SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
____________
FORM 8-A
FOR REGISTRATION OF CERTAIN CLASSES OF SECURITIES
PURSUANT TO SECTION 12(b) OR 12(g) OF THE
SECURITIES EXCHANGE ACT OF 1934
FORD HOLDINGS, INC.
(Exact name of registrant as specified in its charter)
DELAWARE 38-2890269
(State of incorporation or organization) (I.R.S. Employer
Identification No.)
The American Road, Dearborn, Michigan 48121-1899
(Address of principal executive offices) (zip code)
Securities to be registered pursuant to Section 12(b) of the Act:
Title of each class Name of each exchange on which
to be so registered each class is to be registered
- ----------------------------- ------------------------------
Depositary Shares, each
representing 1/4,000 of a
share of Series D Cumulative
Preferred Stock ($1.00 par
value) with an annual
dividend rate of 8.10%
and a liquidation preference
of $100,000 per share New York Stock Exchange
Securities to be registered pursuant to Section 12(g) of the Act:
(Title of class)
<PAGE>
INFORMATION REQUIRED IN REGISTRATION STATEMENT
Item 1. Description of Registrant's Securities to be Registered.
The contents of Registration Statement No. 33-63116 and the
prospectus dated August 3, 1994, as supplemented by a prospectus
supplement dated August 3, 1994, will be filed with the Securities
and Exchange Commission on August 5, 1994 pursuant to Rule
424(b)(5) under the Securities Act of 1933, as amended, relating to
Series D Cumulative Preferred Stock of Ford Holdings, Inc. and
Depositary Shares represented thereby, are incorporated herein by
reference.
Item 2. Exhibits.
Exhibit 1.1 Form of depositary receipt for Depositary Shares.
Included in Exhibit 2.9.
Exhibit 1.2 Form of stock certificate for shares of Series D
Cumulative Preferred Stock. Filed with this
Registration Statement.
Exhibit 2.1 Certificate of Incorporation of Ford Holdings, Inc.
dated August 30, 1989. Filed as Exhibit 3.1 to
Registration Statement No. 33-35653 on Form S-4 and
incorporated herein by reference.
Exhibit 2.2 Certificate of Designations of Flexible Rate Auction
Preferred Stock (Exchange). Filed as Exhibit 4-A-1
of Ford Holdings, Inc.'s Annual Report on Form 10-K
for the year ended December 31, 1990, File No. 0
-18263, and incorporated herein by reference.
Exhibit 2.3 Certificate of Amendment to Certificate of
Designations of Flexible Rate Auction Preferred Stock
(Exchange) filed December 27, 1991. Filed as Exhibit
4-A-2 of Ford Holdings, Inc.'s Annual Report on Form
10-K for the year ended December 31, 1991, File No.
0-18263, and incorporated herein by reference.
Exhibit 2.4 Certificate of Amendment to Certificate of
Designations of Flexible Rate Auction Preferred Stock
(Exchange) filed June 1, 1992. Filed as Exhibit 4-A-
4 of Ford Holdings, Inc.'s Annual Report on Form
10-K for the year ended December 31, 1992, File No.
0-18263, and incorporated herein by reference.
Exhibit 2.5 Certificate of Designations of Series A Cumulative
Preferred Stock. Filed as Exhibit 4.4 to
Registration Statement No. 33-48743, as amended, and
incorporated herein by reference.
Exhibit 2.6 Certificate of Designations of Series B Cumulative
Preferred Stock. Filed as Exhibit 4-A-6 of Ford
Holdings, Inc.'s Annual Report on Form 10-K for the
year ended December 31, 1992, File No. 0-18263, and
incorporated herein by reference.
-1-
<PAGE>
Exhibit 2.7 Form of Certificate of Designations of Series C
Cumulative Preferred Stock. Filed as Exhibit 2.7 of
Ford Holdings, Inc.'s Registration Statement on Form
8-A, File No. 0-18263, and incorporation herein by
reference.
Exhibit 2.8 Form of Certificate of Designations of Series D
Cumulative Preferred Stock. Filed with this
Registration Statement.
Exhibit 2.9 Form of Deposit Agreement. Filed with this
Registration Statement.
Exhibit 3 By-Laws of Ford Holdings, Inc., as amended through
May 22, 1992. Filed as Exhibit 3-C of Ford Holdings,
Inc.'s Annual Report on Form 10-K for the year ended
December 31, 1992, File No. 0-18263, and incorporated
herein by reference.
- 2 -<PAGE>
SIGNATURE
Pursuant to the requirements of Section 12 of the Securities
Exchange Act of 1934, the Registrant has duly caused this
Registration Statement to be signed on its behalf by the
undersigned, thereunto duly authorized.
FORD HOLDINGS, INC.
Date: August 3, 1994 By: /s/L. J. Ghilardi
L. J. Ghilardi
Assistant Secretary
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- 3 -
<PAGE>
EXHIBIT INDEX
<TABLE>
<CAPTION>
Sequential Page
at which Found
(or Incorporated
by Reference)
-----------------
<S> <C> <C>
Exhibit 1.1 Form of depositary receipt for Depositary Shares. Included
in Exhibit 2.9.
Exhibit 1.2 Form of stock certificate for shares of Series D Cumulative
Preferred Stock. Filed with this Registration Statement.
Exhibit 2.1 Certificate of Incorporation of Ford Holdings, Inc. dated August
30, 1989. Filed as Exhibit 3.1 to Registration Statement No.
33-35653 on Form S-4 and incorporated herein by reference.
Exhibit 2.2 Certificate of Designations of Flexible Rate Auction Preferred
Stock (Exchange). Filed as Exhibit 4-A-1 of Ford Holdings,
Inc.'s Annual Report on Form 10-K for the year ended December
31, 1990, File No. 0-18263, and incorporated herein by reference.
Exhibit 2.3 Certificate of Amendment to Certificate of Designations of
Flexible Rate Auction Preferred Stock (Exchange) filed December
27, 1991. Filed as Exhibit 4-A-2 of Ford Holdings, Inc.'s Annual
Report on Form 10-K for the year ended December 31, 1991, File
No. 0-18263, and incorporated herein by reference.
Exhibit 2.4 Certificate of Amendment to Certificate of Designations of
Flexible Rate Auction Preferred Stock (Exchange) filed June 1,
1992. Filed as Exhibit 4-A-4 of Ford Holdings, Inc.'s Annual
Report on Form 10-K for the year ended December 31, 1992, File
No. 0-18263, and incorporated herein by reference.
Exhibit 2.5 Certificate of Designations of Series A Cumulative Preferred
Stock. Filed as Exhibit 4.4 to Registration Statement No.
33-48743, as amended, and incorporated herein by reference.
Exhibit 2.6 Certificate of Designations of Series B Cumulative Preferred
Stock. Filed as Exhibit 4-A-6 of Ford Holdings, Inc.'s Annual
Report on Form 10-K for the year ended December 31, 1992, File
No. 0-18263, and incorporated herein by reference.
Exhibit 2.7 Form of Certificate of Designations of Series C Cumulative
Preferred Stock. Filed as Exhibit 2.7 of Ford Holdings, Inc.'s
Registration Statement on Form 8-A, File No. 0-18263, and
incorporation herein by reference.
Exhibit 2.8 Form of Certificate of Designations of Series D Cumulative
Preferred Stock. Filed with this Registration Statement.
<PAGE>
Exhibit 2.9 Form of Deposit Agreement. Filed with this Registration
Statement.
Exhibit 3 By-Laws of Ford Holdings, Inc., as amended through May 22, 1992.
Filed as Exhibit 3-C of Ford Holdings, Inc.'s Annual Report on
Form 10-K for the year ended December 31, 1992, File No. 0-18263,
and incorporated herein by reference.
</TABLE>
h:\tshanley\fhi8a.DD
EXHIBIT 1
[FORM OF FACE OF PREFERRED STOCK CERTIFICATE]
SERIES D CUMULATIVE PREFERRED STOCK
FORD HOLDINGS, INC.
Incorporated under the Laws of the State of Delaware
This Certificate is Transferable in New York
See Reverse for Certain Definitions
CUSIP 345277 65 1
CERTIFICATE NUMBER SHARES
This certifies that ___________________________ is the owner
of _________ fully paid and non-assessable shares of Series D
Cumulative Preferred Stock of the par value of One Dollar ($1.00)
each of Ford Holdings, Inc. transferable upon the books of the
corporation by the holder hereof in person or by duly authorized
attorney upon surrender of this certificate properly endorsed.
This certificate and the shares represented hereby are issued and
shall be held subject to all of the provisions of the Certificate
of Incorporation and all amendments thereto (copies of which are on
file at the office of the Transfer Agent) to all of which the
holder hereof by acceptance hereof expressly assents. This
certificate is not valid until countersigned by the Transfer Agent
and registered by the Registrar.
Witness the facsimile seal of the corporation and the
facsimile signatures of its duly authorized officers.
Dated:
COUNTERSIGNED AND REGISTERED:
____________________________,
TRANSFER AGENT AND REGISTRAR
By__________________________ __________________________
Authorized Officer Secretary
__________________________
Chairman of the Board
(FACSIMILE SEAL)
CERTIFICATE OF STOCK
<PAGE>
[FORM OF REVERSE OF PREFERRED STOCK CERTIFICATE]
FORD HOLDINGS, INC.
The Corporation will furnish without charge to each
stockholder who so requests, the powers, designations, preferences
and relative, participating, optional or other special rights of
each class of stock or series thereof and the qualifications,
limitations or restrictions of such powers, preferences and/or
rights. Any such request should be addressed to the Secretary of
Ford Holdings, Inc., The American Road, Dearborn, Michigan 48121 or
to the Transfer Agent named on the face of this certificate.
The following abbreviations, when used in the inscription on
the face of this certificate, shall be construed as though they
were written out in full according to applicable laws or
regulations:
<TABLE>
<CAPTION>
<S> <C>
TEN COM--as tenants in common UNIF GIFT MIN ACT--______Custodian_______
TEN ENT--as tenants by the entireties (Cust) (Minor)
JT TEN --as joint tenants with right under Uniform Gifts to
of survivorship and not as Minors Act____________
tenants in common (State)
</TABLE>
Additional abbreviations may also
be used though not in the above list.
For Value Received ___________________________ hereby
sell, assign and transfer unto (Please insert social
security or other identifying number of assignee ___________)
_________________________________________________________
(PLEASE PRINT OR TYPEWRITE NAME AND ADDRESS OF ASSIGNEE)
_____________________________________________________________
________________ Shares of the stock represented by the within
Certificate, and do hereby irrevocably constitute and appoint
___________________________________________ Attorney, to transfer
the said stock on the books of the within named Corporation with
full power of substitution in the premises.
Dated:_______________________
X________________________________________
NOTICE: THE SIGNATURE TO THIS
ASSIGNMENT MUST CORRESPOND WITH THE
NAME AS WRITTEN UPON THE FACE OF THE
CERTIFICATE, IN EVERY PARTICULAR,
WITHOUT ALTERATION OR ENLARGEMENT, OR ANY
CHANGE WHATEVER.
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Exhibit 2.8
CERTIFICATE OF THE DESIGNATIONS, PREFERENCES
AND RELATIVE, PARTICIPATING, OPTIONAL OR
OTHER SPECIAL RIGHTS, AND THE QUALIFICATIONS,
LIMITATIONS OR RESTRICTIONS THEREOF, OF
SERIES D CUMULATIVE PREFERRED STOCK
OF
FORD HOLDINGS, INC.
Pursuant to Section 151(g) of the General Corporation Law
of the State of Delaware
FORD HOLDINGS, INC., a corporation organized and
existing under the laws of the State of Delaware, hereby
certifies that the following resolution was adopted by the Board
of Directors and by the Certificate of Designations Committee,
pursuant to authority conferred on the Certificate of
Designations Committee by the Board of Directors:
RESOLVED, that a series of preferred stock, par value
$1.00 per share, of the Corporation is hereby created and
established, and the amount thereof and the voting powers,
designations, preferences and relative, participating, optional
or other special rights and qualifications, limitations or
restrictions thereof are hereby fixed as follows:
1. Designation; Amount and Series. The series of
Preferred Stock created hereby shall comprise 5,600 shares
designated as "Series D Cumulative Preferred Stock" (referred to
herein as the "Series D Preferred Stock").
2. Definitions. Unless the context or use indicates
another or different meaning or intent, the following terms shall
have the following meanings, whether used in the singular or
plural:
"Affiliate" shall mean any Person controlled by, in
control of, or under common control with, the Corporation.
"Board of Directors" shall mean the Board of Directors
of the Corporation or, unless the context otherwise requires, an
authorized committee thereof.
"Business Day" shall mean any day other than a
Saturday, Sunday or day on which banks in the State of New York
are authorized or obligated by law or executive order to close.
"Cash-Out Merger" shall have the meaning specified in
Section 4(b) hereof.
"Certificate of Designations Committee" shall mean the
committee of the Board of Directors on which the Board of
Directors has conferred authority to fix the designations,
preferences and relative, participating, optional or other
special rights, and qualifications, limitations or restrictions
of Series D Preferred Stock.
"Common Stock" shall mean all shares now or hereafter
issued of the class of common stock of the Corporation presently
authorized and any other shares of stock into which such stock
may hereafter be exchanged from time to time.
"Corporation" shall mean Ford Holdings, Inc., a
Delaware corporation, or its successor.
"Date of Original Issue" shall mean, as to any share,
the date on which the Corporation initially issues such share;
provided, however, that any share issued prior to December 1,
1994 shall be deemed to have a Date of Original Issue that is the
first date on which any shares of Series D Preferred Stock shall
have been issued.
"Default Period" shall have the meaning specified in
Section 5(c)(i) hereof.
"Dividend Payment Date" shall have the meaning
specified in Section 3(a) hereof.
"Dividend Periods" shall mean quarterly dividend
periods commencing on the first day of March, June, September and
December of each year and ending on and including the day
preceding the first day of the next succeeding Dividend Period
(other than the Initial Dividend Period).
"Flexible Rate Auction Preferred Stock" shall mean the
Flexible Rate Auction Preferred Stock (Exchange), Series A,
Series B, Series C, Series D, Series E, Series F, Series G,
Series H, Series I, Series J and Series K, par value $1.00 per
share, liquidation preference $100,000 per share, previously
issued by the Corporation.
"Holder" or "holder" shall mean, when used with respect
to the Series D Preferred Stock, the Flexible Rate Auction
Preferred Stock, the Series A Preferred Stock, the Series B
Preferred Stock, the Series C Preferred Stock, the Parity
Preferred or the Voting Preferred, the holder of such shares as
the same appears on the Stock Books.
"Initial Dividend Period" shall mean the period
commencing on the Date of Original Issue and ending on (and
including) the day preceding the first day of the next succeeding
Dividend Period, unless the Date of Original Issue occurs after
the record date for the Dividend Payment Date occurring in such
Dividend Period and prior to the first day of such Dividend
Period, in which case the Initial Dividend Period shall end on
(and include) the day preceding the first day of the second next
succeeding Dividend Period.
"Junior Liquidation Stock" shall have the meaning
specified in Section 4(a) hereof.
"Junior Stock" shall have the meaning specified in
Section 3(c) hereof.
"Liquidation Preferred" shall have the meaning
specified in Section 4(d) hereof.
"Outstanding" shall mean, as of any date, shares of
Series D Preferred Stock, Voting Preferred or Parity Preferred,
as the case may be, theretofore issued by the Corporation except,
without duplication, (i) any shares of Series D Preferred Stock,
Voting Preferred or Parity Preferred, as the case may be,
theretofore cancelled or delivered for cancellation by the
Corporation, (ii) any shares of Series D Preferred Stock, Voting
Preferred or Parity Preferred, as the case may be, represented by
any certificate in lieu of which a new certificate has been
executed and delivered by the Corporation and (iii) any shares of
Series D Preferred Stock, Voting Preferred or Parity Preferred,
as the case may be, held by the Corporation as treasury stock.
"Parity Preferred" shall have the meaning specified in
Section 5(a) hereof.
"Person" shall mean and include an individual, a
partnership, a corporation, a trust, an unincorporated
association, a joint venture or other entity.
"Regular Preferred Directors" shall have the meaning
specified in Section 5(a) hereof.
"Series A Preferred Stock" shall mean the Series A
Cumulative Preferred Stock, par value $1.00 per share,
liquidation preference $100,000 per share, of the Corporation.
"Series B Preferred Stock" shall mean the Series B
Cumulative Preferred Stock, par value $1.00 per share,
liquidation preference $100,000 per share, of the Corporation.
"Series C Preferred Stock" shall mean the Series C
Cumulative Preferred Stock, par value $1.00 per share,
liquidation preference $100,000 per share, of the Corporation.
"Special Preferred Directors" shall have the meaning
specified in Section 5(c)(i) hereof.
"Stock Books" shall mean the stock transfer books of
the Corporation maintained by the Corporation or any agent of the
Corporation.
"Transfer Agent" shall mean Chemical Bank or such
other agent or agents of the Corporation as may be designated by
the Board of Directors as transfer agent for the Series D
Preferred Stock.
"Voting Preferred" shall have the meaning specified in
Section 5(b) hereof.
3. Dividends. (a) The holders of shares of Series D
Preferred Stock, shall be entitled to receive, when, as and if
declared by the Board of Directors, out of funds legally
available therefor, cumulative cash dividends at the rate per
annum of $8,100 per share of Series D Preferred Stock.
Dividends on the Series D Preferred Stock shall be cumulative
from the Date of Original Issue, whether or not in any Dividend
Period or Periods there shall be funds of the Company legally
available for the payment of such dividends, and shall be payable
quarterly, when, as and if declared by the Board of Directors on
the first Business Day of March, June, September and December of
each year (each a "Dividend Payment Date"), commencing on the
Dividend Payment Date next succeeding the Date of Original Issue
(unless the Date of Original Issue occurs after the record date
for such Dividend Payment Date and prior to such Dividend Payment
Date or occurs prior to September 1, 1994, in which case
commencing on the second Dividend Payment Date next succeeding
the Date of Original Issue), or at such additional times and for
such interim periods, if any, as determined by the Board of
Directors. Each such dividend shall be payable in arrears to
Holders of shares of the Series D Preferred Stock as they appear
on the Stock Books at the close of business on such record dates,
not more than 60 days preceding the payment dates thereof, as
shall be fixed by the Board of Directors. Dividends on account
of arrears for any past Dividend Periods may be declared and paid
at any time, without reference to any regular Dividend Payment
Date, to Holders on such date, not exceeding 60 days preceding
the payment date thereof, as may be fixed by the Board of
Directors.
(b) The amount of dividends payable for each full
Dividend Period on the Series D Preferred Stock shall be computed
by dividing the annual dividend rate by four. The amount of
dividends payable for any period shorter or longer than a full
Dividend Period on the Series D Preferred Stock (including the
Initial Dividend Period, if applicable), shall be computed on the
basis of a 360-day year consisting of twelve 30-day months.
Holders of shares of Series D Preferred Stock shall not be
entitled to any dividends, whether payable in cash, property or
stock, in excess of full cumulative dividends, as herein
provided, on the Series D Preferred Stock. No interest, or sum
of money in lieu of interest, shall be payable in respect of any
dividend payment or payments on the Series D Preferred Stock
which may be in arrears.
(c) So long as any shares of Series D Preferred Stock
are Outstanding, the Corporation shall not declare, pay or set
apart for payment any dividend (other than a dividend in shares
of, or options, warrants or rights to subscribe for or purchase
shares of, Common Stock or Junior Stock (as defined below)) or
other distribution in respect of its Common Stock or any other
stock of the Corporation ranking junior to the shares of Series D
Preferred Stock as to dividends or upon liquidation ("Junior
Stock"), or call for redemption, redeem, purchase or otherwise
acquire for consideration any shares of its Common Stock or
Junior Stock (except by conversion into or exchange for other
shares of Common Stock or Junior Stock) unless full cumulative
dividends on all shares of Series D Preferred Stock for all past
Dividend Periods shall have been declared and paid (or declared
and a sum sufficient for the payment of the dividends set apart
for payment). No dividends shall be declared or paid or set
apart for payment on any shares of Series D Preferred Stock for
any period unless full cumulative dividends have been or
contemporaneously are declared and paid on each of the shares of
Series D Preferred Stock and Parity Preferred through the most
recent applicable Dividend Payment Date for such shares.
(d) The Corporation may not purchase or otherwise
acquire any shares of Series D Preferred Stock during any period
when dividend payments on any Outstanding shares of Series D
Preferred Stock or Parity Preferred are in arrears.
4. Rights on Liquidation or Cash-Out Merger. (a)
Upon the liquidation, dissolution or winding up of the affairs of
the Corporation, whether voluntary or involuntary, holders of
shares of Series D Preferred Stock shall be entitled to receive,
out of assets of the Corporation available for distribution to
stockholders after satisfying claims of creditors but before any
payment or distribution on the Common Stock or on any other class
of stock ranking junior to the shares of Series D Preferred Stock
upon liquidation ("Junior Liquidation Stock"), a liquidating
distribution in the amount of $100,000 per share, which shall be
the liquidation preference of such shares, plus an amount equal
to accumulated and unpaid dividends on each such share (whether
or not declared) to and including the date of final dissolution.
Unless and until payment in full has been made to holders of
shares of the Series D Preferred Stock of the liquidating
distributions to which they are entitled as provided in this
Section 4, no dividends or distributions shall be made to holders
of the Common Stock or the Junior Liquidation Stock, no payment
or delivery or commitment to make payment or delivery of any
money or assets to any Affiliate shall be made and no purchase,
redemption or other acquisition for any consideration by the
Corporation shall be made in respect of the Common Stock or the
Junior Liquidation Stock. After the payment to holders of shares
of Series D Preferred Stock of the full amount of the liquidating
distributions to which they are entitled pursuant to the second
next preceding sentence, holders of the shares of Series D
Preferred Stock (in their capacity as such holders) shall have no
right or claim to any of the remaining assets of the Corporation.
(b) In any merger or consolidation of the Corporation
with or into any other corporation, including any Affiliate, or a
merger or consolidation of any other corporation, including any
Affiliate, with or into the Corporation, which merger or
consolidation by its terms provides for the payment of only cash
to holders of the Series D Preferred Stock, each holder of Series
D Preferred Stock shall be entitled to receive an amount equal to
the liquidation preference of the shares of Series D Preferred
Stock held by such holder, plus an amount equal to accumulated
and unpaid dividends on such shares to and including the date of
payment thereof, and no more in exchange for such shares of
Series D Preferred Stock (a "Cash-Out Merger").
(c) Neither the sale, lease or exchange (for cash,
stock, securities or other consideration) of all or substantially
all of the property and assets of the Corporation, nor the merger
or consolidation of any other corporation with or into the
Corporation, nor the merger or consolidation of the Corporation
with or into any other corporation, shall be deemed to be a
dissolution, liquidation or winding up of the affairs of the
Corporation, voluntary or involuntary, for the purposes of this
Section 4; provided, however, that any Cash-Out Merger shall be
deemed to be a liquidation of the Corporation solely for purposes
of determining the rights of the holders of shares of Series D
Preferred Stock in respect of such Cash-Out Merger.
(d) If upon liquidation, dissolution or winding up of
the affairs of the Corporation, whether voluntary or involuntary,
the assets of the Corporation available for distribution to the
holders of Series D Preferred Stock and any other preferred stock
of the Corporation, including the Flexible Rate Auction Preferred
Stock, the Series A Preferred Stock, the Series B Preferred Stock
and the Series C Preferred Stock, ranking upon liquidation on a
parity with the Series D Preferred Stock (the "Liquidation
Preferred"), shall be insufficient to pay the full amount of the
liquidating distributions to which holders of Series D Preferred
Stock are entitled pursuant to Section 4(a) above and liquidating
distributions to which holders of the Liquidation Preferred are
entitled, then such assets shall be distributed among the holders
of Series D Preferred Stock and Liquidation Preferred ratably in
proportion to the full amount of distributions to which each
holder of Series D Preferred Stock and Liquidation Preferred
would have been entitled.
5. Voting Rights. (a) Election of Directors.
Holders of the shares of Series D Preferred Stock and shares of
Voting Preferred shall have the right, voting as a single class
together with holders of all other shares of preferred stock of
the Corporation, including the Flexible Rate Auction Preferred
Stock, the Series A Preferred Stock, the Series B Preferred Stock
and the Series C Preferred Stock, ranking on a parity with the
shares of Series D Preferred Stock as to the payment of dividends
("Parity Preferred"), to elect a number of directors of the
Corporation (the "Regular Preferred Directors") which is equal to
the smallest whole number that is not less than 25% of the
directors of the Corporation. Holders of all such stock shall
vote in such elections on the basis of one vote per $100,000
liquidation preference and not cumulatively and the holder or
holders of one-third of the shares of such stock then
Outstanding, present in person or by proxy, shall constitute a
quorum for the election of directors by them.
(b) Other Matters. On all matters other than the
election of directors as to which stockholders generally have a
vote, each share of Series D Preferred Stock and Voting Preferred
shall be entitled to such number of votes as determined below and
each share of Common Stock will be entitled to one vote. The
shares of Series D Preferred Stock shall vote together as a
single class with all shares of Common Stock and all other shares
of preferred stock, including the Flexible Rate Auction Preferred
Stock, the Series A Preferred Stock, the Series B Preferred Stock
and the Series C Preferred Stock, which have all the same voting
rights as conferred upon the Series D Preferred Stock in Section
5(a) and this Section 5(b) (the "Voting Preferred"). Holders of
shares of Series D Preferred Stock and Voting Preferred shall be
entitled to the number of votes determined pursuant to the
following formula per $100,000 liquidation preference:
X = [(Y divided by .75) minus Y] divided by Z
X: number of votes per share of Series D Preferred Stock and
Voting Preferred per $100,000 liquidation preference.
Y: number of shares of outstanding Common Stock on the
applicable record date.
Z: amount equal to (I) number of shares of Outstanding
Series D Preferred Stock on the applicable record date
plus (II) sum of the liquidation preference of all
Outstanding Voting Preferred on the applicable record
date divided by 100,000.
The Corporation shall mail or cause the Transfer Agent to mail to
Holders of shares of Series D Preferred Stock notice of any
meeting of stockholders not less than 20 days nor more than 60
days prior to the date fixed for such meeting. Except as
provided in Section 5(c), the number of directors of the
Corporation shall be determined in accordance with the By-Laws of
the Corporation.
(c) Right to Elect Two Additional Members of the Board
of Directors. (i) During any period (referred to herein as a
"Default Period") when dividend payments on any shares of Series
D Preferred Stock or Parity Preferred for such number of Dividend
Periods or portions thereof (or the equivalent thereof in the
case of Parity Preferred), which in the aggregate contain at
least 540 days, shall not have been paid or declared and a sum
sufficient for the payment thereof set aside for payment, then in
any such case the number of directors of the Corporation shall
automatically be increased by two additional directors and the
holders of the shares of Series D Preferred Stock and Parity
Preferred shall possess full voting powers (to the exclusion of
the holders of all other series and classes of capital stock of
the Corporation), voting as a single class, to elect such two
directors (the "Special Preferred Directors").
(ii) The Default Period and voting rights created by
the occurrence of the circumstances described in Section 5(c)(i)
shall continue unless and until all accumulated and unpaid
dividends on any of the then Outstanding shares of Series D
Preferred Stock and Parity Preferred, including in the case of
Series D Preferred Stock the accumulated and unpaid dividends for
the current Dividend Period, shall have been paid or sufficient
funds for the payment thereof shall have been deposited with the
Transfer Agent, at which time the voting rights described in
Section 5(c)(i) shall cease, subject always, however, to the
revesting of such voting power in the holders of all shares of
Series D Preferred Stock and Parity Preferred upon the further
occurrence of any of the circumstances described in Section
5(c)(i) above.
(iii) The term of office of all persons who are
directors of the Corporation at the time of the special meeting
referred to in Section 5(c)(v) below shall continue,
notwithstanding the election of Special Preferred Directors at
such meeting by the holders of shares of Series D Preferred Stock
and Parity Preferred. The Regular Preferred Directors and the
Special Preferred Directors, together with the incumbent
directors elected by the holders of the Common Stock, shall
constitute the duly elected directors of the Corporation.
(iv) Simultaneously with the expiration of the Default
Period, the term of office of the Special Preferred Directors
elected by the holders of shares of Series D Preferred Stock and
Parity Preferred at the special meeting referred to in Section
5(c)(v) below shall terminate, the number of directors of the
Corporation shall automatically be decreased by two, only the
Regular Preferred Directors and the incumbent directors otherwise
elected by the holders of the Common Stock shall constitute the
duly elected directors of the Corporation, and the right of the
holders of Series D Preferred Stock and Parity Preferred to elect
directors during a Default Period as provided above shall cease.
(v) Within five days following the accrual of any
right of the holders of shares of Series D Preferred Stock and
Parity Preferred to elect directors upon the occurrence of a
Default Period as described in Section 5(c)(i), the Corporation
shall mail or cause to be mailed to the holders of Series D
Preferred Stock and Parity Preferred notice of a special meeting
of stockholders for a date not less than 20 days nor more than 60
days after the date of such notice. If the Corporation does not
mail or cause to be mailed notice of such meeting as provided in
the next preceding sentence, a meeting may be called by any
holder of Series D Preferred Stock or Parity Preferred. The date
on which such right accrued shall be the record date for
determining the holders of stock entitled to notice of and to
vote at the special meeting. Holders of all such stock shall
vote in such elections on the basis of one vote per $100,000
liquidation preference and not cumulatively and the holder or
holders of one-third of the shares of such stock then
Outstanding, present in person or by proxy, shall constitute a
quorum for the election of directors by them. At any such
meeting or adjournment thereof in the absence of a quorum, a
majority of the holders of such stock present in person or by
proxy shall have the power to adjourn the meeting for the
election of directors without notice, other than an announcement
at the meeting, until a quorum is present.
(d) Removal of Regular Preferred Directors and Special
Preferred Directors. Except as provided in Section 5(c)(iv),
Regular Preferred Directors and Special Preferred Directors shall
(subject to the provisions of any applicable law) be subject to
removal only by the vote of the holders of a majority of the
Outstanding shares of Series D Preferred Stock, Voting Preferred
and Parity Preferred in the case of Regular Preferred Directors,
and the holders of a majority of the Outstanding shares of Series
D Preferred Stock and Parity Preferred in the case of Special
Preferred Directors, in each case, voting together as a single
class. Any vacancy in the Board of Directors of the Corporation
occurring by reason of such removal or otherwise may be filled by
vote of a majority of the Outstanding shares of Series D
Preferred Stock, Voting Preferred and Parity Preferred in respect
of any Regular Preferred Director and by a vote of a majority of
the Outstanding shares of Series D Preferred Stock and Parity
Preferred in respect of any Special Preferred Director, in each
case, voting together as a single class, in person or by proxy at
a special meeting of stockholders called and held in accordance
with the provisions set forth above, and, if not so filled, such
vacancy shall (subject to the provisions of any applicable law)
be filled by a vote of a majority of the remaining Regular
Preferred Directors and any Special Preferred Directors.
(e) Right to Vote in Certain Events. (i) Without the
affirmative vote of the Holders of at least two-thirds of the
Outstanding shares of Series D Preferred Stock voting in person
or by proxy at a special meeting for the purpose, or the
unanimous written consent of the Holders of the Outstanding
shares of Series D Preferred Stock acting without such a meeting
(subject to the provisions of any applicable law), the
Corporation may not amend, alter or repeal any provisions of this
Certificate of Designations or the Certificate of Incorporation
so as to affect adversely the preferences, special rights or
powers of the shares of Series D Preferred Stock. Any increase
in the authorized number of any series of capital stock ranking
on a parity with the Series D Preferred Stock with respect to the
payment of dividends or the distribution of assets, or creation,
authorization or issuance of any securities convertible into, or
warrants, options or similar rights to purchase, acquire or
receive, shares of such capital stock or reclassification of any
authorized capital stock of the Corporation into any share
ranking on a parity with the Series D Preferred Stock with
respect to the payment of dividends or the distribution of assets
shall be deemed not to affect adversely the preferences, special
rights or powers of the shares of Series D Preferred Stock.
(ii) Without the affirmative vote of the holders of at
least two-thirds of the Outstanding shares of Series D Preferred
Stock and Parity Preferred, voting together as a single class, in
person or by proxy at a special meeting for the purpose, or the
unanimous written consent of the Holders of the Outstanding
shares of Series D Preferred Stock and Parity Preferred acting
without such a meeting (subject to the provisions of any
applicable law), the Corporation may not create, authorize or
issue shares of any class or series of capital stock ranking
senior to the shares of Series D Preferred Stock and Parity
Preferred with respect to the payment of dividends or the
distribution of assets, or create, authorize or issue any
securities convertible into, or warrants, options or similar
rights to purchase, acquire or receive, shares of capital stock
ranking senior to the shares of Series D Preferred Stock and
Parity Preferred with respect to the payment of dividends or the
distribution of assets or reclassify any authorized capital stock
of the Corporation into any shares ranking senior to the shares
of Series D Preferred Stock and Parity Preferred with respect to
the payment of dividends or the distribution of assets.
(iii) Without the affirmative vote of the holders of a
majority of the Outstanding shares of Series D Preferred Stock,
Voting Preferred and Parity Preferred, voting together as a
single class, in person or by proxy at a special meeting for the
purpose, or the unanimous written consent of the Holders of the
Outstanding shares of Series D Preferred Stock, Voting Preferred
and Parity Preferred acting without such a meeting (subject to
the provisions of any applicable law), the Corporation may not
sell, lease or convey all or substantially all of the assets of
the Corporation, or consolidate or merge with or into any other
corporation unless, in the case of a consolidation or merger,
each holder of shares of Series D Preferred Stock, Voting
Preferred and Parity Preferred shall receive, upon such
consolidation or merger, an amount in cash equal to the
liquidation preference, premium, if any, and accumulated and
unpaid dividends through the date of payment of such shares of
Series D Preferred Stock, Voting Preferred and Parity Preferred
in exchange for such shares of Series D Preferred Stock, Voting
Preferred and Parity Preferred.
(f) No Right to Vote in Certain Events. With respect
to any right of the holders of shares of Series D Preferred Stock
to vote on any matter, whether such right is created by this
Certificate of Designations, by applicable law or otherwise, no
Holder of any share of Series D Preferred Stock shall be entitled
to vote and no share of Series D Preferred Stock shall be deemed
to be Outstanding for the purpose of voting or determining the
number of shares required to constitute a quorum, if prior to or
concurrently with a determination of shares entitled to vote or
of shares deemed Outstanding for quorum purposes, as the case may
be, such share is held beneficially or of record by the
Corporation or any Affiliate of the Corporation.
6. Record Holders. The Corporation and the Transfer
Agent may deem and treat the record holder of any shares of
Series D Preferred Stock as shown on the Stock Books as the true
and lawful owner thereof for all purposes, and neither the
Corporation nor the Transfer Agent shall be affected by any
notice to the contrary.
IN WITNESS WHEREOF, FORD HOLDINGS, INC. has caused this
Certificate to be made under the seal of the Corporation and
signed by M. S. Macdonald, its Vice President-Treasurer, and
attested by L. J. Ghilardi, its Assistant Secretary, this ___ day
of August, 1994.
FORD HOLDINGS, INC.
By:______________________
M. S. Macdonald
Vice President-Treasurer
(CORPORATE SEAL)
ATTEST:
By ______________________
L. J. Ghilardi
Assistant Secretary
H:\lg\fhictdsg.d
FORD HOLDINGS, INC.
CHEMICAL BANK, As Depositary
AND
THE HOLDERS FROM TIME TO TIME OF
THE DEPOSITARY RECEIPTS DESCRIBED HEREIN
_______________________
DEPOSIT AGREEMENT
_______________________
Dated as of August 10, 1994
<PAGE>
TABLE OF CONTENTS
Page
ARTICLE I
Definitions . . . . . . . . . . . . . . . . . . . . . 1
ARTICLE II
Form of Receipts, Deposit of Stock,
Execution and Delivery, Transfer
and Surrender of Receipts
-----------------------------------
SECTION 2.01. Form and Transfer of Receipts . . . . . . . 2
SECTION 2.02. Deposit of Stock; Execution and Deliver
Receipts in Respect Thereof . . . . . . . 3
SECTION 2.03. Registration of Transfer of Receipts . . . 4
SECTION 2.04. Split-ups and Combinations of Receipts;
Surrender of Receipts and Withdrawal
of Stock . . . . . . . . . . . . . . . . 4
SECTION 2.05. Limitations on Execution and Delivery,
Transfer, Surrender and Exchange of
Receipts . . . . . . . . . . . . . . . . 5
SECTION 2.06. Lost Receipts, etc. . . . . . . . . . . . . 6
SECTION 2.07. Cancellation and Destruction of Surrendered
Receipts . . . . . . . . . . . . . . . . 6
ARTICLE III
Certain Obligations of
Holders of Receipts and the Company
-----------------------------------
SECTION 3.01. Filing Proofs, Certificates and Other
Information . . . . . . . . . . . . . . . 6
SECTION 3.02. Payment of Fees and Expenses . . . . . . . 6
SECTION 3.03. Warranty as to Stock . . . . . . . . . . . 7
SECTION 3.04. Warranty as to Receipts . . . . . . . . . . 7
i
<PAGE>
Page
ARTICLE IV
The Deposited Securities; Notices
---------------------------------
SECTION 4.01. Cash Distributions . . . . . . . . . . . . 7
SECTION 4.02. Distributions of Securities or Property
Other than Cash, Rights, Preferences
or Privileges . . . . . . . . . . . . . 7
SECTION 4.03. Subscription Rights, Preferences, or
Privileges . . . . . . . . . . . . . . . 8
SECTION 4.04. Notice of Dividends, etc.; Record Date
for Holders of Receipts . . . . . . . . . 9
SECTION 4.05. Voting Rights . . . . . . . . . . . . . . . 9
SECTION 4.06. Changes Affecting Deposited Securities and
Reclassifications, Recapitalizations, etc. 10
SECTION 4.07. Delivery of Reports . . . . . . . . . . . . 10
SECTION 4.08. Lists of Receipt Holders . . . . . . . . . 10
SECTION 4.09 Tax and Regulatory Compliance . . . . . . . 11
SECTION 4.10. Withholding . . . . . . . . . . . . . . . . 11
ARTICLE V
The Depositary, the Depositary's
Agents, the Registrar and the Company
-------------------------------------
SECTION 5.01. Maintenance of Offices, Agencies and
Transfer Books by the Depositary;
Registrar . . . . . . . . . . . . . . . . 11
SECTION 5.02. Prevention of or Delay in Performance by
the Depositary, the Depositary's Agents,
the Registrar or the Company . . . . . . 12
SECTION 5.03. Obligations of the Depositary, the
Depositary's Agents, the Registrar and
the Company . . . . . . . . . . . . . . 12
SECTION 5.04. Resignation and Removal of the Depositary;
Appointment of Successor Depositary . . . 13
SECTION 5.05. Corporate Notices and Reports . . . . . . . 14
SECTION 5.06. Indemnification by the Company . . . . . . 14
SECTION 5.07. Fees and Expenses . . . . . . . . . . . . . 14
ARTICLE VI
Amendment and Termination
-------------------------
SECTION 6.01. Amendment . . . . . . . . . . . . . . . . . 15
SECTION 6.02. Termination . . . . . . . . . . . . . . . . 15
ii
<PAGE>
Page
ARTICLE VII
Miscellaneous
-------------
SECTION 7.01. Counterparts. . . . . . . . . . . . . . . . 16
SECTION 7.02. Exclusive Benefit of Parties . . . . . . . 16
SECTION 7.03. Invalidity of Provisions . . . . . . . . . 16
SECTION 7.04. Notices . . . . . . . . . . . . . . . . . . 16
SECTION 7.05. Depositary's Agents . . . . . . . . . . . . 17
SECTION 7.06. Holders of Receipts Are Parties . . . . . . 17
SECTION 7.07. Governing Law . . . . . . . . . . . . . . . 17
SECTION 7.08. Inspection of Deposit Agreement
and Certificate . . . . . . . . . . . . . 17
SECTION 7.09. Headings . . . . . . . . . . . . . . . . . 17
iii
h:\nap\seriesd.fhi\deposagt.tc
<PAGE>
DEPOSIT AGREEMENT
DEPOSIT AGREEMENT dated as of August 10, 1994, among FORD
HOLDINGS, INC., a Delaware corporation, Chemical Bank, a New York
corporation, and the holders from time to time of the Receipts
described herein.
WHEREAS, it is desired to provide, as hereinafter set forth
in this Deposit Agreement, for the deposit of shares of Series D
Cumulative Preferred Stock, par value $1.00 per share, $100,000
liquidation preference of FORD HOLDINGS, INC. with the Depositary
for the purposes set forth in this Deposit Agreement and for the
issuance hereunder of Receipts evidencing Depositary Shares each
representing 1/4,000 of a share of Series D Cumulative Preferred
Stock so deposited; and
WHEREAS, the Receipts are to be substantially in the form of
Exhibit A annexed hereto, with appropriate insertions, modifications
and omissions, as hereinafter provided in this Deposit Agreement;
NOW, THEREFORE, in consideration of the premises, the parties
hereto agree as follows:
ARTICLE I
Definitions
The following definitions shall for all purposes, unless
otherwise indicated, apply to the respective terms used in this
Deposit Agreement and the Receipts:
"Certificate" shall mean the Certificate of the Designations,
Powers, Preferences and Relative, Participating or Other Rights, and
the Qualifications, Limitations or Restrictions Thereof filed with
the Secretary of State of the State of Delaware establishing the
Stock as a series of preferred stock of the Company.
"Company" shall mean Ford Holdings, Inc., a Delaware
corporation, and its successors.
"Deposit Agreement" shall mean this Deposit Agreement, as
amended or supplemented from time to time.
"Depositary" shall mean Chemical Bank, a New York
corporation, and any successor as Depositary hereunder.
"Depositary Shares" shall mean depositary shares, evidenced
by Receipts issued hereunder and constituted by the Stock deposited
with the Depositary hereunder. Each Depositary Share shall, as
provided herein, represent 1/4,000 of a share of Stock and be
evidenced by a Receipt.
"Depositary's Agent" shall mean an agent appointed by the
Depositary pursuant to Section 7.05.
"Depositary's Office" shall mean the corporate trust office
of the Depositary in New York City, at which at any particular time
its depositary receipt business shall be administered.
"Receipt" shall mean one of the depositary receipts,
substantially in the form set forth as Exhibit A hereto, issued
hereunder, whether in definitive or temporary form and evidencing
the number of Depositary Shares specified therein.
"record holder" or "holder" as applied to a Receipt shall
mean the person in whose name a Receipt is registered on the books
of the Depositary maintained for such purpose.
"Registrar" shall mean the Depositary or such other bank or
trust company which shall be 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 Series D
Cumulative Preferred Stock, par value $1.00 per share, $100,000
liquidation preference per share.
ARTICLE II
Form of Receipts, Deposit of
Stock, Execution and Delivery,
Transfer and Surrender of Receipts
SECTION 2.01. Form and Transfer of Receipts. Definitive
Receipts shall be engraved or printed or lithographed on
steel-engraved borders, and shall be substantially in the form set
forth in Exhibit A annexed hereto, with appropriate insertions,
modifications and omissions, as hereinafter provided. Pending the
preparation of definitive Receipts, the Depositary, upon the written
order of the Company, delivered in compliance with Section 2.02,
shall execute and deliver temporary Receipts which are printed,
lithographed, typewritten, mimeographed or otherwise substantially
of the tenor of the definitive Receipts in lieu of which they are
issued and with such appropriate insertions, omissions,
substitutions and other variations as the persons executing such
Receipts may determine, as evidenced by their execution of such
Receipts. If temporary Receipts are issued, the Company and the
Depositary will cause definitive Receipts to be prepared without
unreasonable delay. After the preparation of definitive Receipts,
the temporary Receipts shall be exchangeable for definitive Receipts
upon surrender of the temporary Receipts at the Depositary's Office
or such other offices, if any, 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
<PAGE>
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 to the holder of
the Receipts. Until so exchanged, the temporary Receipts shall in
all respects be entitled to the same benefits under this Agreement,
and with respect to the Stock, as definitive Receipts.
Receipts shall be executed by the Depositary by the manual
signature of a duly authorized officer of the Depositary; provided,
that such signature may be a facsimile if a Registrar for the
Receipts (other than the Depositary) shall have been appointed and
such Receipts are countersigned by manual signature of a duly
authorized officer of the Registrar. No Receipt shall be entitled
to any benefits under this Deposit Agreement or be valid or
obligatory for any purpose unless it shall have been executed
manually by a duly authorized officer of the Depositary or, if a
Registrar for the Receipts (other than the Depositary) shall have
been appointed, by manual or facsimile signature of a duly
authorized officer of the Depositary and countersigned manually by
a duly authorized officer of such Registrar. The Depositary shall
record on its books each Receipt so signed and delivered as
hereinafter provided.
Except as the Depositary may otherwise determine, Receipts
shall be in denominations of any number of whole Depositary Shares.
Receipts may be endorsed with or have incorporated in the
text thereof such legends or recitals or changes not inconsistent
with the provisions of this Deposit Agreement as may be required by
the Depositary or required to comply with any applicable law or any
regulation thereunder or with the rules and regulations of any
securities exchange upon which the Stock, the Depositary Shares or
the Receipts may be listed or traded or to conform with any usage
with respect thereto, or to indicate any special limitations or
restrictions to which any particular Receipts are subject.
Title to Depositary Shares evidenced by a Receipt which is
properly endorsed or accompanied by a properly executed instrument
of transfer shall be transferable by delivery with the same effect
as in the case of a negotiable instrument; provided, however, that
until transfer of a Receipt shall be registered on the books of the
Depositary as provided in Section 2.03, 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, the exchange of Depositary Shares for Stock or
any notice provided for in this Deposit Agreement and for all other
purposes.
<PAGE>
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 may from time to time deposit
shares of the 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 duly executed instrument of transfer or
endorsement, in form satisfactory to the Depositary, together with
all such certifications as may be required by the Depositary in
accordance with the provisions of this Deposit Agreement, and
together with a written order of the Company directing the
Depositary to execute and deliver to, or upon the written order of,
the person or persons stated in such order a Receipt or Receipts for
the number of Depositary Shares representing such deposited Stock.
Deposited Stock shall be held by the Depositary at the
Depositary's Office or at such other place or places as the
Depositary shall determine.
Upon receipt by the Depositary of a certificate or
certificates for Stock deposited in accordance with the provisions
of this Section, together with the other documents required as above
specified, and upon recordation of the Stock on the books of the
Company in the name of the Depositary or its nominee, the
Depositary, subject to the terms and conditions of this Deposit
Agreement, shall execute and deliver, to or upon the order of the
person or persons named in the written order delivered to the
Depositary referred to in the first paragraph of this Section, a
Receipt or Receipts for the number of Depositary Shares representing
the Stock so deposited and registered in such name or names as may
be requested by such person or persons. The Depositary shall
execute and deliver such Receipt or Receipts at the Depositary's
Office or such other offices, if any, as the Depositary may
designate. Delivery at other offices shall be at the risk and
expense of the person requesting such delivery.
Other than in the case of splits, combinations or other
reclassifications affecting the Stock, or in the case of dividends
or other distributions of Stock, if any, there shall be deposited
hereunder not more than the number of shares constituting the Stock
as set forth in the Certificate, as such may be amended.
SECTION 2.03. Registration of Transfer of Receipts. Subject
to the terms and conditions of this Deposit Agreement, the
Depositary shall register on its books from time to time transfers
of Receipts upon any surrender thereof by the holder in person or by
duly authorized attorney, properly endorsed or accompanied by a
properly executed instrument of transfer. Thereupon the Depositary
shall execute a new Receipt or Receipts evidencing the same
aggregate number of Depositary Shares as those evidenced by the
Receipt or Receipts surrendered and deliver such new Receipt or
Receipts to or upon the order of the person entitled thereto.
SECTION 2.04. Split-ups and Combinations of Receipts;
Surrender of Receipts and Withdrawal of Stock. Upon surrender by a
holder of a Receipt or Receipts at the Depositary's Office or at
such other offices as it may designate for the purpose of effecting
a split-up or combination of such Receipt or Receipts, and subject
to the terms and conditions of this Deposit Agreement, the
Depositary shall execute and deliver a new Receipt or Receipts in
the authorized denomination or denominations requested, evidencing
the aggregate number of Depositary Shares evidenced by the Receipt
or Receipts surrendered.
Any holder of a Receipt or Receipts representing any number
of whole shares of Stock or his duly authorized attorney may
withdraw the Stock and all money and other property, if any,
represented thereby by surrendering such Receipt or Receipts, at the
Depositary's Office or at such other offices as the Depositary may
designate for such withdrawals. Thereafter, without unreasonable
delay, the Depositary shall deliver or cause to be delivered to such
holder or to the person or persons designated by such holder as
hereinafter provided, the number of whole shares of Stock and all
money and other property, if any, represented by the Receipt or
Receipts so surrendered for withdrawal, but holders of such whole
shares of Stock will not thereafter be entitled to deposit such
Stock hereunder or to receive Depositary Shares therefor. If a
Receipt or Receipts delivered by the holder to the Depositary in
connection with such withdrawal shall evidence a number of
Depositary Shares in excess of the number of Depositary Shares
representing the number of whole shares of Stock to be so withdrawn,
the Depositary shall at the same time, in addition to such number of
whole shares of Stock and such money and other property, if any, to
be so withdrawn, deliver to such holder, or upon his order, a new
Receipt evidencing such excess number of Depositary Shares. In no
event will fractional shares of Stock be distributed by the
Depositary. Delivery of the Stock and money and other property
being withdrawn may be made by the delivery of such certificates,
documents of title and other instruments as the Depositary may deem
appropriate.
If the Stock and the money and other property being withdrawn
are to be delivered to a person or persons other than the record
holder of the Receipt or Receipts being surrendered for withdrawal
of Stock, such holders shall execute and deliver to the Depositary
a written order so directing the Depositary and the Depositary may
require that the Receipt or Receipts surrendered by such holder for
withdrawal of such shares of Stock be properly endorsed in blank or
accompanied by a properly executed instrument of transfer in blank.
Delivery of the Stock and the money and other property, if
any, represented by Receipts surrendered for withdrawal shall be
made by the Depositary at the Depositary's Office, except that, at
the request, risk and expense of the holder surrendering such
Receipt or Receipts and for the account of the holder thereof, such
delivery may be made at such other place as may be designated by
such holder.
SECTION 2.05. Limitations on Execution and Delivery,
Transfer, Surrender and Exchange of Receipts. As a condition
precedent to the execution and delivery, registration of transfer,
split-up, combination, surrender or exchange of any Receipt, the
Depositary, any of the Depositary's Agents or the Company may
require payment to it of a sum sufficient for the payment (or, in
the event that the Depositary or the Company shall have made such
payment, the reimbursement to it) of any charges or expenses payable
by a holder of a Receipt pursuant to this Deposit Agreement, may
require the production of evidence satisfactory to it as to the
identity and genuineness of any signature (or the authority of any
signature) and may also require compliance with such regulations, if
any, as the Depositary or the Company may establish consistent with
the provisions of this Deposit Agreement.
The deposit of Stock may be refused, the delivery of Receipts
against Stock may be suspended, the registration of transfer of
Receipts may be refused and the registration of transfer, surrender
or exchange of outstanding Receipts may be suspended (i) during any
period when the register of stockholders of the Company is closed or
(ii) if any such action is deemed necessary or advisable by the
Depositary, any 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.
SECTION 2.06. Lost Receipts, etc. In case any Receipt shall
be mutilated, destroyed, lost or stolen, the Depositary in its
discretion may execute and deliver a Receipt of like form and tenor
in exchange and substitution for such mutilated Receipt, or in lieu
of and in substitution for such destroyed, lost or stolen Receipt,
upon (i) the filing by the holder thereof with the Depositary of
evidence satisfactory to the Depositary and the Company of such
destruction or loss or theft of such Receipt, of the authenticity
thereof and of his or her ownership thereof and (ii) the furnishing
to the Depositary and the Company of indemnification satisfactory to
them.
SECTION 2.07. 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 all Receipts so cancelled.
ARTICLE III
Certain Obligations of
Holders of Receipts and the Company
SECTION 3.01. Filing Proofs, Certificates and Other
Information. Any holder of a Receipt may be required from time to
time to file such proof of residence, or other matters or other
information, to execute such certificates and to make such
representations and warranties as the Depositary or the Company may
reasonably deem necessary or proper. The Depositary or the Company
may withhold the delivery, or delay the registration of transfer or
exchange, of any Receipt or the withdrawal of the Stock represented
by the Depositary Shares evidenced by any Receipt or the
distribution of any dividend or other distribution or the sale of
any rights or of the proceeds thereof until such proof or other
information is filed or such certificates are executed or such
representations and warranties are made.
SECTION 3.02. Payment of Fees and Expenses. Holders of
Receipts shall be obligated to make payments to the Depositary of
certain fees and expenses, as provided in Section 5.07, or provide
evidence reasonably satisfactory to the Depositary that such fees
and expenses have been paid. Registration of transfer of any
Receipt or any withdrawal of Stock and all money or other property,
if any, represented by the Depositary Shares evidenced by such
Receipt may be refused until any such payment due is made, and any
dividends, interest payments or other distributions may be withheld
or any part of or all the Stock or other property represented by the
Depositary Shares evidenced by such Receipt and not theretofore sold
may be sold for the account of the holder thereof (after attempting
by reasonable means to notify such holder prior to such sale), and
such dividends, interest payments or other distributions or the
proceeds of any such sale may be applied to any payment of such fees
or expenses, the holder of such Receipt remaining liable for any
deficiency.
SECTION 3.03. Warranty as to Stock. The Company hereby
represents and warrants that the Stock, when issued, will be duly
authorized, validly issued, fully paid and nonassessable. Such
representation and warranty shall survive the deposit of the Stock
and the issuance of Receipts.
SECTION 3.04. Warranty as to Receipts. The Company hereby
represents and warrants that the Receipts, when issued, will
represent legal and valid interests in the Stock. Such
representation and warranty shall survive the deposit of the Stock
and the issuance of Receipts.
ARTICLE IV
The Deposited Securities; Notices
SECTION 4.01. Cash Distributions. Whenever the Depositary
shall receive any cash dividend or other cash distribution on the
Stock (including a cash distribution in respect of a liquidation,
merger or consolidation of the Company), the Depositary shall,
subject to Sections 3.01 and 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 withhold from any cash dividend or
other cash distribution in respect of the Stock represented by the
Receipts held by any holder an amount on account of taxes, the
amount made available for distribution or distributed in respect of
Depositary Shares represented by such Receipts subject to such
withholding shall be reduced accordingly. The Depositary shall
distribute or make available for distribution, as the case may be,
only such amount, however, as can be distributed without attributing
to any holder of Depositary Shares a fraction of one cent, and any
balance not so distributable shall be held by the Depositary
(without liability for interest thereon) and shall be added to and
be treated as part of the next sum received by the Depositary for
distribution to record holders of Receipts then outstanding.
SECTION 4.02. Distributions of Securities or Property Other
than Cash, Rights, Preference or Privileges. Whenever the
Depositary shall receive any distribution of securities or property
other than cash, rights, preferences or privileges upon the Stock,
the Depositary shall, subject to Sections 3.01 and 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. If in the opinion of the Depositary after consultation
with the Company such distribution cannot be made proportionately
among such record holders, or if for any other reason (including any
requirement that the Company or the Depositary withhold an amount on
account of taxes) the Depositary deems, after consultation with the
Company, such distribution not to be feasible, the Depositary may,
with the approval of the Company, adopt such method as it deems
equitable and practicable for the purpose of effecting such
distribution, including the sale (at public or private sale) of the
securities or property thus received, or any part thereof, at such
place or places and upon such terms as it may deem proper. The net
proceeds of any such sale shall, subject to Sections 3.01 and 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. The
Company shall not make any distribution of such securities or
property to the Depositary and the Depositary shall not make any
distribution of such securities or property to the holders of
Receipts unless the Company shall have provided the Depositary an
opinion of counsel stating that such securities or property has been
registered under the Securities Act or do not need to be registered
in connection with such distributions.
SECTION 4.03. Subscription Rights, Preferences or
Privileges. If the Company shall at any time offer or cause to be
offered to the persons in whose names Stock is recorded on the books
of the Company any rights, preferences or privileges to subscribe
for or to purchase any securities or any rights, preferences or
privileges of any other nature, such rights, preferences or
privileges shall in each such instance be made available by the
Depositary to the record holders of Receipts in such manner as the
Depositary may determine, either by the issue to such record holders
of warrants representing such rights, preferences or privileges or
by such other method as may be deemed appropriate by the Depositary
in its discretion with the approval of the Company; provided,
however, that if at the time of issue or offer of any such rights,
preferences or privileges the Depositary determines that it is not
lawful or (after consultation with the Company) not feasible to make
such rights, preferences or privileges available to holders of
Receipts by the issue of warrants or otherwise, then the Depositary,
in its discretion (with approval of the Company, in any case where
the Depositary has determined that it is not feasible to make such
rights, preferences or privileges available), may, if applicable
laws or the terms of such rights, preferences or privileges permit
such transfer, sell such rights, preferences or privileges at public
or private sale, at such place or places and upon such terms as it
may deem proper. The net proceeds of any such sale shall, subject
to Sections 3.01 and 3.02, 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 the securities
to which such rights, preferences or privileges relate, the Company
agrees with the Depositary that the Company will file promptly a
registration statement pursuant to such Act with respect to such
rights, preferences or privileges and securities and use its best
efforts and take all steps available to it to cause such
registration statement to become effective sufficiently in advance
of the expiration of such rights, preferences or privileges to
enable such holders to exercise such rights, preferences or
privileges. In no event shall the Depositary make available to the
holders of Receipts any right, preference or privilege to subscribe
for or to purchase any securities unless and until such 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, and the Company shall
have provided to the Depositary an opinion of counsel to such
effect.
If any other action under the laws of any jurisdiction or any
governmental or administrative authorization, consent or permit is
required in order for such rights, preferences or privileges to be
made available to holders of Receipts, the Company agrees with the
Depositary that the Company will use its best efforts to take such
action or obtain such authorization, consent or permit sufficiently
in advance of the expiration of such rights, preferences or
privileges to enable such holders to exercise such rights,
preferences or privileges.
SECTION 4.04. Notice of Dividends, etc.; Record Date for
Holders of Receipts. Whenever any cash dividend or other cash
distribution shall become payable or any distribution other than
cash shall be made, or if rights, preferences or privileges shall at
any time be offered, with respect to Stock, or whenever the
Depositary shall receive notice of any meeting at which holders of
Stock are entitled to vote or of which holders of Stock are entitled
to notice, or whenever the Depositary and the Company shall decide
it is appropriate, the record date shall be the same time and date
as the record date fixed by the Company with respect to the Stock
for the determination of the holders of Receipts who shall be
entitled to receive such dividend, distribution, rights, preferences
or privileges or the net proceeds of the sale thereof, or to give
instructions for the exercise of voting rights at any such meeting,
or who shall be entitled to notice of such meeting, or for any other
reasons which the Company and the Depositary shall deem appropriate.
SECTION 4.05. Voting Rights. Upon receipt of notice of any
meeting at which the holders of Stock are entitled to vote or upon
receipt of any consent to corporate action without a meeting, 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 or stating
that corporate action by written consent is to be taken and (ii) a
statement that the holders of Receipts at the close of business on
the relevant record date may, subject to any applicable
restrictions, instruct the Depositary as to the exercise of the
voting rights pertaining to the amount of Stock represented by their
respective Depositary Shares (including an express indication that
instructions may be given to the Depositary to give a discretionary
proxy to a person designated by the Company) and a brief statement
as to the manner in which such instructions may be given. Upon the
written request of the holders of Receipts on the relevant record
date, the Depositary shall endeavor insofar as practicable to vote
or cause to be voted or to give or to withhold consent respecting,
in accordance with the instructions set forth in such requests, the
maximum number of shares of Stock represented by the Depositary
Shares evidenced by all Receipts as to which any particular voting
instructions are received. The Company hereby agrees to take all
reasonable action which may be deemed necessary by the Depositary in
order to enable the Depositary to vote such Stock or cause such
Stock to be voted. In the absence of specific instructions from the
holder of a Receipt, the Depositary will abstain from voting (but,
at its discretion, not from appearing at any meeting with respect to
such Stock unless directed to the contrary by the holders of all the
Receipts) to the extent of the Stock represented by the Depositary
Shares evidenced by such Receipt. The Depositary shall not be
required to exercise discretion in voting any Stock.
Holders of Receipts shall also be entitled to vote on certain
amendments to the Deposit Agreement pursuant to Section 6.01 hereof.
SECTION 4.06. Changes Affecting Deposited Securities and
Reclassifications, Recapitalizations, etc. Subject to the
provisions of Section 4.01 hereof, upon any change in par or stated
value, split-up, combination or any other reclassification of the
Stock, or upon any recapitalization, reorganization, merger,
amalgamation or consolidation or sale of all or substantially all of
the Company's assets affecting the Company or to which it is a
party, the Depositary may in its discretion with the approval of,
and shall upon the instructions of, the Company, and (in either
case) in such manner as the Depositary may deem equitable, (i) make
such adjustments as are certified by the Company in the fraction of
an interest represented by one Depositary Share in one share of
Stock, as may be necessary fully to reflect the effects of such
change in par or stated value, split-up, combination or other
reclassification of Stock, or of such recapitalization,
reorganization, merger, amalgamation or consolidation or sale of all
or substantially all of the Company's assets and (ii) treat any
securities which shall be received by the Depositary in exchange for
or upon conversion of or in respect of the Stock as new deposited
securities so received in exchange for or upon conversion 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 securities. Anything to the contrary herein
notwithstanding, holders of Receipts shall have the right from and
after the effective date of any such change in par or stated value,
split-up, combination or other reclassification of the Stock or any
such recapitalization, reorganization, merger, amalgamation or
consolidation or sale of all or substantially all of the Company's
assets to surrender such Receipts to the Depositary with
instructions to convert, exchange or surrender the Stock represented
thereby only into or for, as the case may be, the kind and amount of
shares of stock and other securities and property and cash into
which the Stock represented by such Receipts might have been
converted or for which such Stock might have been exchanged or
surrendered immediately prior to the effective date of such
transaction.
SECTION 4.07. Delivery of Reports. The Depositary shall
furnish to holders of Receipts any reports and communications
received from the Company which 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 specified by the Company,
of the names, addresses and holdings of Depositary Shares of all
record holders of Receipts.
SECTION 4.09. Tax and Regulatory Compliance. The Depositary
shall be responsible for (i) preparation and mailing of form 1099s
for all open and closed accounts, (ii) foreign tax withholding,
(iii) withholding 31% of dividends from eligible holders of
Receipts, (iv) mailing W-9 forms to new holders of Receipts without
a certified taxpayer identification number, (v) processing certified
W-9 forms, (vi) preparation and filing of state information returns
and (vii) escheatment services.
SECTION 4.10. Withholding. Notwithstanding any other
provision of this Deposit Agreement, in the event that the
Depositary determines that any distribution in property is subject
to any tax which the Depositary is obligated to withhold, the
Depositary may dispose of all or a portion of such property in such
amounts and in such manner as the Depositary deems necessary and
practicable to pay such taxes, by public or private sale, and the
Depositary shall distribute the net proceeds of any such sale or the
balance of any such property after deduction of such taxes to the
holders of Receipts entitled thereto in proportion to the number of
Depositary Shares held by them respectively.
ARTICLE V
The Depositary, the Depositary's
Agents, the Registrar and the Company
SECTION 5.01. Maintenance of Offices, Agencies and Transfer
Books by the Depositary; Registrar. Upon execution of this Deposit
Agreement, the Depositary shall maintain at the Depositary's Office,
facilities for the execution and delivery, registration and
registration of transfer, surrender and exchange of Receipts, and at
the offices of the Depositary's Agents, if any, facilities for the
delivery, registration of transfer, surrender and exchange of
Receipts, all in accordance with the provisions of this Deposit
Agreement.
The Depositary shall keep books at the Depositary's Office
which shall reflect the registration and registration of transfer of
Receipts and split-ups and combinations of Depositary Shares and
which books at all reasonable times shall be open for inspection by
the record holders of Receipts; provided that any such holder
requesting to exercise such right shall certify to the Depositary
that such inspection shall be for a proper purpose reasonably
related to such person's interest as an owner of Depositary Shares
evidenced by the Receipts.
The Depositary may close such books only when the register of
Stockholders of the Company is closed.
The Depositary may, with the approval of the Company, appoint
a Registrar for registration of the Receipts or the Depositary
Shares evidenced thereby. If the Receipts or the Depositary Shares
evidenced thereby or the Stock represented by such Depositary Shares
shall be listed on the New York Stock Exchange, the Depositary will
appoint a Registrar (acceptable to the Company) for registration of
such Receipts or Depositary Shares in accordance with any
requirements of such Exchange. Such Registrar (which may be the
Depositary if so permitted by the requirements of such Exchange) may
be removed and a substitute registrar appointed by the Depositary
upon the request or with the approval of the Company. If the
Receipts, such Depositary Shares or the Stock are listed on one or
more other stock exchanges, the Depositary will, at the request of
the Company, arrange such facilities for the delivery, registration,
registration of transfer, surrender and exchange of such Receipts,
such Depositary Shares or such Stock as may be required by law or
applicable stock exchange regulation.
SECTION 5.02. Prevention of or Delay in Performance by the
Depositary, the Depositary's Agents, the Registrar or the Company.
Neither the Depositary nor any Depositary's Agent nor any 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 applicable governmental authority or, in the case of the
Depositary, the Depositary's Agent or the Registrar, by reason of
any provision, present or future, of the Company's Certificate of
Incorporation, as amended (including the Certificate) or by reason
of any act of God or war or other circumstance beyond the control of
the relevant party, the Depositary, the Depositary's Agent, the
Registrar or the Company shall be prevented or forbidden from, or
delayed in, or subjected to any penalty on account of, doing or
performing any act or thing which the terms of this Deposit
Agreement provide shall be done or performed; nor shall the
Depositary, any Depositary's Agent, any Registrar or the Company
incur liability to any holder of a Receipt by reason of any exercise
of, or failure to exercise, any discretion provided for in this
Deposit Agreement except, in the case of any such exercise or
failure to exercise discretion not caused as aforesaid, if caused by
the negligence or willful misconduct of the party charged with such
exercise or failure to exercise.
SECTION 5.03. Obligations of the Depositary, the
Depositary's Agents, the Registrar and the Company. Neither the
Depositary nor any Depositary's Agent nor any Registrar nor the
Company assumes any obligation or shall be subject to any liability
under this Deposit Agreement to holders of Receipts other than for
its negligence or willful misconduct.
Neither the Depositary nor any Depositary's Agent nor any
Registrar nor the Company shall be under any obligation to appear
in, prosecute or defend any action, suit or other proceeding in
respect of the Stock, the Depositary Shares or the Receipts which in
its opinion may involve it in expense or liability unless indemnity
satisfactory to it against all expense and liability be furnished as
often as may be required.
Neither the Depositary nor any Depositary's Agent nor any
Registrar nor the Company shall be liable for any action or any
failure to act by it in reliance upon the advice of legal counsel or
accountants, or information from any person presenting Stock for
deposit, any holder of a Receipt or any other person believed by it
in good faith to be authorized or competent to give such
information. The Depositary, any Depositary's Agent, any 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.
In the event the Depositary shall receive conflicting claims,
requests or instructions from any holders of Receipts, on the one
hand, and the Company, on the other hand, the Depositary shall be
entitled to act on such claims, requests or instructions received
from the Company, and shall be entitled to the full indemnification
set forth in Section 5.06 hereof in connection with any action so
taken.
The Depositary shall not be responsible for any failure to
carry out any instruction to vote any of the shares of Stock or for
the manner or effect of any such vote made, as long as any such
action or non-action is in good faith and does not result from
negligence or willful misconduct of the Depositary. The Depositary
undertakes, and any Registrar shall be required to undertake, to
perform such duties and only such duties as are specifically set
forth in this Deposit Agreement, and no implied covenants or
obligations shall be read into this Deposit Agreement against the
Depositary or any Registrar. The Depositary, the Depositary's
Agents, and any Registrar may own and deal in any class of
securities of the Company and its affiliates and in Receipts. The
Depositary may also act as transfer agent or registrar of any of the
securities of the Company and its affiliates (including, without
limitations, the Stock).
SECTION 5.04. Resignation and Removal of the Depositary;
Appointment of Successor Depositary. The Depositary may at any time
resign as Depositary hereunder by delivering notice of its election
to do so to the Company, such resignation to take effect upon the
appointment of a successor Depositary and its acceptance of such
appointment as hereinafter provided.
The Depositary may at any time be removed by the Company by
notice of such removal delivered to the Depositary, such removal to
take effect upon the appointment of a successor Depositary and its
acceptance of such appointment as hereinafter provided.
If at any time the Depositary acting hereunder shall resign
or be removed prior to the termination of this Deposit Agreement,
the Company shall, within 60 days after the delivery of the notice
of resignation or removal, as the case may be, appoint a successor
Depositary, which shall be a bank or trust company having its
principal office in the United States of America and having a
combined capital and surplus of at least $50,000,000. If no
successor Depositary shall have been so appointed and have accepted
appointment within 60 days after delivery of such notice, the
resigning or removed Depositary may itself appoint a successor
Depositary or petition any court of competent jurisdiction for the
appointment of a successor Depositary. Every successor Depositary
shall execute and deliver to its predecessor and to the Company an
instrument in writing accepting its appointment hereunder, and
thereupon such successor Depositary, without any further act or
deed, shall become fully vested with all the rights, powers, duties
and obligations of its predecessor and for all purposes shall be the
Depositary under this Deposit Agreement, and such predecessor, upon
payment of all sums due it and on the written request of the
Company, shall execute and deliver an instrument transferring to
such successor all rights and powers of such predecessor hereunder,
shall duly assign, transfer and deliver all right, title and
interest in the Stock 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 and such records, books
and other information in its possession relating thereto. Any
successor Depositary shall promptly mail notice of its appointment
to the record holders of Receipts.
Any corporation into or with which the Depositary may be
merged, consolidated or converted shall be the successor of such
Depositary without the execution or filing of any document or any
further act, and notice thereof shall not be required hereunder.
Such successor Depositary may authenticate the Receipts in the name
of the predecessor Depositary or in the name of the successor
Depositary.
SECTION 5.05. Corporate Notices and Reports. The Company
agrees that it will transmit, at its expense, to the record holders
of Receipts, in each case at the addresses furnished to it pursuant
to Section 4.08, all notices and reports (including without
limitation financial statements) required by law or by the rules of
any national securities exchange upon which the Stock, the
Depositary Shares or the Receipts are listed, to be furnished to the
record holders of Receipts.
SECTION 5.06. Indemnification by the Company. The Company
shall indemnify the Depositary, any Depositary's Agent and any
Registrar against, and hold each of them harmless from, any loss,
liability or expense (including the costs and expenses of defending
itself) which may arise out of acts performed or omitted in
connection with this Deposit Agreement and the Receipts by the
Depositary, any Registrar or any of their respective agents
(including any Depositary's Agent), except for any liability arising
out of negligence, willful misconduct or bad faith on the respective
parts of any such person or persons. The obligations of the Company
set forth in this Section 5.06 shall survive any succession of any
Depositary, Registrar or Depositary's Agent or termination of this
Deposit Agreement.
SECTION 5.07. Fees and Expenses. The Company shall pay all
transfer and other taxes and governmental charges arising solely
from the existence of the depositary arrangements. The Company
shall pay all fees of the Depositary in connection with the initial
deposit of the Stock and the initial issuance of the Depositary
Shares, all withdrawals of shares of the Stock by owners of
Depositary Shares and all other duties performed by it under this
Deposit Agreement. All other transfer and other taxes and
governmental charges shall be at the expense of holders of
Depositary Shares. If a holder of Receipts requests the Depositary
to perform duties not required under this Deposit Agreement, the
Depositary shall notify the holder of the cost of this performance
of such duties. Such holder will be liable for the charges and
expenses related to such performance. Except as otherwise provided
herein, all other reasonable fees and expenses of the Depositary and
any Depositary's Agent hereunder and of any Registrar (including, in
each case, fees and expenses of counsel) incident to the performance
of their respective obligations hereunder will be paid by the
Company (except those expenses which are expressly provided herein
to be paid by such holders of the Depositary Shares). The
Depositary shall present its statement for fees and expenses to the
Company once every three months or at such other intervals as the
Company and the Depositary may agree. The obligations set forth in
this Section 5.07 shall survive any succession of any Depositary,
Registrar or Depositary's Agent or termination of this Deposit
Agreement.
ARTICLE VI
Amendment and Termination
SECTION 6.01. Amendment. The form of the Receipts and any
provisions of this Deposit Agreement may be amended at any time and
from time to time by agreement between the Company and the
Depositary in any respect which they may deem necessary or
desirable; provided, however, that no such amendment (other than any
change in the fees of any Depositary, Registrar or Transfer Agent)
which (i) shall materially and adversely alter the rights of the
holders of Receipts or (ii) would be materially and adversely
inconsistent with the rights granted to the holders of the Stock
pursuant to the Certificate shall be effective unless such amendment
shall have been approved by the holders of at least a majority of
the Depositary Shares then outstanding. Every holder of an
outstanding Receipt at the time any such amendment becomes effective
shall be deemed, by continuing to hold such Receipt, to consent and
agree to such amendment and to be bound by the Deposit Agreement as
amended thereby.
SECTION 6.02. Termination. This Deposit Agreement may be
terminated by the Company at any time upon not less than 60 days
prior written notice to the Depositary, in which case, upon a date
that is not later than 30 days after the date of such notice, the
Depositary shall deliver or make available for delivery to each
record holder, upon surrender of the Receipt or Receipts held by
each record holder, such number of whole or fractional shares of
Stock represented by such Receipt or Receipts. If the record holder
of any Receipt or Receipts shall not have so surrendered such
Receipt or Receipts in exchange for whole or fractional shares of
Stock on or prior to the effective date of termination of this
Agreement, such record holder shall for all purposes, including the
payment of dividends, be deemed to be a record holder of the
appropriate number of whole or fractional shares of Stock previously
represented by such Receipt or Receipts and shall thereafter
surrender to the Company such Receipt or Receipts in exchange for
whole or fractional shares of Stock. Upon termination of this
Deposit Agreement, the Depositary shall surrender to the Company any
whole or fractional shares of Stock held by the Depositary and the
Company shall hold such Stock for the benefit of the record holder
of Receipts which previously represented such Stock.
This Agreement shall automatically terminate after (i) there
shall have been made a final distribution in respect of the Stock in
connection with any liquidation, dissolution or winding up of the
Company and such distribution shall have been distributed to the
holders of Receipts pursuant to Section 4.01 or 4.02, as applicable
or (ii) each share of Stock shall have been exchanged for cash in a
cash-out merger transaction.
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 5.06 and 5.07.
ARTICLE VII
Miscellaneous
SECTION 7.01. Counterparts. This Deposit Agreement may be
executed in any number of counterparts, and by each of the parties
hereto on separate counterparts, each of which counterparts, when so
executed and delivered, shall be deemed an original, but all such
counterparts taken together shall constitute one and the same
instrument.
SECTION 7.02. Exclusive Benefit of Parties. This Deposit
Agreement is for the exclusive benefit of the parties hereto,
including the holders of the Receipts, and their respective
successors hereunder, and shall not be deemed to give any legal or
equitable right, remedy or claim to any other person whatsoever.
SECTION 7.03. Invalidity of Provisions. In case any one or
more of the provisions contained in this Deposit Agreement or in the
Receipts should be or become invalid, illegal or unenforceable in
any respect, the validity, legality and enforceability of the
remaining provisions contained herein or therein shall in no way be
affected, prejudiced or disturbed thereby.
SECTION 7.04. Notices. Any and all notices to be given to
the Company hereunder or under the Receipts shall be in writing and
shall be deemed to have been duly given if personally delivered or
sent by mail, or by telegram or facsimile transmission confirmed by
letter, addressed to the Company at
Ford Holdings, Inc.
The American Road
Dearborn, Michigan 48121
Attention: Secretary
Telephone No.: (313) 323-2260
Facsimile No.: (313) 337-9591
or at any other address of which the Company shall have notified the
Depositary in writing.
Any and all notices to be given to the Depositary hereunder
or under the Receipts shall be in writing and shall be deemed to
have been duly given if personally delivered or sent by mail, or by
telegram or facsimile transmission confirmed by letter, addressed to
the Depositary at the Depositary's Office, at 450 West 33rd Street,
15th Floor, New York, New York 10001, Attention: Vice President-
Administration, or at any other address of which the Depositary
shall have notified the Company in writing.
Any and all notices to be given to any record holder of a
Receipt hereunder or under the Receipts shall be in writing and
shall be deemed to have been duly given if personally delivered or
sent by mail, or by telegram or facsimile transmission confirmed by
letter, addressed to such record holder at the address of such
record holder as it appears on the books of the Depositary or, if
such holder shall have filed with the Depositary a written request
that notices intended for such holder be mailed to some other
address, at the address designated in such request.
Delivery of a notice sent by mail or by telegram or facsimile
transmission shall be deemed to be effected at the time when a duly
addressed letter containing the same (or a confirmation thereof in
the case of a telegram or facsimile transmission) is deposited,
postage prepaid, in a post office letter box. The Depositary or the
Company may, however, act upon any telegram or facsimile
transmission received by it from the other or from any holder of a
Receipt, notwithstanding that such telegram or facsimile
transmission shall not subsequently be confirmed by letter or as
aforesaid.
SECTION 7.05. Depositary's Agents. The Depositary may from
time to time appoint Depositary's Agents to act in any respect for
the Depositary for the purposes of this Deposit Agreement and may at
any time appoint additional Depositary's Agents and vary or
terminate the appointment of such Depositary's Agents. The
Depositary will notify the Company of any such action.
The Company hereby also appoints the Depositary as Registrar
and Transfer Agent in respect of the Receipts and the Depositary
hereby accepts such appointments.
SECTION 7.06. Holders of Receipts Are Parties. The holders
of Receipts from time to time shall be parties to this Deposit
Agreement and shall be bound by and be entitled to the benefit of
all of the terms and conditions hereof and of the Receipts by
acceptance of delivery thereof.
SECTION 7.07. Governing Law. This Deposit Agreement and the
Receipts and all rights hereunder and thereunder and provisions
hereof and thereof shall be governed by, and construed in accordance
with, the laws of the State of New York.
SECTION 7.08. Inspection of Deposit Agreement and
Certificate. Copies of this Deposit Agreement and the Certificate
shall be filed with the Depositary and the Depositary's Agents and
shall be open to inspection during business hours at the
Depositary's Office and the respective offices of the Depositary's
Agents, if any, by any holder of a Receipt.
SECTION 7.09. Headings. The headings of articles and
sections in this Deposit Agreement 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.
IN WITNESS WHEREOF, the Company and the Depositary 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.
<PAGE>
[SEAL] FORD HOLDINGS, INC.
Attested by
- ------------------------ By:-----------------------
Title: Assistant Treasurer
[SEAL] CHEMICAL BANK
Attested by
- ------------------------ By:----------------------
Title:
h:\nap\seriesd.fhi\deposit.agt
<PAGE>
EXHIBIT A
[FORM OF FACE OF DEPOSITARY RECEIPT]
DEPOSITARY RECEIPT FOR DEPOSITARY SHARES,
EACH REPRESENTING 1/4000 OF A SHARE OF
SERIES D CUMULATIVE PREFERRED STOCK,
PAR VALUE $1.00 PER SHARE
FORD HOLDINGS, INC.
Incorporated under the Laws of the State of Delaware
This Certificate is Transferable in New York
See Reverse for Certain Definitions
CUSIP 345277 64 4
CERTIFICATE NUMBER SHARES
Chemical Bank, a corporation duly organized and existing
under the laws of the State of New York, as Depositary (the
"Depositary"), hereby certifies that _______________ is the
registered owner of __________ Depositary Shares ("Depositary
Shares"), each Depositary Share representing one four-thousandth
(1/4000) of a share of Series D Cumulative Preferred Stock, par
value $1.00 per share (the "Stock") of Ford Holdings, Inc., a
corporation duly organized and existing under the laws of the
State of Delaware (the "Company"). Subject to the terms of a
Deposit Agreement (the "Deposit Agreement") among the Depositary,
the Company and holders of receipts for Depositary Shares
("Receipts"), each owner of a Depositary Share is entitled,
proportionately, to all the powers, preferences and rights and
the qualifications, limitations or restrictions of such powers,
preferences and/or rights of the Stock represented thereby,
including dividends, voting and liquidation rights as set forth
in the Certificate of Incorporation of the Company as amended and
supplemented by the Certificate of Designations (the "Certificate
of Designations") fixing the terms of the Stock filed with the
Secretary of State of the State of Delaware.
The Company will furnish without charge to any registered
owner of Depositary Shares who so requests, copies of the
Certificate of Incorporation of the Company, Deposit Agreement
and Certificate of Designations.
This Receipt shall not be valid or obligatory for any
purpose, nor shall the holder be entitled to any benefits under
the Deposit Agreement, unless this Receipt shall have been
executed manually, or, if a Registrar for the Receipts (other
than the Depositary) shall have been appointed, by manual or
facsimile signature by the Depositary of a duly authorized
officer thereof and, if executed by facsimile signature of the
Depositary, shall have been countersigned manually by such
Registrar by signature of a duly authorized officer thereof.
Dated:__________________ CHEMICAL BANK
Depositary and Registrar
(SEAL)
Authorized Officer
<PAGE>
DEPOSITARY SHARES
[FORM OF REVERSE OF DEPOSITARY RECEIPT]
The Company will furnish without charge to any registered
owner of Depositary Shares who so requests, copies of the
Certificate of Incorporation of the Company, Deposit Agreement
and Certificate of Designations. Any such request should be
addressed to the Secretary of Ford Holdings, Inc., The American
Road, Dearborn, MI 48121 or to the Depositary named on the face
of this Receipt.
The following abbreviations, when used in the inscription on
the face of this Receipt, shall be construed as though they were
written out in full according to applicable laws or regulations:
<TABLE>
<CAPTION>
<S> <C>
TEN COM--as tenants in common UNIF GIFT MIN ACT--______Custodian_______
TEN ENT--as tenants by the entireties (Cust) (Minor)
JT TEN --as joint tenants with right under Uniform Gifts to
of survivorship and not as Minors Act____________
tenants in common (State)
</TABLE>
Additional abbreviations may also be used
though not in the above list.
ASSIGNMENT
For value received, ____________________________ the
undersigned, hereby sells, assigns and transfers unto
______________________________________ (Please insert social
security or other identifying number of Assignee _______________)
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 said Depositary Shares 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 this Receipt in every
particular, without
alteration or enlargement
or any change whatever.
h:\nap\seriesd.fhi\formdep.rct
