners entitled thereto as in
the case of a distribution received in cash pursuant to Section 4.1.
SECTION 4.4 Distributions in Shares.
If any distribution upon any Deposited Securities consists of
a dividend in, or free distribution of, Shares, the Depositary may, and shall if
the Issuer shall so request, distribute to the Owners of outstanding Receipts
entitled thereto, in proportion to the number of Depositary Shares representing
such Deposited Securities held by them respectively, additional Receipts
evidencing an aggregate number of Depositary Shares representing the amount of
18
Shares received as such dividend or free distribution, subject to the terms and
conditions of the Deposit Agreement with respect to the deposit of Shares and
the issuance of Depositary Shares evidenced by Receipts, including the
withholding of any tax or other governmental charge as provided in Section 4.10.
In lieu of delivering Receipts for fractional Depositary Shares in any such
case, the Depositary shall sell the amount of Shares represented by the
aggregate of such fractions and distribute the net proceeds, all in the manner
and subject to the conditions described in Section 4.1, or, if the Depositary
deems such sale and distribution not feasible, the Depositary may adopt such
method as it shall deem equitable and practicable in substitution for delivering
Receipts for fractional Depositary Shares.
SECTION 4.5 Rights.
In the event that the Issuer shall offer or cause to be
offered to the holders of any Deposited Securities any rights to subscribe for
additional Shares or any rights of any other nature, the Depositary shall have
discretion as to the procedure to be followed in making such rights available to
any Owners or in disposing of such rights on behalf of any Owners and making the
net proceeds available to such Owners or, if by the terms of such rights
offering or for any other reason, the Depositary may not either make such rights
available to any Owners or dispose of such rights and make the net proceeds
available to such Owners, then the Depositary shall allow the rights to lapse.
If at the time of the offering of any rights the Depositary determines in its
discretion that it is lawful and feasible to make such rights available to all
Owners or to certain Owners but not to other Owners, the Depositary may
distribute to any Owner to whom it determines the distribution to be lawful and
feasible, in proportion to the number of Depositary Shares held by such Owner,
warrants or other instruments therefor in such form as it deems appropriate.
In circumstances in which rights would otherwise not be
distributed, if an Owner of Receipts requests the distribution of warrants or
other instruments in order to exercise the rights allocable to the Depositary
Shares of such Owner hereunder, the Depositary will make such rights available
to such Owner upon written notice from the Issuer to the Depositary that (i) the
Issuer has elected in its sole discretion to permit such rights to be exercised
and (ii) such Owner has executed such documents as the Issuer
19
has determined in its sole discretion are reasonably required under applicable
law.
If the Depositary has distributed warrants or other
instruments for rights to all or certain Owners, then upon instruction from such
an Owner pursuant to such warrants or other instruments to the Depositary from
such Owner to exercise such rights, upon payment by such Owner to the Depositary
for the account of such Owner of an amount equal to the purchase price of the
Shares to be received upon the exercise of the rights, and upon payment of any
other charges as set forth in such warrants or other instruments, the Depositary
shall, on behalf of such Owner, exercise the rights and purchase the Shares, and
the Issuer shall cause the Shares so purchased to be delivered to the Depositary
on behalf of such Owner. As agent for such Owner, the Depositary shall cause the
Shares so purchased to be deposited pursuant to Section 2.2 of this Deposit
Agreement, and shall, pursuant to Section 2.3 of this Deposit Agreement, execute
and deliver Receipts to such Owner. In the case of a distribution pursuant to
the second paragraph of this section, such Receipts shall be legended in
accordance with applicable U.S. laws, and shall be subject to the appropriate
restrictions on sale, deposit, cancelation, and transfer under such laws.
If the Depositary determines in its discretion that it is not
lawful and feasible to make such rights available to all or certain Owners, it
may sell the rights, warrants or other instruments in proportion to the number
of Depositary Shares held by the Owners to whom it has determined it may not
lawfully or feasibly make such rights available, and allocate the net proceeds
of such sales (net of all taxes and governmental charges payable in connection
with such rights and subject to the terms and conditions of this Deposit
Agreement) for the account of such Owners otherwise entitled to such rights,
warrants or other instruments, upon an averaged or other practical basis without
regard to any distinctions among such Owners because of exchange restrictions or
the date of delivery of any Receipt or otherwise.
The Depositary will not offer rights to Owners unless both the
rights and the securities to which such rights relate are either exempt from
registration under the Securities Act of 1933 with respect to a distribution to
Owners or are registered under the provisions of such Act.
20
If an Owner of Receipts requests distribution of warrants or other instruments,
notwithstanding that there has been no such registration under such Act, the
Depositary shall not effect such distribution unless it has received an opinion
from recognized counsel in the United States for the Issuer upon which the
Depositary may rely that such distribution to such Owner is exempt from such
registration.
The Depositary shall not be responsible for any failure to
determine that it may be lawful or feasible to make such rights available to
Owners in general or any Owner in particular.
SECTION 4.6 Fixing of Record Date.
Whenever any cash dividend or other cash distribution or any
dividend to be paid by the Issuer in shares of Common Stock shall become payable
or any distribution other than cash shall be made, or whenever rights,
preferences or privileges shall be offered or issued with respect to the
Deposited Securities, or whenever for any reason the Depositary causes a change
in the number of Shares that are represented by each Depositary Share, or
whenever the Depositary shall receive notice of any meeting at which holders of
Shares are entitled to vote or of which holders of Shares are entitled to
notice, the Depositary shall fix a record date (which shall be the same date as
the record date fixed by the Issuer in respect of the Shares) (i) for the
determination of the Owners who shall be (a) entitled to receive such dividend,
distribution, rights, preferences or privileges or the net proceeds of the sale
thereof or (b) entitled to give instructions for the exercise of voting rights
at any such meeting, or (ii) on or after which each Depositary Share will
represent the changed number of Shares.
SECTION 4.7 Voting of Deposited Securities.
Upon receipt of notice of any meeting at which the holders of
Shares are entitled to vote, the Depositary shall, as soon as practicable
thereafter, mail to the Owners a notice, which shall be provided by the Issuer
and which shall contain (i) such information as is contained in such notice of
meeting, and (ii) a statement that the Owners as of the close of business on a
specified record date fixed pursuant to Section 4.6 shall be entitled, subject
to any applicable provision of law, the Restated Certificate of Incorporation or
the by-laws of the Issuer, to instruct the Depositary as to the exercise of the
voting rights
21
pertaining to the amount of Shares or other Deposited Securities represented by
their respective Depositary Shares and (iii) a statement as to the manner in
which such instructions may be given. Upon the written request of an Owner on
such record date, the Depositary shall endeavor, in so far as practicable, to
vote or cause to be voted the amount of Shares or other Deposited Securities
represented by the Depositary Shares evidenced by such Receipt in accordance
with the instructions set forth in such request. The Issuer hereby agrees to
take all reasonable action that may be deemed necessary by the Depositary in
order to enable the Depositary to vote such Shares or cause such Shares to be
voted. In the absence of specific instructions from the Owner of a Receipt, the
Depositary will abstain from voting to the extent of the Shares represented by
the Depositary Shares evidenced by such Receipt.
SECTION 4.8 Changes Affecting Deposited Securities.
In circumstances where the provisions of Section 4.3 do not
apply, upon any change in nominal value, change in par value, split-up,
consolidation or any other reclassification of Deposited Securities, or upon any
recapitalization, reorganization, merger or consolidation or sale of assets
affecting the Issuer or to which it is a party, any securities which shall be
received by the Depositary in exchange for or in conversion of or in respect of
Deposited Securities, shall be treated as new Deposited Securities under this
Deposit Agreement, and Depositary Shares evidenced by Receipts then outstanding
shall thenceforth represent the proportionate interest of Owners thereof in the
new Deposited Securities so received in exchange or conversion, unless
additional Receipts are delivered pursuant to the following sentence. In any
such case the Depositary may, and shall if the Issuer shall so request, execute
and deliver additional Receipts as in the case of a dividend in Shares, or call
for the surrender of outstanding Receipts to be exchanged for new Receipts
specifically describing such new Deposited Securities.
SECTION 4.9 Reports.
The Depositary shall make available for inspection by Owners
at its Corporate Trust Office any reports and communications, including any
proxy soliciting material, received from the Issuer which are both (i) received
by the Depositary as the holder of the Deposited Securities and (ii) made
generally available to the holders of such Deposited Securities by the Issuer.
The Issuer agrees that
22
it shall deliver to the Depositary, and the Depositary shall, promptly after
receipt thereof, transmit to the Owners of the Receipts, in each case at the
address recorded in the Depositary's books, copies of all notices and reports
(including financial statements) required by law, by the rules of any national
securities exchange upon which the Depositary Shares are listed or by the
Restated Certificate of Incorporation or the Certificate of Designation to be
furnished by the Issuer to holders of Shares. Such transmission shall be at the
Issuer's expense and the Issuer shall 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 Owners of Receipts at the Issuer's expense
such other documents as may be requested by the Issuer.
SECTION 4.10 Lists of Owners.
Promptly upon request by the Issuer, the Depositary shall, at
the expense of the Issuer, furnish to it a list, as of a recent date, of the
names, addresses and holdings of Depositary Shares by all persons in whose names
Receipts are registered on the books of the Depositary.
SECTION 4.11 Withholding.
In the event that the Depositary determines that any
distribution in property (including Shares and rights to subscribe therefor) is
subject to any tax or other governmental charge which the Depositary is
obligated to withhold, the Depositary may by public or private sale dispose of
all or a portion of such property (including Shares and rights to subscribe
therefor) in such amounts and in such manner as the Depositary deems necessary
and practicable to pay any such taxes or charges and the Depositary shall
distribute the net proceeds of any such sale after deduction of such taxes or
charges to the Owners entitled thereto.
SECTION 4.12 Fractional Shares.
No fractional shares of Common Stock will be delivered by the
Issuer or the Depositary, as applicable, to the Owners of Receipts upon
mandatory or optional conversion into shares of Common Stock.
In lieu of any fractional share otherwise deliverable in
respect of the aggregate number of Depositary Shares evidenced by a Receipt
or Receipts of any Owner that are converted upon mandatory conversion, such
Owner shall be entitled to receive an amount in cash equal to the same
fraction of the Closing
23
Price (as defined in Section 1.1 hereof) of the Common Stock as of the fifth
Trading Day (as defined in Section 1.1 hereof) immediately preceding the
Mandatory Conversion Date.
In lieu of any fractional share otherwise deliverable in
respect of the aggregate number of Shares represented by Depositary Shares
evidenced by a Receipt or Receipts of any Owner that are converted upon any
optional conversion, such Owner shall be entitled to receive an amount in
cash equal to the same fraction of the Closing Price of the Common Stock as
of the second Trading Day immediately preceding the effective date of
conversion.
If a Receipt or Receipts evidencing more than one
Depositary Share are surrendered for conversion at one time by or for the
same Owner, the number of shares of Common Stock and the amount of cash in
lieu of fractional shares deliverable upon conversion shall be computed on
the basis of the aggregate number of Depositary Shares evidenced by the
Receipt or Receipts so surrendered.
No fractional shares of Common Stock will be delivered by the
Depositary to persons who were Owners on the related record date for a dividend
on the Shares in connection with the Depositary's distribution of a dividend on
the Shares paid by the Issuer to it in shares of Common Stock. In lieu of any
fractional share otherwise so deliverable, such Owners shall be entitled to
receive an amount in cash equal to the same fraction of the Closing Price of the
Common Stock determined as of the fifth Trading Day immediately preceding the
dividend payment date. On the Mandatory Conversion Date, the fractional share of
Common Stock that any Owner would otherwise be entitled to receive shall be
determined by adding all the fractional shares such Owner would be entitled to
receive (i) on the mandatory conversion of all Depositary Shares evidenced by
Receipts held by such Owner and (ii) on the payment of the regular quarterly
dividend on all Depositary Shares evidenced by Receipts held by such Owner at
the related record date. On the Mandatory Conversion Date, the Issuer may, at
its option, deliver any whole number of shares of Common Stock resulting from
the addition of fractional shares resulting from (i) and (ii) above in shares of
Common Stock and any remaining fractional shares in cash.
In the event that (i) mandatory conversion of the Depositary
Shares, (ii) voluntary conversions of the Shares represented by the Depositary
Shares, (iii) the Depositary's delivery of shares of Common Stock as dividends
on the Depositary Shares to persons who were Owners of the Receipts
24
evidencing such Depositary Shares on the related record date for such
dividend, (iv) the combination of (i) and (iii) pursuant to the preceding
paragraph or (v) some combination of the foregoing result in any Owner of
Receipts evidencing Depositary Shares being entitled to cash in lieu of a
fractional share on the same date, the Issuer will deliver (either directly
or through the Depositary, as applicable) to all such Owners cash in an
amount equal to the total amount of cash to which all such Owners of Receipts
are entitled in lieu of fractional shares on such date.
If payment in cash in lieu of fractional shares of Common
Stock in accordance with the preceding six paragraphs would result in the
Issuer's failure to be in compliance with any debt instrument to which it is a
party, the Issuer shall be entitled to deliver (either directly or through the
Depositary, as applicable) a whole share of Common Stock in lieu of cash to
Owners entitled to fractional shares of Common Stock (beginning with the Owners
entitled to the largest fractional shares) until delivery of cash in lieu of
fractional shares of Common Stock to the remaining Owners would no longer result
in the Issuer's failure to be in compliance with such debt instrument.
ARTICLE V
THE DEPOSITARY AND THE ISSUER
SECTION 5.1 Maintenance of Office and Transfer Books by the Depositary.
Until termination of this Deposit Agreement in accordance with
its terms, the Depositary shall maintain in the Borough of Manhattan, The City
of New York, facilities for the execution and delivery, registration,
registration of transfers and surrender of Receipts in accordance with the
provisions of this Deposit Agreement.
The Depositary shall keep books for the registration of
Receipts and transfers of Receipts which at all reasonable times shall be open
for inspection by the Owners, provided that such inspection shall not be for the
purpose of communicating with Owners in the interest of a business or object
other than the business of the Issuer or a matter related to this Deposit
Agreement or the Receipts.
25
The Depositary may close the transfer books, at any time or
from time to time, when deemed expedient by it in connection with the
performance of its duties hereunder.
If any Receipts or the Depositary Shares evidenced thereby are
listed on one or more stock exchanges in the United States, the Depositary shall
act as Registrar or appoint a Registrar or one or more co-registrars for
registry of such Receipts in accordance with any requirements of such exchange
or exchanges.
SECTION 5.2 Prevention or Delay in Performance by the Depositary or the
Issuer.
Neither the Depositary nor the Issuer shall incur any
liability to any Owner or holder of any Receipt, if by reason of any provision
of any present or future law or regulation of the United States or of any
governmental or regulatory authority or stock exchange, or by reason of any
provision, present or future, of the Restated Certificate of Incorporation or
by-laws of the Issuer, or by reason of any act of God or war or other
circumstances beyond its control, the Depositary or the Issuer shall be
prevented or forbidden from, or be subject to any civil or criminal penalty on
account of, doing or performing any act or thing which by the terms of this
Deposit Agreement it is provided shall be done or performed; nor shall the
Depositary or the Issuer incur any liability to any Owner or holder of any
Receipt by reason of any non-performance or delay, caused as aforesaid, in the
performance of any act or thing which by the terms of this Deposit Agreement it
is provided 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.
Where, by the terms of a distribution pursuant to Sections 4.1, 4.3, or 4.4 of
the Deposit Agreement, or an offering or distribution pursuant to Section 4.5 of
the Deposit Agreement, or for any other reason, such distribution or offering
may not be made available to Owners, and the Depositary may not dispose of such
distribution or offering on behalf of such Owners and make the net proceeds
available to such Owners, then the Depositary shall not make such distribution
or offering, and shall allow any rights, if applicable, to lapse.
SECTION 5.3 Obligations of the Depositary and the Issuer.
The Issuer assumes no obligation nor shall it be subject to
any liability under this Deposit Agreement to
26
Owners or holders of Receipts, except that it agrees to perform its obligations
specifically set forth in this Deposit Agreement without negligence or bad
faith.
The Depositary assumes no obligation nor shall it be subject
to any liability under this Deposit Agreement to any Owner or holder of any
Receipt (including, without limitation, liability with respect to the validity
or worth of the Deposited Securities), except that it agrees to perform its
obligations specifically set forth in this Deposit Agreement without negligence
or bad faith.
Neither the Depositary nor the Issuer shall be under any
obligation to appear in, prosecute or defend any action, suit or other
proceeding in respect of any Deposited Securities or in respect of the Receipts,
which in its opinion may involve it in expense or liability, unless indemnity
satisfactory to it against all expense and liability shall be furnished as often
as may be required.
Neither the Depositary nor the Issuer shall be liable for any
action or nonaction by it in reliance upon the advice of or information from
legal counsel, accountants, any person presenting Shares for deposit, any Owner
or any other person believed by it in good faith to be competent to give such
advice or information.
The Depositary shall not be liable for any acts or omissions
made by a successor depositary whether in connection with a previous act or
omission of the Depositary or in connection with any matter arising wholly after
the removal or resignation of the Depositary, provided that in connection with
the issue out of which such potential liability arises the Depositary performed
its obligations without negligence or bad faith while it acted as Depositary.
The Depositary shall not be responsible for any failure to
carry out any instructions to vote any of the Deposited Securities, or for the
manner in which any such vote is cast or the effect of any such vote, provided
that any such action or nonaction is in good faith.
No disclaimer of liability under the Securities Act of 1933 is
intended by any provision of this Deposit Agreement.
27
SECTION 5.4 Resignation and Removal of the Depositary.
The Depositary may at any time resign as Depositary hereunder
by written notice of its election so to do delivered to the Issuer, 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 Issuer by
written notice of such removal effective 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 Issuer shall use its best efforts to appoint a
successor depositary, which shall be a bank or trust company having an office in
the Borough of Manhattan, The City of New York and having a combined capital and
surplus of at least $50,000,000. Every successor depositary shall execute and
deliver to its predecessor and to the Issuer 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; but such predecessor, nevertheless,
upon payment of all sums due it and on the written request of the Issuer shall
execute and deliver an instrument transferring to such successor all rights and
powers of such predecessor hereunder, shall duly assign, transfer and deliver
all right, title and interest in the Deposited Securities to such successor, and
shall deliver to such successor a list of the Owners of all outstanding
Receipts. Any such successor depositary shall promptly mail notice of its
appointment to the Owners.
Any corporation into or with which the Depositary may be
merged or consolidated shall be the successor of the Depositary without the
execution or filing of any document or any further act.
SECTION 5.5 Distribution of Additional Shares, Rights, etc.
The Issuer agrees that in the event of any issuance or
distribution of (1) additional Shares, (2) rights to subscribe for Shares, (3)
securities convertible into Shares, or (4) rights to subscribe for such
securities, (each a "Distribution"), the Issuer will promptly furnish to the
Depositary a written opinion from
28
U.S. counsel for the Issuer, which counsel shall be satisfactory to the
Depositary, stating whether or not the Distribution requires a Registration
Statement under the Securities Act of 1933 to be in effect prior to making such
Distribution available to Owners entitled thereto. If in the opinion of such
counsel a Registration Statement is required, such counsel shall furnish to the
Depositary a written opinion as to whether or not there is a Registration
Statement in effect which will cover such Distribution.
The Issuer agrees with the Depositary that neither the Issuer
nor any company controlled by, controlling or under common control with the
Issuer will at any time deposit any Shares, either originally issued or
previously issued and reacquired by the Issuer or any such affiliate, unless a
Registration Statement is in effect as to such Shares under the Securities Act
of 1933.
SECTION 5.6 Indemnification.
The Issuer agrees to indemnify the Depositary, its directors,
employees, agents and affiliates, and hold each of them harmless from, any
liability or expense (including, but not limited to, the fees and expenses of
counsel) which may arise out of acts performed or omitted, in accordance with
the provisions of this Deposit Agreement and of the Receipts, as the same may be
amended, modified or supplemented from time to time, (i) by the Depositary or
its directors, employees, agents and affiliates, except for any liability or
expense arising out of the negligence or bad faith of either of them, or (ii) by
the Issuer or any of its directors, employees, agents and affiliates.
The Depositary agrees to indemnify the Issuer, its directors,
employees, agents and affiliates and hold them harmless from any liability or
expense which may arise out of acts performed or omitted by the Depositary or
its directors, employees, agents and affiliates due to their negligence or bad
faith.
SECTION 5.7 Charges of Depositary.
No fees, charges and expenses of the Depositary or any agent
of the Depositary hereunder or of any Registrar shall be payable by any person
other than the Issuer, except for any taxes (including transfer taxes, if any)
and other governmental charges and except as provided in this Deposit Agreement.
All other fees, charges and expenses of the Depositary and any agent of the
Depositary hereunder and of
29
any Registrar incident to the performance of their respective obligations
hereunder shall be paid upon consultation and agreement between the Depositary
and the Issuer as to the amount and nature of such fees, charges and expenses.
The Depositary shall present its statement for fees, charges and expenses to the
Issuer once every month or at such other intervals as the Issuer and the
Depositary may agree.
The Depositary may own and deal in any class of securities of
the Issuer and its affiliates and in Receipts.
SECTION 5.8 Retention of Depositary Documents.
The Depositary is authorized to destroy those documents,
records, bills and other data compiled during the term of this Deposit Agreement
at the times permitted by the laws or regulations governing the Depositary
unless the Issuer requests that such papers be retained for a longer period or
turned over to the Issuer or to a successor depositary.
SECTION 5.9 Exclusivity.
The Issuer agrees not to appoint any other depositary for
issuance of Depositary Receipts so long as The Bank of New York is acting as
Depositary hereunder.
SECTION 5.10 List of Restricted Securities Owners.
From time to time, the Issuer shall provide to the Depositary
a list setting forth, to the actual knowledge of the Issuer, those persons or
entities who beneficially own Restricted Securities and the Issuer shall update
that list on a regular basis. The Issuer agrees to advise in writing each of the
persons or entities so listed that such Restricted Securities are ineligible for
deposit hereunder. The Depositary may rely on such a list or update but shall
not be liable for any action or omission made in reliance thereon.
ARTICLE VI
AMENDMENT AND TERMINATION
SECTION 6.1 Amendment.
The form of the Receipts and any provision of this Deposit
Agreement may at any time and from time to time be amended by agreement between
the Issuer and the Depositary
30
in any respect that they may deem necessary or desirable. Any amendment that
shall impose any fees, taxes or charges (other than taxes and other governmental
charges, fees and expenses provided for herein or in the Receipts), or that
shall otherwise prejudice any substantial existing right of Owners 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 Owners of
outstanding Receipts. Every Owner 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 this Deposit Agreement, of any Owner to surrender any Receipt
or Receipts evidencing Depositary Shares representing Shares with instructions
to the Depositary or an applicable agent of the Depositary to deliver to the
Owner such Shares or to cause the conversion of such Shares into Common Stock
and cash for fractional shares of Common Stock and, in each case, all securities
and other property, if any, represented thereby, except in order to comply with
mandatory provisions of applicable law.
SECTION 6.2 Termination.
The Deposit Agreement shall terminate at the close of
business on the Mandatory Conversion Date upon distribution by the Depositary
to each Owner entitled thereto of (i) shares of Common Stock and cash
(whether in lieu of fractional shares or otherise) received by the Depositary
from the Issuer for madatory conversion of, and/or dividend payments on, the
Depositary Shares eveidenced by the Receipt or Receipts held by such Owner
and (ii) all other securities property and cash then held by the Depositary
hereunder. On and after the date of termination, the Owner of a Receipt will,
upon surrender of such Receipt at the Corporate Trust Office of the
Depositary and payment of any applicable taxes or governmental charges, be
entitled to delivery, to him or upon his order, of the amount of Deposited
Securities represented by the Depositary Shares evidenced by such Receipt. If
any Receipts shall remain outstanding after the date of termination, the
Depositary thereafter shall discontinue the registration of transfers of
Receipts, shall suspend the distribution of dividends to the Owners thereof,
and shall not give any further notices or perform any further acts under this
Deposit Agreement, except that the Depositary shall continue to collect
dividends and other distributions pertaining to Deposited Securities, shall
sell rights as provided in this Deposit Agreement, and shall continue to
deliver Deposited Securities, together with any dividends or other
distributions received with respect thereto and the net
31
proceeds of the sale of any rights or other property, in exchange for
Receipts surrendered to the Depositary (after deducting, in each case, any
applicable taxes or governmental charges). At any time after the expiration
of one year from the date of termination, the Depositary may sell the
Deposited Securities then held hereunder and may thereafter hold uninvested
the net proceeds of any such sale, together with any other cash then held by
it hereunder, unsegregated and without liability for interest, for the pro
rata benefit of the Owners of Receipts which have not theretofore been
surrendered, such Owners thereupon becoming general creditors of the
Depositary with respect to such net proceeds. After making such sale, the
Depositary shall be discharged from all obligations under this Deposit
Agreement, except to account for such net proceeds and other cash (after
deducting, in each case, any applicable taxes or governmental charges). Upon
the termination of this Deposit Agreement, the Issuer shall be discharged
from all obligations under this Deposit Agreement except for its obligations
to the Depositary under Sections 5.6 and 5.7 hereof.
ARTICLE VII
MISCELLANEOUS
SECTION 7.1 Counterparts.
This Deposit Agreement may be executed in any number of
counterparts, each of which shall be deemed an original and all of such
counterparts shall constitute one and the same instrument. Copies of this
Deposit Agreement shall be filed with the Depositary and shall be open to
inspection by any holder or Owner of a Receipt during business hours.
SECTION 7.2 No Third Party Beneficiaries.
This Deposit Agreement is for the exclusive benefit of the
parties hereto and shall not be deemed to give any legal or equitable right,
remedy or claim whatsoever to any other person.
32
SECTION 7.3 Severability.
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 7.4 Holders and Owners as Parties; Binding Effect.
The holders and Owners of Receipts from time to time shall be
parties to this Deposit Agreement and shall be bound by all of the terms and
conditions hereof and of the Receipts by acceptance thereof.
SECTION 7.5 Notices.
Any and all notices to be given to the Issuer shall be deemed
to have been duly given if personally delivered or sent by mail or cable, telex
or facsimile transmission confirmed by letter, addressed to Mr. Kieran E. Burke,
Premier Parks Inc., 122 East 42nd Street, 49th Floor, New York, NY 10168
(facsimile: (212) 949-6203) or any other place to which the Issuer may have
transferred its principal office.
Any and all notices to be given to the Depositary shall be
deemed to have been duly given if in English and personally delivered or sent by
mail or cable, telex or facsimile transmission confirmed by letter, addressed to
The Bank of New York, 101 Barclay Street, New York, New York 10286, Attention:
American Depositary Receipt Administration, or any other place to which the
Depositary may have transferred its Corporate Trust Office.
Any and all notices to be given to any Owner shall be deemed
to have been duly given if personally delivered or sent by mail or cable, telex
or facsimile transmission confirmed by letter, addressed to such Owner at the
address of such Owner as it appears on the transfer books for Receipts of the
Depositary, or, if such Owner shall have filed with the Depositary a written
request that notices intended for such Owner be mailed to some other address, at
the address designated in such request.
Delivery of a notice sent by mail or cable, telex or facsimile
transmission shall be deemed to be effected at the time when a duly addressed
letter containing the same
33
(or a confirmation thereof in the case of a cable, telex or facsimile
transmission) is deposited, postage prepaid, in a post-office letter box. The
Depositary or the Issuer may, however, act upon any cable, telex or facsimile
transmission received by it, notwithstanding that such cable, telex or facsimile
transmission shall not subsequently be confirmed by letter as aforesaid.
SECTION 7.6 Governing Law.
This Deposit Agreement and the Receipts shall be interpreted
and all rights hereunder and thereunder and provisions hereof and thereof shall
be governed by the laws of the State of New York.
34
IN WITNESS WHEREOF, PREMIER PARKS INC. and THE BANK OF NEW YORK have
duly executed this agreement as of the day and year first set forth above and
all Owners shall become parties hereto upon acceptance by them of Receipts
issued in accordance with the terms hereof.
PREMIER PARKS INC., as Issuer
By:
------------------------------
Name:
Title:
THE BANK OF NEW YORK,
as Depositary
By:
------------------------------
Name:
Title:
35
Exhibit A to Deposit Agreement
N0.
DEPOSITARY SHARES
(Each Depositary Share
represents 1/500 of a
deposited Share)
THE BANK OF NEW YORK
DEPOSITARY RECEIPT FOR _____
SHARES OF THE % MANDATORILY
CONVERTIBLE PREFERRED STOCK,
PAR VALUE $1.00 PER SHARE, OF
PREMIER PARKS INC.
(INCORPORATED UNDER THE LAWS
OF THE STATE OF DELAWARE)
The Bank of New York as depositary (hereinafter called the
"Depositary"), hereby certifies that , or registered assigns IS
THE OWNER OF
DEPOSITARY SHARES
representing interests in deposited shares of % Mandatorily Convertible
Preferred Stock, par value $1.00 per share (herein called "Shares"), of Premier
Parks Inc., incorporated under the laws of the State of Delaware (herein called
the "Issuer"). At the date hereof, each Depositary Share represents 1/500 of a
Share which is deposited under the deposit agreement at the Corporate Trust
Office of the Depositary. The Depositary's Corporate Trust Office is located at
a different address than its principal executive office. Its Corporate Trust
Office is located at 101 Barclay Street, New York, N.Y. 10286, and its principal
executive office is located at 48 Wall Street, New York, N.Y. 10286.
THE DEPOSITARY'S CORPORATE TRUST OFFICE ADDRESS IS
101 BARCLAY STREET, NEW YORK, N.Y. 10286
1. THE DEPOSIT AGREEMENT.
This Depositary Receipt is one of an issue (herein called
"Receipts"), all issued and to be issued upon the terms and conditions set
forth in the deposit agreement, dated as of , 1998 (herein called
the "Deposit Agreement"), by and among Issuer, the Depositary, and all Owners
and holders from time to time of Receipts issued thereunder, each of whom by
accepting a Receipt agrees to become a party thereto and become bound by all
the terms and conditions thereof. The Deposit Agreement sets forth the rights
of Owners and holders of the Receipts and the rights and duties of the
Depositary in respect of the Shares deposited thereunder and any and all
other securities, property and cash from time to time received in respect of
such Shares and held thereunder (such Shares, securities, property, and cash
are herein called "Deposited Securities"). Copies of the Deposit Agreement
are on file at the Depositary's Corporate Trust Office in New York City.
The statements made on the face and reverse of this Receipt are
summaries of certain provisions of the Deposit Agreement and are qualified by
and subject to the detailed provisions of the Deposit Agreement, to which
reference is hereby made. Capitalized terms not defined herein shall have the
meanings set forth in the Deposit Agreement.
2. SURRENDER OF RECEIPTS AND WITHDRAWAL OF SHARES.
Upon surrender at the Corporate Trust Office of the Depositary of this
Receipt, and subject to the terms and conditions of the Deposit Agreement, the
Owner hereof is entitled to delivery, to him or upon his order, of the amount of
Deposited Securities (it being understood that, with respect to any withdrawal
of Shares, only whole Shares may be withdrawn) at the time represented by the
Depositary Shares for which this Receipt is issued. Delivery of such Deposited
Securities may be made by the delivery of (i) certificates for Shares being
withdrawn in the name of the Owner hereof or as ordered by him or by
certificates for the Shares being withdrawn properly endorsed or accompanied by
proper instruments of transfer to such Owner or as ordered by him and (ii) any
other securities, property and cash to which such Owner is then entitled in
respect of this Receipt to such Owner or as ordered by him. Such delivery will
be made at the Corporate Trust Office of the Depositary. Notwithstanding any
other provision of the Deposit Agreement or this Receipt, the surrender of
2
outstanding Receipts and withdrawal of Deposited Securities may be suspended
only for (i) temporary delays caused by closing the transfer books of the
Depositary or Issuer or the payment of dividends, (ii) the payment of taxes,
stock transfer or registration fees and similar charges, and (iii) compliance
with any U.S. laws or governmental regulations relating to the Receipts or to
the withdrawal of the Deposited Securities.
3. MANDATORY CONVERSION OF SHARES INTO COMMON STOCK.
On the date fixed for mandatory conversion of the Shares by the
Certificate of Designation (the "Mandatory Conversion Date"), all then
outstanding Shares other than Shares represented by Depositary Shares shall
mandatorily convert into (i) shares of common stock, par value $0.05 per
share (the "Common Stock"), of the Issuer at the applicable rate specified in
the Certificate of Designation, (ii) cash in lieu of fractional shares of
Common Stock otherwise deliverable by the Issuer upon such conversion and
(iii) the right to receive amounts in cash equal to all accrued and unpaid
dividends on such Shares to the Mandatory Conversion Date (other than
previously declared dividends payable to a holder of record of the Shares as
of a prior date), all as provided in and subject to the Certificate of
Designation.
From and after the Mandatory Conversion Date, Shares represented by
Depositary Shares shall also be manditorily converted, and such Depositary
Shares shall be deemed no longer outstanding and all rights of the Owners of
the Receipts evidencing such Depositary Shares (except the right to receive
(i) the Common Stock to which such Owner is entitled upon conversion, (ii)
any cash payable with respect to any fractional shares of Common Stock
otherwise deliverable by the Depositary upon conversion, (iii) any cash for
accrued and unpaid dividends on such Shares (other than previously declared
dividends payable to an Owner as of a prior date) and (iv) any other
securities, property or cash to which such Owner is entitled under the
Deposit Agreement) shall cease and terminate. Upon surrender of the Receipts
evidencing such Depositary Shares at the Corporate Trust Office or at such
office or to such agent of the Depositary as the Depositary may designate for
such purpose (properly endorsed or assigned for transfer, as the Depositary
or such agent shall so require), such Depositary Shares shall be converted
into, subject to adjustment as provided in the Certificate of Designation and
the Deposit Agreement, (i) a
3
number of shares of Common Stock per Depositary Share equal to one-five
hundredth of the number (including fractional shares) of shares of Common Stock
which each Share converted into at the applicable rate specified in the
Certificate of Designation, (ii) cash in lieu of fractional shares of Common
Stock otherwise deliverable by the Depositary upon such conversion, calculated
in accordance with Section 4.12 of the Deposit Agreement, (iii) the right to
receive cash for any accrued and unpaid dividends on the Shares represented by
such Depositary Shares (other than previously declared dividends payable to an
Owner as of a prior date) and (iv) the right to receive any other securities,
property or cash to which Owners are entitled under the Deposit Agreement.
On the Mandatory Conversion Date, for each Owner of a Receipt or
Receipts, the Issuer shall deposit with the Depositary (i) certificates for
the number of shares of Common Stock and (ii) the amount of cash in lieu of
fractional shares determined as set forth in the preceding paragraph into
which the Depositary Shares evidenced by such Receipt or Receipts shall
convert on the Mandatory Conversion Date (assuming proper surrender of such
Receipt or Receipts to the Depositary or any of its agents) and (iii) subject
to the Certificate of Designation, an amount in cash equal to all accrued and
unpaid dividends on the Shares represented by such Depositary Shares to the
Mandatory Conversion Date (other than previously declared dividends payable
to an Owner as of a prior date). With respect to Owners which hold a Receipt
or Receipts evidencing more than one Depositary Share on the Mandatory
Conversion Day, the number of shares of Common Stock and the amount of cash
in lieu of fractional shares to be deposited by the Issuer with the
Depositary on that date shall be computed on the basis of the aggregate
number of Depositary Shares evidenced by such Receipt or Receipts. Using such
shares of Common Stock and cash, the Depositary shall as promptly as
practicable deliver to each Owner of a Receipt or Receipts which properly
delivers such Receipt or Receipts to the Depositary or any of its agents
certificates for the number of shares of Common Stock and the amount of cash,
without interest, to which such Owner is entitled pursuant to the preceding
provisions.
No fractional shares of Common Stock will be delivered by the
Depositary in connection with mandatory conversion of
4
Shares represented by Depositary Shares on the Mandatory Conversion Date.
4. OPTIONAL CONVERSION OF SHARES INTO COMMON STOCK.
Subject to the terms and conditions of the Deposit Agreement, an
Owner of a Receipt or Receipts evidencing Depositary Shares representing
whole or fractional Shares may surrender such Receipt or Receipts at the
Corporate Trust Office or at such office or to such agents of the Depositary
as the Depositary may designate for such purpose, together with a notice of
conversion duly completed and executed, thereby directing the Depositary or
any such agent to instruct the Issuer to cause the conversion (which may
include partial conversions) of the number of Shares (which instruction may
be given by reference to the number of Depositary Shares representing such
Shares) specified in such notice of conversion into shares of Common Stock at
the rate specified in the Certificate of Designation, and an assignment of
such Receipt or Receipts to the Issuer or in blank, duly completed and
executed (and, if such conversion is to occur after the close of business on
a record date for any payment of declared dividends on the Shares and before
the opening of business on the next succeeding dividend payment date, payment
in cash of an amount equal to the dividend payable on such date on the Shares
so converted). To the extent that an Owner delivers to the Depositary for
conversion a Receipt or Receipts evidencing Depositary Shares representing
Shares which in the aggregate (including fractional Shares) would result in a
fractional share of Common Stock being deliverable by the Issuer upon such
Shares' conversion at the rate specified in the Certificate of Designation,
the Issuer shall deliver to such Owner payment in cash in lieu of such
fractional share of Common Stock, calculated in accordance with Section 4.12
of the Deposit Agreement. If a Receipt or Receipts eveidencing more than one
Depositary Share shall be surrendered for conversion of the Shares
represented thereby at one time by the same Owner, the number of shares of
Common Stock and the amount in cash in lieu of fractional shares deliverable
by the Issuer upon such conversion shall be computed on the basis of the
aggregate number of Shares (including fractional Shares) represented by
Depositary Shares evidenced by the Receipts or Receipts so surrendered.
Upon receipt by the Depositary or an agent of the Depositary of a
Receipt or Receipts, together with a notice of conversion, duly completed and
executed, directing the
5
Depositary or such agent to instruct the Issuer to cause the conversion (which
may be a partial conversion) of a specified number of Shares (which instruction
may be by reference to the number of Depositary Shares representing such Shares)
at the rate specified in the Certificate of Designation, and an assignment of
such Receipt or Receipts to the Issuer or in blank, duly completed and executed,
the Depositary or such agent shall instruct the Issuer, subject to adjustment as
provided in the Certificate of Designation and this Deposit Agreement, (i) to
cause the conversion (which may be a partial conversion) at the rate specified
in the Certificate of Designation of the number of Shares represented by the
Depositary Shares evidenced by the Receipt or Receipts so surrendered for
conversion as specified in the written notice to the Depositary or such agent
and (ii) to cause the delivery to the Owner of such Receipt or Receipts of (a) a
certificate or certificates evidencing the number of whole shares of Common
Stock into which the Shares (including fractional Shares) represented by the
Depositary Shares evidenced by such Receipt or Receipts have been converted, and
(b) the amount of cash to which such Owner is entitled in lieu of fractional
shares of Common Stock otherwise deliverable by the Issuer upon such conversion,
calculated in accordance with Section 4.12 of the Deposit Agreement. The Issuer
shall as promptly as practicable after receipt thereof cause the delivery of the
certificate or certificates and cash referred to in (a) and (b) above, and such
conversion shall be deemed to have been effected immediately prior to the close
of business on the date of such receipt and shall occur at the rate specified in
the Certificate of Designation in effect at such time and on such date. Upon
such conversion, the Depositary or such agent shall deliver to the Owner a
Receipt evidencing the number of Depositary Shares evidenced by the surrendered
Receipt or Receipts over the number of Depositary Shares evidenced by such
Receipt or Receipts that have been so converted. Depositary Shares converted in
connection with conversion of the Shares represented thereby shall only be
converted in whole, and not in part.
The Owner of a Receipt or Receipts on any dividend payment record date
established by the Depositary as provided in the Deposit Agreement shall be
entitled to receive the dividend payable with respect to the Depositary Shares
evidenced by such Receipt or Receipts on the dividend payment date
notwithstanding the conversion (which may be a partial conversion) subsequent to
such record date of the
6
Shares represented by such Depositary Shares. However, if a Receipt or Receipts
are surrendered for conversion after the close of business on a dividend payment
record date established by the Depositary and before the opening of business on
the next succeeding dividend payment date, the Owner of such Receipt or Receipts
shall pay to the Depositary an amount equal to the dividend payable on such
dividend payment date on the Depositary Shares evidenced by the Receipt or
Receipts being surrendered for conversion. Any Owner of a Receipt or Receipts on
a dividend payment record date established by the Depositary who (or whose
transferee) surrenders such Receipt or Receipts with instructions to the
Depositary for conversion of the underlying Shares on the next succeeding
dividend payment date shall receive the dividend payable with respect to the
Depositary Shares evidenced by such Receipt or such Receipts and shall not be
required to include payment of the amount of such dividend on such Depositary
Shares upon surrender of such Receipt or Receipts for conversion.
Upon the conversion of any Share for which a notice of conversion has
been provided to the Depositary or an agent of the Depositary by the Owner of
the Receipt or Receipts evidencing the Depositary Shares representing such
Share, dividends shall cease to become payable on such Depositary Shares, such
Depositary Shares shall be deemed no longer outstanding, all rights of the Owner
of the Receipt or Receipts evidencing such Depositary Shares (except the right
to receive (i) the Common Stock to which such Owner is entitled upon conversion,
(ii) any cash payable with respect to any fractional shares of Common Stock
otherwise deliverable by the Issuer upon conversion, (iii) any Receipts
evidencing Depositary Shares representing Shares which were not so converted and
(iv) any other securities, property or cash to which such Owner is entitled
under the Deposit Agreement) shall cease and terminate, and the Receipt or
Receipts evidencing such Depositary Shares shall be cancelled.
No fractional shares of Common Stock shall be deliverable by the Issuer
upon conversion of the Shares represented by the Depositary Shares.
7
5. TRANSFERS, SPLIT-UPS, AND COMBINATIONS OF RECEIPTS.
The transfer of this Receipt is registrable on the books of the
Depositary at its Corporate Trust Office by the Owner hereof in person or by a
duly authorized attorney, upon surrender of this Receipt properly endorsed for
transfer or accompanied by proper instruments of transfer and funds sufficient
to pay any applicable transfer taxes and upon compliance with such regulations,
if any, as the Depositary may establish for such purpose. This Receipt may be
split into other such Receipts, or may be combined with other such Receipts into
one Receipt, evidencing the same aggregate number of Depositary Shares as the
Receipt or Receipts surrendered. As a condition precedent to the execution and
delivery, registration of transfer, split-up, combination or surrender of any
Receipt or withdrawal of any Deposited Securities or the exercise of any
optional conversion right with respect to any Depositary Shares, the Depositary,
any of the Depositary's agents or the Registrar may require any or all of the
following: (i) payment to it of a sum sufficient to reimburse it for any tax or
other governmental charge and any stock transfer or registration fee with
respect thereto (including any such tax or charge and fee with respect to Shares
being deposited or withdrawn or with respect to the Common Stock being delivered
upon conversion); (ii) the production of proof satisfactory to it as to the
identity and genuineness of any signature and (iii) compliance with any
regulations the Depositary may establish consistent with the provisions of the
Deposit Agreement.
The transfer of Receipts in particular instances may be refused, or
the registration of transfer of outstanding Receipts generally may be
suspended, during any period when the transfer books of the Depositary are
closed, or if any such action is deemed necessary or advisable by the
Depositary or Issuer 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 this Receipt, or, with the
approval of the Issuer, for any other reason.
8
6. LIABILITY OF OWNER FOR TAXES.
If any tax or other governmental charge shall become payable with
respect to any Receipt or any Deposited Securities represented by Depositary
Shares evidenced hereby or with respect to any optional conversion right with
respect to any Depositary Shares, such tax or other governmental charge shall be
payable by the Owner hereof to the Depositary. The Depositary may refuse to
effect any transfer of this Receipt or any withdrawal of Deposited Securities
represented by Depositary Shares evidenced by such Receipt or any such
conversion until such payment is made, and may withhold any dividends or other
distributions, or may sell for the account of the Owner hereof any part or all
of the Deposited Securities represented by the Depositary Shares evidenced by
this Receipt, and may apply such dividends or other distributions or the
proceeds of any such sale in payment of such tax or other governmental charge
and the Owner hereof shall remain liable for any deficiency.
7. WARRANTIES OF DEPOSITORS.
The Issuer, upon depositing Shares under the Deposit Agreement,
shall be deemed thereby to represent and warrant that such Shares and each
certificate therefor are validly issued, fully paid, nonassessable and free
of any pre-emptive rights of the holders of outstanding capital stock of the
Issuer and that the person making such deposit is duly authorized so to do.
The Issuer shall also be deemed to represent that the deposit of such Shares
and the sale of Receipts evidencing Depositary Shares representing such
Shares by the Issuer are not restricted under the Securities Act of 1933.
Such representations and warranties shall survive the deposit of Shares and
issuance of Receipts.
8. FILING PROOFS, CERTIFICATES, AND OTHER INFORMATION.
Any Owner of a Receipt may be required from time to time to file
with the Depositary such proof of citizenship or residence, to execute such
certificates and to make such representations and warranties, as the
Depositary may deem necessary or proper. The Depositary may withhold the
registration of transfer of any Receipt or the distribution of any dividend
or sale or distribution of rights or of the proceeds thereof or the delivery
of any
9
Deposited Securities or the exercise of any conversion right until such proof or
other information is filed or such certificates are executed or such
representations and warranties made.
9. CHARGES OF DEPOSITARY.
The Issuer 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.
The Depositary may own and deal in any class of securities of Issuer
and its affiliates and in Receipts.
10. TITLE TO RECEIPTS.
It is a condition of this Receipt and every successive holder and Owner
of this Receipt by accepting or holding the same consents and agrees, that title
to this Receipt when properly endorsed or accompanied by proper instruments of
transfer, is transferable by delivery with the same effect as in the case of a
negotiable instrument; provided, however, that the Depositary, notwithstanding
any notice to the contrary, may treat the person in whose name this Receipt is
registered on the books of the Depositary 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.
11. VALIDITY OF RECEIPT.
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 by the Depositary by the manual or facsimile signature of a
duly authorized signatory of the Depositary and, if a Registrar for the Receipts
shall have been appointed, countersigned by the manual or facsimile signature of
a duly authorized officer of the Registrar.
12. REPORTS, INSPECTION OF TRANSFER BOOKS.
The Depositary will make available for inspection by Owners of Receipts
at its Corporate Trust Office any reports and communications, including any
proxy soliciting material, received from Issuer which are both (i) received by
the Depositary as the holder of the Deposited Securities and (ii) made generally
available to the holders of such
10
Deposited Securities by Issuer. The Issuer will deliver to the Depositary, and
the Depositary will, promptly after receipt thereof, transmit to the Owners of
the Receipts, in each case at the address recorded in the Depositary's books,
copies of all notices and reports (including financial statements) required by
law, by the rules of any national securities exchange upon which the Depositary
Shares are listed or by the Restated Certificate of Incorporation or the
Certificate of Designation to be furnished by the Issuer to holders of Shares.
Such transmission shall be at the Issuer's expense and the Issuer shall 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 Owners
of Receipts at the Issuer's expense such other documents as may be requested by
the Issuer.
The Depositary shall keep books for the registration of Receipts and
transfers of Receipts which at all reasonable times shall be open for inspection
by the Owners of Receipts, provided that such inspection shall not be for the
purpose of communicating with Owners of Receipts in the interest of a business
or object other than the business of Issuer or a matter related to the Deposit
Agreement or the Receipts.
13. DIVIDENDS AND DISTRIBUTIONS.
Whenever the Depositary shall receive any cash dividend or other cash
distribution on any Deposited Securities (other than cash dividends or cash
distributions paid by the Issuer to the Depositary in lieu of fractional shares
of Common Stock otherwise deliverable by the Issuer upon conversion of the
Depositary Shares or in payment of dividends on the Depositary Shares), the
Depositary shall distribute the dividend or distribution thus received to the
Owners entitled thereto, in proportion, insofar as practicable, to the number of
Depositary Shares representing such Deposited Securities held by them
respectively. In the event that the Issuer or the Depositary shall be required
to withhold and does withhold from any such cash dividend or such other cash
distribution an amount on account of taxes, the amount distributed to the Owner
of the Receipts evidencing Depositary Shares representing such Deposited
Securities shall be reduced accordingly.
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Pursuant to and subject to the terms of the Certificate of Designation,
the Issuer may pay dividends (in whole or in part) on the Shares through the
delivery of shares of Common Stock, so long as shares of Common Stock delivered
in payment of a dividend are delivered on the regular dividend payment date (as
set forth in the Certificate of Designation) for such dividend. Dividends paid
by the Issuer on Shares represented by Depositary Shares shall be paid to the
Depositary, as record holder of such Shares (assuming the Depositary was also
the record holder for such Shares on the related record date for such dividend
payment). The Depositary shall distribute, on the related regular dividend
payment date, shares of Common Stock paid to it by the Issuer as dividends on
the Shares to persons who were Owners on the related record date for such
dividend, as established by the Depositary in accordance with the Deposit
Agreement. The Depositary shall distribute to each such Owner on such date, for
each Depositary Share evidenced by a Receipt or Receipts held by such Owner on
the related record date for such dividend (it being understood that the number
of fractional shares of Common Stock to which such Owner is entitled with
respect to such dividend shall be determined on the basis of its aggregate
holdings of such Depository Shares), (i) a number of shares (subject to clause
(ii) of this sentence) of Common Stock equal to one-five hundredth of the number
of shares of Common Stock (including fractional shares) payable per Share in
payment of the related dividend as determined pursuant to the Certificate of
Designation and (ii) the amount of cash to which such Owner is entitled in lieu
of fractional shares of Common Stock otherwise distributable by the Depositary
under clause (i), calculated in accordance with Section 4.12 of the Deposit
Agreement. The Issuer shall deposit with the Depositary, on or prior to the
regular dividend payment date (as set forth in the Certificate of Designation)
for any dividend which the Issuer has elected to pay in whole or in part in
shares of Common Stock, for each Owner which held a Receipt or Receipts on the
related record date for such dividend as established by the Depositary, (i)
certificates for the number of shares of Common Stock and (ii) the amount of
cash in lieu of fractional shares to which such Owner is entitled pursuant to
the preceding sentence.
No fractional shares of Common Stock will be delivered by the
Depositary to persons who were Owners on the related record date for a dividend
on the Shares in connection with
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the Depositary's distribution of a dividend on the Shares paid by the Issuer to
it in shares of Common Stock.
Subject to the provisions of Section 4.8, whenever the Depositary shall
receive any distribution other than a distribution described in Sections 4.1,
4.2, 4.4 or 4.5, the Depositary shall cause the securities or property received
by it to be distributed to the Owners entitled thereto, in proportion to the
number of Depositary Shares representing Deposited Securities held by them
respectively, in any manner that the Depositary may deem equitable and
practicable for accomplishing such distribution; provided, however, that if in
the opinion of the Depositary such distribution cannot be made proportionately
among the Owners entitled thereto, or if for any other reason the Depositary
deems such distribution not to be feasible, the Depositary may adopt such method
as it may deem equitable and practicable for the purpose of effecting such
distribution, including, but not limited to, the public or private sale of the
securities or property thus received, or any part thereof, and the net proceeds
of any such sale shall be distributed by the Depositary to the Owners entitled
thereto as in the case of a distribution received in cash pursuant to Section
4.1 of the Deposit Agreement.
If any distribution upon any Deposited Securities consists of a
dividend in, or free distribution of, Shares, the Depositary may, and shall if
the Issuer shall so request, distribute to the Owners of outstanding Receipts
entitled thereto, in proportion to the number of Depositary Shares representing
such Deposited Securities held by them respectively, additional Receipts
evidencing an aggregate number of Depositary Shares representing the amount of
Shares received as such dividend or free distribution, subject to the terms and
conditions of the Deposit Agreement with respect to the deposit of Shares and
the issuance of Depositary Shares evidenced by Receipts, including the
withholding of any tax or other governmental charge as provided in Section 4.10
of the Deposit Agreement. In lieu of delivering Receipts for fractional
Depositary Shares in any such case, the Depositary shall sell the amount of
Shares represented by the aggregate of such fractions and distribute the net
proceeds, all in the manner and subject to the conditions described in Section
4.1, or, if the Depositary deems such sale and distribution not feasible, the
Depositary may adopt such method as it shall deem
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equitable and practicable in substitution for delivering Receipts for fractional
Depositary Shares.
In the event that the Depositary determines that any distribution in
property (including Shares and rights to subscribe therefor) is subject to any
tax or other governmental charge which the Depositary is obligated to withhold,
the Depositary may by public or private sale dispose of all or a portion of such
property (including Shares and rights to subscribe therefor) in such amounts and
in such manner as the Depositary deems necessary and practicable to pay any such
taxes or charges and the Depositary shall distribute the net proceeds of any
such sale after deduction of such taxes or charges to the Owners of Receipts
entitled thereto.
14. RIGHTS.
In the event that the Issuer shall offer or cause to be offered to the
holders of any Deposited Securities any rights to subscribe for additional
Shares or any rights of any other nature, the Depositary shall have discretion
as to the procedure to be followed in making such rights available to any Owners
or in disposing of such rights on behalf of any Owners and making the net
proceeds available to such Owners or, if by the terms of such rights offering or
for any other reason, the Depositary may not either make such rights available
to any Owners or dispose of such rights and make the net proceeds available to
such Owners, then the Depositary shall allow the rights to lapse. If at the time
of the offering of any rights the Depositary determines in its discretion that
it is lawful and feasible to make such rights available to all Owners or to
certain Owners but not to other Owners, the Depositary may distribute to any
Owner to whom it determines the distribution to be lawful and feasible, in
proportion to the number of Depositary Shares held by such Owner, warrants or
other instruments therefor in such form as it deems appropriate.
In circumstances in which rights would otherwise not be distributed, if
an Owner of Receipts requests the distribution of warrants or other instruments
in order to exercise the rights allocable to the Depositary Shares of such Owner
hereunder, the Depositary will make such rights available to such Owner upon
written notice from the Issuer to the Depositary that (i) the Issuer has elected
in its sole discretion to permit such rights to be exercised and
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(ii) such Owner has executed such documents as the Issuer has determined in its
sole discretion are reasonably required under applicable law.
If the Depositary has distributed warrants or other instruments for
rights to all or certain Owners, then upon instruction from such an Owner
pursuant to such warrants or other instruments to the Depositary from such Owner
to exercise such rights, upon payment by such Owner to the Depositary for the
account of such Owner of an amount equal to the purchase price of the Shares to
be received upon the exercise of the rights, and upon payment of any other
charges as set forth in such warrants or other instruments, the Depositary
shall, on behalf of such Owner, exercise the rights and purchase the Shares, and
the Issuer shall cause the Shares so purchased to be delivered to the Depositary
on behalf of such Owner. As agent for such Owner, the Depositary shall cause the
Shares so purchased to be deposited pursuant to Section 2.2 of the Deposit
Agreement, and shall, pursuant to Section 2.3 of the Deposit Agreement, execute
and deliver Receipts to such Owner. In the case of a distribution pursuant to
the second paragraph of this section, such Receipts shall be legended in
accordance with applicable U.S. laws, and shall be subject to the appropriate
restrictions on sale, deposit, cancelation, and transfer under such laws.
If the Depositary determines in its discretion that it is not lawful
and feasible to make such rights available to all or certain Owners, it may sell
the rights, warrants or other instruments in proportion to the number of
Depositary Shares held by the Owners to whom it has determined it may not
lawfully or feasibly make such rights available, and allocate the net proceeds
of such sales (net of all taxes and governmental charges payable in connection
with such rights and subject to the terms and conditions of the Deposit
Agreement) for the account of such Owners otherwise entitled to such rights,
warrants or other instruments, upon an averaged or other practical basis without
regard to any distinctions among such Owners because of exchange restrictions or
the date of delivery of any Receipt or otherwise.
The Depositary will not offer rights to Owners unless both the rights
and the securities to which such rights relate are either exempt from
registration under the Securities Act of 1933 with respect to a distribution to
15
Owners or are registered under the provisions of such Act. If an Owner of
Receipts requests distribution of warrants or other instruments, notwithstanding
that there has been no such registration under such Act, the Depositary shall
not effect such distribution unless it has received an opinion from recognized
counsel in the United States for the Issuer upon which the Depositary may rely
that such distribution to such Owner is exempt from such registration.
The Depositary shall not be responsible for any failure to determine
that it may be lawful or feasible to make such rights available to Owners in
general or any Owner in particular.
15. RECORD DATES.
Whenever any cash dividend or other cash distribution or any dividend
to be paid by the Issuer in shares of Common Stock shall become payable or any
distribution other than cash shall be made, or whenever rights, preferences or
privileges shall be offered or issued with respect to the Deposited Securities,
or whenever for any reason the Depositary causes a change in the number of
Shares that are represented by each Depositary Share, or whenever the Depositary
shall receive notice of any meeting at which holders of Shares are entitled to
vote or of which holders of Shares are entitled to notice, the Depositary shall
fix a record date (which shall be the same date as the record date fixed by the
Issuer in respect of the Shares) (i) for the determination of the Owners who
shall be (a) entitled to receive such dividend, distribution, rights,
preferences or privileges or the net proceeds of the sale thereof or (b)
entitled to give instructions for the exercise of voting rights at any such
meeting, or (ii) on or after which each Depositary Share will represent the
changed number of Shares.
16. VOTING OF DEPOSITED SECURITIES.
Upon receipt of notice of any meeting at which the holders of Shares
are entitled to vote, the Depositary shall, as soon as practicable thereafter,
mail to the Owners a notice, which shall be provided by the Issuer and which
shall contain (i) such information as is contained in such notice of meeting,
and (ii) a statement that the Owners as of the close of business on a specified
record date fixed by the Depositary pursuant to the Deposit Agreement shall be
entitled, subject to any applicable provision of law, the
16
Restated Certificate of Incorporation or the by-laws of the Issuer, to instruct
the Depositary as to the exercise of the voting rights pertaining to the amount
of Shares or other Deposited Securities represented by their respective
Depositary Shares and (iii) a statement as to the manner in which such
instructions may be given. Upon the written request of an Owner on such record
date, the Depositary shall endeavor, in so far as practicable, to vote or cause
to be voted the amount of Shares or other Deposited Securities represented by
the Depositary Shares evidenced by such Receipt in accordance with the
instructions set forth in such request. The Issuer hereby agrees to take all
reasonable action that may be deemed necessary by the Depositary in order to
enable the Depositary to vote such Shares or cause such Shares to be voted. In
the absence of specific instructions from the Owner of a Receipt, the Depositary
will abstain from voting to the extent of the Shares represented by the
Depositary Shares evidenced by such Receipt.
17. CHANGES AFFECTING DEPOSITED SECURITIES.
In circumstances where the provisions of Section 4.3 of the Deposit
Agreement do not apply, upon any change in nominal value, change in par value,
split-up, consolidation or any other reclassification of Deposited Securities,
or upon any recapitalization, reorganization, merger or consolidation or sale of
assets affecting the Issuer or to which it is a party, any securities which
shall be received by the Depositary in exchange for or in conversion of or in
respect of Deposited Securities, shall be treated as new Deposited Securities
under the Deposit Agreement, and Depositary Shares evidenced by Receipts then
outstanding shall thenceforth represent the proportionate interest of Owners
thereof in the new Deposited Securities so received in exchange or conversion,
unless additional Receipts are delivered pursuant to the following sentence. In
any such case the Depositary may, and shall if the Issuer shall so request,
execute and deliver additional Receipts as in the case of a dividend in Shares,
or call for the surrender of outstanding Receipts to be exchanged for new
Receipts specifically describing such new Deposited Securities.
18. FRACTIONAL SHARES.
No fractional shares of Common Stock will be delivered by the Issuer or
the Depositary, as applicable, to the Owners of Receipts upon mandatory or
optional conversion into shares of Common Stock.
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In lieu of any fractional share otherwise deliverable in respect of
the aggregate number of Depositary Shares evidenced by a Receipt or Receipts
of any Owner that are converted upon mandatory conversion, such Owner shall
be entitled to receive an amount in cash equal to the same fraction of the
Closing Price of the Common Stock as of the fifth Trading Day immediately
preceding the Mandatory Conversion Date.
In lieu of any fractional share otherwise deliverable in respect of
the aggregate number of Shares represented by Depositary Shares evidenced by
a Receipt or Receipts of any Owner that are converted upon any optional
conversion, such Owner shall be entitled to receive an amount in cash equal
to the same fraction of the Closing Price of the Common Stock as of the
second Trading Day immediately preceding the effective date of conversion.
If a Receipt or Receipts evidencing more than one Depositary Share
are surrendered for conversion at one time by or for the same Owner, the
number of shares of Common Stock and the amount of cash in lieu of fractional
shares deliverable upon conversion shall be computed on the basis of the
aggregate number of Depositary Shares evidenced by the Receipt or Receipts so
surrendered.
No fractional shares of Common Stock will be delivered by the
Depositary to persons who were Owners on the related record date for a dividend
on the Shares in connection with the Depositary's distribution of a dividend on
the Shares paid by the Issuer to it in shares of Common Stock. In lieu of any
fractional share otherwise so deliverable, such Owners shall be entitled to
receive an amount in cash equal to the same fraction of the Closing Price of the
Common Stock determined as of the fifth Trading Day immediately preceding the
dividend payment date. On the Mandatory Conversion Date, the fractional share of
Common Stock that any Owner would otherwise be entitled to receive shall be
determined by adding all the fractional shares such Owner would be entitled to
receive (i) on the mandatory conversion of all Depositary Shares evidenced by
Receipts held by such Owner and (ii) on the payment of the regular quarterly
dividend on all Depositary Shares evidenced by Receipts held by such Owner at
the related record date. On the Mandatory Conversion Date, the Issuer may, at
its option, deliver any whole number of shares of Common Stock resulting from
the addition of fractional shares resulting from (i) and (ii) above in shares of
Common Stock and any remaining fractional shares in cash.
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In the event that (i) mandatory conversion of the Depositary Shares,
(ii) voluntary conversions of the Shares represented by the Depositary
Shares, (iii) the Depositary's delivery of shares of Common Stock as
dividends on the Depositary Shares to persons who were Owners of the Receipts
evidencing such Depositary Shares on the related record date for such
dividend, (iv) the combination of (i) and (iii) pursuant to the preceding
paragraph or (v) some combination of the foregoing result any Owner of
Receipts evidencing Depositary Shares being entitled to cash in lieu of a
fractional share on the same date, the Issuer will deliver (either directly
or through the Depositary, as applicable) to all such Owners cash in an
amount equal to the total amount of cash to which all such Owners of Receipts
are entitled in lieu of fractional shares on such date.
If payment in cash in lieu of fractional shares of Common Stock in
accordance with the preceding six paragraphs would result in the Issuer's
failure to be in compliance with any debt instrument to which it is a party, the
Issuer shall be entitled to deliver (either directly or through the Depositary,
as applicable) a whole share of Common Stock in lieu of cash to Owners entitled
to fractional shares of Common Stock (beginning with the Owners entitled to the
largest fractional shares) until delivery of cash in lieu of fractional shares
of Common Stock to the remaining Owners would no longer result in the Issuer's
failure to be in compliance with such debt instrument.
19. LIABILITY OF ISSUER AND DEPOSITARY.
Neither the Depositary nor Issuer shall incur any liability to any
Owner or holder of any Receipt, if by reason of any provision of any present or
future law or regulation of the United States or of any governmental or
regulatory authority or stock exchange, or by reason of any provision, present
or future, of the Restated Certificate of Incorporation or by-laws of the
Issuer, or by reason of any act of God or war or other circumstances beyond its
control, the Depositary or Issuer shall be prevented or forbidden from, or be
subject to any civil or criminal penalty on account of, doing or performing any
act or thing which by the terms of the Deposit Agreement it is provided shall be
done or performed; nor shall the Depositary or Issuer incur any liability to any
Owner or holder of a Receipt by reason of any non-performance or delay, caused
as aforesaid, in the
19
performance of any act or thing which by the terms of the Deposit Agreement it
is provided 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.
Where, by the terms of a distribution pursuant to Sections 4.1, 4.3 or 4.4 of
the Deposit Agreement, or an offering or distribution pursuant to Section 4.5 of
the Deposit Agreement, or for any other reason, such distribution or offering
may not be made available to Owners of Receipts, and the Depositary may not
dispose of such distribution or offering on behalf of such Owners and make the
net proceeds available to such Owners, then the Depositary shall not make such
distribution or offering, and shall allow any rights, if applicable, to lapse.
Neither Issuer nor the Depositary assumes any obligation or shall be subject to
any liability under the Deposit Agreement to Owners or holders of Receipts,
except that they agree to perform their obligations specifically set forth in
the Deposit Agreement without negligence or bad faith. The Depositary shall not
be subject to any liability with respect to the validity or worth of the
Deposited Securities. Neither the Depositary nor Issuer shall be under any
obligation to appear in, prosecute or defend any action, suit or other
proceeding in respect of any Deposited Securities or in respect to the Receipts,
which in its opinion may involve it in expense or liability, unless indemnity
satisfactory to it against all expense and liability shall be furnished as often
as may be required. Neither the Depositary nor Issuer shall be liable for any
action or nonaction by it in reliance upon the advice of or information from
legal counsel, accountants, any person presenting Shares for deposit, any Owner
or any other person believed by it in good faith to be competent to give such
advice or information. The Depositary shall not be liable for any acts or
omissions made by a successor depositary whether in connection with a previous
act or omission of the Depositary or in connection with any matter arising
wholly after the removal or resignation of the Depositary, provided that in
connection with the issue out of which such potential liability arises the
Depositary performed its obligations without negligence or bad faith while it
acted as Depositary. The Depositary shall not be responsible for any failure to
carry out any instructions to vote any of the Deposited Securities, or for the
manner in which any such vote is cast or the effect of any such vote, provided
that any such action or nonaction is in good faith. The Issuer agrees to
indemnify the Depositary, its directors,
20
employees, agents and affiliates, and hold each of them harmless from, any
liability or expense (including, but not limited to, the fees and expenses of
counsel) which may arise out of acts performed or omitted, in accordance with
the provisions of the Deposit Agreement and of the Receipts, as the same may be
amended, modified or supplemented from time to time, (i) by either the
Depositary or its directors, employees, agents and affiliates, except for any
liability or expense arising out of the negligence or bad faith of either of
them, or (ii) by the Issuer or any of its directors, employees, agents and
affiliates. No disclaimer of liability under the Securities Act of 1933 is
intended by any provision of the Deposit Agreement.
20. RESIGNATION AND REMOVAL OF THE DEPOSITARY.
The Depositary may at any time resign as Depositary under the Deposit
Agreement by written notice of its election so to do delivered to the Issuer,
such resignation to take effect upon the appointment of a successor depositary
and its acceptance of such appointment as provided in the Deposit Agreement. The
Depositary may at any time be removed by Issuer by written notice of such
removal, effective upon the appointment of a successor depositary and its
acceptance of such appointment as provided in the Deposit Agreement.
21
21. 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 Issuer and
the Depositary in any respect that they may deem necessary or desirable. Any
amendment that shall impose any fees, taxes or charges (other than taxes and
other governmental charges, fees and expenses provided for in the Deposit
Agreement or in the Receipts), or that shall otherwise prejudice any substantial
existing right of Owners 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 Owners of outstanding Receipts. Every
Owner 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 the Deposit Agreement as amended thereby. In
no event shall any amendment impair the right, subject to the provisions of the
Deposit Agreement, of any Owner to surrender any Receipt or Receipts evidencing
Depositary Shares representing Shares with instructions to the Depositary or an
applicable agent of the Depositary to deliver to the Owner such Shares or to
cause the conversion of such Shares into Common Stock and cash for fractional
shares of Common Stock and, in each case, all securities and other property, if
any, represented thereby, except in order to comply with mandatory provisions of
applicable law.
22. TERMINATION OF DEPOSIT AGREEMENT.
The Deposit Agreement shall terminate at the close of business on
the Madatory Conversion Date upon distribution by the Depositary to each
Owner entitled thereto of (i) shares of Common Stock and cash (whether in
lieu of fractional shares or otherwise) received by the Depositary from the
Issuer for madatory conversion of, and/or dividend payments on, the
Deposiatary Shares evidenced by the Receipt or Receipts held by such Owner,
and (ii) all other securities, property and cash then held by the Depositary
hereunder. On and after the date of termination, the Owner of a Receipt will,
upon surrender of such Receipt at the Corporate Trust Office of the
Depositary and payment of any applicable taxes or governmental charges, be
entitled to delivery, to him or upon his order, of the amount of Deposited
Securities represented by the Depositary Shares evidenced by such Receipt. If
any Receipts shall remain outstanding after the date of termination, the
Depositary thereafter shall discontinue the registration of transfers of
Receipts, shall suspend the distribution of dividends to the Owners thereof,
and shall not give any further notices or perform any further acts under the
Deposit Agreement, except that the Depositary shall continue
22
to collect dividends and other distributions pertaining to Deposited
Securities, shall sell rights as provided in the Deposit Agreement, and shall
continue to deliver Deposited Securities, together with any dividends or
other distributions received with respect thereto and the net proceeds of the
sale of any rights or other property, in exchange for Receipts surrendered to
the Depositary (after deducting, in each case, any applicable taxes or
governmental charges). At any time after the expiration of one year from the
date of termination, the Depositary may sell the Deposited Securities then
held under the Deposit Agreement and may thereafter hold uninvested the net
proceeds of any such sale, together with any other cash then held by it under
the Deposit Agreement, unsegregated and without liability for interest, for
the pro rata benefit of the Owners of Receipts which have not theretofore
been surrendered, such Owners thereupon becoming general creditors of the
Depositary with respect to such net proceeds. After making such sale, the
Depositary shall be discharged from all obligations under the Deposit
Agreement, except to account for such net proceeds and other cash (after
deducting, in each case, any applicable taxes or governmental charges). Upon
the termination of the Deposit Agreement, the Issuer shall be discharged from
all obligations under the Deposit Agreement except for its obligations to the
Depositary under Sections 5.6 and 5.7 of the Deposit Agreement.
23