1
EXHIBIT 4.5
WORLDCOM, INC.
AND
THE BANK OF NEW YORK
AS DEPOSITARY
AND
HOLDERS OF DEPOSITARY RECEIPTS
DEPOSIT AGREEMENT
DATED AS OF DECEMBER ____, 1996
2
This DEPOSIT AGREEMENT is dated as of December ____, 1996 and
is among WORLDCOM, INC., a Georgia corporation (the "Company"), THE BANK OF NEW
YORK, [A NEW YORK BANKING ASSOCIATION], as depositary (the "Depositary"), and
all holders from time to time of Depositary Receipts issued hereunder.
WITNESSETH
WHEREAS, the Company desires to provide for the deposit of
shares of Series A 8% Cumulative Convertible Preferred Stock, par value $0.01
per share (the "Preferred Stock"), of the Company with the Depositary for the
purposes set forth in this Deposit Agreement and for the issuance of Depositary
Receipts evidencing Depositary Shares in respect of the Preferred Stock so
deposited, all on the terms and conditions set forth in this Agreement; and
WHEREAS, the Depositary Receipts are to be substantially in
the form of Exhibit A annexed hereto, with appropriate insertions,
modifications and omissions, as hereinafter provided in this Deposit Agreement;
NOW THEREFORE, in consideration of the mutual premises
contained herein, it is agreed by and among the parties hereto as follows:
ARTICLE I
DEFINITIONS
SECTION 1.1. DEFINITIONS. The following definitions shall
for all purposes, unless otherwise clearly indicated, apply to the respective
terms used in this Deposit Agreement and the Depositary Receipts:
"Articles of Incorporation" means the Amended and Restated
Articles of Incorporation, as amended from time to time, of the Company.
"Authorizing Resolution" means the resolution adopted by the
Company's Board of Directors establishing and setting forth the rights,
preferences and privileges of the Preferred Stock.
"Common Stock" means the Common Stock, $0.01 par value, of the
Company. The term "Common Stock" shall also include each other security or
item of property into which an interest in a 1/100 of a share of Preferred
Stock may become convertible.
"Company" means WorldCom, Inc., a Georgia corporation, having
its principal office at ▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, and
its successors.
"Corporate Trust Office" means the principal office of the
Depositary in New York, New York at which at any particular time its corporate
trust business shall be administered.
1
3
"Deposit Agreement" means this Agreement, as the same may be
amended or supplemented from time to time.
"Depositary" means The Bank of New York, [A NEW YORK BANKING
ASSOCIATION], and any successor as depositary hereunder.
"Depositary Shares" means the Preferred Stock evidenced by the
Depositary Receipts issued hereunder and constituted by the interests in the
Preferred Stock deposited with the Depositary hereunder represented by such
Receipts. Each Depositary Share shall, as provided herein, represent an
interest in one one-hundredth (1/100) (as such fraction may from time to time
be adjusted in the event of certain amendments to the Articles of
Incorporation) of one share of Preferred Stock.
"Depositary's Agent" means an agent appointed by the
Depositary as provided, and for the purposes specified, in Section 7.5.
"Mandatory Conversion Date" means May 31, 1999.
"Nasdaq National Market" means the National Association of
Securities Dealers, Inc. Nasdaq National Market.
"Preferred Stock" means shares of the Company's Series A 8%
Cumulative Convertible Preferred Stock, par value $0.01 per share.
"Receipt" means one or more of the Depositary Receipts issued
hereunder.
"Record Holder" as applied to a Receipt means the person in
whose name a Receipt is registered on the books of the Depositary maintained
for such purpose.
"Registrar" means any bank or trust company which shall be
appointed to register Receipts as herein provided.
"Securities Act of 1933" means the Securities Act of 1933 (15
U.S. Code, Secs. 77a-77aa), as from time to time amended.
"Shareholders" means holders of the Preferred Stock.
2
4
ARTICLE II
FORM OF RECEIPTS; DEPOSIT OF PREFERRED STOCK; EXECUTION
AND DELIVERY OF RECEIPTS; REDEMPTION AND CONVERSION OF PREFERRED
STOCK; TRANSFER, SURRENDER AND REDEMPTION OF RECEIPTS
SECTION 2.1. FORM AND TRANSFERABILITY 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 representative of the Depositary,
provided that such signature may be a facsimile if a Registrar for the Receipts
(other than the Depositary) shall have been appointed and such Receipts are
countersigned by manual signature of a duly authorized representative of the
Registrar. No Receipt shall be entitled to any benefits under this Deposit
Agreement or be valid or obligatory for any purpose, unless it shall have been
executed on behalf of the Company by the manual or facsimile signature of a
duly authorized officer and executed manually by, or, if a Registrar for the
Receipts (other than the Depositary) shall have been appointed, by facsimile
signature of, a duly authorized representative of the Depositary and, if
executed by facsimile signature of the Depositary, shall have been
countersigned manually by a duly authorized representative of such Registrar.
If a facsimile signature is used, Receipts executed as provided in this Section
2.1 may be issued notwithstanding that any authorized officer of the Depositary
signing such Receipts shall have ceased to hold office at the time of issuance
of such Receipts. The Depositary shall record on its books each Receipt so
signed and delivered as hereinafter provided.
Receipts shall be in denominations of any number of whole
Depositary Shares, unless otherwise directed by the Company.
Receipts may be endorsed with or have incorporated in the text
thereof such legends or recitals or changes not inconsistent with the
provisions of this Deposit Agreement as may be required by the Depositary at
the direction of the Company or required to comply with any applicable law or
any regulation thereunder or with the rules and regulations of any securities
exchange or Nasdaq National Market upon which the Preferred Stock, the
Depositary Shares or the Receipts may be listed or to conform with any usage
with respect thereto, or to indicate any special limitations or restrictions to
which any particular Receipts are subject by reason of the date of issuance or
transfer of the Preferred Stock or the underlying Common Stock or otherwise.
Title to Depositary Shares evidenced by a Receipt which is
properly endorsed or accompanied by a properly executed instrument of transfer,
shall be transferable by delivery with the same effect as in the case of a
negotiable instrument; provided, however, that until a Receipt shall be
transferred on the books of the Depositary as provided in Section 2.6, the
Depositary may, notwithstanding any notice to the contrary, treat the Record
Holder thereof at such time as the absolute owner thereof for the purpose of
determining the person entitled to distribution of dividends or other
distributions with respect to the Preferred Stock, to exercise voting or
conversion rights with respect to the Preferred Stock or to any notice provided
for in this Deposit Agreement
3
5
and for all other purposes. Until the definitive Receipts are ready for
delivery, temporary Receipts shall be utilized. Temporary Receipts shall be in
substantially the form of definitive Receipts but may have variations that the
Company considers appropriate for temporary Receipts. Without unreasonable
delay, the Company shall prepare and the Depositary shall execute definitive
Receipts in exchange for temporary Receipts. Holders of temporary Receipts
shall have the same rights as holders of definitive Receipts.
SECTION 2.2. DEPOSIT OF PREFERRED STOCK; EXECUTION AND
DELIVERY OF RECEIPTS IN RESPECT THEREOF. Subject to the terms and conditions
of this Deposit Agreement, any holder of Preferred Stock may deposit such
Preferred Stock under this Deposit Agreement by delivery to the Depositary at
its Corporate Trust Office (or at such other place as may be agreeable to the
Depositary) of a certificate or certificates for the Preferred Stock to be
deposited, properly endorsed or accompanied, if required by the Depositary, by
a duly executed instrument of transfer or endorsement, in form satisfactory to
the Depositary, together with all such certifications as may be required by the
Depositary in accordance with the provisions of this Deposit Agreement, and
together with a written order directing the Depositary to execute and deliver
to, or upon the written order of, the person or persons stated in such order a
Receipt for the number of Depositary Shares representing such deposited
Preferred Stock.
The Depositary shall require, at the direction of the Company,
that Preferred Stock presented for deposit at any time, whether or not the
Company's register of Shareholders is closed, shall also be accompanied by an
agreement or assignment, or other instrument satisfactory to the Depositary,
which will provide for the prompt transfer to the Depositary or its nominee of
any dividend or right to subscribe for additional Preferred Stock or to receive
other property which any person in whose name the Preferred Stock is or has
been recorded may thereafter receive upon or in respect of such deposited
Preferred Stock, or in lieu thereof such agreement of indemnity or other
agreement as shall be satisfactory to the Depositary.
Subject to the terms and conditions of this Deposit Agreement,
Preferred Stock may also be deposited hereunder in connection with the delivery
of Receipts to represent distributions under Section 4.2 and upon exercise of
the rights to subscribe referred to in Section 4.3.
Upon each delivery to the Depositary of a certificate or
certificates for Preferred Stock to be deposited hereunder, together with the
other documents above specified, the Depositary shall, as soon as transfer and
recordation can be accomplished, present such certificate or certificates to
the Registrar and transfer agent of the Preferred Stock for transfer and
recordation in the name of the Depositary or its nominee of the Preferred Stock
being deposited. Deposited Preferred Stock shall be held by the Depositary, at
the Depositary's Corporate Trust Office, or at such other place or places as
the Depositary shall determine.
4
6
Upon receipt by the Depositary of a certificate or
certificates for Preferred Stock deposited in accordance with the provisions of
this Section, together with the other documents required as above specified,
the Depositary, subject to the terms and conditions of this Deposit Agreement,
shall execute and deliver to or upon the order of the person or persons named
in the written order delivered to the Depositary referred to in the first
paragraph of this Section, a Receipt for the number of Depositary Shares
representing the Preferred 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 at its Corporate Trust Office and at such
other offices, if any, as it may designate. Delivery at other offices shall be
at the risk and expense of the person requesting such delivery. However, in
each case, such delivery will be made only upon payment to the Depositary of
the fee of the Depositary for the execution and delivery of such Receipt by the
Company (unless payable by the holder), as provided in Section 5.8, and of all
taxes and governmental charges and fees payable in connection with such deposit
and the transfer of the deposited Preferred Stock.
SECTION 2.3. OPTIONAL REDEMPTION OF PREFERRED STOCK.
Whenever the Company shall elect to redeem shares of Preferred Stock pursuant
to the terms of the Preferred Stock, it shall (unless otherwise agreed in
writing with the Depositary) give the Depositary notice of such proposed
redemption and of the number of shares held by the Depositary to be so redeemed
not less than 15 nor more than 60 days of the date of such proposed redemption
of Preferred Stock. On the date of such redemption, provided that the Company
shall then have deposited with the Depositary the number of shares of Common
Stock necessary under the terms of the Preferred Stock to effect such
redemption, the Depositary shall redeem the number of Depositary Shares
representing such Preferred Stock. The Depositary shall mail notice of such
redemption of Preferred Stock and the proposed simultaneous redemption of the
number of Depositary Shares representing the Preferred Stock to be redeemed,
first class postage prepaid, not less than 15 days and not more than 60 days
prior to the date fixed for redemption of such Preferred Stock and Depositary
Shares (the "Redemption Date"), to the holders of record on the record date for
such redemption (determined pursuant to Section 4.4) of the Receipts evidencing
the Depositary Shares to be so redeemed, at the addresses of such holders as
the same appear on the records of the Depositary; but neither failure to mail
any such notice to one or more such holders nor any defect in any notice shall
affect the validity of the proceeding for redemption of any shares of Preferred
Stock or Depositary Shares to be redeemed. Each such notice shall state the
record date for the purposes of such redemption; the Redemption Date; the Call
Price and Current Market Price (as such terms are defined in the Authorizing
Resolution), the number of Depositary Shares to be redeemed and, if less than
all the Depositary Shares held by any such holder are to be redeemed, the
number of such Depositary Shares held by such holder to be so redeemed; the
number of shares of Common Stock to be received by such holder; the place or
places where Receipts evidencing Depositary Shares are to be surrendered for
shares of Common Stock; that dividends in respect of the Preferred Stock
represented by the Depositary Shares to be redeemed will cease to accrue at the
close of business on such Redemption Date (except as otherwise provided in the
Articles of Incorporation and the Authorizing Resolution); and that the
conversion rights with respect to such shares of Preferred Stock will cease as
of the Redemption Date (except as described below). Any notice that is mailed
in the manner herein provided shall be conclusively presumed to have been duly
given whether or not the holder receives the notice. In case less than all the
outstanding
5
7
Depositary Shares are to be redeemed, the Depositary Shares to be so redeemed
shall be selected by lot or pro rata (as nearly as may be) or in any other
equitable manner determined by the Depositary to be consistent with the method
determined by the Board of Directors with respect to the Preferred Stock.
Notice having been mailed by the Depositary as aforesaid, from
and after the Redemption Date (unless the Company shall have failed to redeem
the shares of Preferred Stock to be redeemed by it as set forth in the
Company's notice provided for in the preceding paragraph): (i) all dividends in
respect of the shares of Preferred Stock so called for redemption shall cease
to accrue; (ii) the Depositary Shares being so redeemed shall be deemed no
longer to be outstanding; (iii) all rights of the holders of Receipts
evidencing such Depositary Shares (except the right to receive the shares of
Common Stock and cash in lieu of fractional shares thereof as provided in
Section 4.2) shall, to the extent of such Depositary Shares, cease and
terminate; and (iv) upon surrender in accordance with said notice of the
Receipts evidencing any such Depositary Shares (properly endorsed or assigned
for transfer, if the Depositary shall so require), such Depositary Shares shall
be redeemed by the Depositary for the consideration therefor specified in said
notice, plus all money and other property, if any, represented by such
Depositary Shares, including all amounts, if any, payable by the Company in
respect of dividends which on the Redemption Date have accrued on the shares of
Preferred Stock to be so redeemed and have not theretofore been paid. If less
than all of the Depositary Shares evidenced by this Receipt are called for
redemption, the Depositary will deliver to the holder of this Receipt upon its
surrender to the Depositary, together with the redemption payment, a new
Receipt evidencing the Depositary Shares evidenced by such prior Receipt and
not called for redemption. The foregoing shall further be subject to the terms
and conditions of the Articles of Incorporation and the Authorizing Resolution
designating the rights, preferences and privileges of the Preferred Stock.
If a notice of redemption of any shares of Preferred Stock represented
by Depositary Shares has been given pursuant to this Section 2.3, the right to
convert the shares of Preferred Stock represented by such Depositary Shares
will terminate immediately prior to the close of business on the relevant
Redemption Date.
SECTION 2.4. CONVERSION AT THE OPTION OF HOLDERS. Subject to the
terms and conditions of this Deposit Agreement, the Articles of Incorporation
and the Authorizing Resolution, Depositary Shares may be surrendered at any
time prior to the Mandatory Conversion Date, unless previously redeemed, by the
holders thereof with written instructions to the Depositary to convert any
specified number of whole or fractional shares of Preferred Stock (or
1/100-share fractions thereof) represented by such Depositary Shares into whole
shares of Common Stock (and cash in lieu of fractional shares of Common Stock
as provided in Section 4.2) at the conversion rate in respect thereof
determined in accordance with the Authorizing Resolution, as such conversion
rate may be adjusted from time to time as provided in the Authorizing
Resolution. A holder of Depositary Shares may surrender such Depositary Shares
at the Depositary's Corporate Trust Office or at such office as the Depositary
may from time to time designate for such purpose, together with a notice of
conversion thereof duly completed and executed, thereby instructing the
Depositary to cause the conversion of the number of shares of
6
8
Preferred Stock (or 1/100-share fractions thereof) specified in such notice of
conversion into shares of Common Stock.
Upon receipt by the Depositary of a Receipt, together with
notice of conversion instructing the Depositary to convert a specified number
of shares of Preferred Stock (or 1/100-shares thereof) duly completed and
executed, the Depositary shall (a) give written notice to the transfer agent
for the Preferred Stock of the number of shares of Preferred Stock (or
1/100-shares thereof) surrendered for conversion and the number of shares of
Common Stock to be delivered upon conversion of such shares of Preferred Stock
(or 1/100-shares thereof) and the amount of immediately available funds, if
any, to be delivered to the holder of such Depositary Shares in payment of any
fractional shares of Common Stock otherwise issuable, in accordance with
Section 4.2, (b) cancel such Receipt or, if a Registrar for Receipts (other
than the Depositary) shall have been appointed, cause such Registrar to cancel
such Receipt and (c) deliver to the transfer agent for the Preferred Stock or
any other authorized agent of the Company certificates for the Preferred Stock
represented by such Depositary Shares, which certificates shall thereupon be
canceled by such transfer agent or other authorized agent. As promptly as
practicable after such transfer agent or other authorized agent of the Company
has received such certificates from the Depositary, (a) the Company shall cause
to be furnished to the Depositary a certificate or certificates evidencing such
number of shares of Common Stock, and such amount of immediately available
funds, if any, as specified in a written notice to the Company and (b) subject
to the next succeeding sentence, the Depositary shall deliver at its office
designated for such purpose or such other place as may be requested by any
holder surrendering Depositary Shares as provided in this Section 2.4 (i) a
certificate or certificates evidencing the number of shares of Common Stock
into which the Preferred Stock represented by the Depositary Shares has been
converted, (ii) a Receipt evidencing the number of Depositary Shares, if any,
evidenced by such Receipt in excess of the number of Depositary Shares
representing the Preferred Stock which has been so converted and (iii) cash in
lieu of receiving fractional shares of Common Stock in accordance with Section
4.2.
Upon any optional conversion of the Preferred Stock
represented by the Depositary Shares, no allowance, adjustment or payment shall
be made with respect to dividends upon such converted Preferred Stock or shares
of Common Stock issued upon the conversion thereof. Holders of Depositary
Shares at the close of business on a record date for any payment of dividends
on the Preferred Stock shall be entitled the dividend payable on such shares on
the corresponding dividend payment date notwithstanding the conversion of such
shares following such record date and prior to such dividend payment date.
Delivery of Common Stock and other property may be made by the
delivery of certificates and other proper documents of title, which, if
required by law, shall be properly endorsed or accompanied by proper
instruments of transfer. If such delivery is to be made otherwise than at the
Depositary's Corporate Trust Office, such delivery shall be made, as
hereinafter provided, without unreasonable delay, at the risk of any holder
surrendering Depositary Shares, and for the account of such holder, to such
place designated in writing by such holder.
7
9
SECTION 2.5. MANDATORY CONVERSION. Unless previously
redeemed by the Company or converted at the option of the holder into Common
Stock, on the Mandatory Conversion Date, each 1/100 share of Preferred Stock
represented by a Depositary Share will automatically convert into (i) shares of
Common Stock at the conversion rate prescribed in the Authorizing Resolution,
as such conversion rate may be adjusted from time to time as provided in the
Authorizing Resolution, (ii) cash in lieu of fractional shares in accordance
with Section 4.2 and (iii) the right, upon surrender thereof, to receive an
amount equal to all accrued and unpaid dividends thereon to the Mandatory
Conversion Date, whether or not declared (payable in cash or in shares of
Common Stock on the same basis as that used to determine dividends), as
prescribed in the Authorizing Resolution. Notwithstanding the foregoing, if
the Mandatory Conversion Date occurs after a record date for a quarterly
dividend and before the corresponding dividend payment date, such dividend
shall be paid, out of funds legally available therefor, on the dividend payment
date rather than on the Mandatory Conversion Date. On and after the Mandatory
Conversion Date, each Receipt shall represent the right to receive the
consideration payable upon such mandatory conversion of the Preferred Stock
represented thereby, without interest, but including any dividends on the
Common Stock issued in such conversion and for which the record date occurred
after the Mandatory Conversion Date (provided that the Company shall not be
required to pay any dividend prior to its scheduled dividend payment date). On
the Mandatory Conversion Date, the Depositary shall surrender all shares of
Preferred Stock then held by it and shall promptly deliver to each holder of
Depositary Shares, upon the surrender by such holder of a Receipt, the Common
Stock and any other consideration received by the Depositary in respect of the
Preferred Stock formerly represented by such Receipt.
SECTION 2.6. TRANSFER OF RECEIPTS. Subject to the terms
and conditions of this Deposit Agreement, the Depositary shall make transfers
on its books from time to time of Receipts upon any surrender thereof at the
Depositary's Corporate Trust Office by the holder in person or by a duly
authorized attorney, properly endorsed or accompanied by a properly executed
instrument of transfer, and duly stamped as may be required by law. Thereupon
the Depositary shall execute a new Receipt or Receipts and deliver the same to
or upon the order of the person entitled thereto evidencing the same aggregate
number of Depositary Shares as those evidenced by the Receipt or Receipts
surrendered.
SECTION 2.7. COMBINATIONS AND SPLIT-UPS OF RECEIPTS. Upon
surrender of a Receipt or Receipts at the Depositary's Corporate Trust Office
or at such other offices as it may designate for the purpose of effecting a
split-up or combination of such Receipt or Receipts, and subject to the terms
and conditions of this Deposit Agreement, the Depositary shall execute and
deliver a new Receipt or Receipts in the authorized denominations requested,
evidencing the same aggregate number of Depositary Shares evidenced by the
Receipt or Receipts surrendered.
SECTION 2.8 SURRENDER OF RECEIPTS AND WITHDRAWAL OF
PREFERRED STOCK. Any holder of a Receipt or Receipts representing any number
of whole shares of Preferred Stock may withdraw the Preferred Stock and all
money and other property, if any, represented thereby by surrendering such
Receipt or Receipts, at the Depositary's Corporate Trust Office or at such
other
8
10
offices as the Depositary may designate for such withdrawals. Thereafter,
without unreasonable delay, the Depositary shall deliver to such holder, or to
the person or persons designated by such holder as hereinafter provided, the
number of whole shares of Preferred Stock and all money and other property, if
any, represented by the Receipt or Receipts so surrendered for withdrawal. If
the Receipt delivered by the holder to the Depositary in connection with such
withdrawal shall evidence a number of Depositary Shares in excess of the number
of Depositary Shares representing the number of whole shares of Preferred Stock
to be so withdrawn, the Depositary shall at the same time, in addition to such
number of whole shares of Preferred Stock and such money and other property, if
any, to be so withdrawn, deliver to such holder, or upon his order, a new
Receipt evidencing such excess number of Depositary Shares. In no event will
fractional shares of Preferred Stock (or cash in lieu thereof) be distributed
by the Depositary. Delivery of the Preferred Stock and 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.
If the Preferred Stock and the money and other property being
withdrawn are to be delivered to a person or persons other than the Record
Holder of the Receipt or Receipts being surrendered for withdrawal of Preferred
Stock, such holder shall execute and deliver to the Depositary a written order
so directing the Depositary, and the Depositary may require that the Receipt or
Receipts surrendered by such holder for withdrawal of such shares of Preferred
Stock be properly endorsed in blank or accompanied by a properly executed
instrument of transfer in blank.
Delivery of the Preferred Stock and the money and other
property, if any, represented by Receipts surrendered for withdrawal shall be
made by the Depositary at its Corporate Trust Office, except that, at the
request, risk and expense of the holder that surrendered such Receipt or
Receipts and for the account of the holder thereof, such delivery may be made
at such other place as may be designated by such holder.
SECTION 2.9. LIMITATIONS ON EXECUTION AND DELIVERY,
TRANSFER, SPLIT-UP, COMBINATION AND SURRENDER OF RECEIPTS. As a condition
precedent to the execution and delivery, transfer, split-up, combination or
surrender of any Receipt, the Depositary, or any of the Depositary's Agents, or
the Company, may require payment to it of a sum sufficient for the payment (or,
in the event that the Depositary or the Company shall have made such payment,
the reimbursement to it) of any tax or other governmental charge with respect
thereto (including any such tax or charge with respect to Preferred Stock being
deposited or withdrawn), may require the production of proof satisfactory to it
as to the identity and genuineness of any signature and may also require
compliance with such regulations, if any, as the Depositary or the Company may
establish consistent with the provisions of this Deposit Agreement.
The deposit of Preferred Stock may be refused, or the delivery
of Receipts against Preferred Stock may be suspended or the transfer of
Receipts may be refused, or the transfer, split-up, combination or surrender of
outstanding Receipts may be suspended (a) during any period when the Company's
register of Shareholders is closed or (b) if any such action is deemed
necessary or
9
11
advisable by the Depositary, any of the Depositary's Agents or the Company at
any time or from time to time because of any requirement of law or of any
government or governmental body or commission, or under any provision of this
Deposit Agreement or, with the approval of the Company, for any other reason.
Without limitation of the foregoing, the Depositary shall not accept for
deposit under this Deposit Agreement any shares of Preferred Stock as to which
it has actual knowledge that such shares are required to be registered under
the Securities Act of 1933, unless a registration statement under such Act is
in effect as to such shares of Preferred Stock; provided, however, the
Depositary shall have no affirmative duty to determine whether such shares of
Preferred Stock are required to be registered under the Securities Act of 1933
or whether the effectiveness of any registration statement has been suspended.
SECTION 2.10. LOST RECEIPTS, ETC. In case any Receipt
shall be mutilated, destroyed, lost or stolen, the Depositary in its discretion
may execute and deliver a Receipt of like form and tenor in exchange and
substitution for such mutilated Receipt, or in lieu of and in substitution for
such destroyed, lost or stolen Receipt, upon (a) the filing by the holder
thereof with the Depositary of evidence satisfactory to the Depositary of such
destruction or loss or theft of such Receipt, of the authenticity thereof and
of his ownership thereof and (b) the furnishing of the Depositary with an
indemnity bond or other reasonable indemnification satisfactory to it.
SECTION 2.11. CANCELLATION AND DESTRUCTION OF SURRENDERED
RECEIPTS. All Receipts surrendered to the Depositary or any Depositary's Agent
shall be canceled by the Depositary. Except as prohibited by applicable law or
regulation, the Depositary shall, unless otherwise directed by the Company,
hold on behalf of the Company such Receipts so canceled.
ARTICLE III
CERTAIN OBLIGATIONS OF HOLDERS OF RECEIPTS AND THE COMPANY
SECTION 3.1. FILING PROOFS, CERTIFICATES AND OTHER
INFORMATION. Any person presenting Preferred Stock for deposit or any holder
of a Receipt may be required from time to time to file such proof of residence,
or other matters or other information, to execute such certificates and to make
such representations and warranties as the Depositary or the Company may
reasonably deem necessary or proper. The Depositary or the Company may
withhold the delivery or delay the transfer, redemption or exchange of any
Receipt or the withdrawal of the Preferred Stock represented by the Depositary
Shares evidenced by any Receipt or the distribution of any dividend or other
distribution or the sale of any rights or of the proceeds thereof until such
proof or other information is filed or such certificates are executed or such
representations and warranties are made.
SECTION 3.2. PAYMENT OF TAXES OR OTHER GOVERNMENTAL
CHARGES. If any tax or other governmental charge shall become payable by or on
behalf of the Depositary with respect to any Receipt evidencing Depositary
Shares or with respect to the Preferred Stock (or any fractional interest
therein) represented by such Depositary Shares, such tax (including transfer
taxes, if any) or governmental charge shall be payable by the holder of such
Receipt, subject to certain exceptions
10
12
set forth in Section 5.8. Transfer of any Receipt or any withdrawal of
Preferred Stock and all money or other property, if any, represented by the
Depositary Shares evidenced by such Receipt may be refused until such payment
is made, and any dividends, interest payments or other distributions may be
withheld, or any part or all of the Preferred Stock or other property
represented by the Depositary Shares evidenced by such Receipt and not
theretofore sold may be sold for the account of the holder thereof (after
attempting by reasonable means to notify such holder prior to such sale), and
such dividends, interest payments or other distributions or the proceeds of any
such sale may be applied to any payment of such tax or other governmental
charge, the holder of such Receipt remaining liable for any deficiency.
SECTION 3.3. REPRESENTATIONS AND WARRANTIES AS TO
PREFERRED STOCK. In the case of the initial deposit of the Preferred Stock,
the Company and, in the case of subsequent deposits thereof, each person so
depositing Preferred Stock under this Deposit Agreement shall be deemed thereby
to represent and warrant that such Preferred Stock and each certificate
therefore are valid and that the person making such deposit is duly authorized
so to do. The Company hereby further represents and warrants that the
Preferred Stock, when issued, will be validly issued, fully paid and
nonassessable. Such representations and warranties shall survive the deposit of
the Preferred Stock and the issuance of Receipts.
ARTICLE IV
THE DEPOSITED SECURITIES; NOTICES
SECTION 4.1. CASH DISTRIBUTIONS. Whenever the Depositary
shall receive any cash dividend or other cash distribution on Preferred Stock,
the Depositary shall, subject to Section 3.2, distribute to Record Holders of
Receipts on the record date fixed pursuant to Section 4.4 such amounts of such
sum as are, as nearly as practicable, in proportion to the respective numbers
of Depositary Shares evidenced by the Receipts held by such holders; provided,
however, that in case the Company or the Depositary shall be required to
withhold and does withhold from any cash dividend or other cash distribution in
respect of the Preferred Stock an amount on account of taxes, the amount made
available for distribution or distributed 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 be added to and be treated
as part of the next sum received by the Depositary for distribution to Record
Holders of Receipts then outstanding.
SECTION 4.2. DISTRIBUTIONS OTHER THAN CASH. Whenever the
Depositary shall receive any distribution upon the Preferred Stock in shares of
Common Stock, the Depositary shall, subject to Section 3.2, distribute to
Record Holders of Receipts on the record date fixed pursuant to Section 4.4,
such shares of Common Stock received by it in proportion to the respective
numbers of Depositary Shares evidenced by the Receipts held by such holders,
except that the Depositary may not distribute fractional shares of Common
Stock. If in the opinion of the Company, after
11
13
consultation with the Depositary, such distribution cannot be made
proportionately among such Record Holders, or if for any reason (including any
requirement that the Company or the Depositary withhold an amount on account of
taxes) the Depositary deems, after consultation with the Company, such
distribution not to be feasible, the Depositary may, at the direction of the
Company, adopt such method as the Company deems equitable and practicable for
the purpose of effecting such distribution, including the sale at public or
private sale of the other securities or property thus received, or any part
thereof, at such place or places and upon such terms as it may deem proper. No
fractional shares of Common Stock will be issued upon conversion or redemption
of Depositary Shares or upon payment of stock dividends or distributions on the
Preferred Stock; and, if such conversion, redemption, dividend or distribution
would otherwise result in a fractional share of Common Stock being issued, the
Depositary shall sell the total number of shares of Common Stock that would
have been represented by such fractional shares at public or private sale at
such place or places and upon such terms it deems proper. The net proceeds of
any sale made pursuant to this Section 4.2 shall, subject to Section 3.2, be
distributed or made available for distribution, as the case may be, by the
Depositary to Record Holders of Receipts as provided by Section 4.1 in the case
of a distribution received in cash.
SECTION 4.3. SUBSCRIPTION RIGHTS, PREFERENCES OR
PRIVILEGES. If the Company shall at any time offer or cause to be offered to
the persons in whose names Preferred Stock is recorded on the books of the
Company any rights, preferences or privileges to subscribe for or to purchase
any securities or any rights, preferences or privileges of any other nature,
such rights, preferences or privileges shall in each such instance be made
available by the Depositary to the Record Holders of Receipts in such manner as
the Company may determine, either by the issue to such record holders of
warrants representing such rights, preferences or privileges or by such other
method as may be approved by the Company in its discretion with the approval of
the Depositary; provided, however, that (a) if at the time of issue or offer of
any such rights, preferences or privileges the Company determines that it is
not lawful or (after consultation with the Depositary) not feasible to make
such rights, preferences or privileges available to the holders of Receipts by
the issue of warrants or otherwise or (b) if and to the extent so instructed by
holders of Receipts who do not desire to exercise such rights, preferences or
privileges, then the Company, in its discretion (with the approval of the
Depositary, in any case where the Company has determined that it is not
feasible to make such rights, preferences or privileges available), may, if
applicable laws or the terms of such rights, preferences or privileges permit
such transfer, sell such rights, preferences or privileges at public or private
sale, at such place or places and upon such 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 4.1 in the
case of a distribution received in cash.
If registration under the Securities Act of 1933 of the
securities to which any rights, preferences or privileges relate is required in
order for holders of Receipts to be offered or sold the securities to which
such rights, preferences or privileges relate, the Company agrees with the
Depositary that it will promptly file a registration statement pursuant to such
Act with respect to such rights, preferences or privileges and use its best
efforts and take all steps available to it to cause such registration statement
to become effective sufficiently in advance of the expiration of
12
14
such rights, preferences or privileges. In no event shall the Depositary make
available to the holders of Receipts any rights, preferences or privileges to
subscribe for or to purchase any securities unless and until the Company
provides to the Depositary an opinion of counsel stating that the securities to
which such rights, preferences or privileges relate have been registered under
the Securities Act of 1933 or do not need to be registered under such Act.
If any other action under the laws of any jurisdiction or any
governmental or administrative 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 best efforts to 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.
SECTION 4.4. NOTICE OF DIVIDENDS, FIXING OF RECORD DATE
FOR HOLDERS OF RECEIPTS. Whenever any cash dividend or other cash distribution
shall become payable or any distribution other than cash shall be made, or if
rights, preferences or privileges shall at any time be offered, with respect to
Preferred Stock, or whenever the Depositary shall receive notice of (a) any
meeting at which holders of Preferred Stock are entitled to vote or of which
holders of Preferred Stock are entitled to notice or (b) any election on the
part of the Company to redeem any shares of Preferred 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 Preferred Stock) for
the determination of the holders of Receipts who shall be entitled to receive
such dividend, distribution, rights, preferences or privileges or the net
proceeds of the sale thereof, or to give instructions for the exercise of
voting rights at any such meeting, or who shall be entitled to notice of such
meeting, or whose Depositary Shares are to be redeemed.
SECTION 4.5. VOTING RIGHTS. Upon receipt of notice of any
meeting at which the holders of Preferred Stock are entitled to vote, 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, and (b) a statement that the holders of Receipts at
the close of business on a specified record date determined pursuant to Section
4.4 will be entitled, subject to any applicable provision of law, the Articles
of Incorporation or the Authorizing Resolution, to instruct the Depositary as
to the exercise of the voting rights pertaining to the amount of Preferred
Stock represented by their respective Depositary Shares, and 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 amount of
Preferred Stock represented by the Depositary Shares evidenced by such Receipt
in accordance with the instructions set forth in such request. To the extent
any such instructions request the voting of a fraction of a share of Preferred
Stock, the Depositary shall aggregate such fraction with all other fractions
resulting from requests with the same voting instructions and shall vote the
number of whole shares resulting from such aggregation in accordance with the
instructions received in such requests. The Company hereby agrees to take all
reasonable action which may be deemed necessary by the Depositary in order to
enable the Depositary to vote such Preferred Stock or to cause such Preferred
Stock to be voted. In the
13
15
absence of specific written instructions from the holder of a Receipt, the
Depositary will abstain from voting to the extent of the Preferred Stock
represented by the Depositary Shares evidenced by such Receipt.
SECTION 4.6. CHANGES AFFECTING DEPOSITED SECURITIES AND
RECLASSIFICATIONS, RECAPITALIZATIONS, ETC. Upon any change in par or stated
value, split-up, consolidation or any other reclassification of the Preferred
Stock, or upon any recapitalization, reorganization, merger, amalgamation or
consolidation or sale of all or substantially all of the Company's assets
affecting the Company or to which it is a party, the Depositary shall, upon the
instructions of the Company and in such manner as the Company may deem
equitable, (a) make such adjustments in (i) the fraction of an interest
represented by one Depositary Share in one share of Preferred Stock and (ii)
the ratio of the redemption price per Depositary Share to the redemption price
of a share of Preferred Stock in each case as may be necessary to fully reflect
the effects of such change in par or stated value, split-up, consolidation or
other reclassification of the Preferred Stock, or of such recapitalization,
reorganization, merger, amalgamation or such consolidation or sale and (b)
treat any securities which shall be received by the Depositary in exchange for
or upon conversion of or otherwise in respect of the Preferred Stock as new
deposited securities under this Deposit Agreement, and Receipts then
outstanding shall thenceforth represent the new deposited securities so
received. In any such case, the Company may in its discretion, direct the
Depositary to execute and deliver additional Receipts, or may call for the
surrender of all outstanding Receipts to be exchanged for new Receipts
specifically describing such new deposited securities.
SECTION 4.7. REPORTS. The Depositary shall make available
for inspection by holders of Receipts at its Corporate Trust Office, and at
such other places as it may from time to time deem advisable, any reports and
communications received from the Company which are received by the Depositary
as the holder of Preferred Stock unless at the time of or prior to receipt the
Company advises the Depositary that such reports or communications have not
been generally available to the holders of Preferred Stock of the Company.
SECTION 4.8. LISTS OF RECEIPT HOLDERS. Upon request from
time to time by the Company, the Depositary shall, without unreasonable delay,
furnish to the Company a list, as of a recent date, of the names, addresses and
holdings of Preferred Stock by all persons in whose names Receipts are
registered on the books of the Depositary.
ARTICLE V
THE DEPOSITARY AND THE COMPANY
SECTION 5.1. MAINTENANCE OF OFFICES, AGENCIES, TRANSFER
BOOKS BY THE DEPOSITARY; REGISTRAR. Upon execution of this Deposit Agreement
in accordance with its terms, the Depositary shall maintain at its Corporate
Trust Office facilities for the execution and delivery, transfer, surrender and
exchange of Receipts, and at the offices of the Depositary's Agents, if any,
facilities for the delivery, transfer, surrender and exchange of Receipts, all
in accordance with the provisions of this Deposit Agreement.
14
16
The Depositary shall keep books at its Corporate Trust Office
for the transfer of Receipts, which books at all reasonable times shall be open
for inspection by the Record Holders of Receipts, unless the Company advises
the Depositary in a particular instance that such inspection is not for a
proper purpose reasonably related to such person's interest as an owner of
Depositary Shares evidenced by the Receipts. The Depositary may close such
books, at any time or from time to time, when deemed expedient by it in
connection with the performance of its duties hereunder.
If the Receipts or the Depositary Shares evidenced thereby or
the Preferred Stock represented by such Depositary Shares shall be quoted on
the Nasdaq National Market, the Company may, upon consultation with the
Depositary, appoint a Registrar for registry of such Receipts or Depositary
Shares in accordance with the requirements of the Nasdaq National Market. Such
Registrar (which may be the Depositary if so permitted by the requirements of
the Nasdaq National Market) may be removed, and a substitute registrar
appointed by the Depositary upon the request or with the approval of the
Company. If the Receipts of such Depositary Shares or such Preferred Stock are
listed on one or more stock exchanges, the Depositary will, at the request of
the Company, arrange with such facilities for the delivery, transfer, surrender
and exchange of such Receipts, such Depositary Share or such Preferred Stock as
may be required by law or applicable stock exchange regulation.
SECTION 5.2. PREVENTION OR DELAY IN PERFORMANCE BY THE
DEPOSITARY, THE DEPOSITARY'S AGENTS OR THE COMPANY. Neither the Depositary nor
any Depositary's Agent nor the Company shall incur any liability to any holder
of any Receipt, if by reason 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 or the Depositary's
Agent, by reason of any provision, present or future, of the Articles of
Incorporation or the Authorizing Resolution or by reason of any act of God or
war or other circumstance beyond the control of the relevant party, the
Depositary, any Depositary's Agent or the Company shall be prevented or
forbidden from doing or performing any act or thing which the terms of this
Deposit Agreement provide shall or may be done or performed, or by reason of
any exercise of, or failure to exercise, any discretion provided for in this
Deposit Agreement.
SECTION 5.3. OBLIGATIONS OF THE DEPOSITARY, THE
DEPOSITARY'S AGENTS AND THE COMPANY. Neither the Depositary nor any
Depositary's Agent nor the Company assumes any obligation or shall be subject
to any liability under this Deposit Agreement to holders of Receipts other than
that each of them agrees to use its best judgment and good faith in the
performance of such duties as are specifically set forth in this Deposit
Agreement.
Neither the Depositary nor any Depositary's Agent nor the
Company shall be under any obligation to appear in, prosecute or defend any
action, suit or other proceeding with respect to Preferred Stock, Depositary
Shares or Receipts, which 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.
15
17
Neither the Depositary nor any Depositary's Agent 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 Preferred Stock for deposit, any holder of 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 and the Company may each
rely and shall each be protected in acting upon any written 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.
The Depositary and the Depositary's Agents may own and deal in
any class of securities of the Company and its affiliates and in Receipts. The
Depositary may also act as transfer agent or registrar of any of the securities
of the Company and its affiliates.
SECTION 5.4. RESIGNATION AND REMOVAL OF THE DEPOSITARY;
APPOINTMENT OF SUCCESSOR DEPOSITARY. The Depositary may at any time resign as
Depositary hereunder by notice 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 hereinafter provided.
The Depositary may at any time be removed by the Company by
notice of such removal delivered to the 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 successor
depositary, which shall be 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. Every successor depositary shall execute and deliver to its
predecessor and to the Company 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 for all 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 all rights 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
Record Holders 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 authenticate the Receipts in the name of the
predecessor depositary or in the name of the successor depositary.
16
18
SECTION 5.5. 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 the Depositary's books, copies of all
notices and reports (including, without limitation, financial statements)
required by law, by the rules of any national securities exchange or the Nasdaq
National Market upon which the Preferred Stock, the Depositary Shares or the
Receipts are listed, or by the Articles of Incorporation and the Authorizing
Resolution to be furnished by the Company to holders of Preferred Stock. Such
transmission will be at the Company's expense, and the Company will provide the
Depositary with such number of copies of such documents as the Depositary may
reasonably request. In addition, the Depositary will transmit to the holders
of Receipts (at the Company's expense) such other documents as may be requested
by the Company.
SECTION 5.6. DEPOSIT OF PREFERRED STOCK BY THE COMPANY.
The Company agrees with the Depositary that neither the Company nor any company
controlled by the Company will at any time deposit any Preferred Stock, if such
Preferred Stock is required to be registered under the provisions of the
Securities Act of 1933 and no registration statement is at such time in effect
as to such Preferred Stock.
SECTION 5.7. INDEMNIFICATION BY THE COMPANY. The Company
agrees to indemnify the Depositary, any Depositary's Agent and any Registrar
against, and hold each of them harmless from, any loss, liability or expense
(including reasonable costs of investigation, court costs, and attorneys fees
and disbursements) which may arise out of acts performed or omitted in
accordance with the provisions of this Deposit Agreement, as the same may be
amended, modified or supplemented from time to time, and the Receipts (a) by
the Depositary, any Registrar or any of their respective officers, employees or
agents (including any Depositary's Agent), except for any loss, liability or
expense arising out of negligence, bad faith or willful misconduct on the part
of any such person or persons, or (b) by the Company or any of its agents.
SECTION 5.8. CHARGES AND EXPENSES. The Company shall pay
all transfer and other taxes and governmental charges arising solely from the
existence of the depositary arrangements. The Company shall pay any and all
fees of the Depositary as shall be agreed to between the Company and the
Depositary, all charges of the Depositary in connection with the initial
deposit of the Preferred Stock and the initial issuance of the Depositary
Receipts and any redemption of the Preferred Stock which is redeemed at the
option of the Company. All other transfer and other taxes and governmental
charges shall be at the expense of holders of Depositary Shares. If, at the
request of a holder of Receipts, the Depositary incurs charges or expenses for
which it is not otherwise liable hereunder, such holder will be liable for such
charges and expenses. All other reasonable charges and expenses of the
Depositary and any Depositary's Agent hereunder and of any Registrar
(including, in each case, reasonable fees and expenses of counsel) incident to
the performance of their respective obligations hereunder will be paid upon
consultation and agreement between the Depositary and the Company as to the
amount and nature of such charges and expenses. The Depositary shall present
its statement for charges and expenses to the Company monthly or at such other
intervals as the Company and the Depositary may agree.
17
19
ARTICLE VI
AMENDMENT AND TERMINATION
SECTION 6.1. 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
which they may deem necessary or desirable. Any amendment which shall impose
any fees, taxes or charges (other than fees and charges provided for herein),
or which shall otherwise prejudice any substantial existing right of holders of
Receipts, shall not become effective as to outstanding Receipts until the
expiration of 90 days after public notice of such amendment shall have been
given to the Record Holders of outstanding Receipts. Every holder of an
outstanding Receipt at the time any such amendment so becomes effective shall
be deemed, by continuing to hold such Receipt, to consent and agree to such
amendment and to be bound by this Deposit Agreement as amended thereby. In no
event shall any amendment impair the right, subject to the provisions of
Sections 2.8 and 2.9 and Article III, of any owner of any Depositary Shares to
surrender the Receipt evidencing such Depositary Shares to receive Preferred
Stock, or upon the conversion of the Preferred Stock represented by the
Depositary Shares, to receive Common Stock and, in each case, any money or
other property represented thereby, except in order to comply with mandatory
provisions of applicable law.
SECTION 6.2. TERMINATION. Whenever so directed by the
Company, the Depositary will terminate this Deposit Agreement by 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 this Deposit Agreement if at any time 45 days
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 5.4.
If any Receipts shall remain outstanding after the date of
termination of this Deposit Agreement, the Depositary thereafter shall
discontinue the transfer 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 that the Depositary shall continue to collect dividends and
other distributions pertaining to the Preferred Stock, shall sell rights,
preferences or privileges as provided in this Deposit Agreement and shall
continue to deliver the Preferred Stock and any money and other property
represented by Receipts upon surrender thereof by the holders thereof. At any
time after the expiration of two years from the date of termination, the
Depositary shall, at the direction of the Company, sell the Preferred Stock
then held hereunder at public or private sale, at such places and upon such
terms as the Company deems proper, and may thereafter hold the net proceeds of
any such sale, together with any money and other property held by it hereunder,
without liability for interest, for the benefit, pro rata in accordance with
their holdings, of the holders of Receipts which have not theretofore been
surrendered. After making such sale, the Depositary shall be discharged from
all obligations under this Deposit 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
18
20
obligations under this Deposit Agreement except for its obligations to the
Depositary, any Depositary's Agent and any Registrar under Sections 5.7 and
5.8. In the event this Deposit Agreement is terminated, the Company hereby
agrees to use its best efforts to list the underlying Preferred Stock on the
Nasdaq National Market.
ARTICLE VII
MISCELLANEOUS
SECTION 7.1. COUNTERPARTS. This Deposit Agreement may be
executed in any number of counterparts and by each of the parties hereto on
separate counterparts, each of which counterparts, when so executed and
delivered, shall be deemed an original, but all such counterparts taken
together shall constitute one and the same instrument. 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 Depositary's Corporate
Trust Office and the respective offices of the Depositary's Agents, if any, by
any holder of a Receipt.
SECTION 7.2. EXCLUSIVE BENEFITS OF PARTIES. This Deposit
Agreement is for the exclusive 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 7.3. INVALIDITY OF PROVISIONS. In case any one or
more of the provisions contained in this Deposit Agreement or in the Receipts
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 7.4. NOTICES. Any and all notices to be given to
the Company hereunder or under the Depositary Receipts shall be in writing and
shall be deemed to have been duly given if personally delivered or sent by mail
or telecopy confirmed by letter, addressed to the Company at ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇; Attention: Chief Financial Officer, or at
any other place to which the Company may have transferred its principal
executive office.
Any and all notices to be given to the Depositary hereunder or
under the Depositary Receipts shall be in writing and shall be deemed to have
been duly given if personally delivered or sent by mail or by telecopy
confirmed by letter, addressed to the Depositary; Attention: Compliance
Department.
Any and all notices given to a Record Holder of a Receipt
hereunder or under the Depositary Receipts shall be in writing and shall be
deemed to have been duly given if personally delivered or sent by mail or by
telecopy 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 filed with the Depositary a written request that notices
intended for such holder be mailed to some other address, at the address
designated in such request.
19
21
Delivery of a notice sent by mail or by telecopy shall be
deemed to be effected at the time when a duly addressed letter containing the
same (or a confirmation thereof in the case of a telecopy message) is
deposited, postage prepaid, in a post office letter box. The Depositary or the
Company, may, however, act upon any telecopy message received by it from the
other or from any holder of a Receipt, notwithstanding that such telecopy
message shall not subsequently be confirmed by letter or as aforesaid.
SECTION 7.5. DEPOSITARY'S AGENTS. The Depositary may from
time to time appoint Depositary's Agents to act in any respect for the
Depositary for the purposes of this Deposit Agreement and may at any time
appoint additional Depositary's Agents. The Depositary will notify the Company
of any such action.
SECTION 7.6. HOLDERS OF RECEIPTS ARE PARTIES. 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 hereof and of
the Receipts by acceptance of delivery thereof.
SECTION 7.7. GOVERNING LAW; ARTICLES OF INCORPORATION AND
AUTHORIZING RESOLUTION TO CONTROL. The Deposit Agreement and the Receipts and
all rights hereunder and thereunder and provisions hereof and thereof shall be
governed by, and construed in accordance with, the laws of the State of New
York. Each Record Holder is entitled proportionately to all of the rights and
preferences of the shares of Preferred Stock represented thereby (including
dividend, voting, redemption and liquidation rights) contained in the Articles
of Incorporation and the Authorizing Resolution, which, to the extent there is
a conflict between the provisions thereof and the Deposit Agreement, shall
control.
SECTION 7.8. HEADINGS. The headings of articles and
sections in this Deposit Agreement and in the form of Receipt 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 the Receipts.
IN WITNESS WHEREOF, WORLDCOM, INC. and THE BANK OF NEW YORK
have duly executed this Agreement as of the day and year first above set forth,
and all holders of receipts shall become parties hereto by and upon acceptance
by them of delivery of Receipts issued in accordance with the terms hereof.
WORLDCOM, INC.
By:
------------------------
Authorized Officer
Attest:
-----------------------
Assistant Secretary
20
22
THE BANK OF NEW YORK
By:
---------------------------
Authorized Officer
Attest:
-----------------------------
Assistant Secretary
21
23
EXHIBIT A
DEPOSITARY RECEIPT
FOR
DEPOSITARY SHARES,
EACH REPRESENTING A ONE ONE-HUNDREDTH
INTEREST IN A SHARE OF SERIES A 8%
CUMULATIVE CONVERTIBLE PREFERRED STOCK
$0.01 Par Value
OF
WORLDCOM, INC.
(Incorporated under the Laws of the State of Georgia)
No. . . . Depositary Shares
(each Depositary Share representing a
one one-hundredth interest in a share
of Series A 8% Cumulative Convertible
Preferred Stock ($0.01 par value))
1. GENERAL. The Bank of New York, a New York banking
association with its principal office at the time of the execution of the
Deposit Agreement (as defined below) at _____________________________, New
York, New York ______________, as Depositary (the "Depositary"), hereby
certifies that _______________ is the registered owner of _______ Depositary
Shares ("Depositary Shares"), each Depositary Share representing a one
one-hundredth (1/100) interest in a share of Series A 8% Cumulative Convertible
Preferred Stock, par value $0.01 per share (the "Preferred Stock"), of
WorldCom, Inc., a corporation duly organized and existing under the laws of the
State of Georgia (the "Company"). The rights, preferences and limitations of
the Preferred Stock are set forth in the Company's Amended and Restated
Articles of Incorporation (the "Articles of Incorporation"), as amended by the
Articles of Amendment Designating the Rights of the Preferred Stock adopted by
the Company's Board of Directors establishing the Preferred Stock as a series
of preferred stock of the Company (the "Articles of Amendment"), copies of
which are on file at the Depositary's Corporate Trust Office.
2. THE DEPOSIT AGREEMENT. Depositary receipts (the
"Receipts"), of which this Receipt is one, are made available upon the terms
and conditions set forth in the Deposit Agreement, dated as of December ___,
1996 (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 file at the Depositary's Corporate Trust Office) sets forth the rights
of holders of Receipts and the rights and duties of the Depositary in respect
of the Preferred Stock deposited, and any and
A-1
24
all other property and cash from time to time, thereunder. 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 reference is hereby made. Unless otherwise expressly herein provided,
all defined terms used herein shall have the meaning ascribed thereto in the
Deposit Agreement.
3. OPTIONAL REDEMPTION OF PREFERRED STOCK. Whenever the
Company shall elect to redeem shares of Preferred Stock pursuant to the terms
of the Preferred Stock, it shall (unless otherwise agreed in writing with the
Depositary) give the Depositary notice of such proposed redemption and of the
number of shares held by the Depositary to be so redeemed not less than 15 nor
more than 60 days of the date of such proposed redemption of Preferred Stock.
On the Redemption Date, provided that the Company shall then have deposited
with the Depositary the number of shares of Common Stock necessary to effect
such redemption, the Depositary shall redeem the number of Depositary Shares
representing such Preferred Stock. The Depositary shall mail notice of such
redemption and the proposed simultaneous redemption of a corresponding number
of Depositary Shares representing the Preferred Stock to be redeemed,
first-class postage pre-paid, not less than 15 days and not more than 60 days
prior to the Redemption Date to the holders of record on the record date for
such redemption (determined as provided in Paragraph 16 below) of the Receipts
evidencing the Depositary Shares to be so redeemed, at the addresses of such
holders as the same appear on the records of the Depositary; but neither the
failure to mail any such notice to one or more such holders nor any defect in
any notice shall affect the validity of the proceeding for redemption of any
shares of Preferred Stock or Depositary Shares to be redeemed. In case less
than all the outstanding Depositary Shares are to be so redeemed, the
Depositary Shares to be so redeemed shall be selected by lot or pro rata (as
nearly as may be) or in any other equitable manner determined by the
Depositary. Notice having been mailed as aforesaid, from and after the
Redemption Date (unless the Company shall have failed to redeem the shares of
Preferred Stock to be redeemed by it as set forth in its redemption notice),
all dividends in respect of the Preferred Stock so called for redemption shall
cease to accrue, the Depositary Shares so called for redemption shall be deemed
no longer to be outstanding, all rights of holders of Depositary Receipts
evidencing such Depositary Shares (except the right to receive the redemption
consideration) shall, to the extent of such Depositary Shares, cease and
terminate and, 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 be redeemed
by the Depositary for the consideration therefor specified in said notice, plus
all money and other property, if any, represented by such Depositary Shares,
including all amounts, if any, payable by the Company in respect of dividends
which on the Redemption Date have accrued on the shares of Preferred Stock to
be so redeemed and have not theretofore been paid. If less than all of the
Depositary Shares evidenced by this Receipt are called for redemption, the
Depositary will deliver to the holder of this Receipt upon its surrender to the
Depositary, together with the redemption payment, a new Receipt evidencing the
Depositary Shares evidenced by such prior Receipt and not called for
redemption. The foregoing shall further be subject to the terms and conditions
of the Articles of Incorporation and Articles of Amendment.
A-2
25
4. CONVERSION AT THE OPTION OF HOLDERS. Subject to the
terms and conditions of the Deposit Agreement, the Articles of Incorporation
and the Authorizing Resolution, Depositary Shares may be surrendered at any
time prior to the Mandatory Conversion Date, unless previously redeemed, by the
holders thereof with written instructions to the Depositary to convert any
specified number of shares of Preferred Stock (or 1/100-share fractions
thereof) represented by such Depositary Shares into shares of Common Stock (and
cash in lieu of fractional shares of Common Stock) at the conversion rate in
respect thereof determined in accordance with the Authorizing Resolution, as
such conversion rate may be adjusted from time to time as provided in the
Authorizing Resolution. The right to convert shares of Preferred Stock
represented by Depositary Shares called for redemption will terminate
immediately prior to the close of business on the relevant Redemption Date.
5. MANDATORY CONVERSION. Unless previously redeemed by
the Company or converted at the option of the holder into Common Stock, on May
31, 1999 (the "Mandatory Conversion Date"), each 1/100 share of Preferred Stock
represented by a Depositary Share will automatically convert into (i) shares of
Common Stock at the rate prescribed in the Authorizing Resolution, (ii) cash in
lieu of fractional shares of Common Stock and (iii) the right to receive an
amount equal to all accrued and unpaid dividends thereon to the Mandatory
Conversion Date, whether or not declared (payable in cash or in shares of
Common Stock on the same basis as that used to determine dividends), as
prescribed in the Authorizing Resolution.
6. SURRENDER OF RECEIPTS AND WITHDRAWAL OF PREFERRED
STOCK. Upon surrender of this Receipt to the Depositary at its Corporate Trust
Office, or at such other offices as it may designate, and subject to the
provisions of the Deposit Agreement (unless the Depositary Shares evidenced
hereby have been theretofore called for redemption or exchange), the holder
hereof is entitled to withdraw, and to obtain delivery, to or upon the order of
such holder, of the Preferred Stock and all money and other property, if any,
at the time represented hereby; provided, however, that the holder hereof is
not entitled to withdraw less than a whole share of Preferred Stock and
therefore, this Receipt, alone or in the aggregate with other Receipts, must
evidence at least a whole share of Preferred Stock; and provided further, that
in the event this Receipt shall evidence a number of Depositary Shares in
excess of the number of Depositary Shares representing the number of whole
shares of Preferred Stock to be so withdrawn, the Depositary shall, in addition
to such number of whole shares of Preferred Stock and the money and other
property, if any, to be so withdrawn, deliver, to or upon the order of such
holder, a new Receipt evidencing such excess number of Depositary Shares.
7. TRANSFERS, SPLIT-UPS, COMBINATIONS. This Receipt is
transferable on the books of the Depositary upon surrender of this Receipt to
the Depositary, properly endorsed or accompanied by a properly executed
instrument of transfer, and upon such transfer the Depositary shall sign and
deliver a Receipt to or upon the order of the person entitled thereto, as
provided in 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 as evidenced by the Receipt or Receipts
surrendered.
▇-▇
▇▇
▇. CONDITIONS TO SIGNING AND DELIVERY, TRANSFER, ETC.,
OF RECEIPTS. Prior to the execution and delivery, transfer, split-up,
combination, delivery for purposes of surrender or exchange of this Receipt,
the Depositary, or any of the Depositary's Agents, or the Company, may require
payment to it of a sum sufficient for the payment (or, in the event that the
Depositary or the Company shall have made such payment, the reimbursement to
it) of any tax or other governmental charge with respect thereto (including any
such tax or charge with respect to Preferred Stock being deposited or
withdrawn), may require proof satisfactory to it as to the identity and
genuineness of any signature and may also require compliance with such
regulations, if any, as it may establish pursuant to the Deposit Agreement.
Any person presenting Preferred Stock for deposit, or any holder of this
Receipt, may be required to file such information and to execute such
certificates as the Depositary or the Company may reasonably deem necessary or
proper.
9. SUSPENSION OF DELIVERY, TRANSFER, ETC. The deposit
of Preferred Stock, the delivery of this Receipt against Preferred Stock, the
transfer, split-up, combination, surrender or exchange of this Receipt may be
suspended (a) during any period when the register of shareholders of the
Company is closed, or (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 any government or
governmental body or commission, or under any provision of the Deposit
Agreement or, with the approval of the Company, for any other reason.
10. PAYMENT OF TAXES OR OTHER GOVERNMENTAL CHARGES. If
any tax or other governmental charge shall become payable by or on behalf of
the Depositary with respect to this Receipt or with respect to the Depositary
Shares evidenced hereby or with respect to the Preferred Stock (or any
fractional interest therein) represented by such Depositary Shares, such tax
(including transfer taxes, if any) or governmental charge shall be payable by
the holder hereof, subject to certain exceptions in the Deposit Agreement.
Transfer of this Receipt or any withdrawal of the Preferred Stock and all money
and other property, if any, represented by the Depositary Shares evidenced by
this Receipt may be refused until such payment is made, and any dividends,
interest payments or other distributions may be withheld, or any part or all of
the Preferred Stock or other property represented by the Depositary Shares
evidenced by this Receipt and not theretofore sold may be sold for the account
of the holder hereof, and such dividends, interest payments or other
distributions or the proceeds of any such sale may be applied to any payment of
such tax or other governmental charge, the holder of this Receipt remaining
liable for any deficiency.
11. AMENDMENT. The form of the Receipts and any provisions
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 which they may
deem necessary or desirable. Any amendment which imposed any fees, taxes or
charges (other than fees and charges provided for herein), or which shall
otherwise prejudice any substantial existing right of holders of Receipts,
shall not become effective as to outstanding Receipts until the expiration of
90 days after notice of such amendment shall have been given to the Record
Holders of outstanding Receipts. The holder
A-4
27
of this Receipt at the time any such amendment so 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 amended thereby. In no
event shall any amendment impair the right, subject to the provisions of
Paragraphs 8, 9 and 10 hereof and of Sections 2.8 and 2.9 of the Deposit
Agreement, of the owner of the Depositary Shares evidenced by this Receipt to
surrender this Receipt with instructions to the Depositary to deliver to the
holder the number of whole shares of Preferred Stock and all money and other
property, if any, represented thereby, except in order to comply with mandatory
provisions of applicable law.
12. CHARGES OF DEPOSITARY. The Company will pay all transfer
and other taxes and governmental charges arising solely from the existence of
the depositary arrangements and all charges of the Depositary in connection
with the initial deposit of the Preferred Stock and the initial issuance of the
Receipts and any redemption of the Preferred Stock at the option of the
Company. Holders of Depositary Shares will pay transfer and other taxes and
governmental charges and certain other charges as are provided in the Deposit
Agreement to be for their account.
13. TITLE TO RECEIPTS. It is a condition of this Receipt,
and every successive holder thereof by accepting or 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 same effect as in
the case of a negotiable instrument; provided, however, that until this Receipt
shall be transferred on the books of the Depositary as provided in Section 2.6
of the Deposit Agreement, 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 the person entitled to distribution of
dividends or other distribution or to any notice provided for in the Deposit
Agreement and for all other purposes.
14. DIVIDENDS AND DISTRIBUTIONS. Whenever the Depositary
receives any cash dividend or other cash distribution on the Preferred Stock,
the Depositary will, subject to the provisions of the Deposit Agreement, make
such distribution to the holders of Receipts as nearly as practicable in
proportion to the respective numbers of Depositary Shares evidenced by the
Receipts held by such holders; provided, however, that the amount distributed
will be reduced by any amounts required to be withheld by the Company or the
Depositary on account of taxes. Other distributions received on the Preferred
Stock may be distributed to such holders of Receipts as provided in the Deposit
Agreement.
Whenever the Depositary shall receive any distribution upon
the Preferred Stock in shares of Common Stock, the Depositary shall, subject to
Section 3.2 of the Deposit Agreement, distribute to Record Holders of Receipts,
on the record date fixed pursuant to Section 4.4 of the Deposit Agreement, such
shares of Common Stock received by it in proportion to the respective numbers
of Depositary Shares evidenced by the Receipts held by such holders, except
that the Depositary may not distribute fractional shares of Common Stock. If
in the opinion of the Company, after consultation with the Depositary, such
distribution cannot be made proportionately
A-5
28
among such Record Holders, or if for any reason (including any requirement that
the Company or the Depositary withhold an amount on account of taxes) the
Depositary deems, after consultation with the Company, such distribution not to
be feasible, the Depositary may, at the direction of the Company, adopt such
method as the Company deems equitable and practicable for the purpose of
effecting such distribution, including the sale at public or private sale, of
the other securities or property thus received, or any part thereof, at such
place or places and upon such terms as it may deem proper. No fractional
shares of Common Stock will be issued upon conversion or redemption of
Depositary Shares or upon payment of stock dividends or distributions on the
Preferred Stock; and, if such conversion, redemption, dividend or distribution
would otherwise result in a fractional share of Common Stock being issued, the
Depositary shall sell the total number of shares of Common Stock that would
have been represented by such fractional shares at public or private sale at
such place or places and upon such terms as it deems proper. The net proceeds
of any sale made pursuant to this Paragraph 14 shall, subject to the provisions
of the Deposit Agreement, be distributed or made available for distribution, as
the case may be, by the Depositary to Record Holders of Receipts as in the case
of a distribution received in cash.
15. SUBSCRIPTION RIGHTS, PREFERENCES OR PRIVILEGES. If the
Company shall at any time offer to Record Holders of the Preferred Stock any
rights, preferences or privileges to subscribe for or to purchase any
securities 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 Depositary may determine.
16. FIXING OF RECORD DATE. Whenever any dividend or other
distribution shall become payable or any distribution other than cash shall be
made, or if rights, preferences or privileges shall at any time be offered,
with respect to the Preferred Stock, or whenever the Depositary shall receive
notice of (a) any meeting at which holders of Preferred Stock are entitled to
vote or of which holders of Preferred Stock are entitled to notice or (b) any
election on the part of the Company to redeem any shares of Preferred 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
Preferred Stock) for the determination of the holders of Receipts who shall be
entitled to receive such net proceeds of the sale thereof, or to give
instructions for the exercise of voting rights at any such meeting, or who
shall be entitled to notice of such meeting, or whose Depositary Shares are to
be redeemed.
17. VOTING RIGHTS. Upon receipt of notice of any meeting at
which the holders of Preferred Stock are entitled to vote, the Depositary
shall, as soon as practicable, mail to the Record Holders of Receipts a notice
which shall contain (a) such information as is contained in such notice of
meeting, and (b) a statement that the holders of Receipts at the close of
business on a specified record date determined as provided in Paragraph 16 will
be entitled, subject to any applicable provisions of law and of the Articles of
Incorporation or the Articles of Amendment, to instruct the Depositary as to
the exercise of the voting rights pertaining to the amount of Preferred Stock
represented by the Depositary Shares evidenced by their respective Receipts,
and a brief statement
A-6
29
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 amount of
Preferred Stock represented by the Depositary Shares evidenced by such Receipt
in accordance with the instructions set forth in such request. To the extent
any such instructions request the voting of a fraction of a share of Preferred
Stock, the Depositary shall aggregate such fraction with all other fractions
resulting from requests with the same voting instructions and shall vote the
number of whole shares resulting from such aggregation in accordance with the
instructions received in such requests. In the absence of specific written
instructions from the holder of a Receipt, the Depositary will abstain from
voting to the extent of the Preferred Stock represented by the Depositary
Shares evidenced by such Receipt.
18. REPORTS, INSPECTION OF TRANSFER BOOKS. The Depositary
shall make available for inspection by holders of Receipts at its Corporate
Trust Office and at such other places as it may from time to time deem
advisable any reports and communications received from the Company which are
received by the Depositary as the holder of Preferred Stock and unless at the
time of or prior to the receipt the Company advised the Depositary that such
reports or communications have not been generally available to the holders of
the Preferred Stock by the Company. The Depositary shall also send to Record
Holders of Receipts copies of such notices, reports and other financial
statements to the extent provided in the Deposit Agreement when furnished by
the Company. The Depositary shall keep books for the transfer of Receipts,
which at all reasonable times will be open for inspection by the Record Holders
of Receipts, provided that such inspection shall be for a proper purpose
reasonably related to such person's interest as an owner of Depositary Shares
evidenced by the Receipts.
19. LIABILITY OF THE DEPOSITARY, THE DEPOSITARY'S AGENTS AND
THE COMPANY. Neither the Depositary nor any Depositary's Agent nor the Company
shall incur any liability to any holder of any Receipt, if by reason of any
provision of any present or future law or regulation of any governmental
authority or, in the case of the Depositary or the Depositary's Agent, by
reason of any provision, present or future, of the Articles of Incorporation or
Articles of Amendment or by reason of any act of God or war or other
circumstances beyond the control of the relevant party, the Depositary, any
Depositary's Agent or the Company shall be prevented or forbidden from doing or
performing any act or thing which the terms of the Deposit Agreement provide
shall be done or performed; nor shall the Depositary, any Depositary's Agent or
the Company incur any liability to any holder of a Receipt by reason of any
nonperformance or delay, caused as aforesaid, in the performance of any act or
thing which the terms of the Deposit Agreement provide shall or may be done or
performed, or by reason of any exercise of, or failure to exercise, any
discretion provided for in the Deposit Agreement.
20. OBLIGATIONS OF THE DEPOSITARY, THE DEPOSITARY'S AGENTS
AND THE COMPANY. Neither the Depositary nor any Depositary's Agent nor the
Company assumes any obligation or shall be subject to any liability under the
Deposit Agreement to holders of Receipts other than that each of them agrees to
use its best judgment and good faith in the performance of such duties as are
specifically set forth in the Deposit Agreement.
A-7
30
Neither the Depositary nor any Depositary's Agent nor the
Company shall be under any obligation to appear in, prosecute or defend any
action, suit or other proceeding in respect of Preferred Stock, Depositary
Shares or Receipts, which 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
Company will be liable for any action or failure to act by it in reliance on
documents believed by it to be genuine or upon the advice of or information
from legal counsel, accountants, any person presenting Preferred Stock for
deposit, any holder of a Receipt or any other person believed by it in good
faith to be competent to give such advice or information.
21. TERMINATION OF DEPOSIT AGREEMENT. Whenever so directed
by the Company, the Depositary will terminate the Deposit Agreement by mailing
notice of such determination to the Record Holders of all Receipts then
outstanding at least 30 days prior to the date fixed in such notice for such
determination. The Depositary may likewise terminate the Deposit Agreement if
at any time 45 days shall have expired after the Depositary shall have
delivered to the Company a notice of its election to resign and a successor
depositary shall not have been appointed and accepted its appointment. Upon
the termination of the Deposit Agreement, the Company shall be discharged from
all obligations thereunder except for its obligations to the Depositary, any
Depositary's Agent and any Registrar with respect to indemnification, charges
and expenses.
If any Receipts remain outstanding after the date of
termination, the Depositary thereafter shall discontinue all functions and be
discharged from all obligations as provided in the Deposit Agreement, except as
specifically provided therein.
22. GOVERNING LAW. The Deposit Agreement and this Receipt
and all rights thereunder and hereunder and provisions thereof and hereof shall
be governed by, and construed in accordance with, the laws of the State of New
York.
To the extent that there is a discrepancy between this Receipt
and the Deposit Agreement, the Deposit Agreement shall control.
This Receipt shall not be entitled to any benefits under the
Deposit Agreement or be valid or obligatory for any purpose, unless this
Receipt shall have been executed on behalf of the Company by the manual or
facsimile signature of a duly authorized officer and 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 authorized
representative and, if executed by facsimile signature of the Depositary, shall
have been countersigned manually by such Registrar by the signature of a duly
authorized representative.
A-8
31
The following abbreviations, when used in the inscription on
the face of this certificate, shall be construed as though they were written
out in full according to applicable laws or regulations:
TEN COM - as tenants in common
TEN ENT - as tenants by the entireties
JT TEN - as joint tenants with right of survivorship and not as
tenants in common
UNIF GIFT MIN ACT - Custodian
-------------- ------------------
(Cust) (Minor)
under Uniform Gifts to Minors Act
-----------
(State)
A-9
32
Dated:
-------------------------
THE BANK OF NEW YORK
Depositary and Registrar
By:
---------------------------------
Authorized Officer
WORLDCOM, INC.
By:
---------------------------------
Authorized Officer
A-10
33
FORM OF NOTICE OF CONVERSION
The undersigned holder of this Receipt hereby exercises the option to
convert the number specified below of shares of the Series A 8% Cumulative
Convertible Preferred Stock (the "Preferred Stock"), par value $.01 per share
of WorldCom, Inc., a Georgia corporation (the "Company"), represented by this
Receipt into shares of the Company's Common Stock, par value $.01 per share
("Common Stock") (as further defined in the Deposit Agreement referred to
below), and any other applicable property in accordance with the terms of and
conditions of the Preferred Stock and further as provided in the Deposit
Agreement, dated as of December ___, 1996 between the Company and The Bank of
New York, as Depositary and on behalf of the holders from time to time of the
Depositary Shares referred to in such Deposit Agreement (the "Deposit
Agreement"), and directs that the securities deliverable upon such conversion
be registered in the name of and delivered, together with a check in payment
for any fractional share and any other property deliverable upon such
conversion, to the undersigned unless a different name has been indicated
below. If securities are to be registered in the name of a person other than
the undersigned, the undersigned will pay all transfer taxes payable with
respect thereto. If the number of shares of Preferred Stock to be converted
indicated below is less than the number of shares of such Preferred Stock
represented by this Receipt, the undersigned directs that the Depositary issue
to the undersigned, unless a different name is indicated below, a new Receipt
evidencing Depositary Shares for the balance of the Preferred Stock not to be
converted.
Dated: Signature
------------------- ---------------------------
NOTE: The above
signature(s) should correspond exactly
with the name(s) on the face of this
Receipt or with the name(s) of the
assignee(s) appearing in the
assignment form below.
Number of shares of Preferred Stock underlying this Receipt to be converted (in
1/100 of a share or any integral multiple thereof):
-------------------
(PLEASE PRINT NAME(S) AND ADDRESSES OF REGISTERED HOLDER(S))
Name
--------------------------------
Address
-----------------------------
(PLEASE INDICATE OTHER DELIVERY INSTRUCTION, IF APPLICABLE)
Name
--------------------------------
Address
-----------------------------
Tax I.D. Number
---------------------
A-11
34
FORM OF ASSIGNMENT
FOR VALUE RECEIVED, the undersigned hereby sells, assigns and
transfers unto ___________________ the within Receipt and all rights and
interests represented by the Depositary Shares evidenced thereby, and hereby
irrevocably constitutes and appoints _____________ his attorney, to transfer
the same on the books of the within named Depositary, with full power of
substitution in the premises.
Dated: Signature
------------------- ---------------------------
NOTE: The above signature
should correspond exactly
with the name on the face
of this Receipt.
Signature Guarantee
The above signature is hereby guaranteed by the following bank,
broker, dealer, credit union, savings association or other entity which is a
member in good standing of the Securities Transfer Association's Medallion
Program.
Authorized Signature:
---------------------------
Name:
-------------------------------------------
Name of Firm:
-----------------------------------
Address:
----------------------------------------
Area Code and Telephone Number:
-----------------
Dated
-----------------------
A-12