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Exhibit 4.3
[FORM OF DEPOSIT AGREEMENT]
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THE CHASE MANHATTAN CORPORATION,
__________________________, As Depositary
AND
THE HOLDERS FROM TIME TO TIME OF
THE DEPOSITARY RECEIPTS DESCRIBED HEREIN
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Deposit Agreement
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Dated as of _____________
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TABLE OF CONTENTS
ARTICLE I....................................................................1
ARTICLE II...................................................................2
SECTION 2.01. Form and Transfer of Receipts...........................2
SECTION 2.02. Deposit of Stock; Execution and Delivery of
Receipts in Respect Thereof.............................2
SECTION 2.03. Redemption of Stock.....................................4
SECTION 2.04. Registration of Transfer of Receipts....................5
SECTION 2.05. Split-ups and Combinations of Receipts; Surrender
of Receipts and Withdrawal of Stock.....................6
SECTION 2.06. Limitations on Execution and Delivery, Transfer,
Surrender and Exchange of Receipts......................7
SECTION 2.07. Lost Receipts, etc......................................8
SECTION 2.08. Cancellation and Destruction of Surrendered
Receipts................................................8
ARTICLE III..................................................................8
SECTION 3.01. Filing Proofs, Certificates and Other Information.......8
SECTION 3.02. Payment of Taxes or Other Governmental Charges..........8
SECTION 3.03. Warranty as to Stock....................................9
ARTICLE IV...................................................................9
SECTION 4.01. Cash Distributions......................................9
SECTION 4.02. Distributions Other than Cash, Rights, Preferences
or Privileges...........................................9
SECTION 4.03. Subscription Rights, Preferences or Privileges.........10
SECTION 4.04. Notice of Dividends, etc...............................11
SECTION 4.05. Voting Rights..........................................12
SECTION 4.06. Changes Affecting Deposited Securities and
Reclassifications, Recapitalizations, etc..............12
SECTION 4.07. Inspection of Reports..................................13
SECTION 4.08. Lists of Record Holders of Receipts....................13
ARTICLE V...................................................................13
SECTION 5.01. Maintenance of Offices, Agencies and Transfer
Books by the Depositary; Registrar.....................13
SECTION 5.02. Prevention of or Delay in Performance by the
Depositary, the Depositary's Agents, the
Registrar, the Transfer Agent or the Company..........14
SECTION 5.03. Obligations of the Depositary, the Depositary's
Agents, the Registrar, the Transfer Agent and
the Company............................................14
SECTION 5.04. Resignation and Removal of the Depositary;
Appointment of Successor Depositary....................15
SECTION 5.05. Corporate Notices and Reports..........................16
SECTION 5.06. Indemnification by the Company.........................16
SECTION 5.07. Charges and Expenses...................................16
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ARTICLE VI..................................................................17
SECTION 6.01. Amendment..............................................17
SECTION 6.02. Termination............................................17
ARTICLE VII.................................................................18
SECTION 7.01. Counterparts...........................................18
SECTION 7.02. Exclusive Benefit of Parties...........................18
SECTION 7.03. Invalidity of Provisions...............................18
SECTION 7.04. Notices................................................18
SECTION 7.05. Depositary's Agents....................................19
SECTION 7.06. Holders of Receipts Are Parties........................19
SECTION 7.07. GOVERNING LAW..........................................19
SECTION 7.08. Inspection of Deposit Agreement........................19
SECTION 7.09. Headings...............................................20
EXHIBITS
Exhibit A Form of Receipt
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DEPOSIT AGREEMENT dated as of _____________ among THE CHASE
MANHATTAN CORPORATION, a Delaware corporation, _______________, a
______________, 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] of THE CHASE MANHATTAN 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, the parties hereto
agree as follows:
ARTICLE I
Definitions
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 Company.
"Company" shall mean The Chase Manhattan 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 ____________ a _____________, and any
successor as Depositary hereunder.
"Depositary Shares" shall mean depositary shares, each representing
[insert fractional share] 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.
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"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 which shall be
appointed pursuant to Section 7.05 to register ownership and transfers of
Receipts as herein provided.
"Stock" shall mean shares of the Company's [insert designation of
preferred stock], $1 par value per share (stated value $______ 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 [engraved or printed or lithographed on steel-engraved borders and
shall] be substantially in the form set forth in Exhibit A annexed to this
Deposit Agreement, with appropriate insertions, modifications and omissions, as
hereinafter provided. [Pending the preparation of definitive Receipts, the
Depositary, upon the written order of the Company or any holder of Stock, as the
case may be, delivered in compliance with Section 2.02, shall execute and
deliver temporary Receipts which are printed, lithographed, typewritten,
mimeographed or otherwise substantially of the tenor of the definitive Receipts
in lieu of which they are issued and with such appropriate insertions,
omissions, substitutions and other variations as the persons executing such
Receipts may determine, as evidenced by their execution of such Receipts. If
temporary Receipts are issued, the Company and the Depositary will cause
definitive Receipts to be prepared without unreasonable delay. After the
preparation of definitive Receipts, the temporary Receipts shall be exchangeable
for definitive Receipts upon surrender of the temporary Receipts at 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
Company's expense and without any charge therefor. Until so exchanged, the
temporary Receipts shall in all respects be entitled to the same benefits under
this Agreement, and with respect to the Stock, as definitive Receipts.]
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Receipts shall be executed by the Depositary by the manual signature
of a duly authorized officer of the Depositary; provided, that such signature
may be a facsimile if a Registrar for the Receipts (other than the Depositary)
shall have been appointed and such Receipts are countersigned by manual
signature of a duly authorized officer of the Registrar. No Receipt shall be
entitled to any benefits under this Deposit Agreement or be valid or obligatory
for any purpose unless it shall have been executed manually by a duly authorized
officer of the Depositary or, if a Registrar for the Receipts (other than the
Depositary) shall have been appointed, by manual or facsimile signature of a
duly authorized officer of the Depositary and countersigned manually by a duly
authorized officer of such Registrar. The Depositary shall record on its books
each Receipt so signed and delivered as hereinafter provided.
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 which is properly
endorsed, or accompanied by a properly executed instrument of transfer, shall be
transferable by delivery with the same effect as in the case of a negotiable
instrument; provided, however, that until transfer of a Receipt shall be
registered on the books of the Depositary as provided in Section 2.04, 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 Company 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
Company or such holder, as the case may be, directing the
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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. 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 Company 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 Company 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 Company 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
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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 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 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 [insert fractional share] 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.
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 in accordance with Section 2.01 a new
Receipt or Receipts and deliver at the Depositary's Office or such other
offices, if any, as the Depositary may designate such new Receipt or Receipts to
or upon the order of the person or persons entitled thereto, including any
interests of the transferor if such transferor has not transferred all the
Depositary Shares evidenced by such
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Receipt or Receipts, and such new Receipt or Receipts shall evidence the amount
of Depositary Shares so transferred and the amount of Depositary Shares retained
by that transferor.
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 Company 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. The Company will notify any record holder of Receipts who
so withdraws Stock in the event 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. In addition, if required by
the Depositary,
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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 Company
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
Company may require (a) payment to it of a sum sufficient for the payment (or,
in the event that the Depositary or the Company shall have made such payment,
the reimbursement to it) of any charges or expenses payable by 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 Company may establish
consistent with the provisions of this Deposit Agreement.
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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 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 2.07. 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 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 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
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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 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 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 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
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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 Company or the Depositary
withhold an amount on account of taxes) the Depositary deems, after consultation
with the Company, such distribution not to be feasible, the Depositary may, with
the approval of the Company, adopt such method as it deems equitable and
practicable for the purpose of effecting such distribution, including the sale
(at public or private sale) of the securities or property thus received, or any
part thereof, at such place or places and upon such terms as it may deem proper.
The net proceeds of any such sale shall 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 Company 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.
SECTION 4.03. Subscription Rights, Preferences or Privileges. If the
Company shall at any time offer or cause to be offered to the persons in whose
names Stock is recorded on the books of the Company any rights, preferences or
privileges to subscribe for or to purchase any securities or any rights,
preferences or privileges of any other nature, such rights, preferences or
privileges shall in each such instance be made available by the Depositary to
the record holders of Receipts in such manner as the Depositary may determine,
either by the issue to such record holders of warrants representing such rights,
preferences or privileges or by such other method as may be approved by the
Depositary in its discretion with the approval of the Company; provided,
however, that in case either (i) 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) 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
Company, in any case where the Depositary has determined that it is not feasible
to make such rights, preferences or privileges available), may (if applicable
laws 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
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make any distribution of any such rights, preferences or privileges unless the
Company 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 Company 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 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 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 Company agrees with the Depositary that the Company will use
its best efforts to take such action or obtain such authorization, consent or
permit sufficiently in advance of the expiration of such rights, preferences or
privileges to enable such holders to exercise such rights, preferences or
privileges.
SECTION 4.04. Notice of Dividends, etc.; 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 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
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.
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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 Company) 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 Company hereby agrees to take all action which
may be deemed necessary by the Depositary in order to enable the Depositary to
vote such Stock or cause such Stock to be voted. In the absence of specific
instructions from the 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 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 (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 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 Company, execute and deliver
additional Receipts, or may call for the surrender of all outstanding Receipts
to be exchanged for new Receipts specifically describing such new deposited
securities.
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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 Company 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 Company, the Depositary shall furnish to it a
list, as of a recent date, of the names, addresses and holdings of Depositary
Shares of all persons in whose names Receipts are registered on the books of the
Depositary.
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. 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, 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 Company, appoint a
Registrar for registration of the Receipts or the Depositary Shares evidenced
thereby. If the Receipts or the Depositary Shares evidenced thereby or the Stock
represented by such Depositary Shares shall be listed on the New York Stock
Exchange, the Depositary will appoint a Registrar (acceptable to the Company)
for registration of such Receipts or Depositary Shares in accordance with any
requirements of such Exchange. Such Registrar (which may be the Depositary if so
permitted by the requirements of such Exchange) may be removed and a substitute
registrar appointed by the Depositary upon the request or with the approval of
the Company. If the Receipts, such Depositary Shares or such Stock are listed on
one or more other
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stock exchanges, the Depositary will, at the request of the Company, arrange
such facilities for the delivery, registration, registration of transfer,
surrender and exchange of such Receipts, such Depositary Shares or such Stock as
may be required by law or applicable stock exchange regulation.
SECTION 5.02. Prevention of or Delay in Performance by the
Depositary, the Depositary's Agents, the Registrar, the Transfer Agent or the
Company. Neither the Depositary nor any Depositary's Agent nor any Registrar nor
any Transfer Agent nor the Company shall incur any liability to any holder of
any Receipt if by reason of any provision of any present or future law, or
regulation thereunder, of the United States of America or of any other
governmental authority or, in the case of the Depositary, the Depositary's Agent
or the Registrar, by reason of any provision, present or future, of the
Company'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 Company 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
Company incur any liability to any holder of a Receipt (i) by reason of any
nonperformance or delay, caused as aforesaid, in the performance of any act or
thing 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 Company. Neither the
Depositary nor any Depositary's Agent nor any Registrar nor any Transfer Agent
nor the Company assumes any obligation or shall be subject to any liability
under this Deposit Agreement to holders of Receipts other than for its gross
negligence or willful misconduct.
Neither the Depositary nor any Depositary's Agent nor any Registrar
nor any Transfer Agent nor the Company shall be under any obligation to appear
in, prosecute or defend any action, suit or other proceeding in respect of the
Stock, the Depositary Shares or the Receipts which in its opinion may involve it
in expense or liability unless indemnity satisfactory to it against all expense
and liability be furnished as often as may be required.
Neither the Depositary nor any Depositary's Agent nor any Registrar
nor any Transfer Agent nor the Company shall be liable for any action or any
failure to act by it in reliance
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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
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 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 Company against any liability which 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 Company and its
affiliates and in Receipts. The Depositary may also act as transfer agent or
registrar of any of the securities of the Company and its affiliates.
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 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.
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
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thereupon such successor Depositary, without any further act or deed, shall
become fully vested with all the rights, powers, duties and obligations of its
predecessor and for all purposes shall be the Depositary under this Deposit
Agreement, and such predecessor, upon payment of all sums due it and on the
written request of the Company, shall execute and deliver an instrument
transferring to such successor all rights and powers of such predecessor
hereunder, shall duly assign, transfer and deliver all right, title and interest
in the Stock 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 Company 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 Company's Certificate of
Incorporation (including the Certificate) to be furnished by the Company to
holders of Stock. Such transmission will be at the Company's expense.
SECTION 5.06. Indemnification by the Company. The Company 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) which 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 Company 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 Company 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 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
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the Depositary Shares and any redemption of the Stock at the option of the
Company. 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 $5.00 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) incident to the performance of their
respective obligations hereunder will be paid 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 (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
Company 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 Company 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 Company shall be
discharged from all obligations under this Deposit Agreement except for its
obligations to the Depositary,
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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.
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 telegram or
telex confirmed by letter, addressed to the Company at 000 Xxxx Xxxxxx, Xxx
Xxxx, Xxx Xxxx 00000, to the attention of the Secretary, 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 telex confirmed by
letter, addressed to the Depositary at the Depositary's Office, at
________________, or at any other address of which the Depositary shall have
notified the Company in writing.
Any and all notices to be given to any record holder of a Receipt
hereunder or under the Receipts shall be in writing and shall be deemed to have
been duly given if personally delivered or sent by mail or by telegram or 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.
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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 letter box. The Depositary or the
Company 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 Company
of any such action.
The Company has authorized the appointment of, and has requested the
Depositary to appoint hereunder, Xxxxx Xxxxxx Shareholder Services, L.L.C.
("CMSS") as transfer agent (the "Transfer Agent") for the Depositary Shares. The
Depositary hereby appoints CMSS as Transfer Agent and Registrar for the
Depositary Shares and delegates to CMSS 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 CMSS 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 CMSS 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.
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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 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.
THE CHASE MANHATTAN CORPORATION,
by
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Title:
[____________________,]
as Depositary,
by
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Title: