SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
-----------------------
FORM 8-K
CURRENT REPORT
Pursuant to Section 13 or 15(d) of the
Securities Exchange Act of 1934
Date of Report (Date of earliest event reported): August 3, 1994
FORD HOLDINGS, INC.
(Exact name of registrant as specified in its charter)
Delaware
(State or other jurisdiction of incorporation)
0-18263 38-2890269
(Commission File Number) (IRS Employer Identification No.)
The American Road, Dearborn, Michigan 48121
(Address of principal executive offices) (Zip Code)
Registrant's telephone number, including area code: 313-322-3000
Item 5. Other Events.
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Pursuant to Registration Statement No. 33-63116, Ford Holdings,
Inc., a Delaware corporation (the "Company"), registered under the
Securities Act of 1933, as amended (the "Act"), 3,225 shares of
preferred stock and related depositary shares. The preferred stock and
depositary shares were registered on Form S-3 to be offered on a delayed
or continuous basis pursuant to Rule 415 under the Act. In connection
therewith, the Company has created a series of preferred stock
designated as its Series D Cumulative Preferred Stock, par value $1.00
per share (the "Series D Preferred Stock"), by the adoption on August 3,
1994 by a committee of the Board of Directors of the Company of the
Certificate of Designations of the Series D Preferred Stock (the
"Certificate of Designations") and the filing thereof with the Delaware
Secretary of State on August 9, 1994. The Certificate of Designations
is filed as an exhibit to this Report.
The Company entered into an underwriting agreement and a pricing
agreement each dated August 3, 1994 with Goldman, Sachs & Co., Lehman
Brothers Inc., Bear, Stearns & Co. Inc., Dean Witter Reynolds Inc., A.
G. Edwards & Sons, Inc., PaineWebber Incorporated and Smith Barney Inc.,
as representatives of the several underwriters named in Schedule I to
such pricing agreement, for the sale of 8,000,000 depositary shares (the
"Depositary Shares"), each representing 1/4,000 of a share of the Series
D Preferred Stock. The Depositary Shares are evidenced by depositary
receipts (the "Depositary Receipts") issued by Chemical Bank, as
Depositary under a Deposit Agreement (the "Deposit Agreement") dated as of
August 10, 1994 among the Company, Chemical Bank and the holders from
time to time of the Depositary Receipts. A form of the stock
certificate for the Series D Preferred Stock is incorporated by
reference as an exhibit to this Report. The Deposit Agreement
(including a form of the Depositary Receipt) is filed as an exhibit to
this Report.
<PAGE>
Item 7. Financial Statements, Pro Forma Financial Information and
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Exhibits.
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EXHIBITS
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Designation Description Method of Filing
- ----------- ----------- ----------------
Exhibit 4.1 Certificate of Designations of the Filed with
Series D Cumulative Preferred Stock this Report
of Ford Holdings, Inc.
Exhibit 4.2 Form of Stock Certificate for the Filed as Exhibit
Series D Cumulative Preferred Stock 1 to the
of Ford Holdings, Inc. Registrant's
Registration
Statement on
Form 8-A dated
August 3, 1994,
File No. 0-18263
Exhibit 4.3 Deposit Agreement dated as of Filed with
August 10, 1994 among Ford Holdings, this Report
Inc., Chemical Bank, as depositary,
and the holders from time to time of the
Depositary Receipts referred to therein
Exhibit 4.4 Form of Depositary Receipt issued Included as part
under the Deposit Agreement dated as of Exhibit 4.3
of August 10, 1994 among Ford Holdings, of this Report
Inc., Chemical Bank, as depositary, and
the holders from time to time of the
Depositary Receipts referred to therein
SIGNATURE
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Pursuant to the requirements of the Securities Exchange Act of
1934, the Registrant has duly caused this Report to be signed on its
behalf by the undersigned thereunto duly authorized on the date
indicated.
FORD HOLDINGS, INC.
Date: August 11, 1994 By: /s/ L. J. Ghilardi
-----------------------
L. J. Ghilardi
Assistant Secretary
<PAGE>
EXHIBIT INDEX
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Designation Description Page
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Exhibit 4.1 Certificate of Designations of the
Series D Cumulative Preferred Stock
of Ford Holdings, Inc.
Exhibit 4.2 Form of Stock Certificate for the
Series D Cumulative Preferred Stock
of Ford Holdings, Inc.
Exhibit 4.3 Deposit Agreement dated as of August
10, 1994 among Ford Holdings, Inc.,
Chemical Bank, as depositary, and
the holders from time to time of the
Depositary Receipts referred to therein
Exhibit 4.4 Form of Depositary Receipt issued
under the Deposit Agreement dated as of
August 10, 1994 among Ford Holdings,
Inc., Chemical Bank, as depositary, and
the holders from time to time of the
Depositary Receipts referred to therein
h:\nap\seriesd.fhi\frm8-k.001
Exhibit 4.1
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 9th day of August, 1994.
FORD HOLDINGS, INC.
By /s/ M. S. Macdonald
------------------------
M. S. Macdonald
Vice President-Treasurer
(CORPORATE SEAL)
ATTEST:
By /s/ L. J. Ghilardi
-------------------
L. J. Ghilardi
Assistant Secretary
H:\lg\fhictdsg.d
Exhibit 4.3
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
h:\nap\seriesd.fhi\deposagt.cov
<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 Delivery of
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
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.
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.
[SEAL] FORD HOLDINGS, INC.
Attested by
/s/ L. J. Ghilardi By: /s/ E. S. Acton
----------------------- --------------------
Title: Assistant Treasurer
[SEAL] CHEMICAL BANK
Attested by
/s/ B. Goldstone By: /s/ S. E. Siekierski
------------------------ ----------------------
Title: Vice President
h:\nap\seriesd.fhi\deposit.agt
