Exhibit 4.7
DEPOSIT AGREEMENT
among
MISSISSIPPI POWER COMPANY,
SUNTRUST BANK
and
the Holders of the Depositary
Receipts to be issued hereunder
Dated as of April 1, 2004
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TABLE OF CONTENTS
Page
ARTICLE I
DEFINITIONS.....................................1
Section 1.01. Authorizing
Resolution.............................1
Section 1.02.
Company............................................1
Section 1.03. Corporate Trust
Office.............................1
Section 1.04. Deposit
Agreement..................................2
Section 1.05.
Depositary.........................................2
Section 1.06. Depositary's
Agent.................................2
Section 1.07. Depositary
Shares..................................2
Section 1.08. Preferred
Stock....................................2
Section 1.09.
Receipt............................................2
Section 1.10. Record
Holder......................................2
Section 1.11.
Registrar..........................................2
Section 1.12. Securities
Act.....................................2
Section 1.13. Underwriting
Agreement.............................2
ARTICLE II FORM OF
RECEIPTS, DEPOSIT OF PREFERRED STOCK,
EXECUTION AND DELIVERY, TRANSFER, SURRENDER AND
REDEMPTION OF RECEIPTS.....................................3
Section 2.01. Form and Transferability of
Receipts...............3
Section 2.02. Deposit of Preferred Stock;
Execution and
Delivery
of Receipts in Respect Thereof.....................4
Section 2.03.
Redemption.........................................5
Section 2.04. Transfer of
Receipts...............................6
Section 2.05. Combinations and Split-ups of
Receipts.............6
Section 2.06. Surrender of Receipts and
Withdrawal of
Preferred
Stock.............................................7
Section 2.07. Limitations on Execution and
Delivery,
Transfer,
Surrender and Exchange of Receipts................7
Section 2.08. Lost Receipts,
etc.................................8
Section 2.09. Cancellation and Destruction of
Surrendered
Receipts....................................................8
Section 2.10. Temporary
Receipts.................................8
ARTICLE III CERTAIN
OBLIGATIONS OF HOLDERS OF RECEIPTS.......8
Section 3.01. Filing Proofs, Certificates and
Other
Information.................................................8
Section 3.02. Payment of Taxes or Other
Governmental
Charges.....................................................9
Section 3.03. Warranties as to Preferred
Stock...................9
ARTICLE IV THE
DEPOSITED SECURITIES; NOTICES................9
Section 4.01. Cash
Distributions.................................9
Section 4.02. Distributions Other Than
Cash.....................10
Section 4.03. Subscription Rights, Preferences
or
Privileges.................................................10
Section 4.04. Notice of Dividends, Fixing of
Record Date
for
Receipt Holders........................................11
Section 4.05. Voting
Rights.....................................11
Section 4.06. Changes Affecting Deposited
Securities and
Reclassifications, Recapitalizations, etc..................11
Section 4.07.
Reports...........................................12
Section 4.08. Lists of Receipt
Holders..........................12
ARTICLE V
THE DEPOSITARY AND THE COMPANY..................12
Section 5.01. Maintenance of Offices, Agencies
and
Transfer
Books by the Depositary; Registrar................12
Section 5.02. Prevention or Delay in Performance
by the
Depositary
or the Company..................................13
Section 5.03. Obligations of the Depositary,
the
Depositary's Agents and the Company........................13
Section 5.04. Resignation and Removal of the
Depositary;
Appointment of Successor Depositary........................14
Section 5.05. Corporate Notices and
Reports.....................15
Section 5.06. Deposit of Preferred Stock by the
Company.........15
Section 5.07. Indemnification by the
Company....................15
Section 5.08. Charges and
Expenses..............................15
Section 5.09. Tax
Compliance....................................15
ARTICLE VI
AMENDMENT AND TERMINATION......................16
Section 6.01.
Amendment.........................................16
Section 6.02.
Termination.......................................16
ARTICLE VII
MISCELLANEOUS...................................17
Section 7.01.
Counterparts......................................17
Section 7.02. Exclusive Benefit of
Parties......................17
Section 7.03. Invalidity of
Provisions..........................17
Section 7.04.
Notices...........................................18
Section 7.05. Depositary's
Agents...............................18
Section 7.06. Holders of Receipts are
Parties...................18
Section 7.07. Governing
Law.....................................18
Section 7.08.
Headings..........................................18
EXHIBIT A
Form of Depositary Receipt.......................1
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DEPOSIT AGREEMENT
DEPOSIT AGREEMENT dated as of April 1, 2004 among MISSISSIPPI
POWER
COMPANY, a Mississippi corporation,
SUNTRUST BANK, a Georgia banking
corporation, and all holders from time to
time of Depositary Receipts issued
hereunder.
W I T N E S S E T H:
WHEREAS, it is desired to provide, as hereinafter set forth in
this
Deposit Agreement, for the deposit of the
shares of Preferred Stock with the
Depositary for the purposes set forth in
this Deposit Agreement and for the
issuance hereunder of Depositary Receipts
evidencing Depositary Shares
representing the Preferred Stock so
deposited; and
WHEREAS, the Depositary Receipts are to be substantially in the
form of
Exhibit A annexed hereto, with appropriate
insertions, modifications and
omissions, as hereinafter provided in this
Deposit Agreement;
NOW, THEREFORE, in consideration of the premises, it is agreed by
and
among the parties hereto as follows:
ARTICLE I
DEFINITIONS
The following definitions shall for all purposes, unless
otherwise
clearly indicated, apply to the respective
terms used in this Deposit Agreement:
Section 1.01. Authorizing Resolution. The term "Authorizing
Resolution"
shall mean the resolution adopted by the
Company's Board of Directors
establishing and setting forth the rights,
preferences and privileges of the
Preferred Stock, and the qualifications,
limitations or restrictions thereof, as
the same may be amended from time to time,
which upon filing with the
Mississippi Secretary of State shall become
part of the Company's Articles of
Incorporation, as amended.
Section 1.02. Company. The term "Company" shall mean Mississippi
Power
Company, a corporation incorporated and
existing under the laws of the State of
Mississippi and having its principal office
at the date of this Deposit
Agreement at 2992 West Beach, Gulfport,
Mississippi 39501, and its successors.
Section 1.03. Corporate Trust Office. The term "corporate trust
office," when used with respect to the
Depositary, shall mean the corporate
trust office of the Depositary, which at
the date of this Deposit Agreement is
[insert SunTrust Corporate Trust
Address].
Section 1.04. Deposit Agreement. The term "Deposit Agreement"
shall
mean this Agreement, as the same may be
amended or supplemented from time to
time.
Section 1.05. Depositary. The term "Depositary" shall mean
SunTrust
Bank, a Georgia banking corporation, and
any successor as depositary hereunder.
Section 1.06. Depositary's Agent. The term "Depositary's Agent"
shall
mean an agent appointed by the Depositary,
and approved by the Company, as
provided, and for the purposes specified,
in Section 7.05 hereof.
Section 1.07. Depositary Shares. The term "Depositary Shares"
shall
mean the rights evidenced by the Receipts
issued hereunder and the interests in
the Preferred Stock represented thereby.
Each Depositary Share shall represent
one-fourth (1/4) share of Preferred Stock
and the same proportionate interest in
any and all money and other property
received by the Depositary in respect of
such share of Preferred Stock at the time
held under this Deposit Agreement.
Section 1.08. Preferred Stock. The term "Preferred Stock" shall
mean
the Company's 5.25% Series Preferred Stock,
Cumulative, Par Value $100 Per
Share.
Section 1.09. Receipt. The term "Receipt" shall mean one or more of
the
Depositary Receipts, whether in definitive
or temporary form, issued hereunder
substantially in the form of Exhibit A
annexed hereto.
Section 1.10. Record Holder. The term "record holder" as applied to
a
Depositary Receipt shall mean the person in
whose name a Receipt is registered
on the books of the Depositary maintained
for such purpose.
Section 1.11. Registrar. The term "Registrar" shall mean any bank
or
trust company which shall be appointed to
register Depositary Receipts as herein
provided.
Section 1.12. Securities Act. The term "Securities Act" shall mean
the
Securities Act of 1933, as from time to
time amended.
Section 1.13. Underwriting Agreement. The term "Underwriting
Agreement"
shall mean the Underwriting Agreement,
dated March 3, 2004, between the Company
and the Underwriters named therein,
providing for the purchase of the Depositary
Shares.
ARTICLE II
FORM OF RECEIPTS, DEPOSIT OF PREFERRED STOCK,
EXECUTION AND DELIVERY, TRANSFER,
SURRENDER AND REDEMPTION OF RECEIPTS
Section 2.01. Form and Transferability of Receipts. Definitive
Receipts
shall be engraved or printed or
lithographed on steel-engraved borders and shall
be substantially in the form set forth in
Exhibit A annexed to this Deposit
Agreement, with appropriate insertions,
modifications and omissions, as
hereinafter provided. Pending the
preparation of definitive Receipts, the
Depositary, upon the written order of the
Company or any holder of Preferred
Stock, as the case may be, delivered in
compliance with Section 2.02, shall
execute and deliver temporary Receipts
which are printed, lithographed,
typewritten, mimeographed or otherwise
substantially of the tenor of the
definitive Receipts in lieu of which they
are issued and with such appropriate
insertions, omissions, substitutions and
other variations as the persons
executing such Receipts may determine, as
evidenced by their execution of such
Receipts. After the preparation of
definitive Receipts, the temporary Receipts
shall be exchangeable for definitive
Receipts upon surrender of the temporary
receipts at the offices of the Depositary,
without charge to the holder. Upon
the 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 Preferred 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 shall have been appointed and
such Receipts are countersigned by the
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 purposes unless it
shall have been executed by the Depositary
by the signature of a duly authorized
officer and by the signature of a duly
authorized officer of the Registrar. The
Depositary shall record on its books each
Receipt so signed and delivered as
hereinafter provided and the name and
address of the person in whose name such
Receipt is registered.
Except as the Depositary may otherwise determine with the
written
consent of the Company, Receipts shall be
in denominations of any integral
number of Depositary Shares.
The 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 to comply with any applicable law
or any regulation thereunder or with the
rules and regulations of any securities
exchange upon which the Preferred 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 Receipt is
subject.
Title to a Receipt (and to the Depositary Shares evidenced
thereby),
when 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 a Receipt shall be
transferred on the books of the Depositary
as provided in Section 2.04, the
Depositary, notwithstanding any notice to
the contrary, may 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 Preferred Stock; Execution and Delivery
of
Receipts in Respect Thereof. In connection
with the closing under the
Underwriting Agreement, the Company will
deliver to the Depositary a certificate
or certificates representing the aggregate
number of shares of Preferred Stock
underlying the Depositary Shares sold
pursuant to the Underwriting Agreement.
Thereafter, subject to the terms and
conditions of this Deposit Agreement, any
holder of Preferred Stock may deposit such
Preferred Stock under this Deposit
Agreement by delivery to the Depositary of
a certificate or certificates for the
Preferred Stock to be deposited properly
endorsed or accompanied, if required by
law, 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 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
aggregate number of Depositary Shares
representing such deposited Preferred
Stock.
If required by the Depositary, Preferred Stock presented for
deposit at
any time, whether or not the register of
stockholders of the Company is closed,
shall also be accompanied by an agreement
or assignment, or other instrument
satisfactory to the Depositary, which will
provide for the prompt transfer to
the Depositary or its nominee of any
dividend or right to subscribe for
additional Preferred Stock or to receive
other property which any person in
whose name the Preferred Stock is or has
been recorded may thereafter receive
upon or in respect of such deposited
Preferred Stock, and to which the
Depositary shall be entitled, or in lieu
thereof such agreement of indemnity or
other agreement as shall be satisfactory to
the Depositary.
Upon each delivery to the Depositary of a certificate or
certificates
for Preferred Stock to be deposited
hereunder, together with the other documents
above specified, the Depositary shall, as
soon as transfer and recordation can
be accomplished, present such certificate
or certificates to the Company or the
transfer agent for the Preferred Stock, as
the Company shall instruct the
Depositary, for transfer and recordation of
the Preferred Stock being deposited
in the name of the Depositary or its
nominee.
The certificates representing the Preferred Stock so delivered to
the
Depositary shall be registered in the name
of the Depositary or its nominee, and
shall be held by the Depositary upon and
subject to the terms of this Deposit
Agreement as custodian for those persons
who are the registered holders of
Receipts from time to time.
Deposited Preferred Stock shall be held by the Depositary at
the
corporate trust office of the Depositary,
or at such other place or places as
the Depositary shall determine.
Upon receipt by the Depositary of a certificate or certificates
for
Preferred Stock deposited in accordance
with the provisions of this Section
2.02, together with the other documents
required as above specified, 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 referred to in the first
paragraph of this Section 2.02 a Receipt
or Receipts evidencing the aggregate number
of Depositary Shares represented by
such Preferred Stock, in the denominations
and registered in such name or names
as requested by such person or persons. The
Depositary shall execute and deliver
such Receipts at its corporate trust office
or at such other offices as it may
designate. However, in each case, such
delivery will be made only upon payment
to the Depositary of the fee of the
Depositary for the execution and delivery of
such Receipt or Receipts, as provided in
Section 5.08, and of all taxes and
governmental charges and fees payable in
connection with such deposit and the
transfer of the deposited Preferred
Stock.
Section 2.03. Redemption. Whenever the Company shall elect, under
its
Articles of Incorporation, as amended, and
the Authorizing Resolution, to redeem
shares of Preferred Stock, it shall give
the Depositary not less than 30 days'
notice of the date of such proposed
redemption, identifying the number of shares
of Preferred Stock held by the Depositary
to be redeemed and the applicable
redemption price. The Depositary shall mail
notice of such redemption and the
simultaneous redemption of the number of
Depositary Shares representing the
Preferred Stock to be redeemed, first class
mail postage prepaid, not less than
15 nor more than 60 days prior to the date
fixed for redemption (the "Redemption
Date"), to the record holders of Receipts
for Depositary Shares to be redeemed,
at the addresses of such holders as the
same 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 shall
affect the sufficiency of the
proceedings for redemption as to other
holders. Each such notice shall state the
Redemption Date; the number of Depositary
Shares to be redeemed; if less than
all the Depositary Shares evidenced by
Receipts held by such holder are to be
redeemed, the number of such Depositary
Shares to be redeemed from such holder;
the applicable redemption price; the place
or places where Receipts evidencing
Depositary Shares are to be presented and
surrendered for redemption and payment
of the redemption price; and that dividends
in respect of the Depositary Shares
to be redeemed will cease on the Redemption
Date. In case less than all the
outstanding Depositary Shares are to be
redeemed, the Depositary Shares to be
redeemed shall be selected pro rata (as
nearly as may be) or by lot or by such
other equitable method as the Depositary
may determine.
If notice of redemption shall have been given as hereinbefore
provided,
and the Company shall not default in the
payment of the redemption price for the
underlying Preferred Stock to be redeemed,
then each holder of Receipts
evidencing Depositary Shares called for
redemption shall be entitled to all
preferences and relative and other rights
accorded by this Deposit Agreement
until and including the day immediately
preceding the Redemption Date, and
thereafter all such rights shall cease and
terminate, except the right of the
holders thereof to receive, upon surrender
of their Receipts, the amounts
payable upon redemption of the Depositary
Shares evidenced by such Receipts. If
the Company shall default in making payment
of the redemption price for the
underlying Preferred Stock to be redeemed
on the Redemption Date, then each
holder of the Receipts evidencing
Depositary Shares called for redemption shall
be entitled to all preferences and relative
and other rights accorded by this
Deposit Agreement until and including the
date when the Company makes funds for
the payment of the redemption price for the
Preferred Stock underlying each
Depositary Share to be redeemed available
to the Depositary (the "Final
Redemption Date"). From and after the
Redemption Date, or, if the Company shall
default in the payment of the redemption
price for the underlying Preferred
Stock to be redeemed, from and after the
Final Redemption Date, the Depositary
Shares called for redemption shall no
longer be deemed to be outstanding and all
rights of holders of such shares shall
cease and terminate, except the right of
the holders of such shares, upon surrender
of Receipts therefor, to receive
amounts to be paid upon redemption thereof.
On the Redemption Date or Final
Redemption Date, as applicable, the
Depositary shall redeem the number of
Depositary Shares representing the
Preferred Stock to be redeemed. Upon
surrender in accordance with said 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
the redemption price per Depositary Share
equal to one-fourth (1/4) of the
redemption price per share applicable to
the shares of Preferred Stock. The
deposit with the Depositary, in trust for
the benefit of the holders of the
Depositary Shares, of monies provided for
the redemption of Preferred Stock
shall be irrevocable except that any
balance of monies so deposited by the
Company and unclaimed by the holders of the
Depositary Shares entitled thereto
at the expiration of two years from the
Redemption Date (or the Final Redemption
Date, as applicable) shall be repaid to the
Company, and after any such
repayment, the holders of the Depositary
Shares entitled to the funds so repaid
to the Company shall look only to the
Company for payment, without interest.
The Depositary shall
have no liability to the holders of Depositary
Shares for failure timely to pay the
redemption price for Depositary Shares to
be redeemed if the Company shall have
failed timely to deposit with the
Depositary the redemption price for the
Preferred Stock underlying such
Depositary Shares.
Section 2.04. Transfer of Receipts. Subject to the terms and
conditions
of this Deposit Agreement, the Depositary
shall make transfers on its books from
time to time of Receipts upon any surrender
thereof by the holder in person or
by duly authorized attorney, properly
endorsed or accompanied by a properly
executed instrument of transfer, and duly
stamped as may be required by law.
Thereupon, the Depositary shall execute a
new Receipt or Receipts and deliver
the same to or upon the order of the person
entitled thereto representing the
same aggregate number of Depositary Shares
as those represented by the Receipt
or Receipts surrendered.
Section 2.05. Combinations and Split-ups of Receipts. Upon
surrender of
a Receipt or Receipts at the Depositary's
corporate trust 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 authorized
denominations for the number of Depositary
Shares requested, representing the same
aggregate number of Depositary Shares
represented by the Receipt or Receipts
surrendered.
Section 2.06. Surrender of Receipts and Withdrawal of Preferred
Stock.
Upon surrender of a Receipt or Receipts at
the Depositary's corporate trust
office or at such other offices as it may
designate for the purpose of
withdrawal of the Preferred Stock
represented thereby, and subject to the terms
and conditions of this Deposit Agreement,
the holder of such Receipt or Receipts
shall be entitled to delivery, to such
holder or upon such holder's order, of
such number of whole shares of the
Preferred Stock and any other property at the
time represented by all such Receipts as
such holder may designate. Upon such
surrender, the Depositary shall deliver to
such holder one or more certificates
representing the number of whole shares of
Preferred Stock which the holder
wishes to withdraw and one or more Receipts
for (a) the number of Depositary
Shares representing the number of whole
shares of Preferred Stock, if any, which
such holder does not wish to withdraw and
(b) the number of Depositary Shares
representing less than one whole share of
Preferred Stock. Delivery of such
Preferred Stock and other property may be
made by the delivery of certificates
and other proper documents of title, which,
if required by law, shall be
properly endorsed or accompanied by proper
instruments of transfer. Such
delivery shall be made, as hereinafter
provided, without unreasonable delay.
A Receipt surrendered for such purposes may be required by the
Depositary to be properly endorsed in blank
or accompanied by a properly
executed instrument of transfer in blank,
and the holder thereof shall execute
and deliver to the Depositary a written
order directing the Depositary to cause
the Preferred Stock being withdrawn to be
delivered to or upon the written order
of a person or persons designated in such
order. Thereupon, the Depositary shall
deliver at its corporate trust office,
subject to the terms and conditions of
this Deposit Agreement, to or upon the
written order of the person or persons
designated in the order delivered to the
Depositary as above provided, the
Preferred Stock and other property
represented by such Receipt.
At the request, risk and expense of any holder so surrendering
a
Receipt, and for the account of such
holder, the Depositary shall forward the
certificate or certificates and other
proper documents of title for the amount
of Preferred Stock and any other property
represented by such Receipt for
delivery at such place as may be designated
by the holder.
Section 2.07. Limitations on Execution and Delivery, Transfer,
Surrender and Exchange of Receipts. As a
condition precedent to the execution
and delivery, transfer, split-up,
combination, surrender or exchange of any
Receipt, the Depositary, or any of the
Depositary's Agents, may require payment
of a sum sufficient for reimbursement of
any tax or other governmental charge
with respect thereto (including any such
tax or charge with respect to Preferred
Stock being deposited or withdrawn), may
require proof 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 may establish consistent with
the provisions of this Deposit
Agreement.
The deposit of Preferred Stock may be refused, or the delivery
of
Receipts against Preferred Stock may be
suspended or the transfer of Receipts
may be refused, or the transfer, surrender
or exchange of outstanding Receipts
may be suspended during any period when the
register of stockholders of the
Company is closed, or 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 for any other reason. Without
limitation of the foregoing, the
Depositary shall not knowingly accept for
deposit under this Deposit Agreement
any Preferred Stock which in order to be so
deposited is required to be
registered under the Securities Act, unless
a registration statement under the
Securities Act is in effect as to such
Preferred Stock.
Section 2.08. Lost Receipts, etc. In case any Receipt shall be
mutilated or be destroyed or 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 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 and the authenticity thereof and of
the holder's ownership thereof and the
holder's furnishing the Depositary with
reasonable indemnification satisfactory to
it.
Section 2.09. Cancellation and Destruction of Surrendered Receipts.
All
Receipts surrendered to the Depositary or
any Depositary's Agent shall be
cancelled by the Depositary. The Depositary
is authorized to destroy such
Receipts so cancelled.
Section 2.10. Temporary Receipts. Until definitive Receipts are
ready
for delivery, the Company may prepare and,
if so prepared, the Depositary shall
execute, temporary Receipts. Temporary
Receipts shall be substantially in the
form of definitive Receipts but may have
variations that the Depositary
considers appropriate for temporary
Receipts. Without unreasonable delay, the
Company shall prepare and the Depositary
shall execute definitive Receipts and
exchange the same for the temporary
Receipts.
ARTICLE III
CERTAIN OBLIGATIONS OF HOLDERS OF RECEIPTS
Section 3.01. Filing Proofs, Certificates and Other Information.
Any
person presenting Preferred Stock for
deposit or any holder of a Receipt may be
required from time to time to file such
proof of residence, or other matters or
other information, to execute such
certificates and to make such representations
and warranties as the Depositary may
reasonably deem necessary or proper. The
Depositary may withhold the delivery,
transfer or exchange of any Receipt or the
distribution or sale of any dividend or
other distribution or 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. If
any
tax or other governmental charge shall
become payable by or on behalf of the
Depositary with respect to any Receipt or
Depositary Share, or any Preferred
Stock (or any fractional interest therein)
represented by any Depositary Share,
such tax (including transfer taxes, if any)
or governmental charge shall be
payable by the holder of such Receipt or of
the Receipt evidencing such
Depositary Share, except as provided in
Section 5.08. Transfer of such Receipt
or any withdrawal of such Preferred Stock
may be refused until such payment is
made, and any dividends or other
distributions may be withheld, or any part or
all of the Preferred Stock represented by
such Receipt and not theretofore sold
may be sold for the account of the holder
thereof (after attempting by
reasonable means to notify such holder
prior to such sale), and such dividends
or other distributions or the proceeds of
any such sale may be applied to
payment of any such tax or other
governmental charge, the holder of such Receipt
remaining liable for any deficiency.
Section 3.03. Warranties as to Preferred Stock. Every person
depositing
Preferred Stock under this Deposit
Agreement shall be deemed thereby to
represent and warrant that each certificate
for such Preferred Stock is valid
and that the person making such deposit is
duly authorized to do so and has, or
the person on whose behalf such deposit is
made has, good and marketable title
to such Preferred Stock, free and clear of
any liens, claims or encumbrances.
The Company hereby further represents and
warrants that the Preferred Stock,
when issued, will be validly issued, fully
paid and nonassessable. Such
representations and warranties shall
survive the deposit of the Preferred Stock
and the issuance of Receipts.
ARTICLE IV
THE DEPOSITED SECURITIES; NOTICES
Section 4.01. Cash Distributions. Whenever the Depositary shall
receive
any cash dividend or other cash
distribution on the Preferred Stock, which
dividend or distribution the Depositary
shall hold in trust for the benefit of
the holders of Receipts, the Depositary
shall distribute to each record holder
of Receipts on the record date fixed
pursuant to Section 4.04 the amount of such
dividend or distribution as is in
proportion to the number of outstanding
Depositary Shares held by such holder;
provided, however, that in case the
Company or the Depositary shall be required
to withhold and does withhold from
any cash dividend or other cash
distribution in respect of the Preferred Stock
an amount on account of taxes, the amount
made available for distribution or
distributed on the Receipts issued in
respect of such Preferred Stock 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
record holder of a Receipt or Receipts a
fraction of one cent (based upon the
aggregate number of Receipts held by each
record holder) and any balance not so
distributable shall be held by the
Depositary (without liability for interest
thereon) and shall be added to and
treated as part of the next sum received by
the Depositary for distribution to
record holders of Receipts then
outstanding.
Section 4.02. Distributions Other Than Cash. Whenever the
Depositary
shall receive any distribution other than
cash upon the Preferred Stock, which
distribution the Depositary shall hold in
trust for the benefit of the holders
of Receipts, the Depositary shall
distribute, to each record holder of Receipts
on the record date fixed pursuant to
Section 4.04, such amount of the securities
or other property received by it as is in
proportion to the number of
outstanding Depositary Shares held by such
holder, in any manner that the
Depositary may deem equitable and
practicable for accomplishing such
distribution. If in the opinion of the
Depositary such distribution cannot be
made proportionately among the record
holders of Receipts entitled thereto, or
if for any other reason (including any
requirement that the Company or the
Depositary withhold an amount on account of
taxes) the Depositary deems such
distribution not to be feasible, the
Depositary may, with the prior approval in
writing of the Company, adopt such method
as it deems equitable and practicable
for the purpose of effecting such
distribution, including the sale (at public or
private sale) of the securities or other
property thus received, or any part
thereof, at such place or places and upon
such terms as it may deem proper. The
net proceeds of any such sale shall be
distributed or made available for
distribution, as the case may be, by the
Depositary to the holders of Receipts
entitled thereto as in the case of a
distribution received in cash.
Section 4.03. Subscription Rights, Preferences or Privileges.
Whenever
the Company shall offer or cause to be
offered to the holders of the Preferred
Stock in whose names such securities are
recorded on the books of the Company
any rights, preferences or privileges to
subscribe for or to purchase any
securities or any rights, preferences or
privileges of any other nat
