Deposit Agreement

Exhibit 4.11

FORM OF

DEPOSIT AGREEMENT

by and among

TORCHMARK CORPORATION

and

                                        ,

As Depositary

and

HOLDERS OF DEPOSITARY RECEIPTS

Dated as of                     ,            


TABLE OF CONTENTS

 

   ARTICLE I   
   DEFINITIONS    1
   ARTICLE II   
   FORM OF RECEIPTS, DEPOSIT OF STOCK,   
   EXECUTION AND DELIVERY, TRANSFER, SURRENDER,   
   REDEMPTION AND CONVERSION OF RECEIPTS    3
Section 2.01.    Form and Transfer of Receipts    3
Section 2.02.    Temporary Receipts    3
Section 2.03.    Deposit of Stock; Execution and Delivery of Receipts In Respect Thereof    4
Section 2.04.    Redemption and Conversion of Stock    4
Section 2.05.    Register of Transfer of Receipts    7
Section 2.06.    Combination and Split-ups of Receipts    7
Section 2.07.    Surrender of Receipts and Withdrawal of Stock    7
Section 2.08.    Limitations on Execution and Delivery, Transfer, Split-up,   
   Combination, Surrender and Exchange of Receipts And   
   Withdrawal or Deposit of Stock    8
Section 2.09.    Lost Receipts, Etc.    9
Section 2.10.    Cancellation and Destruction of Surrendered Receipts    9
   ARTICLE III   
   CERTAIN OBLIGATIONS OF HOLDERS   
   OF RECEIPTS AND THE COMPANY    9
Section 3.01.    Filing Proofs, Certificates and Other Information    9
Section 3.02.    Payment of Taxes or Other Governmental Charges    9
Section 3.03.    Withholding    10
Section 3.04.    Representations and Warranties as to Stock.    10
   ARTICLE IV   
   THE STOCK, NOTICES    10
Section 4.01.    Cash Distributions    10
Section 4.02.    Distributions Other than Cash    10
Section 4.03.    Subscription Rights, Preferences or Privileges    11
Section 4.04.    Notice of Dividends, Fixing of Record Date for Holders of Receipts    12
Section 4.05.    Voting Rights    12
Section 4.06.    Changes Affecting Stock and Reclassifications, Recapitalizations, Etc.    12

 

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Section 4.07.    Reports    13
Section 4.08.    Lists of Receipt Holders    13
ARTICLE V
THE DEPOSITARY, THE DEPOSITARY’S AGENTS,
        THE REGISTRAR AND THE COMPANY    13
Section 5.01.    Maintenance of Offices, Agencies, Transfer Books by The Depositary; the Registrar    13
Section 5.02.    Prevention or Delay in Performance by the Depositary, The Depositary’s Agents, the Registrar or the Company    14
Section 5.03.    Obligations of the Depositary, the Depositary’s Agents, The Registrar and the Company    14
Section 5.04.    Resignation and Removal of the Depositary, Appointment of Successor Depositary    15
Section 5.05.    Corporate Notices and Reports    16
Section 5.06.    Deposit of Stock by the Company    16
Section 5.07.    Indemnification by the Company    17
Section 5.08.    Fees, Charges and Expenses    17
ARTICLE VI
                AMENDMENT AND TERMINATION    17
Section 6.01.    Amendment    17
Section 6.02.    Termination    17
ARTICLE VII
              MISCELLANEOUS.    18
Section 7.01.    Counterparts    18
Section 7.02.    Exclusive Benefits of Parties    19
Section 7.03.    Invalidity of Provisions.    19
Section 7.04.    Notices    19
Section 7.05.    Depositary’s Agents    19
Section 7.06.    Holders of Receipts Are Parties    19
Section 7.07.    Governing Law    20
Section 7.08.    Headings    20
EXHIBIT A       A-1
Parties       1
Recitals       1

 

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DEPOSIT AGREEMENT

This DEPOSIT AGREEMENT is dated as of                 ,         , by andamong Torchmark Corporation, a Delaware corporation,                         , a             banking corporation, as Depositary, and all holders from time to time of Receipts issued hereunder.

WITNESSETH:

WHEREAS, the Company desires to provide as hereinafter set forthin this Deposit Agreement, for the deposit of shares of Stock with the Depositary, as agent for the beneficial owners of the Stock, for the purposes set forth in this Deposit Agreement and for the issuance hereunder of the Receipts evidencingDepositary Shares representing an interest in the Stock so deposited; and

WHEREAS, the Receipts are to be substantially in the form annexedas Exhibit A to this Deposit Agreement, with appropriate insertions, modifications and omissions, 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 Determination” shall mean the Certificate of Determination establishing and setting forth the rights, preferences, privilegesand limitations of the Stock.

“Certificate of Incorporation” shall mean the Certificate of Incorporation, as amended and restatedfrom time to time, of the Company.

“Common Stock” shall mean the Company’s common stock.

“Company” shall mean Torchmark Corporation, 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 Agreementis located at             .

 

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“Deposit Agreement” shall mean this agreement, as the same may be amended, modified orsupplemented from time to time.

“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 a share of Stock deposited with the Depositary hereunder and the same proportionate interest in any and all otherproperty 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,proportionately, to all the rights, preferences and privileges of the Stock represented by such Depositary Share or Shares, including the dividend, voting and liquidation rights contained in the Certificate of Determination, and to the benefits ofall obligations and duties of the Company in respect of the Stock under the Certificate of Determination 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 7.05.

“New York Office” shall mean the facility maintained by the Depositary in the Borough of Manhattan, The City of New York, for accepting, executing and delivering Receipts and other instruments prior toprocessing such instruments at the Corporate Office, which facility at the date of this Deposit Agreement is located at             .

“Receipt” shall mean a Depositary Receipt executed and delivered hereunder, in substantially the form of Exhibit A hereto, evidencing aDepositary Share or Depositary Shares, as the same may be amended from time to time in accordance with the provisions hereof.

“RecordHolder” 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 bank or trust 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              SeriesPreferred Stock.

 

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ARTICLE II

FORM OF RECEIPTS, DEPOSIT OF STOCK,

EXECUTION AND DELIVERY, TRANSFER, SURRENDER,

REDEMPTION AND CONVERSION OF RECEIPTS

Section 2.01. Form and Transfer of Receipts. 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. Receipts shall be executed by the Depositary by the manual signature of a duly authorized signatory of the Depositary; provided, however, that such signature may be afacsimile if a Registrar (other than the Depositary) shall have countersigned the Receipts 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 orobligatory for any purpose unless it shall have been executed as provided in the preceding sentence. The Depositary shall record on its books each Receipt executed as provided above and delivered as hereinafter provided. Receipts bearing thefacsimile 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 thisDeposit 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 conformwith 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 instrumentof transfer shall be transferable by delivery with the same effect as in the case of a negotiable instrument; provided, however, that the Depositary may, notwithstanding any notice to the contrary, treat the record holder thereof at such time as theabsolute 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. Temporary Receipts. Pending the preparation of definitive Receipts, the Depositary may, upon written order of theCompany, issue temporary Receipts substantially identical to (and entitling the holders thereof to all the rights pertaining to) the definitive Receipts but not in definitive form. Definitive Receipts will be prepared thereafter without unreasonabledelay, and such temporary Receipts will be exchangeable for definitive Receipts at the Company’s expense.

 

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Section 2.03. 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 Agreementby 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 (a) all such certifications as may be required by the Depositary in accordance with the provisions of this Deposit Agreement and (b) a written order of the Company or such holder, as the case may be, directing the Depositaryto 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 ofthe 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 thisDeposit 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 2.03, a Receipt or Receipts for the number ofwhole 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 New York Office, except that, atthe request, risk and expense of any person requesting such delivery and for the account of such person, 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 by suchperson 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.

Section 2.04. Redemption and Conversion of Stock.1 Whenever the Company shall elect to redeem or be required to convert shares of Stock into shares of Common Stock in accordance with theCertificate of Determination, it shall (unless otherwise agreed in writing with the Depositary) give the Depositary in its capacity as Depositary not less than 5 business days’ prior notice of the proposed date of the mailing of a notice ofredemption or conversion of Stock and the simultaneous redemption or conversion of the Depositary Shares representing the Stock to be redeemed or converted and of the number of such shares of Stock held by the Depositary to be redeemed or converted.The Depositary shall, as directed by the Company in

 


1 This section to be modified to discuss specific redemption or conversion terms of the Stock, if any.

 

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writing, mail, first class postage prepaid, notice of the redemption or conversion of Stock and the proposed simultaneousredemption or conversion of the Depositary Shares representing the Stock to be redeemed or converted, not less than 30 days and not more than 60 days prior to the date fixed for redemption or conversion of such Stock and Depositary Shares, to therecord holders of the Receipts evidencing the Depositary Shares to be so redeemed or converted, at the addresses of such holders as the same appear on the records of the Depositary; provided, that if the effectiveness of a Merger or Consolidation(as defined in the Certificate of Determination) makes it impracticable to provide at least 30 days’ notice, the Depositary shall provide such notice as soon as practicable prior to such effectiveness. Any such notice shall also be published inthe same manner as notices of redemption or conversion of Stock are required to be published pursuant to the Certificate of Determination. Notwithstanding the foregoing, neither failure to mail or publish any such notice to one or more such holdersnor any defect in any notice shall affect the sufficiency of the proceedings for redemption or conversion. The Company shall provide the Depositary with such notice, and each such notice shall state: the redemption or conversion date; the number ofDepositary Shares to be redeemed or converted; if fewer than all the Depositary Shares held by any holder are to be redeemed, the number of such Depositary Shares held by such holder to be so redeemed; in the case of a call for redemption, the callprice payable upon redemption and the Current Market Price (as defined in the Certificate of Determination) to be used to calculate the number of shares of Common Stock deliverable upon redemption; whether the Company is exercising any option todeliver shares of Common Stock in lieu of any cash consideration pursuant to the Certificate of Determination and the Current Market Price to be used to calculate the number of such shares; the place or places where Receipts evidencing DepositaryShares to be redeemed or converted are to be surrendered for redemption or conversion; whether the Company is depositing with a bank or trust company on or before the redemption or conversion date, the shares of Common Stock and cash, if any,payable by the Company and the proposed date of such deposit; the amount of accrued and unpaid dividends payable per share of Stock to be redeemed or converted to and including such redemption or conversion date, as the case may be, and thatdividends in respect of the Stock represented by the Depositary Shares to be redeemed or converted will cease to accrue on such redemption or conversion date (unless the Company shall default in delivering shares of Common Stock and cash, if any, atthe time and place specified in such notice). On the date of any such redemption or conversion, the Depositary shall surrender the certificate or certificates held by the Depositary evidencing the number of shares of Stock to be redeemed orconverted in the manner specified in the notice of redemption or conversion of Stock provided by the Company pursuant to the Certificate of Determination. The Depositary shall, thereafter, redeem or convert the number of Depositary Sharesrepresenting such redeemed or converted Stock upon the surrender of Receipts evidencing such Depositary Shares in the manner provided in the notice sent to record holders of Receipts; provided, that the Depositary shall have received, uponsurrendering such certificate or certificates as aforesaid, a sufficient number of shares of Common Stock to convert or redeem such number of Depositary Shares (including, in the event that the Company elects pursuant to the Certificate ofDetermination to exercise any option to deliver shares of Common Stock in lieu of any cash consideration payable on the Effective Date (as defined in the Certificate of Determination) of any Merger or Consolidation, a number of shares of CommonStock equal to such cash consideration (as determined in the manner set forth in the Certificate of Determination)), plus any accrued and unpaid dividends payable with respect thereto to and including the date of any such redemption or conversionand any other cash

 

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consideration payable on the Effective Date of a Merger or Consolidation (other than any dividends or other cashconsideration payable on the Effective Date of a Merger or Consolidation that the Company has elected to pay in shares of Common Stock pursuant to the Certificate of Determination) as instructed and calculated by the Company. In case fewer than allthe outstanding Depositary Shares are to be redeemed, the Depositary Shares to be redeemed shall be selected by the Depositary by lot or on a pro rata basis.

Notice having been mailed by the Depositary as aforesaid, from and after the redemption or conversion date (unless the Company shall have failed to redeem or convert the shares of Stock to be redeemed or converted byit upon the surrender of the certificate or certificates therefor by the Depositary as described in the preceding paragraph), the Depositary Shares called for redemption or subject to conversion shall be deemed no longer to be outstanding and allrights of the holders of Receipts evidencing such Depositary Shares (except the right to receive the shares of Common Stock and cash, if any, payable upon redemption or conversion upon surrender of such Receipts) shall, to the extent of suchDepositary Shares, cease and terminate. Upon surrender in accordance with said notice of the Receipts evidencing such Depositary Shares (properly endorsed or assigned for transfer, if the Depositary shall so require), such Depositary Shares shall beconverted into or redeemed for shares of Common Stock at a rate equal to                      of the number of shares of Common Stockdelivered, and the holders thereof shall be entitled to                      of the cash, if any, payable, in respect of the shares of Stockpursuant to the Certificate of Determination. The foregoing shall be subject further to the terms and conditions of the Certificate of Determination.

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, together with the shares ofCommon Stock and all accrued and unpaid dividends to and including the date fixed for redemption payable in respect of the Depositary Shares called for redemption, a new Receipt evidencing the Depositary Shares evidenced by such prior Receipt andnot called for redemption.

To the extent that Depositary Shares are converted into or redeemed for shares of Common Stock and all of suchshares of Common Stock cannot be distributed to the record holders of Receipts converted or called for redemption without creating fractional interests in such shares, the Depositary may, with the consent of the Company, adopt such method as itdeems equitable and practicable for the purpose of effecting such distribution, including the sale (at public or private sale) of such shares of Common Stock at such place or places and upon such terms as it may deem proper, and the net proceeds ofany such sale shall, subject to Section 3.02, be distributed or made available for distribution to such record holders that would otherwise receive fractional interests in such shares of Common Stock.

The Depositary shall not be required (a) to issue, transfer or exchange any Receipts for a period beginning at the opening of business 15 days nextpreceding any selection of Depositary Shares and Stock to be redeemed and ending at the close of business on the day of the mailing of notice of redemption of Depositary Shares or (b) to transfer or exchange for another Receipt any Receiptevidencing Depositary Shares called or being called for redemption, in whole or in part, or subject to conversion except as provided in the second preceding paragraph of this Section 2.04.

 

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Any funds deposited by the Company with the Depositary for any Depositary Shares that are not claimedafter a period of two years from the date such funds are so deposited will be returned to the Company.

Section 2.05. Register ofTransfer 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, the New York Officeor 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 thepayment 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 ofDepositary Shares evidenced by the Receipt or Receipts surrendered.

Section 2.06. Combination and Split-ups of Receipts.Upon surrender of a Receipt or Receipts at the Corporate Office, the New York 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 ofthis 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 2.07.Surrender of Receipts and Withdrawal of Stock.2 Anyholder of a Receipt or Receipts may withdraw any or all of the Stock (but only in whole shares of Stock) represented by the Depositary Shares evidenced by such Receipts and all money and other property, if any, represented by such Depositary Sharesby surrendering such Receipt or Receipts at the Corporate Office, the New York Office or at such other office as the Depositary may designate for such withdrawals. After such surrender, without unreasonable delay, the Depositary shall deliver tosuch holder, or to the person or persons designated by such holder as hereinafter provided, 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 Receiptsso 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 thewhole 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 such holder, or (subject toSection 2.05) upon his 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.

 


2 This section to be modified to reflect any restriction on withdrawal of underlying securities.

 

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If the Stock and the money and other property being withdrawn are to be delivered to a person or personsother 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 orReceipts 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 and that the signature on such instrument of transfer be guaranteed by aneligible guarantor institution (banks, stockbrokers, savings and loan associations and credit unions with membership in an approved signature guarantee medallion program) pursuant to Rule 17Ad-15 of the Securities Exchange Act of 1934, asamended.

The Depositary shall deliver the Stock and the money and other property, if any, represented by the Depositary Shares evidenced byReceipts 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 holder surrendering such Receipt or Receipts and for the account of theholder thereof, such delivery may be made, without unreasonable delay, at such other place as may be designated by such holder.

Section 2.08. Limitations on Execution and Delivery, Transfer, Split-up, Combination, Surrender and Exchange of Receipts and Withdrawal or Deposit of Stock. As a condition precedent to the execution and delivery,registration of transfer, split-up, combination, surrender or exchange of any Receipt, the delivery of any distribution thereon or the withdrawal or deposit of Stock, the Depositary, any of the Depositary’s Agents or the Company may require anyor all of the following: (a) 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 with respectthereto (including any such tax or charge with respect to the Stock being deposited or withdrawn or with respect to the Common Stock or other securities or property of the Company being issued upon conversion or redemption); (b) production ofproof satisfactory to it as to the identity and genuineness of any signature; and (c) compliance with such reasonable regulations, if any, as the Depositary or the Company may establish not inconsistent with the provisions of this DepositAgreement.

The deposit of Stock may be refused, the delivery of Receipts against Stock or the registration of transfer, split-up,combination, surrender or exchange of outstanding Receipts and the withdrawal of deposited Stock may be suspended (a) during any period when the register of shareholders of the Company is closed, (b) if any such action is deemed necessaryor 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 DepositAgreement, or (c) 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 beregistered under the Securities Act unless a registration statement under the Securities Act is in effect as to such shares of Stock.

 

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Section 2.09. Lost Receipts, Etc. In case any Receipt shall be mutilated or destroyedor 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 Depositaryhas notice that such Receipt has been acquired by a bona fide purchaser; provided, however, that the holder thereof provides the Depositary with (a) evidence satisfactory to the Depositary of such destruction, loss or theft of such Receipt, ofthe authenticity thereof and of his ownership thereof, (b) 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(c) payment of any expense (including fees, charges and expenses of the Depositary) in connection with such execution and delivery.

Section 2.10. 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 orregulation, the Depositary is authorized to destroy such Receipts so cancelled.

ARTICLE III

CERTAIN OBLIGATIONS OF HOLDERS

OFRECEIPTS AND THE COMPANY

Section 3.01. Filing Proofs, Certificates and Other Information. Any person presentingStock 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 mayreasonably deem necessary or proper. The Depositary or the Company may withhold or delay the delivery of any Receipt, the registration of transfer, redemption, conversion or exchange of any Receipt, the withdrawal of the Stock represented by theDepositary Shares evidenced by any Receipt or the distribution of any dividend or other distribution until such proof or other information is filed, 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 onbehalf of the Depositary with respect to (a) any Receipt, (b) the Depositary Shares evidenced by such Receipt, (c) the Stock (or fractional interest therein) or other property represented by such Depositary Shares, or (d) anytransaction referred to in Section 4.06, such tax (including transfer, issuance or acquisition taxes, if any) or governmental charge shall be payable by the holder of such Receipt, who shall pay the amount thereof to the Depositary. Until suchpayment is made, registration of 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 may be refused, anydividend or other distribution may be withheld and any part or all of the Stock or other property (including Common Stock received in connection with a conversion or redemption of Stock) represented by the Depositary Shares evidenced by such Receiptmay 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 suchtax or other governmental charge, the holder of such Receipt remaining liable for any deficiency.

 

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Section 3.03. Withholding. The Depositary shall act as the tax withholding agent forany payments, distributions and exchanges made with respect to the Depositary Shares and Receipts, and the Stock, Common Stock or other securities or assets represented thereby (collectively, the “Securities”). The Depositary shall beresponsible with respect to the Securities for the timely (a) collection and deposit of any required withholding or backup withholding tax, and (b) filing of any information returns or other documents with federal (and other applicable)taxing authorities.

Section 3.04. Representations and Warranties as to Stock. In the case of the initial deposit of theStock, 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 therefor are duly issued and thatthe 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 4.01. Cash Distributions. Whenever the Depositary shall receive any cash dividend or other cash distribution on the Stock, theDepositary shall, subject to Section 3.02, distribute to record holders of Receipts on the record date fixed pursuant to Section 4.04 such amounts of such sum as are, as nearly as practicable, in proportion to the respective numbers ofDepositary 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 ofthe 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 owner 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 beadded to and be treated as part of the next sum received by the Depositary for distribution to record holders of Receipts then outstanding.

Section 4.02. 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 3.02,distribute to record holders of Receipts on the record date fixed pursuant to Section 4.04 such amounts of the securities or property received by it as are, as nearly as practicable, in proportion to the respective numbers of Depositary Sharesevidenced 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 Depositary after consultation with the Company, suchdistribution cannot be made proportionately among such record holders, or if for any other reason (including any tax

 

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withholding or securities law requirement), the Depositary deems, after consultation with the Company, such distributionnot 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 3.02, be distributed ormade available for distribution, as the case may be, by the Depositary to record holders of Receipts as provided by Section 4.01 in the case of a distribution received in cash.

Section 4.03. Subscription Rights, Preferences or Privileges. If the Company shall at any time offer or cause to be offered to thepersons in whose names Stock is registered on the books of the Company any rights, preferences or privileges to subscribe for or to purchase any securities or any rights, preferences or privileges of any other nature, such rights, preferences orprivileges shall in each such instance be made available by the Depositary to the record holders of Receipts in such manner as the Company shall instruct (including by the issue to such record holders of warrants representing such rights,preferences or privileges); provided, however, that (a) if at the time of issue or offer of any such rights, preferences or privileges the Company determines and instructs the Depositary that it is not lawful or feasible to make such rights,preferences or privileges available to some or all holders of Receipts (by the issue of warrants or otherwise) or (b) if and to the extent instructed by holders of Receipts who do not desire to exercise such rights, preferences or privileges,the Depositary shall then, in each case, and if applicable laws or the terms of such rights, preferences or privileges so permit, sell such rights, preferences or privileges of such holders at public or private sale, at such place or places and uponsuch terms as it may deem proper. The net proceeds of any such sale shall be distributed by the Depositary to the record holders of Receipts entitled thereto as provided by Section 4.01 in the case of a distribution received in cash.

If registration under the Securities Act of the securities to which any rights, preferences or privileges relate is required in order for holders ofReceipts to be offered or sold, the Company shall promptly file a registration statement pursuant to the Securities Act with respect to such securities and use its best efforts and take all steps available to it to cause such registration statementto become effective sufficiently in advance of the expiration of such rights, preferences or privileges to enable such holders to exercise such rights, preferences or privileges. In no event shall the Depositary make available to the holders ofReceipts any right, preference or privilege to subscribe for or to purchase any securities unless and until such registration statement shall have become effective or unless the offering and sale of such securities to such holders are exempt fromregistration under the provisions of the Securities Act.

If any other action under the law of any jurisdiction or any governmental oradministrative authorization, consent or permit is required in order for such rights, preferences or privileges to be made available to holders of Receipts, the Company agrees with the Depositary that the Company will use its reasonable best effortsto take such action or obtain such authorization, consent or permit sufficiently in advance of the expiration of such rights, preferences or privileges to enable such holders to exercise such rights, preferences or privileges.

 

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Section 4.04. Notice of Dividends, Fixing of Record Date for Holders Of Receipts.Whenever (a) any cash dividend or other cash distribution shall become payable, or any distribution other than cash shall be made, or any rights, preferences or privileges shall at any time be offered, with respect to the Stock, or (b) theDepositary shall receive notice of any meeting at which holders of Stock are entitled to vote or of which holders of Stock are entitled to notice or of the mandatory conversion of, or any election on the part of the Company to call for theredemption of, any shares of Stock, the Depositary shall in each such instance fix a record date (which shall be the same date as the record date fixed by the Company with respect to the Stock) for the determination of the holders of Receipts(i) who shall be entitled to receive such dividend, distribution, rights, preferences or privileges or the net proceeds of the sale thereof, or (ii) who shall be entitled to give instructions for the exercise of voting rights at any suchmeeting or to receive notice of such meeting or of such conversion or redemption.

Section 4.05. Voting Rights. Uponreceipt of notice of any meeting at which the holders of Stock are entitled to vote, the Depositary shall, as soon as practicable thereafter, mail to the record holders of Receipts a notice, which shall be provided by the Company and which shallcontain (a) such information as is contained in such notice of meeting, (b) a statement that the holders of Receipts at the close of business on a specified record date fixed pursuant to Section 4.04 will be entitled, subject to anyapplicable provision of law, the Certificate of Incorporation or the Certificate of Determination, to instruct the Depositary as to the exercise of the voting rights pertaining to the Stock represented by their respective Depositary Shares and(c) a brief statement as to the manner in which such instructions may be given. Upon the written request of a holder of a Receipt on such record date, the Depositary shall endeavor insofar as practicable to vote or cause to be voted the Stockrepresented by the Depositary Shares evidenced by such Receipt in accordance with the instructions set forth in such request. The Company hereby agrees to take all reasonable action that may be deemed necessary by the Depositary in order to enablethe Depositary to vote such Stock or cause such Stock to be voted. In the absence of specific instructions from the holder of a Receipt, the Depositary will abstain from voting to the extent of the Stock represented by the Depositary Sharesevidenced by such Receipt.

Section 4.06. Changes Affecting Stock and Reclassifications, Recapitalizations, Etc. Upon anysplit-up, consolidation or any other reclassification of Stock, or upon any recapitalization, reorganization, merger, amalgamation or consolidation affecting the Company or to which it is a party (other than a Merger or Consolidation) or sale of allor substantially all of the Company’s assets, the Depositary shall treat any shares of stock or other securities or property (including cash) that shall be received by the Depositary in exchange for or upon conversion of or in respect of theStock as new deposited property under this Deposit Agreement, and Receipts then outstanding shall thenceforth represent the proportionate interests of holders thereof in the new deposited property so received in exchange for or upon conversion or inrespect of such Stock. In any such case the Depositary may, in its discretion, with the approval of the Company, execute and deliver additional Receipts, or may call for the surrender of all outstanding Receipts to be exchanged for new Receiptsspecifically describing such new deposited property.

 

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Section 4.07. Reports. The Depositary shall make available for inspection by holdersof Receipts at the Corporate Office, the New York Office and at such other places as it may from time to time deem advisable during normal business hours any reports and communications received from the Company that are received by the Depositary asthe holder of Stock.

Section 4.08. Lists of Receipt Holders. Promptly upon request from time to time by the Company, theDepositary shall furnish to it a list, as of a recent date, of the names, addresses and holdings of Depositary Shares of all persons in whose names Receipts are registered on the books of the Depositary. At the expense of the Company, the Companyshall have the right to inspect transfer and registration records of the Depositary, any Depositary’s Agent or the Registrar, take copies thereof and require the Depositary, any Depositary’s Agent or the Registrar to supply copies of suchportions of such records as the Company may request.

ARTICLE V

THE DEPOSITARY, THE DEPOSITARY’S AGENTS,

THE REGISTRAR AND THE COMPANY

Section 5.01. Maintenance of Offices, Agencies, Transfer Books by the Depositary; the Registrar. Upon execution ofthis Deposit Agreement in accordance with its terms, the Depositary shall maintain (a) at the New York Office facilities for the execution and delivery, registration, registration of transfer, surrender and exchange, split-up, combination,redemption and conversion of Receipts and deposit and withdrawal of Stock and (b) at the Corporate Office and at the offices of the Depositary’s Agents, if any, facilities for the delivery, registration, registration of transfer, surrenderand exchange, split-up, combination, conversion and redemption of Receipts and deposit and withdrawal of Stock, all in accordance with the provisions of this Deposit Agreement.

The Depositary shall keep books at the Corporate Office for the registration and transfer of Receipts, which books at all reasonable times shall be openfor inspection by the record holders of Receipts; provided that any such holder requesting to exercise such right shall certify to the Depositary that such inspection shall be for a proper purpose reasonably related to such person’s interest asa holder of Depositary Shares. The Depositary shall consult with the Company upon receipt of any request for inspection. The Depositary may close such books, at any time or from time to time, when deemed necessary by it in connection with theperformance of its duties hereunder.

If the Receipts or the Depositary Shares evidenced thereby or the Stock represented by such DepositaryShares shall be listed on one or more stock exchanges, the Depositary shall, with the approval of the Company, appoint a Registrar for registry of such Receipts or Depositary Shares in accordance with the requirements of such exchange or exchanges.Such Registrar (which may be the Depositary if so permitted by the requirements of such exchange or exchanges) may be removed and a substitute registrar appointed by the Depositary upon the request or with the approval of the Company. In addition,if the Receipts, such Depositary Shares or such Stock are listed on one or more stock exchanges, the Depositary will, at the request of the Company, arrange such facilities for the delivery, registration, registration of

 

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transfer, surrender and exchange, split-up, combination, redemption or conversion of such Receipts, such DepositaryShares or such Stock as may be required by law or applicable stock exchange regulations.

Section 5.02. Prevention or Delay inPerformance by the Depositary, the Depositary’s Agents, the Registrar or the Company. Neither the Depositary nor any Depositary’s Agent nor the Registrar nor the Company shall incur any liability to any holder of any Receipt, if byreason of any provision of any present or future law or regulation thereunder of the United States of America or of any other governmental authority or, in the case of the Depositary, the Registrar or any Depositary’s Agent, by reason of anyprovision, present or future, of the Certificate of Incorporation or the Certificate of Determination or, in the case of the Company, the Depositary, the Registrar or any Depositary’s Agent, by reason of any act of God or war or othercircumstances beyond the control of the relevant party, the Depositary, any Depositary’s Agent, the Registrar or the Company shall be prevented or forbidden from doing or performing any act or thing that the terms of this Deposit Agreementprovide shall be done or performed; nor shall the Depositary, any Depositary’s Agent, the Registrar or the Company incur any liability to any holder of a Receipt (a) by reason of any nonperformance or delay, caused as aforesaid, in theperformance of any act or thing that the terms of this Deposit Agreement provide shall or may be done or performed, or (b) by reason of any exercise of, or failure to exercise, any discretion provided for in this Deposit Agreement except, inthe case of the Depositary, any Depositary’s Agent or the Registrar, if any such exercise or failure to exercise discretion is caused by its negligence or bad faith.

Section 5.03. Obligations of the Depositary, the Depositary’s Agents, the Registrar and the Company. The Company assumes no obligation and shall be subject to no liability under this DepositAgreement or the Receipts to holders or other persons, except to perform in good faith such obligations as are specifically set forth and undertaken by it to perform in this Deposit Agreement. Each of the Depositary, the Depositary’s Agents andthe Registrar assumes no obligation and shall be subject to no liability under this Deposit Agreement or the Receipts to holders or other persons, except to perform such obligations as are specifically set forth and undertaken by it to perform inthis Deposit Agreement without negligence or bad faith.

Neither the Depositary nor any Depositary’s Agent nor the Registrar nor theCompany shall be under any obligation to appear in, prosecute or defend any action, suit or other proceeding with respect to Stock, Depositary Shares, Receipts or Common Stock that in its opinion may involve it in expense or liability, unlessindemnity satisfactory to it against all expense and liability be furnished as often as may be required.

Neither the Depositary nor anyDepositary’s Agent nor the Registrar nor the Company shall be liable for any action or any failure to act by it in reliance upon the advice of or information from legal counsel, accountants, any person presenting Stock for deposit, any holderof a Receipt or any other person believed by it in good faith to be competent to give such advice or information. The Depositary, any Depositary’s Agent, the Registrar and the Company may each rely and shall each be protected in acting upon anywritten notice, request, direction or other document believed by it to be genuine and to have been signed or presented by the proper party or parties.

 

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The Depositary, the Registrar and any Depositary’s Agent may own and deal in any class of securitiesof the Company and its affiliates and in Receipts or Depositary Shares. The Depositary may also act as transfer agent or registrar of any of the securities of the Company and its affiliates.

It is intended that neither the Depositary nor any Depositary’s Agent shall be deemed to be an “issuer” of the Stock, the DepositaryShares, the Receipts or the Common Stock issued upon conversion or redemption of the Stock under the federal securities laws or applicable state securities laws, it being expressly understood and agreed that the Depositary and any Depositary’sAgent are acting only in a ministerial capacity as Depositary for the Stock; provided, however, that the Depositary agrees to comply with all information reporting and withholding requirements applicable to it under law or this Deposit Agreement inits capacity as Depositary.

Neither the Depositary (or its officers, directors, employees or agents) nor any Depositary’s Agent makesany representation or has any responsibility as to the validity of any Registration Statement pursuant to which the Depositary Shares are registered under the Securities Act, the Stock, the Depositary Shares or any instruments referred to therein orherein, or as to the correctness of any statement made therein or herein; provided, however, that the Depositary is responsible for its representations in this Deposit Agreement.

The Depositary assumes no responsibility for the correctness of the description that appears in the Receipts, which can be taken as a statement of theCompany summarizing certain provisions of this Deposit Agreement. Notwithstanding any other provision herein or in the Receipts, the Depositary makes no warranties or representations as to the validity, genuineness or sufficiency of any Stock at anytime deposited with the Depositary hereunder or of the Depositary Shares, as to the validity or sufficiency of this Deposit Agreement, as to the value of the Depositary Shares or as to any right, title or interest of the record holders of Receiptsin and to the Depositary Shares except that the Depositary hereby represents and warrants as follows: (a) the Depositary has been duly organized and is validly existing and in good standing under the laws of the State of            , with full power, authority and legal right under such law to execute, deliver and carry out the terms of this Deposit Agreement; (b) this Deposit Agreement hasbeen duly authorized, executed and delivered by the Depositary; and (c) this Deposit Agreement constitutes a valid and binding obligation of the Depositary, enforceable against the Depositary in accordance with its terms, except as enforcementthereof may be limited by bankruptcy, insolvency, reorganization or other similar laws affecting enforcement of creditors’ rights generally and except as enforcement thereof is subject to general principles of equity (regardless of whetherenforcement is considered in a proceeding in equity or at law). The Depositary shall not be accountable for the use or application by the Company of the Depositary Shares or the Receipts or the proceeds thereof.

Section 5.04. Resignation and Removal of the Depositary; Appointment Of Successor Depositary. The Depositary may at any time resign asDepositary hereunder by written notice via registered mail of its election to do so delivered to the Company, such resignation to take effect upon the appointment of a successor depositary and its acceptance of such appointment as hereinafterprovided.

 

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The Depositary may at any time be removed by the Company by written notice of such removal delivered tothe Depositary, such removal to take effect upon the appointment of a successor depositary and its acceptance of such appointment as hereinafter provided.

In case at any time the Depositary acting hereunder shall resign or be removed, the Company shall, within 60 days after the delivery of the notice of resignation or removal, as the case may be, appoint a successordepositary, which shall be a bank or trust company, or an affiliate of a bank or trust company, having its principal office in the United States of America and having a combined capital and surplus of at least $50,000,000. If a successor depositaryshall not have been appointed in 60 days, the resigning or removed Depositary may petition a court of competent jurisdiction to appoint a successor depositary. Every successor depositary shall execute and deliver to its predecessor and to theCompany an instrument in writing accepting its appointment hereunder, and thereupon such successor depositary, without any further act or deed, shall become fully vested with all the rights, powers, duties and obligations of its predecessor and forall purposes shall be the Depositary under this Deposit Agreement, and such predecessor, upon payment of all sums due it and on the written request of the Company, shall promptly execute and deliver an instrument transferring to such successor allrights and powers of such predecessor hereunder, shall duly assign, transfer and deliver all rights, title and interest in the Stock and any moneys or property held hereunder to such successor and shall deliver to such successor a list of the recordholders of all outstanding Receipts. Any successor depositary shall promptly mail notice of its appointment to the record holders of Receipts.

Any corporation into or with which the Depositary may be merged, consolidated or converted shall be the successor of such Depositary without the execution or filing of any document or any further act. Such successor depositary may executethe Receipts either in the name of the predecessor depositary or in the name of the successor depositary.

Section 5.05.Corporate Notices and Reports. The Company agrees that it will deliver to the Depositary, and the Depositary will, promptly after receipt thereof, transmit to the record holders of Receipts, in each case at the address recorded in theDepositary’s books, copies of all notices and reports (including financial statements) required by law, by the rules of any national securities exchange upon which the Stock, the Depositary Shares or the Receipts are listed or by theCertificate of Incorporation and the Certificate of Determination to be furnished by the Company to holders of Stock. Such transmission will be at the Company’s expense and the Company will provide the Depositary with such number of copies ofsuch documents as the Depositary may reasonably request. In addition, the Depositary will transmit to the record holders of Receipts at the Company’s expense such other documents as may be requested by the Company.

Section 5.06. Deposit of Stock by the Company. The Company agrees with the Depositary that neither the Company nor any companycontrolled by the Company will at any time deposit any Stock if such Stock is required to be registered under the provisions of the Securities Act and no registration statement is at such time in effect as to such Stock.

 

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Section 5.07. Indemnification by the Company. The Company agrees to indemnify theDepositary, any Depositary’s Agent and any Registrar against, and hold each of them harmless from, any liability, costs and expenses (including reasonable fees and expenses of counsel) that may arise out of or in connection with its acting asDepositary, Depositary’s Agent or Registrar, respectively, under this Deposit Agreement and the Receipts, except for any liability arising out of negligence, bad faith or willful misconduct on the part of any such person or persons.

Section 5.08. Fees, Charges and Expenses. No fees, charges and expenses of the Depositary or any Depositary’s Agent hereunderor of any Registrar shall be payable by any person other than the Company, except for any taxes and other governmental charges and except as provided in this Deposit Agreement. If, at the request of a holder of a Receipt, the Depositary incurs fees,charges or expenses for which it is not otherwise liable hereunder, such holder or other person will be liable for such fees, charges and expenses. All other fees, charges and expenses of the Depositary and any Depositary’s Agent hereunder andof any Registrar (including, in each case, reasonable fees and expenses of counsel) incident to the performance of their respective obligations hereunder will be paid from time to time upon consultation and agreement between the Depositary and theCompany as to the amount and nature of such fees, charges and expenses.

ARTICLE VI

AMENDMENT AND TERMINATION

Section 6.01. Amendment. The form of the Receipts and any provision of this Deposit Agreement may at any time and from time to time be amended by agreement between the Company and the Depositary in any respect that theymay deem necessary or desirable. Any amendment that shall impose or increase any fees, taxes or charges payable by holders of Receipts (other than taxes and other governmental charges, fees and other expenses payable by holders pursuant to the termshereof or of the Receipts), or that otherwise prejudices any substantial existing right of holders of Receipts, shall not become effective as to outstanding Receipts until the expiration of 30 days after notice of such amendment shall have beenmailed to the record holders of outstanding Receipts. Every holder of an outstanding Receipt at the time any such amendment becomes effective shall be deemed, by continuing to hold such Receipt, to consent and agree to such amendment and to be boundby this Deposit Agreement as amended thereby. In no event shall any amendment impair the right, subject to the provisions of Sections 2.04, 2.07 and 2.08 and Article III, of any owner of any Depositary Shares to surrender the Receipt evidencing suchDepositary Shares with instructions to the Depositary to deliver to the holder the Stock and all money and other property, if any, represented thereby, except in order to comply with mandatory provisions of applicable law.

Section 6.02. Termination. Whenever so directed by the Company, the Depositary will terminate this Deposit Agreement by mailing noticeof such termination to the record holders of all Receipts then outstanding at least 30 days prior to the date fixed in such notice for such termination. The Depositary may likewise terminate this Deposit Agreement if at any time 90

 

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days shall have expired after the Depositary shall have delivered to the Company a written notice of its election toresign and a successor depositary shall not have been appointed and accepted its appointment as provided in Section 5.04. In either case, on a date not less than 90 days after such notice, the Depositary shall deliver or make available fordelivery to holders of Receipts, upon surrender of such Receipts evidencing Depositary Shares, such number of whole or fractional shares of the Stock as are represented by the Depositary Shares.

This Deposit Agreement shall automatically terminate after all outstanding Depositary Shares have been redeemed or there has been a final distribution inrespect of the Stock in connection with any liquidation, dissolution or winding up of the Company and such distribution has been distributed to the holders of the Receipts.

If any Receipts shall remain outstanding after the date of termination of this Deposit Agreement, the Depositary thereafter shall discontinue thetransfer of Receipts, shall suspend the distribution of dividends to the holders thereof and shall not give any further notices (other than notice of such termination) or perform any further acts under this Deposit Agreement, except as providedbelow and that the Depositary shall continue to collect dividends and other distributions pertaining to Stock, shall sell rights, preferences or privileges as provided in this Deposit Agreement and shall continue to deliver the Stock and any moneyand other property represented by Receipts, without liability for interest thereon, upon surrender thereof by the holders thereof. At any time after the expiration of two years from the date of termination, the Depositary may sell Stock then heldhereunder at public or private sale, at such places and upon such terms as it deems proper and may thereafter hold in a segregated account the net proceeds of any such sale, together with any money and other property held by it hereunder, withoutliability for interest, for the benefit, pro rata in accordance with their holdings, of the holders of Receipts that have not heretofore been surrendered. After making such sale, the Depositary shall be discharged from all obligations under thisDeposit Agreement except to account for such net proceeds and money and other property. Upon the termination of this Deposit Agreement, the Company shall be discharged from all obligations under this Deposit Agreement except for its obligations tothe Depositary, any Depositary’s Agent and any Registrar under Sections 5.07 and 5.08.

ARTICLE VII

MISCELLANEOUS

Section 7.01.Counterparts. This Deposit Agreement may be executed by the Company and the Depositary in separate counterparts, each of which counterparts, when so executed and delivered, shall be deemed an original, but all such counterparts takentogether shall constitute one and the same instrument. Delivery of an executed counterpart of a signature page to this Deposit Agreement by telecopier shall be effective as delivery of a manually executed counterpart of this Deposit Agreement.Copies of this Deposit Agreement shall be filed with the Depositary and the Depositary’s Agents and shall be open to inspection during business hours at the Corporate Office and the New York Office and the respective offices of theDepositary’s Agents, if any, by any holder of a Receipt.

 

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Section 7.02. Exclusive Benefits of Parties. This Deposit Agreement is for theexclusive benefit of the parties hereto, and their respective successors hereunder, and shall not be deemed to give any legal or equitable right, remedy or claim to any other person whatsoever.

Section 7.03. Invalidity of Provisions. In case any one or more of the provisions contained in this Deposit Agreement or in theReceipts should be or become invalid, illegal or unenforceable in any respect, the validity, legality and enforceability of the remaining provisions contained herein or therein shall in no way be affected, prejudiced or disturbed thereby.

Section 7.04. Notices. Any notices to be given to the Company hereunder or under the Receipts shall be in writing and shall bedeemed to have been duly given if personally delivered or sent by mail, or by telegram or telex or telecopier confirmed by letter, addressed to the Company at 3700 South Stonebridge Drive, McKinney, Texas 75070, Attention: General Counsel, or at anyother place to which the Company may have transferred its principal executive office.

Any notices to be given to the Depositary hereunderor under the Receipts shall be in writing and shall be deemed to have been duly given if personally delivered or sent by mail, or by telegram or telex or telecopier confirmed by letter, addressed to the Depositary at the Corporate Office.

Any notices given to any record holder of a Receipt hereunder or under the Receipts shall be in writing and shall be deemed to have been duly given ifpersonally delivered or sent by mail, or by telegram or telex or telecopier confirmed by letter, addressed to such record holder at the address of such record holder as it appears on the books of the Depositary or, if such holder shall have filedwith the Depositary a written request that notices intended for such holder be mailed to some other address, at the address designated in such request.

Delivery of a notice sent by mail, or by telegram or telex or telecopier shall be deemed to be effected at the time when a duly addressed letter containing the same (or a duly addressed letter confirming an earliernotice in the case of a telegram or telex or telecopier message) is deposited, postage prepaid, in a post office letter box. The Depositary or the Company may, however, act upon any telegram or telex or telecopier message received by it from theother or from any holder of a Receipt, notwithstanding that such telegram or telex or telecopier message shall not subsequently be confirmed by letter as aforesaid.

Section 7.05. Depositary’s Agents. The Depositary may, with the approval of the Company which approval shall not be unreasonably withheld, from time to time appoint one or moreDepositary’s Agents to act in any respect for the Depositary for the purposes of this Deposit Agreement and may vary or terminate the appointment of such Depositary’s Agents.

Section 7.06. Holders of Receipts Are Parties. Notwithstanding that holders of Receipts have not executed and delivered this DepositAgreement or any counterpart thereof, the holders of Receipts from time to time shall be deemed to be parties to this Deposit Agreement and shall be bound by all of the terms and conditions, and be entitled to all of the benefits, hereof and of theReceipts by acceptance of delivery of Receipts.

 

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Section 7.07. Governing Law. THIS DEPOSIT AGREEMENT AND THE RECEIPTS AND ALL RIGHTSHEREUNDER AND THEREUNDER AND PROVISIONS HEREOF AND THEREOF SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAW OF THE STATE OF NEW YORK, INCLUDING, WITHOUT LIMITATION, SECTION 5-1401 OF THE NEW YORK GENERAL OBLIGATIONSLAW.

Section 7.08. Headings. The headings of articles and sections in this Deposit Agreement and in the form of theReceipt set forth in Exhibit A hereto have been inserted for convenience only and are not to be regarded as a part of this Deposit Agreement or to have any bearing upon the meaning or interpretation of any provision contained herein or in theReceipts.

 

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IN WITNESS WHEREOF, Torchmark Corporation and             have duly executed this Deposit Agreement as of the day and year first above set forth and all holders of Receipts shall become parties hereto by and upon acceptance bythem of delivery of Receipts issued in accordance with the terms hereof.

 

    TORCHMARK CORPORATION
Attest:    
By:  

 

  By:  

 

    Name:  
    Title:  
Attest:      
By:  

 

  By:  

 

    Name:  
    Title:  

 

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EXHIBIT A

DEPOSITARY RECEIPT

FOR

DEPOSITARY SHARES

EACH REPRESENTING             OF A SHARE OF

             SERIES PREFERRED

STOCK

OF

TORCHMARK CORPORATION

(Incorporated under the Laws of the State of Delaware)

No.                     

                                                 (the “Depositary”) hereby certifies that              is the registered owner of             Depositary Shares (the “Depositary Shares”), each Depositary Share representing             of a share of              Preferred Stock (the “Stock”), of Torchmark Corporation, a corporation duly organized and existing under the laws of the State of Delaware (the“Company”), and the same proportionate interest in any and all other property received by the Depositary in respect of such shares of Stock and held by the Depositary under the Deposit Agreement (as defined below). Subject to the terms ofthe Deposit Agreement, each owner of a Depositary Share is entitled, proportionately, to all the rights, preferences and privileges of the Stock represented thereby, including the dividend, voting, liquidation and other rights contained in theCertificate of Determination establishing the rights, preferences, privileges and limitations of the Stock (the “Certificate of Determination”), copies of which are on file at the office of the Depositary at which at any particular timeits business in respect of matters governed by the Deposit Agreement shall be administered, which at the time of the execution of the Deposit Agreement is located at             ,            ,                       (the “CorporateOffice”).

This Depositary Receipt (“Receipt”) shall not be entitled to any benefits under the Deposit Agreement or be validor obligatory for any purpose unless this Receipt shall have been executed manually or, if a Registrar for the Receipts (other than the Depositary) shall have been appointed, by facsimile by the Depositary by the signature of a duly authorizedsignatory and, if executed by facsimile signature of the Depositary, shall have been countersigned manually by such Registrar by the signature of a duly authorized signatory.

THE DEPOSITARY IS NOT RESPONSIBLE FOR THE VALIDITY OF ANY DEPOSITED STOCK. THE DEPOSITARY ASSUMES NO RESPONSIBILITY FOR THE CORRECTNESS OF THEDESCRIPTION SET FORTH IN THIS RECEIPT, WHICH CAN BE TAKEN AS A STATEMENT OF THE COMPANY SUMMARIZING CERTAIN PROVISIONS OF THE DEPOSIT AGREEMENT. UNLESS EXPRESSLY SET FORTH IN THE DEPOSIT AGREEMENT, THE DEPOSITARY MAKES NO

 

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WARRANTIES OR REPRESENTATIONS AS TO THE VALIDITY, GENUINENESS OR SUFFICIENCY OF ANY STOCK AT ANY TIME DEPOSITED WITHTHE DEPOSITARY UNDER THE DEPOSIT AGREEMENT OR OF THE DEPOSITARY SHARES, AS TO THE VALIDITY OR SUFFICIENCY OF THE DEPOSIT AGREEMENT, AS TO THE VALUE OF THE DEPOSITARY SHARES OR AS TO ANY RIGHT, TITLE OR INTEREST OF THE RECORD HOLDERS OF THEDEPOSITARY RECEIPTS IN AND TO THE DEPOSITARY SHARES.

The Company will furnish to any holder of this Receipt without charge, uponrequest addressed to its executive office, a full statement of the designations, relative rights, preferences and limitations of the shares of each authorized class, and of each class of preferred stock authorized to be issued, so far as the samemay have been fixed, and a statement of the authority of the Board of Directors of the Company to designate and fix the relative rights, preferences and limitations of other classes.

This Receipt is continued on the reverse hereof and the additional provisions therein set forth for all purposes have the same effect as if set forth atthis place.

 

Dated:

 

                                            ,

 

as Depositary and Registrar

By:  

 

  Authorized Signatory

 

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[FORM OF REVERSE

OF DEPOSITARY RECEIPT]

1. THE DEPOSIT AGREEMENT. Depositary Receipts (the “Receipts”), ofwhich this Receipt is one, are made available upon the terms and conditions set forth in the Deposit Agreement, dated as of                            ,             (the “Deposit Agreement”), among the Company, the Depositary and all holders from time to time of Receipts. The Deposit Agreement (copies of which are on fileat the Corporate Office, the office maintained by the Depositary in the Borough of Manhattan, The City of New York, which at the time of the execution of the Deposit Agreement is located at                     (the “New York Office”) and at the office of any agent of the Depositary) sets forth the rights of holders ofReceipts and the rights and duties of the Depositary. The statements made on the face and the reverse of this Receipt are summaries of certain provisions of the Deposit Agreement and are subject to the detailed provisions thereof, to which referenceis hereby made. In the event of any conflict between the provisions of this Receipt and the provisions of the Deposit Agreement, the provisions of the Deposit Agreement will govern.

2. DEFINITIONS. Unless otherwise expressly herein provided, all defined terms used herein shall have the meanings ascribed thereto in the DepositAgreement.

3. REDEMPTION AND CONVERSION OF STOCK.3 Whenever the Company shall elect to redeem or be required to convert shares of Stock into shares of Common Stock in accordance with the Certificate of Determination, it shall (unless otherwise agreedin writing with the Depositary) give the Depositary in its capacity as Depositary not less than 5 business days’ prior notice of the proposed date of the mailing of a notice of redemption or conversion of Stock and the simultaneous redemptionor conversion of the Depositary Shares representing the Stock to be redeemed or converted and of the number of such shares of Stock held by the Depositary to be redeemed or converted. The Depositary shall, as directed by the Company in writing,mail, first class postage prepaid, notice of the redemption or conversion of Stock and the proposed simultaneous redemption or conversion of Depositary Shares representing the Stock to be redeemed or converted, not less than 30 and not more than 60days prior to the date fixed for redemption or conversion of such Stock and Depositary Shares, to the record holders of the Receipts evidencing the Depositary Shares to be so redeemed or converted, at the addresses of such holders as the same appearon the records of the Depositary; provided, that if the effectiveness of a Merger or Consolidation (as defined in the Certificate of Determination) makes it impracticable to provide at least 30 days’ notice, the Depositary shall provide suchnotice as soon as practicable prior to such effectiveness. Any such notice shall also be published in the same manner as notices of redemption or conversion of the Stock are required to be published pursuant to the Certificate of Determination. Onthe date of any such redemption or conversion, the Depositary shall surrender the certificate or certificates held by the Depositary evidencing the number of shares of Stock to be redeemed or converted in the manner specified in the notice ofredemption or conversion of Stock provided by the Company pursuant to the Certificate of Determination. The Depositary shall, thereafter, redeem or convert the number of Depositary Shares representing such redeemed or converted Stock upon thesurrender of

 


3 This section to be modified to discuss specific redemption or conversion terms of the Stock, if any.

 

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Receipts evidencing such Depositary Shares in the manner provided in the notice sent to record holders of Receipts;provided, that the Depositary shall have received, upon surrendering such certificate or certificates as aforesaid, a sufficient number of shares of Common Stock to convert or redeem such number of Depositary Shares (including, in the event that theCompany elects pursuant to the Certificate of Determination to exercise any option to deliver shares of Common Stock in lieu of any cash consideration payable on the Effective Date (as defined in the Certificate of Determination) of any Merger orConsolidation, a number of shares of Common Stock equal to such cash consideration (as determined in the manner set forth in the Certificate of Determination)), plus any accrued and unpaid dividends payable with respect thereto to and including thedate of any such redemption or conversion and any other cash consideration payable on the Effective Date of a Merger or Consolidation (other than any dividends or other cash consideration payable on the Effective Date of a Merger or Consolidationthat the Company has elected to pay in shares of Common Stock pursuant to the Certificate of Determination). In case fewer than all the outstanding Depositary Shares are to be redeemed, the Depositary Shares to be redeemed shall be selected by theDepositary by lot or on a pro rata basis.

Notice having been mailed and published as aforesaid, from and after the redemption or conversiondate (unless the Company shall have failed to redeem or convert the shares of Stock to be redeemed or converted by it upon the surrender of the certificate or certificates therefor by the Depositary as described above), the Depositary Shares calledfor redemption or subject to conversion 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 shares of Common Stock and cash, if any, payable uponredemption or conversion upon surrender of such Receipts) shall, to the extent of such Depositary Shares, cease and terminate. Upon surrender in accordance with said notice of the Receipts evidencing such Depositary Shares (properly endorsed orassigned for transfer, if the Depositary shall so require), such Depositary Shares shall be converted into or redeemed for shares of Common Stock at a rate equal to              ofthe number of shares of Common Stock delivered, and the holders thereof shall be entitled to              of the cash, if any, payable, in respect of the shares of Stock pursuant tothe Certificate of Determination. The foregoing is subject further to the terms and conditions of the Certificate of Determination. If fewer than all of the Depositary Shares evidenced by this Receipt are called for redemption, the Depositary willdeliver to the holder of this Receipt upon its surrender to the Depositary, together with shares of Common Stock and all accrued and unpaid dividends to and including the date fixed for redemption payable in respect of the Depositary Shares calledfor redemption, a new Receipt evidencing the Depositary Shares evidenced by such prior Receipt and not called for redemption.

4. SURRENDEROF RECEIPTS AND WITHDRAWAL OF STOCK. Upon surrender of this Receipt to the Depositary at the Corporate Office, the New York Office or at such other offices as the Depositary may designate, and subject to the provisions of the Deposit Agreement, theholder hereof is entitled to withdraw, and to obtain delivery, without unreasonable delay, to or upon the order of such holder, any or all of the Stock (but only in whole shares of Stock) and all money and other property, if any, at the timerepresented by the Depositary Shares evidenced by this Receipt; provided, however, that, in the event this Receipt shall evidence a number of Depositary Shares in excess of the number of Depositary Shares representing the whole number of shares ofStock to be withdrawn, the Depositary shall, in

 

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addition to such whole number of shares of Stock and such money and other property, if any, to be withdrawn, deliver, toor upon the order of such holder, a new Receipt or Receipts evidencing such excess number of whole Depositary Shares.

5. TRANSFERS,SPLIT-UPS, COMBINATIONS. Subject to Paragraphs 6, 7 and 8 below, this Receipt is transferable on the books of the Depositary upon surrender of this Receipt to the Depositary at the Corporate Office or the New York Office, or at such other offices asthe Depositary may designate, properly endorsed or accompanied by a properly executed instrument of transfer, and upon such transfer the Depositary shall sign and deliver a Receipt or Receipts to or upon the order of the person entitled thereto, allas provided in and subject to the Deposit Agreement. This Receipt may be split into other Receipts or combined with other Receipts into one Receipt evidencing the same aggregate number of Depositary Shares evidenced by the Receipt or Receiptssurrendered; provided, however, that the Depositary shall not issue any Receipt evidencing a fractional Depositary Share.

6. CONDITIONS TOSIGNING AND DELIVERY, TRANSFER, ETC., OF RECEIPTS. Prior to the execution and delivery, registration of transfer, split-up, combination, surrender or exchange of this Receipt, the delivery of any distribution hereon or the withdrawal or deposit ofStock, the Depositary, any of the Depositary’s Agents or the Company may require any or all of the following: (a) payment to it of a sum sufficient for the payment (or, in the event that the Depositary or the Company shall have made suchpayment, the reimbursement to it) of any tax or other governmental charge with respect thereto (including any such tax or charge with respect to Stock being deposited or withdrawn or with respect to Common Stock or other securities or property ofthe Company being issued upon conversion or redemption); (b) production of proof satisfactory to it as to the identity and genuineness of any signature; and (c) compliance with such reasonable regulations, if any, as the Depositary or theCompany may establish not inconsistent with the Deposit Agreement. Any person presenting Stock for deposit, or any holder of this Receipt, may be required to file such proof of information, to execute such certificates and to make suchrepresentations 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 this Receipt, the registration of transfer, redemption, conversion orexchange of this Receipt, the withdrawal of the Stock represented by the Depositary Shares evidenced by this Receipt or the distribution of any dividend or other distribution until such proof or other information is filed, such certificates areexecuted or such representations and warranties are made.

7. SUSPENSION OF DELIVERY, TRANSFER, ETC. The deposit of Stock may be refused andthe delivery of this Receipt against Stock or the registration of transfer, split-up, combination, surrender or exchange of this Receipt and the withdrawal of deposited Stock may be suspended (a) during any period when the register ofshareholders of the Company is closed, (b) 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 anygovernment or governmental body or commission, or under any provision of the Deposit Agreement, or (c) with the approval of the Company, for any other reason. The Depositary shall not be required (x) to issue, transfer or exchange anyReceipts for a period beginning at the opening of business 15 days next preceding any selection of Depositary

 

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Shares and Stock to be redeemed and ending at the close of business on the day of the mailing of notice of redemption ofDepositary Shares or (y) to transfer or exchange for another Receipt any Receipt evidencing Depositary Shares called or being called for redemption, in whole or in part, or subject to conversion except as provided in the last sentence ofParagraph 3.

8. PAYMENT OF TAXES OR OTHER GOVERNMENTAL CHARGES. If any tax or other governmental charge shall become payable by or onbehalf of the Depositary with respect to (a) this Receipt, (b) the Depositary Shares evidenced by this Receipt, (c) the Stock (or fractional interest therein) or other property represented by such Depositary Shares, or (d) anytransaction referred to in Section 4.06 of the Deposit Agreement, such tax (including transfer, issuance or acquisition taxes, if any) or governmental charge shall be payable by the holder of this Receipt, who shall pay the amount thereof tothe Depositary. Until such payment is made, registration of transfer of this Receipt or any split-up or combination hereof or any withdrawal of the Stock or money or other property, if any, represented by the Depositary Shares evidenced by thisReceipt may be refused, any dividend or other distribution may be withheld and any part or all of the Stock or other property (including Common Stock received in connection with a conversion or redemption of Stock) represented by the DepositaryShares evidenced by this Receipt may be sold for the account of the holder hereof (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 maybe applied to any payment of such tax or other governmental charge, the holder of this Receipt remaining liable for any deficiency.

9.AMENDMENT. The form of the Receipts and any provision of the Deposit Agreement may at any time and from time to time be amended by agreement between the Company and the Depositary in any respect that they may deem necessary or desirable. Anyamendment that shall impose or increase any fees, taxes or charges payable by holders of Receipts (other than taxes and other governmental charges, fees and other expenses payable by holders as provided herein or in the Deposit Agreement), or thatshall otherwise prejudice any substantial existing right of holders of Receipts, shall not become effective as to outstanding Receipts until the expiration of 30 days after such notice of such amendment shall have been given to the record holders ofoutstanding Receipts. The holder of this Receipt at the time any such amendment becomes effective shall be deemed, by continuing to hold this Receipt, to consent and agree to such amendment and to be bound by the Deposit Agreement as amendedthereby. In no event shall any amendment impair the right, subject to the provisions of Paragraphs 3, 4, 6, 7 and 8 hereof and of Sections 2.04, 2.07 and 2.08 and Article III of the Deposit Agreement, of the owner of the Depositary Shares evidencedby this Receipt to surrender this Receipt with instructions to the Depositary to deliver to the holder the Stock and all money and other property, if any, represented thereby, except in order to comply with mandatory provisions of applicablelaw.

10. FEES, CHARGES AND EXPENSES. The Company will pay all fees, charges and expenses of the Depositary, except for taxes (includingtransfer taxes, if any) and other governmental charges and such charges as are expressly provided in the Deposit Agreement to be at the expense of persons depositing Stock, holders of Receipts or other persons.

 

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11. TITLE TO RECEIPTS. It is a condition of this Receipt, and every successive holder hereof by acceptingor holding the same consents and agrees, that title to this Receipt (and to the Depositary Shares evidenced hereby), when properly endorsed or accompanied by a properly executed instrument of transfer, is transferable by delivery with the sameeffect as in the case of a negotiable instrument; provided, however, that the Depositary may, notwithstanding any notice to the contrary, treat the record holder hereof at such time as the absolute owner hereof for the purpose of determining theperson entitled to distribution of dividends or other distributions or to any notice provided for in the Deposit Agreement and for all other purposes.

12. DIVIDENDS AND DISTRIBUTIONS. Whenever the Depositary shall receive any cash dividend or other cash distribution on the Stock, the Depositary shall, subject to the provisions of the Deposit Agreement, distribute torecord holders of Receipts such amounts of such sums 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 theDepositary 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 ofDepositary 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 owner of Depositary Shares a fractionof 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 ofReceipts then outstanding.

13. SUBSCRIPTION RIGHTS, PREFERENCES OR PRIVILEGES. If the Company shall at any time offer or cause to beoffered to the persons in whose name Stock is registered on the books of the Company any rights, preferences or privileges to subscribe for or to purchase any securities or any rights, preferences or privileges of any other nature, such rights,preferences or privileges shall in each such instance, subject to the provisions of the Deposit Agreement, be made available by the Depositary to the record holders of Receipts in such manner as the Company shall instruct.

14. NOTICE OF DIVIDENDS, FIXING OF RECORD DATE. Whenever (a) any cash dividend or other cash distribution shall become payable, or any distributionother than cash shall be made, or any rights, preferences or privileges shall at any time be offered, with respect to the Stock, or (b) the Depositary shall receive notice of any meeting at which holders of Stock are entitled to vote or ofwhich holders of Stock are entitled to notice or of the mandatory conversion of, or any election on the part of the Company to call for redemption of, any shares of Stock, the Depositary shall in each such instance fix a record date (which shall bethe same date as the record date fixed by the Company with respect to the Stock) for the determination of the holders of Receipts (i) who shall be entitled to receive such dividend, distribution, rights, preferences or privileges or the netproceeds of the sale thereof, or (ii) who shall be entitled to give instructions for the exercise of voting rights at any such meeting or of such meeting or to receive notice of such conversion or redemption.

 

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15. VOTING RIGHTS. Upon receipt of notice of any meeting at which the holders of Stock are entitled tovote, the Depositary shall, as soon as practicable thereafter, mail to the record holders of Receipts a notice, which shall contain (a) such information as is contained in such notice of meeting, (b) a statement that the holders ofReceipts at the close of business on a specified record date determined as provided in Paragraph 14 will be entitled, subject to any applicable provision of law, the Certificate of Incorporation or the Certificate of Determination, to instruct theDepositary as to the exercise of the voting rights pertaining to the Stock represented by their respective Depositary Shares, and (c) a brief statement as to the manner in which such instructions may be given. Upon the written request of aholder of this Receipt on such record date the Depositary shall endeavor insofar as practicable to vote or cause to be voted the Stock represented by the Depositary Shares evidenced by this Receipt in accordance with the instructions set forth insuch request. The Company hereby agrees to take all reasonable action that may be deemed necessary by the Depositary in order to enable the Depositary to vote such Stock or cause such Stock to be voted. In the absence of specific instructions fromthe holder of this Receipt, the Depositary will abstain from voting to the extent of the Stock represented by the Depositary Shares evidenced by this Receipt.

16. REPORTS, INSPECTION OF TRANSFER BOOKS. The Depositary shall make available for inspection by holders of Receipts at the Corporate Office, the New York Office and at such other places as it may from time to timedeem advisable during normal business hours any reports and communications received from the Company that are received by the Depositary as the holder of Stock. The Depositary shall keep books at the Corporate Office for the registration andtransfer of Receipts, which books at all reasonable times will be open for inspection by the record holders of Receipts; provided that any such holder requesting to exercise such right shall certify to the Depositary that such inspection shall befor a proper purpose reasonably related to such person’s interest as an owner of Depositary Shares.

17. LIABILITY OF THE DEPOSITARY,THE DEPOSITARY’S AGENTS, THE REGISTRAR AND THE COMPANY. Neither the Depositary nor any Depositary’s Agent nor the Registrar nor the Company shall incur any liability to any holder of this Receipt, if by reason of any provision of anypresent or future law or regulation thereunder of any governmental authority or, in the case of the Depositary, the Registrar or any Depositary’s Agent, by reason of any provision present or future, of the Certificate of Incorporation or theCertificate of Determination or, in the case of the Company, the Depositary, the Registrar or any Depositary’s Agent, by reason of any act of God or war or other circumstances beyond the control of the relevant party, the Depositary, anyDepositary’s Agent, the Registrar or the Company shall be prevented or forbidden from doing or performing any act or thing that the terms of the Deposit Agreement provide shall be done or performed; nor shall the Depositary, anyDepositary’s Agent, the Registrar or the Company incur any liability to any holder of this Receipt (a) by reason of any nonperformance or delay, caused as aforesaid, in the performance of any act or thing that the terms of the DepositAgreement provide shall or may be done or performed, or (b) by reason of any exercise of, or failure to exercise, any discretion provided for in the Deposit Agreement except, in the case of the Depositary, any Depositary’s Agent or theRegistrar, if such exercise or failure to exercise discretion is caused by its negligence or bad faith.

 

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18. OBLIGATIONS OF THE DEPOSITARY, THE DEPOSITARY’S AGENTS, THE REGISTRAR AND THE COMPANY. TheCompany assumes no obligation and shall be subject to no liability under the Deposit Agreement or this Receipt to the holder hereof or other persons, except to perform in good faith such obligations as are specifically set forth and undertaken by itto perform in the Deposit Agreement. Each of the Depositary, the Depositary’s Agents and the Registrar assumes no obligation and shall be subject to no liability under the Deposit Agreement or this Receipt to the holder hereof or other persons,except to perform such obligations as are specifically set forth and undertaken by it to perform in the Deposit Agreement without negligence or bad faith.

Neither the Depositary nor any Depositary’s Agent nor the Registrar nor the Company shall be under any obligation to appear in, prosecute or defend any action, suit or other proceeding with respect to Stock,Depositary Shares or Receipts or Common Stock that in its opinion may involve it in expense or liability, unless indemnity satisfactory to it against all expense and liability be furnished as often as may be required.

Neither the Depositary nor any Depositary’s Agent nor the Registrar nor the Company will be liable for any action or failure to act by it inreliance upon the advice of or information from legal counsel, accountants, any person presenting Stock for deposit, any holder of this Receipt or any other person believed by it in good faith to be competent to give such advice orinformation.

19. TERMINATION OF DEPOSIT AGREEMENT. Whenever so directed by the Company, the Depositary will terminate the Deposit Agreementby mailing notice of such termination to the record holders of all Receipts then outstanding at least 30 days prior to the date fixed in such notice for such termination. The Depositary may likewise terminate the Deposit Agreement if at any time 90days shall have expired after the Depositary shall have delivered to the Company a written notice of its election to resign and a successor depositary shall not have been appointed and accepted its appointment as provided in Section 5.04 of theDeposit Agreement. In either case, on a date not less than 90 days after such notice, the Depositary shall deliver or make available for delivery to holders of Receipts, upon surrender of the such Receipts evidencing Depositary Shares, such numberof whole or fractional shares of the Stock as are represented by the Depositary Shares.

The Deposit Agreement shall automatically terminateafter all outstanding Depositary Shares have been redeemed or there has been a final distribution in respect of the Stock in connection with any liquidation, dissolution or winding up of the Company and such distribution has been distributed to theholders of the Receipts.

Upon the termination of the Deposit Agreement, the Company shall be discharged from all obligations thereunderexcept for its obligations to the Depositary, any Depositary’s Agent and any Registrar under Sections 5.07 and 5.08 of the Deposit Agreement.

If any Receipts remain outstanding after the date of termination of the Deposit Agreement, the Depositary thereafter shall discontinue all functions and be discharged from all obligations as provided in the Deposit Agreement, except asspecifically provided therein.

 

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20. GOVERNING LAW. THE DEPOSIT AGREEMENT AND THIS RECEIPT AND ALL RIGHTS THEREUNDER AND HEREUNDER ANDPROVISIONS THEREOF AND HEREOF SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAW OF THE STATE OF NEW YORK, INCLUDING, WITHOUT LIMITATION, SECTIONS 5-1401 OF THE NEW YORK GENERAL OBLIGATIONS LAW.

 

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FORM OF ASSIGNMENT

For value received                                 hereby sell(s), assign(s) and transfer(s) unto                                                                                (Please insert social security or other taxpayer identification number of assignee.) the within Receipt and all rights and interests represented by the Depositary Shares evidenced thereby, and hereby irrevocably constitutes and appoints                                 attorney to transfer the same on the books of thewithin-named Depositary, with full power of substitution in the premises.

Dated:                     

 

Signature(s)  

 

 

 

 

 

  Signature Guarantee*

NOTICE: The above signatures of the holder(s) hereof must correspond with the name as written uponthe face of this Security in every particular without alteration or enlargement or any change whatever.

 


* (Signature must be guaranteed by an “eligible guarantor institution,” that is, a bank, stockbroker, savings and loan association or credit union meeting the requirementsof the Conversion Agent, which requirements include membership or participation in the Securities Transfer Agents Medallion Program (“STAMP”) or such other “signature guarantee program” as may be determined by the ConversionAgent in addition to, or in substitution for, STAMP, all in accordance with the Securities Exchange Act of 1934, as amended.)

 

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