EXHIBIT 4.18
KEYSPAN CORPORATION
________________, as Depositary
AND
THE HOLDERS FROM TIME TO TIME OF
THE DEPOSITARY RECEIPTS DESCRIBED HEREIN
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Deposit Agreement
[Insert designation of preferred stock]
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Dated ____________
TABLE OF CONTENTS
Page
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ARTICLE I
Definitions
ARTICLE II
Form of Receipts, Deposit of Stock, Execution and Delivery, Transfer,
Surrender and Redemption of Receipts
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SECTION 2.01. Form and Transfer of Receipts..............................................................2
SECTION 2.02. Deposit of Stock; Execution and Delivery of Receipts in Respect Thereof....................3
SECTION 2.03. Redemption of Stock........................................................................4
SECTION 2.04. Conversion of Stock........................................................................5
SECTION 2.05. Registration of Transfer of Receipts.......................................................7
SECTION 2.06. Split-ups and Combinations of Receipts; Surrender of Receipts and
Withdrawal of Stock..................................................................7
SECTION 2.07. Limitations on Execution and Delivery, Transfer, Surrender and
Exchange of Receipts.................................................................8
SECTION 2.08. Lost Receipts, etc.........................................................................9
SECTION 2.09. Cancellation and Destruction of Surrendered Receipts.......................................9
ARTICLE III
Certain Obligations of Holders of Receipts and the Company
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SECTION 3.01. Filing Proofs, Certificates and Other Information..........................................9
SECTION 3.02. Payment of Taxes or Other Governmental Charges.............................................9
SECTION 3.03. Warranty as to Stock......................................................................10
ARTICLE IV
The Stock; Notices
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SECTION 4.01. Cash Distributions........................................................................10
SECTION 4.02. Distributions Other than Cash, Rights, Preferences or Privileges..........................10
SECTION 4.03. Subscription Rights, Preferences or Privileges............................................11
SECTION 4.04. Notice of Dividends, etc.; Fixing of Record Date for Holders of
Receipts............................................................................12
SECTION 4.05. Voting Rights.............................................................................12
SECTION 4.06. Changes Affecting Stock and Reclassifications, Recapitalizations, etc.....................12
SECTION 4.07. Inspection of Reports.....................................................................13
SECTION 4.08. Lists of Record Holders of Receipts.......................................................13
ARTICLE V
The Depositary, the Depositary's Agents, the Registrar and the Company
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SECTION 5.01. Maintenance of Offices, Agencies and Transfer Books by the Depositary;
Registrar...........................................................................14
SECTION 5.02. Prevention of or Delay in Performance by the Depositary, the
Depositary's Agents, the Registrar, the Transfer Agent or the
Company.............................................................................14
SECTION 5.03. Obligations of the Depositary, the Depositary's Agents, the Registrar,
the Transfer Agent and the Company..................................................15
SECTION 5.04. Resignation and Removal of the Depositary; Appointment of Successor
Depositary..........................................................................16
SECTION 5.05. Corporate Notices and Reports.............................................................16
SECTION 5.06. Indemnification by the Company............................................................16
SECTION 5.07. Charges and Expenses......................................................................17
ARTICLE VI
Amendment and Termination
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SECTION 6.01. Amendment.................................................................................17
SECTION 6.02. Termination...............................................................................18
ARTICLE VII
Miscellaneous
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SECTION 7.01. Counterparts..............................................................................18
SECTION 7.02. Exclusive Benefit of Parties..............................................................18
SECTION 7.03. Invalidity of Provisions..................................................................18
SECTION 7.04. Notices...................................................................................18
SECTION 7.05. Depositary's Agents.......................................................................19
SECTION 7.06. Holders of Receipts Are Parties...........................................................19
SECTION 7.07. GOVERNING LAW.............................................................................19
SECTION 7.08. Inspection of Deposit Agreement...........................................................19
SECTION 7.09. Headings..................................................................................19
DEPOSIT AGREEMENT dated as of _______________, among KEYSPAN
CORPORATION, a New York corporation, ____________, a __________ corporation, and
the holders from time to time of the Receipts described herein.
WHEREAS it is desired to provide, as hereinafter set forth in
this Deposit Agreement, for the deposit of shares of [insert designation of
preferred stock], par value $[o] per share, of KEYSPAN CORPORATION with the
Depositary for the purposes set forth in this Deposit Agreement and for the
issuance hereunder of Receipts evidencing Depositary Shares in respect of the
Stock so deposited; and
WHEREAS the 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, the parties
hereto agree as follows:
ARTICLE I
Definitions
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The following definitions shall for all purposes, unless
otherwise indicated, apply to the respective capitalized terms used in this
Deposit Agreement:
"Certificate" shall mean the Certificate of Amendment filed
with the Secretary of State of New York establishing the Stock as a series of
preferred stock of the Company.
[IF CONVERTIBLE: "Common Stock" shall mean the common stock, par value
$.01 per share, of the Company.]
"Company" shall mean KeySpan Corporation, a New York
corporation, and its successors.
"Deposit Agreement" shall mean this Deposit Agreement, as
amended or supplemented from time to time in accordance with the terms hereof.
"Depositary" shall mean _____________, and any successor as
Depositary hereunder.
"Depositary Shares" shall mean Depositary Shares, each
representing one ________ of a share of Stock and evidenced by a Receipt.
"Depositary's Agent" shall mean an agent appointed by the
Depositary pursuant to Section 7.05.
"Depositary's Office" shall mean the office of the Depositary
to be designated by the Depositary, at which at any particular time its
depositary receipt business shall be administered.
"Receipt" shall mean one of the Depositary Receipts issued
hereunder, whether in definitive or temporary form.
"record holder" as applied to a Receipt shall mean the person
in whose name a Receipt is registered on the books of the Depositary maintained
for such purpose.
"Registrar" shall mean any bank or trust company which shall
be appointed pursuant to Section 7.05 to register ownership and transfers of
Receipts as herein provided.
"Stock" shall mean shares of the Company's [insert designation
of preferred stock], par value $[o] per share.
"Transfer Agent" shall be as defined in Section 7.05.
ARTICLE II
Form of Receipts, Deposit of Stock, Execution and Delivery,
Transfer, Surrender and Redemption of Receipts
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SECTION 2.01. Form and Transfer of Receipts. Definitive Receipts shall be
engraved or printed or lithographed on steel-engraved borders and shall be
substantially in the form set forth in Exhibit A annexed to this Deposit
Agreement, with appropriate insertions, modifications and omissions, as
hereinafter provided. Pending the preparation of definitive Receipts, the
Depositary, upon the written order of the Company or any holder of Stock, as the
case may be, delivered in compliance with Section 2.02, shall execute and
deliver temporary Receipts which are printed, lithographed, typewritten,
mimeographed or otherwise substantially of the tenor of the definitive Receipts
in lieu of which they are issued and with such appropriate insertions,
omissions, substitutions and other variations as the persons executing such
Receipts may determine, as evidenced by their execution of such Receipts. If
temporary Receipts are issued, the Company and the Depositary will cause
definitive Receipts to be prepared without unreasonable delay. After the
preparation of definitive Receipts, the temporary Receipts shall be exchangeable
for definitive Receipts upon surrender of the temporary Receipts at any office
described in the third paragraph of Section 2.02, without charge to the holder.
Upon surrender for cancellation of any one or more temporary Receipts, the
Depositary shall execute and deliver in exchange therefor definitive Receipts
representing the same number of Depositary Shares as represented by the
surrendered temporary Receipt or Receipts. Such exchange shall be made at the
Company's expense and without any charge therefor. Until so exchanged, the
temporary Receipts shall in all respects be entitled to the same benefits under
this Agreement, and with respect to the Stock, as definitive Receipts.
Receipts shall be executed by the Depositary by the manual signature of a
duly authorized officer of the Depositary; provided that such signature may be a
facsimile if a Registrar for the Receipts (other than the Depositary) shall have
been appointed and such Receipts are countersigned by manual signature of a duly
authorized officer of the Registrar. No Receipt shall be entitled to any
benefits under this Deposit Agreement or be valid or obligatory for any purpose
unless it shall have been executed manually by a duly authorized officer of the
Depositary or, if a Registrar for the Receipts (other than the Depositary) shall
have been appointed, by manual or facsimile signature of a duly authorized
officer of the Depositary and countersigned manually by a duly authorized
officer of such Registrar. The Depositary shall record on its books each Receipt
so signed and delivered as hereinafter provided.
Receipts shall be in denominations of any number of whole Depositary
Shares.
Receipts may be endorsed with or have incorporated in the text thereof such
legends or recitals or changes not inconsistent with the provisions of this
Deposit Agreement as may be required by the Depositary or required to comply
with any applicable law or any regulation thereunder or with the rules and
regulations of any securities exchange upon which the Stock, the Depositary
Shares or the Receipts may be listed or to conform with any usage with respect
thereto, or to indicate any special limitations or restrictions to which any
particular Receipts are subject.
Title to Depositary Shares evidenced by a Receipt which is properly
endorsed, or accompanied by a properly executed instrument of transfer, shall be
transferable by delivery with the same effect as in the case of a negotiable
instrument; provided, however, that until transfer of a Receipt shall be
registered on the books of the Depositary as provided in Section 2.04, the
Depositary may, notwithstanding any notice to the contrary, treat the record
holder thereof at such time as the absolute owner thereof for the purpose of
determining the person entitled to distributions of dividends or other
distributions or to any notice provided for in this Deposit Agreement and for
all other purposes.
SECTION 2.02. Deposit of Stock; Execution and Delivery of Receipts in
Respect Thereof. Subject to the terms and conditions of this Deposit Agreement,
the Company or any holder of Stock may from time to time deposit shares of Stock
by delivery to the Depositary of a certificate or certificates representing the
Stock to be deposited, properly endorsed or accompanied, if required by the
Depositary, by a duly executed instrument of transfer or endorsement, in form
satisfactory to the Depositary, together with all such certifications as may be
required by the Depositary in accordance with the provisions of this Deposit
Agreement, and together with a written order of the Company or such holder, as
the case may be, directing the Depositary to execute and deliver to, or upon the
written order of, the person or persons stated in such order a Receipt or
Receipts for the number of Depositary Shares representing such deposited Stock.
Deposited Stock shall be held by the Depositary at the Depositary's Office or at
such other place or places as the Depositary shall determine.
Upon receipt by the Depositary of a certificate or certificates
representing the Stock to be deposited in accordance with the provisions of this
Section, together with the other documents required as above specified, and upon
recordation of such Stock on the books of the registrar for the Stock in the
name of the Depositary or its nominee, the Depositary, subject to the terms and
conditions of this Deposit Agreement, shall execute and deliver, to or upon the
order of the person or persons named in the written order delivered to the
Depositary referred to in the first paragraph of this Section, a Receipt or
Receipts for the number of Depositary Shares representing the Stock so deposited
and registered in such name or names as may be requested by such person or
persons.
The Depositary shall execute and deliver such Receipt or Receipts at the
Depositary's Office or such other offices, if any, as the Depositary may
designate. Delivery at other offices shall be at the risk and expense of the
person requesting such delivery.
[The Depositary Shares shall be initially represented by one or more
fully-registered global Receipts substantially in the form set forth in Exhibit
A, deposited with The Depository Trust Company, New York, New York ("DTC"), and
registered in the name of Cede & Co., as nominee for DTC. If DTC is at any time
unwilling or unable to continue as securities depository for the Receipts and a
successor depository is not appointed by the Company, or at any time upon the
election of the Company in its sole discretion, the Company may cause the
Depositary to issue Receipts evidencing Depositary Shares in definitive form in
exchange for all or (if applicable) a portion of such global Receipt(s).]
SECTION 2.03. Redemption of Stock. Whenever the Company shall elect to
redeem shares of Stock in accordance with the provisions of the Certificate, it
shall (unless otherwise agreed in writing with the Depositary) give the
Depositary not less than 40 nor more than 70 days' notice of the date of such
proposed redemption of Stock, which notice shall be accompanied by a certificate
from the Company stating that such redemption of Stock is in accordance with the
provisions of the Certificate. Such notice, if given more than 60 days prior to
the redemption date, shall be in addition to the notice required to be given for
redemption pursuant to the Certificate. On the date of such redemption, provided
that the Company shall then have paid in full to the Depositary the redemption
price of the Stock held by the Depositary to be redeemed, plus any accrued and
unpaid dividends thereon, the Depositary shall redeem the number of Depositary
Shares representing such Stock. The Depositary shall mail notice of such
redemption and the proposed simultaneous redemption of the number of Depositary
Shares representing the Stock to be redeemed, first-class postage prepaid, not
less than 30 and not more than 60 days prior to the date fixed for redemption of
such Stock and Depositary Shares (the "Redemption Date"), to the record holders
of the Receipts evidencing the Depositary Shares to be so redeemed, at the
addresses of such holders as they appear on the records of the Depositary; but
neither failure to mail any such notice to one or more such holders nor any
defect in any notice to one or more such holders shall affect the sufficiency of
the proceedings for redemption as to other holders. Each such notice shall
state: (i) the Redemption Date; (ii) the number of Depositary Shares to be
redeemed and, if less than all the Depositary Shares held by any such holder are
to be redeemed, the number of such Depositary Shares held by such holder to be
so redeemed; (iii) the redemption price; (iv) the place or places where Receipts
evidencing Depositary Shares are to be surrendered for payment of the redemption
price; and (v) that dividends in respect of the Stock represented by the
Depositary Shares to be redeemed will cease to accumulate on such Redemption
Date. In case less than all the outstanding Depositary Shares are to be
redeemed, the Depositary Shares to be so redeemed shall be selected by lot or
pro rata (subject to rounding to avoid fractions of the Depositary Shares) as
may be determined by the Company.
Notice having been mailed by the Depositary as aforesaid, from and after
the Redemption Date (unless the Company shall have failed to redeem the shares
of Stock to be redeemed by it as set forth in the Company's notice provided for
in the preceding paragraph) all dividends in respect of the shares of Stock so
called for redemption shall cease to accumulate, the Depositary Shares being
redeemed from such proceeds shall be deemed no longer to be outstanding, all
rights of the holders of Receipts evidencing such Depositary Shares (except the
right to receive the redemption price, including any accrued and unpaid
dividends thereon) shall, to the extent of such Depositary Shares, cease and
terminate and, upon surrender of the Receipts evidencing any such Depositary
Shares (properly endorsed or assigned for transfer, if the Depositary shall so
require) in accordance with such notice, such Depositary Shares shall be
redeemed by the Depositary at a redemption price per Depositary Share equal to
one ______ of the redemption price per share paid in respect of the shares of
Stock, plus accrued and unpaid dividends thereon to the date fixed for
redemption.
If less than all the Depositary Shares evidenced by a Receipt are called
for redemption, the Depositary will deliver to the holder of such Receipt upon
its surrender to the Depositary, together with the redemption payment, a new
Receipt evidencing the Depositary Shares evidenced by such prior Receipt and not
called for redemption.
SECTION 2.04. Conversion of Stock. [IF STOCK IS NOT CONVERTIBLE: The Stock
is not convertible into any other securities of the Company.] [IF STOCK IS
CONVERTIBLE INTO COMMON STOCK: Receipts may be surrendered with written
instructions to the Depositary to instruct the Company to cause the conversion
of any specified number of whole or fractional Stock represented by the
Depositary Shares evidenced thereby into whole shares of Common Stock at the
conversion price then in effect for the Stock (and, therefore, for the
Depositary Shares) specified in the Certificate, as such conversion price may be
adjusted by the Company from time to time as provided in the Certificate.
Subject to the terms and conditions of this Deposit Agreement and the
Certificate, a holder of a Receipt or Receipts evidencing Depositary Shares
representing whole or fractional Stock may surrender such Receipt or Receipts at
the Corporate Office or to such office or to such Depositary's Agents as the
Depositary may designate for such purpose, together with a notice of conversion
duly completed and executed, thereby directing the Depositary to instruct the
Company to cause the conversion of the number of shares or fractions thereof of
underlying Stock specified in such notice of conversion into shares of Common
Stock, and an assignment of such Receipt or Receipts to the Company or in blank,
duly completed and executed. To the extent that a holder delivers to the
Depositary for conversion a Receipt or Receipts which in the aggregate are
convertible into less than one whole share of Common Stock, the holder shall
receive payment in cash in lieu of such fractional shares of Common Stock
otherwise issuable. If more than one Receipt shall be delivered for conversion
at one time by the same holder, the number of whole shares of Common Stock
issuable upon conversion thereof shall be computed on the basis of the aggregate
number of Receipts so delivered.
Upon receipt by the Depositary of a Receipt or Receipts, together with any
amounts payable in respect of the conversion and notice of conversion, duly
completed and executed, directing the Depositary to instruct the Company to
cause conversion of a specified number of shares or fractions thereof of Stock
and an assignment of such Receipt or Receipts to the Company or in blank, duly
completed and executed, the Depositary shall instruct the Company (i) to cause
the conversion of the Depositary Shares evidenced by the Receipts so surrendered
for conversion as specified in the written notice to the Depositary and (ii) to
cause the delivery to the holders of such Receipts of (A) a certificate or
certificates evidencing the number of whole shares of Common Stock into which
the Stock represented by the Depositary Shares evidenced by those Receipt or
Receipts has or have been converted and (B) the amount of money, if any, to be
delivered to the holders of Receipts, surrendered for conversion in payment of
any accrued and unpaid dividends and in lieu of fractional shares of Common
Stock otherwise issuable. The Company shall as promptly as practicable after
receipt thereof cause the delivery of (i) a certificate or certificates
evidencing the number of whole shares of Common Stock into which the Stock
represented by the Depositary Shares evidenced by such Receipt or Receipts has
been converted and (ii) any money or other property to which the holder is
entitled. Upon such conversion, the Depositary (i) shall deliver to the holder a
Receipt evidencing the number of Depositary Shares, if any, which such holder
has elected not to convert and evidencing the number of Depositary Shares, if
any, in excess of the number of Depositary Shares representing Stock which has
been so converted, (ii) shall cancel the Depositary Shares evidenced by the
Receipts surrendered for conversion and (iii) shall deliver to the Company or
its transfer agent for the Stock for cancellation the Stock represented by the
Depositary Shares evidenced by the Receipts so surrendered and so converted.
If any Stock shall be called by the Company for redemption, the Depositary
Shares representing such Stock may be converted into Common Stock as provided in
this Deposit Agreement until and including, but not after, the close of business
on the _______ business day preceding the redemption date unless the Company
shall default in making payment of the amounts payable upon such redemption, in
which case the Depositary Shares representing such Stock may continue to be
converted into Common Stock until and including, but not after, the close of
business on the date on which the Company makes full payment of the shares of
the amounts payable on such redemption. Upon receipt by the Depositary of a
Receipt or Receipts, together with a properly completed and executed notice of
conversion, representing any Stock called for redemption, the Stock held by the
Depositary represented by such Depositary Shares for which conversion is
requested shall be deemed to have been received by the Company for conversion as
of the close of business on the date of such receipt.
The record holder of Depositary Shares on any dividend payment record date
established by the Depositary pursuant to Section 4.04 shall be entitled to
receive the dividend payable with respect to such Depositary Shares on the
corresponding dividend payment date notwithstanding the subsequent conversion of
the Stock to which such Depositary Shares relate. If Stock is converted between
the record date with respect to any dividend payment on the Stock and the
opening of business on the next succeeding dividend payment date, any holder of
Receipts surrendered with instructions to the Depositary for conversion of the
underlying Stock (except for Depositary Shares converted after the issuance of a
notice of redemption with respect to a redemption date during such period or
coinciding with such dividend payment date which shall be entitled to such
dividend on the dividend payment date) shall pay to the Depositary an amount
equal to the dividend payable on such dividend payment date on the Depositary
Shares represented by the Receipt being surrendered for conversion. Any holder
of Receipts on a dividend payment record date who (or whose transferee)
surrenders the Receipts with instructions to the Depositary for conversion of
the underlying Stock on the corresponding dividend payment date will receive the
dividend payable with respect to the Depositary shares underlying such Receipts
and will not be required to include payment of the amount of such dividend upon
surrender of the Receipts for conversion.
Upon the conversion of any Stock for which a request for conversion has
been made by the holder of Depositary Shares representing such shares, all
dividends in respect of such Depositary Shares shall cease to accrue (except as
provided in the preceding paragraph), such Depositary Shares shall be deemed no
longer outstanding, all rights of the holder of the Receipt with respect to such
Depositary Shares (except the right to receive the Common Stock, any cash
payable with respect to any fractional shares of Common Stock as provided herein
and any cash payable on account of accrued dividends and any Receipts evidencing
Depositary Shares not so converted) shall terminate, and the Receipt evidencing
such Depositary Shares shall be cancelled.
No fractional shares of Common stock shall be issuable upon conversion of
Stock underlying the Depositary Shares. If any holder of Receipts surrendered
with instructions to the Depositary for conversion of the underlying Stock would
be entitled to a fractional share of Common Stock upon such conversion, the
Company shall cause to be delivered to such holder an amount in cash for such
fractional share as provided in the Certificate.
SECTION 2.05. ...Registration of Transfer of Receipts. Subject to the terms
and conditions of this Deposit Agreement, the Depositary shall register on its
books from time to time transfers of Receipts upon any surrender thereof by the
holder in person or by duly authorized attorney, properly endorsed or
accompanied by a properly executed instrument of transfer. Thereupon the
Depositary and the Registrar shall execute a new Receipt or Receipts evidencing
the same aggregate number of Depositary Shares as those evidenced by the Receipt
or Receipts surrendered and deliver such new Receipt or Receipts to or upon the
order of the person entitled thereto.
SECTION 2.06. ...Split-ups and Combinations of Receipts; Surrender of
Receipts and Withdrawal of Stock. Upon surrender of a Receipt or Receipts at the
Depositary's Office or at such other offices as it may designate for the purpose
of effecting a split-up or combination of such Receipt or Receipts, and subject
to the terms and conditions of this Deposit Agreement, the Depositary shall
execute and deliver a new Receipt or Receipts in the authorized denomination or
denominations requested, evidencing the aggregate number of Depositary Shares
evidenced by the Receipt or Receipts surrendered.
Any holder of a Receipt or Receipts representing any number of whole shares
of Stock may withdraw the Stock by surrendering such Receipt or Receipts, at the
Depositary's Office or at such other offices as the Depositary may designate for
such withdrawals, provided that a holder of a Receipt or Receipts may not
withdraw such Stock which has been previously called for redemption. Thereafter,
without unreasonable delay, the Depositary shall deliver to such holder, or to
the person or persons designated by such holder as hereinafter provided, the
number of whole shares of Stock represented by the Receipt or Receipts so
surrendered for withdrawal, but holders of such whole shares of Stock will not
thereafter be entitled to deposit such Stock hereunder or to receive Depositary
Shares therefor; [provided, however, that a record holder who withdraws Stock in
order to demand dissenter's rights available under New York Business Corporation
Law ("NYBCL"), will, subject to certain conditions described below, be entitled
to redeposit such Stock with the Depositary and to receive Receipts evidencing
Depositary Shares therefor in the event (i) such record holder subsequently
withdraws such demand for dissenter's rights pursuant to Section 910 of the
NYBCL, (ii) dissenter's rights are not available for such Stock pursuant to
Section 910 of the NYBCL or (iii) such record holder loses or otherwise fails to
perfect his dissenter's rights pursuant to Section 623 of the NYBCL. In order to
redeposit Stock with the Depositary, such a record holder must deliver the
certificates for such Stock, properly endorsed or accompanied, if required by
the Depositary, by a duly executed instrument of transfer or endorsement, in
form satisfactory to the Depositary, together with instructions that such Stock
be so deposited, to the Depositary's office or to such other offices as the
Depositary may designate by not later than the 30th day after the earlier of (i)
the withdrawal of such dissenter's rights by such record holder, (ii) notice by
the Company that dissenter's rights are not available for such Stock or (iii)
the date on which such record holder loses or otherwise fails to perfect his
dissenter's rights. The Company will notify any record holder of Receipts who so
withdraws Stock in the event dissenter's rights in respect of Stock are not
available. Any shares so redeposited must be free and clear of any lien,
security interest or pledge and a holder may be required to provide
certification of the foregoing and such other certifications as may be required
by the Depositary in accordance with this Agreement. In addition, if required by
the Depositary, Stock presented for redeposit shall also be accompanied by (A)
an agreement or assignment, or other instrument satisfactory to the Depositary,
which will provide for the prompt transfer to the Depositary of any dividend or
right to subscribe for additional Stock or to receive other property which such
record holder may thereafter receive upon or in respect of such redeposited
Stock, or in lieu thereof, such agreement of indemnity or other agreement as
shall be satisfactory to the Depositary, and (B) a proxy or proxies entitling
the Depositary to vote such redeposited Stock for any and all purposes until the
Stock is transferred and recorded on the register of stockholders of the Company
in the name of the Depositary or its nominee.] If a Receipt delivered by the
holder to the Depositary in connection with such withdrawal shall evidence a
number of Depositary Shares in excess of the number of Depositary Shares
representing the number of whole shares of Stock to be so withdrawn, the
Depositary shall at the same time, in addition to such number of whole shares of
Stock to be so withdrawn, deliver to such holder a new Receipt evidencing such
excess number of Depositary Shares. Delivery of the Stock being withdrawn may be
made by the delivery of such certificates, documents of title and other
instruments as the Depositary may deem appropriate.
If the Stock being withdrawn is to be delivered to a person or persons
other than the record holder of the Receipt or Receipts being surrendered for
withdrawal of Stock, such holder shall execute and deliver to the Depositary a
written order so directing the Depositary and the Depositary may require that
the Receipt or Receipts surrendered by such holder for withdrawal of such shares
of Stock be properly endorsed in blank or accompanied by a properly executed
instrument of transfer in blank.
Delivery of the Stock represented by Receipts surrendered for withdrawal
shall be made by the Depositary at the Depositary's office or at such other
offices as the Depositary may designate, except that, at the request, risk and
expense of the holder surrendering such Receipt or Receipts and for the account
of the holder thereof, such delivery may be made at such other place as may be
designated by such holder.
SECTION 2.07. ...Limitations on Execution and Delivery, Transfer, Surrender
and Exchange of Receipts. As a condition precedent to the execution and
delivery, registration of transfer, split-up, combination, surrender or exchange
of any Receipt, the Depositary, any of the Depositary's Agents or the Company
may require (a) payment to it of a sum sufficient for the payment (or, in the
event that the Depositary or the Company shall have made such payment, the
reimbursement to it) of any charges or expenses payable by the holder of a
Receipt pursuant to Section 5.07, (b) the production of evidence satisfactory to
it as to the identity and genuineness of any signature and (c) compliance with
such regulations, if any, as the Depositary or the Company may establish
consistent with the provisions of this Deposit Agreement.
The deposit of Stock may be refused, the delivery of Receipts against Stock
may be suspended, the registration of transfer of Receipts may be refused and
the registration of transfer, surrender or exchange of outstanding Receipts may
be suspended (i) during any period when the register of stockholders of the
Company is closed or (ii) if any such action is deemed necessary or advisable by
the Depositary, any Depositary's Agents or the Company, at any time or from time
to time, because of any requirement of law or of any government or governmental
body or commission or under any provision of this Deposit Agreement.
SECTION 2.08. ...Lost Receipts, etc. In case any Receipt shall be
mutilated, destroyed, lost or stolen, the Depositary in its discretion may
execute and deliver a Receipt of like form and tenor in exchange and
substitution for such mutilated Receipt, or in lieu of and in substitution for
such destroyed, lost or stolen Receipt, upon (i) the filing by the holder
thereof with the Depositary of evidence satisfactory to the Depositary of such
destruction or loss or theft of such Receipt, of the authenticity thereof and of
his or her ownership thereof and (ii) the furnishing of the Depositary with
reasonable indemnification satisfactory to it.
SECTION 2.09. ...Cancellation and Destruction of Surrendered Receipts. All
Receipts surrendered to the Depositary or any Depositary's Agent shall be
canceled by the Depositary. Except as prohibited by applicable law or
regulation, the Depositary is authorized to destroy all Receipts so canceled.
ARTICLE III
Certain Obligations of Holders of Receipts and the Company
----------------------------------------------------------
SECTION 3.01. ...Filing Proofs, Certificates and Other Information. Any
holder of a Receipt may be required from time to time to file such proof of
residence, or other matters or other information, to execute such certificates
and to make such representations and warranties as the Depositary or the Company
may reasonably deem necessary or proper. The Depositary or the Company may
withhold the delivery, or delay the registration of transfer, redemption or
exchange, of any Receipt or the withdrawal of the Stock represented by the
Depositary Shares evidenced by any Receipt or the distribution of any dividend
or other distribution or the sale of any rights or of the proceeds thereof until
such proof or other information is filed or such certificates are executed or
such representations and warranties are made.
SECTION 3.02. ...Payment of Taxes or Other Governmental Charges. Holders of
Receipts shall be obligated to make payments to the Depositary of certain
charges and expenses, as provided in Section 5.07. Registration of transfer of
any Receipt or any withdrawal of Stock represented by the Depositary Shares
evidenced by such Receipt may be refused until any such payment due is made, and
any dividends, interest payments or other distributions may be withheld or any
part of or all the Stock or other property represented by the Depositary Shares
evidenced by such Receipt and not theretofore sold may be sold for the account
of the holder thereof (after attempting by reasonable means to notify such
holder prior to such sale), and such dividends, interest payments or other
distributions or the proceeds of any such sale may be applied to any payment of
such charges or expenses, the holder of such Receipt remaining liable for any
deficiency.
SECTION 3.03. ...Warranty as to Stock. The Company hereby represents and
warrants that the Stock, when issued, will be validly issued, fully paid and
nonassessable. Such representation and warranty shall survive the deposit of the
Stock and the issuance of Receipts.
ARTICLE IV
The Stock; Notices
------------------
SECTION 4.01. Cash Distributions. Whenever the Depositary shall receive any
cash dividend or other cash distribution on Stock, the Depositary shall, subject
to Sections 3.01 and 3.02, distribute to record holders of Receipts on the
applicable record date fixed pursuant to Section 4.04 such amounts of such
dividend or distribution as are, as nearly as practicable, in proportion to the
respective numbers of Depositary Shares evidenced by the Receipts held by such
holders; provided, however, that in case the Company or the Depositary shall be
required to withhold and shall withhold from any cash dividend or other cash
distribution in respect of the Stock an amount on account of taxes, the amount
made available for distribution or distributed in respect of Depositary Shares
shall be reduced accordingly. The Depositary shall distribute or make available
for distribution, as the case may be, only such amount, however, as can be
distributed without attributing to any holder of Depositary Shares a fraction of
one cent, and any balance not so distributable shall be held by the Depositary
(without liability for interest thereon) and shall be added to and be treated as
part of the next sum received by the Depositary for distribution to record
holders of Receipts then outstanding.
SECTION 4.02. Distributions Other than Cash, Rights, Preferences or
Privileges. Whenever the Depositary shall receive any distribution other than
cash and other than any rights, preferences or privileges described in Section
4.03, upon Stock, the Depositary shall, subject to Sections 3.01 and 3.02,
distribute to record holders of Receipts on the applicable record date fixed
pursuant to Section 4.04 such amounts of the securities or property received by
it as are, as nearly as practicable, in proportion to the respective numbers of
Depositary Shares evidenced by the Receipts held by such record holders, in any
manner that the Depositary may deem equitable and practicable for accomplishing
such distribution. If in the opinion of the Depositary such distribution cannot
be made proportionately among such record holders, or if for any other reason
(including any requirement that the Company or the Depositary withhold an amount
on account of taxes) the Depositary deems, after consultation with the Company,
such distribution not to be feasible, the Depositary may, with the approval of
the Company, adopt such method as it deems equitable and practicable for the
purpose of effecting such distribution, including the sale (at public or private
sale) of the securities or property thus received, or any part thereof, at such
place or places and upon such terms as it may deem proper. The net proceeds of
any such sale shall be, subject to Sections 3.01 and 3.02, distributed or made
available for distribution, as the case may be, by the Depositary to record
holders of Receipts as provided by Section 4.01 in the case of a distribution
received in cash.
The Depositary shall not make any distribution of securities received in
respect of the Stock unless the Company shall have provided an opinion of
counsel stating that such securities have been registered under the Securities
Act of 1933 or do not need to be so registered.
SECTION 4.03. Subscription Rights, Preferences or Privileges. If the
Company shall at any time offer or cause to be offered to the persons in whose
names Stock is recorded on the books of the Company any rights, preferences or
privileges to subscribe for or to purchase any securities or any rights,
preferences or privileges of any other nature, such rights, preferences or
privileges shall in each such instance be made available by the Depositary to
the record holders of Receipts in such manner as the Depositary may determine,
either by the issue to such record holders of warrants representing such rights,
preferences or privileges or by such other method as may be approved by the
Depositary in its discretion with the approval of the Company; provided,
however, that in case either (i) the Depositary determines that it is not lawful
or (after consultation with the Company) not feasible to make such rights,
preferences or privileges available to holders of Receipts by the issue of
warrants or otherwise, or (ii) with respect to any portion of the rights,
preferences or privileges of a holder of Receipts, the Depositary is instructed
that such holder does not desire to exercise such rights, preferences or
privileges, then the Depositary, in its discretion (with the approval of the
Company, in any case where the Depositary has determined that it is not feasible
to make such rights, preferences or privileges available), may (if applicable
laws and the terms of such rights, preferences or privileges permit such
transfer) sell such rights, preferences or privileges at public or private sale,
at such place or places and upon such terms as it may deem proper. The net
proceeds of any such sale shall be, subject to Section 3.01 and 3.02,
distributed by the Depositary to the record holders of Receipts entitled thereto
as provided by Section 4.01 in the case of a distribution received in cash. The
Depositary shall not make any distribution of any such rights, preferences or
privileges unless the Company shall have provided an opinion of counsel stating
that such rights, preferences or privileges have been registered under the
Securities Act of 1933 or do not need to be so registered.
If registration under the Securities Act of 1933, as amended, of the
securities to which any rights, preferences or privileges relate is required in
order for holders of Receipts to be offered or sold the securities to which such
rights, preferences or privileges relate, the Company agrees with the Depositary
that it will file promptly a registration statement pursuant to such Act with
respect to such rights, preferences or privileges and securities and use its
best efforts and take all steps available to it to cause such registration
statement to become effective sufficiently in advance of the expiration of such
rights, preferences or privileges to enable such holders to exercise such
rights, preferences or privileges. In no event shall the Depositary make
available to the holders of Receipts any right, preference or privilege to
subscribe for or to purchase any securities unless and until such a registration
statement shall have become effective, or unless the offering and sale of such
securities to such holders are exempt from registration under the provisions of
such Act.
If any other action under the laws of any jurisdiction or any governmental
or administrative authorization, consent or permit is required in order for such
rights, preferences or privileges to be made available to holders of Receipts,
the Company agrees with the Depositary that the Company will use its best
efforts to take such action or obtain such authorization, consent or permit
sufficiently in advance of the expiration of such rights, preferences or
privileges to enable such holders to exercise such rights, preferences or
privileges.
SECTION 4.04. Notice of Dividends, etc.; Fixing of Record Date for Holders
of Receipts. Whenever any cash dividend or other cash distribution shall become
payable or any distribution other than cash shall be made, or if rights,
preferences or privileges shall at any time be offered, with respect to Stock,
or whenever the Depositary shall receive notice of any meeting at which record
holders of Stock are entitled to vote or of which holders of Stock are entitled
to notice, or whenever the Depositary and the Company shall decide it is
appropriate, the Depositary shall in each such instance fix a record date (which
shall be the same date as the record date fixed by the Company with respect to
the Stock) for the determination of the record holders of Receipts who shall be
entitled to receive such dividend, distribution, rights, preferences or
privileges or the net proceeds of the sale thereof, or to give instructions for
the exercise of voting rights at any such meeting, or who shall be entitled to
notice of such meeting or for any other appropriate reasons.
SECTION 4.05. Voting Rights. Upon receipt of notice of any meeting at which
the record holders of Stock are entitled to vote, the Depositary shall, as soon
as practicable thereafter, mail to the record holders of Receipts a notice which
shall contain (i) such information as is contained in such notice of meeting and
(ii) a statement that the record holders may, subject to any applicable
restrictions, instruct the Depositary as to the exercise of the voting rights
pertaining to the amount of Stock represented by their respective Depositary
Shares (including an express indication that instructions may be given to the
Depositary to give a discretionary proxy to a person designated by the Company)
and a brief statement as to the manner in which such instructions may be given.
Upon the written request of the record holders of Receipts on the relevant
record date, the Depositary shall endeavor insofar as practicable to vote or
cause to be voted, in accordance with the instructions set forth in such
requests, the maximum number of whole shares of Stock represented by the
Depositary Shares evidenced by all Receipts as to which any particular voting
instructions are received. The Company hereby agrees to take all action which
may be deemed necessary by the Depositary in order to enable the Depositary to
vote such Stock or cause such Stock to be voted. In the absence of specific
instructions from the record holder of a Receipt, the Depositary will abstain
from voting (but, at its discretion, not from appearing at any meeting with
respect to such Stock unless directed to the contrary by the holders of all the
Receipts) to the extent of the Stock represented by the Depositary Shares
evidenced by such Receipt.
SECTION 4.06. Changes Affecting Stock and Reclassifications,
Recapitalizations, etc.. Upon any change in par or stated value, split-up,
combination or any other reclassification of the Stock, upon the sale of
substantially all of the assets of the Company, or upon any recapitalization,
reorganization, merger, amalgamation or consolidation affecting the Company or
to which it is a party, the Depositary may in its discretion with the approval
of, and shall upon the instructions of, the Company, and (in either case) in
such manner as the Depositary may deem equitable, (i) make such adjustments as
are certified by the Company in (x) the fraction of an interest represented by
one Depositary Share in one share of Stock [IF CONVERTIBLE: ,] [IF NOT
CONVERTIBLE: and] (y) the ratio of the redemption price per Depositary Share to
the redemption price of a share of Stock [IF CONVERTIBLE: and (z) the ratio of
the conversion price per Depositary Share to the conversion price of a share of
Stock], in each case as may be required to fully reflect the effects of such
change in par or stated value, split-up, combination or other reclassification
of Stock, or of such recapitalization, reorganization, merger, amalgamation,
consolidation or sale and (ii) treat any securities which shall be received by
the Depositary in exchange for or upon conversion of or in respect of the Stock
as new Stock so received in exchange for or upon conversion or in respect of
such Stock, and Receipts then outstanding shall thenceforth represent the
proportionate interests of holders thereof or the new deposited property so
received in exchange for or upon conversion in respect of such Stock. In any
such case the Depositary may in its discretion, with the approval of the
Company, execute and deliver additional Receipts, or may call for the surrender
of all outstanding Receipts to be exchanged for new Receipts specifically
describing such new Stock. Anything to the contrary herein notwithstanding,
holders of Receipts shall have the right from and after the effective date of
any such change in par or stated value, split-up, combination or other
reclassification of the Stock or any such recapitalization, reorganization,
merger, amalgamation, consolidation or sale to surrender such Receipts to the
Depositary with instructions to convert, exchange or surrender the Stock
represented thereby only into or for, as the case may be, the kind and amount of
shares of stock and other securities and property and cash into which the Stock
represented by such Receipts might have been converted or for which such Stock
might have been exchanged or surrendered immediately prior to the effective date
of such transaction.
SECTION 4.07. Inspection of Reports. The Depositary shall make available
for inspection by record holders of Receipts at the Depositary's Office, and at
such other places as it may from time to time deem advisable, any reports and
communications received from the Company which are received by the Depositary as
the holder of Stock.
SECTION 4.08. Lists of Record Holders of Receipts. Promptly upon request
from time to time by the Company, the Depositary shall furnish to it a list, as
of a recent date, of the names, addresses and holdings of Depositary Shares of
all persons in whose names Receipts are registered on the books of the
Depositary.
SECTION 4.09. Tax and Regulatory Compliance. The Depositary shall be
responsible for (i) preparation and mailing of form 1099s for all open and
closed accounts, (ii) foreign tax withholding, (iii) withholding 31% (or any
withholding as may be required at the then applicable rate) of dividends from
eligible holders of Receipts if directed to do so by the Company or required to
do so by applicable law, (iv) mailing W-9 forms to new holders of Receipts
without a certified taxpayer identification number, (v) processing certified W-9
forms, (vi) preparation and filing of state information returns and (vii)
escheatment services.
SECTION 4.10. Withholding. Notwithstanding any other provision of this
Deposit Agreement, in the event that the Depositary determines that any
distribution in property is subject to any tax that the Depositary is obligated
by law to withhold, the Depositary may dispose of all or a portion of such
property in such amounts and in such manner as the Depositary deems necessary
and practicable to pay such taxes, by public or private sale, and the Depositary
shall distribute the net proceeds of any such sale or the balance of any such
property after deduction of such taxes to the holders of Receipts entitled
thereto in proportion to the number of Depositary Shares held by them
respectively.
ARTICLE V
The Depositary, the Depositary's Agents,
the Registrar and the Company
-----------------------------
SECTION 5.01. Maintenance of Offices, Agencies and Transfer Books by the
Depositary; Registrar. The Depositary shall maintain at the Depositary's Office
facilities for the execution, delivery, registration and registration of
transfer, surrender and exchange of Receipts, and at the offices of the
Depositary's Agents, if any, facilities for the delivery, registration of
transfer, surrender and exchange of Receipts, all in accordance with the
provisions of this Deposit Agreement.
The Depositary shall keep books at the Depositary's Office for the
registration and registration of transfer of Receipts, which books at all
reasonable times shall be open for inspection by the record holders of Receipts;
provided that any such holder requesting to exercise such right shall certify to
the Depositary that such inspection shall be for a proper purpose reasonably
related to such person's interest as an owner of Depositary Shares evidenced by
the Receipts.
The Depositary may close such books, at any time or from time to time, when
deemed expedient by it in connection with the performance of its duties
hereunder.
The Depositary may, with the approval of the Company, appoint a Registrar
for registration of the Receipts or the Depositary Shares evidenced thereby. If
the Receipts or the Depositary Shares evidenced thereby or the Stock represented
by such Depositary Shares shall be listed on the New York Stock Exchange, the
Depositary will appoint a Registrar (acceptable to the Company) for registration
of such Receipts or Depositary Shares in accordance with any requirements of
such Exchange. Such Registrar (which may be the Depositary if so permitted by
the requirements of such Exchange) may be removed and a substitute registrar
appointed by the Depositary upon the request or with the approval of the
Company. If the Receipts, such Depositary Shares or such Stock are listed on one
or more other stock exchanges, the Depositary will, at the request of the
Company, arrange such facilities for the delivery, registration, registration of
transfer, surrender and exchange of such Receipts, such Depositary Shares or
such Stock as may be required by law or applicable stock exchange regulation.
SECTION 5.02. Prevention of or Delay in Performance by the Depositary, the
Depositary's Agents, the Registrar, the Transfer Agent or the Company. Neither
the Depositary nor any Depositary's Agent nor any Registrar nor any Transfer
Agent nor the Company shall incur any liability to any holder of any Receipt if
by reason of any provision of any present or future law, or regulation
thereunder, of the United States of America or of any other governmental
authority or, in the case of the Depositary, the Depositary's Agent or the
Registrar, by reason of any provision, present or future, of the Company's
Certificate of Incorporation (including the Certificate) or by reason of any act
of God or war or other circumstance beyond the control of the relevant party,
the Depositary, the Depositary's Agent, the Registrar, the Transfer Agent or the
Company shall be prevented or forbidden from, or subjected to any penalty on
account of, doing or performing any act or thing which the terms of this Deposit
Agreement provide shall be done or performed; nor shall the Depositary, any
Depositary's Agent, any Registrar, any Transfer Agent or the Company incur any
liability to any holder of a Receipt (i) by reason of any nonperformance or
delay, caused as aforesaid, in the performance of any act or thing which the
terms of this Deposit Agreement provide shall or may be done or performed, or
(ii) by reason of any exercise of, or failure to exercise, any discretion
provided for in this Deposit Agreement except, in case of any such exercise or
failure to exercise discretion not caused as aforesaid, if caused by the
negligence or willful misconduct of the party charged with such exercise or
failure to exercise.
SECTION 5.03. Obligations of the Depositary, the Depositary's Agents, the
Registrar, the Transfer Agent and the Company. Neither the Depositary nor any
Depositary's Agent nor any Registrar nor any Transfer Agent nor the Company
assumes any obligation or shall be subject to any liability under this Deposit
Agreement to holders of Receipts other than for its negligence or willful
misconduct.
Neither the Depositary nor any Depositary's Agent nor any Registrar nor any
Transfer Agent nor the Company shall be under any obligation to appear in,
prosecute or defend any action, suit or other proceeding in respect of the
Stock, the Depositary Shares or the Receipts which in its opinion may involve it
in expense or liability unless indemnity satisfactory to it against all expense
and liability be furnished as often as may be required.
Neither the Depositary nor any Depositary's Agent nor any Registrar nor any
Transfer Agent nor the Company shall be liable for any action or any failure to
act by it in reliance upon the written advice of legal counsel or accountants,
or information from any person presenting Stock for deposit, any holder of a
Receipt or any other person believed by it in good faith to be competent to give
such information. The Depositary, any Depositary's Agent, any Registrar, any
Transfer Agent and the Company may each rely and shall each be protected in
acting upon any written notice, request, direction or other document believed by
it to be genuine and to have been signed or presented by the proper party or
parties.
In the event the Depositary shall receive conflicting claims, requests or
instructions from any holders of Receipts, on the one hand, and the Company, on
the other hand, the Depositary shall be entitled to act on such claims, requests
or instructions received from the Company, and shall be entitled to the full
indemnification set forth in Section 5.06 hereof in connection with any action
so taken.
The Depositary and any Depositary's Agent shall not be responsible for any
failure to carry out any instruction to vote any of the shares of Stock or for
the manner or effect of any such vote made, as long as any such action or
non-action is in good faith. The Depositary undertakes, and any Registrar and
Transfer Agent shall be required to undertake, to perform such duties and only
such duties as are specifically set forth in this Agreement, and no implied
covenants or obligations shall be read into this Agreement against the
Depositary, any Registrar or any Transfer Agent. The Depositary will indemnify
the Company against any liability which may arise out of acts performed or
omitted by the Depositary or its agents due to its or their negligence or bad
faith. The Depositary, the Depositary's Agents, any Registrar and any Transfer
Agent may own and deal in any class of securities of the Company and its
affiliates and in Receipts. The Depositary may also act as transfer agent or
registrar of any of the securities of the Company and its affiliates.
SECTION 5.04. Resignation and Removal of the Depositary; Appointment of
Successor Depositary. The Depositary may at any time resign as Depositary
hereunder by notice of its election to do so delivered to the Company, such
resignation to take effect upon the appointment of a successor Depositary and
its acceptance of such appointment as hereinafter provided.
The Depositary may at any time be removed by the Company by notice of such
removal delivered to the Depositary, such removal to take effect upon the
appointment of a successor Depositary and its acceptance of such appointment as
hereinafter provided.
In case at any time the Depositary acting hereunder shall resign or be
removed, the Company shall, within 60 days after the delivery of the notice of
resignation or removal, as the case may be, appoint a successor Depositary,
which shall be a bank or trust company having its principal office in the United
States of America and having a combined capital and surplus of at least
$50,000,000. If no successor Depositary shall have been so appointed and have
accepted appointment within 60 days after delivery of such notice, the resigning
or removed Depositary may petition any court of competent jurisdiction for the
appointment of a successor Depositary. Every successor Depositary shall execute
and deliver to its predecessor and to the Company an instrument in writing
accepting its appointment hereunder, and thereupon such successor Depositary,
without any further act or deed, shall become fully vested with all the rights,
powers, duties and obligations of its predecessor and for all purposes shall be
the Depositary under this Deposit Agreement, and such predecessor, upon payment
of all sums due it and on the written request of the Company, shall execute and
deliver an instrument transferring to such successor all rights and powers of
such predecessor hereunder, shall duly assign, transfer and deliver all right,
title and interest in the Stock to such successor, and shall deliver to such
successor a list of the record holders of all outstanding Receipts. Any
successor Depositary shall promptly mail notice of its appointment to the record
holders of Receipts.
Any corporation into or with which the Depositary may be merged,
consolidated or converted shall be the successor of such Depositary without the
execution or filing of any document or any further act, and notice thereof shall
not be required hereunder. Such successor Depositary may authenticate the
Receipts in the name of the predecessor Depositary or in the name of the
successor Depositary.
SECTION 5.05. Corporate Notices and Reports. The Company agrees that it
will transmit to the record holders of Receipts, in each case at the addresses
furnished to it pursuant to Section 4.08, all notices and reports (including
without limitation financial statements) required by law, by the rules of any
national securities exchange upon which the Stock, the Depositary Shares or the
Receipts are listed or by the Company's Certificate of Incorporation (including
the Certificate) to be furnished by the Company to holders of Receipts. Such
transmission will be at the Company's expense.
SECTION 5.06. Indemnification by the Company. The Company shall indemnify
the Depositary, any Depositary's Agent, any Registrar and any Transfer Agent
against, and hold each of them harmless from, any loss, liability or expense
(including the costs and expenses of defending itself) which may arise out of
(a) acts performed or omitted in connection with this Agreement and the Receipts
by (i) the Depositary, any Registrar, any Transfer Agent or any of their
respective agents (including any Depositary's Agent), except for any liability
arising out of negligence or bad faith on the respective parts of any such
person or persons, or (ii) the Company or any of its agents, or (b) the offer,
sale or registration of the Receipts or the Stock pursuant to the provisions
hereof. The obligations of the Company set forth in this Section 5.06 shall
survive any succession of any Depositary, Registrar, Transfer Agent or
Depositary's Agent.
SECTION 5.07. Charges and Expenses. The Company shall pay all transfer and
other taxes and governmental charges arising solely from the existence of the
depositary arrangements. The Company shall pay all charges of the Depositary in
connection with the initial deposit of the Stock and the initial issuance of the
Depositary Shares and any redemption of the Stock at the option of the Company
[IF CONVERTIBLE: and the issuance of Common Stock upon the surrender of Receipts
for conversion]. All other transfer and other taxes and governmental charges and
fees for the withdrawal of Stock upon surrender of Receipts shall be at the
expense of holders of Depositary Shares. The Depositary's fee for the withdrawal
of Stock shall be at the rate of $____ per 100 Depositary Receipts. If, at the
request of a holder of Receipts, the Depositary incurs charges or expenses for
which it is not otherwise liable hereunder, such holder will be liable for such
charges and expenses. All other charges and expenses of the Depositary and any
Depositary's Agent hereunder and of any Registrar and Transfer Agent (including,
in each case, reasonable fees and expenses of counsel) incident to the
performance of their respective obligations hereunder will be paid upon prior
consultation and agreement between the Depositary and the Company as to the
amount and nature of such charges and expenses. The Depositary shall present its
statement for charges and expenses to the Company once every month or at such
other intervals as the Company and the Depositary may agree.
ARTICLE VI
Amendment and Termination
-------------------------
SECTION 6.01. Amendment. The form of the Receipts and any provisions of
this Deposit Agreement may at any time and from time to time be amended by
agreement between the Company and the Depositary in any respect which they may
deem necessary or desirable; provided, however, that no such amendment (other
than any change in the fees of any Depositary, Registrar or Transfer Agent,
which shall go into effect not sooner than three months after notice thereof to
the record holders of the Receipts) which shall materially and adversely alter
the rights of the holders of Receipts shall be effective unless such amendment
shall have been approved by the record holders of at least a majority of the
Depositary Shares then outstanding. In no event shall any amendment impair the
right, subject to the provisions of Section 2.06 and Section 2.07 and Article
III, of any holder of any Depositary Shares to surrender the Receipt evidencing
such Depositary Shares to the Depositary with instructions to cause the
conversion of such Receipt into Common Stock or to deliver to the holder the
Stock and all money and other property, if any, represented thereby, except in
order to comply with mandatory provisions of applicable law or the rules and
regulations of any governmental body, agency or commission, the National
Association of Securities Dealers or any applicable stock exchange. Every holder
of an outstanding Receipt at the time any such amendment becomes effective shall
be deemed, by continuing to hold such Receipt, to consent and agree to such
amendment and to be bound by the Deposit Agreement as amended thereby.
SECTION 6.02. Termination. This Agreement may be terminated by the Company
or the Depositary only after (i) all outstanding Depositary Shares shall have
been redeemed pursuant to Section 2.03 [IF CONVERTIBLE: or all Stock shall have
been converted into Common Stock] or (ii) there shall have been made a final
distribution in respect of the Stock in connection with any liquidation,
dissolution or winding up of the Company and such distribution shall have been
distributed to the holders of Depositary Shares pursuant to Section 4.01 or
4.02, as applicable.
Upon the termination of this Deposit Agreement, the Company shall be
discharged from all obligations under this Deposit Agreement except for its
obligations to the Depositary, any Depositary's Agent, any Registrar and any
Transfer Agent under Sections 5.06 and 5.07.
ARTICLE VII
Miscellaneous
-------------
SECTION 7.01. Counterparts. This Deposit Agreement may be executed in any
number of counterparts, and by each of the parties hereto on separate
counterparts, each of which counterparts, when so executed and delivered, shall
be deemed an original, but all such counterparts taken together shall constitute
one and the same instrument.
SECTION 7.02. Exclusive Benefit of Parties. This Deposit Agreement is for
the exclusive benefit of the parties hereto, and their respective successors
hereunder, and shall not be deemed to give any legal or equitable right, remedy
or claim to any other person whatsoever.
SECTION 7.03. Invalidity of Provisions. In case any one or more of the
provisions contained in this Deposit Agreement or in the Receipts should be or
become invalid, illegal or unenforceable in any respect, the validity, legality
and enforceability of the remaining provisions contained herein or therein shall
in no way be affected, prejudiced or disturbed thereby.
SECTION 7.04. Notices. Any and all notices to be given to the Company
hereunder or under the Receipts shall be in writing and shall be deemed to have
been duly given if personally delivered or sent by mail or telegram or telex
confirmed by letter, addressed to the Company at One MetroTech Center, Brooklyn,
New York 11201-3850, to the attention of the [Secretary], or at any other
address of which the Company shall have notified the Depositary in writing.
Any and all notices to be given to the Depositary hereunder or under the
Receipts shall be in writing and shall be deemed to have been duly given if
personally delivered or sent by mail or by telegram or telex confirmed by
letter, addressed to the Depositary at the Depositary's Office, at ___________,
or at any other address of which the Depositary shall have notified the Company
in writing.
Any and all notices to be given to any record holder of a Receipt hereunder
or under the Receipts shall be in writing and shall be deemed to have been duly
given if personally delivered or sent by mail or by telegram or telex confirmed
by letter, addressed to such record holder at the address of such record holder
as it appears on the books of the Depositary, or if such holder shall have filed
with the Depositary a written request that notices intended for such holder be
mailed to some other address, at the address designated in such request.
Delivery of a notice sent by mail or by telegram or telex shall be deemed
to be effected at the time when a duly addressed letter containing the same (or
a confirmation thereof in the case of a telegram or telex message) is deposited,
postage prepaid, in a post office letter box. The Depositary or the Company may,
however, act upon any telegram or telex message received by it from the other or
from any holder of a Receipt, notwithstanding that such telegram or telex
message shall not subsequently be confirmed by letter or as aforesaid.
SECTION 7.05. Depositary's Agents. Except as otherwise set forth herein,
the Depositary may from time to time appoint Depositary's Agents to act in any
respect for the Depositary for the purposes of this Deposit Agreement and may at
any time appoint additional Depositary's Agents and vary or terminate the
appointment of such Depositary's Agents. The Depositary will notify the Company
of any such action.
The Company has authorized the appointment of, and has requested the
Depositary to appoint hereunder, ___________, as transfer agent (the "Transfer
Agent") for the Depositary Shares. The Depositary hereby appoints __________ as
Transfer Agent and Registrar for the Depositary Shares and delegates to
___________ the duties of the Depositary hereunder customarily performed by a
transfer agent, a registrar and a depositary. Without otherwise affecting the
liability of the Depositary hereunder, it is hereby agreed that if ___________
shall have agreed in writing to be bound by all the terms and conditions of this
Deposit Agreement and to assume the obligations of the Depositary hereunder to
be performed by it, then in no event shall the Depositary be liable for any acts
or omissions of ___________ as Transfer Agent, Registrar or Depositary's Agent
with respect to the Depositary Shares.
SECTION 7.06. Holders of Receipts Are Parties. The holders 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 of
delivery thereof.
SECTION 7.07. GOVERNING LAW. THIS DEPOSIT AGREEMENT AND THE RECEIPTS AND
ALL RIGHTS HEREUNDER AND THEREUNDER SHALL BE GOVERNED BY, AND CONSTRUED IN
ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK.
SECTION 7.08. Inspection of Deposit Agreement. Copies of this Deposit
Agreement shall be filed with the Depositary and the Depositary's Agents and
shall be open to inspection during business hours at the Depositary's office and
the respective offices of the Depositary's Agents, if any, by the holder of a
Receipt.
SECTION 7.09. Headings. The headings of articles and sections in this
Deposit Agreement and in the form of the Receipt set forth in Exhibit A hereto
have been inserted for convenience only and are not to be regarded as a part of
this Deposit Agreement or the Receipts or to have any bearing upon the meaning
or interpretation of any provisions contained herein or in the Receipts.
IN WITNESS WHEREOF, the Company and the Depositary have duly
executed this Agreement as of the day and year first above set forth, and all
holders of Receipts shall become parties hereto by and upon acceptance by them
of delivery of Receipts issued in accordance with the terms hereof.
KEYSPAN CORPORATION,
By: ____________________________________
_______________, as Depositary,
By:
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EXHIBIT A
[FORM OF FACE OF RECEIPT]
DR.
CUSIP No. _________________
RECEIPT FOR DEPOSITARY SHARES,
EACH REPRESENTING A ONE- _________ INTEREST
IN A SHARE OF _________________, PAR VALUE [o] PER SHARE
OF
KEYSPAN CORPORATION
(a New York Corporation)
___________________________________ as Depositary (the "Depositary"),
hereby certifies that _____________________ is the registered owner of
______________ DEPOSITARY SHARES ("Depositary Shares"), each Depositary
Share representing a one-___________ interest in a share of
__________________________________, par value $[o] per share (the
"Stock"), of KeySpan Corporation, a New York corporation (the
"Company"), on deposit with the Depositary, subject of the terms and
entitled to the benefits of the Deposit Agreement dated as of
__________ __, 2001 (the "Deposit Agreement"), among the Company, the
Depositary and the holders from time to time of Receipts for Depositary
Shares. By accepting this Receipt, the holder hereof becomes a party to
and agrees to be bound by all the terms and conditions of the Deposit
Agreement. This Receipt shall not be valid or obligatory for any
purpose or entitled to any benefits under the Deposit Agreement unless
it shall have been executed by the Depositary by the manual or
facsimile signature of a duly authorized officer or, if a Registrar in
respect of the Receipts (other than the Depositary) shall have been
appointed, by the manual signature of a duly authorized officer of such
Registrar.
Dated:
[Countersigned: _________________________
By: ______________________] By:______________________
Authorized Signatory
[FORM OF REVERSE RECEIPT]
KEYSPAN CORPORATION
KEYSPAN CORPORATION WILL FURNISH WITHOUT CHARGE TO EACH
REGISTERED HOLDER OF RECEIPTS WHO SO REQUESTS A COPY OF THE DEPOSIT
AGREEMENT AND A COPY OF THE CERTIFICATE OF AMENDMENT WITH RESPECT TO
THE ____________________OF KEYSPAN CORPORATION. ANY SUCH REQUEST SHALL
BE ADDRESSED TO THE DEPOSITARY NAMED ON THE FACE OF THIS RECEIPT.
----------------------
The following abbreviations when used in the instructions on
the face of this receipt shall be construed as though they were written
out in full according to applicable laws or regulations.
TEN COM- As Tenant In Common UNIF GIFT MIN ACT - Custodian
---------
(Cust)
(Minor)
TEN ENT- as tenant by the entireties Under Uniform Gifts to Minors Act
JT TEN as joint tenants with right of
survivorship and not as tenants ____________________
in common (State)
Additional abbreviations may also be used though not
in the above list.
ASSIGNMENT
For value received, ___________ hereby sell(s), assign(s) and transfer(s) unto
PLEASE INSERT SOCIAL SECURITY OR OTHER IDENTIFYING NUMBER OF ASSIGNEE
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PLEASE PRINT OR TYPE NAME AND ADDRESS INCLUDING POSTAL ZIP CODE OF ASSIGNEE
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______________ Depositary Shares represented by the within Receipt, and do
hereby irrevocably constitute and appoint _____________ Attorney to transfer the
said Depositary Shares on the books of the within name Depositary with full
power of substitution in the premises.
Dated: ______________ _______________________________________
NOTICE: The signature to the assignment must
Correspond with the name as written upon the face
of this Receipt in every particular, without
alteration or enlargement or any change whatever.