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UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM 8-K
CURRENT REPORT PURSUANT TO SECTION 13 OR 15(d)
OF THE SECURITIES EXCHANGE ACT OF 1934
As of May 6, 1998
Commission File No. 1-8968
ANADARKO PETROLEUM CORPORATION
17001 Northchase Drive, Houston, Texas 77060-2141
(281) 875-1101
Incorporated in the Employer Identification
State of Delaware No. 76-0146568
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Item 5. Other Events
In this Current Report on Form 8-K, the Registrant is filing with the
Securities and Exchange Commission certain items that are to be
incorporated by reference into its Registration Statement on Form S-3
(Registration No. 333-48157).
Item 7. Financial Statements and Exhibits
(c) Exhibits
Exhibit
Number Description
4(a) Certificate of Designation of
Anadarko Petroleum Corporation
200,000 Shares of 5.46% Cumulative
Preferred Stock, Series B
4(b) Anadarko Petroleum Corporation and
ChaseMellon Shareholder Services,
L.L.C., As Depositary, and Holders
of Depositary Receipts Deposit
Agreement, Dated as of May 7, 1998
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SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of 1934,
the Registrant has duly caused this report to be signed on its behalf
by the undersigned duly authorized officer and principal financial
officer.
ANADARKO PETROLEUM CORPORATION
(Registrant)
May 6, 1998 [MICHAEL E. ROSE]
Michael E. Rose - Senior Vice President,
Finance and Chief Financial Officer
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Exhibit 4(a)
CERTIFICATE OF DESIGNATION
OF
ANADARKO PETROLEUM CORPORATION
200,000 SHARES OF
5.46% CUMULATIVE PREFERRED STOCK, SERIES B
Pursuant to Section 151(g) of the
General Corporation Law of the State of Delaware
May 4, 1998
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TABLE OF CONTENTS
Page
Section 1. Number of Shares and Designation 4
Section 2. Ranking 4
Section 3. Dividends 4
Section 4. Liquidation Preference 7
Section 5. Voting Rights 8
Section 6. Redemption 9
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CERTIFICATE OF DESIGNATION
OF 200,000 SHARES OF
5.46% CUMULATIVE PREFERRED STOCK, SERIES B
OF ANADARKO PETROLEUM CORPORATION
The undersigned, Michael E. Rose and Suzanne Suter,
being respectively a Senior Vice President and the Corporate
Secretary of Anadarko Petroleum Corporation, a corporation
organized and existing under the General Corporation Law of
the State of Delaware (the "Company"), certify that,
pursuant to the authority expressly granted to and vested in
the Board of Directors of the Company (the "Board of
Directors") by the Restated Certificate of Incorporation of
the Company, which authorizes the issuance, by the Company,
of up to 2,000,000 shares of preferred stock, par value
$1.00 per share, which authority was delegated to the
Special Committee of the Board of Directors pursuant to a
resolution adopted by the Board of Directors in accordance
with Section 141 of the General Corporation Law of the State
of Delaware on April 30, 1998, the Special Committee of the
Board of Directors on May 4, 1998, duly adopted resolutions
creating and providing for the issuance of a series of
preferred stock of the Company with the following terms and
conditions:
Section 1. Number of Shares and Designation. Two
hundred thousand (200,000) shares of the 2,000,000
authorized shares of preferred stock, par value $1.00 per
share of the Company are hereby constituted as a series of
preferred stock, par value $1.00 per share, designated as
5.46% Cumulative Preferred Stock, Series B" (hereinafter
called the "Preferred Stock").
Section 2. Ranking. The Preferred Stock will, on the
date of original issuance, rank on a parity as to payment of
dividends and distribution of assets upon dissolution,
liquidation or winding up of the Company with each other
outstanding series of preferred stock of the Company. The
Preferred Stock, together with each other series of
preferred stock of the Company, will rank prior to the
Common Stock of the Company as to the payment of dividends
and distribution of assets upon dissolution, liquidation or
winding up of the Company.
Section 3. Dividends. (i) General. Cumulative cash
dividends will be payable on each share of Preferred Stock
when, as, and if declared by the Board of Directors or a
duly authorized committee thereof, out of funds legally
available therefor.
The initial dividend for the dividend period commencing
on May 7, 1998, to but excluding June 30, 1998, will be
$8.19 per share and will be payable on June 30, 1998.
Thereafter, dividends on the Preferred Stock will be payable
quarterly, when, as, and if declared by the Board of
Directors of the Company or a duly authorized committee
thereof on March 31, June 30, September 30 and December 31
of each year (each a "Dividend Payment Date") at the annual
rate of 5.46% or $54.60 per share. The amount of dividends
payable for any other period that is shorter or longer than
a full quarterly dividend period will be computed on the
basis of a 360-day year consisting of twelve 30-day months.
If a Dividend Payment Date is not a business day,
dividends (if declared) on the Preferred Stock will be paid
on the next business day, without interest. A dividend
period with respect to a Dividend Payment Date is the period
commencing on the preceding Dividend Payment Date and ending
on the day immediately prior to the next Dividend Payment
Date. Dividends will be payable to holders of record as
they appear on the stock books of the Company on the record
date, which shall be the 15th day of the calendar month in
which the applicable Dividend Payment Date falls or on such
other date designated by the Board of Directors of the
Company for the payment of dividends that is not more than
30 nor less than 10 days prior to such Dividend Payment Date
(each, a "Dividend Record Date").
Dividends on the Preferred Stock will be cumulative and
rights will accrue to the holders of the Preferred Stock if
the Company fails to declare one or more dividends on the
Preferred Stock in any amount, whether or not the earnings
or financial condition of the Company were sufficient to pay
such dividends in whole or in part.
(ii) Changes in the Dividends Received Percentage.
If, prior to 18 months after the original issuance of the
Preferred Stock, one or more amendments to the Internal
Revenue Code of 1986, as amended (the "Code"), are enacted
which change the percentage of the dividends received
deduction as specified in Section 243(a)(1) of the Code or
any successor provision (the "Dividends Received
Percentage"), the amount of each dividend on each share of
the Preferred Stock for dividend payments made on or after
the date of enactment of such change will be adjusted by
multiplying the amount of the dividend payable determined as
described above (before adjustment) by a factor, which will
be the number determined in accordance with the following
formula (the "DRD Formula"), and rounding the result to the
nearest cent (with one-half cent and above rounded up):
1-[.35 (1 - .70)]
1-[.35 (1 - DRP)]
For the purposes of the DRD Formula, DRP means the
Dividends Received Percentage applicable to the dividend in
question; provided however, that if the Dividends Received
Percentage applicable to the dividend in question shall be
less than 50%, then the DRP shall equal .50. No amendment
to the Code, other than a change in the percentage of the
dividends received deduction set forth in Section 243(a)(1)
of the Code or any successor provision, will give rise to
such an adjustment. Notwithstanding the foregoing
provisions, in the event that, with respect to any such
amendment, the Company shall receive either an unqualified
opinion of nationally recognized independent tax counsel
selected by the Company or a private letter ruling or
similar form of authorization from the Internal Revenue
Service to the effect that such an amendment does not apply
to dividends payable on the Preferred Stock, then any such
amendment shall not result in the adjustment provided for
pursuant to the DRD Formula. The opinion referenced in the
previous sentence will be based upon a specific exception in
the legislation amending the DRP or upon a published
pronouncement of the Internal Revenue Service addressing
such legislation. Unless the context otherwise requires,
references to dividends herein shall mean dividends as
adjusted by the DRD Formula. The Company's calculation of
the dividends payable as so adjusted, and as certified
accurate as to calculation and reasonable as to method by
the independent certified public accountants then regularly
engaged by the Company, shall be final and not subject to
review.
If any amendment to the Code which reduces the
Dividends Received Percentage is enacted after a Dividend
Record Date and before the next Dividend Payment Date, the
amount of dividend payable on such Dividend Payment Date
will not be increased, but instead, an amount equal to the
excess of (x) the product of the dividends paid by the
Company on such Dividend Payment Date and the DRD Formula
(where the DRP used in the DRD Formula would be equal to the
greater of the Dividends Received Percentage applicable to
the dividend in question and .50) over (y) the dividends
paid by the Company on such Dividend Payment Date, will be
payable (if declared) to holders of record on the next
succeeding Dividend Payment Date in addition to any other
amounts payable on such date.
In addition, if any such amendment to the Code is
enacted that reduces the Dividends Received Percentage and
such reduction retroactively applies to a Dividend Payment
Date as to which the Company previously paid dividends on
the Preferred Stock (each an "Affected Dividend Payment
Date"), the Company will pay (if declared), additional
dividends (the "Additional Dividends") on the next
succeeding Dividend Payment Date (or if such amendment is
enacted after the dividend payable on such Dividend Payment
Date has been declared, on the second succeeding Dividend
Payment Date following the date of enactment) to holders of
record on such succeeding Dividend Payment Date in an amount
equal to the excess of (x) the product of the dividends paid
by the Company on each Affected Dividend Payment Date and
the DRD Formula (where the DRP used in the DRD Formula would
be equal to the greater of the Dividends Received Percentage
and .50 applied to each Affected Dividend Payment Date) over
(y) the dividends paid by the Company on each Affected
Dividend Payment Date.
Notwithstanding the foregoing, Additional Dividends
will not be paid as a result of the enactment of any
amendment to the Code 18 months or more after the date of
original issuance of the Preferred Stock which retroactively
reduces the Dividends Received Percentage, or if such
amendment would not result in an adjustment due to the
Company having received either an opinion of counsel or tax
ruling referred to in the third preceding paragraph. The
Company will make only one payment of Additional Dividends.
In the event that the amount of dividend payable per
share of the Preferred Stock will be adjusted pursuant to
the DRD Formula and/or Additional Dividends are to be paid,
the Company will cause notice of each such adjustment and,
if applicable, any Additional Dividends, to be sent to the
holders of the Preferred Stock with the payment of dividends
on the next Dividend Payment Date after the date of such
adjustment.
Section 4. Liquidation Preference. In the event of
any voluntary or involuntary liquidation, dissolution or
winding up of the Company, the holders of shares of
Preferred Stock will be entitled to receive out of the
assets of the Company available for distribution to
stockholders, before any distribution of assets is made on
the Company's Common Stock or any other class or series of
stock of the Company ranking junior to the Preferred Stock
upon liquidation, liquidating distributions in the amount of
$1,000 per share, plus an amount equal to the sum of all
accrued and unpaid dividends including any increase in
dividends payable due to changes in the Dividends Received
Percentage and Additional Dividends (whether or not earned
or declared) for the then current dividend period and all
dividend periods prior thereto.
Section 5. Voting Rights. The holders of shares of
Preferred Stock will not be entitled to vote, except as set
forth below or as expressly required by applicable law.
If the equivalent of six quarterly dividends payable on
the Preferred Stock or any other class or series of
preferred stock are in default, the number of directors of
the Company will be increased by two (without duplication of
any increase made pursuant to the terms of any other series
of preferred stock of the Company), and the holders of the
Preferred Stock, voting as a single class with the holders
of shares of any other class of the Company's preferred
stock ranking on a parity with the Preferred Stock either as
to dividends or distribution of assets and upon which like
voting rights have been conferred and are exercisable, will
be entitled to elect two directors to fill such newly-
created directorships. Such right shall continue until full
cumulative dividends for all past dividend periods on all
such preferred stock of the Company, including any shares of
the Preferred Stock, have been paid or declared and set
apart for payment. Any such elected directors shall serve
until the Company's next annual meeting of stockholders
(notwithstanding that prior to the end of such term the
dividend default shall cease to exist) or until their
respective successors shall be elected and qualify.
The affirmative vote or consent of the holders of at
least 66-2/3% of the outstanding shares of the Preferred
Stock will be required for any amendment of the Restated
Certificate of Incorporation of the Company (or any
certificate supplemental thereto) which will adversely
affect the powers, preferences, privileges or rights of the
Preferred Stock. The affirmative vote or consent of the
holders of at least 66-2/3% of the outstanding shares of the
Preferred Stock and any other series of the Company's
preferred stock ranking on a parity with the Preferred Stock
either as to dividends or upon liquidation, voting as a
single class without regard to series, will be required to
issue, authorize or increase the authorized amount of, or
issue or authorize any obligation or security convertible
into or evidencing a right to purchase, any additional class
or series of stock ranking prior to the Preferred Stock as
to dividends or upon liquidation, or to reclassify any
authorized stock of the Company into such prior shares, but
such vote will not be required for the Company to take any
such action with respect to any stock ranking on a parity
with or junior to the Preferred Stock.
Section 6. Redemption. Prior to May 15, 2008, the
Preferred Stock is not redeemable. On or after such date,
each share of Preferred Stock will be redeemable, in whole
or in part at the option of the Company at any time and from
time to time upon not less than 30 nor more than 60 days'
notice, out of funds legally available therefor, at a
redemption price of $1,000 per share, together in each case
with accrued and unpaid dividends (whether or not declared)
to the date fixed for redemption including any increase in
dividends payable due to changes in the Dividends Received
Percentage and Additional Dividends. If fewer than all the
outstanding shares of Preferred Stock are to be redeemed,
the Company will select those to be redeemed by lot or pro
rata or by any other method as may be determined by the
Board of Directors to be equitable.
If, at any time while the Preferred Stock is
outstanding, an enactment of an amendment to the Code
results in a reduction of the Dividend Received Percentage
to 50% or less, the Company, at its option, may redeem all,
but not less than all, of the outstanding shares of the
Preferred Stock provided that, within 60 days of the date on
which an amendment to the Code is enacted which changes the
Dividend Received Percentage to 50% or less, the Company
sends notice to holders of the Preferred Stock of such
redemption. Any redemption of the Preferred Stock pursuant
to this paragraph will take place on the date specified in
the notice, which date shall not be less than 30 nor more
than 60 days from the date such notice is sent to holders of
the Preferred Stock. Any redemption of the Preferred Stock
in accordance with this paragraph shall be at $1,000 per
share plus accrued and unpaid dividends (whether or not
declared) thereon to the date fixed for redemption,
including any changes in dividends payable due to changes in
the Dividends Received Percentage, if any.
In addition, if the holders of the shares of the
Preferred Stock are entitled to vote upon or consent to a
merger or consolidation of the Company, and if the Company
offers to purchase all of the outstanding shares of the
Preferred Stock (the "Offer"), then each holder of Preferred
Stock who does not sell their shares of Preferred Stock
pursuant to the Offer shall be deemed irrevocably to have
voted or consented all shares of Preferred Stock owned by
such holder in favor of the merger or consolidation of the
Company without any further action by the holder. The Offer
shall be at a price of $1,000 per share, together with
accrued and unpaid dividends (whether or not declared) to
the date fixed for redemption including any increase in
dividends payable due to changes in the Dividends Received
Percentage and Additional Dividends. The Offer must remain
open for acceptance for a period of at least 30 days.
Holders of Preferred Stock will have no right to
require redemption of the Preferred Stock.
The Preferred Stock is not subject to any mandatory
redemption, sinking fund or other similar provisions.
IN WITNESS WHEREOF, the Company has caused this
Certificate of Designation to be signed by one of its Senior
Vice Presidents and attested to by its Corporate Secretary,
as of the 6th day of May, 1998.
ANADARKO PETROLEUM CORPORATION
By: [M. E. Rose]
Name: Michael E. Rose
Title: Senior Vice President, Finance
Attest:
[Suzanne Suter]
Name: Suzanne Suter
Title: Corporate Secretary
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Exhibit 4(b)
__________________________________________________
ANADARKO PETROLEUM CORPORATION
and
CHASEMELLON SHAREHOLDER SERVICES, L.L.C.,
As Depositary
and
HOLDERS OF DEPOSITARY RECEIPTS
____________
DEPOSIT AGREEMENT
____________
Dated as of May 7, 1998
__________________________________________________
TABLE OF CONTENTS
Page
Parties 1
Recitals 1
ARTICLE I
DEFINITIONS
"Certificate of Designation" 1
"Certificate of Incorporation" 2
"Company" 2
"Corporate Office" 2
"Deposit Agreement" 2
"Depositary" 2
"Depositary Share" 2
"Depositary's Agent" 2
"Receipt" 3
"record holder" 3
"Registrar" 3
"Securities Act" 3
"Stock" 3
ARTICLE II
FORM OF RECEIPTS, DEPOSIT OF STOCK,
EXECUTION AND DELIVERY, TRANSFER, SURRENDER
AND REDEMPTION AND REPURCHASE OF RECEIPTS
SECTION 2.01 Form and Transfer of Receipts 3
SECTION 2.02 Deposit of Stock; Execution and
Delivery of Receipts in
Respect Thereof 4
SECTION 2.03 Redemption and Repurchase of Stock 5
SECTION 2.04 Register of Transfer of Receipts 8
SECTION 2.05 Combination and Split-ups
of Receipts 8
SECTION 2.06 Surrender of Receipts and Withdrawal
of Stock 8
SECTION 2.07 Limitations on Execution and Delivery,
Transfer, Split-up, Combination and
Surrender of Receipts and Withdrawal
or Deposit of Stock 9
SECTION 2.08 Lost Receipts, etc. 10
SECTION 2.09 Cancellation and Destruction of
Surrendered Receipts 10
ARTICLE III
CERTAIN OBLIGATIONS OF HOLDERS OF RECEIPTS AND THE COMPANY
SECTION 3.01 Filing Proofs, Certificates and
Other Information 11
SECTION 3.02 Payment of Taxes or Other
Governmental Charges 11
SECTION 3.03 Withholding 11
SECTION 3.04 Representations and Warranties
as to Stock 12
ARTICLE IV
THE STOCK, NOTICES
SECTION 4.01 Cash Distributions 12
SECTION 4.02 Distributions Other Than Cash 12
SECTION 4.03 Subscription Rights, Preferences
or Privileges 13
SECTION 4.04 Notice of Dividends, Fixing of Record
Date for Holders of Receipts 14
SECTION 4.05 Voting Rights 14
SECTION 4.06 Changes Affecting Stock and
Reclassifications,
Recapitalizations, etc. 15
SECTION 4.07 Reports 15
SECTION 4.08 Lists of Receipt Holders 16
ARTICLE V
THE DEPOSITARY, THE DEPOSITARY'S AGENTS,
THE REGISTRAR AND THE COMPANY
SECTION 5.01 Maintenance of Offices, Agencies,
Transfer Books by the Depositary;
the Registrar 16
SECTION 5.02 Prevention or Delay in Performance
by the Depositary, the Depositary's
Agents, the Registrar or the
Company 17
SECTION 5.03 Obligations of the Depositary, the
Depositary's Agents, the Registrar
and the Company 17
SECTION 5.04 Resignation and Removal of the
Depositary, Appointment of
Successor Depositary 19
SECTION 5.05 Corporate Notices and Reports 20
SECTION 5.06 Deposit of Stock by the Company 21
SECTION 5.07 Indemnification by the Company 21
SECTION 5.08 Fees, Charges and Expenses 21
ARTICLE VI
AMENDMENT AND TERMINATION
SECTION 6.01 Amendment 22
SECTION 6.02 Termination 22
ARTICLE VII
MISCELLANEOUS
SECTION 7.01 Counterparts 23
SECTION 7.02 Exclusive Benefits of Parties 23
SECTION 7.03 Invalidity of Provisions 23
SECTION 7.04 Notices 24
SECTION 7.05 Depositary's Agents 24
SECTION 7.06 Holders of Receipts Are Parties 25
SECTION 7.07 Governing Law 25
SECTION 7.08 Headings 25
TESTIMONIUM 26
SIGNATURES 26
EXHIBIT A A-1
DEPOSIT AGREEMENT
DEPOSIT AGREEMENT, dated as of May 7, 1998 among
Anadarko Petroleum Corporation, a Delaware corporation,
ChaseMellon Shareholder Services, L.L.C., a limited liability
company existing under the laws of the State of New Jersey, as
Depositary, and all holders from time to time of Receipts issued
hereunder.
W I T N E S S E T H:
WHEREAS, the Company desires to provide as hereinafter
set forth in this Deposit Agreement, for the deposit of shares of
the Stock with the Depositary, as agent for the beneficial owners
of the Stock, for the purposes set forth in this Deposit
Agreement and for the issuance hereunder of the Receipts
evidencing Depositary Shares representing an interest in the
Stock so deposited; and
WHEREAS, the Receipts are to be substantially in the
form annexed as Exhibit A to this Deposit Agreement, with
appropriate insertions, modifications and omissions, as
hereinafter provided in this Deposit Agreement.
NOW, THEREFORE, in consideration of the premises
contained herein, it is agreed by and among the parties hereto as
follows:
ARTICLE I
DEFINITIONS
The following definitions shall apply to the respective
terms (in the singular and plural forms of such terms) used in
this Deposit Agreement and the Receipts:
"Certificate of Designation" shall mean the Certificate
of Designation establishing and setting forth
the rights, preferences, privileges and limitations of the Stock,
as filed with the Secretary of State of the State of Delware.
"Certificate of Incorporation" shall mean the Restated
Certificate of Incorporation, as amended and restated from time
to time, of the Company.
"Company" shall mean Anadarko Petroleum Corporation, a
Delaware corporation, and its successors.
"Corporate Office" shall mean the office of the
Depositary in The City of New York, Borough of Manhattan at which
at any particular time its business in respect of matters
governed by this Deposit Agreement shall be administered, which
at the date of this Deposit Agreement is located at 450 West 33rd
Street.
"Deposit Agreement" shall mean this agreement, as the
same may be amended, modified or supplemented from time to time.
"Depositary" shall mean ChaseMellon Shareholder
Services, L.L.C., as Depositary hereunder, and any successor as
Depositary hereunder.
"Depositary Share" shall mean the rights evidenced by
the Receipts executed and delivered hereunder, including the
interests in Stock granted to holders of Receipts pursuant to the
terms and conditions of the Deposit Agreement. Each Depositary
Share shall represent an interest in 1/10 of one share of Stock
deposited with the Depositary hereunder and the same
proportionate interest in any and all other property received by
the Depositary in respect of such share of Stock and held under
this Deposit Agreement. Subject to the terms of this Deposit
Agreement, each record holder of a Receipt evidencing a
Depositary Share or Shares is entitled, proportionately, to all
the rights, preferences and privileges of the Stock represented
by such Depositary Share or Shares, including the dividend,
redemption, voting and liquidation rights contained in the
Certificate of Designation, and to the benefits of all
obligations and duties of the Company in respect of the Stock
under the Certificate of Designation and the Certificate of
Incorporation.
"Depositary's Agent" shall mean an agent appointed by
the Depositary as provided, and for the purposes specified, in
Section 7.05.
"Receipt" shall mean a Depositary Receipt executed and
delivered hereunder, in substantially the form of Exhibit A
hereto, evidencing a Depositary Share or Shares, as the same may
be amended from time to time in accordance with the provisions
hereof.
"record holder" or "holder" as applied to a Receipt
shall mean the person in whose name a Receipt is registered on
the books maintained by or on behalf of the Depositary for such
purpose.
"Registrar" shall mean any company appointed to
register ownership and transfers of Receipts as herein provided.
"Securities Act" shall mean the Securities Act of 1933,
as amended.
"Stock" shall mean shares of the Company's 5.46%
Cumulative Preferred Stock, Series B, par value $1.00 per share.
ARTICLE II
FORM OF RECEIPTS, DEPOSIT OF STOCK,
EXECUTION AND DELIVERY, TRANSFER, SURRENDER
AND REDEMPTION AND REPURCHASE OF RECEIPTS
SECTION 2.01. Form and Transfer 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 officer of the Depositary;
provided, however, that such signature may be a facsimile if a
Registrar (other than the Depositary) shall have countersigned
the Receipts by manual signature of a duly authorized officer of
the Registrar. Pending the preparation of definitive Receipts,
the Depositary, upon the written order of the Company delivered
in accordance with Section 2.02, shall execute and deliver
temporary Receipts which shall be printed, lithographed,
typewritten, mimeographed or otherwise substantially of the tenor
of the definitive Receipts in lieu of which they are issued and
with appropriate insertions, omissions, substitutions and other
variations as the persons executing such Receipts may determine
are necessary for such temporary Receipts, as evidenced by their
execution of such temporary Receipts. If temporary Receipts are
issued, the Company and the Depositary will cause definitive
Receipts to be prepared without unreasonable delay; provided that
if such temporary Receipts are global Receipts definitive
Receipts need not be prepared until the Receipts cease to be held
in global form. After the preparation of definitive Receipts,
the temporary Receipts shall be exchangeable for definitive
Receipts upon surrender of the temporary Receipts at the
Corporate Office or such other office as the Depositary may
designate, without charge to the holder. Upon surrender for
cancellation of any one or more temporary Receipts, the
Depositary shall execute and deliver in exchange therefor
definitive Receipts representing the same number of Depositary
Shares as represented by the surrendered temporary Receipt or
Receipts. Such exchange shall be made at the Company's expense
and without any charge therefor. Until so exchanged, the
temporary Receipts shall in all respects be entitled to the same
benefits under this Agreement, and with respect to the Stock, as
definitive Receipts.
No Receipt shall be entitled to any benefits under this
Deposit Agreement or be valid or obligatory for any purpose
unless it shall have been executed as provided in the preceding
sentence. The Depositary shall record on its books each Receipt
executed as provided above and delivered as hereinafter provided.
Receipts bearing the facsimile signature of anyone who was at any
time a duly authorized officer of the Depositary shall bind the
Depositary, notwithstanding that such officer has ceased to hold
such office prior to the delivery of such Receipts.
Receipts may be issued in denominations of any number
of whole Depositary Shares. All Receipts shall be dated the date
of their execution.
Receipts may be endorsed with or have incorporated in
the text thereof such legends or recitals or changes not
inconsistent with the provisions of this Deposit Agreement as may
be required by the Depositary or required to comply with any
applicable law or regulation or with the rules and regulations of
any securities exchange upon which the Stock or the Depositary
Shares may be listed or to conform with any usage with respect
thereto, or to indicate any special limitations or restrictions
to which any particular Receipts are subject by reason of the
date of issuance of the Stock or otherwise.
Title to any Receipt (and to the Depositary Shares
evidenced by such Receipt) that is properly endorsed or
accompanied by a properly executed instrument of transfer shall
be transferable by delivery with the same effect as in the case
of investment securities in general; provided, however, that the
Depositary may, notwithstanding any notice to the contrary, treat
the record holder thereof at such time as the absolute owner
thereof for the purpose of determining the person entitled to
distributions of dividends or other distributions or to any
notice provided for in this Deposit Agreement and for all other
purposes.
SECTION 2.02. Deposit of Stock; Execution and Delivery
of Receipts in Respect Thereof. Subject to the terms and
conditions of this Deposit Agreement, the Company or any holder
of Stock may deposit such Stock under this Deposit Agreement by
delivery 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 properly executed instrument of
transfer in form satisfactory to the Depositary, together with
(i) all such certifications as may be required by the Depositary
in accordance with the provisions of this Deposit Agreement and
(ii) a written order of the Company or such holder, as the case
may be, directing the Depositary to execute and deliver to or
upon the written order of the person or persons stated in such
order a Receipt or Receipts for the number of Depositary Shares
representing such deposited Stock.
Upon receipt by the Depositary of a certificate or
certificates for Stock to be deposited hereunder, together with
the other documents specified above, the Depositary shall, as
soon as transfer and registration can be accomplished, present
such certificate or certificates to the registrar and transfer
agent of the Stock for transfer and registration in the name of
the Depositary or its nominee of the Stock being deposited.
Deposited Stock shall be held by the Depositary in an account to
be established by the Depositary at the Corporate Office.
Upon receipt by the Depositary of a certificate or
certificates for Stock to be deposited hereunder, together with
the other documents specified above, the Depositary, subject to
the terms and conditions of this Deposit Agreement, shall execute
and deliver, to or upon the order of the person or persons named
in the written order delivered to the Depositary referred to in
the first paragraph of this Section 2.02, a Receipt or Receipts
for the number of whole Depositary Shares representing the Stock
so deposited and registered in such name or names as may be
requested by such person or persons. The Depositary shall
execute and deliver such Receipt or Receipts at the
Corporate Office, except that, at the request, risk and expense
of any person requesting such delivery and for the account of
such person, such delivery may be made at such other place as may
be designated by such person. In each case, delivery will be
made only upon payment by such person to the Depositary of all
taxes and other governmental charges and any fees payable in
connection with such deposit and the transfer of the deposited
Stock.
The Company shall deliver to the Depositary from time
to time such quantities of Receipts as the Depositary may request
to enable the Depositary to perform its obligations under this
Deposit Agreement.
SECTION 2.03. Redemption and Repurchase of Stock.
Whenever the Company shall redeem shares of Stock in accordance
with the Certificate of Designation, it shall (unless otherwise
agreed in writing with the Depositary) give the Depositary in its
capacity as Depositary not less than 5 business days' prior
notice of the proposed date of the mailing of a notice of
redemption of Stock and the simultaneous redemption of the
Depositary Shares representing the Stock to be redeemed and of
the number of such shares of Stock held by the Depositary to be
redeemed. The Depositary shall, as directed by the Company in
writing, mail, first class postage prepaid, notice of the
redemption of Stock and the proposed simultaneous redemption of
the Depositary Shares representing the Stock to be redeemed not
less than 30 and not more than 60 days prior to the date fixed
for redemption of such Stock and Depositary Shares, to the record
holders 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. Notwithstanding the foregoing,
neither failure to mail or publish any such notice to one or more
such holders nor any defect in any notice shall affect the
sufficiency of the proceedings for redemption. The Company
shall provide the Depositary with such notice, and each such
notice shall state: the method for determining the amount payable
per Depositary Share; the redemption date; the number of
Depositary Shares to be redeemed; and shall call upon each holder
of Depositary Shares to surrender, on the redemption date and at
the place or places designated by the Company, the Receipts
evidencing Depositary Shares to be redeemed. On the date of any
such redemption the Depositary shall surrender the certificate or
certificates held by the Depositary evidencing the number of
shares of Stock to be redeemed in the manner specified in the
notice of redemption of Stock provided by the Company pursuant to
the Certificate of Designation. The Depositary shall,
thereafter, redeem the number of Depositary Shares representing
such redeemed Stock upon the surrender of Receipts evidencing
such Depositary Shares in the manner provided in the notice sent
to record holders of Receipts.
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 upon the surrender of the certificate or certificates therefor
by the Depositary as described in the preceding paragraph), the
Depositary Shares called for redemption shall be deemed no longer
to be outstanding and all rights of the holders of Receipts
evidencing such Depositary Shares (except the right to receive
the cash payable upon redemption upon surrender of such Receipts)
shall, to the extent of such Depositary Shares, cease and
terminate. The foregoing shall be subject further to the terms
and conditions of the Certificate of Designation.
If fewer than all of the Depositary Shares evidenced by
a Receipt are called for redemption, the Depositary will deliver
to the holder of such Receipt upon its surrender to the
Depositary, together with the redemption price (to be paid in the
form of cash) and all accrued and unpaid dividends to and
including the date fixed for redemption payable in respect of the
Depositary Shares called for redemption, a new Receipt evidencing
the Depositary Shares evidenced by such prior Receipt and not
called for redemption.
The Depositary shall not be required (a) to issue,
transfer or exchange any Receipts for a period beginning at the
opening of business 15 days next preceding any selection of
Depositary Shares and Stock to be redeemed and ending at the
close of business on the day of the mailing of notice of
redemption of Depositary Shares or (b) to transfer or exchange
for another Receipt any Receipt evidencing Depositary Shares
called or being called for redemption, in whole or in part except
as provided in the immediately preceding paragraph of this
Section 2.03.
Whenever the Company shall be required to make an offer
to repurchase Depositary Shares representing Stock in accordance
with the Certificate of Designation, it shall give the Depositary
in its capacity as Depositary not less than 5 business days'
prior notice of the required date of the mailing of a notice of
the repurchase offer. The Depositary shall, as directed by the
Company in writing, mail, first class postage prepaid, notice of
the relevant terms of the repurchase offer, as provided by the
Company,
including: (i) that such notice is being given pursuant to a
repurchase offer, (ii) the number of Depositary Shares and Stock
for which the offer is being made, (iii) the method for
determining the amount payable per Depositary Share, (iv) the
last date, which shall not be less than 30 nor more than 60 days
after the date of such notice, by which a holder must elect to
accept the repurchase offer, (v) the procedures that such holder
must follow to exercise its rights and (vi) the procedures for
withdrawing an election.
The Depositary shall, thereafter, receive from each
holder electing to have Depositary Shares repurchased pursuant to
the repurchase offer in accordance with the instructions in the
notice, the holder's Receipts, with an appropriate form duly
completed prior to the repurchase date. Holders will be entitled
to withdraw an election by a written notice of withdrawal
delivered to the Depositary prior to the close of business on the
repurchase date. The notice of withdrawal shall state the number
of Depositary Shares and the Receipt numbers to which the notice
of withdrawal relates and the number of Depositary Shares and
Receipt numbers, if any, which remain subject to election. In
case the aggregate number of Depositary Shares offered for
repurchase by the holders exceeds the amount of Depositary Shares
which the Company has offered to repurchase pursuant to the
repurchase offer, the Depositary Shares to be repurchased shall
be selected by the Depositary on a pro rata basis at the
direction of the Company. The Depositary shall, at the direction
of the Company, cause payment to be mailed or delivered to each
tendering holder as promptly as reasonably practicable after the
repurchase date, in the amount of the repurchase price, and any
unpurchased Depositary Shares to be returned to the holder
thereof. The foregoing is subject further to the terms and
conditions of the Certificate of Designation.
SECTION 2.04. Register of Transfer of Receipts.
Subject to the terms and conditions of this Deposit Agreement,
the Depositary shall register on its books from time to time
transfers of Receipts upon any surrender thereof at the Corporate
Office, or such other office as the Depositary may designate for
such purpose, by the record holder in person or by a duly
authorized attorney, properly endorsed or accompanied by a
properly executed instrument of transfer, together with evidence
of the payment of any transfer taxes as may be required by law.
Upon such surrender, the Depositary shall execute a new Receipt
or Receipts and deliver the same to or upon the order of the
person entitled thereto evidencing the same aggregate number of
Depositary Shares evidenced by the Receipt or Receipts
surrendered.
SECTION 2.05. Combination and Split-ups of Receipts.
Upon surrender of a Receipt or Receipts at the Corporate Office,
or such other office as the Depositary may designate for the
purpose of effecting a split-up or combination of Receipts,
subject to the terms and conditions of this Deposit Agreement,
the Depositary shall execute and deliver a new Receipt or
Receipts in the authorized denominations requested evidencing the
same aggregate number of Depositary Shares evidenced by the
Receipt or Receipts surrendered; provided, however, that the
Depositary shall not issue any Receipt evidencing a fractional
Depositary Share.
SECTION 2.06. Surrender of Receipts and Withdrawal of
Stock. (a) Except as provided in Section 2.06(b), no holder of a
Receipt or Receipts shall have the right to withdraw any of the
shares of Stock represented by such Receipts.
(b) Notwithstanding Section 2.06(a), the Company shall
have the right to withdraw any or all of the Stock (but only in
whole shares of Stock) represented by the Depositary Shares and
all money and other property, if any, represented by such
Depositary Shares by surrendering the Receipt or Receipts
evidencing such Depositary Shares at the Corporate Office, or at
such other office as the Depositary may designate for such
withdrawals (and cancellation of the surrendered Receipts as
provided in Section 2.09). After such surrender, without
unreasonable delay, the Depositary shall deliver to the Company
the whole number of shares of Stock and all such money and other
property, if any, represented by the Depositary Shares evidenced
by the Receipt or Receipts so surrendered for withdrawal. If the
Receipt or Receipts delivered by the Company to the Depositary in
connection with such withdrawal shall evidence a number of
Depositary Shares in excess of the number of whole Depositary
Shares representing the whole number of shares of Stock to be
withdrawn, the Depositary shall at the same time, in addition to
such whole number of shares of Stock and such money and other
property, if any, to be withdrawn, deliver to the Company, or
(subject to Section 2.04) upon its order, a new Receipt or
Receipts evidencing such excess number of whole Depositary
Shares.
Delivery of the Stock and such money and other property
being withdrawn may be made by the delivery of such certificates,
documents of title and other instruments as the Depositary may
deem appropriate, which, if required by
the Depositary, shall be properly endorsed or accompanied by
proper instruments of transfer.
The Depositary shall deliver the Stock and the money
and other property, if any, represented by the Depositary Shares
evidenced by Receipts surrendered for withdrawal, without
unreasonable delay, at the office at which such Receipts were
surrendered, except that, at the request, risk and expense of the
Company such delivery may be made, without unreasonable delay, at
such other place as may be designated by the Company.
For purposes of determining the number of Depositary
Shares outstanding on any dividend payment date for purposes of
Section 4(b) of the Certificate of Designation, the Receipts
representing Depositary Shares acquired by the Company on or
prior to such dividend payment date and not theretofore delivered
to the Depositary for withdrawal and cancellation shall be deemed
to be outstanding.
SECTION 2.07. Limitations on Execution and Delivery,
Transfer, Split-up, Combination and Surrender of Receipts and
Withdrawal or Deposit of Stock. As a condition precedent to the
execution and delivery, registration of transfer, split-up,
combination, or surrender of any Receipt, the delivery of any
distribution thereon or deposit of Stock, the Depositary, any of
the Depositary's Agents or the Company may require any or all of
the following: (i) payment to it of a sum sufficient for the
payment (or, in the event that the Depositary or the Company
shall have made such payment, the reimbursement to it) of any tax
or other governmental charge with respect thereto (including any
such tax or charge with respect to the Stock being deposited or
withdrawn or with respect to property of the Company being issued
upon redemption); (ii) production of proof satisfactory to it as
to the identity and genuineness of any signature; and (iii)
compliance with such reasonable regulations, if any, as the
Depositary or the Company may establish not inconsistent with the
provisions of this Deposit Agreement.
The deposit of Stock may be refused, or the
registration of transfer, split-up, combination or surrender of
outstanding Receipts and the withdrawal of deposited Stock may be
suspended (i) during any period when the register of stockholders
of the Company is closed, (ii) if any such action is deemed
necessary or advisable by the Depositary, any of the Depositary's
Agents or the Company at any time or from time to time because of
any requirement of law or of any government or governmental body
or commission, or under any provision of this Deposit Agreement,
or (iii) with the approval of the Company, for any other reason.
Without limitation of the foregoing, the Depositary shall not
knowingly accept for deposit under this Deposit Agreement any
shares of Stock that are required to be registered under the
Securities Act unless a registration statement under the
Securities Act is in effect as to such shares of Stock.
SECTION 2.08. Lost Receipts, etc. In case any Receipt
shall be mutilated or destroyed or lost or stolen, the Depositary
shall 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
unless the Depositary has notice that such Receipt has been
acquired by a bona fide purchaser; provided, however, that the
holder thereof provides the Depositary with (i) evidence
satisfactory to the Depositary of such destruction, loss or theft
of such Receipt, of the authenticity thereof and of his ownership
thereof, (ii) reasonable indemnification satisfactory to the
Depositary or the payment of any charges incurred by the
Depositary in obtaining insurance in lieu of such indemnification
and (iii) payment of any expense (including fees, charges and
expenses of the Depositary) in connection with such execution and
delivery.
SECTION 2.09. Cancellation and Destruction of
Surrendered Receipts. All Receipts surrendered to the Depositary
or any Depositary's Agent shall be cancelled by the Depositary.
Except as prohibited by applicable law or regulation, the
Depositary is authorized to destroy such Receipts so canceled.
ARTICLE III
CERTAIN OBLIGATIONS OF HOLDERS
OF RECEIPTS AND THE COMPANY
SECTION 3.01. 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 information, to execute such
certificates and to make such representations and warranties as
the Depositary or the Company may reasonably deem necessary or
proper. The Depositary or the Company may withhold or delay the
delivery of any Receipt,
the registration of transfer or redemption of any Receipt, the
withdrawal of the Stock represented by the Depositary Shares
evidenced by any Receipt or the distribution of any dividend or
other distribution until such proof or other information is
filed, such certificates are executed or such representations and
warranties are made.
SECTION 3.02. Payment of Taxes or Other Governmental
Charges. If any tax or other governmental charge shall become
payable by or on behalf of the Depositary with respect to (i) any
Receipt, (ii) the Depositary Shares evidenced by such Receipt,
(iii) the Stock (or fractional interest therein) or other
property represented by such Depositary Shares, or (iv) any
transaction referred to in Section 4.06, such tax (including
transfer, issuance or acquisition taxes, if any) or governmental
charge shall be payable by the holder of such Receipt, who shall
pay the amount thereof to the Depositary. Until such payment is
made, registration or transfer of any Receipt or any split-up or
combination thereof or any withdrawal of the Stock or money or
other property, if any, represented by the Depositary Shares
evidenced by such Receipt may be refused, any dividend or other
distribution may be withheld and any part or all of the Stock or
other property represented by the Depositary Shares evidenced by
such Receipt may be sold for the account of the holder thereof
(after attempting by reasonable means to notify such holder prior
to such sale). Any dividend or other distribution so withheld
and the proceeds of any such sale may be applied to any payment
of such tax or other governmental charge, the holder of such
Receipt remaining liable for any deficiency.
SECTION 3.03. Withholding. The Depositary shall act
as the tax withholding agent for any payments, distributions made
with respect to the Depositary Shares and Receipts, and the
Stock. The Depositary shall be responsible with respect to the
Depository Shares, Receipts and Stock for the timely (i)
collection and deposit of any required withholding or backup
withholding tax, and (ii) filing of any information returns or
other documents with federal (and other applicable) taxing
authorities.
SECTION 3.04. 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 therefor are valid and that the person making such
deposit is duly authorized to do so. Such representations and
warranties shall survive the deposit of the Stock and the
issuance of Receipts therefor.
ARTICLE IV
THE STOCK, NOTICES
SECTION 4.01. Cash Distributions. Whenever the
Depositary shall receive any cash dividend or other cash
distribution on the Stock, the Depositary shall, subject to
Section 3.02, distribute to record holders of Receipts on the
record date fixed pursuant to Section 4.04 such 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 by law 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 4.02. Distributions Other Than Cash. Whenever
the Depositary shall receive any distribution other than cash,
rights, preferences or privileges upon the Stock, the Depositary
shall, subject to Section 3.02, distribute to record holders of
Receipts on the record date fixed pursuant to Section 4.04 such
amounts of the securities or property received by it as are, as
nearly as practicable, in proportion to the respective numbers of
Depositary Shares evidenced by the Receipts held by such holders,
in any manner that the Depositary and the Company may deem
equitable and practicable for accomplishing such distribution.
If, in the opinion of the Company after consultation with the
Depositary, such distribution cannot be made proportionately
among such record holders, or if for any other reason (including
any tax withholding or securities law requirement), the
Depositary deems, after consultation with the Company, such
distribution not to be feasible, the Depositary may, with the
approval of the Company which approval shall not be unreasonably
withheld, adopt such method as it deems equitable and practicable
for
the purpose of effecting such distribution, including the sale
(at public or private sale) of the securities or property thus
received, or any part thereof, at such place or places and upon
such terms as it may deem proper. The net proceeds of any such
sale shall, subject to Section 3.02, be distributed or made
available for distribution, as the case may be, by the Depositary
to record holders of Receipts as provided by Section 4.01 in the
case of a distribution received in cash.
SECTION 4.03. Subscription Rights, Preferences or
Privileges. If the Company shall at any time offer or cause to
be offered to the persons in whose names Stock is registered on
the books of the Company any rights, preferences or privileges to
subscribe for or to purchase any securities or any rights,
preferences or privileges of any other nature, such rights,
preferences or privileges shall in each such instance be made
available by the Depositary to the record holders of Receipts in
such manner as the Company shall instruct (including by the issue
to such record holders of warrants representing such rights,
preferences or privileges); provided, however, that (a) if at the
time of issue or offer of any such rights, preferences or
privileges the Company determines and instructs the Depositary
that it is not lawful or feasible to make such rights,
preferences or privileges available to some or all holders of
Receipts (by the issue of warrants or otherwise) or (b) if and to
the extent instructed by holders of Receipts who do not desire to
exercise such rights, preferences or privileges, the Depositary
shall then, in each case, and if applicable laws or the terms of
such rights, preferences or privileges so permit, sell such
rights, preferences or privileges of such holders at public or
private sale, at such place or places and upon such terms as it
may deem proper. The net proceeds of any such sale shall be
distributed by the Depositary to the record holders of Receipts
entitled thereto as provided by Section 4.01 in the case of a
distribution received in cash.
If registration under the Securities Act of the
securities to which any rights, preferences or privileges relate
is required in order for holders of Receipts to be offered or
sold such securities, the Company shall promptly file a
registration statement pursuant to the Securities Act with
respect to such rights, preferences or privileges and securities
and use its best efforts and take all steps available to it to
cause such registration statement to become effective
sufficiently in advance of the expiration of such rights,
preferences or privileges to enable such holders to exercise such
rights, preferences or privileges. In no event shall the
Depositary make available to the holders of Receipts any right,
preference or privilege to subscribe for or to purchase any
securities unless and until such registration statement shall
have become effective or unless the offering and sale of such
securities to such holders are exempt from registration under the
provisions of the Securities Act.
If any other action under the law of any jurisdiction
or any governmental or administrative authorization, consent or
permit is required in order for such rights, preferences or
privileges to be made available to holders of Receipts, the
Company agrees with the Depositary that the Company will use its
reasonable best efforts to take such action or obtain such
authorization, consent or permit sufficiently in advance of the
expiration of such rights, preferences or privileges to enable
such holders to exercise such rights, preferences or privileges.
SECTION 4.04. Notice of Dividends, Fixing of Record
Date for Holders of Receipts. Whenever (i) any cash dividend or
other cash distribution shall become payable, or any distribution
other than cash shall be made, or any rights, preferences or
privileges shall at any time be offered, with respect to the
Stock, or (ii) the Depositary shall receive notice of any meeting
at which holders of Stock are entitled to vote or of which
holders of Stock are entitled to notice or any election on the
part of the Company to call for the redemption of, 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 (x) who shall be entitled to receive such
dividend, distribution, rights, preferences or privileges or the
net proceeds of the sale thereof, or (y) who shall be entitled to
give instructions for the exercise of voting rights at any such
meeting or to receive notice of such meeting or of such
redemption.
SECTION 4.05. 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 be
provided by the Company and which shall contain (i) such
information as is contained in such notice of meeting, (ii) a
statement that the holders of Receipts at the close of business
on a specified record date fixed pursuant to Section 4.04 will be
entitled, subject to any applicable provision of law, the
Certificate of Incorporation or the Certificate of Designation,
to
instruct the Depositary as to the exercise of the voting rights
pertaining to the Stock represented by their respective
Depositary Shares and (iii) a brief statement as to the manner in
which such instructions may be given. Upon the written request
of a holder of a Receipt on such record date, the Depositary
shall endeavor insofar as practicable to vote or cause to be
voted the Stock represented by the Depositary Shares evidenced by
such Receipt in accordance with the instructions set forth in
such request. The Company hereby agrees to take all reasonable
action that may be deemed necessary by the Depositary in order to
enable the Depositary to vote such Stock or cause such Stock to
be voted. In the absence of specific instructions from the
holder of a Receipt, the Depositary will abstain from voting to
the extent of the Stock represented by the Depositary Shares
evidenced by such Receipt.
SECTION 4.06. Changes Affecting Stock and
Reclassifications, Recapitalizations, etc. Upon any split-up,
consolidation or any other reclassification of Stock, or upon any
recapitalization, reorganization, merger, amalgamation or
consolidation affecting the Company or to which it is a party or
sale of all or substantially all of the Company's assets, the
Depositary shall treat any shares of stock or other securities or
property (including cash) that shall be received by the
Depositary in exchange for or in respect of the Stock as new
deposited property under this Deposit Agreement, and Receipts
then outstanding shall thenceforth represent the proportionate
interests of holders thereof in the new deposited property so
received in exchange for or in respect of such Stock. In any such
case the Depositary may, in its discretion, with the approval of
the Company, execute and deliver additional Receipts, or may call
for the surrender of all outstanding Receipts to be exchanged for
new Receipts specifically describing such new deposited property.
SECTION 4.07. Reports. The Company or, at the option
of the Company, the Depositary shall forward to the holders of
Receipts any reports and communications received from the Company
that are received by the Depositary as the holder of Stock.
SECTION 4.08. Lists of Receipt Holders. Promptly upon
request from time to time by the Company, the Depositary shall
furnish to it a list, as of a recent date, of the names,
addresses and holdings of Depositary Shares of all persons in
whose names Receipts are registered on the books of the
Depositary. At the expense of the Company, the Company shall
have the right to inspect transfer and registration records of
the Depositary, any Depositary's Agent or the Registrar, take
copies thereof and require the Depositary, any Depositary's Agent
or the Registrar to supply copies of such portions of such
records as the Company may request.
ARTICLE V
THE DEPOSITARY, THE DEPOSITARY'S AGENTS,
THE REGISTRAR AND THE COMPANY
SECTION 5.01. Maintenance of Offices, Agencies,
Transfer Books by the Depositary; the Registrar. Upon execution
of this Deposit Agreement in accordance with its terms, the
Depositary shall maintain (i) at the Corporate Office facilities
for the execution and delivery, registration, registration of
transfer, surrender, split-up, combination and redemption of
Receipts and deposit and withdrawal of Stock and (ii) at the
offices of the Depositary's Agents, if any, facilities for the
delivery, registration, registration of transfer, surrender,
split-up, combination, and redemption of Receipts and deposit and
withdrawal of Stock, all in accordance with the provisions of
this Deposit Agreement.
The Depositary, acting as transfer agent and Registrar,
shall keep books at the Corporate Office for the registration and
transfer of Receipts, which books at all reasonable times shall
be open for inspection by the record holders of Receipts;
provided that any such holder requesting to exercise such right
shall certify to the Depositary that such inspection shall be for
a proper purpose reasonably related to such person's interest as
an owner of Depositary Shares. The Depositary shall consult
with the Company upon receipt of any request for inspection. The
Depositary may close such books, at any time or from time to
time, when deemed expedient by it in connection with the
performance of its duties hereunder.
If the Receipts or the Depositary Shares evidenced
thereby or the Stock represented by such Depositary Shares shall
be listed on one or more stock exchanges, the Depositary shall,
with the approval of the Company, appoint a Registrar for
registry of such Receipts or Depositary Shares in accordance with
the requirements of such exchange or exchanges. Such Registrar
(which may be the Depositary if so permitted by the requirements
of such exchange or exchanges) may be removed and a substitute
registrar appointed by the Depositary upon the request or with
the
approval of the Company. In addition, if the Receipts, such
Depositary Shares or such Stock are listed on one or more stock
exchanges, the Depositary will, at the request of the Company,
arrange such facilities for the delivery, registration,
registration of transfer, surrender, split-up, combination or
redemption of such Receipts, such Depositary Shares or such Stock
as may be required by law or applicable stock exchange
regulations.
SECTION 5.02. Prevention or Delay in Performance by
the Depositary, the Depositary's Agents, the Registrar or the
Company. Neither the Depositary nor any Depositary's Agent nor
the Registrar nor the Company shall incur any liability to any
holder of any Receipt, if by reason of any provision of any
present or future law or regulation thereunder of the United
States of America or of any other governmental authority or, in
the case of the Depositary, the Registrar or any Depositary's
Agent, by reason of any provision, present or future, of the
Certificate of Incorporation or the Certificate of Designation
or, in the case of the Company, the Depositary, the Registrar or
any Depositary's Agent, 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, the Registrar or the Company
shall be prevented or forbidden from doing or performing any act
or thing that the terms of this Deposit Agreement provide shall
be done or performed; nor shall the Depositary, any Depositary's
Agent, the Registrar or the Company incur any liability to any
holder of a Receipt (i) by reason of any nonperformance or delay,
caused as aforesaid, in the performance of any act or thing that
the terms of this Deposit Agreement provide shall or may be done
or performed, or (ii) by reason of any exercise of, or failure to
exercise, any discretion provided for in this Deposit Agreement
except, in the case of the Depositary, any Depositary's Agent or
the Registrar, if any such exercise or failure to exercise
discretion is caused by its gross negligence or willful
misconduct.
SECTION 5.03. Obligations of the Depositary, the
Depositary's Agents, the Registrar and the Company. The Company
assumes no obligation and shall be subject to no liability under
this Deposit Agreement or the Receipts to holders or other
persons, except to perform in good faith such obligations as are
specifically set forth and undertaken by it to perform in this
Deposit Agreement. Each of the Depositary, the Depositary's
Agents and the Registrar assumes no obligation and shall be
subject to no liability under this Deposit Agreement or the
Receipts to holders or other persons, except to perform such
obligations as are specifically set forth and undertaken by it to
perform in this Deposit Agreement without gross negligence or
willful misconduct.
Neither the Depositary nor any Depositary's Agent nor
the Registrar 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
that in its opinion may involve it in expense or liability,
unless indemnity satisfactory to it against all expense and
liability be furnished as often as may be required.
Neither the Depositary nor any Depositary's Agent nor
the Registrar 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, the Registrar 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, the Registrar and any Depositary's
Agent may own and deal in any class of securities of the Company
and its affiliates and in Receipts or Depositary Shares. The
Depositary may also act as transfer agent or registrar of any of
the securities of the Company and its affiliates.
It is intended that neither the Depositary nor any
Depositary's Agent nor the Registrar shall be deemed to be an
"issuer" of the Stock, the Depositary Shares, or the Receipts or
other securities issued upon exchange or redemption of the Stock
under the federal securities laws or applicable state securities
laws, it being expressly understood and agreed that the
Depositary and any Depositary's Agent and the Registrar are
acting only in a ministerial capacity; provided, however, that
the Depositary agrees to comply with all information reporting
and withholding requirements applicable to it under law or this
Deposit Agreement in its capacity as Depositary.
Neither the Depositary (or its officers, directors,
employees or agents) nor any Depositary's Agent nor the Registrar
makes any representation or has any responsibility as to the
validity of the Registration
Statement pursuant to which the Depositary Shares are registered
under the Securities Act, the Stock, the Depositary Shares or any
instruments referred to therein or herein, or as to the
correctness of any statement made therein or herein; provided,
however, that the Depositary is responsible for its
representations in this Deposit Agreement.
The Depositary assumes no responsibility for the
correctness of the description that appears in the Receipts,
which can be taken as a statement of the Company summarizing
certain provisions of this Deposit Agreement. Notwithstanding
any other provision herein or in the Receipts, the Depositary
makes no warranties or representations as to the validity,
genuineness or sufficiency of any Stock at any time deposited
with the Depositary hereunder or of the Depositary Shares, as to
the validity or sufficiency of this Deposit Agreement, as to the
value of the Depositary Shares or as to any right, title or
interest of the record holders of Receipts in and to the
Depositary Shares except that the Depositary hereby represents
and warrants as follows: (i) the Depositary has been duly
organized and is validly existing and in good standing under the
laws of the State of New Jersey, with full power, authority and
legal right under such law to execute, deliver and carry out the
terms of this Deposit Agreement; (ii) this Deposit Agreement has
been duly authorized, executed and delivered by the Depositary;
and (iii) this Deposit Agreement constitutes, and when executed
and delivered, each Receipt will constitute, a valid and binding
obligation of the Depositary, enforceable against the Depositary
in accordance with its terms, except as enforcement thereof may
be limited by bankruptcy, insolvency, reorganization or other
similar laws affecting enforcement of creditors' rights generally
and except as enforcement thereof is subject to general
principles of equity (regardless of whether enforcement is
considered in a proceeding in equity or at law). The Depositary
shall not be accountable for the use or application by the
Company of the Depositary Shares or the Receipts or the proceeds
thereof.
SECTION 5.04. Resignation and Removal of the
Depositary, Appointment of Successor Depositary. The Depositary
may at any time resign as Depositary hereunder by written notice
via registered mail of its election to do so delivered to the
Company, such resignation to take effect upon the appointment of
a successor depositary and its acceptance of such appointment as
hereinafter provided.
The Depositary may at any time be removed by the
Company by written 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, or an affiliate of a bank or trust
company, having its principal office in the United States of
America and having a combined capital and surplus of at least
$50,000,000. If a successor depositary shall not have been
appointed in 60 days, the resigning or removed Depositary may
petition a court of competent jurisdiction to appoint a successor
depositary. Every successor depositary shall execute and deliver
to its predecessor and to the Company an instrument in writing
accepting its appointment hereunder, and thereupon such successor
depositary, without any further act or deed, shall become fully
vested with all the rights, powers, duties and obligations of its
predecessor and for all purposes shall be the Depositary under
this Deposit Agreement, and such predecessor, upon payment of all
sums due it and on the written request of the Company, shall
promptly execute and deliver an instrument transferring to such
successor all rights and powers of such predecessor hereunder,
shall duly assign, transfer and deliver all rights, title and
interest in the 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 execute the
Receipts either in the name of the predecessor depositary or in
the name of the successor depositary.
SECTION 5.05. Corporate Notices and Reports. The
Company agrees that it will deliver to the Depositary, and the
Depositary will, promptly after receipt thereof, 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 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 Certificate of Incorporation and the Certificate
of Designation 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 record
holders of Receipts at the Company's expense such other documents
as may be requested by the Company.
SECTION 5.06. 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 and no registration statement is
at such time in effect as to such Stock.
SECTION 5.07. Indemnification by the Company. The
Company shall indemnify the Depositary for, and hold it harmless
against, any loss, liability, claim or expense ("Loss") arising
out of or in connection with its duties under this Agreement,
including the reasonable costs and expenses of defending itself
against Loss, unless such Loss shall have been determined by a
court of competent jurisdiction to be a result of the
Depositary's gross negligence or willful misconduct. Anything to
the contrary notwithstanding, in no event shall the Depositary be
liable for special, indirect, consequential or incidental loss or
damage of any kind whatsoever (including but not limited to lost
profits), even if the Depositary has been advised of the
liklihood of such damages.
SECTION 5.08. Fees, Charges and Expenses. No fees,
charges and expenses of the Depositary or any Depositary's Agent
hereunder or of any Registrar shall be payable by any person
other than the Company, except for any taxes and other
governmental charges and except as provided in this Deposit
Agreement. If, at the request of a holder of a Receipt, the
Depositary incurs fees, charges or expenses for which it is not
otherwise liable hereunder, such holder or other person will be
liable for such fees, charges and expenses. All other fees,
charges and expenses of the Depositary and any Depositary's Agent
hereunder and of any Registrar (including, in each case,
reasonable fees and expenses of counsel) incident to the
performance of their respective obligations hereunder will be
paid from time to time upon consultation and agreement between
the
Depositary and the Company as to the amount and nature of such
fees, charges and expenses.
ARTICLE VI
AMENDMENT AND TERMINATION
SECTION 6.01. Amendment. The form of the Receipts and
any 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 that they may deem necessary or
desirable; provided, however, that no such amendment that shall
materially and adversely alter the rights of the holders of
Receipts shall be 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 and
unless such amendment shall have been approved by the holders of
at least a majority of the Depositary Shares outstanding. In no
event shall any amendment impair the right, subject to the
provisions of Sections 2.03, 2.06 and 2.07 and Article III, of
any owner of any Depositary Shares to surrender the Receipt
evidencing such Depositary Shares with instructions to the
Depositary to deliver to the holder the Stock and all money and
other property, if any, represented thereby, except in order to
comply with mandatory provisions of applicable law.
SECTION 6.02. 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 5.04.
If any Receipts shall remain outstanding after the date
of termination of this Deposit Agreement, the Depositary
thereafter shall discontinue the transfer of Receipts, shall
suspend the distribution of dividends to the holders thereof and
shall not give any further notices (other than notice of such
termination) or perform any further acts under this Deposit
Agreement, except as provided below and 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, without liability for interest thereon, upon surrender
thereof by the holders thereof. At any time after the expiration
of two years from the date of termination, the Depositary may
sell Stock then held hereunder at public or private sale, at such
places and upon such terms as it deems proper and may thereafter
hold in a segregated account the net proceeds of any such sale,
together with any money and other property held by it hereunder,
without liability for interest, for the benefit, pro rata in
accordance with their holdings, of the holders of Receipts that
have not heretofore been surrendered. After making such sale,
the Depositary shall be discharged from all obligations under
this Deposit Agreement except to account for such net proceeds
and money and other property. Upon the termination of this
Deposit Agreement, the Company shall be discharged from all
obligations under this Deposit Agreement except for its
obligations to the Depositary, any Depositary's Agent and any
Registrar under Sections 5.07 and 5.08.
ARTICLE VII
MISCELLANEOUS
SECTION 7.01. Counterparts. This Deposit Agreement
may be executed by the Company and the Depositary in separate
counterparts, each of which counterparts, when so executed and
delivered, shall be deemed an original, but all such counterparts
taken together shall constitute one and the same instrument.
Delivery of an executed counterpart of a signature page to this
Deposit Agreement by telecopier shall be effective as delivery of
a manually executed counterpart of this Deposit Agreement.
Copies of this Deposit Agreement shall be filed with the
Depositary and the Depositary's Agents and shall be open to
inspection during business hours at the Corporate Office and the
respective offices of the Depositary's Agents, if any, by any
holder of a Receipt.
SECTION 7.02. Exclusive Benefits of Parties. This
Deposit Agreement is for the exclusive benefit of the parties
hereto, and their respective successors hereunder, and shall not
be deemed to give any legal or equitable right, remedy or claim
to any other person whatsoever.
SECTION 7.03. Invalidity of Provisions. In case any
one or more of the provisions contained in this Deposit Agreement
or in the Receipts should be or become invalid, illegal or
unenforceable in any respect, the validity, legality and
enforceability of the remaining provisions contained herein or
therein shall in no way be affected, prejudiced or disturbed
thereby.
SECTION 7.04. Notices. Any notices to be given to the
Company hereunder or under the Receipts shall be in writing and
shall be deemed to have been duly given if personally delivered
or sent by mail, or by telegram or telex or telecopier confirmed
by letter, addressed to the Company at 17001 Northchase Drive,
Houston, Texas 77000, Attention: Secretary, or at any other
place to which the Company may have transferred its principal
executive office.
Any notices to be given to the Depositary hereunder or
under the Receipts shall be in writing and shall be deemed to
have been duly given if personally delivered or sent by mail, or
by telegram or telex or telecopier confirmed by letter, addressed
to the Depositary at the Corporate Office.
Except as provided in the next paragraph, any notices
given to any record holder of a Receipt hereunder or under the
Receipts shall be in writing and shall be deemed to have been
duly given if personally delivered or sent by mail, or by
telegram or telex or telecopier confirmed by letter, addressed to
such record holder at the 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.
In addition, whenever the Certificate of Designation
requires any notice to be published, the Depositary will, if
requested by the Company, cause such notice to be published in
the manner directed by the Company.
Delivery of a notice sent by mail, or by telegram or
telex or telecopier shall be deemed to be effected at the time
when a duly addressed letter containing the same (or a duly
addressed letter confirming an earlier notice in the case of a
telegram or telex or telecopier message) is deposited, postage
prepaid, in a post office letter box. The Depositary or the
Company may, however, act upon any telegram or telex or
telecopier message received by it from the other or from any
holder of a Receipt, notwithstanding that such telegram or telex
or telecopier message shall not subsequently be confirmed by
letter as aforesaid.
SECTION 7.05. Depositary's Agents. The Depositary
may, with the approval of the Company which approval shall not be
unreasonably withheld, from time to time appoint one or more
Depositary's Agents to act in any respect for the Depositary for
the purposes of this Deposit Agreement and may vary or terminate
the appointment of such Depositary's Agents.
SECTION 7.06. Holders of Receipts Are Parties.
Notwithstanding that holders of Receipts have not executed and
delivered this Deposit Agreement or any counterpart thereof, the
holders of Receipts from time to time shall be deemed to be
parties to this Deposit Agreement and shall be bound by all of
the terms and conditions, and be entitled to all of the benefits,
hereof and of the Receipts by acceptance of delivery of Receipts.
SECTION 7.07. Governing Law. This Deposit Agreement
and the Receipts and all rights hereunder and thereunder and
provisions hereof and thereof shall be governed by, and construed
in accordance with, the law of the State of New York without
giving effect to principles of conflict of laws.
SECTION 7.08. Headings. The headings of articles and
sections in this Deposit Agreement and in the form of the Receipt
set forth in Exhibit A hereto have been inserted for convenience
only and are not to be regarded as a part of this Deposit
Agreement or to have any bearing upon the meaning or
interpretation of any provision contained herein or in the
Receipts.
IN WITNESS WHEREOF, Anadarko Petroleum Corporation and
ChaseMellon Shareholder Services, L.L.C. have duly executed this
Deposit Agreement as of the day and year first above set forth
and all holders of Receipts shall become parties hereto by and
upon acceptance by them of delivery of Receipts issued in
accordance with the terms hereof.
ANADARKO PETROLEUM
CORPORATION
Attest:
By:_______________________ By:_______________________
Authorized Officer
CHASEMELLON SHAREHOLDER
SERVICES, L.L.C.
Attest:
By:_______________________ By:_______________________
Authorized Officer
<PAGE>
Unless this certificate is presented by an authorized
representative of The Depository Trust Company, a New York
corporation ("DTC"), to the Company or its agent for registration
of transfer, exchange or payment, and any certificate issued is
registered in the name of Cede & Co. or in such other name as is
requested by an authorized representative of DTC (and any payment
is made to Cede & Co. or to such other entity as is requested by
an authorized representative of DTC), ANY TRANSFER, PLEDGE OR
OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS
WRONGFUL in as much as the registered owner hereof, Cede & Co.,
has an interest herein.
DEPOSITARY RECEIPT
FOR
DEPOSITARY SHARES
EACH REPRESENTING 1/10 OF A SHARE OF
5.46% CUMULATIVE PREFERRED STOCK, SERIES B
OF
ANADARKO PETROLEUM COPORATION
No. 1 CUSIP: 032511 305
ChaseMellon Shareholder Services, L.L.C. (the
"Depositary") hereby certifies that Cede & Co. is the registered
owner of 2,000,000 Depositary Shares (the "Depositary Shares"),
each Depositary Share representing 1/10 of a share of 5.46%
Cumulative Preferred Stock, Series B, $1.00 par value (the
"Stock"), of Anadarko Petroleum Corporation, a corporation duly
organized and existing under the laws of the State of Delaware
(the "Company"), deposited with the Depositary and the same
proportionate interest in any and all other property received by
the Depositary in respect of such shares of Stock and held by the
Depositary under the Deposit Agreement (as defined below).
Subject to the terms of the Deposit Agreement, each owner of a
Depositary Share is entitled, proportionately, to all the rights,
preferences and privileges of the Stock represented thereby,
including the dividend, conversion, exchange, voting, liquidation
and other rights contained in the Certificate of Designations
establishing the rights, preferences, privileges and limitations
of the Stock (the "Certificate of Designations"), copies of which
are on file at the office of the Depositary in The City of New
York,
Borough of Manhattan at which at any particular time its business
in respect of matters governed by the Deposit Agreement shall be
administered, which at the time of the execution of the Deposit
Agreement is located at 450 West 33rd Street (the "Corporate
Office").
This Depositary Receipt ("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 manually or, if a Registrar for the Receipts (other than
the Depositary) shall have been appointed, by facsimile by the
Depositary by the signature of a duly authorized officer and, if
executed by facsimile signature of the Depositary, shall have
been countersigned manually by such Registrar by the signature of
a duly authorized officer.
THE DEPOSITARY IS NOT RESPONSIBLE FOR THE VALIDITY OF
ANY DEPOSITED STOCK. THE DEPOSITARY ASSUMES NO RESPONSIBILITY
FOR THE CORRECTNESS OF THE DESCRIPTION SET FORTH IN THIS RECEIPT,
WHICH CAN BE TAKEN AS A STATEMENT OF THE COMPANY SUMMARIZING
CERTAIN PROVISIONS OF THE DEPOSIT AGREEMENT. UNLESS EXPRESSLY
SET FORTH IN THE DEPOSIT AGREEMENT, THE DEPOSITARY MAKES NO
WARRANTIES OR REPRESENTATIONS AS TO THE VALIDITY, GENUINENESS OR
SUFFICIENCY OF ANY STOCK AT ANY TIME DEPOSITED WITH THE
DEPOSITARY UNDER THE DEPOSIT AGREEMENT OR OF THE DEPOSITARY
SHARES, AS TO THE VALIDITY OR SUFFICIENCY OF THE DEPOSIT
AGREEMENT, AS TO THE VALUE OF THE DEPOSITARY SHARES OR AS TO ANY
RIGHT, TITLE OR INTEREST OF THE RECORD HOLDERS OF THE DEPOSITARY
RECEIPTS IN AND TO THE DEPOSITARY SHARES.
The Company will furnish to any holder of this Receipt
without charge, upon request addressed to its executive office, a
full statement of the designation, relative rights, preferences
and limitations of the shares of each authorized class, and of
each class of preferred stock authorized to be issued, so far as
the same may have been fixed, and a statement of the authority of
the Board of Directors of the Company to designate and fix the
relative rights, preferences and limitations of other classes.
This Receipt is continued on the reverse hereof and the
additional provisions therein set forth for all purposes have the
same effect as if set forth at this place.
Dated:
CHASEMELLON SHAREHOLDER SERVICES, L.L.C.,
as Depositary and Registrar
By:____________________________
Authorized Officer
Further Conditions and Agreements Forming Part of this Receipt
Appear on the Reverse Side.
[REVERSE
OF DEPOSITARY RECEIPT]
1. The Deposit Agreement. Depositary Receipts (the
"Receipts"), of which this Receipt is one, are made available
upon the terms and conditions set forth in the Deposit Agreement,
dated as of May 7, 1998 (the "Deposit Agreement"), among the
Company, the Depositary and all holders from time to time of
Receipts. The Deposit Agreement (copies of which are on file at
the Corporate Office and at the office of any agent of the
Depositary) sets forth the rights of holders of Receipts and the
rights and duties of the Depositary. The statements made on the
face and the reverse of this Receipt are summaries of certain
provisions of the Deposit Agreement and are subject to the
detailed provisions thereof, to which reference is hereby made.
In the event of any conflict between the provisions of this
Receipt and the provisions of the Deposit Agreement, the
provisions of the Deposit Agreement will govern.
2. Definitions. Unless otherwise expressly herein
provided, all defined terms used herein shall have the meanings
ascribed thereto in the Deposit Agreement.
3. Redemption by the Company; Repurchase by the
Company. Whenever the Company shall redeem shares of Stock in
accordance with the Certificate of Designations, it shall (unless
otherwise agreed in writing with the Depositary) give the
Depositary in its capacity as Depositary not less than 5 business
days' prior notice of the proposed date of the mailing of a
notice of redemption and of the number of such shares of Stock
held by the Depositary to be redeemed. The Depositary shall, as
directed by the Company in writing, mail, first class postage
prepaid, notice of the redemption not less than 30 and not more
than 60 days prior to the date fixed for redemption of such Stock
and Depositary Shares, to the record holders 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
such holders as the same appear on the records of the Depositary.
On the date of any such redemption, the Depositary shall
surrender the certificate or certificates held by the Depositary
evidencing the number of shares of Stock to be redeemed in the
manner specified in the notice of redemption. The Depositary
shall, thereafter, redeem the number of Depositary shares
representing such redeemed Stock upon the surrender of Receipts
evidencing such Depositary Shares in the manner provided in the
notice sent to record
holders of Receipts. Notice having been mailed and published 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 upon the surrender of the certificate or certificates therefor
by the Depositary as described above), the Depositary Shares
called for redemption shall be deemed no longer to be outstanding
and all rights of the holders of Receipts evidencing such
Depositary Shares shall, to the extent of such Depositary Shares,
cease and terminate.
Whenever the Company shall be required to make a
repurchase of Depositary Shares in accordance with the
Certificate of Designations, it shall give the Depositary in its
capacity as Depositary not less than 5 business days' prior
notice of the required date of the mailing of a notice of the
repurchase offer. The Depositary shall, as directed by the
Company in writing, mail, first class postage prepaid, notice of
the relevant terms and conditions of the repurchase offer, as
provided by the Company, to the record holders of the Receipts
evidencing the Depositary Shares to be repurchased by the
Company, at the addresses of such holders as the same appear on
the records of the Depositary. The Depositary shall, thereafter,
collect any notices, guarantees and Receipts evidencing the
Depositary Shares from the holders in the manner provided for in
the notice sent to the holders from the Company. In case the
aggregate number of Depositary Shares exceeds the amount the
Company is required to repurchase, the Depositary Shares to be
repurchased shall be selected by the Depositary on a pro rata
basis at the direction of the Company. The foregoing is subject
further to the terms and conditions of the Certificate of
Designations.
4. Withdrawal of Stock Not Permitted. Holders of
Receipts are not entitled to receive any of the shares of Stock
represented by such Receipts.
5. Transfers, Split-ups, Combinations. Subject to
Paragraphs 6, 7 and 8 below, this Receipt is transferable on the
books of the Depositary upon surrender of this Receipt to the
Depositary at the Corporate Office or at such other offices as
the Depositary may designate, properly endorsed or accompanied by
a properly executed instrument of transfer, and upon such
transfer the Depositary shall sign and deliver a Receipt or
Receipts to or upon the order of the person entitled thereto, all
as provided in and subject to the Deposit Agreement. This
Receipt may be split into other Receipts or combined with other
Receipts into one Receipt evidencing the same aggregate number of
Depositary
Shares evidenced by the Receipt or Receipts surrendered;
provided, however, that the Depositary shall not issue any
Receipt evidencing a fractional Depositary Share.
6. Conditions to Signing and Delivery, Transfer, etc.,
of Receipts. Prior to the execution and delivery, registration
of transfer, split-up, combination, surrender or exchange of this
Receipt, the delivery of any distribution hereon, the Depositary,
any of the Depositary's Agents or the Company may require any or
all of the following: (i) payment to it of a sum sufficient for
the payment (or, in the event that the Depositary or the Company
shall have made such payment, the reimbursement to it) of any tax
or other governmental charge with respect thereto (including any
such tax or charge with respect to Stock being deposited or
withdrawn or with respect to other securities or property of the
Company being issued upon redemption); (ii) production of proof
satisfactory to it as to the identity and genuineness of any
signature; and (iii) compliance with such reasonable regulations,
if any, as the Depositary or the Company may establish not
inconsistent with the Deposit Agreement. Any person presenting
Stock for deposit, or any holder of this Receipt, may be required
to file such proof of information, to execute such certificates
and to make such representations and warranties as the Depositary
or the Company may reasonably deem necessary or proper. The
Depositary or the Company may withhold or delay the delivery of
this Receipt, the registration of transfer, redemption, or
exchange of this Receipt, the withdrawal of the Stock represented
by the Depositary Shares evidenced by this Receipt or the
distribution of any dividend or other distribution until such
proof or other information is filed, such certificates are
executed or such representations and warranties are made.
7. Suspension of Delivery, Transfer, etc. The
registration of transfer, split-up, combination, surrender or
exchange of this Receipt may be suspended (i) during any period
when the register of stockholders of the Company is closed, (ii)
if any such action is deemed necessary or advisable by the
Depositary, any of the Depositary's Agents or the Company at any
time or from time to time because of any requirement of law or of
any government or governmental body or commission, or under any
provision of the Deposit Agreement, or (iii) with the approval of
the Company, for any other reason. The Depositary shall not be
required to issue, transfer or exchange any Receipts for a period
beginning at the opening of business 15 days next preceding any
selection of Depositary Shares and Stock to be redeemed and
ending at the close of business on the day of the
mailing of notice of redemption of Depositary Shares.
8. 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 (i) this Receipt,
(ii) the Depositary Shares evidenced by this Receipt, (iii) the
Stock (or fractional interest therein) or other property
represented by such Depositary Shares, or (iv) any transaction
referred to in Section 4.06, of the Deposit Agreement, such tax
(including transfer, issuance or acquisition taxes, if any) or
governmental charge shall be payable by the holder of this
Receipt, who shall pay the amount thereof to the Depositary.
Until such payment is made, registration of transfer of this
Receipt or any split-up or combination hereof or any withdrawal
of the Stock or money or other property, if any, represented by
the Depositary Shares evidenced by this Receipt may be refused,
any dividend or other distribution may be withheld and any part
or all of the Stock or other property represented by the
Depositary Shares evidenced by this Receipt may be sold for the
account of the holder hereof (after attempting by reasonable
means to notify such holder prior to such sale). Any dividend or
other distribution so withheld and the proceeds of any such sale
may be applied to any payment of such tax or other governmental
charge, the holder of this Receipt remaining liable for any
deficiency.
9. Amendment. The form of the Receipts and any
provision of the Deposit Agreement may at any time and from time
to time be amended by agreement between the Company and the
Depositary in any respect that they may deem necessary or
desirable; provided, however, that no such amendment that shall
materially and adversely alter the rights of the holders of
Receipt shall be 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 and
unless such amendment shall have been approved by the holders of
at least a majority of the Depositary Shares outstanding. Every
holder of an outstanding Receipt at the time 90 days after such
notice of amendment shall have been given shall be deemed, by
continuing to hold such Receipt, to consent and agree to such
amendment and to be bound by the Deposit Agreement as amended
thereby. In no event shall any amendment impair the right,
subject to the provisions of Paragraphs 3, 4 6, 7, and 8 hereof
and of Sections 2.03, 2.06 and 2.07 and Article III of the
Deposit Agreement, of the owner of the Depositary Shares
evidenced by this Receipt to surrender this Receipt with
instructions to the Depositary to deliver to the holder
the Stock and all money and other property, if any, represented
thereby, except in order to comply with mandatory provisions of
applicable law.
10. Fees, Charges and Expenses. The Company will pay
all fees, charges and expenses of the Depositary, except for
taxes (including transfer taxes, if any) and other governmental
charges and such charges as are expressly provided in the Deposit
Agreement to be at the expense of persons depositing Stock,
holders of Receipts or other persons.
11. Title to Receipts. It is a condition of this
Receipt, and every successive holder hereof by accepting or
holding the same consents and agrees, that title to this Receipt
(and to the Depositary Shares evidenced hereby), when properly
endorsed or accompanied by a properly executed instrument of
transfer, is transferable by delivery with the same effect as in
the case of investment securities in general; provided, however,
that the Depositary may, notwithstanding any notice to the
contrary, treat the record holder hereof at such time as the
absolute owner hereof for the purpose of determining the person
entitled to distribution of dividends or other distributions or
to any notice provided for in the Deposit Agreement and for all
other purposes.
12. Dividends and Distributions. Whenever the
Depositary shall receive any cash dividend or other cash
distribution on the Stock, the Depositary shall, subject to the
provisions of the Deposit Agreement, distribute to record holders
of Receipts such amounts of such sums 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 by law 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.
13. Subscription Rights, Preferences or Privileges. If
the Company shall at any time offer or cause to be offered to the
persons in whose name Stock is registered on the books of the
Company any rights, preferences or privileges to subscribe for or
to purchase any securities or any rights, preferences or
privileges of any other nature, such rights, preferences or
privileges shall in each such instance, subject to the provisions
of the Deposit Agreement, be made available by the Depositary to
the record holders of Receipts in such manner as the Company
shall instruct.
14. Notice of Dividends, Fixing of Record Date.
Whenever (i) any cash dividend or other cash distribution shall
become payable, or any distribution other than cash shall be
made, or any rights, preferences or privileges shall at any time
be offered, with respect to the Stock, or (ii) the Depositary
shall receive notice of any meeting at which holders of Stock are
entitled to vote or of which holders of Stock are entitled to
notice, or of the mandatory conversion of, or any election on the
part of the Company to call for redemption or exchange of, 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 (x) who shall be
entitled to receive such dividend, distribution, rights,
preferences or privileges or the net proceeds of the sale
thereof, or (y) who shall be entitled to give instructions for
the exercise of voting rights at any such meeting or of such
meeting or to receive notice of such conversion, exchange or
redemption.
15. 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 (i) such
information as is contained in such notice of meeting, (ii) a
statement that the holders of Receipts at the close of business
on a specified record date determined as provided in Paragraph 14
will be entitled, subject to any applicable provision of law, the
Certificate of Incorporation or the Certificate of Designations,
to instruct the Depositary as to the exercise of the voting
rights pertaining to the Stock represented by their respective
Depositary Shares, and (iii) a brief statement as to the manner
in which such instructions may be given. Upon the written
request of a holder of this Receipt on such record date the
Depositary shall endeavor insofar as practicable to vote or cause
to be voted the Stock
represented by the Depositary Shares evidenced by this Receipt in
accordance with the instructions set forth in such request. The
Company hereby agrees to take all reasonable action that may be
deemed necessary by the Depositary in order to enable the
Depositary to vote such Stock or cause such Stock to be voted.
In the absence of specific instructions from the holder of this
Receipt, the Depositary will abstain from voting to the extent of
the Stock represented by the Depositary Shares evidenced by this
Receipt.
16. Reports, Inspection of Transfer Books. The
Depositary shall make available for inspection by holders of
Receipts at the Corporate Office and at such other places as it
may from time to time deem advisable during normal business hours
any reports and communications received from the Company that are
received by the Depositary as the holder of Stock. The
Depositary, acting as transfer agent and Registrar, shall keep
books at the Corporate Office for the registration and transfer
of Receipts, which books at all reasonable times will be open for
inspection by the record holders of Receipts; provided that any
such holder requesting to exercise such right shall certify to
the Depositary that such inspection shall be for a proper purpose
reasonably related to such person's interest as an owner of
Depositary Shares.
17. Liability of the Depositary, the Depositary's
Agents, the Registrar and the Company. Neither the Depositary
nor any Depositary's Agent nor the Registrar nor the Company
shall incur any liability to any holder of this Receipt, if by
reason of any provision of any present or future law or
regulation thereunder of any governmental authority or, in the
case of the Depositary, the Registrar or any Depositary's Agent,
by reason of any provision present or future, of the Certificate
of Incorporation or the Certificate of Designations or, in the
case of the Company, the Depositary, the Registrar or any
Depositary's Agent, 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, the Registrar or the Company
shall be prevented or forbidden from doing or performing any act
or thing that the terms of the Deposit Agreement provide shall be
done or performed; nor shall the Depositary, any Depositary's
Agent, the Registrar or the Company incur any liability to any
holder of this Receipt (i) by reason of any nonperformance or
delay, caused as aforesaid, in the performance of any act or
thing that the terms of the Deposit Agreement provide shall or
may be done or performed or (ii) by reason of any exercise of, or
failure to exercise, any discretion provided for in the Deposit
Agreement except, in the case of the Depositary, any Depositary's
Agent or the Registrar, if such exercise or failure to exercise
discretion is caused by its negligence or bad faith.
18. Obligations of the Depositary, the Depositary's
Agent, the Registrar and the Company. The Company assumes no
obligation and shall be subject to no liability under the Deposit
Agreement or this Receipt to the holder hereof or other persons,
except to perform in good faith such obligations as are
specifically set forth and undertaken by it to perform in the
Deposit Agreement. Each of the Depositary, the Depositary's
Agents and the Registrar assumes no obligation and shall be
subject to no liability under the Deposit Agreement or this
Receipt to the holder hereof or other persons, except to perform
such obligations as are specifically set forth and undertaken by
it to perform in the Deposit Agreement without negligence or bad
faith.
Neither the Depositary nor any Depositary's Agent nor
the Registrar 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
or Common Stock that in its opinion may involve it in expense or
liability, unless indemnity satisfactory to it against all
expense and liability be furnished as often as may be required.
Neither the Depositary nor any Depositary's Agent nor
the Registrar nor the Company will be liable for any action or
failure to act by it in reliance upon the advice of or
information from legal counsel, accountants, any person
presenting Stock for deposit, any holder of this Receipt or any
other person believed by it in good faith to be competent to give
such advice or information.
19 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 90 days shall have expired after the Depositary shall have
delivered to the Company a written notice of its election to
resign and a successor depositary shall not have been appointed
and accepted its appointment as provided in Section 5.04 of the
Deposit Agreement. Upon the termination of the Deposit
Agreement,
the Company shall be discharged from all obligations thereunder
except for its obligations to the Depositary, any Depositary's
Agent and any Registrar under Sections 5.07 and 5.08 of the
Deposit Agreement.
If any Receipts remain outstanding after the date of
termination of the Deposit Agreement, the Depositary thereafter
shall discontinue all functions and be discharged from all
obligations as provided in the Deposit Agreement, except as
specifically provided therein.
20. Governing Law. The Deposit Agreement and this
Receipt and all rights thereunder and hereunder and provisions
thereof and hereof shall be governed by, and construed in
accordance with, the law of the State of New York without giving
effect to principles of conflict of laws.
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 signature to this
assignment must correspond
with the name as written
upon the face of the Receipt
in every particular, without
alteration or enlargement, or
any change whatever.
