DEPOSIT AGREEMENT

EXHIBIT 4.15

 

NAPSTER, INC.

Issuer

 

and

 

 

AS DEPOSITARY

 

and

 

HOLDERS OF DEPOSITARY RECEIPTS

 

 

DEPOSIT AGREEMENT

 

 

Dated as of

TABLE OF CONTENTS

 

DEPOSIT AGREEMENT

 

DEPOSIT AGREEMENT, dated as of [                    ] among NAPSTER, 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.

 

W I T N E S S E T H:

 

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 I

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 Napster, 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,

 

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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 $0.001 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.

 

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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.

 

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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.

 

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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.

 

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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

 

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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,

 

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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.

 

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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 a