SECURITIES AND EXCHANGE COMMISSION
Washington. D.C. 20549
FORM 8-A
FOR REGISTRATION OF CERTAIN CLASSES OF SECURITIES
PURSUANT TO SECTION 12(b) OR (g) OF THE
SECURITIES EXCHANGE ACT OF 1934
JAMES RIVER CORPORATION OF VIRGINIA
(Exact name of registrant as specified in its charter)
Virginia 54-0848173
(State of incorporation (I.R.S. Employer
or organization) Identification No.)
120 Tredeger Street, Richmond. Virginia 23219
(Address of principal executive offices) (Zip Code)
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
------------------- ------------------------------
Depositary Shares, each New York Stock Exchange
representing a one-hundredth
interest in a share of Series P
9% Cumulative Convertible
Preferred Stock, $10 par value
Securities to be registered pursuant to Section 12(g) of the Act:
None
(Title of Class)
<PAGE>
Item 1. Description of Registrant's Securities to be Registered.
A description of the Depositary Shares (the "Depositary Shares"), each
representing a one-hundredth interest in a share of Series P 9% Cumulative
Convertible Preferred Stock. $10 par value (the "Series P Dividend
Enhanced Preferred Stock" or "Series P DECS") of James River Corporation
of Virginia ("James River") may be found on pages S-20 through S-28 of the
Prospectus Supplement, dated June 22, 1994, forming a part of James
River's Registration Statements on Form S-3 (Registration No. 33-53411 and
No. 33-54213) (the "Prospectus Supplement"). Such description, as
qualified in its entirety by reference to the Articles of Amendment for
the Series P DECS of James River included as Exhibit 2.1 hereto and by
reference to the Deposit Agreement included as Exhibit 2.2 hereto. is
hereby incorporated herein by reference.
Item 2. Exhibits.
1.1 Form of Specimen Series P DECS stock certificate (filed herewith).
1.2 Form of Specimen Depositary Receipt (filed herewith).
The following instruments define the rights of the holders of the
securities being registered hereby:
2.1 Articles of Amendment for the Series P DECS (filed herewith).
2.2 Form of Deposit Agreement dated as of June 22, 1994, among James
River, Wachovia Bank of North Carolina, N.A., as Depositary, and
the holders from time to time of Depositary Receipts issued thereunder
(filed herewith).
3.1 Pages S-20 through S-28 of the Prospectus Supplement incorporated by
reference herein.
2
<PAGE>
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, thereto duly authorized.
JAMES RIVER CORPORATION
OF VIRGINIA
Dated June 21, 1994 By: /s/ Michael J. Allan
Michael J. Allan
Vice President, Treasurer
3
<PAGE>
EXHIBIT INDEX
Page
1.1 Form of Specimen Series P DECS stock certificate
1.2 Form of Specimen Depositary Receipt
2.1 Form of Articles of Amendment for the Series P DECS
2.2 Form of Deposit Agreement dated as of June 22,
1994, among James River, Wachovia Bank of
North Carolina, N.A., as Depositary and the
holders from time to time of Depositary
Receipts issued thereunder
4
Number Shares
JAMES RIVER CORPORATION OF VIRGINIA
a Virginia Corporation
This certifies that Wachovia Bank of North Carolina, N. A. is the registered
holder of 150,000 (One Hundred Fifty Thousand) Shares fully paid and non-
assessable shares of the Series P Cumulative Convertible Preferred Stock of
James River Corporation of Virginia transferable only on the books of the
Corporation by the holder hereof in person or by Attorney upon surrender of
this Certificate properly endorsed.
In Witness Whereof the said Corporation has caused this Certificate to be
signed by its duly authorized officers and its Corporate Seal to be hereunto
affixed this day of June, A.D. 1994
__________________________ _____________________________
Secretary President
Countersigned and registered:
Wachovia Bank of North Carolina, N. A.
By:_________________________________
Authorized Signature
<PAGE>
JAMES RIVER CORPORATION
OF VIRGINIA
The corporation will furnish to any stockholder upon request and without
charge, a full statement of designations, preferences, limitations, and
relative rights of the shares of each class of stock and series of Preferred
Stock authorized to be issued and the variations in the relative rights,
preferences, and limitations between the shares of each such series so far as
the same have been fixed and determined, and of the authority of the Board of
Directors to fix and determine the relative rights, preferences and
limitations of subsequent series.
The following abbrevations, when used in the inscription on the face of this
certificate, shall be construed as though they were written out in full
according to applicable laws or regulations.
TEN COM -as tenants in common UNIF GIFT MIN ACT- ....Custodian....
TEN ENT -as tenants by the (Cust) (Minor)
entireties under Uniform Gifts to Minors Act...
JT TEN -as joint tenants with (State)
rights of survivorship
and not as tenants
in common
Additional abbrevations may also be used though not in the above list.
FOR VALUE RECEIVED, __________________ hereby sell, assign and
transfer unto
_________________________________________________________________
PLEASE INSERT SOCIAL SECURITY OR
OTHER IDENTIFYING NUMBER OF
ASSIGNEE
___________________________________________________________________________
(Please print or typewrite name and address of assignee)
______________________________________________________Shares represented by
the within Certificate, and do hereby irrevocably constitute and
appoint_______________________________________________________________________
Attorney to transfer the said shares on the books of the within-named
Corporation with full power of substitution in the premises.
Dated: ______________________
In presence of
___________________________
NOTICE: The signature to this assignment must
correspond with the name as written upon the face of
the certificate in every particular, without alteration
or enlargement, or any change whatever.
DEPOSITARY RECEIPT
FOR
DEPOSITARY SHARES,
EACH REPRESENTING A ONE-HUNDREDTH
INTEREST IN A SHARE OF SERIES P 9% CUMULATIVE CONVERTIBLE
PREFERRED STOCK
$10 Par Value
OF
JAMES RIVER CORPORATION OF VIRGINIA
(Incorporated under the Laws of the Commonwealth of Virginia)
No. . . . . . . . . . . . Depositary Shares
(each Depositary Share representing
a one-hundredth interest in a share
of Series P 9% Cumulative
Convertible Preferred Stock ($10 par
value))
1. Wachovia Bank of North Carolina, N.A., a national
banking association with its principal office at the time of the
execution of the Deposit Agreement (as defined below) at Winston-
Salem, North Carolina, as Depositary (the "Depositary"), hereby
certifies that is the registered owner of ______
Depositary Shares ("Depositary Shares"), each Depositary Share
representing a one-hundredth (1/100) interest in a share of Series
P 9% Cumulative Convertible Preferred Stock, par value $10 per
share (the "Stock"), of James River Corporation of Virginia, a
corporation duly organized and existing under the laws of the
Commonwealth of Virginia (the "Company"). The rights, preferences
and limitations of the Stock are set forth in the Company's
Amended and Restated Articles of Incorporation (the "Articles of
Incorporation"), as amended by the Articles of Amendment adopted
by the Company's Board of Directors establishing the Stock as a
series of preferred stock of the Company (the "Articles of
Amendment"), copies of which are on file at the Depositary's
Corporate Trust Office.
2. The Deposit Agreement. Depositary receipts (the
"Receipts"), of which this Receipt is one, are made available upon
the terms and conditions set forth in the Deposit Agreement, dated
as of June 22, 1994 (the "Deposit Agreement"), among the Company,
the Depositary and all holders from time to time of Receipts. The
Deposit Agreement (copies of which are on file at the Depositary's
Corporate Trust Office) sets forth the rights of holders of
Receipts and the rights and duties of the Depositary in respect of
the Stock, and any and all other property and cash, from time to
time deposited thereunder. The statements made on the face and
the reverse of this Receipt are summaries of certain provisions of
the Deposit Agreement and are subject to the detailed provisions
thereof, to which reference is hereby made. Unless otherwise
expressly herein provided, all defined terms used herein shall
have the meaning ascribed thereto in the Deposit Agreement.
3. Optional Redemption of Stock for Common Stock.
Whenever the Company shall elect to redeem shares of Stock for
shares of Common Stock pursuant to the terms of the Stock, it
shall (unless otherwise agreed in writing with the Depositary)
give the Depositary not less than 15 nor more than 60 days' notice
of the date of such proposed redemption of Stock and of the number
of shares held by the Depositary to be redeemed. The Depositary
shall mail notice of such redemption and the proposed simultaneous
redemption of a corresponding number of Depositary Shares not less
than 15 and not more than 60 days before the date fixed for
redemption of such Stock and Depositary Shares to the holders of
record on the record date for such redemption (determined as
provided in Paragraph 17 below) of the Depositary Shares to be so
redeemed. In case less than all the outstanding Depositary Shares
are to be so redeemed, the Depositary Shares to be so redeemed
shall be selected by lot or pro rata (as nearly as may be) or in
any other equitable manner determined by the Depositary. Notice
having been mailed as aforesaid, from and after the date set for
redemption (unless the Company shall have failed to redeem the
shares of Stock to be redeemed by it on such date), all dividends
in respect of the shares of Stock so called for redemption shall
cease to accrue, the Depositary Shares so called for redemption
shall be deemed no longer to be outstanding, all rights of holders
of Depositary Receipts evidencing such Depositary Shares (except
the right to receive the Common Stock and amounts payable upon
such redemption) shall, to the extent of such Depositary Shares,
cease and terminate and, upon surrender in accordance with said
notice of the Receipts evidencing such Depositary Shares (properly
endorsed or assigned for transfer, if the Depositary shall so
require), such Depositary Shares shall be redeemed by the
Depositary for the consideration therefor specified in said
notice, plus all money and other property, if any, represented by
such Depositary Shares, including all amounts paid by the Company
in respect of dividends which on the redemption date have accrued
on the shares of Stock to be so redeemed and have not theretofore
been paid. If less than all of the Depositary Shares evidenced by
this Receipt are called for redemption, the Depositary will
deliver to the holder of this Receipt upon its surrender to the
Depositary, together with the redemption consideration, a new
Receipt evidencing the Depositary Shares evidenced by such prior
Receipt and not called for redemption. The foregoing shall
further be subject to the terms and conditions of the Articles of
Incorporation and Articles of Amendment.
4. Mandatory Conversion of Stock. On July 1, 1998
(the "Mandatory Conversion Date"), each outstanding Depositary
Share shall convert automatically into shares of Common Stock
("Mandatory Conversion") at the rate of one one-hundredth (as such
fraction may from time to time be adjusted, in certain events, so
as to equal at all times the fraction of an interest represented
by one Depositary Share in one share of Stock) of the rate then in
effect for the Stock and the right to receive an amount in cash
equal to all accrued and unpaid dividends on the interest in Stock
represented by such Depositary Share (other than dividends
declared for which the record date is before, and the payment date
is after, the Mandatory Conversion Date) to the Mandatory
Conversion Date, whether or not declared, out of funds legally
available for the payment of dividends, subject to the right of
the Depositary to redeem such Depositary Share pursuant to
paragraph 3, and subject to the conversion of such Depositary
Share pursuant to paragraph 5 at the option of the holder at any
time before the Mandatory Conversion Date. Dividends on the
Depositary Shares shall cease to accrue and the Depositary Shares
shall cease to be outstanding on the Mandatory Conversion Date.
All rights of the holders of Receipts (except the right to receive
the Common Stock and amounts payable upon such conversion) shall
cease and terminate as of the Mandatory Conversion Date.
On or before the Mandatory Conversion Date, the Company shall
deposit, set aside or make such other reasonable provision for the
issuance of such number of shares of Common Stock as are required
to be delivered by the Company in connection with such mandatory
conversion and shall have paid in full to the Depositary the cash
to be delivered in lieu of the issuance of fractional shares of
Common Stock and for accrued and unpaid dividends payable in cash
on the shares of Stock so converted. The Depositary shall mail a
notice of the mandatory conversion, first class, postage pre-paid,
on the Mandatory Conversion Date, to the holder of record on the
Mandatory Conversion Date of the Receipts evidencing the
Depositary Shares to be so converted, at the addresses of such
holders as the same appear on the records of the Depositary; but
neither failure to mail any such notice to one or more such
holders or any defect in any such notice shall affect the
sufficiency of the proceedings for conversion as to any holders.
Each such notice shall state the place or places where Receipts
evidencing Depositary Shares are to be surrendered for conversion
and that dividends in respect of the Stock represented by the
Depositary Shares to be converted will cease to accrue on the
Mandatory Conversion Date.
Upon surrender in accordance with such notice of the Receipts
evidencing any such Depositary Shares (properly endorsed or
assigned for transfer, if the Depositary shall so require), the
holder of such Receipts shall be entitled to receive one one-
hundredth (as such fraction may from time to time be adjusted, in
certain events, so as to equal at all times the fraction of an
interest represented by one Depositary Share in one share of
Stock) of the consideration to be received per share in respect of
the shares of Stock plus any dividends declared and paid on the
Common Stock so distributable after the Mandatory Conversion Date.
5. Conversion at Option of Holder. The Depositary
Shares are convertible, in whole or in part, at the option of the
holders thereof, at any time before the Mandatory Conversion Date,
unless previously redeemed, into shares of Common Stock at a rate
for each Depositary Share of one one-hundredth (as such fraction
may from time to time be adjusted, in certain events, so as to
equal at all times the fraction of an interest represented by one
Depositary Share in one share of Stock) of the rate then in effect
for the Stock. The right to convert Depositary Shares called for
redemption shall terminate at the close of business on the
redemption date.
A holder desiring to convert Depositary Shares may effect
such conversion by delivering Receipts evidencing such Depositary
Shares, together with written notice of conversion and a proper
assignment of such Depositary Receipts to the Company or in blank,
to the Depositary at its principal corporate trust office or at
such other place or places as may be designated from time to time
by the Depositary. Holders of Depositary Shares at the close of
business on a record date for the distribution of any cash
dividend received by the Depositary shall be entitled to receive
the dividend payable on such Depositary Shares on the
corresponding "Dividend Payment Date" (as defined in the Articles
of Amendment) notwithstanding the optional conversion of such
Depositary Shares following such record date and before such
Dividend Payment Date. The Company (and thereby the Depositary)
shall make no other payment or allowance for unpaid dividends, whether
or not in arrears, on other converted Depositary Shares or for
dividends or distributions on the shares of Common Stock issued
upon conversion.
Upon receipt of properly surrendered Depositary Shares for
conversion, the Depositary shall in turn surrender to the Company
a corresponding number of shares of the Stock for conversion;
provided that no fractional shares of the Stock may be converted.
Upon receipt of such Stock properly surrendered, the Company shall
promptly deliver to the Depositary the Common Stock issuable upon
such conversion and the Depositary shall in turn deliver such
Common Stock to the holders of the surrendered Receipts entitled
thereto.
If less than all of the Depositary Shares evidenced by a
Receipt are surrendered for conversion, the Depositary will
deliver to the holder of such Receipt upon its surrender to the
Depositary, together with the Common Stock issuable upon
conversion, a new Receipt evidencing the Depositary Shares
evidenced by such prior Receipt and not surrendered for
conversion.
6. Fractional Shares of Common Stock. No fractional
shares of Common Stock will be issued upon redemption or
conversion of the Depositary Shares. In lieu of any fractional
share otherwise issuable in respect of all Depositary Shares of
any holder which are redeemed or converted on any redemption date
or upon Mandatory Conversion or any optional conversion, such
holder shall be entitled to receive an amount in cash equal to the
same fraction of the (i) Current Market Price (as defined in the
Articles of Amendment) in the case of redemption, or (ii) Closing
Price (as defined in the Articles of Amendment) 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.
7. Surrender of Receipts and Withdrawal of Stock.
Upon surrender of this Receipt to the Depositary at its Corporate
Trust Office, or at such other offices as it may designate, and
subject to the provisions of the Deposit Agreement (unless the
Depositary Shares evidenced hereby have been theretofore called
for redemption), the holder hereof is entitled to withdraw, and to
obtain delivery, to or upon the order of such holder, of the Stock
and all money and other property, if any, at the time represented
hereby; provided, however, that the holder hereof is not entitled
to withdraw less than a whole share of Stock and therefore, this
Receipt, alone or in the aggregate with other Receipts, must
evidence at least a whole share of Stock; and provided further,
that in the event this Receipt shall evidence a number of
Depositary Shares in excess of the number of Depositary Shares
representing the number of whole shares of Stock to be so
withdrawn, the Depositary shall, in addition to such number of
whole shares of Stock and the money and other property, if any, to
be so withdrawn, deliver, to or upon the order of such holder, a
new Receipt evidencing such excess number of Depositary Shares.
8. Transfers, Split-ups, Combinations. This Receipt
is transferable on the books of the Depositary upon surrender of
this Receipt to the Depositary, properly endorsed or accompanied
by a properly executed instrument of transfer, and duly stamped as
may be required by law, and upon such transfer the Depositary
shall sign and deliver a Receipt to or upon the order of the
person entitled thereto, as provided in the Deposit Agreement.
This Receipt may be split into other Receipts or combined with
other Receipts into one Receipt, evidencing the same aggregate
number of Depositary Shares as evidenced by the Receipt or
Receipts surrendered.
9. Conditions to Signing and Delivery, Transfer, etc.,
of Receipts. Prior to the execution and delivery, transfer,
split-up, combination, delivery for purposes of surrender or
exchange of this Receipt, the Depositary, or any of the
Depositary's Agents, or the Company, may require payment to it of
a sum sufficient for the payment (or, if the Depositary or the
Company shall have made such payment, the reimbursement to it) of
any tax or other governmental charge with respect thereto
(including any such tax or charge with respect to Stock being
deposited or withdrawn), may require proof satisfactory to it as
to the identity and genuineness of any signature and may also
require compliance with such regulations, if any, as it may
establish pursuant to the Deposit Agreement. Any person
presenting Stock for deposit, or any holder of this Receipt, may
be required to file such information, and to execute such
certificates, as the Depositary or the Company may reasonably deem
necessary or proper.
10. Suspension of Delivery, Transfer, etc. The deposit
of Stock, the delivery of this Receipt against Stock, the
transfer, split-up, combination, surrender or exchange of this
Receipt may be refused or suspended (a) during any period when the
register of stockholders of the Company is closed, or (b) if any
such action is deemed necessary or advisable by the Depositary,
any of the Depositary's Agents or the Company at any time or from
time to time because of any requirement of law or of any
government or governmental body or commission, or under any
provision of the Deposit Agreement or, with the approval of the
Company, for any other reason.
11. Payment of Taxes or Other Governmental Charges. If
any tax or other governmental charge shall become payable by or on
behalf of the Depositary with respect to this Receipt or with
respect to the Depositary Shares evidenced hereby or with respect
to the Stock (or any fractional interest therein) represented by
such Depositary Shares, such tax (including transfer taxes, if
any) or governmental charge shall be payable by the holder hereof,
subject to certain exceptions in the Deposit Agreement. Transfer
of this Receipt or any withdrawal of the Stock and all money and
other property, if any, represented by the Depositary Shares
evidenced by this Receipt may be refused until such payment is
made, and any dividends, interest payments or other distributions
may be withheld, or any part or all of the Stock or other property
represented by the Depositary Shares evidenced by this Receipt and
not theretofore sold may be sold for the account of the holder
hereof, and such dividends, interest payments or other
distributions or the proceeds of any such sale may be applied to
any payment of such tax or other governmental charge, the holder
of this Receipt remaining liable for any deficiency.
12. Amendment. The form of the Receipts and any
provisions of the Deposit Agreement may at any time and from time
to time be amended by agreement between the Company and the
Depositary in any respect which they may deem necessary or
desirable. Any amendment which imposes any fees, taxes or charges
(other than fees and charges provided for herein or in the Deposit
Agreement), or which shall otherwise prejudice any substantial
existing right of holders of Receipts, shall not become effective
as to outstanding Receipts until the expiration of 90 days after
notice of such amendment shall have been given to the Record
Holders of outstanding Receipts. The holder of this Receipt at
the time any such amendment so becomes effective shall be deemed,
by continuing to hold this Receipt, to consent and agree to such
amendment and to be bound by the Deposit Agreement as amended
thereby. In no event shall any amendment impair the right,
subject to the provisions of Paragraphs 10 and 11 hereof and of
Sections 2.9 and 2.10 and Article III of the Deposit Agreement, of
the owner of the Depositary Shares evidenced by this Receipt upon
surrender of this Receipt with instructions to the Depositary to
deliver to the holder the number of whole shares of Stock to
receive such Stock or, upon conversion of the Stock represented by
this Receipt, to receive shares of Common Stock and in each case
all money and other property, if any, represented thereby, except
in order to comply with mandatory provisions of applicable law.
13. Charges of Depositary. The Company will pay all
transfer and other taxes and governmental charges arising solely
from the existence of the depositary arrangements and all charges
of the Depositary in connection with the initial deposit of the
Stock, the initial issuance of the Receipts, withdrawal of the
Stock by the holders of the Receipts and any redemption or
conversion of the Stock. Holders of Depositary Shares will pay
transfer and other taxes and governmental charges and certain
other charges as are provided in the Deposit Agreement to be for
their account.
14. Title to Receipts. It is a condition of this
Receipt, and every successive holder thereof by accepting or
holding the same consents and agrees, that title to this Receipt
(and to the Depositary Shares evidenced hereby), when properly
endorsed or accompanied by a properly executed instrument of
transfer, is transferable by delivery with the same effect as in
the case of a negotiable instrument; provided, however, that until
this Receipt shall be transferred on the books of the Depositary
as provided in Section 2.7 of the Deposit Agreement, the
Depositary may, notwithstanding any notice to the contrary, treat
the Record Holder hereof at such time as the absolute owner hereof
for the purpose of determining the person entitled to distribution
of dividends or other distribution or to any notice provided for
in the Deposit Agreement and for all other purposes.
15. Dividends and Distributions. Whenever the
Depositary receives any cash dividend or other cash distribution
on the Stock, the Depositary will, subject to the provisions of
the Deposit Agreement, make such distribution to the holders of
Receipts as nearly as practicable in proportion to the respective
numbers of Depositary Shares evidenced by the Receipts held by
such holders; provided, however, that the amount distributed will
be reduced by any amounts required to be withheld by the Company
or the Depositary on account of taxes. Other distributions
received on the Stock may be distributed to such holders of
Receipts as provided in the Deposit Agreement.
16. Subscription Rights, Preferences or Privileges. If
the Company shall at any time offer to the Record Holders of the
Stock any rights, preferences or privileges to subscribe for or to
purchase any securities or any rights, preferences or privileges
of any other nature, such rights, preferences or privileges shall
in each such instance, subject to the provisions of the Deposit
Agreement, be made available by the Depositary to the Record
Holders of Receipts in such manner as the Company may determine.
17. 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 if rights,
preferences or privileges shall at any time be offered, with
respect to the Stock, or whenever the Depositary shall receive
notice of (a) any meeting at which holders of Stock are entitled
to vote or of which holders of Stock are entitled to notice or (b)
any election on the part of the Company to redeem any shares of
Stock, the Depositary shall in each such instance fix a record
date (which shall be the same date as the record date fixed by the
Company with respect to the Stock) for the determination of the
holders of Receipts who shall be entitled to receive such
dividend, distribution, rights, preferences or privileges or the
net proceeds of the sale thereof, or to give instructions for the
exercise of voting rights at any such meeting, or who shall be
entitled to notice of such meeting, or whose Depositary Shares are
to be redeemed.
18. Voting Rights. Upon receipt of notice of any
meeting at which the holders of Stock are entitled to vote, the
Depositary shall, as soon as practicable thereafter, mail to the
Record Holders of Receipts a notice which shall contain (a) such
information as is contained in such notice of meeting, and (b) a
statement that the holders of Receipts at the close of business on
a specified record date determined as provided in Paragraph 17
will be entitled, subject to any applicable provisions of law and
of the Articles of Incorporation or the Articles of Amendment, to
instruct the Depositary as to the exercise of the voting rights
pertaining to the amount of Stock represented by the Depositary
Shares evidenced by their respective Receipts, and a brief
statement as to the manner in which such instructions may be
given. Upon the written request of a holder of a Receipt on such
record date the Depositary shall endeavor insofar as practicable
to vote or cause to be voted the amount of Stock represented by
the Depositary Shares evidenced by such Receipt in accordance with
the instructions set forth in such request. To the extent any
such instructions request the voting of a fraction of a share of
Stock, the Depositary shall aggregate such fraction with all other
fractions resulting from requests with the same voting
instructions and shall vote the number of whole shares resulting
from such aggregation in accordance with the instructions received
in such requests. In the absence of specific written instructions
from the holder of a Receipt, the Depositary will abstain from
voting to the extent of the Stock represented by the Depositary
Shares evidenced by such Receipt.
19. Reports, Inspection of Transfer Books. The
Depositary shall make available for inspection by holders of
Receipts at its Corporate Trust Office and at such other places as
it may from time to time deem advisable any reports and
communications received from the Company which are received by the
Depositary as the holder of Stock unless at the time of or prior
to the receipt the Company advises the Depositary that such
reports or communications have not been generally available to the
holders of Stock by the Company. The Depositary shall also send
to Record Holders of Receipts copies of such notices, reports and
other financial statements to the extent provided in the Deposit
Agreement when furnished by the Company. The Depositary shall
keep books for the transfer of Receipts, which at all reasonable
times will be open for inspection by the Record Holders of
Receipts, provided that such inspection shall be for a proper
purpose reasonably related to such person's interest as an owner
of Depositary Shares evidenced by the Receipts.
20. Liability of the Depositary, the Depositary's
Agents and the Company. Neither the Depositary nor any
Depositary's Agent nor the Company shall incur any liability to
any holder of any Receipt, if by reason of any provision of any
present or future law or regulations of any governmental authority
or, in the case of the Depositary or the Depositary's Agent, by
reason of any provision, present or future, of the Articles of
Incorporation or Articles of Amendment or by reason of any act of
God or war or other circumstances beyond the control of the
relevant party, the Depositary, any Depositary's Agent or the
Company shall be prevented or forbidden from doing or performing
any act or thing which the terms of the Deposit Agreement provide
shall or may be done or performed; nor shall the Depositary, any
Depositary's Agent or the Company incur any liability to any
holder of a Receipt by reason of any nonperformance or delay,
caused as aforesaid, in the performance of any act or thing which
the terms of the Deposit Agreement provide shall or may be done or
performed, or by reason of any exercise of, or failure to
exercise, any discretion provided for in the Deposit Agreement.
21. Obligations of the Depositary, the Depositary's
Agents and the Company. Neither the Depositary nor any
Depositary's Agent nor the Company assumes any obligation or shall
be subject to any liability under the Deposit Agreement to holders
of Receipts other than that each of them agrees to use its best
judgment and good faith in the performance of such duties as are
specifically set forth in the Deposit Agreement.
Neither the Depositary nor any Depositary's Agent nor
the Company shall be under any obligation to appear in, prosecute
or defend any action, suit or other proceeding with respect to
Stock, Depositary Shares or Receipts, which in its opinion may
involve it in expense or liability, unless indemnity satisfactory
to it against all expense and liability be furnished as often as
may be required.
Neither the Depositary nor any Depositary's Agent nor
the Company will be liable for any action or failure to act by it
in reliance on documents believed by it to be genuine and to have
been signed or presented by the proper party or parties or upon
the advice of or information from legal counsel, accountants, any
person presenting Stock for deposit, any holder of a Receipt or
any other person believed by it in good faith to be competent to
give such advice or information.
22. Termination of Deposit Agreement. Whenever so
directed by the Company, the Depositary will terminate the Deposit
Agreement by mailing notice of such termination to the Record
Holders of all Receipts then outstanding at least 30 days prior to
the date fixed in such notice for such termination. The
Depositary may likewise terminate the Deposit Agreement if at any
time 45 days shall have expired after the Depositary shall have
delivered to the Company a written notice of its election to
resign and a successor depositary shall not have been appointed
and accepted its appointment. Upon the termination of the Deposit
Agreement, the Company shall be discharged from all obligations
thereunder except for its obligations to the Depositary, any
Depositary's Agent and any Registrar with respect to
indemnification, charges and expenses.
If any Receipts remain outstanding after the date of
termination, the Depositary thereafter shall discontinue all
functions and be discharged from all obligations as provided in
the Deposit Agreement, except as specifically provided therein.
23. Governing Law. The Deposit Agreement and this
Receipt and all rights thereunder and hereunder and provisions
thereof and hereof shall be governed by, and construed in
accordance with, the laws of the Commonwealth of Virginia.
This Receipt shall not be entitled to any benefits under
the Deposit Agreement or be valid or obligatory for any purpose,
unless this Receipt shall have been executed on behalf of the
Company by the manual or facsimile signature of a duly authorized
officer and executed manually or, if a Registrar for the Receipts
(other than the Depositary) shall have been appointed, by
facsimile by the Depositary by the signature of a duly authorized
representative and, if executed by facsimile signature of the
Depositary, shall have been countersigned manually by such
Registrar by the signature of a duly authorized representative.
The following abbreviations, when used in the
inscription on the face of this certificate, shall be construed as
though they were written out in full according to applicable laws
or regulations:
TEN COM - as tenants in common
TEN ENT - as tenants by the entireties
JT TEN - as joint tenants with right of survivorship and not
as tenants in common
UNIF GIFT MIN ACT - ___________ Custodian ________________
(Cust) (Minor)
under Uniform Gifts to Minors
Act _________________
(State)
Dated:
WACHOVIA BANK OF NORTH CAROLINA, N.A.
Depositary and Registrar
By
Authorized Signature
JAMES RIVER CORPORATION OF VIRGINIA
By
Authorized Officer
<PAGE>
The undersigned holder of this Receipt for ________________
Depositary Shares each representing a one-hundredth (as such fraction
may from time to time be adjusted, in certain events, so as to equal
at all times the fraction of an interest represented by one Depositary
Share in one share of Series P 9% Cumulative Convertible Preferred
Stock (the "Stock")) interest in a share of the Stock (the "Depositary
Shares"), hereby irrevocably exercises the option to convert
__________ shares (which must be whole shares or any integral multiple
of such whole shares) of the Stock, represented by the Receipt into
shares of Common Stock (and any other applicable securities or
property) of James River Corporation of Virginia ("James River") in
accordance with the terms and conditions of the Stock and further as
provided in Section 2.5 of the Deposit Agreement, dated as of June __,
1994, among James River, Wachovia Bank of North Carolina, N.A., as
Depositary, and the holders from time to time of the Receipts referred
to in such Deposit Agreement, and directs that the securities
deliverable upon such conversion be registered in the name of and
delivered, together with a check in payment for any fractional share
and any other property deliverable upon such conversion, to the
undersigned unless a different name has been indicated below. If
securities are to be registered in the name of a person other than the
undersigned, the undersigned will pay all transfer taxes payable with
respect thereto. If the number of shares of the Stock indicated above
is less than the number of shares of such Stock on deposit in respect
of this Receipt, the undersigned directs that the Depositary issue to
the undersigned, unless a different name is indicated below, a new
Receipt evidencing Depositary Shares for the balance of the Stock not
to be converted.
Dated: ___________ Signature: ___________________________________
NOTE: The above signature should
correspond exactly with the name on
the face of this Receipt or with
the name of the assignee appearing
in the assignment form below.
(Please print name and address of registered holder)
Name:___________________________________________________________
Address:____________________________________________________________
(Please indicate other delivery instructions, if applicable)
Name:___________________________________________________________
Address:________________________________________________________
<PAGE>
[FORM OF ASSIGNMENT]
FOR VALUE RECEIVED, the undersigned hereby sells,
assigns and transfers unto the within
Receipt and all rights and interests represented by the
Depositary Shares evidenced thereby, and hereby irrevocably
constitutes and appoints his attorney, to transfer the
same on the books of the within named Depositary, with full power
of substitution in the premises.
Dated: Signature:
NOTE: The above signature
should correspond exactly
with the name on the face
of this Receipt.
Signature Guarantee
JAMES RIVER CORPORATION OF VIRGINIA
____________________
Articles of Amendment to
the Amended and Restated Articles of Incorporation
Designating the
Series P 9% Cumulative Convertible Preferred Stock
(Par Value $10.00 Per Share)
__________________
I. The name of the Corporation is James River Corporation of
Virginia (the "Corporation").
II. Pursuant to Sections 13.1-639 and 13.1-689 of the Virginia Stock
Corporation Act, the Board of Directors of the Corporation effective as of June
10, 1994 duly adopted the following amendment to the Amended and Restated
Articles of Incorporation of the Corporation, adding Article XIII thereto which
sets forth the designation and number of shares of a series of Preferred Stock
of the Corporation and certain preferences, limitations and relative rights
thereof and authorized a senior executive officer of the Corporation to
determine the remaining preferences, limitations and relative rights thereof
within limits specifically prescribed by the Board of Directors and such senior
executive officer made such determinations on June 21, 1994.
Article XIII
166,667 authorized but unissued shares of Preferred Stock ($10.00
par value) are designated as a series of Preferred Stock to be called the
Series P 9% Cumulative Convertible Preferred Stock (the "DECS"), with
the following voting powers, limitations, rights and preferences:
A. Dividends. (1) The holders of the DECS shall be entitled to
receive when, as and if declared by the Board of Directors of the
Corporation out of funds legally available therefor, cumulative
preferential dividends from the issue date of such shares, at the annual
rate of $155.25 per share (rounded upward to the nearest whole $.01), and
no more, payable quarterly for each share held, payable in arrears on the
first day of each January, April, July and October, respectively (each such
date being hereinafter referred to as a "Dividend Payment Date") or, if any
Dividend Payment Date is not a business day, then the Dividend Payment Date
shall be the next succeeding business day; provided, however, that with
respect to any dividend period during which a redemption occurs, the
Corporation may, at its option, declare accrued dividends to, and pay such
dividends on, the redemption date, in which case such dividends would be
payable on the redemption date in cash to the holders of the DECS as of the
record date for such dividend payment and such accrued dividends would not
be included in the calculation of the related Call Price (as hereinafter
defined). Each dividend on the shares of the DECS shall be payable to
holders of record as they appear on the stock books of the Corporation on
such record dates as shall be fixed by the Board of Directors of the
Corporation. The first dividend payment shall be for the period from the
issue date of the DECS to and including September 30, 1994 and shall be
payable on October 1, 1994. Dividends (or amounts equal to accrued and
unpaid dividends) payable on the DECS for any period other than a quarterly
dividend period shall be computed on the basis of a 360-day year of twelve
30-day months.
Dividends on the DECS shall accrue (whether or not the Corporation has
earnings, whether or not there are funds legally available for the payment
of such dividends and whether or not such dividends are declared) on a
daily basis from the previous Dividend Payment Date, except that the first
dividend shall accrue from the date of issuance of the DECS. Dividends
accumulate to the extent they are not paid on the Dividend Payment Date for
the quarter for which they accrue. Accumulated unpaid dividends shall not
bear interest.
(2) No dividend whatsoever shall be declared or paid upon, or
any sum set apart for the payment of dividends upon, any shares of the DECS
or Parity Stock for any dividend period unless all dividends for all past
dividend periods have been declared and paid upon, or declared and a
sufficient sum set apart for the payment of such dividends upon, all shares
of the DECS and Parity Stock outstanding.
(3) Unless full cumulative dividends (to the extent that the
amount thereof shall have become determinable) on all outstanding shares of
the DECS and any outstanding shares of Parity Stock due for all past
dividend periods shall have been declared and paid, or declared and a sum
sufficient for the payment thereof set apart, then, subject to the rights
of holders of shares of previously issued series of Preferred Stock (a) no
dividend (other than a dividend payable solely in Junior Stock) shall be
declared or paid upon, or any sum set apart for the payment of dividends
upon, any shares of Junior Stock; (b) no other distribution shall be made
upon any shares of Junior Stock; (c) no shares of Junior Stock or any other
series of Preferred Stock shall be purchased, redeemed or otherwise
acquired for value by the Corporation or by any Subsidiary; and (d) no
monies shall be paid into or set apart or made available for a sinking or
other like fund for the purchase, redemption or other acquisition for value
of any shares of Junior Stock by the Corporation or any Subsidiary.
(4) Any dividend payment made on the DECS shall be distributed
pro rata to the holders entitled thereto and be credited first against the
earliest accrued but unpaid dividend due with respect to the DECS.
B. Voting Rights. (1) The holders of shares of the DECS shall have
the right with the holders of the Common Stock to vote in the election of
Directors of the Corporation and upon each other matter coming before any
meeting of the shareholders on the basis of 85.47 votes for each share
held. The holders of the DECS and the holders of Common Stock shall vote
together as a single voting group except as otherwise set forth herein or
as otherwise provided by law or by the Amended and Restated Articles of
Incorporation of the Corporation.
(2) The approval of more than two-thirds of the votes entitled
to be cast by the holders of the outstanding shares of the DECS, voting as
a separate voting group, shall be required for the adoption of any
amendment to the Articles of Incorporation, or any bylaw, that materially
adversely changes the preferences, limitations and rights of the DECS (it
being expressly stated that an increase in the number of Directors of the
Corporation is not such an adverse change, provided that this statement is
made as a matter of clarification and shall not be read as implying that in
its absence such an increase would constitute such an adverse change) or
for the authorization of, or the increase in the authorized number of
shares of, a class of Capital Stock other than Junior Stock and Parity
Stock. The approval of a majority of the votes entitled to be cast by the
holders of the outstanding shares of the DECS, voting as a separate voting
group, shall be required for authorization of, or an increase in the
authorized number of shares of, any class of Parity Stock. Except for
cases covered by the two preceding sentences of this subparagraph B(2),
whenever the holders of the DECS are entitled under the Virginia Stock
Corporation Act to vote as a separate voting group on an amendment of the
Articles of Incorporation, a plan of merger, or a plan of share exchange,
the vote required for the approval of such amendment shall be a majority of
all votes cast on the amendment, plan of merger or plan of share exchange
by the holders of the DECS at a meeting at which the holders of a majority
of the outstanding shares of the DECS are represented in person or by
proxy.
(3) Whenever the holders of the DECS are entitled under the
Virginia Stock Corporation Act to vote together with the holders of one or
more other series of Preferred Stock as a single voting group (including a
vote of the class of Preferred Stock as a separate voting group) on any
amendment of the Articles of Incorporation, plan of merger or plan of share
exchange, the vote required for the approval of such amendment, plan of
merger or plan of share exchange shall be a majority of all votes cast on
the amendment, plan of merger or plan of share exchange by the holders of
the shares included in such voting group at a meeting at which the holders
of a majority of the outstanding shares included in such voting group are
represented in person or by proxy; provided that if at the time of such
vote there shall be outstanding any share of a series included in such
voting group which under the Articles of Incorporation or otherwise under
the Virginia Stock Corporation Act is not authorized as part of such voting
group to approve the amendment, plan of merger or plan of share exchange by
such majority vote, the vote required for its approval of such amendment,
plan of merger or plan of share exchange shall be more than two-thirds of
all the votes entitled to be cast by such voting group.
(4) The holders of the outstanding shares of the DECS shall also
have the right, voting together with the holders of any other outstanding
shares of Voting Preferred Stock (as hereinafter defined) as a separate
voting group, to elect two members of the Board of Directors of the
Corporation at any time six or more quarterly dividends on any shares of
Voting Preferred Stock shall be in arrears and unpaid, in whole or in part,
whether or not declared and whether or not any funds shall be or have been
legally available for payment thereof. For this purpose, "Voting Preferred
Stock" shall mean the DECS and each other series of Preferred Stock which
shall have substantially similar voting rights (including voting as one
voting group with other shares of Voting Preferred Stock) with respect to
the election of directors upon substantially similar arrearages of
dividends. In such event, unless a regular meeting of the shareholders of
the Corporation is to be held within 60 days thereof for the purpose of
electing Directors, the Corporation shall promptly thereafter cause the
number of Directors of the Corporation to be increased by two, and, within
30 days thereafter, shall call a special meeting of the holders of the
outstanding shares of Voting Preferred Stock for the purpose of electing
such Directors to take place at the time specified in the notice of the
meeting, to be not more than 60 days after such holders become so entitled
to elect two Directors and not less than ten nor more than 50 days after
the date on which such notice is mailed. If such special meeting shall not
have been so called by the Corporation, or such regular meeting shall not
be so held, a special meeting may be called for such purpose at the expense
of the Corporation by the holders of not less than 10% of the outstanding
shares of any series of Voting Preferred Stock; and notice of any such
special meeting shall be given by the person or persons calling the same to
the holders of the outstanding shares of the Voting Preferred Stock by
first-class mail, postage prepaid, at their last addresses as shall appear
on the stock transfer records of the Corporation. At any such special
meeting the holders of the outstanding shares of Voting Preferred Stock,
voting as a separate voting group with each share having one vote, shall
elect two members of the Board of Directors of the Corporation. If a
regular meeting of the shareholders of the Corporation for the purpose of
electing Directors is to be held within 60 days after the time the holders
of the outstanding shares of Voting Preferred Stock become so entitled to
elect two Directors, then the holders of the outstanding shares of Voting
Preferred Stock shall be given notice thereof in the same manner as other
shareholders of the Corporation entitled to vote thereat; and at such
regular meeting, the holders of the outstanding shares of Voting Preferred
Stock, voting as a separate voting group with each share having one vote,
shall elect two members of the Board of Directors. The right of the
holders of the Voting Preferred Stock, voting as a separate voting group,
to elect two members of the Board of Directors of the Corporation shall
continue until such time as no dividends on any outstanding shares of
Voting Preferred Stock are in arrears and unpaid, in whole or in part, at
which time (i) the voting power of the holders of the outstanding shares of
Voting Preferred Stock so to elect two directors shall cease, but always
subject to the same provisions of this paragraph (4) for the vesting of
such voting power upon the occurrence of each and every like arrearage of
dividends, and (ii) the term of office of each member of the Board of
Directors who was elected pursuant to this subparagraph B(4) shall
automatically expire.
C. Redemptions and Conversions.
(1) Mandatory Conversion. On July 1, 1998 (the "Mandatory
Conversion Date"), each outstanding share of the DECS shall convert
automatically (the "Mandatory Conversion") into shares of Common Stock at
the Common Equivalent Rate (as hereinafter defined) in effect on the
Mandatory Conversion Date and the right to receive an amount in cash equal
to all accrued and unpaid dividends on such DECS (other than dividends
declared for which the record date is before, and the payment date is
after, the Mandatory Conversion Date) to the Mandatory Conversion Date,
whether or not declared, out of funds legally available for the payment of
dividends, subject to the right of the Corporation to redeem the DECS on or
after the Initial Redemption Date (as hereinafter defined) and before the
Mandatory Conversion Date and subject to the conversion of the DECS at the
option of the holder at any time before the Mandatory Conversion Date. The
Common Equivalent Rate is initially one hundred shares of Common Stock for
each DECS and is subject to adjustment as set forth below. Dividends on
the DECS shall cease to accrue and such shares shall cease to be
outstanding on the Mandatory Conversion Date. The Corporation 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 such accrued and unpaid dividends, if any, or cash in lieu of fractional
shares, if any, in exchange for and contingent upon surrender of
certificates representing the DECS, provided that the Corporation shall
give the holders of the DECS such notice of any such arrangements as the
Corporation deems appropriate and upon such surrender such holders shall be
entitled to receive any dividends declared and paid on such shares of
Common Stock after the Mandatory Conversion Date. Amounts payable in cash
in respect of the shares of the DECS or in respect of such shares of Common
Stock shall not bear interest.
(2) Redemption by the Corporation.
(a) Right to Redeem. The DECS are not redeemable by
the Corporation before July 1, 1997 (the "Initial Redemption
Date"). At any time and from time to time on or after the
Initial Redemption Date and before the Mandatory Conversion Date,
the Corporation shall have the right to redeem, in whole or in
part, the outstanding DECS. Upon any such redemption, the
Corporation shall deliver to the holders of the DECS, in
accordance with the provisions of these Articles of Amendment, in
exchange for each share so redeemed, a number of shares of Common
Stock equal to the greater of (i) the Call Price (as hereinafter
defined) in effect on the redemption date, divided by the Current
Market Price (as hereinafter defined) of the Common Stock
determined as of the date which is one trading day before the
public announcement by the Corporation of the redemption or (ii)
85.47 shares of Common Stock, subject to adjustment to the same
extent as the Optional Conversion Rate (as defined and as set
forth below). The Call Price of each share of the DECS is the
sum of (i) $1,763.81 on and after the Initial Redemption Date
through September 30, 1997; $1,754.11 on and after October 1, 1997
through December 31, 1997; $1,744.41 on and after January 1, 1998
through March 31, 1998; $1,734.70 on and after April 1, 1998
through May 31, 1998; and $1,725.00 on and after June 1, 1998
until the Mandatory Conversion Date and (ii) all accrued and
unpaid dividends thereon to the redemption date (other than
dividends for which the record date is before, and the payment
date is after, the redemption date), subject to the right of the
Corporation pursuant to paragraph A(1) to pay such accrued and
unpaid dividends in cash. The public announcement by the
Corporation of any call for redemption shall be made before the
mailing of the notice of such call to holders of the DECS as
described below. If fewer than all of the outstanding shares of
the DECS are to be redeemed, shares to be redeemed shall be
selected by the Corporation from the outstanding shares of the
DECS not previously redeemed by lot or pro rata (as nearly as may
be practicable) or by any other method determined to be equitable
by the Board of Directors of the Corporation in its sole
discretion.
(b) Current Market Price. As used in this paragraph
C(2), the term "Current Market Price" per share of the Common
Stock on any date of determination means the lesser of (i) the
average of the Closing Prices (as hereinafter defined) of the
Common Stock for the fifteen consecutive Trading Days (as
hereinafter defined) ending on and including such date of
determination, and (ii) the Closing Price of the Common Stock for
such date of determination; provided, however, that, with respect
to any redemption of the DECS, if any event that results in an
adjustment of the Common Equivalent Rate occurs during the period
beginning on the first day of such fifteen-day period and ending
on the applicable redemption date, the Current Market Price as
determined pursuant to the foregoing shall be appropriately
adjusted to reflect the occurrence of such event.
(c) Notice of Redemption. The Corporation shall
provide notice of any redemption of any shares of the DECS to
holders of record of the DECS to be called for redemption not
less than 15 nor more than 60 days before the date fixed for such
redemption. Such notice shall be provided by mailing notice of
such redemption, first class postage prepaid, to each holder of
record of the shares of the DECS to be redeemed, at such holder's
address as it appears on the stock register of the Corporation;
provided, however, that neither failure to give such notice nor
any defect therein shall affect the validity of the redemption of
any DECS to be redeemed.
Each such notice shall state, as appropriate, the
following and may contain such other information as the
Corporation deems advisable:
1) the redemption date;
2) that all outstanding DECS are to be
redeemed or, in the case of a call for redemption of
fewer than all outstanding DECS, the number of shares
of the DECS held by such holder to be redeemed;
3) the Call Price, the number of shares of
Common Stock deliverable upon redemption of each share
of the DECS to be redeemed and the Current Market Price
used to calculate such number of shares of Common
Stock;
4) the place or places where certificates
for such shares are to be surrendered for redemption;
and
5) that dividends on the DECS to be
redeemed shall cease to accrue on such redemption date
(except as otherwise provided herein).
(d) Deposit of Shares and Funds. The Corporation's
obligation to deliver shares of Common Stock and provide funds
upon redemption in accordance with this paragraph C(2) shall be
deemed fulfilled if, on or before a redemption date, the
Corporation shall irrevocably deposit with a bank or trust
company, or an affiliate of a bank or trust company, having its
principal office in the United States of America and having a
capital and surplus of at least $50,000,000, or shall set aside
or make other reasonable provision for the issuance of such
number of shares of Common Stock as are required to be delivered
by the Corporation pursuant to this paragraph C(2) upon the
occurrence of the related redemption (and for the payment of cash
in lieu of the issuance of fractional share amounts and accrued
and unpaid dividends payable in cash on the shares to be redeemed
as and to the extent provided by this paragraph C(2)). Any
interest accrued on such funds shall be paid to the Corporation
from time to time. Any shares of Common Stock or funds so
deposited and unclaimed at the end of two years from such
redemption date shall be repaid and released to the Corporation,
after which the holder or holders of such shares of the DECS so
called for redemption shall look only to the Corporation for
delivery of such shares of Common Stock or funds.
(e) Surrender of Certificates; Status. Each holder of
the shares of the DECS to be redeemed shall surrender the
certificates evidencing such shares (properly endorsed or
assigned for transfer, if the Board of Directors of the
Corporation shall so require and the notice shall so state) to
the Corporation at the place designated in the notice of such
redemption and shall thereupon be entitled to receive
certificates evidencing shares of Common Stock and to receive any
funds payable pursuant to this paragraph C(2) following such
surrender and following the date of such redemption. In case
fewer than all of the shares represented by any such surrendered
certificate are called for redemption, a new certificate shall be
issued at the expense of the Corporation representing the
unredeemed shares. If such notice of redemption shall have been
given, and if on the date fixed for redemption shares of Common
Stock and funds necessary for the redemption shall have been
irrevocably either set aside by the Corporation separate and
apart from its other funds or assets in trust for the account of
the holders of the shares to be redeemed or converted (and so as
to be and continue to be available therefor) or deposited with a
bank or a trust company or an affiliate thereof as provided
herein or the Corporation shall have made other reasonable
provision therefor, then, notwithstanding that the certificates
evidencing any shares of the DECS so called for redemption or
subject to conversion shall not have been surrendered, the shares
represented thereby so called for redemption shall be deemed no
longer outstanding, dividends with respect to the shares so
called for redemption shall cease to accrue on the date fixed for
redemption (except that holders of the shares of the DECS at the
close of business on a record date for any payment of dividends
shall be entitled to receive the dividend payable on such shares
on the corresponding Dividend Payment Date notwithstanding the
redemption of such shares following such record date and before
such Dividend Payment Date) and all rights with respect to the
shares so called for redemption shall forthwith after such date
cease and terminate, except for the rights of the holders to
receive the shares of Common Stock and funds, if any, payable
pursuant to this paragraph C(2) without interest upon surrender
of their certificates therefor. Holders of shares of the DECS
that are redeemed shall not be entitled to receive dividends
declared and paid on such shares of Common Stock, and such shares
of Common Stock shall not be entitled to vote, until such shares
of Common Stock are issued upon the surrender of the certificates
representing such DECS and upon such surrender such holders shall
be entitled to receive such dividends declared and paid on such
shares of Common Stock after such redemption date.
(3) Conversion at Option of Holder. The DECS are convertible,
in whole or in part, at the option of the holders thereof, at any time
before the Mandatory Conversion Date, unless previously redeemed, into
shares of Common Stock at a rate of 85.47 shares of Common Stock for each
share of the DECS (the "Optional Conversion Rate"), subject to adjustment
as set forth below. The right to convert DECS called for redemption shall
terminate at the close of business on the redemption date.
Conversion of shares of the DECS may be effected by delivering
certificates evidencing such shares, together with written notice of
conversion and a proper assignment of such certificates to the Corporation
or in blank, to the office or agency to be maintained by the Corporation
for that purpose, and otherwise in accordance with conversion procedures
established by the Corporation from time to time. Each conversion shall be
deemed to have been effected immediately before the close of business on the
date on which the foregoing requirements shall have been satisfied. The
conversion shall be at the Optional Conversion Rate in effect at such time and
on such date.
Holders of shares of the DECS at the close of business on a
record date for any payment of dividends shall be entitled to receive the
dividend payable on such shares on the corresponding Dividend Payment Date
notwithstanding the conversion of such shares following such record date
and before such Dividend Payment Date. The Corporation shall make no other
payment or allowance for unpaid dividends, whether or not in arrears, on
converted shares of the DECS or for dividends or distributions on the
shares of Common Stock issued upon such conversion.
(4) Common Equivalent Rate and Optional Conversion Rate
Adjustments. The Common Equivalent Rate and the Optional Conversion Rate
shall be subject to adjustment from time to time as provided below in this
paragraph.
(a) If the Corporation shall:
1) pay a dividend or make a distribution
with respect to the Common Stock in shares of such
stock,
2) subdivide or split its outstanding
shares of Common Stock into a greater number of shares,
3) combine its outstanding shares of Common
Stock into a smaller number of shares, or
4) issue by reclassification of its shares
of Common Stock any shares of Common Stock of the
Corporation,
then, in any such event, the Common Equivalent Rate and the
Optional Conversion Rate in effect immediately before such event
shall each be adjusted so that the holders of any shares of the
DECS shall thereafter be entitled to receive, upon Mandatory
Conversion or upon conversion at the option of the holder, the
number of shares of Common Stock of the Corporation which such
holder would have owned or been entitled to receive immediately
following any event described above had such shares of the DECS
been converted immediately before such event or any record date
with respect thereto. Such adjustments shall become effective at
the opening of business on the business day next following the
record date for determination of shareholders entitled to receive
such dividend or distribution in the case of a dividend or
distribution and shall become effective immediately after the
effective date in the case of a subdivision, split, combination
or reclassification. Such adjustments shall be made
successively.
(b) If the Corporation shall, after the date hereof,
issue rights or warrants to all holders of its Common Stock
entitling them (for a period not exceeding 45 days from the date
of such issuance) to subscribe for or purchase shares of Common
Stock at a price per share less than the current market price of
the Common Stock, then in each case the Common Equivalent Rate
and the Optional Conversion Rate shall each be adjusted by
multiplying the Common Equivalent Rate and the Optional
Conversion Rate, in effect immediately before the date of
issuance of such rights or warrants, by a fraction, of which the
numerator shall be the number of shares of Common Stock
outstanding on the date of issuance of such rights or warrants,
immediately before 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 on the
date of issuance of such rights or warrants, immediately before
such issuance, plus the number of additional 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 shares by the exercise price of such rights or warrants and
dividing the product so obtained by such current market price).
Such adjustments shall become effective at the opening of
business on the business day next following the record date for
the determination of shareholders entitled to receive such rights
or warrants. To the extent that shares of Common Stock are not
delivered after the expiration of such rights or warrants, the
Common Equivalent Rate and the Optional Conversion Rate shall be
readjusted to the Common Equivalent Rate and the Optional
Conversion Rate, respectively, which would then be in effect had
the adjustments made upon the issuance of such rights or warrants
been made upon the basis of delivery of only the number of shares
of Common Stock actually delivered. Such adjustments shall be
made successively.
(c) If the Corporation shall pay a dividend or make a
distribution to all holders of Common Stock of evidences of its
indebtedness, securities of a Subsidiary or other assets (excluding any
dividends or distributions referred to in subparagraph (4)(a) above or any
cash dividends other than Extraordinary Cash Distributions, as defined in
paragraph E) or shall issue to all holders of its Common Stock rights or
warrants to subscribe for or purchase any of its securities (other than
those referred to in subparagraph (4)(b) above), then in each such case,
the Common Equivalent Rate and the Optional Conversion Rate shall each be
adjusted by multiplying the Common Equivalent Rate and the Optional
Conversion Rate in effect on the record date mentioned below, by a fraction
of which the numerator shall be the current market price per share of the
Common Stock on the record date for the determination of shareholders
entitled to receive such dividend or distribution, and of which the
denominator shall be such current market price per share of Common Stock
less the fair market value as determined by the Board of Directors of the
Corporation, whose determination shall be conclusive, and described in a
resolution adopted with respect thereto) as of such record date of the
portion of the assets or evidences of indebtedness so distributed or of
such subscription rights or warrants applicable to one share of Common
Stock. Such adjustments shall become effective on the opening of business
on the business day next following the record date for the determination of
shareholders entitled to receive such dividend, distribution or issuance.
Such adjustments shall be made successively.
(d) Any shares of Common Stock issuable in payment of a dividend
shall be deemed to have been issued immediately before the close of
business on the record date for such dividend for purposes of calculating
the number of outstanding shares of Common Stock under subparagraph (4)(b)
above. For purposes of any computation under subparagraphs (4)(b) and
(4)(c) above, the current market price per share of Common Stock at any
date shall be deemed to be the average of the daily Closing Prices for the
thirty consecutive Trading Days preceding the date in question; provided,
however, if any event that results in an adjustment of the Common
Equivalent Rate occurs during such thirty-day period, the current market
price as determined pursuant to the foregoing shall be appropriately
adjusted to reflect the occurrence of such event.
(e) The Corporation shall also be entitled to make upward
adjustments in the Common Equivalent Rate, the Optional Conversion Rate and
the Call Price, as it in its discretion shall determine to be advisable, so
that any stock dividends, subdivisions of shares, distribution of rights to
purchase stock or securities, or distribution of securities convertible
into or exchangeable for stock (or any transaction which could be treated
as any of the foregoing transactions pursuant to Section 305 of the
Internal Revenue Code of 1986, as amended) hereafter made by the
Corporation to its shareholders shall not be taxable.
(f) In any case in which subparagraph (4)(c) shall require that
an adjustment as a result of any event become effective at the opening of
business on the business day next following a record date and the date
fixed for conversion pursuant to paragraph C(3) or redemption pursuant to
paragraph C(2) occurs after such record date, but before the occurrence of
such event, the Corporation may in its sole discretion, elect to defer the
following until after the occurrence of such event: (A) issuing to the
holder of any converted or redeemed shares of the DECS the additional
shares of Common Stock issuable upon such conversion or redemption over the
shares of Common Stock issuable before giving effect to such adjustment and
(B) paying to such holder any amount in cash in lieu of a fractional share
of Common Stock pursuant to subparagraph C(1).
(g) All adjustments to the Common Equivalent Rate and the
Optional Conversion Rate shall be calculated to the nearest 1/1000th of a
share of Common Stock (or if there is not a nearest 1/1000th of a share to
the next lower 1/1000th of a share). No adjustment in the Common
Equivalent Rate and the Optional Conversion Rate shall be required unless
such adjustment would require an increase or decrease of at least one
percent therein; provided, however, that any adjustments which by reason of
this subparagraph are not required to be made shall be carried forward and
taken into account in any subsequent adjustments.
(5) Adjustment for Consolidation or Merger. In case of any
consolidation or merger to which the Corporation is a party (other than a merger
or consolidation in which the Corporation is the continuing corporation and in
which the Common Stock outstanding immediately before the merger or
consolidation remains unchanged), or in case of any sale or transfer to another
corporation of the property of the Corporation as an entirety or substantially
as an entirety, or in case of any statutory exchange of securities with another
corporation (other than in connection with a merger or acquisition), proper
provision shall be made so that each share of the DECS 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 into which such shares of the DECS might have been converted immediately
before consummation of such transaction, (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 into which such shares of the DECS would have converted
if the conversion on the Mandatory Conversion Date had occurred immediately
before the date of consummation of such transaction, and (iii) redemption on any
redemption date in exchange for 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 that would have been issuable at the Call Price
in effect on such redemption date upon a redemption of such shares immediately
before consummation of such transaction, assuming that the public announcement
of such redemption had been made on the last possible date permitted by the
terms of the DECS and applicable law, assuming in each case that such holder 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 which the DECS shall be convertible after consummation of such
transaction shall be subject to adjustment as described in subparagraph C(4)
following the date of consummation of such transaction. The Corporation may not
become a party to any such transaction unless the terms thereof are consistent
with the foregoing.
(6) Notice of Adjustments. Whenever the Common Equivalent Rate
and the Optional Conversion Rate are adjusted as herein provided, the
Corporation shall:
(a) forthwith compute the adjusted Common Equivalent Rate and
Optional Conversion Rate in accordance herewith and prepare a certificate
signed by an officer of the Corporation setting forth the adjusted Common
Equivalent Rate and the Optional Conversion Rate, 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 file
such certificate forthwith with the transfer agent for the DECS and the
Common Stock; and
(b) mail a notice to the holders of the outstanding shares of
the DECS stating that the Common Equivalent Rate and the Optional
Conversion Rate have been adjusted, the facts requiring such adjustment and
upon which such adjustment is based and setting forth the adjusted Common
Equivalent Rate and Optional Conversion Rate, such notice to be mailed at
or before the time the Corporation mails an interim statement to its
shareholders covering the fiscal quarter during which the facts requiring
such adjustment occurred, but in any event within 45 days of the end of
such fiscal quarter.
(7) Notices. In case, at any time while any of the DECS are
outstanding,
(a) the Corporation shall declare a dividend (or any other
distribution) on its Common Stock, excluding any cash dividends, but
including without limitation any securities of a Subsidiary; or
(b) the Corporation shall authorize the issuance to all holders
of its Common Stock of rights or warrants to subscribe for or purchase
shares of its Common Stock or of any other subscription rights or warrants;
or
(c) the Corporation shall authorize any reclassification of the
Common Stock of the Corporation (other than a subdivision or combination
thereof) or any consolidation or merger to which the Corporation is a party
and for which approval of any shareholders of the Corporation is required
(except for a merger of the Corporation into a Subsidiary solely for the
purpose of changing the corporate domicile of the Corporation to another
state of the United States of America and in connection with which there is
no substantive change in the rights or privileges of any securities of the
Corporation other than changes resulting from differences in the corporate
statutes of the then existing and the new state of domicile), or the sale
or transfer of all or substantially all of the assets of the Corporation;
or
(d) there shall be commenced the voluntary or involuntary
dissolution, liquidation or winding up of the Corporation;
then the Corporation shall cause to be filed at each office or agency maintained
for the purpose of conversion of the DECS, and shall cause to be mailed to the
holders of the shares of the DECS at their last addresses as they shall appear
on the stock register, at least ten days before the date hereinafter specified
(or the earlier of the dates hereinafter specified, if 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, 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, rights or warrants are to be
determined, or (B) the date on which any such reclassification, consolidation,
merger, sale, transfer, dissolution, liquidation or winding up 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, transfer, dissolution,
liquidation or winding up. The failure to give or receive the notice required
by this subparagraph (7) or any defect therein shall not affect the legality or
validity of any such dividend, distribution, right or warrant or other action.
(8) Effective Date of Conversion and Redemptions. The person or
persons in whose name or names any certificate or certificates for shares of
Common Stock shall be issuable upon any conversion or redemption shall be deemed
to have become on the date of any such conversion or redemption the holder or
holders of record of the shares represented thereby; provided, however, that any
such surrender on any date when the stock transfer books of the Corporation
shall be closed shall constitute the person or persons in whose name or names
the certificate or certificates for such shares are to be issued as the record
holder or holders thereof for all purposes at the opening of business on the
next succeeding day on which such stock transfer books are open.
(9) No Fractional Shares. No fractional shares or script
representing fractional shares of Common Stock shall be issued upon the
redemption or conversion of any DECS. In lieu of any fractional shares
otherwise issuable in respect of all the DECS of any holder which are redeemed
or converted on any redemption date or 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 (i) Current Market Price
in the case of redemption, or (ii) Closing Price of 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. If more than one share shall be surrendered
for conversion or redemption at one time by or for the same holder, the number
of full shares of Common Stock issuable upon conversion thereof shall be
computed on the basis of the aggregate number of shares of the DECS so
surrendered or redeemed.
(10) Payment of Taxes. The Corporation 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 redemption or conversion of
the DECS pursuant to this paragraph C; provided, however, that the Corporation
shall not be required to pay any tax which may be payable in respect of any
registration of transfer involved in the issue or delivery of shares of Common
Stock in a name other than that of the registered holder of the shares of the
DECS redeemed or converted or to be redeemed or converted, and no such issue or
delivery shall be made unless and until the person requesting such issue has
paid to the Corporation the amount of any such tax or has established, to the
satisfaction of the Corporation, that such tax has been paid.
(11) Reservation of Common Stock. The Corporation shall at all times
reserve and keep available, free from preemptive rights, out of the aggregate of
its authorized but unissued Common Stock, for the purpose of effecting any
Mandatory Conversion of the DECS or any conversion of the DECS at the option of
the holder, the full number of shares of Common Stock then deliverable upon any
such conversion of all outstanding DECS.
D. Liquidation Rights. (1) In the event of the liquidation, dissolution
or winding up of the business of the Corporation, whether voluntary or
involuntary, the holders of the shares of the DECS then outstanding, after
payment or provision for payment of the debts and other liabilities of the
Corporation and the payment or provision for payment of any distribution on any
shares of the Corporation having a preference and a priority over the DECS on
liquidation, and before any distribution to the holders of the Common Stock or
any other Junior Stock, shall be entitled to be paid out of the assets of the
Corporation available for distribution to its shareholders, an amount per share
of the DECS in cash equal to the sum of (i) $1,725.00 per share plus (ii) all
accrued and unpaid dividends thereon to the date of payment, before any payment
shall be made or any assets distributed to the holders of Junior Stock. If the
amount available for distribution to the holders of the outstanding shares of
the DECS upon any dissolution, liquidation or winding up of the Corporation
shall be insufficient to pay in full the liquidation payments payable to the
holders of the outstanding shares of the DECS and any shares of Parity Stock,
then the holders of all such shares of the DECS and the Parity Stock shall share
ratably in such distribution of assets in proportion to the full amounts to
which they are respectively entitled. Except as provided in this paragraph D,
holders of the shares of the DECS shall not be entitled to any distribution in
the event of liquidation, dissolution or winding up of the affairs of the
Corporation.
(a) For the purposes of this paragraph D, none of the following shall
be deemed to be a voluntary or involuntary liquidation, dissolution or winding
up of the Corporation:
1) the voluntary sale, conveyance, lease, exchange or transfer
(for cash, shares of stock, securities or other consideration) of all or
substantially all of the property or assets of the Corporation;
2) the consolidation or merger of the Corporation with or into
one or more other corporations, or other associations;
3) the consolidation or merger of one or more corporations or
other associations with or into the Corporation; or
4) the participation by the Corporation in a share exchange.
E. Definitions. As used in these Articles of Amendment the following
terms have the following meanings:
(a) "Common Stock" shall mean any stock of any class of the
Corporation which has no preference in respect of dividends or of amounts
payable in the event of any voluntary or involuntary liquidation, dissolution or
winding up of the Corporation and which is not subject to redemption by the
Corporation. However, shares of Common Stock issuable upon conversion of the
DECS shall include only shares of the class designated as Common Stock as of the
original date of issuance of the DECS, or shares of the Corporation of any class
or classes resulting from any reclassification or reclassifications thereof and
which have no preference in respect of dividends or of amounts payable in the
event of any voluntary or involuntary liquidation, dissolution or winding up of
the Corporation and which are not subject to redemption by the Corporation;
provided that if at any time there shall be more than one such resulting class,
the shares of each such class then so issuable shall be substantially in the
proportion which the total number of shares of such class resulting from such
reclassification bears to the total number of all shares of all classes
resulting from such reclassification.
(b) "business day" shall mean any day other than a Saturday, Sunday,
or a day on which banking institutions in the States of New York or North
Carolina or the Commonwealth of Virginia are authorized or obligated by law or
executive order to close or are closed because of a banking moratorium or
otherwise;
(c) "Capital Stock" means any capital stock of any class or series
(however designated) of the Corporation.
(d) "Closing Price" on any day shall mean the closing sale price
regular way on such day or, in case no such sale takes place on such day, the
average of the reported closing bid and asked prices regular way, in each case
on the New York Stock Exchange (or any successor thereto);
(e) "Extraordinary Cash Distributions" means, with respect to any cash
dividend or distribution paid on any date, the amount, if any, by which all cash
dividends and cash 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 an adjustment to the Common Equivalent Rate and the
Optional Conversion Rate was previously made) exceeds, on a per share of Common
Stock basis, 10% of the average daily Closing Price of the Common Stock over
such 12-month period.
(f) "Junior Stock" means any Capital Stock ranking as to dividends or
as to rights in liquidation, dissolution or winding up of the affairs of the
Corporation junior to the DECS.
(g) "Parity Stock" means any Capital Stock ranking as to dividends or
as to rights in liquidation, dissolution or winding up the affairs of the
Corporation equally with the DECS.
(h) "Subsidiary" means any corporation a majority of the outstanding
Voting Stock of which is owned, directly or indirectly, by the Corporation or by
one or more Subsidiaries or by the Corporation and one or more Subsidiaries.
For this purpose, "Voting Stock" means stock of any class or classes (however
designated) having ordinary voting power for the election of a majority of the
members of the board of directors (or other governing body) of such corporation,
other than stock having such powers only by reason of the happening of a
contingency.
(i) "Trading Day" shall mean a day on which the New York Stock
Exchange (or any successor thereto) is open for the transaction of business.
(j) "Voting Preferred Stock" is defined in paragraph B(4) hereof.
III. This amendment was adopted by the Board of Directors of the Corporation
without shareholder action and shareholder action was not required.
June __, 1994 JAMES RIVER CORPORATION OF VIRGINIA
By:
Chairman of the Board, President
and Chief Executive Officer
JAMES RIVER CORPORATION OF VIRGINIA
and
WACHOVIA BANK OF NORTH CAROLINA, N.A.
As Depositary
and
HOLDERS OF DEPOSITARY RECEIPTS
DEPOSIT AGREEMENT
Dated as of June __, 1994
<PAGE>
TABLE OF CONTENTS
Page
Parties. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
Recitals . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
ARTICLE I
DEFINITIONS
Section 1.1 Definitions . . . . . . . . . . . . . . . . . . . . 1
ARTICLE II
FORM OF RECEIPTS, DEPOSIT OF STOCK, EXECUTION AND
DELIVERY, TRANSFER, SURRENDER AND REDEMPTION OF RECEIPTS
Section 2.1. Form and Transferability of Receipts. . . . . . . . 2
Section 2.2. Deposit of Stock; Execution and Delivery of
Receipts in Respect Thereof . . . . . . . . . . . . . . . . . 3
Section 2.3. Optional Redemption of Stock for Common Stock . . . 5
Section 2.4. Mandatory Conversion of Stock . . . . . . . . . . . 6
Section 2.5. Conversion at Option of Holder. . . . . . . . . . . 7
Section 2.6. Fractional Shares of Common Stock . . . . . . . . . 8
Section 2.7. Transfer of Receipts. . . . . . . . . . . . . . . . 9
Section 2.8. Combinations and Split-ups of Receipts. . . . . . . 9
Section 2.9. Surrender of Receipts and Withdrawal of Stock . . . 9
Section 2.10. Limitations on Execution and Delivery, Transfer,
Split-Up, Combination and Surrender of Receipts . . . . . . . 10
Section 2.11. Lost Receipts, etc. . . . . . . . . . . . . . . . . 11
Section 2.12. Cancellation and Destruction of Surrendered
Receipts. . . . . . . . . . . . . . . . . . . . . . . . . . . 11
ARTICLE III
CERTAIN OBLIGATIONS OF HOLDERS OF RECEIPTS AND THE COMPANY
Section 3.1. Filing Proofs, Certificates and Other Information . 11
Section 3.2. Payment of Taxes or Other Governmental Charges. . . 11
Section 3.3. Representations and Warranties as to Stock. . . . . 12
ARTICLE IV
THE DEPOSITED SECURITIES; NOTICES
Section 4.1. Cash Distributions. . . . . . . . . . . . . . . . . 12
Section 4.2. Distributions Other Than Cash . . . . . . . . . . . 13
Section 4.3. Subscription Rights, Preferences or Privileges. . . 13
Section 4.4. Notice of Dividends, Fixing of Record Date for
Holders of Receipts . . . . . . . . . . . . . . . . . . . . . 14
Section 4.5. Voting Rights . . . . . . . . . . . . . . . . . . . 15
Section 4.6. Changes Affecting Deposited Securities and
Reclassifications, Recapitalizations, etc . . . . . . . . . . 15
Section 4.7. Reports . . . . . . . . . . . . . . . . . . . . . . 16
Section 4.8. Lists of Receipt Holders. . . . . . . . . . . . . . 16
ARTICLE V
THE DEPOSITARY AND THE COMPANY
Section 5.1. Maintenance of Offices, Agencies, Transfer Books
by the Depositary Registrar . . . . . . . . . . . . . . . . . 16
Section 5.2. Prevention or Delay in Performance by the
Depositary, the Depositary's Agents or the Company. . . . . . 17
Section 5.3. Obligations of the Depositary, the Depositary's
Agents and the Company. . . . . . . . . . . . . . . . . . . . 17
Section 5.4. Resignation and Removal of the Depositary;
Appointment of Successor Depositary . . . . . . . . . . . . . 18
Section 5.5. Corporate Notices and Reports . . . . . . . . . . . 19
Section 5.6. Deposit of Stock by the Company . . . . . . . . . . 19
Section 5.7. Indemnification by the Company. . . . . . . . . . . 19
ARTICLE VI
AMENDMENT AND TERMINATION
Section 6.1. Amendment . . . . . . . . . . . . . . . . . . . . . 20
Section 6.2. Termination . . . . . . . . . . . . . . . . . . . . 20
ARTICLE VII
MISCELLANEOUS
Section 7.1. Counterparts. . . . . . . . . . . . . . . . . . . . 21
Section 7.2. Exclusive Benefits of Parties . . . . . . . . . . . 21
Section 7.3. Invalidity of Provisions. . . . . . . . . . . . . . 22
Section 7.4. Notices . . . . . . . . . . . . . . . . . . . . . . 22
Section 7.5. Depositary's Agents . . . . . . . . . . . . . . . . 22
Section 7.6. Holders of Receipts are Parties . . . . . . . . . . 23
Section 7.7. Governing Law . . . . . . . . . . . . . . . . . . . 23
Section 7.8. Headings. . . . . . . . . . . . . . . . . . . . . . 23
EXHIBIT A - Depositary Receipt
<PAGE>
DEPOSIT AGREEMENT
This DEPOSIT AGREEMENT is dated as of June __, 1994 and is among
JAMES RIVER CORPORATION OF VIRGINIA, a Virginia corporation (the
"Company"), WACHOVIA BANK OF NORTH CAROLINA, N.A., a national banking
association, as depositary ("the Depositary"), and all holders from time to
time of Depositary Receipts issued hereunder.
WITNESSETH
Whereas, the Company desires to provide for the deposit of shares
of Series P 9% Cumulative Convertible Preferred Stock, par value $10.00
per share, of the Company with the Depositary for the purposes set forth in
this Deposit Agreement and for the issuance of Depositary Receipts
evidencing Depositary Shares in respect of the Stock so deposited, all on
the terms and conditions set forth in this Agreement; 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 mutual premises, it is
agreed by and among the parties hereto as follows:
ARTICLE I
DEFINITIONS
Section 1.1 Definitions. The following definitions shall for
all purposes, unless otherwise clearly indicated, apply to the respective
terms used in this Agreement and the Depositary Receipts:
"Authorizing Resolution" means the Articles of Amendment adopted
by the Company's Board of Directors establishing and setting forth the
rights, preferences and privileges of the Stock.
"Articles of Incorporation" means the Amended and Restated
Articles of Incorporation, as amended from time to time, of the Company.
"Company" means James River Corporation of Virginia, a Virginia
corporation having its principal office at 120 Tredegar Street, Richmond,
Virginia 23219, and its successors.
"Common Stock" means the Common Stock, $.10 par value, of the
Company.
"Corporate Trust Office" means the principal office of the
Depositary in Winston-Salem, North Carolina, at which at any particular
time its corporate trust business shall be administered.
"Deposit Agreement" means this Agreement, as the same may be
amended or supplemented from time to time.
"Depositary" means Wachovia Bank of North Carolina, N.A., a
national banking association and any successor as depositary hereunder.
"Depositary Shares" means the beneficial interests in the Stock,
evidenced by the Depositary Receipts issued hereunder and constituted by
the interests in Stock deposited with the Depositary hereunder represented
by such Receipts. Each Depositary Share shall, as provided herein,
represent an interest in one-hundredth (1/100) (as such fraction may from
time to time be adjusted in the event of certain amendments to the
Company's Articles of Incorporation) of one share of Stock.
"Depositary's Agent" means an agent appointed by the Depositary
as provided, and for the purposes specified, in Section 7.5.
"Receipt" means one or more of the Depositary Receipts issued
hereunder.
"Record Holder" as applied to a Receipt means the person in whose
name a Receipt is registered on the books of the Depositary maintained for
such purpose.
"Registrar" means any bank or trust company which shall be
appointed to register Receipts as herein provided.
"Securities Act of 1933" means the Act of May 27, 1933 (15 U.S.
Code, Secs. 77a-77aa), as from time to time amended.
"Stock" means shares of the Company's Series P 9% Cumulative
Convertible Preferred Stock, par value $10.00 per share, heretofore validly
issued, fully paid and nonassessable.
"Stockholders" means holders of the Stock.
ARTICLE II
FORM OF RECEIPTS, DEPOSIT OF STOCK, EXECUTION AND
DELIVERY, TRANSFER, SURRENDER AND REDEMPTION OF RECEIPTS
Section 2.1. Form and Transferability of Receipts. Receipts
shall be engraved or printed or lithographed on steel-engraved borders and
shall be substantially in the form set forth in Exhibit A annexed to this
Deposit Agreement, with appropriate insertions, modifications and
omissions, as hereinafter provided. Receipts shall be executed by the
Depositary by the manual signature of a duly authorized representative of
the Depositary, provided that such signature may be a facsimile if a
Registrar for the Receipts (other than the Depositary) shall have been
appointed and such Receipts are countersigned by manual signature of a duly
authorized representative of the Registrar. No Receipt shall be entitled
to any benefits under this Deposit Agreement or be valid or obligatory for
any purpose, unless it shall have been executed manually or, if a Registrar
for the Receipts (other than the Depositary) shall have been appointed, by
facsimile signature of a duly authorized representative of the Depositary
and, if executed by facsimile signature of the Depositary, shall have been
countersigned manually by a duly authorized representative of such
Registrar. The Depositary shall record on its books each Receipt so signed
and delivered as hereinafter provided.
Receipts shall be in denominations of any number of whole
Depositary Shares, unless otherwise directed by the Company.
Receipts may be endorsed with or have incorporated in the text
thereof such legends or recitals or changes not inconsistent with the
provisions of this Deposit Agreement as may be required by the Depositary
at the direction of the Company or required to comply with any applicable
law or any regulation thereunder or with the rules and regulations of any
securities exchange upon which the Stock, the Depositary Shares or the
Receipts, may be listed or to conform with any usage with respect thereto,
or to indicate any special limitations or restrictions to which any
particular Receipts are subject by reason of the date of issuance of the
Stock or otherwise.
Title to Depositary Shares evidenced by a Receipt which is
properly endorsed or accompanied by a properly executed instrument of
transfer, shall be transferable by delivery with the same effect as in the
case of a negotiable instrument; provided, however, that until a Receipt
shall be transferred on the books of the Depositary as provided in Section
2.7, the Depositary may, notwithstanding any notice to the contrary, treat
the Record Holder thereof at such time as the absolute owner thereof for
the purpose of determining the person entitled to distribution of dividends
or other distributions, to shares of Common Stock issued upon conversion or
redemption of the Stock or to any notice provided for in this Deposit
Agreement and for all other purposes.
Section 2.2. Deposit of Stock; Execution and Delivery of
Receipts in Respect Thereof. Subject to the terms and conditions of this
Deposit Agreement any holder of Stock may deposit such Stock under this
Deposit Agreement by delivery to the Depositary at its Corporate Trust
Office (or at such other place as may be agreeable to the Depositary) of a
certificate or certificates for the Stock to be deposited, properly
endorsed or accompanied, if required by the Depositary, by a duly executed
instrument of transfer or endorsement, in form satisfactory to the
Depositary, together with all such certifications as may be required by the
Depositary in accordance with the provisions of this Deposit Agreement, and
together with a written order directing the Depositary to execute and
deliver to, or upon the written order of, the person or persons stated in
such order a Receipt for the number of Depositary Shares representing such
deposited Stock.
The Depositary shall require, at the direction of the Company,
that Stock presented for deposit at any time, whether or not the register
of Stockholders of the Company is closed, shall also be accompanied by an
agreement or assignment, or other instrument satisfactory to the
Depositary, which will provide for the prompt transfer to the Depositary or
its nominee of any dividend or right to subscribe for additional Stock or
to receive other property which any person in whose name the Stock is or
has been recorded may thereafter receive upon or in respect of such
deposited Stock, or in lieu thereof such agreement of indemnity or other
agreement as shall be satisfactory to the Depositary.
Subject to the terms and conditions of this Deposit Agreement,
Stock may also be deposited hereunder in connection with the delivery of
Receipts to represent distributions under Section 4.2 and upon exercise of
the rights to subscribe referred to in Section 4.3.
Upon each delivery to the Depositary of a certificate or
certificates for Stock to be deposited hereunder, together with the other
documents above specified, the Depositary shall, as soon as transfer and
recordation can be accomplished, present such certificate or certificates
to the Registrar and transfer agent of the Stock for transfer and
recordation in the name of the Depositary or its nominee of the Stock being
deposited. Deposited Stock shall be held by the Depositary, at the
Depositary's Corporate Trust Office, or at such other place or places as
the Depositary shall determine.
Upon receipt by the Depositary of a certificate or certificates
for Stock deposited in accordance with the provisions of this Section,
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 to or upon the order of the person or persons
named in the written order delivered to the Depositary referred to in the
first paragraph of this Section, a Receipt for the number of Depositary
Shares representing the Stock so deposited and registered in such name or
names as may be requested by such person or persons. The Depositary shall
execute and deliver such Receipt at its Corporate Trust Office and at such
other offices, if any, as it may designate. Delivery at other offices
shall be at the risk and expense of the person requesting such delivery.
However, in each case, such delivery will be made only upon payment to the
Depositary of the fee of the Depositary for the execution and delivery of
such Receipt by the Company (unless payable by the holder), as provided in
Section 5.8, and of all taxes and governmental charges and fees payable in
connection with such deposit and the transfer of the deposited Stock.
Section 2.3. Optional Redemption of Stock for Common Stock.
Whenever the Company shall elect to redeem shares of Stock for shares of
Common Stock pursuant to the terms of the Stock, it shall (unless otherwise
agreed in writing with the Depositary) give the Depositary not less than 15
nor more than 60 days' notice of the date of such proposed redemption of
Stock and of the number of shares held by the Depositary to be so redeemed.
On the date of such redemption, provided that the Company shall then have
irrevocably deposited or set aside or made other reasonable provision for
the issuance of such number of shares of Common Stock as are required to be
delivered by the Company in connection with such redemption and paid in
full to the Depositary the cash to be delivered in lieu of the issuance of
fractional shares of Common Stock and for accrued and unpaid dividends
payable in cash on the shares of Stock to be redeemed, the Depositary shall
redeem the number of Depositary Shares representing such Stock. The
Depositary shall mail notice of such redemption and the proposed
simultaneous redemption of the number of Depositary Shares representing the
Stock to be redeemed, first class postage prepaid, not less than 15 and not
more than 60 days before the date fixed for redemption of such Stock and
Depositary Shares (the "redemption date"), to the holders of record on the
record date for such redemption (determined pursuant to Section 4.4) of the
Receipts evidencing the Depositary Shares to be so redeemed, at the
addresses of such holders as the same appear on the records of the
Depositary; but neither failure to mail any such notice to one or more such
holders nor any defect in any notice shall affect the sufficiency of the
proceedings for redemption as to any holders. Each such notice shall state
the record date for the purposes of such redemption; the redemption date;
the number of Depositary Shares to be redeemed and, if less than all the
Depositary Shares held by any such holder are to be redeemed, the number of
such Depositary Shares held by such holder to be so redeemed; the
redemption price; the number of shares of Common Stock deliverable upon
redemption of each Depositary Share to be redeemed and the Current Market
Price (as defined in the Authorizing Resolution) used to calculate such
number of shares of Common Stock; the place or places where Receipts
evidencing Depositary Shares are to be surrendered for redemption; and that
dividends in respect of the Stock represented by the Depositary Shares to
be redeemed will cease to accrue and the right to convert the Depositary
Shares will terminate on such redemption date. In case less than all the
outstanding Depositary Shares are to be redeemed, the Depositary Shares to
be so redeemed shall be selected by lot or pro rata (as nearly as may be)
or in any other equitable manner determined by the Depositary to be
consistent with the method determined by the Board of Directors of the
Company with respect to the Stock.
Notice having been mailed by the Depositary as aforesaid, from
and after the redemption date (unless the Company shall have failed to
redeem the shares of Stock to be redeemed by it as set forth in the
Company's notice provided for in the preceding paragraph), all dividends in
respect of the shares of Stock so called for redemption shall cease to
accrue, the Depositary Shares being redeemed from such proceeds shall be
deemed no longer to be outstanding, all rights of the holders of Receipts
evidencing such Depositary Shares (except the right to receive the Common
Stock and amounts payable upon such redemption) shall, to the extent of
such Depositary Shares, cease and terminate and, upon surrender in
accordance with said notice of the Receipts evidencing any such Depositary
Shares (properly endorsed or assigned for transfer, if the Depositary shall
so require), such Depositary Shares shall be redeemed by the Depositary for
one one-hundredth (1/100) (as such fraction may from time to time be
adjusted, in certain events, so as to equal at all times the fraction of an
interest represented by one Depositary Share in one share of Stock) of the
consideration to be received per share in respect of the shares of Stock
plus all money and other property, if any, represented by such Depositary
Shares, including all amounts paid by the Company in respect of dividends
which on the redemption date have accrued on the shares of Stock to be so
redeemed and have not theretofore been paid (other than dividends for which
the record date is before, and the payment date is after, the redemption
date). The foregoing shall further be subject to the terms and conditions
of the Authorizing Resolution.
If less than all of the Depositary Shares evidenced by a Receipt
are called for redemption, the Depositary will deliver to the holder of
such Receipt upon its surrender to the Depositary, together with the
redemption consideration, a new Receipt evidencing the Depositary Shares
evidenced by such prior Receipt and not called for redemption.
Section 2.4. Mandatory Conversion of Stock. On July 1, 1998
("Mandatory Conversion Date"), each outstanding Depositary Share shall
convert automatically into shares of Common Stock ("Mandatory Conversion")
at the rate of one one-hundredth (as such fraction may from time to time be
adjusted, in certain events, so as to equal at all times the fraction of an
interest represented by one Depositary Share in one share of Stock) of the
rate then in effect for the Stock and the right to receive an amount in
cash equal to all accrued and unpaid dividends on the interest in Stock
represented by such Depositary Share (other than dividends declared for
which the record date is before, and the payment date is after, the
Mandatory Conversion Date) to the Mandatory Conversion Date, whether or not
declared, out of funds legally available for the payment of dividends,
subject to the right of the Depositary to redeem such Depositary Share
pursuant to Section 2.3, and subject to the conversion of such Depositary
Share pursuant to Section 2.5 at the option of the holder at any time
before the Mandatory Conversion Date. Dividends on the Depositary Shares
shall cease to accrue and the Depositary Shares shall cease to be
outstanding on the Mandatory Conversion Date. All rights of the holders of
Receipts (except the right to receive the Common Stock and amounts payable
upon such conversion) shall cease and terminate as of the Mandatory
Conversion Date.
On or before the Mandatory Conversion Date, the Company shall deposit,
set aside or make such other reasonable provision for the issuance of such
number of shares of Common Stock as are required to be delivered by the
Company in connection with such mandatory conversion and shall have paid in
full to the Depositary the cash to be delivered in lieu of the issuance of
fractional shares of Common Stock and for accrued and unpaid dividends
payable in cash on the shares of Stock so converted. The Depositary shall
mail a notice of the mandatory conversion, first class, postage pre-paid,
on the Mandatory Conversion Date, to the holder of record on the Mandatory
Conversion Date of the Receipts evidencing the Depositary Shares to be so
converted, at the addresses of such holders as the same appear on the
records of the Depositary; but neither failure to mail any such notice to
one or more such holders or any defect in any such notice shall affect the
sufficiency of the proceedings for conversion as to any holders. Each such
notice shall state the place or places where Receipts evidencing Depositary
Shares are to be surrendered for conversion and that dividends in respect
of the Stock represented by the Depositary Shares to be converted will
cease to accrue on the Mandatory Conversion Date.
Upon surrender in accordance with such notice of the Receipts
evidencing any such Depositary Shares (properly endorsed or assigned for
transfer, if the Depositary shall so require), the holder of such Receipts
shall be entitled to receive one one-hundredth (as such fraction may from
time to time be adjusted, in certain events, so as to equal at all times
the fraction of an interest represented by one Depositary Share in one
share of Stock) of the consideration to be received per share in respect of
the shares of Stock plus any dividends declared and paid on the Common
Stock so distributable after the Mandatory Conversion Date.
Section 2.5. Conversion at Option of Holder. The Depositary
Shares are convertible, in whole or in part, at the option of the holders
thereof, at any time before the Mandatory Conversion Date, unless
previously redeemed, into shares of Common Stock at a rate for each
Depositary Share of one one-hundredth (as such fraction may from time to
time be adjusted, in certain events, so as to equal at all times the
fraction of an interest represented by one Depositary Share in one share of
Stock) of the rate then in effect for the Stock. The right to convert
Depositary Shares called for redemption shall terminate at the close of
business on the redemption date.
A holder desiring to convert Depositary Shares may effect such conversion
by delivering Receipts evidencing such Depositary Shares, together with written
notice of conversion and a proper assignment of such Depositary Receipts to the
Company or in blank, to the Depositary at its principal corporate trust office
or at such other place or places as may be designated from time to time by the
Depositary. Holders of Depositary Shares at the close of business on a record
date for the distribution of any cash dividend received by the Depositary shall
be entitled to receive the dividend payable on such Depositary Shares on the
corresponding "Dividend Payment Date" (as defined in the Authorizing Resolution)
notwithstanding the optional conversion of such Depositary Shares following such
record date and before such Dividend Payment Date. The Company (and thereby the
Depositary) shall make no other payment or allowance for unpaid dividends,
whether or not in arrears, on converted Depositary Shares or for dividends or
distributions on the shares of Common Stock issued upon conversion.
Upon receipt of properly surrendered Depositary Shares for conversion,
the Depositary shall in turn surrender to the Company a corresponding
number of shares of the Stock for conversion; provided that no fractional
shares of the Stock may be converted. Upon receipt of such Stock properly
surrendered, the Company shall promptly deliver to the Depositary the
Common Stock issuable upon such conversion and the Depositary shall in turn
deliver such Common Stock to the holders of the surrendered Receipts
entitled thereto.
If less than all of the Depositary Shares evidenced by a Receipt are
surrendered for conversion, the Depositary will deliver to the holder of
such Receipt upon its surrender to the Depositary, together with the Common
Stock issuable upon conversion, a new Receipt evidencing the Depositary
Shares evidenced by such prior Receipt and not surrendered for conversion.
Section 2.6. Fractional Shares of Common Stock. No fractional
shares of Common Stock will be issued upon redemption or conversion of the
Depositary Shares. In lieu of any fractional share otherwise issuable in
respect of all Depositary Shares of any holder which are redeemed or
converted on any redemption date or upon Mandatory Conversion or any
optional conversion, such holder shall be entitled to receive an amount in
cash equal to the same fraction of the (i) Current Market Price (as defined
in the Authorizing Resolution) in the case of redemption, or (ii) Closing
Price (as defined in the Authorizing Resolution) 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.
Section 2.7. Transfer of Receipts. Subject to the terms and
conditions of this Deposit Agreement, the Depositary shall make transfers
on its books from time to time of Receipts upon any surrender thereof at
the Depositary's Corporate Trust Office by the holder in person or by duly
authorized attorney, properly endorsed or accompanied by a properly
executed instrument of transfer, and duly stamped as may be required by
law. Thereupon the Depositary shall execute a new Receipt or Receipts and
deliver the same to or upon the order of the person entitled thereto
evidencing the same aggregate number of Depositary Shares as those
evidenced by the Receipt or Receipts surrendered.
Section 2.8. Combinations and Split-ups of Receipts. Upon
surrender of a Receipt or Receipts at the Depositary's Corporate Trust
Office or at such other offices as it may designate for the purpose of
effecting a split-up or combination of such Receipt or Receipts, and
subject to the terms and conditions of this Deposit Agreement, the
Depositary shall execute and deliver a new Receipt or Receipts in the
authorized denominations requested, evidencing the same aggregate number of
Depositary Shares evidenced by the Receipt or Receipts surrendered.
Section 2.9. Surrender of Receipts and Withdrawal of Stock.
Any holder of a Receipt or Receipts representing any number of whole shares
of Stock may withdraw the Stock and all money and other property, if any,
represented thereby by surrendering such Receipt or Receipts, at the
Depositary's Corporate Trust Office or at such other offices as the
Depositary may designate for such withdrawals. Thereafter, without
unreasonable delay, the Depositary shall deliver to such holder, or to the
person or persons designated by such holder as hereinafter provided, the
number of whole shares of Stock and all money and other property, if any,
represented by the Receipt or Receipts so surrendered for withdrawal. If
the Receipt delivered by the holder to the Depositary in connection with
such withdrawal shall evidence a number of Depositary Shares in excess of
the number of Depositary Shares representing the number of whole shares of
Stock to be so withdrawn, the Depositary shall at the same time, in
addition to such number of whole shares of Stock and such money and other
property, if any, to be so withdrawn, deliver to such holder, or upon his
order, a new Receipt evidencing such excess number of Depositary Shares.
In no event will fractional shares of Stock (or cash in lieu thereof) be
distributed by the Depositary. Delivery of the Stock and money and other
property being withdrawn may be made by the delivery of such certificates,
documents of title and other instruments as the Depositary may deem
appropriate, which, if required by the Depositary, shall be properly
endorsed or accompanied by proper instruments of transfer.
If the Stock and the money and other property being withdrawn are
to be delivered to a person or persons other than the Record Holder of the
Receipt or Receipts being surrendered for withdrawal of Stock, such holder
shall execute and deliver to the Depositary a written order so directing
the Depositary and the Depositary may require that the Receipt or Receipts
surrendered by such holder for withdrawal of such shares of Stock be
properly endorsed in blank or accompanied by a properly executed instrument
of transfer in blank.
Delivery of the Stock and the money and other property, if any,
represented by Receipts surrendered for withdrawal shall be made by the
Depositary at its Corporate Trust Office, except that, at the request, risk
and expense of the holder surrendering such Receipt or Receipts and for the
account of the holder thereof, such delivery may be made at such other
place as may be designated by such holder.
Section 2.10. Limitations on Execution and Delivery, Transfer,
Split-Up, Combination and Surrender of Receipts. As a condition precedent
to the execution and delivery, transfer, split-up, combination or surrender
of any Receipt, the Depositary, or any of the Depositary's Agents, or the
Company, may require payment to it of a sum sufficient for the payment (or,
if the Depositary or the Company shall have made such payment, the
reimbursement to it) of any tax or other governmental charge with respect
thereto (including any such tax or charge with respect to Stock being
deposited or withdrawn), may require the production of proof satisfactory
to it as to the identity and genuineness of any signature and may also
require compliance with such regulations, if any, as the Depositary or the
Company may establish consistent with the provisions of this Deposit
Agreement.
The deposit of Stock may be refused, or the delivery of Receipts
against Stock may be suspended or the transfer of Receipts may be refused,
or the transfer, split-up, combination or surrender of outstanding Receipts
may be suspended (a) during any period when the register of Stockholders of
the Company is closed, or (b) if any such action is deemed necessary or
advisable by the Depositary, any of the Depositary's Agents or the Company
at any time or from time to time because of any requirement of law or of
any government or governmental body or commission, or under any provision
of this Deposit Agreement or, with the approval of the Company, for any
other reason. Without limitation of the foregoing, the Depositary shall
not accept for deposit under this Deposit Agreement any shares of Stock as
to which it has actual knowledge that such shares are required to be
registered under the Securities Act of 1933, unless a registration
statement under such Act is in effect as to such shares of Stock; provided
however, the Depositary shall have no affirmative duty to determine whether
such shares of Stock are required to be registered under the Securities Act
of 1933 or whether the effectiveness of any registration statement has been
suspended.
Section 2.11. Lost Receipts, etc. In case any Receipt shall be
mutilated or destroyed or lost or stolen, the Depositary in its discretion
may execute and deliver a Receipt of like form and tenor in exchange and
substitution for such mutilated Receipt, or in lieu of and in substitution
for such destroyed, lost or stolen Receipt, upon (a) the filing by the
holder thereof with the Depositary evidence satisfactory to the Depositary
of such destruction or loss or theft of such Receipt, of the authenticity
thereof and of his ownership thereof and (b) the furnishing of the
Depositary with an indemnity bond or other reasonable indemnification
satisfactory to it.
Section 2.12. Cancellation and Destruction of Surrendered
Receipts. All Receipts surrendered to the Depositary or any Depositary's
Agent shall be cancelled by the Depositary. Except as prohibited by
applicable law or regulation, the Depositary shall, unless otherwise
directed by the Company, hold on behalf of the Company such Receipts so
cancelled.
ARTICLE III
CERTAIN OBLIGATIONS OF HOLDERS OF RECEIPTS AND THE COMPANY
Section 3.1. Filing Proofs, Certificates and Other Information.
Any person presenting Stock for deposit or any holder of a Receipt may be
required from time to time to file such proof of residence, or other
matters or other information, to execute such certificates and to make such
representations and warranties as the Depositary or the Company may
reasonably deem necessary or proper. The Depositary or the Company may
withhold the delivery or delay the transfer, redemption or conversion of
any Receipt or the withdrawal of the Stock represented by the Depositary
Shares evidenced by any Receipt or the distribution of any dividend or
other distribution or the sale of any rights or of the proceeds thereof
until such proof or other information is filed or such certificates are
executed or such representations and warranties are made.
Section 3.2. Payment of Taxes or Other Governmental Charges.
If any tax or other governmental charge shall become payable by or on
behalf of the Depositary with respect to any Receipt evidencing Depositary
Shares or with respect to the Depositary Shares evidenced by such Receipt
or with respect to the Stock (or any fractional interest therein)
represented by such Depositary Shares, such tax (including transfer taxes,
if any) or governmental charge shall be payable by the holder of such
Receipt, subject to certain exceptions set forth in Section 5.8. Transfer
of any Receipt or any withdrawal of Stock and all money or other property,
if any, represented by the Depositary Shares evidenced by such Receipt may
be refused until such payment is made, and any dividends, interest payments
or other distributions may be withheld, or any part or all of the Stock or
other property represented by the Depositary Shares evidenced by such
Receipt and not theretofore sold may be sold for the account of the holder
thereof (after attempting by reasonable means to notify such holder prior
to such sale), and such dividends, interest payments or other distributions
or the proceeds of any such sale may be applied to any payment of such tax
or other governmental charge, the holder of such Receipt remaining liable
for any deficiency.
Section 3.3. Representations and Warranties as to Stock. In
the case of the initial deposit of the Stock, the Company and, in the case
of subsequent deposits thereof, each person so depositing Stock under this
Deposit Agreement shall be deemed thereby to represent and warrant that
such Stock and each certificate therefore are valid and that the person
making such deposit is duly authorized so to do. The Company hereby
further represents and warrants that the Stock, when issued, will be
validly issued, fully paid and nonassessable. Such representations and
warranties shall survive the deposit of the Stock and the issuance of
Receipts.
ARTICLE IV
THE DEPOSITED SECURITIES; NOTICES
Section 4.1. Cash Distributions. Whenever the Depositary shall
receive any cash dividend or other cash distribution on Stock, the
Depositary shall, subject to Section 3.2, distribute to Record Holders of
Receipts on the record date fixed pursuant to Section 4.4 such amounts of
such sum as are, as nearly as practicable, in proportion to the respective
numbers of Depositary Shares evidenced by the Receipts held by such
holders; provided, however, that in case the Company or the Depositary
shall be required to withhold and does withhold from any cash dividend or
other cash distribution in respect of the Stock an amount on account of
taxes, the amount made available for distribution or distributed in respect
of Depositary Shares shall be reduced accordingly. The Depositary shall
distribute or make available for distribution, as the case may be, only
such amount, however, as can be distributed without attributing to any
owner of Depositary Shares a fraction of one cent, and any balance not so
distributable shall be held by the Depositary (without liability for
interest thereon) and shall be added to and be treated as part of the next
sum received by the Depositary for distribution to Record Holders of
Receipts then outstanding.
Section 4.2. Distributions Other Than Cash. Whenever the
Depositary shall receive any distribution other than cash upon Stock, the
Depositary shall, subject to Section 3.2, distribute to Record Holders of
Receipts on the record date fixed pursuant to Section 4.4 such amounts of
other securities or property received by it as are, as nearly as
practicable, in proportion to the respective numbers of Depositary Shares
evidenced by the Receipts held by such holders, in any manner that the
Depositary may deem equitable and practicable for accomplishing such
distribution. If in the opinion of the Company, after consultation with
the Depositary, such distribution cannot be made proportionately among such
Record Holders, or if for any reason (including any requirement that the
Company or the Depositary withhold an amount on account of taxes) the
Depositary deems, after consultation with the Company, such distribution
not to be feasible, the Depositary may, with the approval of the Company,
adopt such method as the Depositary deems equitable and practicable for the
purpose of effecting such distribution, including the sale (at public or
private sale) of the other securities or property thus received, or any
part thereof, at such place or places and upon such terms as it may deem
proper. The net proceeds of any such sale shall, subject to Section 3.2,
be distributed or made available for distribution, as the case may be, by
the Depositary to Record Holders of Receipts as provided by Section 4.1 in
the case of a distribution received in cash.
Section 4.3. Subscription Rights, Preferences or Privileges.
If the Company shall at any time offer or cause to be offered to the
persons in whose names Stock is recorded on the books of the Company any
rights, preferences or privileges to subscribe for or to purchase any
securities or any rights, preferences or privileges of any other nature,
such rights, preferences or privileges shall in each such instance be made
available by the Depositary to the Record Holders of Receipts in such
manner as the Company may determine, either by the issue to such Record
Holders of warrants representing such rights, preferences or privileges or
by such other method as may be approved by the Company in its discretion
with the approval of the Depositary; provided, however, that (a) if at the
time of issue or offer of any such rights, preferences or privileges the
Company determines that it is not lawful or (after consultation with the
Depositary) not feasible to make such rights, preferences or privileges
available to holders of Receipts by the issue of warrants or otherwise, or
(b) if and to the extent so instructed by holders of Receipts who do not
desire to exercise such rights, preferences or privileges, then the
Company, in its discretion (with the approval of the Depositary, in any
case where the Company has determined that it is not feasible to make such
rights, preferences or privileges available), may, if applicable laws or
the terms of such rights, preferences or privileges permit such transfer,
sell such rights, preferences or privileges at public or private sale, at
such place or places and upon such terms as it may deem proper. The net
proceeds of any such sale shall be distributed by the Depositary to the
Record Holders of Receipts entitled thereto as provided by Section 4.1 in
the case of a distribution received in cash.
If registration under the Securities Act of 1933 of the
securities to which any rights, preferences or privileges relate is
required in order for holders of Receipts to be offered or sold the
securities to which such rights, preferences or privileges relate, the
Company agrees with the Depositary that it will promptly file a
registration statement pursuant to such Act with respect to such rights,
preferences or privileges and securities and use its best efforts and take
all steps available to it to cause such registration statement to become
effective sufficiently in advance of the expiration of such rights,
preferences or privileges. In no event shall the Depositary make available
to the holders of Receipts any right, preference or privilege to subscribe
for or to purchase any securities unless and until the Company provides to
the Depositary an opinion of counsel stating that the securities to which
such rights, preferences or privileges relate have been registered under
the Securities Act of 1933 or do not need to be registered under such Act.
If any other action under the laws of any jurisdiction or any
governmental or administrative authorization, consent or permit is required
in order for such rights, preferences or privileges to be made available to
holders of Receipts, the Company agrees with the Depositary that the
Company will use its best efforts to take such action or obtain such
authorization, consent or permit sufficiently in advance of the expiration
of such rights, preferences or privileges to enable such holders to
exercise such rights, preferences or privileges.
Section 4.4. Notice of Dividends, Fixing of Record Date for
Holders of Receipts. Whenever any cash dividend or other cash distribution
shall become payable or any distribution other than cash shall be made, or
if rights, preferences or privileges shall at any time be offered, with
respect to Stock, or whenever the Depositary shall receive notice of (a)
any meeting at which holders of Stock are entitled to vote or of which
holders of Stock are entitled to notice or (b) any election on the part of
the Company to redeem any shares of Stock, the Depositary shall in each
such instance fix a record date (which shall be the same date as the record
date fixed by the Company with respect to the Stock) for the determination
of the holders of Receipts who shall be entitled to receive such dividend,
distribution, rights, preferences or privileges or the net proceeds of the
sale thereof, or to give instructions for the exercise of voting rights at
any such meeting, or who shall be entitled to notice of such meeting, or
whose Depositary Shares are to be redeemed.
Section 4.5. Voting Rights. Upon receipt of notice of any
meeting at which the holders of Stock are entitled to vote, the Depositary
shall, as soon as practicable thereafter, mail to the Record Holders of
Receipts a notice which shall contain (a) such information as is contained
in such notice of meeting, and (b) a statement that the holders of Receipts
at the close of business on a specified record date determined pursuant to
Section 4.4 will be entitled, subject to any applicable provision of law
and of the Company's Articles of Incorporation or the Authorizing
Resolution, to instruct the Depositary as to the exercise of the voting
rights pertaining to the amount of Stock represented by their respective
Depositary Shares, and a brief statement as to the manner in which such
instructions may be given. Upon the written request of a holder of a
Receipt on such record date, the Depositary shall endeavor insofar as
practicable to vote or cause to be voted the amount of Stock represented by
the Depositary Shares evidenced by such Receipt in accordance with the
instructions set forth in such request. To the extent any such
instructions request the voting of a fraction of a share of Stock, the
Depositary shall aggregate such fraction with all other fractions resulting
from requests with the same voting instructions and shall vote the number
of whole shares resulting from such aggregation in accordance with the
instructions received in such requests. The Company hereby agrees to take
all reasonable action which may be deemed necessary by the Depositary in
order to enable the Depositary to vote such Stock or cause such Stock to be
voted. In the absence of specific written instructions from the holder of
a Receipt, the Depositary will abstain from voting to the extent of the
Stock represented by the Depositary Shares evidenced by such Receipt.
Section 4.6. Changes Affecting Deposited Securities and
Reclassifications, Recapitalizations, etc. Upon any change in par or
stated value, split-up, consolidation or any other reclassification of
Stock, or upon any recapitalization, reorganization, merger, amalgamation
or consolidation or sale of all or substantially all of the Company's
assets affecting the Company or to which it is a party, the Depositary
shall, upon the instructions of the Company and in such manner as the
Company may deem equitable, (a) make such adjustments in (i) the fraction
of an interest represented by one Depositary Share in one share of Stock
and (ii) the ratio of the redemption price per Depositary Share to the
redemption price of a share of Stock in each case as may be necessary to
fully reflect the effects of such change in par or stated value, split-up,
consolidation or other reclassification of Stock, or of such
recapitalization, reorganization, merger, amalgamation or such
consolidation or sale and (b) treat any securities which shall be received
by the Depositary in exchange for or upon conversion of or otherwise in
respect of the Stock as new deposited securities under this Deposit
Agreement, and Receipts then outstanding shall thenceforth represent the
new deposited securities so received. In any such case the Company may in
its discretion, direct the Depositary to execute and deliver additional
Receipts, or may call for the surrender of all outstanding Receipts to be
exchanged for new Receipts specifically describing such new deposited
securities.
Section 4.7. Reports. The Depositary shall make available for
inspection by holders of Receipts at its Corporate Trust Office, and at
such other places as it may from time to time deem advisable, any reports
and communications received from the Company which are received by the
Depositary as the holder of Stock unless at the time of or prior to receipt
the Company advises the Depositary that such reports or communications have
not been generally available to the holders of Stock of the Company.
Section 4.8. Lists of Receipt Holders. Upon request from time
to time by the Company, the Depositary shall, without unreasonable delay,
furnish to the Company a list, as of a recent date, of the names, addresses
and holdings of Stock by all persons in whose names Receipts are registered
on the books of the Depositary.
ARTICLE V
THE DEPOSITARY AND THE COMPANY
Section 5.1. Maintenance of Offices, Agencies, Transfer Books
by the Depositary Registrar. Upon execution of this Deposit Agreement in
accordance with its terms, the Depositary shall maintain at its Corporate
Trust Office facilities for the execution and delivery, transfer, surrender
and exchange of Receipts, and at the offices of the Depositary's Agents, if
any, facilities for the delivery, transfer, surrender and exchange of
Receipts, all in accordance with the provisions of this Deposit Agreement.
The Depositary shall keep books at its Corporate Trust Office for
the transfer of Receipts, which books at all reasonable times shall be open
for inspection by the Record Holders of Receipts, unless the Company
advises the Depositary in a particular instance that such inspection is not
for a proper purpose reasonably related to such person's interest as an
owner of Depositary Shares evidenced by the Receipts. The Depositary may
close such books, at any time or from time to time, when deemed expedient
by it in connection with the performance of its duties hereunder.
If the Receipts or the Depositary Shares evidenced thereby or the
Stock represented by such Depositary Shares shall be listed on the New York
Stock Exchange, the Company may, upon consultation with the Depositary,
appoint a Registrar for registry of such Receipts or Depositary Shares in
accordance with the requirements of such Exchange. Such Registrar (which
may be the Depositary if so permitted by the requirements of such Exchange)
may be removed and a substitute registrar appointed by the Depositary upon
the request or with the approval of the Company. If the Receipts of such
Depositary Shares or such Stock are listed on one or more other stock
exchanges, the Depositary will, at the request of the Company, arrange such
facilities for the delivery, transfer, surrender and exchange of such
Receipts or such Depositary Shares or such Stock as may be required by law
or applicable stock exchange regulation.
Section 5.2. Prevention or Delay in Performance by the
Depositary, the Depositary's Agents or the Company. Neither the Depositary
nor any Depositary's Agent nor the Company shall incur any liability to any
holder of any Receipt, if by reason of any provision of any present or
future law, or regulation thereunder, of the United States of America, or
of any other governmental authority or, in the case of the Depositary or
the Depositary's Agent, by reason of any provision, present or future, of
the Company's Articles of Incorporation or the Authorizing Resolution or by
reason of any act of God or war or other circumstance beyond the control of
the relevant party, the Depositary, any Depositary's Agent or the Company
shall be prevented or forbidden from doing or performing any act or thing
which the terms of this Deposit Agreement provide shall or may be done or
performed, or by reason of any exercise of, or failure to exercise, any
discretion provided for in this Deposit Agreement.
Section 5.3. Obligations of the Depositary, the Depositary's
Agents and the Company. Neither the Depositary nor any Depositary's Agent
nor the Company assumes any obligation or shall be subject to any liability
under this Deposit Agreement to holders of Receipts other than that each of
them agrees to use its best judgment and good faith in the performance of
such duties as are specifically set forth in this Deposit Agreement.
Neither the Depositary nor any Depositary's Agent nor the Company
shall be under any obligation to appear in, prosecute or defend any action,
suit or other proceeding with respect to Stock, Depositary Shares or
Receipts, which in its opinion may involve it in expense or liability,
unless indemnity satisfactory to it against all expense and liability be
furnished as often as may be required.
Neither the Depositary nor any Depositary's Agent nor the Company
shall be liable for any action or any failure to act by it in reliance upon
the advice of or information from legal counsel, accountants, any person
presenting Stock for deposit, any holder of a Receipt or any other person
believed by it in good faith to be competent to give such advice or
information. The Depositary, any Depositary's Agent and the Company may
each rely and shall each be protected in acting upon any written notice,
request, direction or other document believed by it to be genuine and to
have been signed or presented by the proper party or parties.
The Depositary and the Depositary's Agents may own and deal in
any class of securities of the Company and its affiliates and in Receipts.
The Depositary may also act as transfer agent or registrar of any of the
securities of the Company and its affiliates.
Section 5.4. Resignation and Removal of the Depositary;
Appointment of Successor Depositary. The Depositary may at any time resign
as Depositary hereunder by notice of its election to do so delivered to the
Company, such resignation to take effect upon the appointment of a
successor depositary and its acceptance of such appointment as hereinafter
provided.
The Depository may at any time be removed by the Company by
notice of such removal delivered to the Depositary, such removal to take
effect upon the appointment of a successor depositary and its acceptance of
such appointment as hereinafter provided.
In case at any time the Depositary acting hereunder shall resign
or be removed, the Company shall, within 60 days after the delivery of the
notice of resignation or removal, as the case may be, appoint a successor
depositary, which shall be a bank or trust company having its principal
office in the United States of America and having a combined capital and
surplus of at least $50,000,000. Every successor depositary shall execute
and deliver to its predecessor and to the Company an instrument in writing
accepting its appointment hereunder, and thereupon such successor
depositary, without any further act or deed, shall become fully vested with
all the rights, powers, duties and obligations of its predecessor and for
all purposes shall be the Depositary under this Deposit Agreement, and such
predecessor, upon payment of all sums due it and on the written request of
the Company, shall promptly execute and deliver an instrument transferring
to such successor all rights and powers of such predecessor hereunder,
shall duly assign, transfer and deliver all rights, title and interest in
the Stock and any moneys or property held hereunder to such successor, and
shall deliver to such successor a list of the Record Holders of all
outstanding Receipts. Any successor depositary shall promptly mail notice
of its appointment to the Record Holders of Receipts.
Any corporation into or with which the Depositary may be merged,
consolidated or converted shall be the successor of such Depositary without
the execution or filing of any document or any further act. Such successor
depositary may authenticate the Receipts in the name of the predecessor
depositary or in the name of the successor depositary.
Section 5.5. Corporate Notices and Reports. The Company agrees
that it will deliver to the Depositary, and the Depositary will, promptly
after receipt thereof, transmit to the Record Holders of Receipts, in each
case at the address recorded in the Depositary's books, copies of all
notices and reports (including, without limitation, financial statements)
required by law, by the rules of any national securities exchange upon
which the Stock, the Depositary Shares or the Receipts are listed or by the
Company's Articles of Incorporation and the Authorizing Resolution to be
furnished by the Company to holders of Stock. Such transmission will be at
the Company's expense and the Company will provide the Depositary with such
number of copies of such documents as the Depositary may reasonably
request. In addition, the Depositary will transmit to the holders of
Receipts (at the Company's expense) such other documents as may be
requested by the Company.
Section 5.6. Deposit of Stock by the Company. The Company
agrees with the Depositary that neither the Company nor any company
controlled by the Company will at any time deposit any Stock, if such Stock
is required to be registered under the provisions of the Securities Act of
1933 and no registration statement is at such time in effect as to such
Stock.
Section 5.7. Indemnification by the Company. The Company
agrees to indemnify the Depositary, any Depositary's Agent and any
Registrar against, and hold each of them harmless from, any loss, liability
or expense (including reasonable costs of investigation, court costs, and
attorneys fees and disbursements) which may arise out of acts performed or
omitted in accordance with the provisions of this Deposit Agreement, as the
same may be amended, modified or supplemented from time to time, and the
Receipts (a) by the Depositary, any Registrar or any of their respective
officers, employees or agents (including any Depositary's Agent), except
for any loss, liability or expense arising out of negligence, bad faith or
willful misconduct on the part of any such person or persons, or (b) by the
Company or any of its agents.
Section 5.8. Charges and Expenses. The Company shall pay all
transfer and other taxes and governmental charges arising solely from the
existence of the depositary arrangements. The Company shall pay any and
all fees of the Depositary as shall be agreed to between the Company and
the Depositary including all charges of the Depositary in connection with
the initial deposit of the Stock, the initial issuance of the Receipts,
withdrawal of the Stock by the holders of Receipts and any redemption or
conversion of the Stock. All other transfer and other taxes and
governmental charges shall be at the expense of holders of Depositary
Shares. If, at the request of a holder of Receipts, the Depositary incurs
charges or expenses for which it is not otherwise liable hereunder, such
holder will be liable for such charges and expenses. All other reasonable
charges and expenses of the Depositary and any Depositary's Agent hereunder
and of any Registrar (including, in each case, reasonable fees and expenses
of counsel) incident to the performance of their respective obligations
hereunder will be paid upon consultation and agreement between the
Depositary and the Company as to the amount and nature of such charges and
expenses. The Depositary shall present its statement for charges and
expenses to the Company once every three months or at such other intervals
as the Company and the Depositary may agree.
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 Company and the Depositary in any
respect which they may deem necessary or desirable. Any amendment which
shall impose any fees, taxes or charges (other than fees and charges
provided for herein), or which shall otherwise prejudice any substantial
existing right of holders of Receipts, shall not become effective as to
outstanding Receipts until the expiration of 90 days after notice of such
amendment shall have been given to the Record Holders of outstanding
Receipts. Every holder of an outstanding Receipt at the time any such
amendment so becomes effective shall be deemed, by continuing to hold such
Receipt, to consent and agree to such amendment and to be bound by this
Deposit Agreement as amended thereby. In no event shall any amendment
impair the right, subject to the provisions of Sections 2.9 and 2.10 and
Article III, of any owner of any Depositary Shares upon surrender of the
Receipt evidencing such Depositary Shares with instructions to the
Depositary to deliver to the holder the number of whole shares of Stock, to
receive such Stock or, upon conversion of the Stock represented by the
Receipt, to receive shares of Common Stock, and in each case all money and
other property, if any, represented thereby, except in order to comply with
mandatory provisions of applicable law.
Section 6.2. Termination. Whenever so directed by the Company,
the Depositary will terminate this Deposit Agreement by mailing notice of
such termination to the Record Holders of all Receipts then outstanding at
least 30 days prior to the date fixed in such notice for such termination.
The Depositary may likewise terminate this Deposit Agreement if at any time
45 days shall have expired after the Depositary shall have delivered to the
Company a written notice of its election to resign and a successor
depositary shall not have been appointed and accepted its appointment as
provided in Section 5.4.
If any Receipts shall remain outstanding after the date of
termination of this Deposit Agreement, the Depositary thereafter shall
discontinue the transfer of Receipts, shall suspend the distribution of
dividends to the holders thereof, and shall not give any further notices
(other than notice of such termination) or perform any further acts under
this Deposit Agreement, except that the Depositary shall continue to
collect dividends and other distributions pertaining to Stock, shall sell
rights, preferences or privileges as provided in this Deposit Agreement and
shall continue to deliver the Stock and any money and other property
represented by Receipts upon surrender thereof by the holders thereof. At
any time after the expiration of two years from the date of termination,
the Depositary may sell Stock then held hereunder at public or private
sale, at such places and upon such terms as the Depositary deems proper and
may thereafter hold the net proceeds of any such sale, together with any
money and other property held by it hereunder, without liability for
interest, for the benefit, pro rata in accordance with their holdings, of
the holders of Receipts which have not theretofore been surrendered. After
making such sale, the Depositary shall be discharged from all obligations
under this Deposit Agreement, except to account for such net proceeds and
money and other property. Upon the termination of this Deposit Agreement,
the Company shall be discharged from all obligations under this Deposit
Agreement except for its obligations to the Depositary, any Depositary's
Agent and any Registrar under Sections 5.7 and 5.8. If this Deposit
Agreement is terminated and such number of shares of the Stock remain
outstanding as is necessary to satisfy the requirements of the New York
Stock Exchange, the Company hereby agrees to use its best efforts to list
the underlying Stock on the New York Stock Exchange (unless the holders of
a majority of the outstanding shares of the Stock shall consent to the
Company not effecting such listing).
ARTICLE VII
MISCELLANEOUS
Section 7.1. Counterparts. This Deposit Agreement may be
executed in any number of counterparts, and by each of the parties hereto
on separate counterparts, each of which counterparts, when so executed and
delivered, shall be deemed an original, but all such counterparts taken
together shall constitute one and the same instrument. Copies of this
Deposit Agreement shall be filed with the Depositary and the Depositary's
Agents and shall be open to inspection during business hours at the
Depositary's Corporate Trust Office and the respective offices of the
Depositary's Agents, if any, by any holder of a Receipt.
Section 7.2. Exclusive Benefits of Parties. This Deposit
Agreement is for the exclusive benefit of the parties hereto, and their
respective successors hereunder, and shall not be deemed to give any legal
or equitable right, remedy or claim to any other person whatsoever.
Section 7.3. Invalidity of Provisions. In case any one or more
of the provisions contained in this Deposit Agreement or in the Receipts
should be or become invalid, illegal or unenforceable in any respect, the
validity, legality and enforceability of the remaining provisions contained
herein or therein shall in no way be affected, prejudiced or disturbed
thereby.
Section 7.4. Notices. Any and all notices to be given to the
Company hereunder or under the Depositary Receipts shall be in writing and
shall be deemed to have been duly given if personally delivered or sent by
mail or telecopy confirmed by letter, addressed to the Company at Tredegar
Street, Richmond, Virginia 23219, Attention: Corporate Secretary, or at
any other place to which the Company may have transferred its principal
executive office.
Any and all notices to be given to the Depositary hereunder or
under the Depositary Receipts shall be in writing and shall be deemed to
have been duly given if personally delivered or sent by mail or by telecopy
confirmed by letter, addressed to the Depositary at its Corporate Trust
Office.
Any and all notices given to a Record Holder of a Receipt
hereunder or under the Depositary Receipts shall be in writing and shall be
deemed to have been duly given if personally delivered or sent by mail or
by telecopy confirmed by letter, addressed to such Record Holder at the
address of such Record Holder as it appears on the books of the Depositary,
or if such holder shall have filed with the Depositary a written request
that notices intended for such holder be mailed to some other address, at
the address designated in such request.
Delivery of a notice sent by mail or by telecopy shall be deemed
to be effected at the time when a duly addressed letter containing the same
(or a confirmation thereof, in the case of a telecopy message) is
deposited, postage prepaid, in a post office letter box. The Depositary or
the Company may, however, act upon any telecopy message received by it from
the other or from any holder of a Receipt, notwithstanding that such
telecopy message shall not subsequently be confirmed by letter or as
aforesaid.
Section 7.5. Depositary's Agents. The Depositary may from time
to time appoint Depositary's Agents to act in any respect for the
Depositary for the purposes of this Deposit Agreement and may at any time
appoint additional Depositary's Agents and vary or terminate the
appointment of such Depositary's Agents. The Depositary will notify the
Company of any such action.
Section 7.6. Holders of Receipts are Parties. The holders of
Receipts from time to time shall be deemed to be parties to this Deposit
Agreement and shall be bound by all of the terms and conditions hereof and
of the Receipts by acceptance of delivery thereof.
Section 7.7. Governing Law. The Deposit Agreement and the
Receipts and all rights hereunder and thereunder and provisions hereof and
thereof shall be governed by, and construed in accordance with, the laws of
the Commonwealth of Virginia.
Section 7.8. Headings. The headings of articles and sections
in this Deposit Agreement and in the form of the Receipt set forth in
Exhibit A hereto have been inserted for convenience only and are not to be
regarded as a part of this Deposit Agreement or to have any bearing upon
the meaning or interpretation of any provision contained herein or in the
Receipts.
IN WITNESS WHEREOF, James River Corporation of Virginia and
Wachovia Bank of North Carolina, N.A. have duly executed this Agreement as
of the date first above set forth and all holders of receipts shall become
parties hereto by and upon acceptance by them of delivery of Receipts
issued in accordance with the terms hereof.
JAMES RIVER CORPORATION OF VIRGINIA
Attest:__________________ By_________________________________
Authorized Officer
Assistant Secretary
WACHOVIA BANK OF NORTH CAROLINA,
N.A.
Attest:__________________ By_________________________________
Authorized Officer
Assistant Secretary
<PAGE>
EXHIBIT A
DEPOSITARY RECEIPT
FOR
DEPOSITARY SHARES,
EACH REPRESENTING A ONE-HUNDREDTH
INTEREST IN A SHARE OF SERIES P 9% CUMULATIVE CONVERTIBLE
PREFERRED STOCK
$10 Par Value
OF
JAMES RIVER CORPORATION OF VIRGINIA
(Incorporated under the Laws of the Commonwealth of Virginia)
No. . . . . . . . . . . . Depositary Shares (each
Depositary Share representing a one-hundredth
interest in a share of Series P 9%
Cumulative Convertible Preferred Stock ($10
par value))
1. Wachovia Bank of North Carolina, N.A., a national banking
association with its principal office at the time of the execution of the
Deposit Agreement (as defined below) at Winston-Salem, North Carolina, as
Depositary (the "Depositary"), hereby certifies that _________________ is
the registered owner of ______ Depositary Shares ("Depositary Shares"),
each Depositary Share representing a one-hundredth (1/100) interest in a
share of Series P 9% Cumulative Convertible Preferred Stock, par value
$10 per share (the "Stock"), of James River Corporation of Virginia, a
corporation duly organized and existing under the laws of the Commonwealth
of Virginia (the "Company"). The rights, preferences and limitations of
the Stock are set forth in the Company's Amended and Restated Articles of
Incorporation (the "Articles of Incorporation"), as amended by the Articles
of Amendment adopted by the Company's Board of Directors establishing the
Stock as a series of preferred stock of the Company (the "Articles of
Amendment"), copies of which are on file at the Depositary's Corporate
Trust Office.
2. The Deposit Agreement. Depositary receipts (the
"Receipts"), of which this Receipt is one, are made available upon the
terms and conditions set forth in the Deposit Agreement, dated as of June
__, 1994 (the "Deposit Agreement"), among the Company, the Depositary and
all holders from time to time of Receipts. The Deposit Agreement (copies
of which are on file at the Depositary's Corporate Trust Office) sets forth
the rights of holders of Receipts and the rights and duties of the
Depositary in respect of the Stock, and any and all other property and
cash, from time to time deposited thereunder. The statements made on the
face and the reverse of this Receipt are summaries of certain provisions of
the Deposit Agreement and are subject to the detailed provisions thereof,
to which reference is hereby made. Unless otherwise expressly herein
provided, all defined terms used herein shall have the meaning ascribed
thereto in the Deposit Agreement.
3. Optional Redemption of Stock for Common Stock. Whenever the
Company shall elect to redeem shares of Stock for shares of Common Stock
pursuant to the terms of the Stock, it shall (unless otherwise agreed in
writing with the Depositary) give the Depositary not less than 15 nor more
than 60 days' notice of the date of such proposed redemption of Stock and
of the number of shares held by the Depositary to be redeemed. The
Depositary shall mail notice of such redemption and the proposed
simultaneous redemption of a corresponding number of Depositary Shares not
less than 15 and not more than 60 days before the date fixed for redemption
of such Stock and Depositary Shares to the holders of record on the record
date for such redemption (determined as provided in Paragraph 17 below) of
the Depositary Shares to be so redeemed. In case less than all the
outstanding Depositary Shares are to be so redeemed, the Depositary Shares
to be so redeemed shall be selected by lot or pro rata (as nearly as may
be) or in any other equitable manner determined by the Depositary. Notice
having been mailed as aforesaid, from and after the date set for redemption
(unless the Company shall have failed to redeem the shares of Stock to be
redeemed by it on such date), all dividends in respect of the shares of
Stock so called for redemption shall cease to accrue, the Depositary Shares
so called for redemption shall be deemed no longer to be outstanding, all
rights of holders of Depositary Receipts evidencing such Depositary Shares
(except the right to receive the Common Stock and amounts payable upon such
redemption) shall, to the extent of such Depositary Shares, cease and
terminate and, upon surrender in accordance with said notice of the
Receipts evidencing such Depositary Shares (properly endorsed or assigned
for transfer, if the Depositary shall so require), such Depositary Shares
shall be redeemed by the Depositary for the consideration therefor
specified in said notice, plus all money and other property, if any,
represented by such Depositary Shares, including all amounts paid by the
Company in respect of dividends which on the redemption date have accrued
on the shares of Stock to be so redeemed and have not theretofore been
paid. If less than all of the Depositary Shares evidenced by this Receipt
are called for redemption, the Depositary will deliver to the holder of
this Receipt upon its surrender to the Depositary, together with the
redemption consideration, a new Receipt evidencing the Depositary Shares
evidenced by such prior Receipt and not called for redemption. The
foregoing shall further be subject to the terms and conditions of the
Articles of Incorporation and Articles of Amendment.
4. Mandatory Conversion of Stock. On July 1, 1998 (the
"Mandatory Conversion Date"), each outstanding Depositary Share shall
convert automatically into shares of Common Stock ("Mandatory Conversion")
at the rate of one one-hundredth (as such fraction may from time to time be
adjusted, in certain events, so as to equal at all times the fraction of an
interest represented by one Depositary Share in one share of Stock) of the
rate then in effect for the Stock and the right to receive an amount in
cash equal to all accrued and unpaid dividends on the interest in Stock
represented by such Depositary Share (other than dividends declared for
which the record date is before, and the payment date is after, the
Mandatory Conversion Date) to the Mandatory Conversion Date, whether or not
declared, out of funds legally available for the payment of dividends,
subject to the right of the Depositary to redeem such Depositary Share
pursuant to paragraph 3, and subject to the conversion of such Depositary
Share pursuant to paragraph 5 at the option of the holder at any time
before the Mandatory Conversion Date. Dividends on the Depositary Shares
shall cease to accrue and the Depositary Shares shall cease to be
outstanding on the Mandatory Conversion Date. All rights of the holders of
Receipts (except the right to receive the Common Stock and amounts payable
upon such conversion) shall cease and terminate as of the Mandatory
Conversion Date.
On or before the Mandatory Conversion Date, the Company shall deposit,
set aside or make such other reasonable provision for the issuance of such
number of shares of Common Stock as are required to be delivered by the
Company in connection with such mandatory conversion and shall have paid in
full to the Depositary the cash to be delivered in lieu of the issuance of
fractional shares of Common Stock and for accrued and unpaid dividends
payable in cash on the shares of Stock so converted. The Depositary shall
mail a notice of the mandatory conversion, first class, postage pre-paid,
on the Mandatory Conversion Date, to the holder of record on the Mandatory
Conversion Date of the Receipts evidencing the Depositary Shares to be so
converted, at the addresses of such holders as the same appear on the
records of the Depositary; but neither failure to mail any such notice to
one or more such holders or any defect in any such notice shall affect the
sufficiency of the proceedings for conversion as to any holders. Each such
notice shall state the place or places where Receipts evidencing Depositary
Shares are to be surrendered for conversion and that dividends in respect
of the Stock represented by the Depositary Shares to be converted will
cease to accrue on the Mandatory Conversion Date.
Upon surrender in accordance with such notice of the Receipts
evidencing any such Depositary Shares (properly endorsed or assigned for
transfer, if the Depositary shall so require), the holder of such Receipts
shall be entitled to receive one one-hundredth (as such fraction may from
time to time be adjusted, in certain events, so as to equal at all times
the fraction of an interest represented by one Depositary Share in one
share of Stock) of the consideration to be received per share in respect of
the shares of Stock plus any dividends declared and paid on the Common
Stock so distributable after the Mandatory Conversion Date.
5. Conversion at Option of Holder. The Depositary Shares are
convertible, in whole or in part, at the option of the holders thereof, at
any time before the Mandatory Conversion Date, unless previously redeemed,
into shares of Common Stock at a rate for each Depositary Share of one one-
hundredth (as such fraction may from time to time be adjusted, in certain
events, so as to equal at all times the fraction of an interest represented
by one Depositary Share in one share of Stock) of the rate then in effect
for the Stock. The right to convert Depositary Shares called for
redemption shall terminate at the close of business on the redemption date.
A holder desiring to convert Depositary Shares may effect such conversion
by delivering Receipts evidencing such Depositary Shares, together with written
notice of conversion and a proper assignment of such Depositary Receipts to the
Company or in blank, to the Depositary at its principal corporate trust office
or at such other place or places as may be designated from time to time by the
Depositary. Holders of Depositary Shares at the close of business on a record
date for the distribution of any cash dividend received by the Depositary shall
be entitled to receive the dividend payable on such Depositary Shares on the
corresponding "Dividend Payment Date" (as defined in the Articles of Amendment)
notwithstanding the optional conversion of such Depositary Shares following such
record date and before such Dividend Payment Date. The Company (and thereby the
Depositary) shall make no other payment or allowance for unpaid dividends,
whether or not in arrears, on converted Depositary Shares or for dividends or
distributions on the shares of Common Stock issued upon conversion.
Upon receipt of properly surrendered Depositary Shares for conversion,
the Depositary shall in turn surrender to the Company a corresponding
number of shares of the Stock for conversion; provided that no fractional
shares of the Stock may be converted. Upon receipt of such Stock properly
surrendered, the Company shall promptly deliver to the Depositary the
Common Stock issuable upon such conversion and the Depositary shall in turn
deliver such Common Stock to the holders of the surrendered Receipts
entitled thereto.
If less than all of the Depositary Shares evidenced by a Receipt are
surrendered for conversion, the Depositary will deliver to the holder of
such Receipt upon its surrender to the Depositary, together with the Common
Stock issuable upon conversion, a new Receipt evidencing the Depositary
Shares evidenced by such prior Receipt and not surrendered for conversion.
6. Fractional Shares of Common Stock. No fractional shares of
Common Stock will be issued upon redemption or conversion of the Depositary
Shares. In lieu of any fractional share otherwise issuable in respect of
all Depositary Shares of any holder which are redeemed or converted on any
redemption date or upon Mandatory Conversion or any optional conversion,
such holder shall be entitled to receive an amount in cash equal to the
same fraction of the (i) Current Market Price (as defined in the Articles
of Amendment) in the case of redemption, or (ii) Closing Price (as defined
in the Articles of Amendment) 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.
7. Surrender of Receipts and Withdrawal of Stock. Upon
surrender of this Receipt to the Depositary at its Corporate Trust Office,
or at such other offices as it may designate, and subject to the provisions
of the Deposit Agreement (unless the Depositary Shares evidenced hereby
have been theretofore called for redemption), the holder hereof is entitled
to withdraw, and to obtain delivery, to or upon the order of such holder,
of the Stock and all money and other property, if any, at the time
represented hereby; provided, however, that the holder hereof is not
entitled to withdraw less than a whole share of Stock and therefore, this
Receipt, alone or in the aggregate with other Receipts, must evidence at
least a whole share of Stock; and provided further, that in the event this
Receipt shall evidence a number of Depositary Shares in excess of the
number of Depositary Shares representing the number of whole shares of
Stock to be so withdrawn, the Depositary shall, in addition to such number
of whole shares of Stock and the money and other property, if any, to be so
withdrawn, deliver, to or upon the order of such holder, a new Receipt
evidencing such excess number of Depositary Shares.
8. Transfers, Split-ups, Combinations. This Receipt is
transferable on the books of the Depositary upon surrender of this Receipt
to the Depositary, properly endorsed or accompanied by a properly executed
instrument of transfer, and duly stamped as may be required by law, and
upon such transfer the Depositary shall sign and deliver a Receipt to or
upon the order of the person entitled thereto, as provided in the Deposit
Agreement. This Receipt may be split into other Receipts or combined with
other Receipts into one Receipt, evidencing the same aggregate number of
Depositary Shares as evidenced by the Receipt or Receipts surrendered.
9. Conditions to Signing and Delivery, Transfer, etc., of
Receipts. Prior to the execution and delivery, transfer, split-up,
combination, delivery for purposes of surrender or exchange of this
Receipt, the Depositary, or any of the Depositary's Agents, or the Company,
may require payment to it of a sum sufficient for the payment (or, if the
Depositary or the Company shall have made such payment, the reimbursement
to it) of any tax or other governmental charge with respect thereto
(including any such tax or charge with respect to Stock being deposited or
withdrawn), may require proof satisfactory to it as to the identity and
genuineness of any signature and may also require compliance with such
regulations, if any, as it may establish pursuant to the Deposit Agreement.
Any person presenting Stock for deposit, or any holder of this Receipt, may
be required to file such information, and to execute such certificates, as
the Depositary or the Company may reasonably deem necessary or proper.
10. Suspension of Delivery, Transfer, etc. The deposit of
Stock, the delivery of this Receipt against Stock, the transfer, split-up,
combination, surrender or exchange of this Receipt may be refused or
suspended (a) during any period when the register of stockholders of the
Company is closed, or (b) if any such action is deemed necessary or
advisable by the Depositary, any of the Depositary's Agents or the Company
at any time or from time to time because of any requirement of law or of
any government or governmental body or commission, or under any provision
of the Deposit Agreement or, with the approval of the Company, for any
other reason.
11. Payment of Taxes or Other Governmental Charges. If any tax
or other governmental charge shall become payable by or on behalf of the
Depositary with respect to this Receipt or with respect to the Depositary
Shares evidenced hereby or with respect to the Stock (or any fractional
interest therein) represented by such Depositary Shares, such tax
(including transfer taxes, if any) or governmental charge shall be payable
by the holder hereof, subject to certain exceptions in the Deposit
Agreement. Transfer of this Receipt or any withdrawal of the Stock and all
money and other property, if any, represented by the Depositary Shares
evidenced by this Receipt may be refused until such payment is made, and
any dividends, interest payments or other distributions may be withheld, or
any part or all of the Stock or other property represented by the
Depositary Shares evidenced by this Receipt and not theretofore sold may be
sold for the account of the holder hereof, and such dividends, interest
payments or other distributions or the proceeds of any such sale may be
applied to any payment of such tax or other governmental charge, the holder
of this Receipt remaining liable for any deficiency.
12. Amendment. The form of the Receipts and any provisions of
the Deposit Agreement may at any time and from time to time be amended by
agreement between the Company and the Depositary in any respect which they
may deem necessary or desirable. Any amendment which imposes any fees,
taxes or charges (other than fees and charges provided for herein or in the
Deposit Agreement), or which shall otherwise prejudice any substantial
existing right of holders of Receipts, shall not become effective as to
outstanding Receipts until the expiration of 90 days after notice of such
amendment shall have been given to the Record Holders of outstanding
Receipts. The holder of this Receipt at the time any such amendment so
becomes effective shall be deemed, by continuing to hold this Receipt, to
consent and agree to such amendment and to be bound by the Deposit
Agreement as amended thereby. In no event shall any amendment impair the
right, subject to the provisions of Paragraphs 10 and 11 hereof and of
Sections 2.9 and 2.10 and Article III of the Deposit Agreement, of the
owner of the Depositary Shares evidenced by this Receipt upon surrender of
this Receipt with instructions to the Depositary to deliver to the holder
the number of whole shares of Stock to receive such Stock or, upon
conversion of the Stock represented by this Receipt, to receive shares of
Common Stock and in each case all money and other property, if any,
represented thereby, except in order to comply with mandatory provisions of
applicable law.
13. Charges of Depositary. The Company will pay all transfer
and other taxes and governmental charges arising solely from the existence
of the depositary arrangements and all charges of the Depositary in
connection with the initial deposit of the Stock, the initial issuance of
the Receipts, withdrawal of the Stock by the holders of the Receipts and
any redemption or conversion of the Stock. Holders of Depositary Shares
will pay transfer and other taxes and governmental charges and certain
other charges as are provided in the Deposit Agreement to be for their
account.
14. Title to Receipts. It is a condition of this Receipt, and
every successive holder thereof by accepting or holding the same consents
and agrees, that title to this Receipt (and to the Depositary Shares
evidenced hereby), when properly endorsed or accompanied by a properly
executed instrument of transfer, is transferable by delivery with the same
effect as in the case of a negotiable instrument; provided, however, that
until this Receipt shall be transferred on the books of the Depositary as
provided in Section 2.7 of the Deposit Agreement, the Depositary may,
notwithstanding any notice to the contrary, treat the Record Holder hereof
at such time as the absolute owner hereof for the purpose of determining
the person entitled to distribution of dividends or other distribution or
to any notice provided for in the Deposit Agreement and for all other
purposes.
15. Dividends and Distributions. Whenever the Depositary
receives any cash dividend or other cash distribution on the Stock, the
Depositary will, subject to the provisions of the Deposit Agreement, make
such distribution to the holders of Receipts as nearly as practicable in
proportion to the respective numbers of Depositary Shares evidenced by the
Receipts held by such holders; provided, however, that the amount
distributed will be reduced by any amounts required to be withheld by the
Company or the Depositary on account of taxes. Other distributions
received on the Stock may be distributed to such holders of Receipts as
provided in the Deposit Agreement.
16. Subscription Rights, Preferences or Privileges. If the
Company shall at any time offer to the Record Holders of the Stock any
rights, preferences or privileges to subscribe for or to purchase any
securities or any rights, preferences or privileges of any other nature,
such rights, preferences or privileges shall in each such instance, subject
to the provisions of the Deposit Agreement, be made available by the
Depositary to the Record Holders of Receipts in such manner as the Company
may determine.
17. 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 if rights, preferences or privileges shall at any time be
offered, with respect to the Stock, or whenever the Depositary shall
receive notice of (a) any meeting at which holders of Stock are entitled to
vote or of which holders of Stock are entitled to notice or (b) any
election on the part of the Company to redeem any shares of Stock, the
Depositary shall in each such instance fix a record date (which shall be
the same date as the record date fixed by the Company with respect to the
Stock) for the determination of the holders of Receipts who shall be
entitled to receive such dividend, distribution, rights, preferences or
privileges or the net proceeds of the sale thereof, or to give instructions
for the exercise of voting rights at any such meeting, or who shall be
entitled to notice of such meeting, or whose Depositary Shares are to be
redeemed.
18. Voting Rights. Upon receipt of notice of any meeting at
which the holders of Stock are entitled to vote, the Depositary shall, as
soon as practicable thereafter, mail to the Record Holders of Receipts a
notice which shall contain (a) such information as is contained in such
notice of meeting, and (b) a statement that the holders of Receipts at the
close of business on a specified record date determined as provided in
Paragraph 17 will be entitled, subject to any applicable provisions of law
and of the Articles of Incorporation or the Articles of Amendment, to
instruct the Depositary as to the exercise of the voting rights pertaining
to the amount of Stock represented by the Depositary Shares evidenced by
their respective Receipts, and a brief statement as to the manner in which
such instructions may be given. Upon the written request of a holder of a
Receipt on such record date the Depositary shall endeavor insofar as
practicable to vote or cause to be voted the amount of Stock represented by
the Depositary Shares evidenced by such Receipt in accordance with the
instructions set forth in such request. To the extent any such
instructions request the voting of a fraction of a share of Stock, the
Depositary shall aggregate such fraction with all other fractions resulting
from requests with the same voting instructions and shall vote the number
of whole shares resulting from such aggregation in accordance with the
instructions received in such requests. In the absence of specific written
instructions from the holder of a Receipt, the Depositary will abstain from
voting to the extent of the Stock represented by the Depositary Shares
evidenced by such Receipt.
19. Reports, Inspection of Transfer Books. The Depositary shall
make available for inspection by holders of Receipts at its Corporate Trust
Office and at such other places as it may from time to time deem advisable
any reports and communications received from the Company which are received
by the Depositary as the holder of Stock unless at the time of or prior to
the receipt the Company advises the Depositary that such reports or
communications have not been generally available to the holders of Stock by
the Company. The Depositary shall also send to Record Holders of Receipts
copies of such notices, reports and other financial statements to the
extent provided in the Deposit Agreement when furnished by the Company.
The Depositary shall keep books for the transfer of Receipts, which at all
reasonable times will be open for inspection by the Record Holders of
Receipts, provided that such inspection shall be for a proper purpose
reasonably related to such person's interest as an owner of Depositary
Shares evidenced by the Receipts.
20. Liability of the Depositary, the Depositary's Agents and the
Company. Neither the Depositary nor any Depositary's Agent nor the Company
shall incur any liability to any holder of any Receipt, if by reason of any
provision of any present or future law or regulations of any governmental
authority or, in the case of the Depositary or the Depositary's Agent, by
reason of any provision, present or future, of the Articles of
Incorporation or Articles of Amendment or by reason of any act of God or
war or other circumstances beyond the control of the relevant party, the
Depositary, any Depositary's Agent or the Company shall be prevented or
forbidden from doing or performing any act or thing which the terms of the
Deposit Agreement provide shall or may be done or performed; nor shall the
Depositary, any Depositary's Agent or the Company incur any liability to
any holder of a Receipt by reason of any nonperformance or delay, caused as
aforesaid, in the performance of any act or thing which the terms of the
Deposit Agreement provide shall or may be done or performed, or by reason
of any exercise of, or failure to exercise, any discretion provided for in
the Deposit Agreement.
21. Obligations of the Depositary, the Depositary's Agents and
the Company. Neither the Depositary nor any Depositary's Agent nor the
Company assumes any obligation or shall be subject to any liability under
the Deposit Agreement to holders of Receipts other than that each of them
agrees to use its best judgment and good faith in the performance of such
duties as are specifically set forth in the Deposit Agreement.
Neither the Depositary nor any Depositary's Agent nor the Company
shall be under any obligation to appear in, prosecute or defend any action,
suit or other proceeding with respect to Stock, Depositary Shares or
Receipts, which in its opinion may involve it in expense or liability,
unless indemnity satisfactory to it against all expense and liability be
furnished as often as may be required.
Neither the Depositary nor any Depositary's Agent nor the Company
will be liable for any action or failure to act by it in reliance on
documents believed by it to be genuine and to have been signed or presented
by the proper party or parties or upon the advice of or information from
legal counsel, accountants, any person presenting Stock for deposit, any
holder of a Receipt or any other person believed by it in good faith to be
competent to give such advice or information.
22. Termination of Deposit Agreement. Whenever so directed by
the Company, the Depositary will terminate the Deposit Agreement by mailing
notice of such termination to the Record Holders of all Receipts then
outstanding at least 30 days prior to the date fixed in such notice for
such termination. The Depositary may likewise terminate the Deposit
Agreement if at any time 45 days shall have expired after the Depositary
shall have delivered to the Company a written notice of its election to
resign and a successor depositary shall not have been appointed and
accepted its appointment. Upon the termination of the Deposit Agreement,
the Company shall be discharged from all obligations thereunder except for
its obligations to the Depositary, any Depositary's Agent and any Registrar
with respect to indemnification, charges and expenses.
If any Receipts remain outstanding after the date of termination,
the Depositary thereafter shall discontinue all functions and be discharged
from all obligations as provided in the Deposit Agreement, except as
specifically provided therein.
23. Governing Law. The Deposit Agreement and this Receipt and
all rights thereunder and hereunder and provisions thereof and hereof shall
be governed by, and construed in accordance with, the laws of the
Commonwealth of Virginia.
This Receipt shall not be entitled to any benefits under the
Deposit Agreement or be valid or obligatory for any purpose, unless this
Receipt shall have been executed on behalf of the Company by the manual or
facsimile signature of a duly authorized officer and executed manually or,
if a Registrar for the Receipts (other than the Depositary) shall have been
appointed, by facsimile by the Depositary by the signature of a duly
authorized representative and, if executed by facsimile signature of the
Depositary, shall have been countersigned manually by such Registrar by the
signature of a duly authorized representative.
The following abbreviations, when used in the inscription on the
face of this certificate, shall be construed as though they were written
out in full according to applicable laws or regulations:
TEN COM - as tenants in common
TEN ENT - as tenants by the entireties
JT TEN - as joint tenants with right of survivorship and not
as tenants in common
UNIF GIFT MIN ACT - ___________ Custodian ________________
(Cust) (Minor)
under Uniform Gifts to Minors
Act _________________
(State)
Dated:
WACHOVIA BANK OF NORTH CAROLINA, N.A.
Depositary and Registrar
By
Authorized Signature
JAMES RIVER CORPORATION OF VIRGINIA
By
Authorized Officer
<PAGE>
The undersigned holder of this Receipt for ________________ Depositary
Shares each representing a one-hundredth (as such fraction may from time to
time be adjusted, in certain events, so as to equal at all times the
fraction of an interest represented by one Depositary Share in one share of
Series P 9% Cumulative Convertible Preferred Stock (the "Stock"))
interest in a share of the Stock (the "Depositary Shares"), hereby
irrevocably exercises the option to convert __________ shares (which must
be whole shares or any integral multiple of such whole shares) of the
Stock, represented by the Receipt into shares of Common Stock (and any
other applicable securities or property) of James River Corporation of
Virginia ("James River") in accordance with the terms and conditions of the
Stock and further as provided in Section 2.5 of the Deposit Agreement,
dated as of June 22, 1994, among James River, Wachovia Bank of North
Carolina, N.A., as Depositary, and the holders from time to time of the
Receipts referred to in such Deposit Agreement, and directs that the
securities deliverable upon such conversion be registered in the name of
and delivered, together with a check in payment for any fractional share
and any other property deliverable upon such conversion, to the undersigned
unless a different name has been indicated below. If securities are to be
registered in the name of a person other than the undersigned, the
undersigned will pay all transfer taxes payable with respect thereto. If
the number of shares of the Stock indicated above is less than the number
of shares of such Stock on deposit in respect of this Receipt, the
undersigned directs that the Depositary issue to the undersigned, unless a
different name is indicated below, a new Receipt evidencing Depositary
Shares for the balance of the Stock not to be converted.
Dated: ___________ Signature: ___________________________________
NOTE: The above signature should
correspond exactly with the name on
the face of this Receipt or with the
name of the assignee appearing in the
assignment form below.
(Please print name and address of registered holder)
Name:___________________________________________________________
Address:____________________________________________________________
(Please indicate other delivery instructions, if applicable)
Name:___________________________________________________________
Address:________________________________________________________
<PAGE>
[FORM OF ASSIGNMENT]
FOR VALUE RECEIVED, the undersigned hereby sells, assigns and
transfers unto _____________________ the within Receipt and all rights and
interests represented by the Depositary Shares evidenced thereby, and
hereby irrevocably constitutes and appoints ________ his attorney, to
transfer the same on the books of the within named Depositary, with full
power of substitution in the premises.
Dated: Signature:
NOTE: The above signature
should correspond exactly
with the name on the face
of this Receipt.
Signature Guarantee
