<PAGE> 1
AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON JUNE 12, 1998.
REGISTRATION NO. 333-53967
================================================================================
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
------------------------
AMENDMENT NO. 1
TO
FORM S-3
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
------------------------
ARM FINANCIAL GROUP, INC.
(EXACT NAME OF REGISTRANT AS SPECIFIED IN ITS CHARTER)
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DELAWARE 63 61-1244251
(State or other jurisdiction (Primary standard industrial (I.R.S. Employer
of incorporation or organization) Classification code number) Identification No.)
</TABLE>
------------------------
ARM FINANCIAL GROUP, INC.
515 WEST MARKET STREET
LOUISVILLE, KENTUCKY 40202
(502) 582-7900
(Address, including zip code, and telephone number, including area code, of
Registrant's principal executive offices)
------------------------
ROBERT H. SCOTT
ARM FINANCIAL GROUP, INC.
515 WEST MARKET STREET
LOUISVILLE, KENTUCKY 40202
(502) 582-7900
(Name, address, including zip code, and telephone number, including area code,
of agent for service)
------------------------
Copies to:
FAITH D. GROSSNICKLE, ESQ.
SHEARMAN & STERLING
599 LEXINGTON AVENUE
NEW YORK, NEW YORK 10022
(212) 848-4000
------------------------
APPROXIMATE DATE OF COMMENCEMENT OF PROPOSED SALE OF THE SECURITIES TO THE
PUBLIC: From time to time after the effective date of this Registration
Statement.
If the only securities being registered on this Form are being offered
pursuant to dividend or interest reinvestment plans, please check the following
box. [ ]
If any of the securities being registered on this Form are to be offered on
a delayed or continuous basis pursuant to Rule 415 under the Securities Act of
1933, other than securities offered only in connection with dividend or interest
reinvestment plans, check the following box. [X]
If this Form is filed to register additional securities for an offering
pursuant to Rule 462(b) under the Securities Act of 1933, please check the
following box and list the Securities Act registration statement number of the
earlier effective registration statement for the same offering. [ ]
- ------------------
If this Form is a post-effective amendment filed pursuant to Rule 462(c)
under the Securities Act of 1933, check the following box and list the
Securities Act registration statement number of the earlier effective
registration statement for the same offering. [ ]
- ------------------
If delivery of the prospectus is expected to be made pursuant to Rule 434,
please check the following box. [ ]
------------------------
THE REGISTRANT HEREBY AMENDS THIS REGISTRATION STATEMENT ON SUCH DATE OR
DATES AS MAY BE NECESSARY TO DELAY ITS EFFECTIVE DATE UNTIL THE REGISTRANT SHALL
FILE A FURTHER AMENDMENT WHICH SPECIFICALLY STATES THAT THIS REGISTRATION
STATEMENT SHALL THEREAFTER BECOME EFFECTIVE IN ACCORDANCE WITH SECTION 8(a) OF
THE SECURITIES ACT OF 1933 OR UNTIL THE REGISTRATION STATEMENT SHALL BECOME
EFFECTIVE ON SUCH DATE AS THE COMMISSION, ACTING PURSUANT TO SAID SECTION 8(a),
MAY DETERMINE.
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PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
ITEM 14. OTHER EXPENSES OF ISSUANCE AND DISTRIBUTION
The following fees and expenses shall be borne by the Company in connection
with this offering. All fees and expenses other than the SEC and listing fees
are estimated.
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SEC Registration Fee........................................ $22,125
NASD Filing Fee............................................. 8,000
Listing Fee................................................. 29,500
Rating Agency Fees.......................................... 75,000
Printing and Engraving Expenses............................. 75,000
Legal Fees and Expenses..................................... 100,000
Accountants' Fees and Expenses.............................. 50,000
Blue Sky Qualification Fees and Expenses.................... 10,000
Preferred Stock Depositary's Fees and Expenses.............. 5,000
Miscellaneous............................................... 50,375
-------
TOTAL............................................. 425,000
=======
</TABLE>
ITEM 15. INDEMNIFICATION OF DIRECTORS AND OFFICERS
Section 145 of the Delaware General Corporation Law provides, in summary,
that directors and officers of Delaware corporations are entitled, under certain
circumstances, to be indemnified against all expenses and liabilities (including
attorneys' fees) incurred by them as a result of suits brought against them in
their capacity as a director or officer, if they acted in good faith and in a
manner they reasonably believed to be in or not opposed to the best interests of
the corporation, and, with respect to any criminal action or proceeding, if they
had no reasonable cause to believe their conduct was unlawful; provided that no
indemnification may be made against expenses in respect of any claim, issue or
matter as to which they shall have been adjudged to be liable to the
corporation, unless and only to the extent that the court in which such action
or suit was brought shall determine upon application that, despite the
adjudication of liability but in view of all the circumstances of the case, they
are fairly and reasonably entitled to indemnity for such expenses which the
court shall deem proper. Any such indemnification may be made by the corporation
only as authorized in each specific case upon a determination by the
stockholders or disinterested directors that indemnification is proper because
the indemnitee has met the applicable standard of conduct.
The Restated Certificate of Incorporation of the Registrant (the
"Certificate of Incorporation") provides that no director of the Registrant
shall be personally liable to the Registrant or its stockholders for monetary
damages for any breach of fiduciary duty as a director, except for liability:
(i) for any breach of the director's duty of loyalty to the Registrant or its
stockholders; (ii) for acts or omissions not in good faith or which involve
intentional misconduct or a knowing violation of law; (iii) in respect of
certain unlawful dividend payments or stock redemptions or purchases or (iv) for
any transaction from which the director derived an improper personal benefit.
The Certificate of Incorporation and the By-laws of the Registrant provide
for indemnification of its directors and officers to the fullest extent
permitted by Delaware law, as the same may be amended from time to time. In
addition, Morgan Stanley Dean Witter & Co. ("MSDW") indemnifies those directors
of the Registrant who are also officers of Morgan Stanley & Co. Incorporated.
The Underwriting Agreement (Exhibit 1.1 hereto) contains provisions for
certain indemnification rights to the directors and officers of the Registrant.
In addition, the Registrant and MSDW maintain directors' and officers'
liability insurance for their respective directors and officers.
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ITEM 16. EXHIBITS
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NUMBER
ASSIGNED IN
REGULATION S-K,
ITEM 601 DESCRIPTION OF EXHIBIT
- --------------- ----------------------
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1.1* Form of underwriting agreement.
2.1 Asset Purchase Agreement, dated as of January 5, 1995, among
Kleinwort Benson Investment Management Holdings Ltd.,
Kleinwort Benson Investment Management Americas Inc., ARM
Financial Group, Inc., and ARM Capital Advisors, Inc.+
2.2 Stock and Asset Purchase Agreement by and between SBM
Company and ARM Financial Group, Inc. dated as of February
16, 1995.+
2.3 Amended and Restated Stock and Asset Purchase Agreement,
dated as of April 7, 1995, by and between SBM Company and
ARM Financial Group, Inc.++, amending the Stock and Asset
Purchase Agreement, dated as of February 16, 1995.+
2.4 Subscription Agreement dated as of June 12, 1995, among ARM
Financial Group, Inc. and New ARM, LLC, Dudley J. Godfrey,
Jr. and Edward Powers.+++
4.1 Second Amended and Restated Stockholders Agreement dated as
of June 24, 1997, among ARM Financial Group, Inc., The
Morgan Stanley Leveraged Equity Fund II, L.P., John Franco,
Martin H. Ruby, Oldarm L.P., Morgan Stanley Capital Partners
III, L.P., Morgan Stanley Capital Investors, L.P., MSCP III
892 Investors, L.P. and New ARM, LLC.++++
4.2** Form of Certificate of Designation of Offered Preferred
Stock.
4.3** Form of Certificate of Offered Preferred Stock.
4.4** Form of Deposit Agreement.
5.1** Opinion of Shearman & Sterling.
12.1* Computation of Ratio of Earnings to Combined Fixed Charges
and Preferred Stock Dividends.
23.1** Consent of Shearman & Sterling (included in its opinion
delivered under Exhibit No. 5.1)
23.2* Consent of Ernst & Young LLP.
24.1* Powers of Attorney.
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* Previously filed.
** Filed herewith.
+ Incorporated by reference to the Form 10-K filed by the
Registrant on March 30, 1995.
++ Incorporated by reference to the Form 10-Q filed by the
Registrant on May 15, 1995.
+++ Incorporated by reference to the Form 10-K filed by the
Registrant on March 29, 1996.
++++ Incorporated by reference to Amendment No. 3 to the Form S-1
Registration Statement filed by the Registrant on May 23,
1997.
</TABLE>
ITEM 17. UNDERTAKINGS
(a) The undersigned Registrant hereby undertakes:
(1) to file, during any period in which offers or sales of the
securities are being made, a post-effective amendment to this Registration
Statement:
(i) To include any prospectus required by section 10(a)(3) of the
Securities Act of 1933.
(ii) To reflect in the prospectus any facts or events arising after
the effective date of the Registration Statement (or the most recent
post-effective amendment thereof) which, individually or in the
aggregate, represent a fundamental change in the information set forth
in the Registration Statement. Notwithstanding the foregoing, any
increase or decrease in volume of securities offered (if
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<PAGE> 4
the total dollar value of securities offered would not exceed that which
was registered) and any deviation from the low or high end of the
estimated maximum offering range may be reflected in the form of
prospectus filed with the Commission pursuant to Rule 424(b) if, in the
aggregate, the changes in volume and price represent no more than a 20%
change in the maximum aggregate offering price set forth in the
"Calculation of Registration Fee" table in the effective Registration
Statement.
(iii) To include any material information with respect to the plan
of distribution not previously disclosed in the Registration Statement
or any material change to such information set forth in the Registration
Statement.
Provided, however, that paragraphs (a)(1)(i) and (a)(1)(ii) of this section
do not apply if the Registration Statement is on Form S-3, Form S-8 or Form
F-3, and the information required to be included in a post-effective
amendment by those paragraphs is contained in periodic reports filed with
or furnished to the Commission by the Registrant pursuant to section 13 or
section 15(d) of the Securities Exchange Act of 1934 that are incorporated
by reference in the Registration Statement.
(2) That, for the purpose of determining any liability under the
Securities Act of 1933, each such post-effective amendment shall be deemed
to be a new Registration Statement relating to the securities offered
therein, and the offering of such securities at that time shall be deemed
to be the initial bona fide offering thereof.
(3) To remove from registration by means of a post-effective amendment
any of the securities being registered which remain unsold at the
termination of the offering.
(b) The undersigned Registrant hereby undertakes that, for purposes of
determining any liability under the Securities Act of 1933, each filing of the
Registrant's annual report pursuant to section 13(a) or section 15(d) of the
Securities Exchange Act of 1934 (and, where applicable, each filing of an
employee benefit plan's annual report pursuant to section 15(d) of the
Securities Exchange Act of 1934) that is incorporated by reference in the
Registration Statement shall be deemed to be a new Registration Statement
relating to the securities offered therein, and the offering of such securities
at that time shall be deemed to be the initial bona fide offering thereof.
(c) Insofar as indemnification for liabilities arising under the Securities
Act of 1933 may be permitted to directors, officers and controlling persons of
the Registrant pursuant to the foregoing provisions, or otherwise, the
Registrant has been advised that in the opinion of the Securities and Exchange
Commission, such indemnification is against public policy as expressed in the
Act and is, therefore, unenforceable. In the event that a claim for
indemnification against such liabilities (other than the payment by the
Registrant for expenses incurred or paid by a director, officer or controlling
person of the Registrant in the successful defense of any action, suit or
proceeding) is asserted by such director, officer or controlling person in
connection with the securities being registered, the Registrant will, unless in
the opinion of its counsel the matter has been settled by controlling precedent,
submit to a court of appropriate jurisdiction the question whether such
indemnification by it is against public policy as expressed in the Act and will
be governed by the final adjudication of such issue.
(d) The undersigned Registrant hereby undertakes that:
(1) For purposes of determining any liability under the Securities Act
of 1933, the information omitted from the form of prospectus filed as part
of this Registration Statement in reliance upon Rule 430A and contained in
the form of prospectus filed by the Registrant pursuant to Rule 424(b)(1)
or (4) or 497(h) under the Act shall be deemed to be part of this
Registration Statement as of the time it was declared effective.
(2) For the purpose of determining any liability under the Securities
Act of 1933, each post-effective amendment that contains a form of
prospectus shall be deemed to be a new Registration Statement relating to
the securities offered therein, and the offering of such securities at that
time shall be deemed to be the initial bona fide offering thereof.
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SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the Registrant
certifies that it has reasonable grounds to believe that it meets all of the
requirements for filing on Form S-3 and has duly caused this amendment to the
Registration Statement on Form S-3 to be signed on its behalf by the
undersigned, thereunto duly authorized, in the City of Louisville, State of
Kentucky, on June 12, 1998.
ARM FINANCIAL GROUP, INC.
By: /s/ MARTIN H. RUBY
------------------------------------
Name: Martin H. Ruby
Title: Chairman of the Board of
Directors and Chief Executive
Officer (Principal Executive
Officer)
Pursuant to the requirements of the Securities Act of 1933, this amendment
to the Registration Statement on Form S-3 has been signed below by the following
persons in the capacities and on the date indicated.
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SIGNATURE TITLE DATE
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/s/ MARTIN H. RUBY Chairman of the Board of June 12, 1998
- ----------------------------------------------------- Directors and Chief
Martin H. Ruby Executive Officer (Principal
Executive Officer) and
Director
* President -- Retail Business June 12, 1998
- ----------------------------------------------------- Division and Director
John R. Lindholm
* Executive Vice June 12, 1998
- ----------------------------------------------------- President -- Chief Financial
Edward L. Zeman Officer (Principal Financial
Officer)
* Controller (Principal June 12, 1998
- ----------------------------------------------------- Accounting Officer)
Barry G. Ward
* Director June 12, 1998
- -----------------------------------------------------
Dudley J. Godfrey, Jr.
* Director June 12, 1998
- -----------------------------------------------------
Edward D. Powers
* Director June 12, 1998
- -----------------------------------------------------
Colin F. Raymond
* Director June 12, 1998
- -----------------------------------------------------
Irwin T. Vanderhoof
*By Martin H. Ruby, attorney-in-fact.
</TABLE>
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NUMBER
ASSIGNED IN SEQUENTIALLY
REGULATION S-K, NUMBERED
ITEM 601 DESCRIPTION OF EXHIBIT PAGE
- --------------- ---------------------- ------------
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1.1* Form of underwriting agreement.
2.1 Asset Purchase Agreement, dated as of January 5, 1995, among
Kleinwort Benson Investment Management Holdings Ltd.,
Kleinwort Benson Investment Management Americas Inc., ARM
Financial Group, Inc., and ARM Capital Advisors, Inc.+
2.2 Stock and Asset Purchase Agreement by and between SBM
Company and ARM Financial Group, Inc. dated as of February
16, 1995.+
2.3 Amended and Restated Stock and Asset Purchase Agreement,
dated as of April 7, 1995, by and between SBM Company and
ARM Financial Group, Inc.++, amending the Stock and Asset
Purchase Agreement, dated as of February 16, 1995.+
2.4 Subscription Agreement dated as of June 12, 1995, among ARM
Financial Group, Inc. and New ARM, LLC, Dudley J. Godfrey,
Jr. and Edward Powers.+++
4.1 Second Amended and Restated Stockholders Agreement dated as
of June 24, 1997, among ARM Financial Group, Inc., The
Morgan Stanley Leveraged Equity Fund II, L.P., John Franco,
Martin H. Ruby, Oldarm L.P., Morgan Stanley Capital Partners
III, L.P., Morgan Stanley Capital Investors, L.P., MSCP III
892 Investors, L.P. and New ARM, LLC.++++
4.2** Form of Certificate of Designation of Offered Preferred
Stock.
4.3** Form of Certificate of Offered Preferred Stock.
4.4** Form of Deposit Agreement.
5.1** Opinion of Shearman & Sterling.
12.1* Computation of Ratio of Earnings to Combined Fixed Charges
and Preferred Stock Dividends.
23.1** Consent of Shearman & Sterling (included in its opinion
delivered under Exhibit No. 5.1)
23.2* Consent of Ernst & Young LLP.
24.1* Powers of Attorney.
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* Previously filed.
** Filed herewith.
+ Incorporated by reference to the Form 10-K filed by the
Registrant on March 30, 1995.
++ Incorporated by reference to the Form 10-Q filed by the
Registrant on May 15, 1995.
+++ Incorporated by reference to the Form 10-K filed by the
Registrant on March 29, 1996.
++++ Incorporated by reference to Amendment No. 3 to the Form S-1
Registration Statement filed by the Registrant on May 23,
1997.
</TABLE>
<PAGE> 1
Exhibit 4.2
CERTIFICATE OF DESIGNATION OF PREFERENCES AND RIGHTS
OF THE
_____ FIXED/ADJUSTABLE _____ PREFERRED STOCK
($200.00 Stated Value)
OF
ARM FINANCIAL GROUP, INC.
-------------------------------
Pursuant to Section 151 of the
General Corporation Law of the State of Delaware
-------------------------------
The undersigned DOES HEREBY CERTIFY that the following resolution
was duly adopted by the Board of Directors (the "Board") of ARM Financial Group,
Inc., a Delaware corporation (hereinafter called the "Corporation"), by
unanimous written consent in lieu of a meeting dated as of ________ __, 1998,
with certain of the designations, preferences and rights having been fixed by
the Pricing Committee of the Board (the "Committee") at a meeting on ________
__, 1998, pursuant to authority delegated to it by the Board pursuant to the
provisions of Section 141(c)(1) of the General Corporation Law of the State of
Delaware:
RESOLVED that, pursuant to authority expressly granted to and vested
in the Committee by the Board and in the Board by provisions of the
Restated Certificate of Incorporation of the Corporation, as amended (the
"Certificate of Incorporation"), the issuance of a series of Preferred
Stock, par value $.01 per share (the "Preferred Stock"), which shall
consist of ________ of the 10,000,000 shares of Preferred Stock which the
Corporation now has authority to issue, is authorized, and the Board and
the Committee, pursuant to the authority expressly granted to the
Committee by the Board pursuant to the provisions of Section 141(c)(1) of
the General Corporation Law of the State of Delaware and the Certificate
of Incorporation, fix the powers, designations, preferences and relative,
participating, optional or other special rights, and the qualifications,
limitations or restrictions thereof, of the shares of such series (in
addition to the powers, designations, preferences and relative
participating, optional or other special rights, and the qualifications,
limitations or restrictions thereof, set forth in the Certificate of
Incorporation which may be applicable to the Preferred Stock) as follows:
<PAGE> 2
2
1. Designation and Amount; Fractional Shares. The designation
for such series of the Preferred Stock authorized by this resolution
shall be the ______ Fixed/Adjustable ______ Preferred Stock, par
value $.01 per share, with a stated value of $200.00 per share (the
"Fixed/Adjustable Preferred Stock"). The stated value per share of
Fixed/Adjustable Preferred Stock shall not for any purpose be
considered to be a determination by the Board or the Committee with
respect to the capital and surplus of the Corporation. The number of
shares of Fixed/Adjustable Preferred Stock shall be ________. The
Fixed/Adjustable Preferred Stock is issuable in whole shares only.
2. Dividends. Holders of shares of Fixed/Adjustable Preferred
Stock will be entitled to receive cash dividends, when, as and if
declared by the Board or the Committee out of assets of the
Corporation legally available for payment. Dividends on the
Fixed/Adjustable Preferred Stock, calculated as a percentage of the
stated value, will be payable quarterly on ________ __, ________ __,
________ __ and ________ __ of each year (each a "dividend payment
date"), commencing ________ __, 1998. From the date of issuance of
the Fixed/Adjustable Rate Preferred Stock and continuing through
________ __, 200_, the rate of such dividend will be ___% per annum.
After ________ __, 200_, dividends on the Fixed/Adjustable Preferred
Stock will be payable quarterly, when, as and if declared, on each
dividend payment date at the Applicable Rate (as defined in
paragraph 3) from time to time in effect. The Applicable Rate per
annum for any dividend period beginning on or after ________ __,
200_ will be equal to ___% plus the highest of the Treasury Bill
Rate, the Ten-Year Constant Maturity Rate and the Thirty-Year
Constant Maturity Rate (each as defined herein under "Adjustable
Rate Dividends"), as determined in advance of such dividend period.
The Applicable Rate per annum for any dividend period beginning on
or after ________ __, 200_, will not be less than ___% nor greater
than ___% (without taking into account any adjustments as described
below under "Changes in the Dividends Received Percentage").
Adjustable Rate Dividends. Except as provided below in
this paragraph, the "Applicable Rate" per annum for any dividend
period beginning on or after ________ __, 200_ will be equal to ___%
plus the Effective Rate (as defined herein), but not less than ___%
nor greater than ___% (without taking into account any adjustments
as described below under "Changes in the Dividends Received
Percentage"). The "Effective Rate" for any dividend period beginning
on or after ________ __, 200_ will be equal to the highest of the
Treasury Bill Rate, the Ten-Year Constant Maturity Rate and the
Thirty-Year Constant Maturity Rate (each as defined herein) for such
dividend period. If the Corporation determines in good faith that
for any reason: (i) any one of the Treasury Bill Rate, the Ten-Year
Constant Maturity Rate or the Thirty-Year
<PAGE> 3
3
Constant Maturity Rate cannot be determined for any dividend period
beginning on or after ________ __, 200_, then the Effective Rate for
such dividend period will be equal to the higher of whichever two of
such rates can be so determined; (ii) only one of the Treasury Bill
Rate, the Ten-Year Constant Maturity Rate or the Thirty-Year
Constant Maturity Rate can be determined for any dividend period
beginning on or after ________ __, 200_, then the Effective Rate for
such dividend period will be equal to whichever such rate can be so
determined; or (iii) none of the Treasury Bill Rate, the Ten-Year
Constant Maturity Rate or the Thirty-Year Constant Maturity Rate can
be determined for any dividend period beginning on or after ________
__, 200_, then the Effective Rate for the preceding dividend period
will be continued for such dividend period.
The "Treasury Bill Rate" for each dividend period will be the
arithmetic average of the two most recent weekly per annum market
discount rates (or the one weekly per annum market discount rate, if
only one such rate is published during the relevant Calendar Period
(as defined herein)) for three-month U.S. Treasury bills, as
published weekly by the Federal Reserve Board (as defined herein)
during the Calendar Period immediately preceding the tenth calendar
day preceding the dividend period for which the dividend rate on the
Fixed/Adjustable Preferred Stock is being determined.
The "Ten-Year Constant Maturity Rate" for each dividend period
will be the arithmetic average of the two most recent weekly per
annum Ten-Year Average Yields (as defined herein) (or the one weekly
per annum Ten-Year Average Yield, if only one such yield is
published during the relevant Calendar Period), as published weekly
by the Federal Reserve Board during the Calendar Period immediately
preceding the tenth calendar day preceding the dividend period for
which the dividend rate on the Fixed/Adjustable Preferred Stock is
being determined.
The "Thirty-Year Constant Maturity Rate" for each dividend
period will be the arithmetic average of the two most recent weekly
per annum Thirty-Year Average Yields (as defined herein) (or the one
weekly per annum Thirty-Year Average Yield, if only one such yield
is published during the relevant Calendar Period), as published
weekly by the Federal Reserve Board during the Calendar Period
immediately preceding the tenth calendar day preceding the dividend
period for which the dividend rate on the Fixed/Adjustable Preferred
Stock is being determined.
If the Federal Reserve Board does not publish a weekly per
annum market discount rate, Ten-Year Average Yield or Thirty-Year
Average Yield during any applicable Calendar Period, then the
Treasury Bill Rate, Ten-Year Constant Maturity Rate or Thirty-Year
Constant Maturity Rate, as the case may
<PAGE> 4
4
be, for such dividend period will be the arithmetic average of the
two most recent weekly per annum market discount rates for
three-month U.S. Treasury bills, Ten-Year Average Yields or
Thirty-Year Average Yields, as the case may be (or the one weekly
per annum rate, if only one such rate is published during the
relevant Calendar Period), as published weekly during such Calendar
Period by any Federal Reserve Bank or by any U.S. Government
department or agency selected by the Corporation. If any such rate
is not published by the Federal Reserve Board or by any Federal
Reserve Bank or by any U.S. Government department or agency during
such Calendar Period, then the Treasury Bill Rate, Ten-Year Constant
Maturity Rate or Thirty-Year Constant Maturity Rate for such
dividend period will be the arithmetic average of the two most
recent weekly per annum (i) in the case of the Treasury Bill Rate,
market discount rates (or the one weekly per annum market discount
rate, if only one such rate is published during the relevant
Calendar Period) for all of the U.S. Treasury bills then having
remaining maturities of not less than 80 nor more than 100 days, and
(ii) in the case of the Ten-Year Constant Maturity Rate, the average
yields to maturity (or the one weekly per annum average yield to
maturity, if only one such yield is published during the relevant
Calendar Period) for all of the actively traded marketable U.S.
Treasury fixed interest rate securities (other than Special
Securities (as defined herein)) then having remaining maturities of
not less than eight nor more than twelve years, and (iii) in the
case of the Thirty-Year Constant Maturity Rate, the average yields
to maturity (or the one weekly per annum average yield to maturity,
if only one such yield is published during the relevant Calendar
Period) for all of the actively traded marketable U.S. Treasury
fixed interest rate securities (other than Special Securities) then
having remaining maturities of not less than twenty-eight nor more
than thirty years, in each case as published during such Calendar
Period by the Federal Reserve Board or, if the Federal Reserve Board
does not publish such rates, by any Federal Reserve Bank or by any
U.S. Government department or agency selected by the Corporation. If
the Corporation determines in good faith that for any reason (i) no
such U.S. Treasury bill rates are published as provided above during
such Calendar Period, or (ii) the Corporation cannot determine the
Treasury Bill Rate for any dividend period, then the Treasury Bill
Rate for such dividend period will be the arithmetic average of the
per annum market discount rates based upon the closing bids during
such Calendar Period for each of the issues of marketable
non-interest-bearing U.S. Treasury securities with a remaining
maturity of not less than 80 nor more than 100 days from the date of
each such quotation, as chosen and quoted daily for each business
day in New York City (or less frequently if daily quotations are not
generally available) to the Corporation by at least three recognized
dealers in U.S. Government securities selected by the Corporation.
If the Corporation determines in good faith that for any reason the
Corporation cannot determine the Ten-Year Constant Maturity Rate or
Thirty-Year Constant Maturity Rate for any dividend
<PAGE> 5
5
period as provided above, then the applicable rate for such dividend
period will be the arithmetic average of the per annum average
yields to maturity based upon the closing bids during such Calendar
Period for each of the issues of actively traded marketable U.S.
Treasury fixed interest rate securities (other than Special
Securities) with a final maturity date (i) in the case of the
Ten-Year Constant Maturity Rate, not less than eight nor more than
twelve years from the date of each such quotation, and (ii) in the
case of the Thirty-Year Constant Maturity Rate, not less than
twenty-eight nor more than thirty years from the date of each such
quotation, in each case as chosen and quoted daily for each business
day in New York City (or less frequently if daily quotations are not
generally available) to the Corporation by at least three recognized
dealers in the United States.
The Treasury Bill Rate, the Ten-Year Constant Maturity Rate
and the Thirty-Year Constant Maturity Rate will each be rounded to
the nearest five hundredths of a percent, with .025% being rounded
upward.
The Applicable Rate with respect to each dividend period
beginning on or after ________ __, 200_ will be calculated as
promptly as practicable by the Corporation according to the
appropriate method described above. The Corporation will cause
notice of each Applicable Rate to be given to the holders of
Fixed/Adjustable Preferred Stock when payment is made of the
dividend for the immediately preceding dividend period.
As used above, the term "Calendar Period" means a period of
fourteen calendar days; the term "Federal Reserve Board" means the
Board of Governors of the Federal Reserve System; the term "Special
Securities" means securities which can, at the option of the holder,
be surrendered at face value in payment of any Federal estate tax or
which provide tax benefits to the holder and are priced to reflect
such tax benefits or which were originally issued at a deep or
substantial discount; the term "Ten-Year Average Yield" means the
average yield to maturity for actively traded marketable U.S.
Treasury fixed interest rate securities (adjusted to constant
maturities of ten years); and the term "Thirty-Year Average Yield"
means the average yield to maturity for actively traded marketable
U.S. Treasury fixed interest rate securities (adjusted to constant
maturities of thirty years).
Dividends on shares of the Fixed/Adjustable Preferred Stock
will be cumulative from the date of initial issuance of such shares
of Fixed/Adjustable Preferred Stock. Dividends will be payable, in
arrears, to holders of record as they appear on the stock books of
the Corporation on such record dates, not more than 60 days nor less
than 10 days preceding the payment dates thereof, as shall be fixed
by the Board or the Committee. The amount of dividends payable
<PAGE> 6
6
for the initial dividend period or any period shorter than a full
dividend period shall be calculated on the basis of a 360-day year
of twelve 30-day months. No dividends may be declared or paid or set
apart for payment on any Parity Preferred Stock (as defined in
paragraph 9(b) herein) with regard to the payment of dividends
unless there shall also be or have been declared and paid or set
apart for payment on the Fixed/Adjustable Preferred Stock, like
dividends for all dividend payment periods of the Fixed/Adjustable
Preferred Stock ending on or before the dividend payment date of
such Parity Preferred Stock, ratably in proportion to the respective
amounts of dividends (x) accumulated and unpaid or payable on such
Parity Preferred Stock, on the one hand, and (y) accumulated and
unpaid through the dividend payment period or periods of the
Fixed/Adjustable Preferred Stock next preceding such dividend
payment date, on the other hand.
Except as set forth in the preceding sentence, unless full
cumulative dividends on the Fixed/Adjustable Preferred Stock have
been paid, no dividends (other than in Common Stock of the
Corporation) may be paid or declared and set aside for payment or
other distribution made upon the Common Stock or on any other stock
of the Corporation ranking junior to or on a parity with the
Fixed/Adjustable Preferred Stock as to dividends, nor may any Common
Stock or any other stock of the Corporation ranking junior to or on
a parity with the Fixed/Adjustable Preferred Stock as to dividends
be redeemed, purchased or otherwise acquired for any consideration
(or any payment be made to or available for a sinking fund for the
redemption of any shares of such stock; provided, however, that any
moneys theretofore deposited in any sinking fund with respect to any
preferred stock of the Corporation in compliance with the provisions
of such sinking fund may thereafter be applied to the purchase or
redemption of such preferred stock in accordance with the terms of
such sinking fund, regardless of whether at the time of such
application full cumulative dividends upon shares of the
Fixed/Adjustable Preferred Stock outstanding to the last dividend
payment date shall have been paid or declared and set apart for
payment) by the Corporation; provided that any such junior or parity
Preferred Stock or Common Stock may be converted into or exchanged
for stock of the Corporation ranking junior to the Fixed/Adjustable
Preferred Stock as to dividends.
3. Liquidation Preference. The shares of Fixed/Adjustable
Preferred Stock shall rank, as to liquidation, dissolution or
winding up of the Corporation, prior to the shares of Common Stock
and any other class of stock of the Corporation ranking junior to
the Fixed/Adjustable Preferred Stock as to rights upon liquidation,
dissolution or winding up of the Corporation, so that in the event
of any liquidation, dissolution or winding up of the Corporation,
whether voluntary or involuntary, the holders of the
Fixed/Adjustable Preferred
<PAGE> 7
7
Stock shall be entitled to receive out of the assets of the
Corporation available for distribution to its stockholders, whether
from capital, surplus or earnings, before any distribution is made
to holders of shares of Common Stock or any other such junior stock,
an amount equal to $200.00 per share (the "Liquidation Preference"
of a share of Fixed/Adjustable Preferred Stock) plus an amount equal
to all dividends (whether or not earned or declared) accrued and
accumulated and unpaid on the shares of Fixed/Adjustable Preferred
Stock to the date of final distribution. The holders of the
Fixed/Adjustable Preferred Stock will not be entitled to receive the
Liquidation Preference until the liquidation preference of any other
class of stock of the Corporation ranking senior to the
Fixed/Adjustable Preferred Stock as to rights upon liquidation,
dissolution or winding up shall have been paid (or a sum set aside
therefor sufficient to provide for payment) in full. After payment
of the full amount of the Liquidation Preference and such dividends,
the holders of shares of Fixed/Adjustable Preferred Stock will not
be entitled to any further participation in any distribution of
assets by the Corporation. If, upon any liquidation, dissolution or
winding up of the Corporation, the assets of the Corporation, or
proceeds thereof, distributable among the holders of shares of
Parity Preferred Stock shall be insufficient to pay in full the
preferential amount aforesaid, then such assets, or the proceeds
thereof, shall be distributable among such holders ratably in
accordance with the respective amounts which would be payable on
such shares if all amounts payable thereon were paid in full. For
the purposes hereof, neither a consolidation or merger of the
Corporation with or into any other corporation, nor a merger of any
other corporation with or into the Corporation, nor a sale or
transfer of all or any part of the Corporation's assets for cash or
securities shall be considered a liquidation, dissolution or winding
up of the Corporation.
4. Conversion. The Fixed/Adjustable Preferred Stock is not
convertible into shares of any other class or series of stock of the
Corporation.
5. Voting Rights. The holders of shares of Fixed/Adjustable
Preferred Stock shall have no voting rights whatsoever, except for
any voting rights to which they may be entitled under the laws of
the State of Delaware, and except as follows:
(a) Whenever, at any time or times, dividends payable on
the shares of Fixed/Adjustable Preferred Stock or on any
Parity Preferred Stock shall be in arrears for an aggregate
number of days equal to six calendar quarters or more, whether
or not consecutive, the holders of the outstanding shares of
Fixed/Adjustable Preferred Stock shall have the right, with
holders of shares of any one or more other class or series of
stock upon which like voting rights have been conferred and
are
<PAGE> 8
8
exercisable (voting together as a class), to elect two of the
authorized number of members of the Board at the Corporation's
next annual meeting of stockholders and at each subsequent
annual meeting of stockholders until such arrearages have been
paid or set apart for payment, at which time such right shall
terminate, except as herein or by law expressly provided,
subject to revesting in the event of each and every subsequent
default of the character above mentioned. Upon any termination
of the right of the holders of shares of Fixed/Adjustable
Preferred Stock as a class to vote for directors as herein
provided, the term of office of all directors then in office
elected by the holders of shares of Fixed/Adjustable Preferred
Stock shall terminate immediately.
Any director who shall have been so elected pursuant to this
paragraph may be removed at any time, either with or without
cause. Any vacancy thereby created may be filled only by the
affirmative vote of the holders of shares of Fixed/Adjustable
Preferred Stock voting separately as a class (together with
the holders of shares of any other class or series of stock
upon which like voting rights have been conferred and are
exercisable). If the office of any director elected by the
holders of shares of Fixed/Adjustable Preferred Stock voting
as a class becomes vacant for any reason other than removal
from office as aforesaid, the remaining director elected
pursuant to this paragraph may choose a successor who shall
hold office for the unexpired term in respect of which such
vacancy occurred. At elections for such directors, each holder
of shares of Fixed/Adjustable Preferred Stock shall be
entitled to one vote for each share held (the holders of
shares of any other class or series of preferred stock having
like voting rights being entitled to such number of votes, if
any, for each share of such stock held as may be granted to
them).
(b) So long as any shares of Fixed/Adjustable Preferred
Stock remain outstanding, the consent of the holders of at
least two-thirds of the shares of Fixed/Adjustable Preferred
Stock outstanding at the time and all other classes or series
of stock upon which like voting rights have been conferred and
are exercisable (voting together as a class) given in person
or by proxy, either in writing or at any meeting called for
the purpose, shall be necessary to permit, effect or validate
any one or more of the following:
(i) the issuance or increase of the authorized
amount of any class or series of shares ranking prior
(as that term is defined in paragraph 9(a) hereof) to
the shares of the Fixed/Adjustable Preferred Stock; or
<PAGE> 9
9
(ii) the amendment, alteration or repeal, whether
by merger, consolidation or otherwise, of any of the
provisions of the Certificate of Incorporation
(including this resolution or any provision hereof),
that would materially and adversely affect any power,
preference, or special right of the shares of
Fixed/Adjustable Preferred Stock or of the holders
thereof;
provided, however, that any increase in the amount of
authorized Common Stock or authorized Preferred Stock or any
increase or decrease in the number of shares of any series of
Preferred Stock or the creation and issuance of other series
of Common Stock or Preferred Stock, in each case ranking on a
parity with or junior to the shares of Fixed/Adjustable
Preferred Stock with respect to the payment of dividends and
the distribution of assets upon liquidation, dissolution or
winding up, shall not be deemed to materially and adversely
affect such powers, preferences or special rights.
(c) The foregoing voting provisions shall not apply if,
at or prior to the time when the act with respect to which
such vote would otherwise be required shall be effected, all
outstanding shares of Fixed/Adjustable Preferred Stock shall
have been redeemed or called for redemption and sufficient
funds shall have been deposited in trust to effect such
redemption.
6. Redemption. The shares of the Fixed/Adjustable Preferred
Stock may be redeemed at the option of the Corporation, as a whole,
or from time to time in part, at any time, upon not less than 30
days' prior notice mailed to the holders of the shares to be
redeemed at their addresses as shown on the stock books of the
Corporation; provided, however, that shares of the Fixed/Adjustable
Preferred Stock shall not be redeemable prior to ________ __, 200_.
Subject to the foregoing, on or after such date, shares of the
Fixed/Adjustable Preferred Stock are redeemable at $200.00 per share
together with an amount equal to all dividends (whether or not
earned or declared) accrued and accumulated and unpaid to, but
excluding, the date fixed for redemption.
If full cumulative dividends on the Fixed/Adjustable Preferred
Stock have not been paid, the Fixed/Adjustable Preferred Stock may
not be redeemed in part and the Corporation may not purchase or
acquire any shares of the Fixed/Adjustable Preferred Stock otherwise
than pursuant to a purchase or exchange offer made on the same terms
to all holders of the Fixed/Adjustable Preferred Stock. If fewer
than all the outstanding shares of Fixed/Adjustable
<PAGE> 10
10
Preferred Stock are to be redeemed, the Corporation will select
those to be redeemed by lot or a substantially equivalent method.
If a notice of redemption has been given pursuant to this
paragraph 6 and if, on or before the date fixed for redemption, the
funds necessary for such redemption shall have been set aside by the
Corporation, separate and apart from its other funds, in trust for
the pro rata benefit of the holders of the shares of
Fixed/Adjustable Preferred Stock so called for redemption, then,
notwithstanding that any certificates for such shares have not been
surrendered for cancellation, on the redemption date dividends shall
cease to accrue on the shares to be redeemed, and at the close of
business on the redemption date the holders of such shares shall
cease to be stockholders with respect to such shares and shall have
no interest in or claims against the Corporation by virtue thereof
and shall have no voting or other rights with respect to such
shares, except the right to receive the moneys payable upon
surrender (and endorsement, if required by the Corporation) of their
certificates, and the shares evidenced thereby shall no longer be
outstanding. Subject to applicable escheat laws, any moneys so set
aside by the Corporation and unclaimed at the end of two years from
the redemption date shall revert to the general funds of the
Corporation, after which reversion the holders of such shares so
called for redemption shall look only to the general funds of the
Corporation for the payment of the amounts payable upon such
redemption. Any interest accrued on funds so deposited shall be paid
to the Corporation from time to time.
7. Authorization and Issuance of Other Securities. No consent
of the holders of the Fixed/Adjustable Preferred Stock shall be
required for (a) the creation of any indebtedness of any kind of the
Corporation, (b) the creation, or increase or decrease in the
amount, of any class or series of stock of the Corporation not
ranking prior as to dividends or upon liquidation, dissolution or
winding up to the Fixed/Adjustable Preferred Stock or (c) any
increase or decrease in the amount of authorized Common Stock or any
increase, decrease or change in the par value thereof or in any
other terms thereof.
8. Amendment of Resolution. The Board and the Committee each
reserves the right by subsequent amendment of this resolution from
time to time to increase or decrease the number of shares that
constitute the Fixed/Adjustable Preferred Stock (but not below the
number of shares thereof then outstanding) and in other respects to
amend this resolution within the limitations provided by law, this
resolution and the Certificate of Incorporation.
9. Rank. For the purposes of this resolution, any stock of any
class or classes of the Corporation shall be deemed to rank:
<PAGE> 11
11
(a) prior to shares of the Fixed/Adjustable Preferred
Stock, either as to dividends or upon liquidation, dissolution
or winding up, or both, if the holders of stock of such class
or classes shall be entitled by the terms thereof to the
receipt of dividends or of amounts distributable upon
liquidation, dissolution or winding up, as the case may be, in
preference or priority to the holders of shares of the
Fixed/Adjustable Preferred Stock;
(b) on a parity with shares of the Fixed/Adjustable
Preferred Stock, either as to dividends or upon liquidation,
dissolution or winding up, or both, whether or not the
dividend rates, dividend payment dates, or redemption or
liquidation prices per share thereof be different from those
of the Fixed/Adjustable Preferred Stock, if the holders of
stock of such class or classes shall be entitled by the terms
thereof to the receipt of dividends or of amounts distributed
upon liquidation, dissolution or winding up, as the case may
be, in proportion to their respective dividend rates or
liquidation prices, without preference or priority of one over
the other as between the holders of such stock and the holders
of shares of Fixed/Adjustable Preferred Stock (the term
"Parity Preferred Stock" being used to refer to any stock on a
parity with the shares of Fixed/Adjustable Preferred Stock,
either as to dividends or upon liquidation, dissolution or
winding up, or both, as the context may require); and
(c) junior to shares of the Fixed/Adjustable Preferred
Stock, either as to dividends or upon liquidation, dissolution
or winding up, or both, if such class shall be Common Stock or
if the holders of the Fixed/Adjustable Preferred Stock shall
be entitled to the receipt of dividends or of amounts
distributable upon liquidation, dissolution or winding up, as
the case may be, in preference or priority to the holders of
stock of such class or classes.
The Fixed/Adjustable Preferred Stock shall rank prior, as to
dividends and upon liquidation, dissolution or winding up, to the
Common Stock and on a parity with the Corporation's 9-1/2%
Cumulative Perpetual Preferred Stock, with a liquidation value of
$200.00 per share.
<PAGE> 12
12
IN WITNESS WHEREOF, ARM Financial Group, Inc. has caused this
Certificate to be made under the seal of the Corporation and signed by
_______________, its _______________, and attested by _______________, its
_____________, this ___th day of ________, 1998.
ARM FINANCIAL GROUP, INC.
By: _______________________________
Name: ________________________
Title: _______________________
[SEAL]
Attest:
__________________________
<PAGE> 1
Exhibit 4.3
FORM OF CERTIFICATE
[THIS IS A GLOBAL CERTIFICATE REPRESENTING
ALL THE SHARES OF THIS SERIES]
__% ________ CUMULATIVE PREFERRED STOCK
($_____ STATED VALUE)
Number Shares
CUSIP ___________
ARM FINANCIAL GROUP, INC.
INCORPORATED UNDER THE LAWS OF THE STATE OF DELAWARE
THIS CERTIFICATE IS TRANSFERABLE
IN THE CITY OF NEW YORK, NEW YORK
This is to certify that_________________________________________________________
is the registered owner of ________________________________________________
fully paid and non-assessable shares of ___% ________ Cumulative Preferred
Stock, par value $.01 per share, stated value $_____ per share, of ARM
Financial Group, Inc. transferable on the books of the Corporation by the
holder thereof in person or by duly authorized attorney upon surrender of this
certificate properly endorsed.
This certificate is not valid unless countersigned and registered by
the Transfer Agent and Registrar.
Witness the facsimile seal of the Corporation and the facsimile
signatures of its duly authorized officers.
Dated:_______________
[SEAL]
[General Counsel and Secretary/ [Chairman of the Board/Chief Executive Officer]
Treasurer/Assistant Secretary]
Countersigned and Registered:
CHASEMELLON SHAREHOLDER SERVICES
LLC
Transfer Agent and Registrar
By
Authorized Officer
<PAGE> 2
[FORM OF REVERSE OF CERTIFICATE]
ARM FINANCIAL GROUP, INC.
ARM FINANCIAL GROUP, INC. (the "Corporation") will furnish, without
charge to each stockholder who so requests, a copy of the designations, powers,
preferences and relative, participating, optional or other special rights of
each class of stock of the Corporation or series thereof and the qualifications,
limitations or restrictions of such preferences and/or rights applicable to each
class of stock of the Corporation or series thereof. Such information may be
obtained by a request in writing to the Secretary of the Corporation at its
principal place of business.
This certificate and the share or shares represented hereby are issued
and shall be held subject to all of the provisions of the Corporation's Restated
Certificate of Incorporation, as amended, and the Certificate of Designation of
Preferences and Rights of the ___% ________ Cumulative Preferred Stock ($_____
Stated Value) (copies of which are on file with the Transfer Agent), to all of
which the holder, by acceptance hereof, assents.
The following abbreviations, when used in the instructions on the face
of this receipt, shall be construed as though they were written out in full
according to applicable laws or regulations.
TEN COM - as tenants in common
TEN ENT - as tenants by the entireties
JT TEN - as joint tenants with right
of survivorship and not as
tenants in common
UNIF GIFT MIN ACT - Custodian
(Minor) (Cust)
under Uniform Gifts to Minors Act
(State)
Additional abbreviations may also be used though not in the above list.
---------------------
For value received, ________________hereby sell(s), assign(s) and
transfer(s) unto
PLEASE INSERT SOCIAL SECURITY OR OTHER
IDENTIFYING NUMBER OF ASSIGNEE
- ----------------------------------------------------------
PLEASE PRINT OR TYPEWRITE NAME AND ADDRESS, INCLUDING ZIP CODE, OF ASSIGNEE
shares of the capital stock represented by the within certificate, and do(es)
hereby irrevocably constitute and appoint_______________________________________
Attorney to transfer the said stock on the books of the within named Corporation
with full power of substitution in the premises.
Dated:
Signature
NOTICE: The signature to this assignment
must correspond with the name as written
upon the face of this certificate in every
particular, without alteration or
enlargement or any change whatever
<PAGE> 1
Exhibit 4.4
================================================================================
ARM FINANCIAL GROUP, INC.,
[DEPOSITARY]
AND
THE HOLDERS FROM TIME TO TIME OF
THE DEPOSITARY RECEIPTS DESCRIBED HEREIN
---------------
DEPOSIT AGREEMENT
---------------
Dated as of __________ __, 1998
================================================================================
<PAGE> 2
DEPOSIT AGREEMENT dated as of __________ __, 1998, among ARM
FINANCIAL GROUP, INC., a Delaware corporation, __________, a [state] banking
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 from time to time of shares of [specify
designation of preferred stock], par value $.01 per share, stated value $_____
per share, of ARM Financial Group, Inc. with the Depositary for the purposes set
forth in this Deposit Agreement and for the issuance hereunder of Receipts
evidencing Depositary Shares in respect of the Stock so deposited; and
WHEREAS, the Receipts are to be substantially in the form of Exhibit
A annexed hereto, with appropriate insertions, modification 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:
"Certificate" shall mean the Certificate of Designation of
Preferences and Rights filed or to be filed with the Secretary of State of the
State of Delaware establishing the Stock as a series of preferred stock, par
value $.01 per share, of the Company.
"Company" shall mean ARM Financial Group, 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 __________, or any successor as Depositary
hereunder.
"Depositary Shares" shall mean Depositary Shares, each representing
[specify fraction] of a share of Stock and evidenced by a Receipt.
"Depositary's Agent" shall mean an agent appointed by the Depositary
pursuant to Section 7.05.
<PAGE> 3
2
"Depositary's Office" shall mean the principal corporate trust
office of the Depositary in [city], at which at any particular time its
depositary receipt business shall be administered.
"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.
"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 held
of record by the holder of such Depositary Shares.
"Registrar" shall mean the Depositary or such other bank or trust
company that shall be appointed to register ownership and transfers of Receipts
as herein provided as well as to effect transfers and the distribution of
dividends with respect to the Stock.
"Securities Act" shall mean the Securities Act of 1933, as amended.
"Stock" shall mean shares of the Company's _______ Cumulative
Preferred Stock, par value $.01 per share, stated value $_____ per share.
ARTICLE II
Form of Receipts, Deposit of Stock,
Execution and Delivery, Transfer,
Surrender and Redemption of Receipts
SECTION 2.01. Form and Transfer of Receipts. Definitive Receipts
shall be engraved or printed or lithographed on steel-engraved borders, 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 that are printed, lithographed, typewritten,
mimeographed, photocopied 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 shall
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 an office
described in the penultimate paragraph of Section 2.02, 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
<PAGE> 4
3
Depositary Shares as are represented by the surrendered temporary Receipt or
Receipts. Such exchange shall be made at the Company's expense and without any
charge therefor. Until so exchanged, the temporary Receipts shall in all
respects be entitled to the same benefits under this Deposit Agreement, and with
respect to the Stock, as definitive Receipts.
Receipts shall be executed by the Depositary by the manual or
facsimile signature of a duly authorized signatory of the Depositary and, if a
Registrar for the Receipts shall have been appointed, countersigned by the
manual signature of a duly authorized signatory of the Registrar; provided that
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 signatory of the Depositary or, if a Registrar for the
Receipts shall have been appointed, by manual or facsimile signature of a duly
authorized signatory of the Depositary and countersigned manually by a duly
authorized signatory of such Registrar. The Depositary shall record on its books
each Receipt so signed and delivered as hereinafter provided.
Receipts shall be in denominations of any number of whole Depositary
Shares.
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 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 that is properly
endorsed or accompanied by a properly executed instrument of transfer shall be
transferable by delivery with the same effect as in the case of 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 holder of
record at such time as the absolute owner thereof for the purpose of determining
the person entitled to distributions of dividends or other distributions or to
any notice provided for in this Deposit Agreement and for all other purposes.
SECTION 2.02. Deposit of Stock; Execution and Delivery of Receipts
in Respect Thereof. Subject to the terms and conditions of this Deposit
Agreement, the Company may from time to time deposit shares of 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
<PAGE> 5
4
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
__________ shares of Stock.
SECTION 2.03. Registration of Transfer of Receipts. Subject to the
terms and conditions of this Deposit Agreement, including payment of the fees of
the Depositary as provided in Section 5.07, 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 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 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
<PAGE> 6
5
the Depositary may designate for such withdrawals. Upon payment of the fees of
the Depositary for the withdrawal of Stock as provided in Section 5.07 and
payment of all taxes and without unreasonable delay, the Depositary shall
deliver to such holder or to the person or persons designated by such holder as
hereinafter provided, the number of whole shares of Stock and all money and
other property, if any, represented by the Depositary Shares evidenced by the
Receipt or Receipts so surrendered for withdrawal, but holders of such whole
shares of Stock shall not thereafter be entitled to deposit such Stock hereunder
or to receive Depositary Shares therefor. If a Receipt delivered by the holder
to the Depositary in connection with such withdrawal shall evidence a number of
Depositary Shares in excess of the number of Depositary Shares representing the
number of whole shares of Stock to be so withdrawn, the Depositary shall at the
same time, in addition to such number of whole shares of Stock and such money
and other property, if any, to be so withdrawn, deliver to such holder, or
pursuant to his order, upon payment of the fees of the Depositary for the
withdrawal of Stock as provided in Section 5.07 and payment of all taxes, a new
Receipt evidencing such excess number of Depositary Shares. Delivery of the
Stock and money and other property, if any, 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, if any, being
withdrawn are to be delivered to a person or persons other than the holder of
the Receipt or Receipts being surrendered for withdrawal of Stock, such holder
shall execute and deliver to the Depositary a written order so directing the
Depositary and the Depositary may require that the Receipt or Receipts
surrendered by such holder for the 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, Transfers,
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, any of the Depositary's Agents or the Company
shall have made such payment, the reimbursement to it) of any charges or
expenses payable by the holder of a Receipt pursuant to Section 5.07, may
require the production of evidence satisfactory to it as to the identity and
genuineness of any signature and may also require compliance with such
regulations, if any, as the Depositary or the Company may establish consistent
with the provisions of this Deposit Agreement.
<PAGE> 7
6
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 upon cancellation thereof, or in lieu of
and in substitution for such destroyed, lost or stolen Receipt. Before the
Depositary shall execute and deliver a new Receipt in substitution for a
destroyed, lost or stolen Receipt, the holder thereof shall have (i) filed with
the Depositary (a) a request for such execution and delivery before the
Depositary has received notice that the Receipt has been acquired by a bona fide
purchaser and (b) a sufficient indemnity bond (if so requested by the
Depositary) and (ii) satisfied any other reasonable requirements imposed by the
Depositary.
SECTION 2.07. Optional Redemption of Stock. If the Company shall
elect to redeem shares of Stock pursuant to the Certificate, it shall (unless
otherwise agreed in writing with the Depositary) give the Depositary not less
than 45 days' notice of the date of such proposed redemption of Stock and of the
number of shares of Stock held by the Depositary to be redeemed. On the date of
such redemption, provided that the Company shall then have paid in full to the
Depositary the redemption price (determined pursuant to the Certificate) of the
Stock deposited with the Depositary to be redeemed, the Depositary shall redeem
(using the proceeds of such redemption) the Depositary Shares relating to such
Stock. The Depositary shall mail, first class postage prepaid, notice of the
redemption of Stock and the proposed simultaneous redemption of the Depositary
Shares relating to the Stock to be redeemed, not less than 30 days and not more
than 60 days prior to the date fixed for redemption of such Stock and Depositary
Shares (the "Redemption Date"), to the holders on the record date fixed for such
redemption pursuant to Section 4.04 of the Receipts evidencing the Depositary
Shares to be so redeemed, at the addresses of such holders as the same appear on
the records of the Depositary; but neither failure to mail any such notice to
one or more such holders nor any defect in any notice shall affect the
sufficiency of the proceedings for redemption as to the other holders. The
Company shall provide the Depositary with such notice, and each such notice
shall state: (i) the record date for purposes of such redemption; (ii) the
Redemption Date; (iii) the aggregate number of Depositary Shares to be redeemed
and, if fewer than all the Depositary Shares held by any holder are to be
redeemed, the number of Depositary Shares held by such holder to be so redeemed;
(iv) the redemption price; (v) the place or places where Receipts evidencing
Depositary Shares to be redeemed are to be surrendered for payment of the
redemption price; and (vi) that dividends in respect of the Stock represented by
the Depositary Shares to be redeemed shall cease to accrue at the close of
business on such
<PAGE> 8
7
Redemption Date. In case fewer than all the outstanding Depositary Shares are to
be redeemed, the Depositary Shares to be redeemed shall be selected by lot or
pro rata or by any other substantially equivalent method determined by the
Depositary with the approval of the Company.
Notice having been mailed by the Depositary as aforesaid, from and
after the Redemption Date (unless the Company shall have failed to redeem the
shares of Stock to be redeemed by it as set forth in the Company's notice
provided for in the preceding paragraph) all dividends in respect of the shares
of Stock called for redemption shall cease to accrue, the Depositary Shares
called for redemption shall be deemed no longer to be outstanding and all rights
of the holders of Receipts evidencing such Depositary Shares (except the right
to receive the redemption price) shall, to the extent of such Depositary Shares,
cease and terminate. Upon surrender in accordance with said notice of the
Receipts evidencing such Depositary Shares (properly endorsed or assigned for
transfer, if the Depositary shall so require), such Depositary Shares shall be
redeemed at a redemption price per Depositary Share equal to [specify fraction]
times the redemption price per share paid in respect of shares of Stock pursuant
to the Certificate plus all money and other property, if any, represented by
such Depositary Shares, including all amounts paid by the Company in respect of
dividends that on the Redemption Date have accrued on the shares of Stock to be
so redeemed and that have not theretofore been paid. The foregoing shall be
subject further to the terms and conditions of the Certificate.
If fewer than all of the Depositary Shares evidenced by a Receipt
are called for redemption, the Depositary shall deliver to the holder of such
Receipt upon its surrender to the Depositary, together with payment of the
redemption price for the Depositary Shares called for redemption, a new Receipt
evidencing the Depositary Shares evidenced by such prior Receipt and not called
for redemption.
Except as provided in the preceding paragraph of this Section 2.07,
the Depositary shall not be required to transfer or exchange for another Receipt
any Receipt evidencing Depositary Shares called or being called for redemption
in whole or in part.
The Depositary shall remit to the Company any funds deposited by or
for the account of the Company for the purpose of redeeming any Depositary
Shares that the holders thereof have failed to redeem after two years from the
date of such deposit, without further action necessary on the part of the
Company.
SECTION 2.08. 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.
<PAGE> 9
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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, redemption 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 property or 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 Taxes or Other Governmental Charges.
Holders of Receipts shall be obligated to make payments to the Depositary of
certain charges and expenses, as provided in Section 5.07. 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 charges 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.
ARTICLE IV
The Deposited Securities; Notices
SECTION 4.01. Cash Distributions. Whenever the Depositary shall
receive any cash dividend or other cash distribution on Stock, the Depositary
shall, subject to Sections 3.01 and 3.02, distribute to holders of Receipts on
the record date fixed pursuant to Section 4.04 (net of the fees of the
Depositary as provided in Section 5.07 hereof) such amounts of
<PAGE> 10
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such dividend or distribution as are, as nearly as practicable, in proportion to
the respective numbers of Depositary Shares evidenced by the Receipts held by
such holders; provided, however, that in case the Company or the Depositary
shall be required to withhold and shall withhold from any cash dividend or other
cash distribution in respect of the Stock an amount on account of taxes, the
amount made available for distribution or distributed in respect of Depositary
Shares shall be reduced accordingly. The Depositary shall distribute or make
available for distribution, as the case may be, only such amount, however, as
can be distributed without attributing to any 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
holders of Receipts then outstanding.
SECTION 4.02. Distributions Other than Cash, Rights, Preferences or
Privileges. Whenever the Depositary shall receive any distribution other than
cash, rights, preferences or privileges upon Stock, the Depositary shall,
subject to Sections 3.01 and 3.02, distribute to holders of Receipts on the
record date fixed pursuant to Section 4.04 such amounts of the securities or
property received by it as are, as nearly as practicable, in proportion to the
respective numbers of Depositary Shares evidenced by the Receipts held by such
holders, in any manner that the Depositary may deem equitable and practicable
for accomplishing such distribution. If in the opinion of the Depositary such
distribution cannot be made proportionately among such holders, or if for any
other reason (including any requirement that the Company or the Depositary
withhold an amount on account of taxes or governmental charges) 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 such 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 unless the Company
shall have provided an opinion of counsel stating that such securities have been
registered under the Securities Act or do not need to be so registered.
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 holders of Receipts in such manner as the Depositary may determine, either
by the issue to such holders of warrants representing such rights, preferences
or privileges or by such other method as may be determined by the Depositary
with the approval of the Company; provided, however, that (i) if at the time of
issue or offer of any such rights,
<PAGE> 11
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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, or (ii) if and to the extent so instructed by holders of
Receipts who do not desire to exercise such rights, preferences or privileges,
then the Depositary may (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), 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
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 it shall 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 shall 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.; Fixing 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 (i) any meeting at which holders
of Stock are entitled to vote or of which holders of Stock are entitled to
notice or (ii) any election on the part of the Company to redeem any shares of
Stock, or whenever the Depositary and the Company shall decide it is
appropriate, the Depositary shall in each such instance fix a record date (which
shall be the same date as the record date fixed by the Company with respect to
or otherwise in accordance with the terms of the Stock)
<PAGE> 12
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for the determination of the holders of Receipts who shall be entitled to
receive such dividend, distribution, rights, preferences or privileges or the
net proceeds of the sale thereof, or to give instructions for the exercise of
voting rights at any such meeting, or who shall be entitled to notice of such
meeting, or whose Depositary Shares are to be redeemed or for any other
appropriate reasons.
SECTION 4.05. Voting Rights. Upon receipt of notice of any meeting
at which the holders of Stock are entitled to vote, the Depositary shall, as
soon as practicable thereafter, mail to the holders of Receipts entitled thereto
a notice that shall contain (i) such information as is contained in such notice
of meeting and (ii) a statement that such holders 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, in accordance with the instructions set forth in such requests, the
maximum number of whole shares of Stock represented by the Depositary Shares
evidenced by all Receipts as to which any particular voting instructions are
received, provided that the Depositary receives such instructions sufficiently
in advance of such voting to enable it to so vote or cause to be voted. The
Company hereby agrees to take all reasonable action that may be deemed necessary
by the Depositary in order to enable the Depositary to vote such Stock or cause
such Stock to be voted. In the absence of specific instructions from the holder
of a Receipt, the Depositary shall abstain from voting (but, in 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.
SECTION 4.06. Changes Affecting Deposited Securities and
Reclassifications, Recapitalizations, etc. 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
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 and
(ii) treat any securities that 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
<PAGE> 13
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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 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
that are received by the Depositary as the holder of Stock.
SECTION 4.08. Lists of Receipt Holders. Promptly upon request from
time to time by the Company, the Depositary shall furnish to it a list, as of a
recent date, of the names, addresses and holdings of all holders of Receipts.
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, split-up, combination and redemption of Receipts and deposit and
withdrawal of Stock, and at the offices of the Depositary's Agents, if any,
facilities for the delivery, registration of transfer, surrender and exchange,
split-up, combination and redemption of Receipts and deposit and withdrawal of
Stock, all in accordance with the provisions of this Deposit Agreement.
The Depositary shall keep books at the Depositary's Office for the
registration and registration of transfer of Receipts, which books at all
reasonable times shall be open for inspection by the holders of Receipts;
provided that any such holder requesting to exercise such right shall certify in
writing 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, at any time or from time to
time, when deemed expedient by it in connection with the performance of its
duties hereunder.
<PAGE> 14
13
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 shall 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 such Stock are listed on
one or more other stock exchanges, the Depositary shall, 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 or the Company. Neither the Depositary nor the Company shall incur
any liability to any holder of any Receipt if by reason of any provision of any
present or future law, or regulation thereunder, of the United States of America
or of any other governmental authority or by reason of any provision, present or
future, of the Company's Restated Certificate of Incorporation, as amended
(including the Certificate) or of the Depositary Shares or by reason of any act
of God or war or other circumstance beyond the control of the relevant party,
the Depositary or the Company shall be prevented or forbidden from, 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 or the Company incur liability to any holder of a
Receipt (i) by reason of any nonperformance or delay, caused as aforesaid, in
the performance of any act or thing which the terms of this Deposit Agreement
shall provide shall or may be done or performed, or (ii) by reason of any
exercise of, or failure to exercise, any discretion provided for in this Deposit
Agreement except, in the case of 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.
Where, by the terms of a distribution pursuant to Sections 4.01 or
4.02 of this Deposit Agreement, or an offering or distribution pursuant to
Section 4.03 of this Deposit Agreement, or for any other reason, such
distribution or offering may not be made available to holders of Receipts, and
the Depositary may not dispose of such distribution or offering on behalf of
such holders and make the net proceeds available to such holders, then the
Depositary shall not make such distribution or offering, and shall allow any
rights, if applicable, to lapse.
SECTION 5.03. Obligation of the Depositary and the Company. Neither
the Depositary nor the Company assumes any obligation or shall be subject to any
liability under this Deposit Agreement to holders of Receipts except that each
of them agrees (i) to use its best judgment and good faith in the performance of
such duties as are specifically set forth in this
<PAGE> 15
14
Deposit Agreement and (ii) that it shall be liable for negligence or willful
misconduct in the performance of such duties as are specifically set forth in
this Deposit Agreement.
Neither the Depositary 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 that in its opinion
may involve it in expense or liability, unless indemnity satisfactory to it
against all expense and liability shall be furnished as often as may be
required.
Neither the Depositary nor the 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
competent to give such advice or information. The Depositary and the Company may
each rely and shall each be protected in acting upon any written notice,
request, direction or other document believed by it to be genuine and to have
been signed or presented by the proper party or parties.
The Depositary 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. The Depositary undertakes 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.
The Depositary may also act as transfer agent or registrar of any of the
securities of the Company and its affiliates.
The Depositary undertakes not to issue any Receipt other than to
evidence the Depositary Shares then on deposit with the Depositary. The
Depositary also undertakes not to sell (except as provided herein), pledge or
lend Depositary Shares held by it as Depositary.
No disclaimer of liability under the Securities Act is intended by
any provision of this Deposit Agreement.
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 written 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.
<PAGE> 16
15
In case at any time the Depositary acting hereunder shall resign or
be removed, the Company shall, within 60 days after the delivery of the notice
of resignation or removal, as the case may be, appoint a successor Depositary,
which shall be a bank or trust company having its principal office in the United
States of America and having a combined capital and surplus of at least
$50,000,000. 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 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 upon 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 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 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.
SECTION 5.05. Corporate Notices and Reports. The Company agrees that
it shall transmit to the 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 holders of Receipts. Such
transmission shall be at the Company's expense.
SECTION 5.06. Indemnification. The Company agrees to indemnify the
Depositary, its directors, employees, agents and affiliates and any Depositary's
Agent against, and hold each of them harmless from, any liability or expense
(including, but not limited to, the reasonable fees and expenses of counsel)
which may arise out of acts performed or omitted in accordance with the
provisions of this Deposit Agreement and of the Receipts, as the same may be
amended, modified or supplemented from time to time, (i) by either the
Depositary or a Depositary's Agent or their respective directors, employees,
agents and affiliates, except for any liability or expense arising out of the
negligence or bad faith of any of them, or (ii) by the Company or any of its
directors, employees, agents and affiliates.
The Depositary agrees to indemnify the Company, its directors,
employees, agents and affiliates and hold them harmless from any liability or
expense (including, but not
<PAGE> 17
16
limited to, the reasonable fees and expenses of counsel) which may arise out of
acts performed or omitted by the Depositary or a Depositary's Agent or their
respective directors, employees, agents and affiliates due to their negligence
or bad faith. The obligations set forth in this Section 5.06 shall survive the
termination of this Deposit Agreement and any succession or substitution of any
Depositary.
Any person seeking indemnification hereunder (an "indemnified
person") shall notify the person from whom it is seeking indemnification in
writing (the "indemnifying person") of the commencement of any action or claim
in respect of which indemnification may be sought promptly after such
indemnified person becomes aware of such commencement (provided that the failure
to make such notification shall not affect such indemnified person's rights
under this Section 5.06) and shall consult in good faith with the indemnifying
person as to the conduct of the defense of such action or claim, which shall be
reasonable in the circumstances. No indemnified person shall compromise or
settle any such action or claim without the consent of the indemnifying person.
SECTION 5.07. Charges and Expenses. The Company shall pay all
transfer and other taxes and governmental charges arising solely from the
existence of the depositary arrangements. The Company shall pay all charges 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 the registration of transfer of title
to any Depositary Shares. All other transfer and other taxes and governmental
charges shall be at the expense of holders of Depositary Shares. If, at the
request of a holder of Receipts, the Depositary incurs charges or expenses for
which it or the Company is not otherwise liable hereunder, such holder shall be
liable for such charges and expenses. All other charges 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 shall be paid by the Company upon consultation
and agreement between the Depositary and the Company as to the amount and nature
of such charges and expenses. The Depositary shall present its statement for
charges and expenses to the Company once every three months or at such other
intervals as the Company and the Depositary may agree.
ARTICLE VI
Amendment and Termination
SECTION 6.01. Amendment. The form of the Receipts and any provisions
of this Deposit Agreement may at any time and from time to time be amended by
agreement between the Company and the Depositary in any respect which they may
deem necessary or desirable; provided, however, that no such amendment which
shall materially and adversely alter the rights of the holders of Receipts shall
be effective unless such amendment shall have
<PAGE> 18
17
been approved by the holders of at least a majority of the Depositary Shares
then outstanding. Notwithstanding the foregoing, in no event may any amendment
impair the right of any holder of any Receipts, upon surrender of such Receipts
and subject to any conditions specified in this Deposit Agreement, to receive
shares of Stock and any money or other property represented thereby, except in
order to comply with mandatory provisions of applicable law. Every holder of an
outstanding Receipt at the time any such amendment becomes effective in
accordance with its terms 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 holders of Receipts, upon surrender of the Receipt or Receipts held
by such holder, and upon payment of any applicable taxes or governmental
charges, such number of whole shares of Stock represented by such Receipt or
Receipts. The Depositary may likewise terminate this Deposit Agreement by
mailing notice of such termination to the Company and the holders of all
Receipts then outstanding if at any time 60 days shall have expired after the
Depositary shall have delivered to the Company a written notice of its election
to resign and a successor depositary shall not have been appointed and accepted
its appointment as provided in Section 5.04. If the holder of any Receipt or
Receipts shall not have surrendered such Receipt or Receipts in exchange for
whole shares of Stock on or prior to the effective date of termination of this
Deposit Agreement, such holder shall for all purposes, including the payment of
dividends, be deemed to be a holder of the appropriate number of whole 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 shares
of Stock.
If any Receipts shall remain outstanding after the date of
termination, the Depositary thereafter shall discontinue the registration of
transfers of Receipts, shall suspend the distribution of dividends to the
holders thereof, and shall not give any further notices or perform any further
acts under this Deposit Agreement, except that the Depositary shall continue to
collect dividends and other distributions pertaining to the Stock, shall sell
rights as provided in this Deposit Agreement, and shall continue to deliver such
Stock, together with any dividends or other distributions received with respect
thereto and the net proceeds of the sale of any rights or other property, in
exchange for Receipts surrendered to the Depositary (after deducting, in each
case, the fee of the Depositary for the surrender of a Receipt, any expenses for
the account of the holder of such Receipt in accordance with the terms and
conditions of this Deposit Agreement, and any applicable taxes or governmental
charges). At any time after the expiration of one year from the date of
termination, the Depositary may sell such Stock then held hereunder and may
thereafter hold uninvested the net proceeds of any such sale, together with any
other cash then held by it hereunder, without liability for interest, for the
pro rata benefit of the holders which have not theretofore surrendered their
Receipts. After making such sale, the Depositary shall be discharged from all
obligations under this
<PAGE> 19
18
Deposit Agreement, except to account for such net proceeds and other cash (after
deducting, in each case, the fee of the Depositary for the surrender of a
Receipt, any expenses for the account of the holder of such Receipt in
accordance with the terms and conditions of this Deposit Agreement, and any
applicable taxes or governmental charges).
This Deposit Agreement shall automatically terminate after 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.
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 and 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
manually or by facsimile transmission 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, 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
<PAGE> 20
19
515 West Market Street
8th Floor
Louisville, Kentucky 40202
Attention: Treasurer
Telephone No.: (502) 582-7900
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
101 Barclay Street, New York, New York 10286, 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 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 holder at the address of
such 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, first class postage prepaid, in a post
office letter box. The Depositary or the Company may, however, without
liability, 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 shall notify the Company of any such action and shall
remain responsible for the performance of its obligations hereunder as if no
Depositary Agent were appointed.
The Company hereby also appoints the Depositary as Registrar and
Transfer Agent in respect of the Receipts and the Depositary hereby accepts such
appointments.
<PAGE> 21
20
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 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. Copies of this
Deposit Agreement shall be filed with the Depositary and the Depositary's Agents
and shall be open to inspection during business hours at the Depositary's 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 and in the form of the Receipt set forth in Exhibit A
hereto have been inserted for convenience only and are not to be regarded as a
part of this Deposit Agreement or the Receipts or to have any bearing upon the
meaning or interpretation of any provision contained herein or in the Receipts.
<PAGE> 22
21
IN WITNESS WHEREOF, the Company and the Depositary have duly
executed this 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.
ARM FINANCIAL GROUP, INC.
By _______________________________
Name:
Title:
[DEPOSITARY]
By _______________________________
Name:
Title:
<PAGE> 23
EXHIBIT A
[FORM OF FACE OF RECEIPT]
NUMBER
DEPOSITARY SHARES
DRB
DEPOSITARY RECEIPT FOR DEPOSITARY SHARES,
REPRESENTING __% ________ CUMULATIVE PREFERRED STOCK OF
ARM FINANCIAL GROUP, INC.
CUSIP ___________
INCORPORATED UNDER THE LAWS OF THE STATE OF DELAWARE.
SEE REVERSE FOR CERTAIN DEFINITIONS
________________, as Depositary (the "Depositary"), hereby certifies that
is the registered owner of __________________________________ DEPOSITARY SHARES
("Depositary Shares"), each Depositary Share representing [specify fraction] of
a share of ___% ________ Cumulative Preferred Stock, par value $.01 per share,
stated value $_____ per share (the "Stock"), of ARM FINANCIAL GROUP, INC., a
Delaware corporation (the "Corporation"), on deposit with the Depositary,
subject to the terms and entitled to the benefits of the Deposit Agreement dated
as of __________ __, 1998 (the "Deposit Agreement"), among the Corporation, the
Depositary and the holders from time to time of the Depositary Receipts issued
thereunder. By accepting this Depositary Receipt the holder hereof becomes a
party to and agrees to be bound by all the terms and conditions of the Deposit
Agreement. This Depositary Receipt shall not be valid or obligatory for any
purpose or entitled to any benefits under the Deposit Agreement unless it shall
have been executed by the Depositary by the manual signature of a duly
authorized signatory or, if executed in facsimile by the Depositary,
countersigned by a Registrar in respect of the Depositary Receipts by the manual
signature of a duly authorized signatory thereof.
Dated:
Countersigned and Registered:
CHASEMELLON SHAREHOLDER __________________________
SERVICES LLC Depositary
Registrar
By By
<PAGE> 24
2
[FORM OF REVERSE OF RECEIPT]
ARM FINANCIAL GROUP, INC.
THE CORPORATION WILL FURNISH WITHOUT CHARGE TO EACH RECEIPTHOLDER WHO SO
REQUESTS A COPY OF THE DEPOSIT AGREEMENT AND A COPY OR SUMMARY OF THE
CERTIFICATE OF THE DESIGNATIONS, POWERS, PREFERENCES AND RELATIVE,
PARTICIPATING, OPTIONAL OR OTHER RIGHTS, AND OF THE QUALIFICATIONS, LIMITATIONS
OR RESTRICTIONS THEREOF, OF THE STOCK OF THE CORPORATION. ANY SUCH REQUEST IS TO
BE ADDRESSED TO THE DEPOSITARY NAMED ON THE FACE OF THIS RECEIPT.
-------------------------------
The following abbreviations, when used in the instructions on the face of
this receipt, shall be construed as though they were written out in full
according to applicable laws or regulations.
TEN COM - as tenants in common UNIF GIFT MIN ACT - ________ Custodian _______
(Minor) (Cust)
TEN ENT - as tenants by the Under Uniform Gifts to Minors Act
entireties
JT TEN - as joint tenants with ________________________
right of survivorship (State)
and not as tenants in
common
Additional abbreviations may also be used though not in the above
list.
For value received, __________ hereby sell(s), assign(s) and transfer(s) unto
PLEASE INSERT SOCIAL SECURITY OR OTHER
IDENTIFYING NUMBER OF ASSIGNEE
________________________________________________________________________________
________________________________________________________________________________
PLEASE PRINT OR TYPEWRITE NAME AND ADDRESS, INCLUDING ZIP CODE, OF ASSIGNEE
________________________________________________________________________________
____________________________ Depositary Shares represented by the within
Receipt, hereby irrevocably constituting and appointing
___________________________________ Attorney to transfer the said Depositary
Shares on the books of the within named Depositary with full power of
substitution in the premises.
Dated: __________________
_____________________________________________
NOTICE: The signature to the assignment must
correspond with the name as written upon the
face of this Receipt in every particular,
without alteration or enlargement or any
change whatever
<PAGE> 1
Exhibit 5.1
[SHEARMAN & STERLING LETTERHEAD]
(212) 848-8015
June 12, 1998
ARM Financial Group, Inc.
515 West Market Street
Louisville, KY 40202
Ladies and Gentlemen:
We are acting as counsel for ARM Financial Group, Inc., a Delaware
corporation (the "Company"), in connection with the filing by the Company with
the Securities and Exchange Commission of a Registration Statement on Form S-3
(No. 333-53967), as may be amended or supplemented from time to time (the
"Registration Statement"), and the prospectus contained in the Registration
Statement (the "Prospectus"), covering the registration under the Securities Act
of 1933, as amended (the "Securities Act"), of the following securities
(collectively, the "Securities"): (i) an indeterminate number of shares of the
Company's preferred stock, par value $.01 per share (the "Preferred Stock"), to
be issued from time to time in one or more series and (ii) an indeterminate
number of depositary shares representing fractional interests in shares of the
Preferred Stock (the "Depositary Shares"). The Securities are to be purchased by
certain underwriters and offered for sale to the public (the "Offering") in the
manner set forth in the Prospectus.
Depositary Shares representing fractional interests in shares of
Preferred Stock will be issued under a preferred stock deposit agreement to be
entered into among the Company, the depositary named therein, and the holders
from time to time of depositary receipts issued thereunder (the "Deposit
Agreement"). The forms of the Deposit Agreement and the Securities are filed or
incorporated by reference as exhibits to the Registration Statement.
In connection with the foregoing, we have examined originals, or
copies certified or otherwise identified to our satisfaction, of such documents
and corporate and public records as we have deemed necessary as a basis for the
opinions hereinafter expressed. In our examination, we have assumed the
genuineness of all signatures, the authenticity of all documents presented to us
as originals and the conformity to the originals of all documents presented to
us as copies. In
<PAGE> 2
2
rendering our opinions, we have relied as to factual matters upon certificates
and representations of officers of the Company and certificates of public
officials.
Based upon the foregoing and having regard for such legal
considerations as we deem relevant, we are of the opinion that:
(i) the Deposit Agreement has been duly authorized by the Company;
and
(ii) when the shares of Preferred Stock and, if applicable, the
Depositary Shares have been duly issued and paid for by the purchasers
thereof in the manner and on the terms described in the Registration
Statement (after it is declared effective), such shares of Preferred Stock
will be duly and validly issued, fully paid and nonassessable and, if
applicable, such Depositary Shares will represent legal and valid
interests in the corresponding shares of Preferred Stock.
We are members of the Bar of the State of New York and we do not
express any opinion herein concerning any law other than the law of the State of
New York and the Delaware General Corporation Law.
We hereby consent to the use of this opinion as Exhibit 5.1 to the
Registration Statement and to the use of our name under the caption "Legal
Matters" contained in the Prospectus. We hereby also consent to the
incorporation by reference of this opinion and consent in a registration
statement, if any, relating to the Offering filed by the Company pursuant to
Rule 462(b) under the Securities Act. In giving this consent, we do not thereby
concede that we come within the category of persons whose consent is required by
the Securities Act or the General Rules and Regulations promulgated thereunder.
Very truly yours,
/s/ Shearman & Sterling
SHEARMAN & STERLING
