Exhibit 4.4
DEPOSIT AGREEMENT
DATED AS OF __________________,
AMONG
PRIMUS GUARANTY, LTD.,
A BERMUDA COMPANY,
________________, A [NATIONAL BANKING ASSOCIATION],
AND THE HOLDERS
FROM TIME TO TIME OF THE DEPOSITARY SHARES
DESCRIBED HEREIN.
WHEREAS it is desired to provide, as hereinafter set forth in this
Deposit Agreement, for the deposit of shares of ____ Preferred
Shares, Series
__, par value $__per share, of Primus Guaranty, Ltd. with the
Depositary (as
hereinafter defined) for the purposes set forth in this Deposit
Agreement and
for the issuance hereunder of Receipts (as hereinafter defined)
evidencing
Depositary Shares (as hereinafter defined) in respect of the Stock
(as
hereinafter defined) so deposited;
NOW, THEREFORE, in consideration of the premises, the parties
hereto
agree as follows:
ARTICLE I
DEFINITIONS
The following definitions shall for all purposes, unless otherwise
indicated, apply to the respective terms used in this Deposit
Agreement and the
Receipts:
"Certificate" shall mean the certificate of designation of terms
establishing the Stock as a series of preferred shares of the
Company.
"Company" shall mean Primus Guaranty, Ltd., a Bermuda company, and
its
successors.
"Deposit Agreement" shall mean this Deposit Agreement, as amended
or
supplemented from time to time.
"Depositary" shall mean ___________________, a [national banking
association], and any successor as Depositary hereunder.
"Depositary Shares" shall mean Depositary Shares, each representing
a
fractional interest in a share of the 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 office of the Depositary at
___________________, ___________________, ___________________, 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 with respect to a Depositary Share shall
mean the person in whose name a Receipt evidencing such Depositary
Share is
registered on the books of the Depositary maintained for such
purpose.
"Registrar" shall mean any bank or trust company which shall be
appointed to register ownership and transfers of Receipts as herein
provided.
"Stock" shall mean shares of the Company's _____% Preferred Shares,
Series __, $_____ par value.
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 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 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 an 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 Deposit 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 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 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 Company or 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 Depositary
Share 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 may from time to time deposit shares of Stock under
this Deposit
Agreement by delivery to the Depositary of a certificate or
certificates for the
Stock to be deposited, properly endorsed or accompanied, if
required by the
Depositary, by a duly executed instrument of transfer or
endorsement, in form
satisfactory to the Depositary, together with all such
certifications as may be
required by the Depositary in accordance with the provisions of
this Deposit
Agreement, and together with a written order of the Company
directing the
Depositary to 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 relating to such deposited Stock.
Deposited Stock shall be held by the Depositary at the Depositary's
Office or at such other place or places as the Depositary shall
determine.
Upon receipt by the Depositary of a certificate or certificates for
Stock deposited in accordance with the provisions of this Section,
together with
the other documents required as above specified, and upon
recordation of the
Stock so deposited on the books of the Company in the name of the
Depositary or
its nominee, the Depositary, subject to the terms and conditions of
this Deposit
Agreement, shall execute and deliver, to or upon the order of the
person or
persons named in the written order delivered to the Depositary
referred to in
the first paragraph of this Section, a Receipt or Receipts for the
number of
Depositary Shares relating to the Stock so deposited and registered
in such name
or names as may be requested by such person or persons.
The Depositary shall execute and deliver such Receipt or Receipts
at the
Depositary's Office or such other offices, if any, as the
Depositary may
designate. Delivery at other offices shall be at the risk and
expense of the
person requesting such delivery.
Other than in the case of splits, combinations or other
reclassifications affecting the Stock, or in the case of dividends
or other
distributions of Stock, if any, there shall be deposited hereunder
not more than
____________________ shares of Stock.
SECTION 2.03. 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
notice to
the Depositary of such proposed redemption, by first class mail,
postage prepaid
not less than 40 or more than 70 days prior to the date fixed for
redemption of
Stock in accordance with 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 to be redeemed, plus any accrued and
unpaid
dividends thereon, the Depositary shall redeem the Depositary
Shares relating to
such Stock. The Depositary shall mail notice of such redemption and
the proposed
simultaneous redemption of the number of Depositary Shares relating
to the Stock
to be redeemed, by first-class mail, 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
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 underlying the Depositary Shares to be
redeemed will cease
to accrue and 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, pro
rata or such
other method 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
Depositary Shares so called for redemption shall cease to accrue
and 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) shall, to
the extent of such Depositary Shares, cease and terminate and, upon
surrender in
accordance with such notice of the Receipts evidencing any such
Depositary
Shares (properly endorsed or assigned for transfer, if the
Depositary shall so
require), such Depositary Shares shall be redeemed by the
Depositary at a
redemption price per Depositary Share equal to the proportionate
part of the
redemption price per share paid in respect of the shares of Stock
plus all money
and other property, if any, paid with respect to such Depositary
Shares,
including all amounts paid by the Company in respect of
dividends which on the Redemption Date have accumulated on the
shares of Stock
to be so redeemed and have not theretofore been paid.
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 Depositary Shares upon any
surrender of
the Receipt or Receipts evidencing such Depositary Shares by the
holder in
person or by duly authorized attorney, properly endorsed or
accompanied by a
properly executed instrument of transfer. Thereupon the Depositary
shall execute
a new Receipt or Receipts evidencing the same aggregate number of
Depositary
Shares as those evidenced by the Receipt or Receipts surrendered
and deliver
such new Receipt or Receipts to or upon the order of the person
entitled
thereto.
SECTION 2.05. Split-ups and Combinations of Receipts; Surrender of
Depositary Shares 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
denominations requested, evidencing the aggregate number of
Depositary Shares
evidenced by the Receipt or Receipts surrendered.
Any holder of Depositary Shares may withdraw the number of whole
shares of Stock underlying such Depositary Shares and all money and
other
property, if any, underlying such Depositary Shares by surrendering
Receipts
evidencing such Depositary Shares 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 and all money and other property,
if any,
underlying the Depositary Shares 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 Receipts evidencing Depositary Shares
therefor. If a
Receipt delivered by a holder to the Depositary in connection with
such
withdrawal shall evidence a number of Depositary Shares relating to
other than a
number of whole shares of Stock, the Depositary shall at the same
time, in
addition to such number of whole shares of Stock and such money and
other
property, if any, to be so withdrawn, deliver to such holder, or
(subject to
Section 3.02) upon his order, a new Receipt evidencing such excess
number of
Depositary Shares. Delivery of the Stock and money and other
property being
withdrawn may be made by delivery of such certificates, documents
of title and
other instruments as the Depositary may deem appropriate.
If the Stock and the money and other property being withdrawn are
to
be delivered to a person or persons other than the Record Holder of
the
Depositary Shares evidenced by the 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.
Delivery of the Stock and money and other property, if any,
underlying
the Depositary Shares surrendered for withdrawal shall be made by
the Depositary
at the Depositary's Office, except that, at the request, risk and
expense of the
holder surrendering such Depositary Shares and for the account of
such holder,
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 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, may require the production of
evidence
satisfactory to it as to the identity and genuineness of any
signature and may
also require compliance with such regulations, if any, as the
Depositary or the
Company may establish consistent with the provisions of this
Deposit Agreement.
The delivery of Receipts against Stock may be suspended, the
registration of transfer of Depositary Shares may be refused and
the
registration of transfer, surrender or exchange of outstanding
Depositary Shares
may be suspended (i) during any period when the register of
shareholders of the
Company is closed or (ii) if any such action is deemed necessary or
advisable by
the Depositary, any of the Depositary's Agents or the Company at
any time or
from time to time because of any requirement of law or of any
government or
governmental body or commission or under any provision of this
Deposit
Agreement.
SECTION 2.07. 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, or 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 THE HOLDERS
OF RECEIPTS AND THE COMPANY
SECTION 3.01. Filing Proofs, Certificates and Other Information.
Any
holder of a Depositary Share 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 Depositary Share or the withdrawal
of any Stock
underlying Depositary Shares 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 Depositary Shares 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 Depositary Share or any withdrawal of Stock and
delivery of all
money or other property, if any, underlying such Depositary Share
may be refused
until any such payment due is made, and any dividends or other
distributions may
be withheld or all or any part of the Stock or other property
relating to such
Depositary Shares 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 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 Depositary Share 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 the Receipts.
ARTICLE IV
THE DEPOSITED SECURITIES; NOTICES
SECTION 4.01. Cash Distributions. Whenever the Depositary shall
receive any cash dividend or other cash distribution on the Stock,
the
Depositary shall, subject to Sections 3.01 and 3.02, distribute to
the Record
Holders of Depositary Shares on the 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 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 pa
