<PAGE>
EXHIBIT 4.22
ALLIED WASTE INDUSTRIES, INC.
Issuer
and
----------
AS DEPOSITARY
and
HOLDERS OF DEPOSITARY RECEIPTS
----------
DEPOSIT AGREEMENT
----------
Dated as of
[______________]
<PAGE>
TABLE OF CONTENTS
<TABLE>
<S>
<C>
ARTICLE I
DEFINITIONS
1
ARTICLE II FORM
OF RECEIPTS, DEPOSIT OF STOCK, EXECUTION AND DELIVERY,
TRANSFER,
SURRENDER AND REDEMPTION AND REPURCHASE OF RECEIPTS
2
Section 2.1
Form and Transfer of
Receipts
2
Section 2.2
Deposit of Stock;
Execution and Delivery of Receipts in Respect Thereof 3
Section 2.3
Redemption and
Repurchase of Stock
4
Section 2.4
Register of Transfer
of Receipts
5
Section 2.5
Combination and
Split-ups of Receipts
5
Section 2.6
Surrender of Receipts
and Withdrawal of Stock
5
Section 2.7
Limitations on
Execution and Delivery, Transfer, Split-up, Combination
and Surrender of Receipts and Withdrawal or Deposit of Stock
6
Section 2.8
Lost Receipts, etc
6
Section 2.9
Cancellation and
Destruction of Surrendered Receipts
6
Section 2.10
Conversion
6
ARTICLE III CERTAIN
OBLIGATIONS OF HOLDERS OF RECEIPTS AND THE COMPANY
7
Section 3.1
Filing Proofs,
Certificates and Other Information
7
Section 3.2
Payment of Taxes or
Other Governmental Charges
7
Section 3.3
Withholding
8
Section 3.4
Representations and
Warranties as to Stock
8
ARTICLE IV THE
STOCK, NOTICES
8
Section 4.1
Cash Distributions
8
Section 4.2
Distributions Other
Than Cash
8
Section 4.3
Subscription Rights,
Preferences or Privileges
9
Section 4.4
Notice of Dividends,
Fixing of Record Date for Holders of Receipts
9
Section 4.5
Voting Rights
9
Section 4.6
Changes Affecting
Stock and Reclassifications, Recapitalizations, etc 10
Section 4.7
Reports
10
Section 4.8
Lists of Receipt
Holders
10
ARTICLE V
THE DEPOSITARY, THE DEPOSITARY'S AGENTS, THE REGISTRAR AND THE
COMPANY
10
Section 5.1
Maintenance of
Offices, Agencies, Transfer Books by the Depositary; the
Registrar
10
Section 5.2
Prevention or Delay in
Performance by the Depositary, the Depositary's
Agents, the Registrar or the Company
11
Section 5.3
Obligations of the
Depositary, the Depositary's Agents, the Registrar
and the Company
11
Section 5.4
Resignation and
Removal of the Depositary, Appointment of Successor
Depositary
12
Section 5.5
Corporate Notices and
Reports
12
Section 5.6
Deposit of Stock by
the Company
12
Section 5.7
Indemnification by the
Company
13
</TABLE>
<PAGE>
<TABLE>
<S>
<C>
Section 5.8
Fees, Charges and
Expenses
13
ARTICLE VI
AMENDMENT AND TERMINATION
13
Section 6.1
Amendment
13
Section 6.2
Termination
13
ARTICLE VII
MISCELLANEOUS
13
Section 7.1
Counterparts
13
Section 7.2
Exclusive Benefits of
Parties
14
Section 7.3
Invalidity of
Provisions
14
Section 7.4
Notices
14
Section 7.5
Depositary's Agents
14
Section 7.6
Holders of Receipts
Are Parties
14
Section 7.7
Governing Law
14
Section 7.8
Headings
15
</TABLE>
<PAGE>
DEPOSIT AGREEMENT
DEPOSIT AGREEMENT, dated as of [ ] among Allied
Waste Industries, Inc.,
a Delaware corporation, [ ], a under the
laws of the State of [ ], as
Depositary, and all holders from time to time of Receipts issued
hereunder.
WITNESSETH:
WHEREAS, the Company desires to provide as hereinafter set forth in
this
Deposit Agreement, for the deposit of shares of the Stock with the
Depositary,
as agent for the holders of the Receipts evidencing Depositary
Shares
representing an interest in the Stock so deposited, for the
purposes set forth
in this Deposit Agreement and for the issuance hereunder of such
Receipts; and
WHEREAS, the Receipts are to be substantially in the form annexed
as
Exhibit A to this Deposit Agreement, with appropriate insertions,
modifications
and omissions to reflect the terms of any Certificate of
Designation and
otherwise, as hereinafter provided in this Deposit Agreement.
NOW,
THEREFORE, in consideration of the premises contained herein, it
is
agreed by and among the parties hereto as follows:
ARTICLE 1
DEFINITIONS
The
following definitions shall apply to the respective terms (in
the
singular and plural forms of such terms) used in this Deposit
Agreement and the
Receipts:
"CERTIFICATE OF DESIGNATION" shall mean the Certificate of
Designation
establishing and setting forth the rights, preferences, privileges,
limitations
and restrictions of the Stock, as filed with the Secretary of State
of the State
of Delaware.
"CERTIFICATE OF INCORPORATION" shall mean the Amended and
Restated
Certificate of Incorporation, as amended or as amended and restated
from time to
time, of the Company.
"COMPANY" shall mean Allied Waste Industries, Inc., a Delaware
corporation,
and its successors.
"CORPORATE OFFICE" shall mean the office of the Depositary in [
],
at
which at any particular time its business in respect of matters
governed by this
Deposit Agreement shall be administered, which at the date of this
Deposit
Agreement is located at [ ].
"DEPOSIT AGREEMENT" shall mean this agreement, as the same may be
amended,
modified or supplemented from time to time to reflect the terms of
any
Certificate of Designation or otherwise in accordance with the
provisions
hereof.
"DEPOSITARY" shall mean [ ], as Depositary
hereunder, and any successor
as Depositary hereunder.
"DEPOSITARY SHARE" shall mean the rights evidenced by the Receipts
executed
and delivered hereunder, including the interests in Stock granted
to holders of
Receipts pursuant to the terms and conditions of the Deposit
Agreement. Each
Depositary Share shall represent an interest in [ ] of one share
of Stock
deposited with the Depositary hereunder and the same proportionate
interest in
any and all other property received by the Depositary in respect of
such share
of Stock and held under this Deposit Agreement. Subject to the
terms of this
Deposit Agreement, each record holder of a Receipt evidencing a
Depositary Share
or Shares is entitled,
1
<PAGE>
proportionately, to all the rights, preferences and privileges, and
subject to
all the qualifications and restrictions, of the Stock represented
by such
Depositary Share or Shares, including any dividend, voting,
conversion,
redemption, liquidation and sinking fund rights contained in the
Certificate of
Designation, and to the benefits of all obligations and duties of
the Company in
respect of the Stock under the Certificate of Designation and the
Certificate of
Incorporation.
"DEPOSITARY'S AGENT" shall mean an agent appointed by the
Depositary as
provided, and for the purposes specified, in Section 7.5.
"RECEIPT" shall mean a Depositary Receipt executed and delivered
hereunder,
in substantially the form of Exhibit A hereto, evidencing a
Depositary Share or
Shares, as the same may be amended from time to time to reflect the
terms of any
Certificate of Designation or otherwise in accordance with the
provisions
hereof.
"RECORD HOLDER" or "HOLDER" as applied to a Receipt shall mean the
person
in whose name a Receipt is registered on the books maintained by or
on behalf of
the Depositary for such purpose.
"REGISTRAR" shall mean any company appointed to register ownership
and
transfers of Receipts as herein provided.
"SECURITIES ACT" shall mean the Securities Act of 1933, as
amended.
"STOCK" shall mean shares of the Company's Preferred Stock, Series
[
],
par value $0.01 per share.
ARTICLE II
FORM OF RECEIPTS, DEPOSIT OF STOCK, EXECUTION AND DELIVERY,
TRANSFER, SURRENDER AND REDEMPTION AND REPURCHASE OF RECEIPTS
SECTION 2.1 FORM AND TRANSFER OF RECEIPTS. Receipts shall be
engraved or
printed or lithographed unless they are evidenced by a global
receipt held by a
depositary for a clearing system and shall be substantially in the
form set
forth in Exhibit A annexed to this Deposit Agreement, with
appropriate
insertions, modifications and omissions to reflect the terms of any
Certificate
of Designation or otherwise, as hereinafter provided. Receipts
shall be executed
by the Depositary by the manual signature of a duly authorized
officer of the
Depositary; provided, however, that such signature may be a
facsimile if a
Registrar (other than the Depositary) shall have countersigned the
Receipts by
manual signature of a duly authorized officer of the Registrar.
Pending the
preparation of definitive Receipts, the Depositary, upon the
written order of
the Company delivered in accordance with Section 2.2, shall execute
and deliver
temporary Receipts which shall be printed, lithographed,
typewritten, or
otherwise reproduced substantially of the tenor of the definitive
Receipts in
lieu of which they are issued and with appropriate insertions,
modifications,
omissions, substitutions and other variations as the persons
executing such
Receipts may determine are necessary for such temporary Receipts,
as evidenced
by their execution of such temporary Receipts. If temporary
Receipts are issued,
the Company and the Depositary will cause definitive Receipts to be
prepared
without unreasonable delay; provided that if such temporary
Receipts are global
Receipts held by a depositary for a clearing system, definitive
Receipts need
not be prepared until the Receipts cease to be so held. After the
preparation of
definitive Receipts, the temporary Receipts shall be exchangeable
for definitive
Receipts upon surrender of the temporary Receipts at the Corporate
Office or
such other office as the Depositary may designate, without charge
to the holder.
Upon surrender for cancellation of any one or more temporary
Receipts, the
Depositary shall execute and deliver in exchange therefore
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 therefore. 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.
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
as provided in the preceding paragraph.
2
<PAGE>
The
Depositary shall record on its books each Receipt executed as
provided
above and delivered as hereinafter provided. Receipts bearing the
facsimile
signature of anyone who was at any time a duly authorized officer
of the
Depositary shall bind the Depositary, notwithstanding that such
officer has
ceased to hold such office prior to the delivery of such
Receipts.
Receipts may be issued
in denominations of any number of whole Depositary
Shares. All Receipts shall be dated the date of their
execution.
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 regulation or with the rules and
regulations of any
securities exchange upon which the Stock or the Depositary Shares
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 by
reason of the date of issuance of the Stock or otherwise.
Title to any Receipt (and to the Depositary Shares evidenced by
such
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 investment securities in general; provided, however,
that 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 2.2 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 deposit such 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 properly executed instrument of transfer in form
satisfactory
to the Depositary, together with (i) all such certifications as may
be required
by the Depositary in accordance with the provisions of this Deposit
Agreement
and (ii) a written order of the Company 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.
Upon
receipt by the Depositary of a certificate or certificates for
Stock
to be deposited hereunder, together with the other documents
specified above,
the Depositary shall, as soon as transfer and registration can be
accomplished,
present such certificate or certificates to the registrar and
transfer agent of
the Stock for transfer and registration in the name of the
Depositary or its
nominee of the Stock being deposited. Deposited Stock shall be held
by the
Depositary in an account to be established by the Depositary at the
Corporate
Office.
Upon
receipt by the Depositary of a certificate or certificates for
Stock
to be deposited hereunder, together with the other documents
specified above,
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 2.2, a Receipt or Receipts for the number
of whole
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 Corporate
Office,
except that, at the request, risk and expense of any person
requesting such
delivery and for such person's account or, upon the order of such
person, any
other person's account, such delivery may be made at such other
place as may be
designated by such person. In each case, delivery will be made only
upon payment
to the Depositary of all taxes and other governmental charges and
any fees
payable in connection with such deposit and the transfer of the
deposited Stock.
The
Company shall deliver to the Depositary from time to time such
quantities of Receipts as the Depositary may request to enable the
Depositary to
perform its obligations under this Deposit Agreement.
3
<PAGE>
SECTION 2.3 REDEMPTION AND REPURCHASE OF STOCK. Whenever the
Company shall
redeem shares of Stock in accordance with a Certificate of
Designation, it shall
(unless otherwise agreed in writing with the Depositary) give the
Depositary in
its capacity as Depositary not less than 3 business days' prior
notice of the
proposed date of the mailing of a notice of redemption of Stock and
the
simultaneous redemption of the Depositary Shares representing the
Stock to be
redeemed and of the number of such shares of Stock held by the
Depositary to be
redeemed. Unless the Certificate of Designation for a specific
series of Stock
provides for a different notice period with respect to that Stock
in the event
of its redemption, the Depositary shall, as directed by the Company
in writing,
mail, first class postage prepaid, notice of the redemption of
Stock and the
proposed simultaneous redemption of the Depositary Shares
representing the Stock
to be redeemed not less than 30 and not more than 60 days prior to
the date
fixed for redemption of such Stock and Depositary Shares, to the
record holders
of the Receipts evidencing the Depositary Shares to be so redeemed
at the
addresses of such holders as the same appear on the records of the
Depositary or
any Depositary's Agent or Registrar. Notwithstanding the foregoing,
neither
failure to mail or publish any such notice to one or more such
holders nor any
defect in any notice shall affect the sufficiency of the
proceedings for
redemption. The Company shall provide the Depositary with such
notice, and each
such notice shall state the method for determining the amount
payable per
Depositary Share, the redemption date, and the number of Depositary
Shares to be
redeemed, and such notice shall call upon each holder of Depositary
Shares to
surrender, on the redemption date and at the place or places
designated by the
Company, the Receipts evidencing Depositary Shares to be redeemed.
On the date
of any such redemption the Depositary shall surrender the
certificate or
certificates held by the Depositary evidencing the number of shares
of Stock to
be redeemed in the manner specified in the notice of redemption of
Stock
provided by the Company pursuant to the applicable Certificate of
Designation.
The Depositary shall, thereafter, redeem the number of Depositary
Shares
representing such redeemed Stock upon the surrender of Receipts
evidencing such
Depositary Shares in the manner provided in the notice sent to
record holders of
Receipts.
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 upon the surrender of the certificate
or
certificates therefore by the Depositary as described in the
preceding
paragraph), the Depositary Shares called for redemption shall be
deemed no
longer to be outstanding and all rights of the holders of Receipts
evidencing
such Depositary Shares (except the right to receive the cash,
securities or
other property payable upon redemption upon surrender of such
Receipts) shall,
to the extent of such Depositary Shares, cease and terminate. The
foregoing
shall be subject further to the terms and conditions of the
applicable
Certificate of Designation.
If
fewer than all the Depositary Shares are to be redeemed, the
Depositary
Shares to be redeemed will be selected by lot or proportionately,
as may be
determined by the Depositary. If fewer than all of 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,
cash,
securities or other property payable upon redemption in respect of
the
Depositary Shares called for redemption and a new Receipt
evidencing the
Depositary Shares evidenced by such prior Receipt and not called
for redemption.
The
Depositary shall not be required to transfer or exchange for
another
Receipt any Receipt evidencing Depositary Shares called or being
called for
redemption, in whole or in part except as provided in the
immediately preceding
paragraph of this Section 2.3.
Whenever the Company shall be required to make an offer to
repurchase
Depositary Shares representing Stock in accordance with a
Certificate of
Designation, it shall (unless otherwise agreed in writing with the
Depositary)
give the Depositary in its capacity as Depositary not less than 3
business days'
prior notice of the required date of the mailing of a notice of the
repurchase
offer. The Depositary shall, as directed by the Company in writing,
mail, first
class postage prepaid, notice of the relevant terms of the
repurchase offer, as
provided by the Company, to the record holders of the Receipts at
the addresses
of such holders as the same appear on the records of the Depositary
or any
Depositary's Agent or Registrar, including: (i) that such notice is
being given
pursuant to a repurchase offer, (ii) the number of Depositary
Shares and Stock
for which the offer is being made, (iii) the method for determining
the amount
payable per Depositary Share, (iv) the last date, which, unless the
Certificate
of Designation for a specific series of Stock provides for a
different period
with respect to that Stock in the event that the Company is
required to make an
offer to repurchase it, shall not be less than 30 nor more than 60
days after
the date of such notice, by which a holder must elect to accept the
repurchase
offer, (v) the procedures that such holder must follow to exercise
its rights,
and (vi) the procedures for withdrawing an election.
4
<PAGE>
The
Depositary shall, thereafter, receive from each holder electing to
have
Depositary Shares repurchased pursuant to the repurchase offer in
accordance
with the instructions in the notice, the holder's Receipts, with an
appropriate
form duly completed prior to the repurchase date. Holders will be
entitled to
withdraw an election by a written notice of withdrawal delivered to
the
Depositary prior to the close of business on the repurchase date.
The notice of
withdrawal shall state the number of Depositary Shares and the
Receipt numbers
to which the notice of withdrawal relates and the number of
Depositary Shares
and Receipt numbers, if any, which remain subject to election. In
case the
aggregate number of Depositary Shares offered for repurchase by the
holders
exceeds the amount of Depositary Shares which the Company has
offered to
repurchase pursuant to the repurchase offer, the Depositary Shares
to be
repurchased shall be selected by the Depositary by lot or
proportionately, as
may be determined by the Depositary. The Depositary shall, at the
direction of
the Company, cause payment to be mailed or delivered to each
tendering holder as
promptly as reasonably practicable after the repurchase date, in
the amount of
the repurchase price for the Depositary Shares tendered, and any
unpurchased
Depositary Shares to be returned to the holder thereof. The
foregoing is subject
further to the terms and conditions of the applicable Certificate
of
Designation.
SECTION 2.4 REGISTER 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
at the
Corporate Office, or such other office as the Depositary may
designate for such
purpose, by the record holder in person or by a duly authorized
attorney,
properly endorsed or accompanied by a properly executed instrument
of transfer,
together with evidence of the payment of any transfer taxes as may
be required
by law. Upon such surrender, the Depositary shall execute a new
Receipt or
Receipts and deliver the same to or upon the order of the person
entitled
thereto evidencing the same aggregate number of Depositary Shares
evidenced by
the Receipt or Receipts surrendered.
SECTION 2.5 COMBINATION AND SPLIT-UPS OF RECEIPTS. Upon surrender
of a
Receipt or Receipts at the Corporate Office, or such other office
as the
Depositary may designate for the purpose of effecting a split-up or
combination
of Receipts, subject to the terms and conditions of this Deposit
Agreement, the
Depositary shall execute and deliver a new Receipt or Receipts in
the authorized
denominations requested evidencing the same aggregate number of
Depositary
Shares evidenced by the Receipt or Receipts surrendered; provided,
however, that
the Depositary shall not issue any Receipt evidencing a fractional
Depositary
Share.
SECTION 2.6 SURRENDER OF RECEIPTS AND WITHDRAWAL OF STOCK. Any
holder of a
Receipt, including the Company, shall have the right, upon payment
of any amount
due to the Depositary with respect to the Receipt, to withdraw any
or all of the
Stock (but only in whole shares of Stock) represented by the
Depositary Shares
and all money and other property, if any, represented by such
Depositary Shares
by surrendering the Receipt or Receipts evidencing such Depositary
Shares at the
Corporate Office, or at such other office as the Depositary may
designate for
such withdrawals (and cancellation of the surrendered Receipts as
provided in
Section 2.9). After such surrender, without unreasonable delay, the
Depositary
shall deliver to the holder the whole number of shares of Stock and
all such
money and other property, if any, represented by the Depositary
Shares evidenced
by the Receipt or Receipts so surrendered for withdrawal. If the
Receipt or
Receipts delivered by the holder to the Depositary in connection
with such
withdrawal shall evidence a number of Depositary Shares in excess
of the number
of whole Depositary Shares representing the whole number of shares
of Stock to
be withdrawn, the Depositary shall at the same time, in addition to
such whole
number of shares of Stock and such money and other property, if
any, to be
withdrawn, deliver to the holder, or (subject to Section 2.4) upon
its order, a
new Receipt or Receipts evidencing such excess number of whole
Depositary
Shares.
Delivery of the Stock and such money and other property being
withdrawn may
be made by the delivery of such certificates, documents of title
and other
instruments as the Depositary may deem appropriate, which, if
required by the
Depositary, shall be properly endorsed or accompanied by proper
instruments of
transfer.
The
Depositary shall deliver the Stock and the money and other
property, if
any, represented by the Depositary Shares evidenced by Receipts
surrendered for
withdrawal, without unreasonable delay, at the office at which such
Receipts
were surrendered, except that, at the request, risk and expense of
the Company
such delivery may be made, without unreasonable delay, at such
other place as
may be designated by the Company.
5
<PAGE>
For
purposes of determining the number of Depositary Shares outstanding
on
any dividend payment date, the Receipts representing Depositary
Shares acquired
by the Company on or prior to such dividend payment date and not
theretofore
delivered to the Depositary for withdrawal and cancellation shall
be deemed to
be outstanding.
SECTION 2.7 LIMITATIONS ON EXECUTION AND DELIVERY, TRANSFER,
SPLIT-UP,
COMBINATION AND SURRENDER OF RECEIPTS AND WITHDRAWAL OR DEPOSIT OF
STOCK. As a
condition precedent to the execution and delivery, registration of
transfer,
split-up, combination, or surrender of any Receipt, the delivery of
any
distribution thereon or withdrawal or deposit of Stock, or the
exercise of any
conversion right referred to in Section 2.10, the Depositary, any
of the
Depositary's Agents, the Registrar or the Company may require any
or all of the
following: (i) 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 tax or other governmental charge or fee
with respect
thereto (including any such tax or charge or fee with respect to
the Stock being
deposited or the Stock being withdrawn or with respect to property
of the
Company being issued upon redemption or conversion); (ii)
production of proof
satisfactory to it as to the identity and genuineness of any
signature; and
(iii) compliance with such reasonable regulations, if any, as the
Depositary or
the Company may establish not inconsistent with the provisions of
this Deposit
Agreement.
The
deposit of Stock may be refused, or the registration of
transfer,
split-up, combination or surrender of outstanding Receipts and the
withdrawal of
deposited Stock or the exercise of any conversion right referred to
in Section
2.10 may be suspended (i) during any period when the register of
stockholders of
the Company is closed, (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, or (iii) with the approval of the Company, for any other
reason.
Without limitation of the foregoing, the Depositary shall not
knowingly accept
for deposit under this Deposit Agreement any shares of Stock that
are required
to be registered under the Securities Act unless a registration
statement under
the Securities Act is in effect as to such shares of Stock.
SECTION 2.8 LOST RECEIPTS, ETC. In case any Receipt shall be
mutilated or
destroyed or lost or stolen, the Depositary shall 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
unless the Depositary has notice that such Receipt has been
acquired by a bona
fide purchaser; provided, however, that the holder thereof provides
the
Depositary with (i) evidence satisfactory to the Depositary of such
destruction,
loss or theft of such Receipt, of the authenticity thereof and of
his ownership
thereof, (ii) reasonable indemnification satisfactory to the
Depositary or the
payment of any charges incurred by the Depositary in obtaining
insurance in lieu
of such indemnification and (iii) payment of any expense (including
fees,
charges and expenses of the Depositary) in connection with such
execution and
delivery.
SECTION 2.9 CANCELLATION AND DESTRUCTION OF SURRENDERED RECEIPTS.
All
Receipts surrendered to the Depositary or any Depositary's Agent
shall be
cancelled by the Depositary. Except as prohibited by applicable law
or
regulation, the Depositary is authorized to destroy such Receipts
so canceled.
SECTION 2.10 CONVERSION. In the event that the Stock, in accordance
with
its Certificate of Designation, is convertible into the Company's
common stock
or other securities, subject to the terms and conditions of this
Deposit
Agreement, a holder of a Receipt or Receipts may surrender such
Receipt or
Receipts at the Corporate Office or at such other office or to a
Depositary's
Agent that the Depositary may designate for such purpose, together
with a notice
of conversion duly completed and executed, thereby directing the
Depositary or
such Depositary's Agent to instruct the Company to cause the
conversion of the
number of shares of Stock specified in such notice of conversion
into shares of
the Company's common stock or other securities at the rate
specified in the
applicable Certificate of Designation, and an assignment of such
Receipt or
Receipts to the Company or in blank, duly completed and executed,
along with any
other documents or instruments and any amounts required by the
applicable
Certificate of Designation.
Upon
receipt by the Depositary or a Depositary's Agent of a Receipt
or
Receipts, together with a notice of conversion, duly completed and
executed,
directing the Depositary or such Depositary's Agent to instruct the
Company to
cause the conversion of a specified number of shares of Stock at
the rate
specified in the applicable Certificate of Designation, and an
assignment of
such Receipt or Receipts to the Company or in blank, duly
6
<PAGE>
completed and executed, along with any other documents or
instruments or amounts
referred to in the preceding paragraph, the Depositary or such
Depositary's
Agent shall instruct the Company, subject to any adjustment
provided for in the
applicable Certificate of Designation, (i) to cause the conversion
at the rate
specified in the applicable Certificate of Designation of the
number of shares
of Stock represented by the Depositary Shares evidenced by the
Receipt or
Receipts so surrendered for conversion as specified in the written
notice to the
Depositary or such Depositary's Agent and (ii) to cause the
delivery to the
holder of such Receipt or Receipts of (a) a certificate or
certificates
evidencing the number of whole shares of the Company's common stock
or other
securities into which such Stock has been converted, and (b) the
amount of cash
or other property, if any, to which such holder is entitled in lieu
of
fractional shares of, or fractional interests in, the Company's
common stock or
other securities otherwise deliverable by the Company upon such
conversion,
calculated in accordance with the applicable Certificate of
Designation. The
Company shall as promptly as practicable after receipt thereof
cause the
delivery of the certificate or certificates and cash or other
property, if any,
referred to in clauses (a) and (b) above, and such conversion shall
be deemed to
have been effected immediately prior to the close of business on
the date of
such receipt and shall occur at the rate specified in the
Certificate of
Designation in effect at such time and on such date. Upon such
conversion, the
Depositary or such Depositary's Agent (i) shall deliver to the
holder a Receipt
evidencing the number of Depositary Shares evidenced by the
surrendered Receipt
or Receipts in excess of the number of Depositary Shares evidenced
by such
Receipt or Receipts that have been so converted, (ii) shall cancel
the Receipts
surrendered for conversion and (iii) shall deliver to the Company
for
cancellation the number of shares of Stock evidenced by the
Receipts so
surrendered and so converted. Upon the delivery of the shares of
Stock to be
cancelled due to such conversion by the Depositary or such
Depositary's Agent to
the Company, the Company shall deliver to the Depositary or such
Depositary's
Agent, as applicable, a certificate or certificates evidencing the
number of
shares of Stock, if any, that equals the excess of the number of
shares
evidenced by the surrendered certificate over the number of shares
evidenced by
that certificate that have been so converted. Depositary Shares
converted in
connection with conversion of the Stock represented thereby shall
only be
converted in whole, and not in part.
Upon
the conversion of any Stock for which a notice of conversion has
been
provided to the Depositary or a Depositary's Agent by the holder of
the Receipt
or Receipts representing such Stock, the Depositary Shares
evidenced by such
Receipt or Receipts shall be deemed no longer outstanding, all
rights of the
holder of the Receipt or Receipts evidencing such Depositary Shares
(except the
right to receive (i) the Company's common stock or other securities
to which
such holder is entitled upon conversion in accordance with the
applicable
Certificate of Designation, (ii) any cash or other property payable
in
accordance with the applicable Certificate of Designation with
respect to any
fractional shares or other fractional interests in the Company's
common stock or
other securities otherwise deliverable by the Company upon
conversion, (iii) any
Receipts evidencing Depositary Shares representing Stock which was
not so
converted and (iv) any other securities, property or cash to which
such holder
is entitled under this Deposit Agreement) shall cease and
terminate, and the
Receipt or Receipts evidencing such Depositary Shares shall be
cancelled. No
fractional shares or other fractional interests in the Company's
common stock or
other securities shall be deliverable by the Company upon
conversion of the
Stock represented by the Depositary Shares.
ARTICLE III
CERTAIN OBLIGATIONS OF HOLDERS OF RECEIPTS AND THE COMPANY
SECTION 3.1 FILING PROOFS, CERTIFICATES AND OTHER INFORMATION. Any
person
presenting Stock for deposit or any holder of a Receipt may be
required from
time to time to file such proof of residence 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 or delay the delivery of any
Receipt, the
registration of transfer or redemption of any Receipt, the
withdrawal of the
Stock represented by the Depositary Shares evidenced by any
Receipt, the
distribution of any dividend or other distribution or the exercise
of any
conversion right referred to in Section 2.10, or refuse to accept
Receipts that
are delivered for surrender, until such proof or other information
is filed,
such certificates are executed or such representations and
warranties are made.
SECTION 3.2 PAYMENT OF TAXES OR OTHER GOVERNMENTAL CHARGES. If any
tax or
other governmental charge or fee shall become payable by or on
behalf of the
Depositary with respect to (i) any Receipt, (ii) the Depositary
Shares evidenced
by such Receipt, (iii) the Stock (or fractional interest therein)
or other
property represented by such Depositary Shares, or (iv) any
transaction referred
to in Section 4.6, such tax (including transfer,
7
<PAGE>
issuance or acquisition taxes, if any) or governmental charge or
fee shall be
payable by the holder of such Receipt, who shall pay the amount
thereof to the
Depositary. Until such payment is made, registration or transfer of
any Receipt
or any split-up or combination thereof or any withdrawal of the
Stock or money
or other property, if any, represented by the Depositary Shares
evidenced by
such Receipt or Receipts delivered for surrender or the exercise of
any
conversion right referred to in Section 2.10 may be refused, any
dividend or
other distribution may be withheld and any part or all of the Stock
or other
property represented by the Depositary Shares evidenced by such
Receipt may be
sold for the account of the holder thereof (after attempting by
reasonable means
to notify such holder prior to such sale). Any dividend or other
distribution so
withheld and the proceeds of any such sale may be applied to any
payment of such
tax or other governmental charge or fee, the holder of such Receipt
remaining
liable for any deficiency.
SECTION 3.3 WITHHOLDING. The Depositary shall act as the tax
withholding
agent for any payments, distributions made with respect to the
Depositary Shares
and Receipts, and the Stock. The Depositary shall be responsible
with respect to
the Depositary Shares, Receipts and Stock for the timely (i)
collection and
deposit of any required withholding or backup withholding tax, and
(ii) filing
of any information returns or other documents with federal (and
other
applicable) taxing authorities.
SECTION 3.4 REPRESENTATIONS AND WARRANTIES AS TO STOCK. In the case
of the
initial deposit of the Stock, the Company and, in the case of
subsequent
deposits thereof, each person so depositing Stock under this
Deposit Agreement
shall be deemed thereby to represent and warrant that such Stock
and each
certificate therefore are valid and that the person making such
deposit is duly
authorized to do so. Such representations and warranties shall
survive the
deposit of the Stock and the issuance of Receipts therefor.
ARTICLE IV
THE STOCK, NOTICES
SECTION 4.1 CASH DISTRIBUTIONS. Whenever the Depositary shall
receive any
cash dividend or other cash distribution on the Stock (other than
cash dividends
or cash distributions paid by the Company in lieu of fractional
shares or other
fractional interests in the Company's common stock or other
securities otherwise
deliverable by the Company in accordance with the applicable
Certificate of
Designation), the Depositary shall, subject to Section 3.2,
distribute to record
holders of Receipts on the record date fixed pursuant to Section
4.4 such
amounts of such sum as are, as nearly as practicable, in proportion
to the
respective numbers of Depositary Shares evidenced by the Receipts
held by such
holders; provided, however, that in case the Company or the
Depositary shall be
required by law to withhold and does 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 4.2 DISTRIBUTIONS OTHER THAN CASH. Whenever the Depositary
shall
receive any distribution other than cash, rights, preferences or
privileges upon
the Stock, the Depositary shall, subject to Section 3.2, distribute
to record
holders of Receipts on the record date fixed pursuant to Section
4.4 such
amounts of the securities or property received by it as are, as
nearly as
practicable, in proportion to the respective numbers of Depositary
Shares
evidenced by the Receipts held by such holders, in any manner that
the
Depositary and the Company may deem equitable and practicable
for
accomplishing such distribution. If, in the opinion of the Company
after
consultation with the Depositary, such distribution cannot be
made
proportionately among such record holders, or if for any other
reason (including
any tax withholding or securities law requirement), the Depositary
deems, after
consultation with the Company, such distribution not to be
feasible, the
Depositary may, with the approval of the Company which approval
shall not be
unreasonably withheld, adopt such method as it deems equitable and
practicable
for the purpose of effecting such distribution, including the sale
(at public or
private sale) of the securities or property thus received, or any
part thereof,
at such place or places and upon such terms as it may deem proper.
The net
proceeds of any such sale shall, subject to Section 3.2, be
distributed or
made available for distribution, as the case may be, by the
Depositary to record
holders of Receipts as provided by Section 4.1 in the case of a
distribution
received in cash.
8
<PAGE>
SECTION 4.3 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 registered 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
