EXHIBIT 4.2
DEPOSIT AGREEMENT
DATED ______________
AMONG
UNITED STATES STEEL CORPORATION
___________________, AS DEPOSITARY
AND
THE HOLDERS FROM TIME TO TIME OF THE DEPOSITARY RECEIPTS
DESCRIBED HEREIN
WITH RESPECT TO:
[INSERT DESIGNATION OF PREFERRED STOCK]
TABLE OF CONTENTS
ARTICLE I Definitions ..................................................... 1
ARTICLE II Form of Receipts, Deposit of Stock, Execution and Delivery,
Transfer, Surrender and Redemption of Receipts ............................ 2
ARTICLE III Certain Obligations of Holders of Receipts and the
Corporation ............................................................... 7
ARTICLE IV The Deposited Securities; Notices .............................. 8
ARTICLE V The Depositary, the Depositary's Agents, the Registrar and
the Corporation ........................................................... 11
ARTICLE VI Amendment and Termination ...................................... 15
ARTICLE VII Miscellaneous ................................................. 15
EXHIBIT A FORM OF DEPOSITARY RECEIPT
DEPOSIT AGREEMENT
DEPOSIT AGREEMENT dated as of ____________, among United States Steel
Corporation, a Delaware corporation, ___________, a________ corporation, and the
holders from time to time of the Receipts described herein.
WHEREAS it is desired to provide, as hereinafter set forth in this Deposit
Agreement, for the deposit of shares of [insert designation of preferred stock],
par value $1.00 per share, of United States Steel Corporation 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, modifications and omissions, as
hereinafter provided in this Deposit Agreement;
NOW, THEREFORE, in consideration of the premises and intending to be
legally bound, the parties hereto agree as follows:
ARTICLE I
DEFINITIONS
SECTION 1.01. DEFINED TERMS.
The following definitions shall for all purposes, unless otherwise
indicated, apply to the respective capitalized terms used in this Deposit
Agreement:
"Certificate" shall mean the Certificate of Designations filed with the
Secretary of State of Delaware establishing the Stock as a series of preferred
stock of the Corporation.
"Corporation" shall mean United States Steel Corporation, a Delaware
corporation, and its successors.
"Deposit Agreement" shall mean this Deposit Agreement, as amended or
supplemented from time to time in accordance with the terms hereof.
"Depositary" shall mean ____________, and any successor as Depositary
hereunder.
"Depositary Shares" shall mean Depositary Shares, each representing one
_________ 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.
"Depositary's Office" shall mean the principal office of the Depositary in
New York City, at which at any particular time its depositary receipt business
shall be administered.
"Receipt" shall mean one of the Depositary Receipts issued hereunder,
whether in definitive or temporary form.
"record holder" as applied to a Receipt shall mean the person in whose
name a Receipt is registered on the books of the Depositary maintained for such
purpose.
"Registrar" shall mean any bank or trust company that shall be appointed
pursuant to Section 7.05 to register ownership and transfers of Receipts as
herein provided.
"Stock" shall mean shares of the Corporation's [insert designation of
preferred stock], par value $1.00 per share.
"Transfer Agent" shall be as defined in Section 7.05.
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 substantially in the form set forth in
Exhibit A annexed to this Deposit Agreement, with appropriate insertions,
modifications and omissions, as hereinafter provided. Pending the preparation of
definitive Receipts, the Depositary, upon the written order of the Corporation
or any holder of Stock, as the case may be, delivered in compliance with Section
2.02, shall execute and deliver temporary Receipts that are printed,
lithographed, typewritten, mimeographed or otherwise substantially of the tenor
of the definitive Receipts in lieu of which they are issued and with such
appropriate insertions, omissions, substitutions and other variations as the
persons executing such Receipts may determine, as evidenced by their execution
of such Receipts. If temporary Receipts are issued, the Corporation and the
Depositary will cause definitive Receipts to be prepared without unreasonable
delay. After the preparation of definitive Receipts, the temporary Receipts
shall be exchangeable for definitive Receipts upon surrender of the temporary
Receipts at any office described in the third 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 Depositary Shares
as represented by the surrendered temporary Receipt or Receipts. Such exchange
shall be made at the Corporation's expense and without any charge therefor.
Until so exchanged, the temporary Receipts shall in all respects be entitled to
the same benefits under this Agreement, and with respect to the Stock, as
definitive Receipts.
Receipts shall be executed by the Depositary by the manual signature of a
duly authorized officer of the Depositary; provided, that such signature may be
a facsimile if a Registrar for the Receipts (other than the Depositary) shall
have been appointed and such Receipts are countersigned by manual signature of a
duly authorized officer of the Registrar. No Receipt shall be entitled to any
benefits under this Deposit Agreement or be valid or obligatory for any purpose
unless it shall have been executed manually by a duly authorized officer of the
Depositary or, if a Registrar for the Receipts (other than the Depositary) shall
have been appointed, by manual or facsimile signature of a duly
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authorized officer of the Depositary and countersigned manually by a duly
authorized officer of such Registrar. The Depositary shall record on its books
each Receipt so signed and delivered as hereinafter provided.
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 2.04, the
Depositary may, notwithstanding any notice to the contrary, treat the record
holder thereof at such time as the absolute owner thereof for the purpose of
determining the person entitled to distributions of dividends or other
distributions or to any notice provided for in this Deposit Agreement and for
all other purposes.
SECTION 2.02. DEPOSIT OF STOCK; EXECUTION AND DELIVERY OF RECEIPTS IN RESPECT
THEREOF.
Subject to the terms and conditions of this Deposit Agreement, the
Corporation or any holder of Stock may from time to time deposit shares of Stock
by delivery to the Depositary of a certificate or certificates representing 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 Corporation or such holder,
as the case may be, directing the Depositary to execute and deliver to, or upon
the written order of, the person or persons stated in such order a Receipt or
Receipts for the number of Depositary Shares representing such deposited Stock.
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 representing the Stock to be
deposited in accordance with the provisions of this Section, together with the
other documents required as above specified, and upon recordation of such Stock
on the books of the registrar for the Stock 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.
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Delivery at other offices shall be at the risk and expense of the person
requesting such delivery.
SECTION 2.03. REDEMPTION OF STOCK.
Whenever the Corporation shall elect to redeem shares of Stock in
accordance with the provisions of the Certificate, it shall (unless otherwise
agreed in writing with the Depositary) give the Depositary not less than 40 nor
more than 70 days' notice of the date of such proposed redemption of Stock,
which notice shall be accompanied by a certificate from the Corporation stating
that such redemption of Stock is in accordance with the provisions of the
Certificate. Such notice, if given more than 60 days prior to the redemption
date, shall be in addition to the notice required to be given for redemption
pursuant to the Certificate. On the date of such redemption, provided that the
Corporation shall then have paid in full to the Depositary the redemption price
of the Stock held by the Depositary to be redeemed, plus any accrued and unpaid
dividends thereon, the Depositary shall redeem the number of Depositary Shares
representing such Stock. The Depositary shall mail notice of such redemption and
the proposed simultaneous redemption of the number of Depositary Shares
representing the Stock to be redeemed, first-class postage prepaid, not less
than 30 and not more than 60 days prior to the date fixed for redemption of such
Stock and Depositary Shares (the "Redemption Date"), to the record holders of
the Receipts evidencing the Depositary Shares to be so redeemed, at the
addresses of such holders as they 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 to one or more such holders shall affect the sufficiency of
the proceedings for redemption as to other holders. Each such notice shall
state: (i) the Redemption Date; (ii) the number of Depositary Shares to be
redeemed and, if less than all the Depositary Shares held by any such holder are
to be redeemed, the number of such Depositary Shares held by such holder to be
so redeemed; (iii) the redemption price; (iv) the place or places where Receipts
evidencing Depositary Shares are to be surrendered for payment of the redemption
price; and (v) that dividends in respect of the Stock represented by the
Depositary Shares to be redeemed will cease to accumulate on such Redemption
Date. In case less than all the outstanding Depositary Shares are to be
redeemed, the Depositary Shares to be so redeemed shall be selected by lot or
pro rata (subject to rounding to avoid fractions of the Depositary Shares) as
may be determined by the Depositary to be equitable.
Notice having been mailed by the Depositary as aforesaid, from and after
the Redemption Date (unless the Corporation shall have failed to redeem the
shares of Stock to be redeemed by it as set forth in the Corporation's notice
provided for in the preceding paragraph) all dividends in respect of the shares
of Stock so called for redemption shall cease to accumulate, the Depositary
Shares being redeemed from such proceeds shall be deemed no longer to be
outstanding, all rights of the holders of Receipts evidencing such Depositary
Shares (except the right to receive the redemption price, including any accrued
and unpaid dividends thereon) shall, to the extent of such Depositary Shares,
cease and terminate and, upon surrender of the Receipts evidencing any such
Depositary Shares (properly endorsed or assigned for transfer, if the Depositary
shall so require) in accordance with such notice, such Depositary Shares shall
be redeemed by the Depositary at a redemption price per Depositary Share equal
to one _________ of the redemption price per share paid in respect of the shares
of Stock, plus accrued and unpaid dividends thereon to the date fixed for
redemption.
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If less than all the Depositary Shares evidenced by a Receipt are called
for redemption, the Depositary will deliver to the holder of such Receipt upon
its surrender to the Depositary, together with the redemption payment, a new
Receipt evidencing the Depositary Shares evidenced by such prior Receipt and not
called for redemption.
SECTION 2.04. REGISTRATION OF TRANSFER OF RECEIPTS.
Subject to the terms and conditions of this Deposit Agreement, the
Depositary shall register on its books from time to time transfers of Receipts
upon any surrender thereof by the holder in person or by duly authorized
attorney, properly endorsed or accompanied by a properly executed instrument of
transfer. Thereupon the Depositary and the Registrar 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 2.05. 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 by surrendering such Receipt or Receipts,
at the Depositary's Office or at such other offices as the Depositary may
designate for such withdrawals. Thereafter, without unreasonable delay, the
Depositary shall deliver to such holder, or to the person or persons designated
by such holder as hereinafter provided, the number of whole shares of Stock
represented by the Receipt or Receipts so surrendered for withdrawal, but
holders of such whole shares of Stock will not thereafter be entitled to deposit
such Stock hereunder or to receive Depositary Shares therefor; provided,
however, that a record holder who withdraws Stock in order to demand appraisal
rights available under Delaware General Corporation Law ("DGCL"), will, subject
to certain conditions described below, be entitled to redeposit such Stock with
the Depositary and to receive Receipts evidencing Depositary Shares therefor in
the event (i) such record holder subsequently withdraws such demand for
appraisal pursuant to Section 262(e) of the DGCL, (ii) appraisal rights are not
available for such Stock pursuant to Section 262 of the DGCL or (iii) such
record holder loses or otherwise fails to perfect his rights to appraisal. In
order to redeposit Stock with the Depositary, such a record holder must deliver
the certificates for such Stock, 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 instructions that such Stock
be so deposited, to the Depositary's office or to such other offices as the
Depositary may designate by not later than the 30th day after the earlier of (i)
the withdrawal of such demand for appraisal by such record holder, (ii) notice
by the Corporation that appraisal rights are not available for such Stock or
(iii) the date on which such record holder loses or otherwise fails to perfect
his rights to appraisal.
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The Corporation will notify any record holder of Receipts who so withdraws
Stock if appraisal rights in respect of Stock are not available. Any shares so
redeposited must be free and clear of any lien, security interest or pledge and
a holder may be required to provide certification of the foregoing and such
other certifications as may be required by the Depositary in accordance with
this Agreement. If required by the Depositary, Stock presented for redeposit
shall also be accompanied by (A) an agreement or assignment, or other instrument
satisfactory to the Depositary, which will provide for the prompt transfer to
the Depositary of any dividend or right to subscribe for additional Stock or to
receive other property which such record holder may thereafter receive upon or
in respect of such redeposited Stock, or in lieu thereof, such agreement of
indemnity or other agreement as shall be satisfactory to the Depositary, and (B)
a proxy or proxies entitling the Depositary to vote such redeposited Stock for
any and all purposes until the Stock is transferred and recorded on the register
of stockholders of the Corporation in the name of the Depositary or its nominee.
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 to be so withdrawn, deliver to such holder a new Receipt
evidencing such excess number of Depositary Shares.
Delivery of the Stock 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 being withdrawn is to be delivered to a person or
persons other than the record holder of the Receipt or Receipts being
surrendered for withdrawal of Stock, such holder shall execute and deliver to
the Depositary a written order so directing the Depositary and the Depositary
may require that the Receipt or Receipts surrendered by such holder for
withdrawal of such shares of Stock be properly endorsed in blank or accompanied
by a properly executed instrument of transfer in blank.
Delivery of the Stock represented by Receipts surrendered for withdrawal
shall be made by the Depositary at the Depositary's office or at such other
offices as the Depositary may designate, 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 2.06. LIMITATIONS ON EXECUTION AND DELIVERY, TRANSFER, SURRENDER AND
EXCHANGE OF RECEIPTS.
As a condition precedent to the execution and delivery, registration of
transfer, split-up, combination, surrender or exchange of any Receipt, the
Depositary, any of the Depositary's Agents or the Corporation may require (a)
payment to it of a sum sufficient for the payment (or, in the event that the
Depositary or the Corporation 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, (b) the production of evidence satisfactory to it as to the
identity and genuineness of any signature and (c) compliance with such
regulations, if any, as the Depositary or the Corporation may establish
consistent with the provisions of this Deposit Agreement.
The deposit of Stock may be refused, the delivery of Receipts against
Stock may be suspended, the registration of transfer of Receipts may be refused
and the registration of transfer, surrender or exchange of outstanding Receipts
may be
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suspended (i) during any period when the register of stockholders of the
Corporation is closed or (ii) if any such action is deemed necessary or
advisable by the Depositary, any Depositary's Agents or the Corporation, 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 2.07. LOST RECEIPTS, ETC.
In case any Receipt shall be mutilated, destroyed, lost or stolen, the
Depositary in its discretion may execute and deliver a Receipt of like form and
tenor in exchange and substitution for such mutilated Receipt, or in lieu of and
in substitution for such destroyed, lost or stolen Receipt, upon (i) the filing
by the holder thereof with the Depositary of evidence satisfactory to the
Depositary of such destruction or loss or theft of such Receipt, of the
authenticity thereof and of his or her ownership thereof and (ii) the furnishing
of the Depositary with reasonable indemnification satisfactory to it.
SECTION 2.08. CANCELLATION AND DESTRUCTION OF SURRENDERED RECEIPTS.
All Receipts surrendered to the Depositary or any Depositary's Agent shall
be canceled by the Depositary. Except as prohibited by applicable law or
regulation, the Depositary is authorized to destroy all Receipts so canceled.
ARTICLE III
CERTAIN OBLIGATIONS OF HOLDERS OF RECEIPTS AND THE CORPORATION
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 Corporation may reasonably deem necessary or proper. The Depositary or
the Corporation 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 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 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.
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SECTION 3.03. WARRANTY AS TO STOCK.
The Corporation hereby represents and warrants that the Stock, when
issued, will be 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 record holders of Receipts on the applicable record date fixed
pursuant to Section 4.04 such amounts of 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 Corporation 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 record 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 and
other than any rights, preferences or privileges described in Section 4.03, upon
Stock, the Depositary shall, subject to Sections 3.01 and 3.02, distribute to
record holders of Receipts on the applicable 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 record 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 record holders, or if for any other reason
(including any requirement that the Corporation or the Depositary withhold an
amount on account of taxes) the Depositary deems, after consultation with the
Corporation, such distribution not to be feasible, the Depositary may, with the
approval of the Corporation, 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 be, subject to Sections 3.01 and 3.02,
distributed or made available for distribution, as the case may be, by the
Depositary to record holders of Receipts as provided by Section 4.01 in the case
of a distribution received in cash. The Depositary shall not make any
distribution of securities received in respect of the Stock unless the
Corporation shall have provided an opinion of counsel stating that such
securities have been registered under the Securities Act of 1933 or do not need
to be so registered.
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SECTION 4.03. SUBSCRIPTION RIGHTS, PREFERENCES OR PRIVILEGES.
If the Corporation shall at any time offer or cause to be offered to the
persons in whose names Stock is recorded on the books of the Corporation any
rights, preferences or privileges to subscribe for or to purchase any securities
or any rights, preferences or privileges of any other nature, such rights,
preferences or privileges shall in each such instance be made available by the
Depositary to the record holders of Receipts in such manner as the Depositary
may determine, either by the issue to such record holders of warrants
representing such rights, preferences or privileges or by such other method as
may be approved by the Depositary in its discretion with the approval of the
Corporation; provided, however, that in case either (i) the Depositary
determines that it is not lawful or (after consultation with the Corporation)
not feasible to make such rights, preferences or privileges available to holders
of Receipts by the issue of warrants or otherwise, or (ii) with respect to any
portion of the rights, preferences or privileges of a holder of Receipts, the
Depositary is instructed that such holder does not desire to exercise such
rights, preferences or privileges, then the Depositary, in its discretion (with
the approval of the Corporation, in any case where the Depositary has determined
that it is not feasible to make such rights, preferences or privileges
available), may (if applicable laws and the terms of such rights, preferences or
privileges permit such transfer) sell such rights, preferences or privileges at
public or private sale, at such place or places and upon such terms as it may
deem proper. The net proceeds of any such sale shall be, subject to Sections
3.01 and 3.02, distributed by the Depositary to the record holders of Receipts
entitled thereto as provided by Section 4.01 in the case of a distribution
received in cash. The Depositary shall not make any distribution of any such
rights, preferences or privileges unless the Corporation shall have provided an
opinion of counsel stating that such rights, preferences or privileges have been
registered under the Securities Act of 1933 or do not need to be so registered.
If registration under the Securities Act of 1933, as amended, 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 Corporation agrees with the
Depositary that it will file promptly a registration statement pursuant to such
Act with respect to such rights, preferences or privileges and securities and
use all reasonable 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 a
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 such Act.
If any other action under the laws of any jurisdiction or any governmental
or administrative authorization, consent or permit is required in order for such
rights, preferences or privileges to be made available to holders of Receipts,
the Corporation agrees with the Depositary that the Corporation will use all
reasonable 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.
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SECTION 4.04. NOTICE OF DIVIDENDS, ETC.; FIXING OF RECORD DATE FOR HOLDERS OF
RECEIPTS.
Whenever any cash dividend or other cash distribution shall become payable
or any distribution other than cash shall be made, or if rights, preferences or
privileges shall at any time be offered, with respect to Stock, or whenever the
Depositary shall receive notice of any meeting at which record holders of Stock
are entitled to vote or of which holders of Stock are entitled to notice, or
whenever the Depositary and the Corporation 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 Corporation with respect to the Stock)
for the determination of the record holders of Receipts who shall be entitled to
receive such dividend, distribution, rights, preferences or privileges or the
net proceeds of the sale thereof, or to give instructions for the exercise of
voting rights at any such meeting, or who shall be entitled to notice of such
meeting or for any other appropriate reasons.
SECTION 4.05. VOTING RIGHTS.
Upon receipt of notice of any meeting at which the record holders of Stock
are entitled to vote, the Depositary shall, as soon as practicable thereafter,
mail to the record holders of Receipts a notice which shall contain (i) such
information as is contained in such notice of meeting and (ii) a statement that
the record 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 Corporation) and a brief
statement as to the manner in which such instructions may be given. Upon the
written request of the record 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. The Corporation hereby agrees to take all 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 record holder of a Receipt, the Depositary will abstain from voting (but, at
its discretion, not from appearing at any meeting with respect to such Stock
unless directed to the contrary by the holders of all the Receipts) to the
extent of the Stock represented by the Depositary Shares evidenced by such
Receipt.
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 Corporation or to which it
is a party, the Depositary may in its discretion with the approval of, and shall
upon the instructions of, the Corporation, and (in either case) in such manner
as the Depositary may deem equitable, (i) make such adjustments as are certified
by the Corporation in (x) the fraction of an interest represented by one
Depositary Share in one share of Stock and (y) the ratio of the redemption price
per Depositary Share to the redemption price of a share of Stock, in each case
as may be necessary fully to reflect the effects of such
10
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 which shall be received by the
Depositary in exchange for or upon conversion of or in respect of the Stock as
new deposited securities so received in exchange for or upon conversion or in
respect of such Stock. In any such case the Depositary may in its discretion,
with the approval of the Corporation, execute and deliver additional Receipts,
or may call for the surrender of all outstanding Receipts to be exchanged for
new Receipts specifically describing such new deposited securities. Anything to
the contrary herein notwithstanding, holders of Receipts shall have the right
from and after the effective date of any such change in par or stated value,
split-up, combination or other reclassification of the Stock or any such
recapitalization, reorganization, merger, amalgamation or consolidation 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. INSPECTION OF REPORTS.
The Depositary shall make available for inspection by record holders of
Receipts at the Depositary's Office, and at such other places as it may from
time to time deem advisable, any reports and communications received from the
Corporation which are received by the Depositary as the holder of Stock.
SECTION 4.08. LISTS OF RECORD HOLDERS OF RECEIPTS.
Promptly upon request from time to time by the Corporation, the Depositary
shall furnish to it a list, as of a recent date, of the names, addresses and
holdings of Depositary Shares of all persons in whose names Receipts are
registered on the books of the Depositary.
ARTICLE V
THE DEPOSITARY, THE DEPOSITARY'S AGENTS, THE REGISTRAR AND THE CORPORATION
SECTION 5.01. MAINTENANCE OF OFFICES, AGENCIES AND TRANSFER BOOKS BY THE
DEPOSITARY; REGISTRAR.
The Depositary shall maintain at the Depositary's Office facilities for
the execution, delivery, registration and registration of transfer, surrender
and exchange of Receipts, and at the offices of the Depositary's Agents, if any,
facilities for the delivery, registration of transfer, surrender and exchange of
Receipts, all in accordance with the provisions of this Deposit Agreement.
The Depositary shall keep books at the Depositary's Office for the
registration and registration of transfer of Receipts, which books at all
reasonable times shall be open for inspection by the record holders of Receipts;
provided, that any such holder requesting to exercise such right shall certify
to the Depositary that such inspection shall be for a proper purpose reasonably
related to such person's interest as an owner of Depositary Shares evidenced by
the Receipts. The Depositary may close such books,
11
at any time or from time to time, when deemed expedient by it in connection with
the performance of its duties hereunder. The Depositary may, with the approval
of the Corporation, appoint a Registrar for registration of the Receipts or the
Depositary Shares evidenced thereby. If the Receipts or the Depositary Shares
evidenced thereby or the Stock represented by such Depositary Shares shall be
listed on the New York Stock Exchange, the Depositary will appoint a Registrar
(acceptable to the Corporation) 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 Corporation. If the Receipts, such
Depositary Shares or such Stock are listed on one or more other stock exchanges,
the Depositary will, at the request of the Corporation, arrange such facilities
for the delivery, registration, registration of transfer, surrender and exchange
of such Receipts, such Depositary Shares or such Stock as may be required by law
or applicable stock exchange regulation.
SECTION 5.02. PREVENTION OF OR DELAY IN PERFORMANCE BY THE DEPOSITARY, THE
DEPOSITARY'S AGENTS, THE REGISTRAR, THE TRANSFER AGENT OR THE CORPORATION.
Neither the Depositary nor any Depositary's Agent nor any Registrar nor
any Transfer Agent nor the Corporation shall incur any liability to any holder
of any Receipt if by reason of any provision of any present or future law, or
regulation thereunder, of the United States of America or of any other
governmental authority or, in the case of the Depositary, the Depositary's Agent
or the Registrar, by reason of any provision, present or future, of the
Corporation's Certificate of Incorporation (including the Certificate) or by
reason of any act of God or war or other circumstance beyond the control of the
relevant party, the Depositary, the Depositary's Agent, the Registrar, the
Transfer Agent or the Corporation shall be prevented or forbidden from, or
subjected to any penalty on account of, doing or performing any act or thing
which the terms of this Deposit Agreement provide shall be done or performed;
nor shall the Depositary, any Depositary's Agent, any Registrar, any Transfer
Agent or the Corporation incur any liability to any holder of a Receipt (i) by
reason of any nonperformance or delay, caused as aforesaid, in the performance
of any act or thing which the terms of this Deposit Agreement provide shall or
may be done or performed, or (ii) by reason of any exercise of, or failure to
exercise, any discretion provided for in this Deposit Agreement except, in case
of any such exercise or failure to exercise discretion not caused as aforesaid,
if caused by the negligence or willful misconduct of the party charged with such
exercise or failure to exercise.
SECTION 5.03. OBLIGATIONS OF THE DEPOSITARY, THE DEPOSITARY'S AGENTS, THE
REGISTRAR, THE TRANSFER AGENT AND THE CORPORATION.
Neither the Depositary nor any Depositary's Agent nor any Registrar nor
any Transfer Agent nor the Corporation assumes any obligation or shall be
subject to any liability under this Deposit Agreement to holders of Receipts
other than for its negligence or willful misconduct.
Neither the Depositary nor any Depositary's Agent nor any Registrar nor
any Transfer Agent nor the Corporation shall be under any obligation to appear
in, prosecute or defend any action, suit or other proceeding in respect of the
Stock, the Depositary Shares or the Receipts which in its opinion may involve it
in expense or liability unless
12
indemnity satisfactory to it against all expense and liability be furnished as
often as may be required.
Neither the Depositary nor any Depositary's Agent nor any Registrar nor
any Transfer Agent nor the Corporation shall be liable for any action or any
failure to act by it in reliance upon the written 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 information. The Depositary, any Depositary's Agent, any
Registrar, any Transfer Agent and the Corporation may each rely and shall each
be protected in acting upon any written notice, request, direction or other
document believed by it to be genuine and to have been signed or presented by
the proper party or parties.
The Depositary and any Depositary's Agent 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, and any Registrar and
Transfer Agent shall be required to undertake, to perform such duties and only
such duties as are specifically set forth in this Agreement, and no implied
covenants or obligations shall be read into this Agreement against the
Depositary, any Registrar or any Transfer Agent. The Depositary will indemnify
the Corporation against any liability that may arise out of acts performed or
omitted by the Depositary or its agents due to its or their negligence or bad
faith. The Depositary, the Depositary's Agents, any Registrar and any Transfer
Agent may own and deal in any class of securities of the Corporation and its
affiliates and in Receipts. The Depositary may also act as transfer agent or
registrar of any of the securities of the Corporation and its affiliates.
SECTION 5.04. RESIGNATION AND REMOVAL OF THE DEPOSITARY; APPOINTMENT OF
SUCCESSOR DEPOSITARY.
The Depositary may at any time resign as Depositary hereunder by notice of
its election to do so delivered to the Corporation, such resignation to take
effect upon the appointment of a successor Depositary and its acceptance of such
appointment as hereinafter provided. The Corporation may at any time remove the
Depositary by notice of such removal delivered to the Depositary, such removal
to take effect upon the appointment of a successor Depositary and its acceptance
of such appointment as hereinafter provided.
In case at any time the Depositary acting hereunder shall resign or be
removed, the Corporation 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 Corporation 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
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and on the written request of the Corporation, 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 to such successor, and shall deliver to such successor
a list of the record holders of all outstanding Receipts. Any successor
Depositary shall promptly mail notice of its appointment to the record holders
of Receipts.
Any corporation into or with which the Depositary may be merged,
consolidated or converted shall be the successor of such Depositary without the
execution or filing of any document or any further act, and notice thereof shall
not be required hereunder. Such successor Depositary may authenticate the
Receipts in the name of the predecessor Depositary or in the name of the
successor Depositary.
SECTION 5.05. CORPORATE NOTICES AND REPORTS.
The Corporation agrees that it will transmit to the record holders of
Receipts, in each case at the addresses furnished to it pursuant to Section
4.08, all notices and reports (including without limitation financial
statements) required by law, by the rules of any national securities exchange
upon which the Stock, the Depositary Shares or the Receipts are listed or by the
Corporation's Certificate of Incorporation (including the Certificate) to be
furnished by the Corporation to holders of Receipts. Such transmission will be
at the Corporation's expense.
SECTION 5.06. INDEMNIFICATION BY THE CORPORATION.
The Corporation shall indemnify the Depositary, any Depositary's Agent,
any Registrar and any Transfer Agent against, and hold each of them harmless
from, any loss, liability or expense (including the costs and expenses of
defending itself) that may arise out of (a) acts performed or omitted in
connection with this Agreement and the Receipts by (i) the Depositary, any
Registrar, any Transfer Agent or any of their respective agents (including any
Depositary's Agent), except for any liability arising out of negligence or bad
faith on the respective parts of any such person or persons, or (ii) the
Corporation or any of its agents, or (b) the offer, sale or registration of the
Receipts or the Stock pursuant to the provisions hereof. The obligations of the
Corporation set forth in this Section 5.06 shall survive any succession of any
Depositary, Registrar, Transfer Agent or Depositary's Agent.
SECTION 5.07. CHARGES AND EXPENSES.
The Corporation shall pay all transfer and other taxes and governmental
charges arising solely from the existence of the depositary arrangements. The
Corporation shall pay all charges of the Depositary in connection with the
initial deposit of the Stock and the initial issuance of the Depositary Shares
and any redemption of the Stock at the option of the Corporation. All other
transfer and other taxes and governmental charges and fees for the withdrawal of
Stock upon surrender of Receipts shall be at the expense of holders of
Depositary Shares. The Depositary's fee for the withdrawal of Stock shall be at
the rate of $_____ per 100 Depositary Receipts. If, at the request of a holder
of Receipts, the Depositary incurs charges or expenses for which it is not
otherwise liable hereunder, such holder will be liable for such charges and
expenses. All other charges and expenses of the Depositary and any Depositary's
Agent hereunder and of any Registrar and Transfer Agent (including, in each
case, fees and expenses of counsel)
14
incident to the performance of their respective obligations hereunder will be
paid upon consultation and agreement between the Depositary and the Corporation
as to the amount and nature of such charges and expenses. The Depositary shall
present its statement for charges and expenses to the Corporation once every
three months or at such other intervals as the Corporation 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
Corporation and the Depositary in any respect which they may deem necessary or
desirable; provided, however, that no such amendment (other than any change in
the fees of any Depositary, Registrar or Transfer Agent, which shall go into
effect not sooner than three months after notice thereof to the record holders
of the Receipts) which shall materially and adversely alter the rights of the
holders of Receipts shall be effective unless such amendment shall have been
approved by the record holders of at least a majority of the Depositary Shares
then outstanding. Every holder of an outstanding Receipt at the time any such
amendment becomes effective shall be deemed, by continuing to hold such Receipt,
to consent and agree to such amendment and to be bound by the Deposit Agreement
as amended thereby.
SECTION 6.02. TERMINATION.
This Agreement may be terminated by the Corporation or the Depositary only
after (i) all outstanding Depositary Shares shall have been redeemed pursuant to
Section 2.03 or (ii) there shall have been made a final distribution in respect
of the Stock in connection with any liquidation, dissolution or winding up of
the Corporation and such distribution shall have been distributed to the holders
of Depositary Shares pursuant to Section 4.01 or 4.02, as applicable.
Upon the termination of this Deposit Agreement, the Corporation shall be
discharged from all obligations under this Deposit Agreement except for its
obligations to the Depositary, any Depositary's Agent, any Registrar and any
Transfer Agent under Sections 5.06 and 5.07.
ARTICLE VII
MISCELLANEOUS
SECTION 7.01. COUNTERPARTS.
This Deposit Agreement may be executed in any number of counterparts, and
by each of the parties hereto on separate counterparts, each of which
counterparts, when so executed and delivered, shall be deemed an original, but
all such counterparts taken together shall constitute one and the same
instrument.
15
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 Corporation hereunder or under the
Receipts shall be in writing and shall be deemed to have been duly given upon
receipt at ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇, Attention: Treasurer, or at
any other address of which the Corporation 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 upon
receipt at _________________, or at any other address of which the Depositary
shall have notified the Corporation in writing.
Any and all notices to be given to any record holder of a Receipt
hereunder or under the Receipts shall be in writing and shall be deemed to have
been duly given if personally delivered or sent by mail or by telegram or telex
confirmed by letter, addressed to such record holder at the address of such
record holder as it appears on the books of the Depositary, or if such holder
shall have filed with the Depositary a written request that notices intended for
such holder be mailed to some other address, at the address designated in such
request.
Delivery of a notice sent by mail or by telegram or telex 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 telex message) is deposited,
postage prepaid, in a post office letterbox. The Depositary or the Corporation
may, however, act upon any telegram or telex message received by it from the
other or from any holder of a Receipt, notwithstanding that such telegram or
telex message shall not subsequently be confirmed by letter or as aforesaid.
SECTION 7.05. DEPOSITARY'S AGENTS.
Except as otherwise set forth herein, the Depositary may from time to time
appoint Depositary's Agents to act in any respect for the Depositary for the
purposes of this Deposit Agreement and may at any time appoint additional
Depositary's Agents and vary or terminate the appointment of such Depositary's
Agents. The Depositary will notify the Corporation of any such action.
The Corporation has authorized the appointment of, and has requested the
Depositary to appoint hereunder, _________________, as transfer agent (the
"Transfer
16
Agent") for the Depositary Shares. The Depositary hereby appoints ____________
as Transfer Agent and Registrar for the Depositary Shares and delegates to
_____________ the duties of the Depositary hereunder customarily performed by a
transfer agent, a registrar and a depositary. Without otherwise affecting the
liability of the Depositary hereunder, it is hereby agreed that if _____________
shall have agreed in writing to be bound by all the terms and conditions of this
Deposit Agreement and to assume the obligations of the Depositary hereunder to
be performed by it, then in no event shall the Depositary be liable for any acts
or omissions of ____________ as Transfer Agent, Registrar or Depositary's Agent
with respect to the Depositary Shares.
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.
IN WITNESS WHEREOF, the Corporation 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.
CORPORATION: DEPOSITARY:
UNITED STATES STEEL CORPORATION
By: By:
------------------------------- -------------------------------
[Name & Title] [Name & Title]
17
EXHIBIT A
[FORM OF DEPOSITARY RECEIPT]
DEPOSITARY RECEIPT FOR DEPOSITARY SHARES EACH REPRESENTING A
ONE-____ INTEREST (SUBJECT TO ADJUSTMENT) IN A SHARE OF
________________, par value $1.00 per share
OF
UNITED STATES STEEL CORPORATION
(Incorporated under the laws of the State of Delaware)
No. ____________________ EACH DEPOSITARY SHARE REPRESENTS A
ONE-________ INTEREST (SUBJECT TO ADJUSTMENT) IN A SHARE
OF_________________, _______________________________
1. _______________, a __________ corporation, as Depositary (the
"Depositary"), hereby certifies that
____________________________________________________ is the registered owner of
____________ Depositary Shares ("Depositary Shares"), each Depositary Share
representing a one-____ (as such fraction may from time to time be adjusted as
provided in the Deposit Agreement, as defined below) interest in a share of
__________ (the "Stock") of United States Steel Corporation, a corporation duly
organized and existing under the laws of the State of Delaware (the
"Corporation") deposited with, and held by, the Depositary. The rights,
preferences and limitations of the Stock are set forth in the Certificate of
Designations adopted by the Corporation's Board of Directors (the "Authorizing
Resolutions"), copies of which are on file at the Depositary's office at
____________.
2. THE DEPOSIT AGREEMENT. Depositary Receipts (the "Receipts"), of which
this Receipt is one, are made available upon the terms and conditions set forth
in the Deposit Agreement, dated as of __________ (the "Deposit Agreement"),
among the Corporation, the Depositary and all holders from time to time of
Receipts. The Deposit Agreement (copies of which are on file at the Depositary's
Office) sets forth the rights of holders of Receipts and the rights and duties
of the Depositary in respect of the Stock deposited, and any and all money and
other property from time to time held thereunder. The statements made in this
Receipt are summaries of certain provisions of the Deposit Agreement and are
subject to the detailed provisions thereof, to which reference is hereby made.
The holder of this Receipt from time to time shall be deemed to be a party to
the Deposit Agreement and shall be bound by, and entitled to all of the rights
and benefits under, all the terms and conditions hereof and of the Deposit
Agreement by acceptance of delivery of this Receipt. Unless otherwise expressly
herein provided, all defined terms shall have the meanings ascribed thereto in
the Deposit Agreement.
3. REDEMPTION. Wherever the Corporation shall be permitted and shall
elect, under the Certificate of Designation relating to the Stock (the
"Certificate"), to redeem shares of the Stock, it shall give the Depositary not
less than 40 nor more than
70 days' notice thereof. The Depositary shall mail notice of such redemption and
the simultaneous redemption of the corresponding Depositary Shares not less than
30 and not more than 60 days prior to the date fixed for redemption to the
holders of record of Receipts representing the number of Depositary Shares to be
redeemed. Each such notice shall state: (a) the date of such proposed
redemption; (b) the number of Depositary Shares to be redeemed; (c) the
redemption price (which shall include full cumulative dividends thereon to the
redemption date); (d) the place or places where Receipts evidencing Depositary
Shares are to be surrendered for payment of the redemption price; and (e) that
dividends in respect of the Stock represented by the Depositary Shares to be
redeemed will cease to accumulate at the close of business on such redemption
date. In case less than all the outstanding Depositary Shares are to be
redeemed, the Depositary Shares to be so redeemed shall be selected by lot or
pro rata as may be determined by the Depositary to be equitable. From and after
the date set for redemption, all dividends in respect of the Depositary Shares
so called for redemption shall cease to accrue, such Depositary Shares shall no
longer be deemed outstanding and all rights of the holders of Receipts
representing such Depositary Shares (except the right to receive the redemption
price) shall cease and terminate. From and after the redemption date, upon
surrender in accordance with the redemption notice of the Receipts representing
any such Depositary Shares (properly endorsed or assigned for transfer, if the
Depositary shall so require), such Depositary Share shall be redeemed by the
Depositary at the redemption price per share equal to one-________ (1/__th) of
the redemption price per share paid in respect of the shares of Stock plus any
money or other property represented thereby.
4. TRANSFERS, SPLIT-UPS, COMBINATIONS. This Receipt is transferable on the
books of the Depositary upon surrender of this Receipt to the Depositary,
properly endorsed or accompanied by a properly executed instrument of transfer,
and upon such transfer the Depositary shall execute a new Receipt to or upon the
order of the person entitled thereto, as provided in the Deposit Agreement. This
Receipt may be split into other Receipts or combined with other Receipts into
one Receipt, representing the same aggregate number of Depositary Shares as the
Receipt or Receipts surrendered.
5. SUSPENSION OF DELIVERY, TRANSFER, ETC. The transfer or surrender of
this Receipt may be suspended during any period when the register of
stockholders of the Corporation is closed or if any such action is deemed
necessary or advisable by the Depositary, any agent of the Depositary, or the
Corporation at any time or from time to time because of any requirement of law
or of any government or governmental body or commission, or under any provision
of the Deposit Agreement.
6. PAYMENT OF TAXES OR OTHER GOVERNMENTAL CHARGES. If any tax or other
government charge shall become payable by or on behalf of the Depositary with
respect to this Receipt, such tax (including transfer taxes, if any) or
governmental charge shall be payable by the holder hereof. Transfer of this
Receipt may be refused until such payment 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 this Receipt and not theretofore sold may be
sold for the account of the holder thereof (after attempting by reasonable means
to notify such holder prior to such sale), and such dividends, interest payments
or other distributions or the proceeds of any such sale may be applied to any
payment of such tax or charge, the holder of this Receipt remaining liable for
any deficiency.
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7. WARRANTY BY COMPANY. The Corporation has warranted that the Stock, when
issued, will be validly issued, fully paid and nonassessable.
8. AMENDMENT. The form of the Receipts and any provisions of the Deposit
Agreement may at any time and from time to time be amended by agreement between
the Corporation 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 been approved by the holders of at least a
majority of the Depositary Shares then outstanding. A holder of a Receipt at the
time any such amendment so becomes effective shall be deemed, by continuing to
hold such Receipt, to consent and agree to such amendment and to be bound by the
Deposit Agreement as amended thereby.
9. CHARGES OF DEPOSITARY. The Corporation will pay all transfer and other
taxes and governmental charges arising solely from the existence of the
depositary arrangements, and all charges of the Depositary in connection with
the initial deposit of the Stock and the initial issuance of the Depositary
Shares and redemption of the Stock at the option of the Corporation. All other
transfer and other taxes and other governmental charges shall be at the expense
of holders of Depositary Shares. All other charges and expenses of the
Depositary and any agent of the Depositary will be paid in consultation and
agreement between the Depositary and the Corporation.
10. TITLE OF RECEIPTS. This Receipt (and the Depositary Shares evidenced
hereby), when properly endorsed or accompanied by a properly executed instrument
of transfer, is transferable by delivery with the same effect as in the case of
a negotiable instrument; PROVIDED, HOWEVER, that until transfer of a Receipt
shall be registered on the books of the Depositary, the Depositary may,
notwithstanding any notice to the contrary, treat the record holder hereof at
such time as the absolute owner hereof for the purpose of determining the person
entitled to distributions of dividends or other distributions or to any notice
provided for in the Deposit Agreement, and for all other purposes.
11. DIVIDENDS AND DISTRIBUTIONS. Whenever the Depositary receives any cash
dividend or other cash distribution on the Stock, the Depositary will, subject
to the provisions of the Deposit Agreement, make such distribution to the
Receipt holders as nearly as practicable in proportion to the number of
Depositary Shares held by them; PROVIDED, HOWEVER, that the amount distributed
will be reduced by any amounts required to be withheld by the Corporation or the
Depositary on account of taxes. Other distributions received on the Stock may be
distributed to holders of Receipts as provided in the Deposit Agreement.
12. FIXING OF RECORD DATE. Whenever any cash dividend or other cash
distribution shall become payable or any distribution other than cash shall be
made, or if rights, preferences or privileges shall at any time be offered, with
respect to Stock, or whenever the Depositary shall receive notice of any meeting
at which holders of Stock are entitled to vote or of which holders of Stock are
entitled to notice, the Depositary shall in each instance fix a record date
(which shall be the record date fixed by the Corporation with respect to the
Stock), for the determination of the holders of Receipts who shall be entitled
to receive such dividend, distribution, rights, preferences or
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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.
13. VOTING RIGHTS. Upon receipt of notice of any meeting at which holders
of Stock are entitled to vote, the Depositary shall, as soon as practicable
thereafter, mail to the record holders of Receipts a notice which shall contain
(i) such information as is contained in such notice of meeting and (ii) a
statement informing holders of Receipts that they may instruct the Depositary as
to the exercise of the voting rights pertaining to the amount of Stock
represented by their respective Depositary Shares and a brief statement as to
the manner in which such instructions may be given. Upon the written request of
a holder of a Receipt on such record date, the Depositary shall endeavor insofar
as practicable to vote or cause to be voted the amount of Stock represented by
such Receipt in accordance with the instructions set forth in such request. In
the absence of specific instructions from the holder of a Receipt, the
Depositary will abstain from voting (but, at its discretion, not from appearing
at any meeting with respect to such Stock unless directed to the contrary by the
holders of Receipts) to the extent of the Stock represented by the Depositary
Shares evidenced by such Receipt.
14. CHANGES AFFECTING DEPOSITED SECURITIES. 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 Corporation or to which it is a party, or upon the
sale of all or substantially all the Corporation's assets, the Depositary may in
its discretion with the approval of the Corporation, and in such manner as the
Depositary may deem equitable, (i) make such adjustments in (x) the fraction of
an interest represented by one Depositary Share in one share of Stock and (y)
the ratio of the redemption price of a share of Stock, in each case as may be
necessary fully to reflect the effect of such change and (ii) treat any
securities which shall be received by the Depositary in exchange for or upon
conversion 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 Corporation,
execute and deliver additional Receipts, or may call for the surrender of
outstanding Receipts to be exchanged for new Receipts specifically describing
such new deposited securities.
15. LIABILITY AND OBLIGATIONS OF THE DEPOSITARY, THE DEPOSITARY'S AGENTS
OR THE COMPANY. Neither the Depositary nor any Depositary's Agent nor any
Registrar nor the Corporation assumes any obligation or shall be subject to any
liability under this Deposit Agreement to any holder of any Receipt, other than
for its gross negligence or willful misconduct. Neither the Depositary nor any
Depositary's Agent nor any Registrar nor the Corporation 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 any other governmental authority or, in the case of the Depositary, the
Depositary's Agent or the Registrar, by reason of any provision, present or
future, of the Corporation's Certificate of Incorporation (including the
Certificate) or by reason of any act of God or war or other circumstances beyond
their control, the Depositary, the Depositary's Agent, the Registrar or the
Corporation shall be prevented or forbidden from doing or performing any act or
thing which the terms of this Deposit Agreement provide shall be done or
performed; nor shall the Depositary, any Depositary's Agent, any Registrar or
the Corporation incur any liability to any holder of a Receipt by reason of
nonperformance or
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delay, caused as aforesaid, in performance of any act or thing which by the
terms of the Deposit Agreement it is provided shall or may be done or performed,
or by reason of any exercise of, or failure to exercise, any discretion provided
for in the Deposit Agreement, other than for its gross negligence or willful
misconduct. Neither the Depositary nor any Depositary's Agent nor the
Corporation assumes any obligation or shall be subject to any liability under
the Deposit Agreement to holders of Receipts other than to use its best judgment
and good faith in the performance of such duties as are specifically set forth
in the Deposit Agreement. Neither the Depositary nor any Depositary's Agent nor
any Registrar nor the Corporation shall be under any obligation to appear in,
prosecute or defend any action, suit or other proceeding in respect of the
Stock, the Depositary Shares or the Receipts, which in its opinion may involve
it in expense or liability, unless indemnity satisfactory to it against all
expense and liability be furnished. The Deposit Agreement contains various other
exculpancy, indemnification and related provisions, to which reference is hereby
made.
16. RESIGNATION AND REMOVAL OF DEPOSITARY. The Depositary may at any time
(a) resign by written notice of its election to do so delivered to the
Corporation, such resignation to take effect upon the appointment of a successor
Depositary and its acceptance of such appointment, or (b) be removed by the
Corporation effective upon the appointment of a successor Depositary and its
acceptance of such appointment.
17. TERMINATION OF DEPOSIT AGREEMENT. The Deposit Agreement may be
terminated by the Corporation or the Depositary only upon or after the
occurrence of any of the following events: (i) all outstanding Depositary Shares
shall have been redeemed or (ii) there shall have been made a final distribution
in respect of the Stock in connection with any liquidation, dissolution or
winding up of the Corporation and such distribution shall have been distributed
to the holders of Receipts. Upon the termination of the Deposit Agreement, the
Corporation shall be discharged from all obligations thereunder except for its
obligations to the Depositary with respect to indemnification, charges and
expenses.
18. GOVERNING LAW. This Receipt and the Deposit Agreement 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.
This Receipt shall not be entitled to any benefits under the Deposit
Agreement or be valid or obligatory for any purpose unless this Receipt shall
have been executed manually by a duly authorized signatory of the Depositary or,
if a Registrar for the Receipts (other than the Depositary) shall have been
appointed, by facsimile by the Depositary provided this Receipt is countersigned
manually by the signature of a duly authorized signatory of such Registrar.
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The Corporation will furnish without charge to each stockholder who so
requests the powers, designations, preferences and rights of each class of stock
or series thereof and the qualifications, limitations or restrictions of such
preferences and/or rights.
Dated: ___________________,
as Depositary and Registrar
By ______________________________
Authorized Officer
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