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FORM 8-A
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
______
FOR REGISTRATION OF CERTAIN CLASSES OF SECURITIES
PURSUANT TO SECTION 12(b) OR (g) OF THE
SECURITIES EXCHANGE ACT OF 1934
TESORO PETROLEUM CORPORATION
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(Exact name of registrant as specified in its charter)
Delaware 95-0862768
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(State of incorporation or organization) (I.R.S. Employer Identification No.)
8700 Tesoro Drive
San Antonio, Texas 78217
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(Address of principal executive offices) (Zip Code)
If this form relates to the registration of a class of securities
pursuant to Section 12(b) of the Exchange Act and is effective upon filing
pursuant to General Instruction A.(c), check the following box. [X]
If this form relates to the registration of a class of securities
pursuant to Section 12(g) of the Exchange Act and is effective pursuant to
General Instruction A.(d), check the following box. [ ]
Securities Act registration file number to which this form relates:
333-51789 (if applicable)
SECURITIES TO BE REGISTERED PURSUANT TO SECTION 12(b) OF THE ACT:
Title of each class Name of each exchange on which
to be so registered each class is to be registered
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Premium Income Equity Securities ("PIES") New York Stock Exchange
represented by depositary shares
SECURITIES TO BE REGISTERED PURSUANT TO SECTION 12(g) OF THE ACT:
NONE
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Item 1. Description of Registrant's Securities to be Registered
The securities to be registered are Premium Income Equity
Securities (the "PIES") of the Registrant represented by depositary shares. A
description of the PIES is set forth under the caption "Description of PIES" in
the prospectus supplement, subject to completion, which constitutes part of the
Registrant's Registration Statement on Form S-3 (File No. 333-51789), as filed
with the Securities and Exchange Commission on May 4, 1998, pursuant to the
Securities Act of 1933, as amended (the "Act"), which such description is
hereby incorporated herein by reference. Such description will also be
included in a form of prospectus supplement to be filed by the Registrant
pursuant to Rule 424(b) under the Act, which such prospectus supplement shall
be deemed to be hereby incorporated herein by reference.
Item 2. Exhibits
1. Form of Certificate of Designation, Rights and Preferences.
2. Form of Deposit Agreement among the Registrant, The Bank of
New York and the holders from time to time of depositary
receipts executed and delivered thereunder.
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SIGNATURE
Pursuant to the requirements of Section 12 of the Securities
Exchange Act of 1934, the Registrant has duly caused this Registration
Statement to be signed on its behalf by the undersigned, thereunto duly
authorized.
TESORO PETROLEUM CORPORATION
By: /s/ James C. Reed Jr.
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James C. Reed, Jr.
Executive Vice President,
General Counsel and
Secretary
Dated: June 22, 1998
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INDEX TO EXHIBITIS
1. Form of Certificate of Designation, Rights and Preferences.
2. Form of Deposit Agreement among the Registrant, The Bank of New York
and the holders from time to time of depositary receipts executed and
delivered thereunder.
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EXHIBIT 1
CERTIFICATE OF DESIGNATION
OF
% MANDATORILY CONVERTIBLE PREFERRED STOCK
OF
TESORO PETROLEUM CORPORATION
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Pursuant to Section 151 of the General Corporation
Law of the State of Delaware
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TESORO PETROLEUM CORPORATION, a corporation organized and existing
under the General Corporation Law of the State of Delaware (the "Company"), does
hereby certify that the following resolution was duly adopted by the Board of
Directors of the Company (the "Board") at a special meeting of the Board of
Directors held on , 1998:
RESOLVED, that pursuant to the authority conferred upon the Board
by the provisions of the Company's Restated Certificate of Incorporation (the
"Certificate") and in accordance with Section 151 of the General Corporation Law
of the State of Delaware, the Board hereby creates, from the 5,000,000 shares of
preferred stock, no par value per share (the "Preferred Stock"), of the Company,
authorized to be issued pursuant to the Certificate, a series of Preferred Stock
consisting of 59,800 shares of % Mandatorily Convertible Preferred Stock
and hereby fixes the voting powers, designations, preferences and relative,
participating, optional or other special rights, and qualifications, limitations
or restrictions of such preferences and/or rights, of the shares of that series
as follows:
Section 1. Designation. (a) The shares of the series will be
designated as the % Mandatorily Convertible Preferred Stock (the
"Mandatorily Convertible Preferred Stock"). The total number of authorized
shares of the Mandatorily Convertible Preferred Stock will be 59,800.
(b) Any shares of the Mandatorily Convertible Preferred Stock that
at any time have been acquired upon conversion or otherwise acquired by the
Company shall, after such conversion or other acquisition, resume the status of
authorized and unissued shares of Preferred Stock without designation as to
series until such shares are once more designated as part of a particular series
by the Board.
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Section 2. Rank.
The shares of Mandatorily Convertible Preferred Stock will rank on
parity, both as to payment of dividends and distribution of assets upon
liquidation, with any Preferred Stock issued by the Company in the future that
by its terms ranks pari passu with the shares of Mandatorily Convertible
Preferred Stock.
Section 3. Dividends. (a) The holders of record of the shares of
Mandatorily Convertible Preferred Stock shall be entitled to receive, when, as
and if declared by the Board out of funds legally available therefor, cash
dividends ("Preferred Dividends") from the date of the initial issuance of the
shares of Mandatorily Convertible Preferred Stock at the rate of % per annum
or % per quarter per share of Mandatorily Convertible Preferred Stock,
payable quarterly in arrears on January 1, April 1, July 1 and October 1 or, if
any such date is not a business day (as defined in Section 7 hereof), the
Preferred Dividend due on such date shall be payable on the next succeeding
business day (each such payment date being a "Regular Dividend Payment Date"),
subject to upward adjustment pursuant to Section 3(c) hereof. The first dividend
period will be from the date of initial issuance of the shares of Mandatorily
Convertible Preferred Stock to but excluding October 1, 1998 and will be payable
on October 1, 1998. Preferred Dividends shall cease to accrue on shares of
Mandatorily Convertible Preferred Stock on the Mandatory Conversion Date (as
defined in Section 4 hereof) or on the date of their earlier conversion.
Preferred Dividends shall be payable to holders of record of shares of
Mandatorily Convertible Preferred Stock as they appear on the stock register of
the Company on record dates not less than 15 nor more than 60 days preceding the
payment date thereof, as shall be fixed by the Board. Preferred Dividends
payable on shares of Mandatorily Convertible Preferred Stock for any period less
than a full quarterly dividend period (or, in the case of the first Preferred
Dividend, from the date of initial issuance of the shares of Mandatorily
Convertible Preferred Stock to the first Regular Dividend Payment Date) will be
computed on the basis of a 360-day year of twelve 30-day months and the actual
number of days elapsed in any period less than one month. Preferred Dividends
shall accrue on a daily basis (computed as set forth in the immediately
preceding sentence) whether or not there are funds of the Company legally
available for the payment of such Preferred Dividends and whether or not such
Preferred Dividends are declared. Accrued but unpaid Preferred Dividends shall
cumulate as of the Regular Dividend Payment Date on which they first become
payable, but no interest shall accrue on accumulated but unpaid Preferred
Dividends.
(b) Whether or not the Mandatory Conversion Date has occurred,
(i) no dividends (other than dividends payable in shares of, or
warrants, rights or options exercisable for or convertible into shares
of, any capital stock, including without limitation, the Common Stock,
of the Company ranking junior to the Mandatorily Convertible Preferred
Stock as to the payment of dividends
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and the distribution of assets upon liquidation (collectively "Junior
Stock") and cash in lieu of fractional shares in connection with any
such dividend) may be paid or declared in cash or otherwise, nor may
any other distribution by made (other than a distribution payable in
Junior Stock and cash in lieu of fractional shares in connection with
any such distribution), on any Junior Stock;
(ii) no shares of any Junior Stock may be purchased, redeemed or
otherwise acquired by the Company or any of its subsidiaries (except in
connection with a reclassification or exchange of any Junior Stock
through the issuance of other Junior Stock (and cash in lieu of
fractional shares in connection therewith) or the purchase, redemption
or other acquisition of any Junior Stock with any Junior Stock (and
cash in lieu of fractional shares in connection therewith)) nor may any
funds be set aside or made available for any sinking funds for the
purchase, redemption or acquisition of any Junior Stock; and
(iii) no dividends or other distributions may be declared or paid
on any Preferred Stock (including the Mandatorily Convertible Preferred
Stock) that does not constitute Junior Stock ("Parity Preferred Stock")
(other than dividends or other distributions payable in Junior Stock
and cash in lieu of fractional shares in connection therewith), and the
Company may not purchase, redeem or otherwise acquire any Parity
Preferred Stock (except with any Junior Stock and cash in lieu of
fractional shares in connection therewith and except with the right,
subject to the requirement set out following clause (D) of this
paragraph and any similar requirement of any other Preferred Stock, to
receive accrued and unpaid dividends)
unless, in the case of either (i) or (ii) or (iii):
(A) full dividends on Parity Preferred Stock have been paid, or
declared and set aside for payment, for all dividend periods
terminating on or prior to the date of such dividend, distribution,
purchase, redemption, acquisition, setting aside or making available,
as applicable, to the extent such dividends are cumulative,
(B) dividends in full for the current quarterly dividend period
have been paid, or declared and set aside for payment, on all Parity
Preferred Stock to the extent such dividends are cumulative,
(C) the Company has paid or set aside all amounts, if any, then or
theretofore required to be paid or set aside for all purchase,
retirement and sinking funds, if any, for any Parity Preferred Stock,
and
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(D) the Company is not in default on any of its obligations to
redeem any Parity Preferred Stock,
or, in the case of (iii) only, with respect to the declaration and payment of
dividends on Parity Preferred Stock, any such dividends are declared and paid
pro rata so that the amounts of any dividends declared and paid per share of
Mandatorily Convertible Preferred Stock and each other share of Parity Preferred
Stock will in all cases bear to each other the same ratio that accrued and
unpaid dividends (including any accumulation with respect to unpaid dividends
for prior dividend periods, if such dividends are cumulative) per share of
Mandatorily Convertible Preferred Stock and such other share of Parity Preferred
Stock bear to each other.
(c) If a Reset Transaction (as defined below) has occurred, the
dividend rate on the Mandatorily Convertible Preferred Stock shall be increased
(but not decreased) to the rate per annum that is the arithmetic average of the
rates quoted by two Reference Dealers (as defined in Section 7 hereof) selected
by the Company or its successor as the dividend rate that the Mandatorily
Convertible Preferred Stock should bear so that the fair market value, expressed
in dollars, of a share of Mandatorily Convertible Preferred Stock immediately
after the later of (i) the public announcement of such Reset Transaction and
(ii) the public announcement of a change in dividend policy in connection with
such Reset Transaction but without giving effect to any adjustments pursuant to
Sections 4(e)(i) through 4(e)(iv) hereof, shall equal the average Closing Price
of a share of Mandatorily Convertible Preferred Stock (it being understood that,
in the event any shares of Mandatorily Convertible Preferred Stock are
represented by depositary shares, the average Closing Price of the Mandatorily
Convertible Preferred Stock shall be determined by reference to the average
Closing Price of such depositary shares) for the twenty Trading Days immediately
preceding the date of public announcement of such Reset Transaction. A "Reset
Transaction" is any consolidation, merger, sale, transfer or statutory exchange
to which the provisions of Section 4(f) apply or any dividend or distribution to
which the provisions of Section 4(e)(iv) apply, as a result of which the
Mandatorily Convertible Preferred Stock is convertible on and after the
effective date of such transaction into shares (including those of the Company)
which either (i) had a Dividend Yield (as defined in Section 7 hereof) for the
four fiscal quarters immediately preceding the public announcement of such
transaction which was, or (ii) are issued by an entity (including the Company)
that has publicly announced a dividend policy prior to the effective date of
such transaction which policy, if implemented, would result in a Dividend Yield
on such shares for the next four fiscal quarters which would be, more than 250
basis points higher than the Dividend Yield on the Common Stock for the four
fiscal quarters immediately preceding the public announcement of such
transaction.
(d) Whenever the dividend rate on the Mandatorily Convertible
Preferred Stock is increased as provided in Section 3(c), the Company or its
successor shall:
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(i) forthwith compute the increased dividend rate in accordance
with Section 3(c) and prepare a certificate signed by the Chief
Financial Officer, any Vice President, the Treasurer or the Controller
of the Company or its successor setting forth the increased dividend
rate, the applicable rates quoted by the two Reference Dealers selected
by the Company or its successor for such rate quotes and the arithmetic
average of those rate quotes, and the facts requiring such increase and
upon which such increase is based, which certificate shall be
conclusive, final and binding evidence of the correctness of the
increase, and shall file such certificate forthwith with the transfer
agent or agents for the shares of Mandatorily Convertible Preferred
Stock and any depositary for any shares of Mandatorily Convertible
Preferred Stock represented by depositary shares;
(ii) make a prompt public announcement stating that the dividend
rate on the Mandatorily Convertible Preferred Stock has been increased
and setting forth the increased dividend rate; and
(iii) mail a notice stating that the dividend rate on the
Mandatorily Convertible Preferred Stock has been increased, the facts
requiring such increase and upon which such increase is based and
setting forth the increased dividend rate to the holders of record of
the outstanding shares of the Mandatorily Convertible Preferred Stock,
and, in the event any shares of Mandatorily Convertible Preferred Stock
are represented by depositary shares, to the holders of record of the
depositary receipts evidencing such depositary shares, no later than 45
days after the end of the Company's fiscal quarter period during which
the Reset Transaction resulting in such increase occurred.
Section 4. Conversion Rights. (a) Unless previously converted at
the option of the holder into Common Stock in accordance with the provisions of
Section 4(c), on , 2001 (the "Mandatory Conversion Date") each
outstanding share of Mandatorily Convertible Preferred Stock will convert
automatically (the "Mandatory Conversion") into a number of shares of Common
Stock at the Conversion Rate (as defined below) in effect on the Mandatory
Conversion Date and the holder thereof shall have the right to receive an amount
in cash equal to all accrued and unpaid Preferred Dividends on such share of
Mandatorily Convertible Preferred Stock (other than previously declared
Preferred Dividends payable to a holder of record as of a prior date) to the
Mandatory Conversion Date, whether or not declared, out of funds legally
available for the payment of Preferred Dividends, subject to the requirement set
forth following clause (D) of Section 3(b) above and any similar requirement of
any other Certificate of Designations for Preferred Stock. The "Conversion Rate"
is initially equal to (i) if the Conversion Price (as defined in Section 7
hereof) is greater than or equal to $ (the "Threshold Appreciation
Price"), shares of Common Stock per share of Mandatorily Convertible
Preferred Stock, (ii) if the Conversion Price is less than the Threshold
Appreciation Price but is greater than $ (the "Initial Price"), (A) a
fraction equal to
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the Initial Price divided by the Conversion Price of (B) 100 shares of Common
Stock per share of Mandatorily Convertible Preferred Stock and (iii) if the
Conversion Price is less than or equal to the Initial Price, 100 shares of
Common Stock per share of Mandatorily Convertible Preferred Stock. The ratios of
shares of Common Stock per share of Mandatorily Convertible Preferred Stock
specified in clauses (i), (ii) and (iii) of the immediately preceding sentence
are hereinafter referred to as the "Share Components". The Share Components are
subject to adjustment as set forth in Section 4(e) and the Threshold
Appreciation Price and the Initial Price are subject to adjustment as set forth
in Section 4(g).
(b) Preferred Dividends on the shares of Mandatorily Convertible
Preferred Stock shall cease to accrue and such shares of Mandatorily Convertible
Preferred Stock shall cease to be outstanding on the Mandatory Conversion Date.
The Company shall make such arrangements as it deems appropriate for the
issuance of certificates representing shares of Common Stock and for the payment
of cash in respect of accrued and unpaid dividends on the Mandatorily
Convertible Preferred Stock, if any, or cash in lieu of fractional shares, if
any, without interest, in exchange for and contingent upon surrender of
certificates representing the shares of Mandatorily Convertible Preferred Stock,
and the Company may defer the payment of dividends on such shares of Common
Stock until, and make such payment contingent upon, the surrender of
certificates representing the shares of Mandatorily Convertible Preferred Stock,
provided that the Company shall give the holders of the shares of Mandatorily
Convertible Preferred Stock such notice of any such actions as the Company deems
appropriate and upon such surrender such holders shall be entitled to receive
such dividends declared and paid, if any, without interest, on such shares of
Common Stock subsequent to the Mandatory Conversion Date.
(c) Shares of Mandatorily Convertible Preferred Stock are
convertible, in whole or in part, at the option of the holders thereof
("Optional Conversion"), at any time prior to the Mandatory Conversion Date,
into shares of Common Stock at a rate of shares of Common Stock for
each share of Mandatorily Convertible Preferred Stock (the "Optional Conversion
Rate"), subject to adjustment as set forth in Sections 4(e) and 4(f). Optional
Conversion of shares of Mandatorily Convertible Preferred Stock may be effected
by delivering certificates evidencing such shares, together with written notice
of conversion and proper assignment of such certificates to the Company or in
blank (and, if Optional Conversion is to occur after the close of business on a
record date for any payment of declared Preferred Dividends and before the
opening of business on the next succeeding dividend payment date, payment in
cash of an amount equal to the Preferred Dividend payable on such date on such
shares), to the office of any transfer agent for the shares of Mandatorily
Convertible Preferred Stock or to any other office or agency maintained by the
Company for that purpose and otherwise in accordance with Optional Conversion
procedures established by the Company. Each Optional Conversion shall be deemed
to have been effected immediately prior to the close of business on the date on
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which the foregoing requirements shall have been satisfied. The Optional
Conversion shall be at the Optional Conversion Rate in effect at such time on
such date.
(d) Holders of shares of Mandatorily Convertible Preferred Stock
at the close of business on a record date for any payment of declared Preferred
Dividends shall be entitled to receive the Preferred Dividend so declared on
such shares of Mandatorily Convertible Preferred Stock on the corresponding
dividend payment date notwithstanding the Optional Conversion of such shares of
Mandatorily Convertible Preferred Stock following such record date and prior to
such dividend payment date. However, shares of Mandatorily Convertible Preferred
Stock surrendered for Optional Conversion after the close of business on a
record date for any payment of declared Preferred Dividends and before the
opening of business on the next succeeding dividend payment date must be
accompanied by payment in cash of an amount equal to the Preferred Dividend
payable on such date on such shares. Except as provided above, upon any Optional
Conversion of shares of Mandatorily Convertible Preferred Stock, the Company
shall make no payment of or allowance for unpaid Preferred Dividends, whether or
not in arrears, on such shares of Mandatorily Convertible Preferred Stock as to
which Optional Conversion has been effected or previously declared dividends or
distributions on the shares of Common Stock issued upon such Optional
Conversion.
(e) The Conversion Rate and the Optional Conversion Rate are each
subject to adjustment from time to time as provided below in this Section 4(e).
(i) If the Company shall pay or make a dividend or other
distribution with respect to its Common Stock in shares of Common Stock
(including by way of reclassification of any shares of its Common Stock
(other than pursuant to any of the transactions set forth in Section
4(f)), each of the Share Components and the Optional Conversion Rate in
effect at the opening of business on the day following the date fixed
for the determination of stockholders entitled to receive such dividend
or other distribution shall be increased by multiplying each Share
Component and the Optional Conversion Rate by a fraction of which the
numerator shall be the sum of the number of shares of Common Stock
outstanding at the close of business on the date fixed for such
determination, excluding the effect of such dividend or distribution,
plus the total number of shares of Common Stock constituting such
dividend or other distribution, and of which the denominator shall be
the number of shares of Common Stock outstanding at the close of
business on the date fixed for such determination, excluding the effect
of such dividend or distribution, such increase to become effective at
the opening of business on the day following the date fixed for such
determination. For the purposes of this Section 4(e)(i), the number of
shares of Common Stock at any time outstanding shall not include shares
held in the treasury of the Company and the number of shares
constituting such dividend or other distribution shall include shares
represented by cash issued in lieu of fractional shares of Common
Stock.
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(ii) In case shares of Common Stock outstanding shall be
subdivided or split into a greater number of shares of Common Stock,
each of the Share Components and the Optional Conversion Rate in effect
at the opening of business on the day following the day upon which such
subdivision or split becomes effective shall be proportionately
increased, and, conversely, in case outstanding shares of Common Stock
shall be combined into a lesser number of shares of Common Stock, each
of the Share Components and the Optional Conversion Rate in effect at
the opening of business on the day following the day upon which such
combination becomes effective shall be proportionately reduced, such
increases or reductions, as the case may be, to become effective at the
opening of business on the day following the day upon which such
subdivision or split or combination becomes effective.
(iii) If the Company shall, after the date hereof, issue rights or
warrants to all holders of its Common Stock entitling them to subscribe
for or purchase shares of Common Stock at a price per share less than
the Current Market Price (as defined in Section 7 hereof) of the Common
Stock on the record date for the determination of stockholders entitled
to receive such rights or warrants, then in each case each of the Share
Components and the Optional Conversion Rate shall be adjusted by
multiplying such Share Components and the Optional Conversion Rate in
effect on such record date by a fraction of which the numerator shall
be the number of shares of Common Stock outstanding at the close of
business on the record date for issuance of such rights or warrants,
excluding the effect of such issuance, plus the number of additional
shares of Common Stock offered for subscription or purchase pursuant to
such rights or warrants, and of which the denominator shall be the
number of shares of Common Stock outstanding at the close of business
on the record date for issuance of such rights or warrants, excluding
the effect of such issuance, plus the number of shares of Common Stock
which the aggregate offering price of the total number of shares of
Common Stock so offered for subscription or purchase pursuant to such
rights or warrants would purchase at such Current Market Price
(determined by multiplying such total number of offered shares by the
exercise price of such rights or warrants and dividing the product so
obtained by such Current Market Price). Such adjustment shall become
effective at the opening of business on the business day next following
the record date for the determination of stockholders entitled to
receive such rights or warrants. Shares of Common Stock held by the
Company or by another company of which a majority of the shares
entitled to vote in the election of directors are held, directly or
indirectly, by the Company shall not be deemed to be outstanding for
purposes of such computation. Any shares of Common Stock issuable in
payment of a dividend shall be deemed to have been issued immediately
prior to the close of business on the record date for such dividend for
purposes of calculating the number of outstanding shares of Common
Stock under this Section 4(e)(iii). To the extent that shares of Common
Stock are not
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delivered by reason of the expiration of such rights or warrants, each
of the Share Components and the Optional Conversion Rate shall be
readjusted to the Share Components and the Optional Conversion Rate
which would then be in effect had the adjustments made by reason of the
issuance of such rights or warrants been made upon the basis of the
issuance of rights or warrants in respect of only the number of shares
of Common Stock actually delivered.
(iv) If the Company shall pay a dividend or make a distribution to
all holders of Common Stock consisting of evidences of its
indebtedness, cash or other assets (including shares of capital stock
of the Company other than dividends or distributions of Common Stock
(or other common stock of the Company issued by way of
reclassification) referred to in Section 4(e)(i) above but excluding
any cash dividends or distributions, other than Extraordinary Cash
Distributions (as defined below)), or shall issue to all holders of
Common Stock rights or warrants to subscribe for or purchase any of its
securities (other than those referred to in Section 4(e)(iii) above),
then in each such case each of the Share Components and the Optional
Conversion Rate shall be adjusted by multiplying such Share Components
and the Optional Conversion Rate in effect on the record date for such
dividend or distribution or for the determination of stockholders
entitled to receive such rights or warrants, as the case may be, by a
fraction of which the numerator shall be the Current Market Price per
share of the Common Stock on such record date, and of which the
denominator shall be such Current Market Price per share of Common
Stock less either (A) the fair market value (as determined by the
Board, whose determination shall be conclusive) on such record date of
the portion of the assets or evidences of indebtedness so distributed,
or of such rights or warrants, applicable to one share of Common Stock
or (B) if applicable, the amount of the Extraordinary Cash Distribution
applicable to one share of Common Stock. Such adjustment shall become
effective at the opening of business on the business day next following
the record date for such dividend or distribution or for the
determination of holders entitled to receive such rights or warrants,
as the case may be. "Extraordinary Cash Distribution" means, with
respect to any cash dividend or distribution paid on any date, the
amount, if any, by which all cash dividends or distributions on the
Common Stock paid during the consecutive 12-month period ending on and
including such date (other than cash dividends and cash distributions
for which a prior adjustment to each of the Share Components and the
Optional Conversion Rate was previously made), exceeds, on a per share
of Common Stock basis, ten percent (10%) of the average daily Closing
Price of the Common Stock over such consecutive 12-month period.
(v) Anything in this Section 4 notwithstanding, the Company shall
be entitled (but shall not be required) to make such upward adjustments
in each of the Share Components and the Optional Conversion Rate in
addition to those set
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forth by this Section 4, as the Company, in its sole discretion, shall
determine to be advisable, in order that any stock dividend,
subdivision or split of stock, distribution of rights to purchase stock
or securities, or distribution of securities convertible into or
exchangeable for stock (or any transaction that could be treated as any
of the foregoing transactions pursuant to Section 305 of the Internal
Revenue Code of 1986, as amended, or any successor provision) hereafter
made by the Company to its stockholders will not be taxable in whole or
in part.
(vi) All adjustments to each of the Share Components and the
Optional Conversion Rate shall be calculated to the nearest 1/100th of
a share of Common Stock. No adjustment in the Share Components or the
Optional Conversion Rate shall be required unless such adjustment would
require an increase or decrease of at least one percent (1%) therein;
provided, however, that any adjustments which are not made by reason of
this subsection shall be carried forward and taken into account in any
subsequent adjustment. All adjustments to the Share Components and the
Optional Conversion Rate shall be made successively.
(vii) Prior to taking any action that could result in adjustment
affecting the Conversion Rate or the Optional Conversion Rate such that
the imputed conversion price for shares of Common Stock issued upon
Mandatory Conversion or upon Optional Conversion would be below the
then par value of the Common Stock, the Company shall take any
corporate action which may, in the opinion of its Board, be necessary
in order that the Company may validly and legally issue fully paid and
nonassessable shares of Common Stock at the Conversion Rate or the
Optional Conversion Rate as so adjusted.
(f) In case of any consolidation or merger to which the Company is
a party (other than a merger or consolidation in which the Company is the
surviving or continuing corporation and in which each share of Common Stock
outstanding immediately prior to the merger or consolidation remains unchanged
in all material respects), or in case of any sale or transfer to another
corporation of the property of the Company as an entirety or substantially as an
entirety, or in the case of any statutory exchange of securities with another
corporation (other than in connection with a merger or acquisition), each share
of Mandatorily Convertible Preferred Stock shall, after consummation of such
transaction, be subject to (i) conversion at the option of the holder into the
kind and amount of securities, cash or other property receivable upon
consummation of such transaction by a holder of the number of shares of Common
Stock (including fractional shares for this purpose) into which such share of
Mandatorily Convertible Preferred Stock might have been converted immediately
prior to consummation of such transaction and (ii) conversion on the Mandatory
Conversion Date into the kind and amount of securities, cash or other property
receivable upon consummation of such transaction by a holder of the number of
shares of Common Stock (including fractional shares for this purpose) into which
such share of Mandatorily
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Convertible Preferred Stock would have been converted if the conversion on the
Mandatory Conversion Date had occurred immediately prior to the date of
consummation of such transaction, plus, in the case of (ii), the right, subject
to the requirement set forth following clause (D) of Section 3(b) and any
similar requirement of any other Certificate of Designations for Preferred
Stock, to receive cash in an amount equal to all accrued and unpaid dividends on
such share of Mandatorily Convertible Preferred Stock (other than previously
declared dividends payable to a holder of record as of a prior date); and
assuming in each case that such holder of shares of Common Stock failed to
exercise rights of election, if any, as to the kind or amount of securities,
cash or other property receivable upon consummation of such transaction
(provided that, if the kind or amount of securities, cash or other property
receivable upon consummation of such transaction is not the same for each
non-electing share, then the kind and amount of securities, cash or other
property receivable upon consummation of such transaction for each non-electing
share shall be deemed to be the kind and amount so receivable per share by a
plurality of the non-electing shares). The kind and amount of securities into or
for which the shares of Mandatorily Convertible Preferred Stock shall be
convertible after consummation of such transaction shall be subject to
adjustment as described in Section 4(e) following the date of consummation of
such transaction. The Company may not become a party to any such transaction
unless the terms thereof are consistent with the foregoing and with the
provisions of Section 3(c).
(g) If an adjustment is made to the Share Components pursuant to
any of Sections 4(e)(i) through 4(e)(iv), an adjustment shall also be made to
the Threshold Appreciation Price and the Initial Price as such terms are used to
determine which of clauses (i), (ii) or (iii) of the definition of "Conversion
Rate" will apply at the Mandatory Conversion Date and for purposes of
calculating the fraction in sub-clause (ii)(A) of the definition of Conversion
Rate. The required adjustments to the Threshold Appreciation Price and the
Initial Price shall be made at the Mandatory Conversion Date by multiplying each
of the Threshold Appreciation Price and the Initial Price by the inverse of the
cumulative number or fraction determined pursuant to the Share Component
adjustment procedures described in Section 4(e). In the case of the
reclassification of any shares of Common Stock into any common stock other than
Common Stock, such common stock shall be deemed Common Stock solely to determine
the Threshold Appreciation Price and the Initial Price and to apply the
Conversion Rate at the Mandatory Conversion Date. Each such adjustment to the
Threshold Appreciation Price or the Initial Price shall be made successively.
(h) Whenever the Share Components and the Optional Conversion Rate
are adjusted as provided in Section 4(e) and 4(g), the Company shall:
(i) forthwith compute the adjusted Share Components, Optional
Conversion Rate, Threshold Appreciation Price and Initial Price in
accordance with this Section 4 and prepare a certificate signed by the
Chief Financial Officer,
<PAGE> 12
12
any Vice President, the Treasurer or the Controller of the Company
setting forth the adjusted Share Components, Optional Conversion Rate,
Threshold Appreciation Price and Initial Price, the method of
calculation thereof in reasonable detail and the facts requiring such
adjustment and upon which such adjustment is based, which certificate
shall be conclusive, final and binding evidence of the correctness of
the adjustment, and shall file such certificate forthwith with the
transfer agent or agents for the shares of Mandatorily Convertible
Preferred Stock and any depositary for any shares of Mandatorily
Convertible Preferred Stock represented by depositary shares;
(ii) make a prompt public announcement stating that the Share
Components, Optional Conversion Rate, Threshold Appreciation Price and
Initial Price have been adjusted and setting forth the adjusted Share
Components, Optional Conversion Rate, Threshold Appreciation Price and
Initial Price, including, in the event any shares of Mandatorily
Convertible Preferred Stock are represented by depositary shares, the
adjusted Share Components or Optional Conversion Rate on a per
depositary share basis; and
(iii) mail a notice stating that the Share Components, Optional
Conversion Rate, Threshold Appreciation Price and Initial Price have
been adjusted, the facts requiring such adjustment and upon which such
adjustment is based and setting forth the adjusted Share Components,
Optional Conversion Rate, Threshold Appreciation Price and Initial
Price to the holders of record of the outstanding shares of the
Mandatorily Convertible Preferred Stock, and, in the event any shares
of Mandatorily Convertible Preferred Stock are represented by
depositary shares, to the holders of record of the depositary receipts
evidencing such depositary shares, no later than 45 days after the end
of the Company's fiscal quarter period during which the facts requiring
such adjustment occurred.
(i) In case, at any time while any of the shares of Mandatorily
Convertible Preferred Stock are outstanding,
(i) the Company shall declare a dividend (or any other
distribution) on the Common Stock, excluding any cash dividends other
than Extraordinary Cash Distributions, or
(ii) the Company shall authorize the issuance to all holders of
the Common Stock of rights or warrants to subscribe for or purchase
shares of the Common Stock or of any other subscription rights or
warrants, or
(iii) the Company shall authorize any reclassification of the
Common Stock (other than a subdivision, split or combination thereof)
or of any consolidation or merger to which the Company is a party and
for which approval
<PAGE> 13
13
of any stockholders of the Company is required (except for a merger of
the Company into one of its subsidiaries solely for the purpose of
changing the corporate domicile of the Company to another state of the
United States and in connection with which there is no substantive
change in the rights or privileges of any securities of the Company
other than changes resulting from differences in the corporate statutes
of the state the Company was then domiciled in and the new state of
domicile), or of the sale or transfer of all or substantially all the
assets of the Company (except to one or more wholly-owned
subsidiaries),
then the Company shall cause to be filed at each office or agency maintained for
the purpose of conversion of the shares of Mandatorily Convertible Preferred
Stock, and shall cause to be mailed to the holders of shares of Mandatorily
Convertible Preferred Stock at their last addresses as they shall appear on the
stock register, and, in the event any shares of Mandatorily Convertible
Preferred Stock are represented by depositary shares, to the holders of record
of the depositary receipts evidencing such depositary shares, at least 10
business days before the date specified in clause (A) or (B) below (or the
earlier of such specified dates, in the event that more than one date is
specified), a notice stating (A) the date on which a record is to be taken for
the purpose of such dividend, distribution, or issuance of rights or warrants,
or, if a record is not to be taken, the date as of which the holders of Common
Stock of record to be entitled to such dividend, distribution, or issuance of
rights or warrants are to be determined, or (B) the date on which any such
reclassification, consolidation, merger, sale or transfer is expected to become
effective, and the date as of which it is expected that holders of Common Stock
of record shall be entitled to exchange their Common Stock for securities or
other property (including cash), if any, deliverable upon such reclassification,
consolidation, merger, sale or transfer. The failure to give or receive the
notice required by this subsection (i) or any defect therein shall not affect
the legality or validity of any such dividend, distribution, issuance of any
right or warrant or other action.
5. No Fractional Shares. (a) No fractional shares of Common Stock
shall be issued upon the conversion of any shares of the Mandatorily Convertible
Preferred Stock. In lieu of any fractional share otherwise issuable in respect
of shares of Mandatorily Convertible Preferred Stock of any holder that are
converted upon Mandatory Conversion or any Optional Conversion, such holder
shall be entitled to receive an amount in cash (computed to the nearest cent)
equal to the same fraction of the Closing Price of the Common Stock determined
(a) as of the fifth Trading Day immediately preceding the Mandatory Conversion
Date, in the case of Mandatory Conversion, or (b) as of the second Trading Day
immediately preceding the effective date of conversion, in the case of an
Optional Conversion by a holder. At any time that any shares of Mandatorily
Convertible Preferred Stock are represented by depositary shares pursuant to a
depositary agreement with the Company, the Company may treat each holder of such
depositary shares as a holder of the number (including fractions) of shares of
Mandatorily Convertible Preferred Stock represented by the depositary shares of
such
<PAGE> 14
14
holder for the purposes of computing the fractional shares of Common Stock
otherwise issuable in respect of the conversion of any shares of Mandatorily
Convertible Preferred Stock or the payment of any dividend.
(b) If payment in cash in lieu of fractional shares of Common
Stock in accordance with the preceding paragraph would result in the Company's
failure to be in compliance with any debt instrument to which it is a party, the
Company shall be entitled to deliver a whole share of Common Stock in lieu of
cash to holders of shares of Mandatorily Convertible Preferred Stock (or
depositary shares representing shares of Mandatorily Convertible Preferred
Stock) entitled to fractional shares of Common Stock (beginning with the holders
entitled to the largest fractional shares) until delivery of cash in lieu of
fractional shares of Common Stock to the remaining holders would no longer
result in the Company's failure to be in compliance with such debt instrument.
6. Reservation of Common Stock. The Company shall at all times
reserve and keep available out of its authorized and unissued Common Stock,
solely for issuance upon the conversion of shares of Mandatorily Convertible
Preferred Stock as herein provided, free from any preemptive rights, such
maximum number of shares of Common Stock as shall from time to time be issuable
upon the Mandatory Conversion or Optional Conversion of all the shares of
Mandatorily Convertible Preferred Stock then outstanding.
7. Certain Definitions. As used in this Certificate of
Designations:
(i) the term "business day" shall mean any day other than a
Saturday, a Sunday or a day on which the NYSE, banking institutions or
trust companies in New York, New York, are authorized or obligated by
law or executive order to close;
(ii) 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 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 Company for such purpose;
<PAGE> 15
15
(iii) the term "Conversion Price" shall mean the average
Closing Price per share of Common Stock for the 20 Trading Days
immediately prior to (but not including) the Mandatory Conversion Date;
provided, however, that, if there are not 20 Trading Days for the
Common Stock occurring later than the 60th calendar day immediately
prior to, but not including, the Mandatory Conversion Date, the
"Conversion Price" shall be the market value per share of Common Stock
as of the Mandatory Conversion Date as determined by a nationally
recognized investment banking firm retained for such purpose by the
Company;
(iv) the term "Current Market Price" means, as of any date of
determination, the average Closing Price per share of Common Stock for
the 20 Trading Days immediately prior to the date of determination;
provided, however, that if there are not 20 Trading Days for the Common
Stock occurring later than the 60th calendar day immediately prior to,
but not including, such date, the Current Market Price shall be
determined as the market value per share of Common Stock as of such
date as determined by a nationally recognized investment banking firm
retained for such purpose by the Company;
(v) the term "Dividend Yield" shall mean, with respect to any
security for any period, the dividends paid or proposed to be paid
pursuant to an announced dividend policy on such security for such
period divided by, if with respect to dividends paid on such security,
the average Closing Price of such security during such period and, if
with respect to dividends so proposed to be paid on such security, the
Closing Price of such security on the effective date of the related
Reset Transaction;
(vi) the term "record date" shall be such date as is from time to
time fixed by the Board with respect to the receipt of dividends or the
taking of any action or exercise of any voting rights permitted hereby;
and
(vii) the term "Reference Dealer" shall mean a dealer engaged in
the trading of convertible securities;
(viii) the term "Trading Day" shall mean a business day on which
the security, the Closing Price of which is being determined, (A) 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 (B) 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.
8. Payment of Taxes. The Company shall pay any and all
documentary, stamp or similar issue or transfer taxes payable in respect of the
issue or delivery of shares of Common Stock on the conversion of shares of
Mandatorily Convertible
<PAGE> 16
16
Preferred Stock pursuant to Section 4; provided, however, that the Company shall
not be required to pay any tax which may be payable in respect of any
registration or transfer involved in the issue or delivery of shares of Common
Stock in a name other than that of the registered holder of shares of
Mandatorily Convertible Preferred Stock converted or to be converted, and no
such issue or delivery shall be made unless and until the person requesting such
issue or delivery has paid to the Company the amount of any such tax or has
established, to the satisfaction of the Company, that such tax has been paid.
9. Liquidation Rights. In the event of any voluntary or
involuntary liquidation, dissolution or winding up of the Company, and subject
to the rights of the holders of any other series of Preferred Stock, the
holders of outstanding shares of Mandatorily Convertible Preferred Stock are
entitled to receive the sum of $ per share, plus an amount equal to any
accrued and unpaid dividends thereon, out of the assets of the Company
available for distribution to stockholders, before any distribution of assets
is made to holders of Junior Stock upon liquidation, dissolution or winding up.
If upon any voluntary or involuntary liquidation, dissolution, or winding up of
the Company, the assets of the Company are insufficient to permit the payment
of the full preferential amounts payable with respect to shares of Mandatorily
Convertible Preferred Stock and all other series of Parity Preferred Stock, the
holders of shares of Mandatorily Convertible Preferred Stock and of all other
series of Parity Preferred Stock shall share ratably in any distribution of
assets of the Company in proportion to the full respective preferential amounts
to which they are entitled. After payment of the full amount of the liquidating
distribution to which they are entitled, the holders of shares of Mandatorily
Convertible Preferred Stock will not be entitled to any further participation
in any distribution of assets by the Company. A consolidation or merger of the
Company with one or more corporations or a sale or transfer of substantially
all the assets of the Company shall not be deemed to be a liquidation,
dissolution, or winding up of the Company.
10. Voting Rights. The holders of shares of Mandatorily
Convertible Preferred Stock shall not be entitled to any voting rights, except
as required by applicable state law or as described below.
(a) In the event that dividends on the shares of Mandatorily
Convertible Preferred Stock or any other series of Preferred Stock shall be in
arrears and unpaid for six quarterly dividend periods, or if any other series of
Preferred Stock shall be entitled for any other reason to exercise voting
rights, separate from the Common Stock, to elect any Directors of the Company
("Preferred Stock Directors"), the holders of the shares of Mandatorily
Convertible Preferred Stock (voting separately as a class with holders of all
other series of Preferred Stock which does not have a separate class vote and
upon which like voting rights have been conferred and are exercisable), with
each share of Mandatorily Convertible Preferred Stock entitled to 100 votes on
this and other matters in which Preferred Stock votes as a group, shall be
entitled to vote for the election of two Preferred Stock Directors, such
Directors to be in addition to the number of Directors
<PAGE> 17
17
constituting the Board immediately prior to the accrual of such right. Such
right, when vested, shall continue until all dividends in arrears on the shares
of Mandatorily Convertible Preferred Stock and such other series of Preferred
Stock shall have been paid in full and the right of any other series of
Preferred Stock to exercise voting rights, separate from the Common Stock, to
elect any Preferred Stock Directors shall terminate or have terminated, and,
when so paid and such termination occurs or has occurred, such right of the
holders of the shares of Mandatorily Convertible Preferred Stock shall cease.
Upon any termination of the aforesaid voting right, subject to the requirements
of the General Corporation Law of the State of Delaware and the Certificate,
such Preferred Stock Directors shall cease to be Directors of the Company and
shall be required to resign.
(b) The Company will not, without the approval of the holders of
at least 66-2/3% of all the shares of Mandatorily Convertible Preferred Stock
then outstanding: (i) amend, alter, or repeal any of the provisions of the
Certificate or the By-laws of the Company so as to affect adversely the powers,
preferences or rights of the holders of the shares of Mandatorily Convertible
Preferred Stock then outstanding or reduce the minimum time required for any
notice to which only the holders of the shares of Mandatorily Convertible
Preferred Stock then outstanding may be entitled (an amendment of the
Certificate to authorize or create, or to increase the authorized amount of or
to issue, Junior Stock, Preferred Stock ranking on parity with the shares of
Mandatorily Convertible Preferred Stock or any stock of any class ranking on
parity with the shares of Mandatorily Convertible Preferred Stock shall be
deemed not to affect adversely the powers, preferences or rights of the holders
of the shares of Mandatorily Convertible Preferred Stock); (ii) create any
series of Preferred Stock ranking prior to the shares of Mandatorily Convertible
Preferred Stock as to payment of dividends or the distribution of assets upon
liquidation; or (iii) authorize or create, or increase the authorized amount of,
any capital stock, or any security convertible into capital stock, of any class
ranking prior to the shares of Mandatorily Convertible Preferred Stock as to
payment of dividends or the distribution of assets upon liquidation.
<PAGE> 18
18
11. Severability of Provisions. Whenever possible, each provision
hereof shall be interpreted in a manner as to be effective and valid under
applicable law, but if any provision hereof is held to be prohibited by or
invalid under applicable law, such provision shall be ineffective only to the
extent of such prohibition or invalidity, without invalidating or otherwise
adversely affecting the remaining provisions hereof. If a court of competent
jurisdiction should determine that a provision hereof would be valid or
enforceable if a period of time were extended or shortened or a particular
percentage were increased or decreased, then such court may make such change as
shall be necessary to render the provision in question effective and valid under
applicable law.
IN WITNESS WHEREOF, Tesoro Petroleum Corporation has caused this
Certificate of Designation to be signed by Bruce A. Smith, its Chairman,
President and Chief Executive Officer, and attested by , its
Assistant Secretary, as of this th day of , 1998.
TESORO PETROLEUM CORPORATION,
By
------------------------------------
Name: Bruce A. Smith
Title: Chairman, President and Chief
Executive Officer
Attest:
By
-------------------------------
Name:
Title: Assistant Secretary
<PAGE> 1
EXHIBIT 2
================================================================================
TESORO PETROLEUM CORPORATION
AS ISSUER
AND
THE BANK OF NEW YORK
AS DEPOSITARY
AND
OWNERS AND HOLDERS OF DEPOSITARY RECEIPTS
DEPOSIT AGREEMENT
DATED AS OF [ ], 1998
================================================================================
<PAGE> 2
DEPOSIT AGREEMENT
DEPOSIT AGREEMENT dated as of [ ], 1998 among TESORO PETROLEUM
CORPORATION, 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
among 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 1/100 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 4.7 with
<PAGE> 3
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 Section.
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 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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<PAGE> 4
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 Tesoro Petroleum Corporation,
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 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.
-3-
<PAGE> 5
SECTION 1.14 Shares.
The term "Shares" shall mean the Issuer's [ ]% Mandatorily
Convertible Preferred Stock, no par value 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 1.15 Trading Day; Business 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. The term "Business Day" shall mean any day that is not a Saturday, a
Sunday or a day on which the NYSE, banking institutions or trust companies in
The City of New York are authorized or obligated by law or executive order to
close.
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 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
-4-
<PAGE> 6
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 underwriters in connection with the public offering of such Depositary
Shares, accompanied by any appropriate instrument or 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
-5-
<PAGE> 7
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 at its Corporate Trust Office 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, 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
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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 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
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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 (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.
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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.
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"), Shares represented
by Depositary Shares shall 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
shares of common stock, par value $0.16 2/3 per share (the "Common Stock") of
the Issuer 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
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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-one 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 4.11 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 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. 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 4.11 hereof. If a Receipt or Receipts evidencing 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.
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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 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 4.11
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 in excess of 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
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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 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 4.5 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
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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) 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
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other distributions or the proceeds of any such sale in payment of such tax or
other governmental charge and the 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), 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 agent such
information from its records as the Issuer may
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reasonably request to enable the Issuer or its agent to file necessary reports
with governmental agencies.
SECTION 4.2 Distributions Other Than Cash, Shares or Rights.
Subject to the provisions of Section 4.7, whenever the Depositary
shall receive any distribution other than a distribution described in Sections
4.1, 4.3 or 4.4, 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 4.3 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
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
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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 4.4 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 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
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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. 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.
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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 4.5 Fixing of Record Date.
Whenever any cash dividend or other cash distribution 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 4.6 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 4.5 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 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.
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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 4.7 Changes Affecting Deposited Securities.
In circumstances where the provisions of Section 4.2 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 4.8 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 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
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<PAGE> 22
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 4.9 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 4.10 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 4.11 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
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
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<PAGE> 23
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.
In the event that (i) mandatory conversion of the Depositary
Shares or (ii) voluntary conversions of the Shares represented by the Depositary
Shares result in any Owner of Receipts evidencing Depositary Shares being
entitled to cash in lieu of a fractional share on the related date of
conversion, 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 five 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.
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<PAGE> 24
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.
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
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<PAGE> 25
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, 4.2, or 4.3 of the Deposit Agreement, or
an offering or distribution pursuant to Section 4.4 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 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.
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<PAGE> 26
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.
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
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<PAGE> 27
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 U.S. counsel for the Issuer, which counsel
shall be reasonably 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.
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 reasonable 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.
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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 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.
Subject to the Issuer's right to remove the Depositary pursuant to
Section 5.4, 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.
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 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
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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.
This 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 otherwise) received by the Depositary from the Issuer for
mandatory conversion of, and/or dividend payments on, the Depositary 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 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
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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 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.
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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 in English and personally delivered or sent by mail or
cable, telex or facsimile transmission confirmed by letter, addressed to Mr.
Bruce A. Smith, Tesoro Petroleum Corporation, 8700 Tesoro Drive, San Antonio,
Texas 78217 (facsimile: (210) 828-8600) 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
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(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 without giving effect to
applicable principles of conflicts of law to the extent that the application of
the laws of another jurisdiction would be required thereby.
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IN WITNESS WHEREOF, TESORO PETROLEUM CORPORATION 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.
TESORO PETROLEUM CORPORATION, as Issuer
By:
-----------------------------------------------
Name:
Title:
THE BANK OF NEW YORK, as Depositary
By:
-----------------------------------------------
Name:
Title:
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<PAGE> 34
Exhibit A to Deposit Agreement
N0.
-------------------------
DEPOSITARY SHARES
(EACH DEPOSITARY SHARE
REPRESENTS 1/100 OF A
DEPOSITED SHARE)
DEPOSITARY RECEIPT FOR _____
SHARES OF THE [ ]% MANDATORILY
CONVERTIBLE PREFERRED STOCK,
NO PAR VALUE PER SHARE, OF
TESORO PETROLEUM CORPORATION
(INCORPORATED UNDER THE LAWS
OF THE STATE OF DELAWARE)
The undersigned, 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, no par value per share (herein called "Shares"), of Tesoro
Petroleum Corporation, incorporated under the laws of the State of Delaware
(herein called the "Issuer"). At the date hereof, each Depositary Share
represents 1/100 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
<PAGE> 35
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 the 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.
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<PAGE> 36
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"), Shares represented
by Depositary Shares shall 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 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
number of shares of Common Stock per Depositary Share equal to one-one 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 4.11 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
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<PAGE> 37
(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. 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.
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
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of Designation, the Issuer shall deliver to such Owner payment of cash in lieu
of such fractional share of Common Stock, calculated in accordance with Section
4.11 of the Deposit Agreement. If a Receipt or Receipts evidencing 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 the
materials specified in the first sentence of the preceding paragraph, the
Depositary or such agent shall instruct the Issuer, subject to adjustment as
provided in the Certificate of Designation and the 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 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 4.11 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 in excess of 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.
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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 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.
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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. With the approval of
the Issuer, the transfer of Receipts in particular instances may be refused, or
the registration of transfer of outstanding Receipts generally may be suspended,
for any reason, and such transfer and registration may also be refused or
suspended in certain circumstances described in the Deposit Agreement. 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.
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, split-up, combination or surrender 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. 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
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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 until such proof or other information is filed or such
certificates are executed or such representations and warranties made.
8. 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.
9. 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.
10. 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.
11. REPORTS.
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,
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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 Deposited Securities by the 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.
12. 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), 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 any distribution other than a
distribution described in the preceding paragraph (including distributions of
securities, property, Shares and rights to subscribe for additional Shares) in
accordance with the Deposit Agreement.
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13. RECORD DATES.
Whenever any cash dividend or other cash distribution 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.
14. 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 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. 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.
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15. 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 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.
In the event that (i) mandatory conversion of the Depositary Shares or
(ii) voluntary conversions of the Shares represented by the Depositary Shares
result in any Owner of Receipts evidencing Depositary Shares being entitled to
cash in lieu of a fractional share on the related date of conversion, 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 five paragraphs would result in the Issuer's
failure to be in compliance with any debt instrument to which it is a party,
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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.
16. LIABILITY OF ISSUER AND DEPOSITARY.
In general, neither the 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. In addition, neither the Issuer nor the Depositary shall be
subject to any liability under the Deposit Agreement to Owners or holders of
Receipts in certain circumstances described in the Deposit Agreement.
17. 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.
18. 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
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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.
19. TERMINATION OF DEPOSIT AGREEMENT.
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 otherwise) received by the Depositary from the Issuer for
mandatory conversion of, and/or dividend payments on, the Depositary Shares
evidenced by the Receipt or Receipts held by such Owner, and (ii) all other
securities, property and cash then held by the Depositary under the Deposit
Agreement. 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 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
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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.
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