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Exhibit 4.8
ENDURANCE SPECIALTY HOLDINGS LTD.,
__________________________, As Depositary,
AND
THE HOLDERS FROM TIME TO TIME OF
THE DEPOSITARY RECEIPTS DESCRIBED HEREIN
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FORM OF
DEPOSIT AGREEMENT
-----------------
Dated as of [DATE]
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TABLE OF CONTENTS
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Page
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ARTICLE I DEFINITIONS
ARTICLE II FORM OF RECEIPTS, DEPOSIT OF STOCK, EXECUTION AND
DELIVERY, TRANSFER, SURRENDER AND REDEMPTION OF RECEIPTS
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Section 2.1 Form
and Transfer of
Receipts..........................................................2
Section 2.2
Deposit of Stock; Execution and Delivery of Receipts in Respect
Thereof................4
Section 2.3
Redemption of
Stock....................................................................4
Section 2.4
Registration of Transfer of
Receipts...................................................6
Section 2.5
Split-Ups and Combinations of Receipts; Surrender of Receipts and
Withdrawal
of
Stock...............................................................................6
Section 2.6
Limitations on Execution and Delivery, Transfer, Surrender and
Exchange of
Receipts...............................................................................7
Section 2.7 Lost
Receipts,
Etc.....................................................................8
Section 2.8
Cancellation and Destruction of Surrendered
Receipts...................................8
ARTICLE III CERTAIN OBLIGATIONS OF HOLDERS OF RECEIPTS AND THE
COMPANY
Section 3.1
Filing Proofs, Certificates and Other
Information......................................8
Section 3.2
Payment of Taxes or Other Governmental
Charges.........................................9
Section 3.3
Warranty as to
Stock...................................................................9
ARTICLE IV THE DEPOSITED SECURITIES; NOTICES
Section 4.1 Cash
Distributions.....................................................................9
Section 4.2
Distribution Other than Cash, Rights, Preferences or
Privileges.......................10
Section 4.3
Subscription Rights, Preferences or
Privileges........................................10
Section 4.4
Notice of Dividends, Etc.; Fixing of Record Date for Holders of
Receipts..............11
Section 4.5
Voting
Rights.........................................................................11
Section 4.6 Changes Affecting
Deposited Securities and Reclassifications,
Recapitalization,
Etc.................................................................12
Section 4.7
Inspection of
Reports.................................................................13
Section 4.8
Lists of Receipt
Holders..............................................................13
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ARTICLE V THE DEPOSITARY, THE DEPOSITARY'S AGENTS, THE
REGISTRAR AND THE COMPANY
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Section 5.1
Maintenance of Offices, Agencies and Transfer Books By the
Depositary;
Registrar.............................................................................13
Section 5.2
Prevention of or Delay in Performance By the Depositary, The
Depositary's
Agents, the Registrar or the
Company..................................................14
Section 5.3
Obligations of the Depositary, the Depositary's Agents, the
Registrar and the
Company...............................................................................14
Section 5.4
Resignation and Removal of the Depositary; Appointment of Successor
Depositary........15
Section 5.5
Corporate Notices and
Re..............................................................16
Section 5.6
Indemnification By the
Company........................................................16
Section 5.7
Charges and
Expenses..................................................................17
Section 5.8 Tax
Compliance........................................................................17
ARTICLE VI AMENDMENT AND TERMINATION
Section 6.1
Amendment.............................................................................17
Section 6.2
Termination...........................................................................18
ARTICLE VII MISCELLANEOUS
Section 7.1
Counterparts..........................................................................18
Section 7.2
Exclusive Benefit of
Parties..........................................................18
Section 7.3
Invalidity of
Provisions..............................................................18
Section 7.4
Notices...............................................................................19
Section 7.5
Depositary's
Agents...................................................................19
Section 7.6
Holders of Receipts are
Parties.......................................................19
Section 7.7
Governing
Law.........................................................................19
Section 7.8
Inspection of Deposit
Agreement.......................................................20
Section 7.9
Headings..............................................................................20
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DEPOSIT AGREEMENT dated as of [DATE], among ENDURANCE SPECIALTY
HOLDINGS LTD., an exempted company
incorporated in Bermuda as a holding company
(the "Company"), __________, a __________
corporation (the "Depositary"), and
the holders from time to time of the
Receipts described herein.
WHEREAS, it is desired to provide, as hereinafter set forth in
this
Deposit Agreement, for the deposit of
shares of ________________ preference
shares, $__ par value each, of the Company
with the Depositary for the purposes
set forth in this Deposit Agreement and for
the issuance hereunder of Receipts
evidencing Depositary Shares in respect of
the Stock so deposited; and
WHEREAS, the Receipts are to be substantially in the form of
Exhibit A
annexed hereto, with appropriate
insertions, modifications and omissions, as
hereinafter provided in this Deposit
Agreement;
NOW, THEREFORE, in consideration of the premises contained herein
and
such other good and valuable consideration,
receipt of which is hereby
acknowledged, the parties hereto agree as
follows:
ARTICLE I
DEFINITIONS
The following definitions shall for all purposes, unless
otherwise
indicated, apply to the respective terms
used in this Deposit Agreement:
"Certificate of Designation" shall mean the Certificate of
Designation
establishing and setting forth the rights,
preferences, privileges and
limitations of the Stock.
"Company" shall mean Endurance Specialty Holdings Ltd., an
exempted
company incorporated in Bermuda as a
holding company, and its successors.
"Deposit Agreement" shall mean this Deposit Agreement, as
amended,
modified or supplemented from time to time
in accordance with the terms hereof.
"Depositary" shall mean __________, and any successor as
Depositary
hereunder.
"Depositary Shares" shall mean an interest in [fraction] of a 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, all as evidenced by
the Receipts issued hereunder. Subject to
the terms of this Deposit Agreement,
each owner of a Depositary Share is
entitled, proportionately, to all the
rights, preferences and privileges of the
Stock represented by such Depositary
Share, including the dividend, voting and
liquidation rights contained in the
Certificate of Designation, and to the
benefits of all obligations of the
Company under the Certificate of
Designation.
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"Depositary's Agent" shall mean an agent appointed by the
Depositary
pursuant to Section 7.5.
"Depositary's Office" shall mean the office of the Depositary, in
the
Borough of Manhattan, New York, New York,
at which at any particular time its
depositary receipt business shall be
administered, which at the date of this
Deposit Agreement is located at
____________.
"Memorandum of Association" shall mean the memorandum of
association of
the Company together with any amendments
thereto, filed with the Registrar
Companies of Bermuda.
"Receipt" shall mean one of the depositary receipts substantially
in
the form set forth as Exhibit A annexed
hereto, issued hereunder, whether in
definitive or temporary form evidencing the
number of Depositary Shares held of
record by the holder of such Depositary
Shares.
"Record Holder," as applied to a Receipt, shall mean the
individual
entity or person in whose name a Receipt is
registered on the books of the
Depositary or any register of any Registrar
maintained for such purpose.
"Registrar" shall mean any bank or trust company which shall be
appointed by the Depositary to register
ownership and transfers of Receipts as
herein provided and which may include the
Depositary.
"Securities Act" shall mean the Securities Act of 1933, as
amended.
"Stock" shall mean shares of the Company's _________ Preference
Shares,
$___ par value per share.
"Transfer Agent" shall mean the Registrar.
ARTICLE II
FORM OF RECEIPTS, DEPOSIT OF STOCK, EXECUTION AND DELIVERY,
TRANSFER, SURRENDER AND REDEMPTION OF RECEIPTS
Section 2.1 Form and Transfer of Receipts.
Definitive Receipts shall be engraved or printed or
lithographed on steel-engraved borders and
shall be substantially in the form
set forth in Exhibit A annexed to this
Deposit Agreement, with appropriate
insertions, modifications and omissions, as
hereinafter provided. Pending the
preparation of definitive Receipts, the
Depositary, upon the written order of
the Company delivered in compliance with
Section 2.2, shall execute and deliver
temporary receipts which shall be printed,
lithographed, typewritten or
otherwise substantially of the tenor of the
definitive Receipts in lieu of which
they are issued and with such appropriate
insertions, omissions, substitutions
and other variations as the persons
executing such Receipts may determine, as
evidenced by their execution of such
Receipts. If temporary Receipts are issued,
the Company and the Depositary will cause
definitive Receipts to be prepared
without unreasonable delay. After the
preparation of definitive Receipts, the
temporary Receipts shall be exchangeable
for definitive Receipts upon surrender
of the temporary Receipts at the
Depositary's Office, without charge to the
holder. Upon surrender for cancellation of
any one or more temporary Receipts,
the Depositary shall execute and deliver in
exchange therefor definitive
Receipts representing the same number of
Depositary Shares as represented by the
surrendered temporary Receipt or Receipts
registered in the name (and only the
name) of the holder of the temporary
Receipt. Such exchange shall be made at the
Company's expense and without any charge
therefor to the holder. 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.
2
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Receipts shall be executed by the Depositary by the manual
signature of
a duly authorized signatory of the
Depositary; provided, that such signature may
be a facsimile if a Registrar for the
Receipts (other than the Depositary) shall
have been appointed and such Receipts are
countersigned by manual signature of a
duly authorized signatory of the Registrar.
No Receipt shall be entitled to any
benefits under this Deposit Agreement or be
valid or obligatory for any purpose
unless it shall have been executed manually
by a duly authorized signatory of
the Depositary or, if a Registrar for the
Receipts (other than the Depositary)
shall have been appointed, by manual or
facsimile signature of a duly authorized
signatory of the Depositary and
countersigned manually by a duly authorized
signatory of such Registrar. The Depositary
shall record on its books each
Receipt so signed and delivered as
hereinafter provided. Receipts bearing the
manual or facsimile signatures of
individuals who were at any time proper
officers of the Depositary or the
Registrar, as the case may be, shall
constitute adequate signatures hereunder,
notwithstanding that such individuals
or any of them have ceased to hold such
offices prior to the delivery of such
Receipt or did not hold such offices on the
date of delivery of such Receipts.
Receipts shall be in denominations of any number of whole
Depositary
Shares.
Receipts may be endorsed with or have incorporated in the text
thereof
such legends or recitals or changes not
inconsistent with the provisions of this
Deposit Agreement as may be required by the
Depositary or required to comply
with any applicable law or any regulation
or with the rules and regulations or
any securities exchange upon which the
Stock, the Depositary Shares or the
Receipts may be listed or to conform with
any usage with respect thereto, or to
indicate any special limitations or
restrictions to which any particular
Receipts are subject.
Title to Depositary Shares evidenced by a Receipt which is
properly
endorsed, or accompanied by a properly
executed instrument of transfer, shall be
transferable by delivery with the same
effect as in the case of a negotiable
instrument; provided, however, that until
transfer of a Receipt shall be
registered on the books of the Depositary
as provided in Section 2.4, 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 with respect to the Stock or
to any notice provided for in this
Deposit Agreement and for all other
purposes.
3
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The Depositary shall not lend any Stock deposited hereunder.
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 other person authorized by
the Company, as notified in writing to
the Depositary, may from time to time
deposit shares of the Stock under this
Deposit Agreement by delivery to the
Depositary of a certificate or certificates
for the Stock to be deposited. Such
certificate or certificates representing the
Stock shall be properly endorsed or
accompanied, if required by the Depositary,
by a duly executed instrument of transfer
or endorsement, in form satisfactory
to the Depositary, together with such
certifications as may be required by the
Depositary in accordance with the
provisions of this Deposit Agreement, and
together with a written order of the
Company, directing the Depositary to
execute and deliver to the person or
persons named in such order, a Receipt or
Receipts evidencing in the aggregate the
number of Depositary Shares
representing such deposited Stock.
All Stock deposited by the Company with the Depositary shall be
held by
the Depositary at the Depositary's Office
or at such other place or places as
the Depositary shall determine.
Upon receipt by the Depositary of a certificate or certificates
for
Stock deposited with the Depositary by the
Company in accordance with the
provisions of this Section, together with
the other documents required as above
specified, and upon recordation of the
Stock on the books of the Company in the
name of the Depositary or its nominee, the
Depositary shall execute and deliver
to the person or persons named in the
written order delivered to the Depositary
a Receipt or Receipts, evidencing in the
aggregate the number of Depositary
Shares representing the Stock so deposited.
Such Receipt or Receipts shall be
registered by the Depositary or the
Registrar in such name or names as may be
requested by the person or persons as
specified in the written order. The
Depositary shall execute and deliver such
Receipts at the Depositary's Office or
such other offices, if any, as such person
may designate. Delivery at other
offices shall be at the risk and expense of
the person requesting such delivery.
The Depositary may not execute and deliver
Receipts pursuant to this Section
prior to receipt of Stock.
Other than in the case of splits, combinations or other
reclassifications affecting the Stock, or
in the case of dividends or other
distributions of Stock, if any, there shall
be deposited hereunder not more than
___________ shares of Stock.
4
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Section 2.3 Redemption of Stock.
Whenever the Company shall elect or be required to redeem
shares of Stock in accordance with the
provisions of the Certificate of
Designation, it shall (unless otherwise
agreed to in writing with the
Depositary) give or cause to be given to
the Depositary not less than 10 days'
prior notice of the proposed date of the
mailing of a notice of redemption of
Stock to the record holders of receipts and
of the number of such shares held by
the Depositary to be so redeemed and the
applicable redemption price, which
notice shall be accompanied by a
certificate from the Company stating that such
redemption of Stock is in accordance with
the provisions of the Certificate of
Designation. On the date of such
redemption, provided that the Company shall
then have paid or caused to be paid in full
to the Depositary the redemption
price of the Stock to be redeemed, plus an
amount equal to any accrued and
unpaid dividends thereon to the date fixed
for redemption, in accordance with
the provisions of the Certificate of
Designation, Depositary shall redeem the
number of Depositary Shares representing
such Stock. The Depositary shall mail
notice of the Company's redemption of Stock
and the proposed simultaneous
redemption of the number of Depositary
Shares representing the Stock to be
redeemed by first-class mail, postage
prepaid, not less than 30 and not more
than 90 days prior to the date fixed for
redemption of such Stock and Depositary
Shares (the "Redemption Date"), to the
record holders of the Receipts evidencing
the Depositary Shares to be so redeemed, at
the addresses of such holders as
they appear on the records of the
Depositary on the ____ day prior to the date
of such notice; but neither failure to mail
any such notice of redemption of
Depositary Shares to one or more such
holders nor any defect in any notice of
redemption of Depositary Shares to one or
more such holders shall affect the
sufficiency of the proceedings for
redemption as to other holders. Each such
notice shall state: (i) the Redemption
Date; (ii) the number of Depositary
Shares to be redeemed and, if less than all
the Depositary Shares to be
redeemed, the number of such Depositary
Shares held by such holder to be so
redeemed; (iii) the redemption price; (iv)
the place or places where Receipts
evidencing Depositary Shares are to be
surrendered for payment of the redemption
price; and (v) the dividends in respect of
the Stock represented by the
Depositary Shares to be redeemed will cease
to accumulate on such Redemption
Date. In case less than all the outstanding
Depositary Shares are to be
redeemed, the Depositary Shares to be so
redeemed shall be selected by lot or
pro rata (as nearly as may be) as may be
determined by the Depositary or any
other method which may be determined by the
Depositary in its sole discretion to
be equitable.
Notice having been mailed by the Depositary as aforesaid, from
and
after the Redemption Date (unless the
Company shall have failed to provide the
funds necessary to redeem the Stock
evidenced by the Depositary Shares called
for redemption), (i) dividends in respect
of the shares of Stock so called for
redemption shall cease to accrue from and
after such date, (ii) the Depositary
Shares being redeemed from such proceeds
shall be deemed no longer to be
outstanding, (iii) all rights of the
holders of Receipts evidencing such
Depositary Shares (except the right to
receive the redemption price) shall, to
the extent of such Depositary Shares, cease
and terminate and, (iv) upon
surrender in accordance with such
redemption notice of the Receipts evidencing
any such Depositary Shares called for
redemption (properly endorsed or assigned
for transfer, if the Depositary shall so
require), such Depositary Shares shall
be redeemed by the Depositary at a
redemption price per Depositary Share equal
to [ ] [ ]% of the redemption price per
share paid in respect of the shares of
Stock plus all money and other property, if
any, represented by such Depositary
Shares, including all amounts paid by the
Company in respect of dividends which
on the Redemption Date have accumulated on
the shares of Stock to be so redeemed
and have not theretofore been paid.
5
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If fewer than all the Depositary Shares evidenced by a Receipt
are
called for redemption, the Depositary will
deliver to the holder of such Receipt
upon its surrender to the Depositary,
together with the redemption payment, a
new Receipt evidencing the Depositary
Shares evidenced by such prior Receipt and
not called for redemption. The Depositary
shall remit to the Company any funds
deposited by or for the account of the
Company for the purpose of redeeming any
Depositary Shares that the holders thereof
have failed to redeem after two years
from the date of such deposit, without
further action necessary on the part of
the Company.
Section 2.4 Registration of Transfer of Receipts.
Subject to the terms and conditions of this Deposit Agreement,
the
Registrar, on behalf of the Depositary,
shall register on its books from time to
time transfers of Receipts upon notice to
the Registrar by the Depositary of any
surrender of a Receipt for transfer by the
holder in person or by duly
authorized attorney, which Receipt in each
case must be properly endorsed or
accompanied by a properly executed
instrument of transfer. Upon surrender of a
properly endorsed Receipt or Receipts,
accompanied by a properly executed
instrument of transfer, the Depositary
shall execute a new Receipt or Receipts
evidencing the same aggregate number of
Depositary Shares as those evidenced by
the Receipt or Receipts surrendered and
deliver such new Receipt or Receipts to
or upon the order of the transferee named
in the endorsement or instrument of
transfer.
Section 2.5 Split-Ups and Combinations of Receipts; Surrender
of
Receipts and Withdrawal of Stock.
Upon surrender of a Receipt or Receipts at the Depositary's Office
or
at such other offices as it may designate
for the purpose of effecting a
split-up or combination of such Receipt or
Receipts, and subject to the terms
and conditions of this Deposit Agreement,
the Depositary shall execute and
deliver a new Receipt or Receipts to the
holder thereof or to such holder's
order in the denominations requested,
evidencing the aggregate number of
Depositary Shares evidenced by the Receipt
or Receipts surrendered. The
Depositary shall give prompt notice of such
action and the certificate numbers
to the Registrar, if applicable, for the
purpose of recording such split-up or
consolidation.
Any holder of a Receipt or Receipts representing any number of
whole
shares of Stock may (unless the related
Depositary Shares have previously been
called for redemption) withdraw the number
of whole shares of Stock underlying
such Depositary Shares and all money and
other property, if any, represented
thereby by surrendering such Receipt or
Receipts, at the Depositary's Office or
at such other offices as the Depositary may
designate for such withdrawals.
Thereafter, without unreasonable delay, the
Depositary shall deliver to such
holder, or to the person or persons
designated by such holder as hereinafter
provided, the number of whole shares of
Stock and all money and other property,
if any, represented by the Receipt or
Receipts so surrendered for withdrawal,
but holders of such whole shares of Stock
will not thereafter be entitled to
deposit such Stock hereunder or to receive
Depositary Shares therefor. If a
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 Depositary Shares representing
the number of whole shares of Stock to
be so withdrawn, the Depositary shall at
the same time, in addition to such
number of whole shares of Stock and such
money and other property, if any, to be
so withdrawn, deliver to such holder, or
(subject to Sections 2.04 and 3.02)
upon his order, a new Receipt evidencing
such excess number of Depositary Shares
not withdrawn. Delivery of the Stock and
money and other property, if any, being
withdrawn may be made by the delivery of
such certificates, documents of title
and other instruments as the Depositary may
deem appropriate.
6
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If the Stock and the money and other property, if any, being
withdrawn
are to be delivered to a person or persons
other than the record holder of the
Receipt or Receipts being surrendered for
withdrawal of Stock, such holder shall
execute and deliver to the Depositary a
written order so directing the
Depositary, and the Depositary may require
that the Receipt or Receipts
surrendered by such holder for withdrawal
of such shares of Stock be properly
endorsed in blank or accompanied by a
properly executed instrument of transfer
in blank.
Delivery of the Stock and the money and other property, if any,
represented by Receipts surrendered for
withdrawal shall be made by the
Depositary at the Depositary's Office,
except that, at the request, risk and
expense of the holder surrendering such
Receipt or Receipts and for the account
of the holder thereof, such delivery may be
made at such other place as may be
designated by such holder.
Section 2.6 Limitations on Execution and Delivery, Transfer,
Surrender
and Exchange of Receipts.
As a condition precedent to the execution and delivery,
registration of
transfer, split-up, combination, surrender
or exchange of any Receipt, the
Depositary, any of the Depositary's Agents
or the Company may require payment to
it of a sum sufficient for the payment (or,
in the event that the Depositary or
the Company shall have made such payment,
the reimbursement to it) of any
charges or expenses payable by the holder
of a Receipt pursuant to Section 5.7,
may require the production of evidence
satisfactory to it as to the identity and
genuineness of any signature; and may also
require compliance with the rules and
regulations of any governmental body, any
stock exchange or applicable
self-regulatory body, including without
limitation, the National Association of
Securities Dealers, Inc. (the "NASD") or
such regulations, if any, as the
Depositary or the Company may establish
consistent with the provisions of this
Deposit Agreement.
The deposit of Stock may be refused, the delivery of Receipts
against
Stock deposited with the Depositary may be
suspended, the registration of
transfer of Receipts may be refused and the
registration of transfer, surrender
or exchange of outstanding Receipts may be
suspended (i) during any period when
the register of stockholders of the Company
is closed with respect to the Stock,
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. (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,
stock exchange or the NASD or under any
provision of this Deposit Agreement.
7
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Section 2.7 Lost Receipts, Etc.
If any mutilated Receipt is surrendered to the Depositary, the
Depositary may, in its discretion, execute
and de
