--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
EXHIBIT 4.4
DEPOSIT AGREEMENT
AMONG
TELE-COMMUNICATIONS, INC.
AND
AND
THE HOLDERS FROM TIME TO TIME OF
THE DEPOSITARY RECEIPTS DESCRIBED HEREIN
DATED AS OF , 199
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
TABLE OF CONTENTS
----------------
Section Heading Page
ARTICLE I
DEFINITIONS............................................................. 4
ARTICLE II
FORM OF RECEIPTS, DEPOSIT OF PREFERRED STOCK, EXECUTION AND DELIVERY,
TRANSFER AND SURRENDER OF RECEIPTS...................................... 5
2.1. Form and Transferability of Receipts........................... 5
2.2. Deposit of Preferred Stock, Execution and Delivery of Receipts
in Respect Thereof............................................. 6
2.3. Redemption of Preferred Stock.................................. 7
2.4. Transfer of Receipts........................................... 8
2.5. Combination and Split-ups of Receipts.......................... 8
2.6. Surrender of Receipts and Withdrawal of Preferred Stock........ 8
2.7. Limitations on Execution and Delivery, Transfer, Split-up,
Combination, Surrender and Exchange of Receipts................ 9
2.8. Lost Receipts, etc............................................. 9
2.9. Cancellation and Destruction of Surrendered Receipts........... 9
2.10. Conversion of Preferred Stock into Series A Stock.............. 9
ARTICLE III
CERTAIN OBLIGATIONS OF HOLDERS OF RECEIPTS AND THE COMPANY.............. 11
3.1. Filing Proofs, Certificates and Other Information.............. 11
3.2. Payment of Taxes or Other Governmental Charges................. 11
3.3. Representations and Warranties as to Preferred Stock........... 11
ARTICLE IV
THE PREFERRED STOCK, NOTICES............................................ 12
4.1. Cash Distributions............................................. 12
4.2. Distributions Other Than Cash.................................. 12
4.3. Subscription Rights, Preferences or Privileges................. 12
4.4. Notice of Dividends; Fixing of Record Date for Holders of
Receipts....................................................... 13
4.5. Voting Rights.................................................. 13
4.6. Changes Affecting Preferred Stock and Reclassifications,
Recapitalizations, etc......................................... 13
4.7. Inspection of Reports.......................................... 14
4.8. List of Receipt Holders........................................ 14
ARTICLE V
THE DEPOSITARY AND THE COMPANY.......................................... 14
5.1. Maintenance of Offices, Agencies, Transfer Books by the
Depositary, the Registrar...................................... 14
5.2. Prevention of or Delay in Performance by the Depositary, the
Depositary's Agents or the Company............................. 14
5.3. Obligations of the Depositary, the Depositary's Agents, and the
Company........................................................ 15
5.4. Resignation and Removal of the Depositary; Appointment of
Successor Depositary........................................... 16
5.5. Corporate Notices and Reports.................................. 16
5.6. Deposit of Preferred Stock by the Company...................... 16
5.7. Indemnification by the Company................................. 16
5.8. Fees, Charges and Expenses..................................... 17
2
Section Heading Page
ARTICLE VI
AMENDMENT AND TERMINATION................................................. 17
6.1. Amendment........................................................ 17
6.2. Termination...................................................... 17
ARTICLE VII
MISCELLANEOUS............................................................. 18
7.1. Counterparts..................................................... 18
7.2. Exclusive Benefits of Parties.................................... 18
7.3. Invalidity of Provisions......................................... 18
7.4. Notices.......................................................... 18
7.5. Depositary's Agents.............................................. 19
7.6. Holders of Receipts Are Parties.................................. 19
7.7. Governing Law.................................................... 19
7.8. Headings......................................................... 19
3
DEPOSIT AGREEMENT
DEPOSIT AGREEMENT dated as of , 199 , among TELE-COMMUNICATIONS, INC., a
Delaware corporation, (the "Company"), , as Depositary (including any
successor, the "Depositary"), and all holders from time to time of Depositary
Receipts executed and delivered hereunder.
WHEREAS, it is desired to provide, as hereinafter set forth in this Deposit
Agreement, for the deposit of up to shares of [title of preferred stock]
(the "Preferred Stock"), of the Company with the Depositary, as agent for the
beneficial owners of the Preferred Stock, for the purposes set forth in this
Deposit Agreement and for the execution and delivery hereunder of the Receipts
(as defined below) evidencing Depositary Shares (as defined below) in respect
of the Preferred Stock so deposited; and
WHEREAS, the Receipts are to be substantially in the form of the Depositary
Receipt annexed as Exhibit A, with appropriate insertions, modifications and
omissions, as hereinafter provided in this Deposit Agreement;
NOW, THEREFORE, in consideration of the premises contained herein, and for
other good and valuable consideration, the receipt and sufficiency of which
are hereby acknowledged, the parties hereto hereby agree as follows:
ARTICLE I
Definitions
The following definitions shall apply to the respective terms (in the
singular and plural forms of such terms) used in this Agreement and the
Depositary Receipts:
"Business Day" shall mean any day other than a Saturday, Sunday or a day on
which banking institutions in The City of New York, New York or Hartford,
Connecticut are authorized or obligated by law or executive order to close.
"Certificate of Designations" shall mean the Certificate of Designations,
Preferences, Rights and Limitations of the [title of preferred stock] par
value $0.01 per share, as filed with the Secretary of State of the State of
Delaware, establishing and setting forth the designations, rights, powers,
qualifications, limitations and restrictions of the Preferred Stock.
"Certificate of Incorporation" shall mean the Restated Certificate of
Incorporation, as amended from time to time, of the Company.
"Company" shall mean Tele-Communications, Inc., a Delaware corporation, and
its successors.
"Deposit Agreement" shall mean this agreement, as the same may be amended,
modified or supplemented from time to time.
"Depositary" shall mean , as Depositary hereunder, and any successor
as Depositary hereunder.
"Depositary's Office" shall mean the office of the Depositary in the city of
, Connecticut, at which at any particular time its business in respect of
matters governed by this Deposit Agreement shall be administered, which at the
date of this Deposit Agreement is located at , , .
"Depositary Share" shall mean an interest in of a share of the
Preferred Stock deposited with the Depositary hereunder, as evidenced by the
Receipts executed and delivered hereunder, and the same
4
proportional interest in any and all other property received by the Depositary
in respect of such share of Preferred Stock and held under this Deposit
Agreement. Subject to the terms of this Deposit Agreement, each owner of a
Depositary Share is entitled, proportionately, to all the rights, preferences
and privileges of the Preferred Stock represented by such Depositary Share,
including the dividend, voting and liquidation rights contained in the
Certificate of Designations, and to the benefits of all obligations of the
Company under the Certificate of Designations.
"Depositary's Agent" shall mean an agent appointed by the Depositary as
provided, and for the purposes specified, in Section 7.5.
"Preferred Stock" shall mean [title of preferred stock] par value $0.01 per
share, of the Company.
"Receipt" or "Depositary Receipt" shall mean a Depositary Receipt executed
and delivered hereunder to evidence one or more Depositary Shares, whether in
definitive or temporary form.
"Record holder" as applied to a Receipt shall mean the person in whose name
a Receipt is registered on the books maintained by the Depositary for such
purpose.
"Registrar" shall mean any bank or trust company appointed to register
Receipts as herein provided.
"Securities Act" shall mean the Securities Act of 1933, as amended.
"Series A Stock" shall mean the Tele-Communications, Inc. Series A TCI Group
Common Stock, par value $1.00 per share, of the Company.
ARTICLE II
Form of Receipts, Deposit of Preferred Stock,
Execution and Delivery, Transfer and Surrender of Receipts
Section 2.1. Form and Transferability of Receipts. Definitive Receipts shall
be engraved or printed or lithographed with steel-engraved borders and shall
be substantially in the form set forth in Exhibit A annexed to this Deposit
Agreement, with appropriate insertions, modifications and omissions, as
hereinafter provided. Pending preparation of definitive Receipts, the
Depositary, upon the written order of the Company or any holder of Preferred
Stock, as the case may be, delivered for deposit in compliance with Section
2.2, shall execute and deliver temporary Receipts which are printed,
lithographed, typewritten, mimeographed or otherwise substantially of the
tenor of the definitive Receipts in lieu of which they are executed and
delivered and with such appropriate insertions, omissions, substitutions and
other variations as the persons executing such Receipts may determine, as
evidenced by their execution of such Receipts. If temporary Receipts are
executed and delivered, the Company and the Depositary will cause definitive
Receipts to be prepared without unreasonable delay. After the preparation of
definitive Receipts, the temporary Receipts shall be exchangeable for
definitive Receipts upon surrender of the temporary Receipts at an office
described in the second to last paragraph of Section 2.2, without charge to
the holder. Upon surrender for cancellation of any one or more temporary
Receipts, the Depositary shall execute and deliver in exchange therefor
definitive Receipts representing the same number of Depositary Shares as
represented by the surrendered temporary Receipt or Receipts. Such exchange
shall be made at the Company's expense and without any charge therefor. Until
so exchanged, the temporary Receipts shall in all respects be entitled to the
same benefits under this Agreement, and with respect to the Preferred Stock
deposited hereunder, as definitive Receipts.
Receipts shall be executed by the Depositary by the manual signature of a
duly authorized signatory of the Depositary; provided, however, that such
signature may be a facsimile if a Registrar (other than the Depositary)
5
shall have countersigned the Receipts by the manual signature of a duly
authorized signatory of the Registrar. No Receipt shall be entitled to any
benefits under this Deposit Agreement or be valid or obligatory for any
purpose unless it shall have been executed as provided in the preceding
sentence. The Depositary shall record on its books each Receipt executed as
provided above and delivered as hereinafter provided.
Except as the Depositary may otherwise determine, Receipts shall be in
denominations of any number of whole Depositary Shares. All receipts shall be
dated the date of their execution.
Receipts may be endorsed with or have incorporated in the text thereof such
legends or recitals or changes not inconsistent with the provisions of this
Deposit Agreement as may be required by the Depositary or required to comply
with any applicable law or regulation or with the rules and regulations of any
securities exchange upon which the Preferred Stock or the Depositary Shares
may be listed to conform with any usage with respect thereto, or to indicate
any special limitations or restrictions to which any particular receipts are
subject by reason of the date of issuance of the Preferred Stock or otherwise.
Ownership of any Receipt (and of the Depositary Shares evidenced by such
Receipt) that is properly endorsed or accompanied by a properly executed
instrument of transfer or endorsement, or other instrument satisfactory to the
Depositary, shall be transferable by delivery; provided, however, that until a
Receipt shall be transferred on the books of the Depositary as provided in
Section 2.4, the Depositary and the Company 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 or to any notice provided for
in this Deposit Agreement and for all other purposes.
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, the Company or any holder of Preferred Stock may deposit shares of
Preferred Stock under this Deposit Agreement by delivery to the Depositary of
a certificate or certificates for the shares of Preferred Stock to be
deposited, properly endorsed or accompanied by a properly executed instrument
of transfer or endorsement in form satisfactory to the Depositary, together
with (i) all such certifications as may be required by the Depositary in
accordance with the provisions of this Deposit Agreement and (ii) a written
order directing the Depositary to execute and deliver to or upon the written
order of the person or persons stated in such order a Receipt or Receipts for
the number of Depositary Shares representing such deposited Preferred Stock.
If required by the Depositary, Preferred Stock presented for deposit at any
time, whether or not the register of holders of Receipts is closed, shall also
be accompanied by an agreement or assignment, or other instrument satisfactory
to the Depositary, that 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 that any person in whose name the Preferred
Stock is or has been registered 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.
Upon receipt by the Depositary of a certificate or certificates for the
shares of Preferred Stock to be deposited hereunder, together with the other
documents specified above, the Depositary shall, as soon as transfer and
registration can be accomplished, present such certificates to the registrar
and transfer agent of the Preferred Stock for transfer and registration in the
name of the Depositary or its nominee of the shares of Preferred Stock being
deposited. Deposited Preferred Stock shall be held by the Depositary in an
account to be established by the Depositary at the Depositary's Office.
Upon receipt by the Depositary of a certificate or certificates for
Preferred Stock to be deposited hereunder, together with the other documents
specified above, the Depositary, subject to the terms and conditions of this
Deposit Agreement, shall execute and deliver to or upon the order of the
person or persons named in the written order delivered to the Depositary
referred to in the first paragraph of this Section 2.2 a Receipt or Receipts
for the number of whole Depositary Shares representing the Preferred Stock so
deposited and registered in such
6
name or names as may be requested by such person or persons. The Depositary
shall execute and deliver such Receipt or Receipts at the Depositary's Office,
except that, at the request, risk and expense of any person requesting such
delivery, such delivery may be made at such other place as may be designated
by such person. In each case, delivery will be made only upon payment by such
person to the Depositary of all taxes and other governmental charges and any
fees payable in connection with such deposit and the transfer of the deposited
Preferred Stock.
The Company shall deliver to the Depositary from time to time such
quantities of Receipts as the Depositary may request to enable the Depositary
to perform its obligations under this Deposit Agreement.
Section 2.3. Redemption of Preferred Stock. Whenever the Company shall elect
to redeem shares of Preferred Stock in accordance with the Certificate of
Designations it shall (unless otherwise agreed in writing with the Depositary)
give the Depositary in its capacity as Depositary notice of the date of such
proposed redemption of the Preferred Stock, which notice shall (i) be given
not less than Business Days prior to the date the Depositary is to mail
notice of the redemption to the record holders of Receipts, in the case of a
redemption of all outstanding Depositary Shares, and not less than calendar
days prior to the date the Depositary is to mail notice of the redemption to
the record holders of Receipts evidencing the Depositary Shares to be
redeemed, in the case of a partial redemption of outstanding Depositary
Shares, and (ii) be accompanied by a certificate from the Company stating that
such redemption of the Preferred Stock is in accordance with the provisions of
the Certificate of Designations. Such notice shall be in addition to the
notice required for redemption pursuant to the Certificate of Designations. On
the date of any such redemption of Preferred Stock, provided that the Company
shall then have deposited with the Depositary the redemption price of the
Preferred Stock to be redeemed, plus an amount sufficient to pay any accrued
and unpaid dividends thereon, the Depositary shall redeem the number of
Depositary Shares representing such redeemed Preferred Stock. Subject to the
penultimate sentence of this Paragraph, the Depositary, at the expense of the
Company, shall mail, first class postage prepaid, notice of the redemption of
Preferred Stock and the proposed simultaneous redemption of the Depositary
Shares representing the Preferred Stock held by the Depositary to be redeemed,
not less than and not more than days prior to the date fixed for
redemption of such Preferred Stock and Depositary Shares (the "Redemption
Date"), to the record holders of the Receipts evidencing the Depositary Shares
to be so redeemed, at the addresses of such holders as they appear on the
records of the Depositary; but neither failure to mail any such notice to one
or more such holders nor any defect in any notice to one or more such holders
shall affect the sufficiency of the proceedings for redemption as to other
holders. Each such notice shall state: (i) the Redemption Date; (ii) the
number of Depositary Shares to be redeemed and, if less than all the
Depositary Shares held by any such holder are to be redeemed, the number of
such Depositary Shares held by such holder to be so redeemed; (iii) the
redemption price, (iv) the place or places where Receipts evidencing
Depositary Shares are to be surrendered for payment of the redemption price
and (v) that dividends in respect of the shares of Preferred Stock represented
by the Depositary Shares to be redeemed will cease to accumulate from and
after such Redemption Date. Any such notices shall be mailed in the same
manner as notices of redemption of the Preferred Stock are required to be
mailed pursuant to section of the Certificate of Designations and published
in the same manner as notices of redemption of the Preferred Stock are
required to be published pursuant to said section, if so required. In case
fewer than all the outstanding Depositary Shares are to be redeemed, the
Depositary Shares to be redeemed shall be selected by lot or pro rata (as
nearly as may be) or by any other equitable method determined by the
Depositary to be consistent with the method determined by the Board of
Directors of the Company with respect to the Preferred Stock.
Notice having been mailed and published, at the expense of the Company, 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), the Depositary Shares called for redemption shall be
deemed no longer to be outstanding and all rights of the holders of Receipts
evidencing such Depositary Shares (except the right to receive the redemption
price) shall, to the extent of such Depositary Shares, cease and terminate.
Upon surrender in accordance with said notice of the Receipts evidencing such
Depositary Shares (properly endorsed or assigned for transfer, if the
Depositary shall
7
so require), such Depositary Shares shall be redeemed at a redemption price
per Depositary Share equal to one- of the redemption price paid for a
share of Preferred Stock pursuant to the Certificate of Designations. The
foregoing shall be subject further to the terms and conditions of the
Certificate of Designations.
If fewer than all of the Depositary Shares evidenced by a Receipt are called
for redemption, the Depositary will deliver to the holder of such Receipt upon
its surrender to the Depositary, together with the redemption price for the
Depositary Shares called for redemption, a new Receipt evidencing the
Depositary Shares evidenced by such prior Receipt and not called for
redemption.
The Depositary shall not be required (a) to execute and deliver, transfer or
exchange any receipts for a period beginning at the opening of business 15
days next preceding any selection of Depositary Shares and Preferred Stock to
be redeemed and ending at the close of business on the day of the mailing of
notice of redemption of Depositary Shares or (b) to transfer or exchange for
another Receipt any Receipt evidencing Depositary Shares called or being
called for redemption in whole or in part, except as provided in the third
paragraph of this Section 2.3.
Section 2.4. 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 Office
or such other office as the Depositary may designate for such purpose, by the
holder in person or by a duly authorized attorney, properly endorsed or
accompanied by a properly executed instrument of transfer or endorsement, or
other instrument satisfactory to the Depositary, together with evidence of the
payment of any transfer taxes as may be required by law. Upon such surrender,
the Depositary shall execute a new Receipt or Receipts and deliver the same to
or upon the order of the person or persons entitled thereto evidencing the
same aggregate number of Depositary Shares evidenced by the Receipt or
Receipts surrendered.
Section 2.5. Combination and Split-ups of Receipts. Upon surrender of a
Receipt or Receipts at the Depositary's Office or such other office as the
Depositary may designate for the purposes of effecting a split-up or
combination of Receipts, subject to the terms and conditions of this Deposit
Agreement, the Depositary shall execute and deliver a new Receipt or Receipts
in the authorized denominations requested evidencing the same aggregate number
of Depositary Shares evidenced by the Receipt or Receipts surrendered;
provided, however, that the Depositary shall not execute and deliver any
Receipt evidencing a fractional Depositary Share.
[Section 2.6. Surrender of Receipts and Withdrawal of Preferred Stock. Any
holder of a Receipt or Receipts may withdraw any or all of the Preferred Stock
(but only in whole shares of Preferred Stock) represented by the Depositary
Shares evidenced by such Receipts and all money and other property, if any,
represented by such Depositary Shares by surrendering such Receipt or
Receipts, properly endorsed or accompanied by a properly executed instrument
of transfer or endorsement, or other instrument satisfactory to the
Depositary, at the Depositary's Office or such other office as the Depositary
may designate for such withdrawals. After such surrender, without unreasonable
delay, the Depositary shall deliver to such holder, or to the person or
persons designated by such holder as hereinafter provided, the whole number of
shares of Preferred Stock and other property, if any, represented by the
Depositary Shares evidenced by the Receipt or Receipts so surrendered for
withdrawal. If the Receipt or Receipts delivered by the holder to the
Depositary in connection with such withdrawal shall evidence a number of
Depositary Shares in excess of the number of whole Depositary Shares
representing the whole number of shares of Preferred Stock to be withdrawn,
the Depositary shall at the same time, in addition to such whole number of
shares of Preferred Stock and such money and other property, if any, to be
withdrawn, deliver to such holder, or (subject to Section 2.4) upon his order,
a new Receipt or Receipts evidencing such excess number of whole Depositary
Shares. Delivery of the Preferred Stock and such money and other property
being withdrawn may be made by the delivery of such certificates, documents of
title, and other instruments as the Depositary may deem appropriate, which, if
required by the Depositary, shall be properly endorsed or accompanied by
proper instruments of transfer.
8
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 or endorsement in blank.
The Depositary shall deliver the Preferred Stock and the money and other
property, if any, represented by the Depositary Shares evidenced by Receipts
surrendered for withdrawal at the Depositary's Office, except that, at the
request, risk and expense of the holder surrendering such Receipt or Receipts
and for the account of the holder thereof, such delivery may be made at such
other place as may be designated by such holder.]
Section 2.7. Limitations on Execution and Delivery, Transfer, Split-up,
Combination, Surrender and Exchange of Receipts. As a condition precedent to
the execution and delivery, transfer, split-up, combination, surrender or
exchange of any Receipt, the Depositary, the Depositary's Agent or the Company
may require any or all of the following: (i) payment to it of a sum sufficient
for the payment (or, in the event that the Depositary or the Company shall
have made such payment, the reimbursement to it) of any tax or earlier
governmental charge with respect thereto (including any such tax or charge
with respect to the Preferred Stock being deposited or withdrawn or with
respect to [the Series A Stock or] other securities or property of the Company
being issued upon [conversion or] redemption); (ii) the production of proof
satisfactory to it as to the identity and genuineness of any signature; and
(iii) compliance with such regulations, if any, as the Depositary or the
Company may establish not inconsistent with the provisions of the Deposit
Agreement.
The deposit of Preferred Stock may be refused, the delivery of Receipts
against Preferred Stock may be suspended, the transfer of Receipts may be
refused, and the transfer, split-up, combination, surrender or exchange of
outstanding Receipts may be suspended (i) during any period when the register
of holders of Receipts is closed, (ii) if any such action is deemed necessary
or advisable by the Depositary, any of the Depositary's Agents or the Company
at any time or from time to time because of any requirement of law or of any
government or governmental body or commission, or under any provision of this
Deposit Agreement, or (iii) except for the transfer of Receipts, with the
approval of the Company, for any other reason.
Section 2.8. Lost Receipts, etc. In case any Receipt shall be mutilated or
destroyed or lost or stolen, the Depositary in its discretion may execute and
deliver a Receipt of like form and tenor in exchange and substitution for such
mutilated Receipt or in lieu of and in substitution for such destroyed, lost
or stolen Receipt; provided, however, that the holder thereof provides the
Depositary with (i) evidence satisfactory to the Depositary of such
destruction, loss or theft of such Receipt, of the authenticity thereof and of
his ownership thereof, (ii) reasonable indemnification satisfactory to the
Depositary and (iii) payment of any expense (including fees, charges and
expenses of the Depositary) in connection with such execution and delivery.
Section 2.9. Cancellation and Destruction of Surrendered Receipts. All
Receipts surrendered to the Depositary or any Depositary's Agent shall be
cancelled by the Depositary. Except as prohibited by applicable law or
regulation, the Depositary is authorized to destroy such Receipts so
cancelled.
Section 2.10. Conversion of Preferred Stock into Series a Stock. Receipts
may be surrendered with written instructions to the Depositary to instruct the
Company to cause the conversion of any specified number of shares, or
fractions of shares, of Preferred Stock represented by whole Depositary Shares
evidenced by such Receipts into whole shares of Series A Stock and cash for
any fractional share of Series A Stock at the conversion price then in effect
for the Preferred Stock pursuant to the Certificate of Designations as such
conversion price may be adjusted by the Company from time to time as provided
in the Certificate of Designations. Subject to the terms and conditions of
this Deposit Agreement and the Certificate of Designations, a holder of a
Receipt or Receipts evidencing Depositary Shares representing whole or
fractional shares of Preferred Stock may surrender such Receipt or Receipts at
the Depositary's Office or at such office or to such Depositary's Agent, as
the Depositary may designate for such purpose, together with a notice of
conversion duly
9
completed and executed, thereby directing the Depositary to instruct the
Company to cause the conversion of the number of shares, or fractions of
shares, of underlying Preferred Stock specified in such notice of conversion
into shares of Series A Stock, and an assignment of such Receipt or Receipts
to the Company or in blank, duly completed and executed. To the extent that a
holder delivers to the Depositary for conversion a Receipt or Receipts which
in the aggregate are convertible into less than one whole share of Series A
Stock, the holder shall receive payment in cash in lieu of such fractional
share of Series A Stock otherwise issuable, if more than one Receipt shall be
delivered for conversion at one time by the same holder, the number of whole
shares of Series A Stock issuable upon conversion thereof shall be computed on
the basis of the aggregate number of Depositary Shares represented by the
Receipts so delivered.
Upon receipt by the Depositary of a Receipt or Receipts, together with
notice of conversion, duly completed and executed, directing the Depositary to
instruct the Company to cause the conversion of a specified number of shares
of Preferred Stock, and an assignment of such Receipt or Receipts to the
Company or in blank, duly completed and executed, the Depositary shall
instruct the Company (i) to cause the conversion of the number of shares, or
fractions of shares, of Preferred Stock represented by the Depositary Shares
evidenced by the Receipts so surrendered for conversion as specified in the
written notice to the Depositary and (ii) to cause the delivery to the holders
of such Receipts of a certificate or certificates evidencing the number of
whole shares of Series A Stock and the amount of money, if any, to be
delivered to the holders of Receipts surrendered for conversion in lieu of
fractional shares of Series A Stock otherwise issuable. The Company shall as
promptly as practicable after receipt thereof cause the delivery of (i) a
certificate or certificates evidencing the number of whole shares of Series A
Stock into which the Preferred Stock represented by the Depositary Shares
evidenced by such Receipt or Receipts has been converted, and (ii) any money
or other property to which the holder is entitled by reason of such
conversion. Upon such conversion, the Depositary (i) shall deliver to the
holder a Receipt evidencing the number of Depositary Shares, if any, that
equals that excess of the number of Depositary Shares evidenced by the
surrendered Receipt over the number of Depositary Shares evidenced by such
Receipt that has been so converted, (ii) shall cancel the Depositary Shares
evidenced by Receipts surrendered for conversion and (iii) shall deliver to
the Company or its transfer agent for the Preferred Stock for cancellation the
shares of Preferred Stock represented by the Depositary Shares evidenced by
the Receipts so surrendered and so converted. Upon the delivery of the shares
of Preferred Stock to be cancelled due to such conversion by the Depositary to
the Company, the Company shall deliver to the Depositary a certificate or
certificates evidencing the number of shares, or fractions of shares, of
Preferred Stock, if any, that equals the excess of the number of shares of
Preferred Stock evidenced by the surrendered certificate over the number of
shares of Preferred Stock evidenced by that certificate that has been so
converted.
If Preferred Stock shall be called by the Company for redemption, the
Depositary Shares representing such Stock may be converted into Series A Stock
as provided in this Deposit Agreement until, but not after, the close of
business on the Redemption Date unless the Company shall fail to deposit with
the Depositary the amounts required to redeem the Preferred Stock held by the
Depositary, in which case the Depositary Shares representing such Preferred
Stock may continue to be converted into Series A Stock until, but not after,
the close of business on the date on which the Company deposits with the
Depositary such amounts as are required by the Certificate of Designations to
make full payment of the amounts payable upon such redemption. Upon receipt by
the Depositary of a Receipt or Receipts, together with a properly completed
and executed notice of conversion, representing any Preferred Stock called for
redemption, the shares of Preferred Stock held by the Depositary represented
by such Depositary Shares for which conversion is requested shall be deemed to
have been received by the Company for conversion as of immediately prior to
the close of business on the date of such receipt by the Depositary.
Upon the conversion of any share of Preferred Stock for which a request for
conversion has been made by the holder of Depositary Shares representing such
share, all dividends in respect of such Depositary Shares shall cease to
accrue, such Depositary Shares shall be deemed no longer outstanding, all
rights of the holder of the Receipt with respect to such Depositary Shares
(except the right to receive the Series A Stock, any cash payable with respect
to any fractional shares of Series A Stock as provided herein and any cash
payable on account of
10
accrued dividends as provided herein and any Receipts evidencing Depositary
Shares not so converted) shall terminate, and the Receipt evidencing such
Depositary Shares shall be cancelled in accordance with Section 2.9 hereof.
No fractional shares of Series A Stock shall be issuable upon conversion of
Preferred Stock underlying the Depositary Shares. If any holder of Receipts
surrendered with instructions to the Depositary for conversion of the
underlying Preferred Stock would be entitled to a fractional share of Series A
Stock upon such conversion, the Company shall cause to be delivered to such
holder an amount in cash for such fractional share as provided in the
Certificate of Designations.]
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
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, as the case may be, may withhold or
delay the delivery of any Receipt, the transfer, redemption, conversion, or
exchange of any Receipt, the withdrawal of the Preferred Stock or money or
other property, if any, represented by the Depositary Shares evidenced by any
Receipt or the distribution of any dividend or other distribution until such
proof or other information is filed, such certificates are executed or such
representations and warranties are made.
Section 3.2. 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, the Depositary Shares evidenced by
such Receipt, the Preferred Stock (or fractional interest therein) represented
by such Depositary Shares or any transaction referred to in Section 4.6, such
tax (including transfer, issuance or acquisition taxes, if any) or
governmental charge shall be payable by the holder of such Receipt. Until such
payment is made, transfer, redemption, conversion, or exchange of any Receipt
or any withdrawal of the Preferred Stock or money or other property, if any,
represented by the Depositary Shares evidenced by such Receipt may be refused,
any dividend or other distribution with respect to such Receipt or the
Preferred Stock represented by the Depositary Shares evidenced by such receipt
may be withheld and any part or all of the Preferred Stock or other property
represented by the Depositary Shares evidenced by such Receipt may be sold for
the account of the holder thereof (after attempting by reasonable means to
notify such holder prior to such sale). Any dividend or other distribution so
withheld and the proceeds of any such sale may be applied to any payment of
such tax or other governmental charge, the holder of such Receipt remaining
liable for any deficiency. The Depositary shall act as the withholding agent
for any payments, distributions, and exchanges made with respect to the
Depositary Shares and Receipts, and the Preferred Stock[, Series A Stock] or
other securities or assets represented thereby (collectively, the
"Securities"). The Depositary shall be responsible with respect to the
Securities for the timely (i) collection and deposit of any required
withholding or backup withholding tax, and (ii) filing of any information
returns or other documents with federal (and other applicable) taxing
authorities. In the event the Depositary is required to pay any such amounts,
the Company shall reimburse the Depositary for payment thereof upon the
request of the Depositary and the Depositary shall, upon the Company's request
and as instructed by the Company, pursue its rights against such holder at the
Company's expense.
Section 3.3. Representations and Warranties as to Preferred Stock. Each
person depositing Preferred Stock under this Deposit Agreement shall be deemed
thereby to represent and warrant that such Preferred Stock and each
certificate therefor are valid and that the person making such deposit is duly
authorized to do so. Such representations and warranties shall survive the
deposit of the Preferred Stock and the execution and delivery of Receipts.
11
ARTICLE IV
The Preferred Stock, Notices
Section 4.1. Cash Distributions. Whenever the Depositary shall receive any
cash dividend or other cash distribution on the 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 portions of
such sum as are, as nearly as practicable, proportionate 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 from any cash dividend or other cash distribution in
respect of the Preferred Stock an amount on account of taxes or as otherwise
required by law, regulation or court order, 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 other than cash on the 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 portions of the
securities or property received by it as are, as nearly as practicable,
proportionate to the respective numbers of Depositary Shares evidenced by the
Receipts held by such holders, in any manner that the Depositary and the
Company may deem equitable and practicable for accomplishing such
distribution. If, in the opinion of the Company after consultation with the
Depositary, such distribution cannot be made proportionately among such record
holders, or if for any other reason (including any requirement that the
Company or the Depositary withhold an amount on account of taxes or as
otherwise required by law, regulation or court order) the Depositary deems,
after consultation with the Company, such distribution not to be feasible, the
Depositary may, with the approval of the Company and subject to applicable
provisions of law, adopt such method as it deems equitable and practicable for
the purpose of effecting such distribution, including the sale (at public or
private sale) of the securities or property thus received, or any part
thereof, at such place or places and upon such terms as it may deem proper.
The net proceeds of any such sale shall, subject to Section 3.2, be
distributed or made available for distribution, as the case may be, by the
Depositary to record holders of Receipts as provided by Section 4.1 in the
case of a distribution received in cash.
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 registered on the books of the Company any rights,
preferences or privileges to subscribe for or to purchase any securities or
any rights, preferences or privileges of any other nature, such rights,
preferences or privileges shall in each such instance be made available by the
Depositary to the record holders of Receipts if the Company so directs in such
manner as the Company shall instruct (including by the execution and delivery
to such record holders of warrants representing such rights, preferences or
privileges); provided, however, that (a) if at the time of issue or offer of
any such rights, preferences or privileges the Company determines that it is
not lawful or feasible to make such rights, preferences or privileges
available to some or all holders of Receipts (by the execution and delivery of
warrants or otherwise) or (b) if and to the extent instructed by holders of
Receipts who do not desire to exercise such rights, preferences or privileges,
the Depositary shall then, if so instructed by the Company, and if applicable
laws and the terms of such rights, preferences or privileges so permit, sell
such rights, preferences or privileges of such holders at public or private
sale, at such place or places and upon such terms as it may deem proper, the
net proceeds of any such sale shall, subject to Section 3.2, be distributed by
the Depositary to the record holders of Receipts entitled thereto in
accordance with the withholding and fractional amount provisions of Section
4.1.
If registration under the Securities Act of the securities to which any
rights, preferences or privileges relate is required in order for holders of
Receipts to be offered or sold such securities, the Company shall promptly
file a registration statement pursuant to the Securities Act with respect to
such securities and use its best efforts and
12
take all steps available to it to cause such registration statement to become
effective sufficiently in advance of the expiration of such rights,
preferences or privileges to enable such holders to exercise such rights,
preferences or privileges. In no event shall the Depositary make available to
the holders of Receipts any right, preference or privilege to subscribe for or
to purchase any securities unless and until notified by the Company in writing
that such registration statement has become effective or that the offering and
sale of such securities to such holders are exempt from registration under the
provisions of the Securities Act.
If any other action under the law 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 any rights,
preferences or privileges shall at any time be offered, with respect to the
Preferred Stock, or whenever the Depositary shall receive notice of (i) any
meeting at which holders of Preferred Stock are entitled to vote or of which
holders of Preferred Stock are entitled to notice or (ii) any election on the
part of the Company to call for redemption 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 (i) 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 to receive notice of
such meeting or (ii) whose Depositary Shares are to be so redeemed.
Section 4.5. Voting Rights. Upon issuance of notice of any meeting at which
the holders of Preferred Stock are entitled to vote, the Company shall direct
the Depositary, as soon as practicable thereafter, to mail to the record
holders of Receipts a notice, which shall be provided by the Company and which
shall contain (i) such information as is contained in such notice of meeting
(and, if applicable, such information as is provided together with such notice
of meeting), (ii) a statement that the holders of Receipts at the close of
business on a specified record date fixed pursuant to Section 4.4 will be
entitled, subject to any applicable provision of law, the Certificate of
Incorporation or the Certificate of Designations, 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 (iii) 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. The
Company hereby agrees to take all reasonable action that may be deemed
necessary by the Depositary in order to enable the Depositary to vote such
Preferred Stock or cause such Preferred Stock to be voted. In the absence of
specific instructions from the holder of a Receipt, the Depositary will
abstain from voting to the extent of the Preferred Stock represented by the
Depositary Shares evidenced by such Receipt. After aggregating all voting
Depositary Shares, the Depositary will disregard for voting purposes any
fractional share of Preferred Stock remaining.
Section 4.6. Changes Affecting Preferred Stock and Reclassifications,
Recapitalizations, etc. Upon any split-up, consolidation or any other
reclassification of Preferred Stock, or upon any recapitalization,
reorganization, merger, amalgamation or consolidation affecting the Company or
to which it is a party or sale of all or substantially all of the Company's
assets, the Depositary shall, upon the instructions of the Company, treat any
shares of stock or other securities or property (including cash) that shall be
received by the Depositary in exchange for or upon conversion of or in respect
of the Preferred Stock as new deposited property under this Deposit Agreement,
and Receipts then outstanding shall thenceforth represent the proportionate
interests of holders thereof in the new deposited shares of stock, other
securities or other property so received in exchange
13
for or upon conversion or in respect of such Preferred Stock. In any such case
the Depositary may, in its discretion, with the approval of the Company,
execute and deliver additional Receipts, or may call for the surrender of all
outstanding Receipts to be exchanged for new Receipts specifically describing
such new deposited shares, other securities or other property.
Section 4.7. Inspection of Reports. The Depositary shall make available for
inspection by holders of Receipts at the Depositary's Office and at such other
places as it may from time to time deem advisable during normal business hours
any reports and communications received from the Company that are both
received by the Depositary as the holder of Preferred Stock and made generally
available to the holders of Preferred Stock by the Company.
Section 4.8. List of Receipt Holders. Promptly upon request from time to
time by the Company and at the Company's expense, the Depositary shall furnish
to it a list, as of a recent date, of the names, addresses and holdings of
Depositary Shares of all persons in whose names Receipts are registered on the
books of the Depositary.
ARTICLE V
The Depositary and the Company
Section 5.1. Maintenance of Offices, Agencies, Transfer Books by the
Depositary, the Registrar. Upon execution of this Deposit Agreement in
accordance with its terms, the Depositary shall maintain (i) at the
Depositary's Office, facilities for the execution and delivery, transfer,
surrender and exchange, split-up and combination of Receipts and deposit and
withdrawal of Preferred Stock and (ii) at the offices of the Depositary's
Agents, if any, facilities for the delivery, transfer, surrender and exchange,
split-up, combination and redemption of Receipts and deposit and withdrawal of
Preferred Stock, all in accordance with the provisions of this Deposit
Agreement.
The Depositary shall keep books at the Depositary's Office for the
registration and transfer of Receipts, which books during normal business
hours shall be open for inspection by the record holders of Receipts, as
provided by applicable law, and by the Company. The Depositary shall consult
with the Company upon receipt of any request for inspection. The Depositary
may close such books, at any time or from time to time, when deemed 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 listed on the Nasdaq
National Market, the Depositary may, with the approval of the Company, 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, such
Depositary Shares or such Preferred Stock are listed on one or more other
stock exchanges, the Company will, with the assistance or the Depositary,
arrange such facilities for the delivery, transfer, surrender and exchange of
such Receipts, such Depositary Shares or Preferred Stock as may be required by
law or applicable stock exchange regulations.
Section 5.2. Prevention of 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 any Depositary's
Agent, by reason of any provision, present or future, of the Certificate of
Incorporation or the Certificate of Designations or, in the case of the
Company, the Depositary or any Depositary's Agent, 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
14
that the terms of this 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 that 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 or any Receipt to holders of Receipts other than that each of them
agrees to use 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 the Preferred Stock, Depositary Shares,
Receipts [or Series A Stock] that in its opinion may involve it in expense or
liability, unless indemnity satisfactory to it against all expense and
liability be furnished as often as may be required.
Neither the Depositary nor any Depositary's Agent nor the 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, its parent, affiliates, subsidiaries, officers, directors or
employees and any Depositary's Agent may own, buy, sell or deal in any class
of securities of the Company and its affiliates and Receipts or Depositary
Shares, or become pecuniarily interested in any transaction in which the
Company or its officers may be interested, or contract with or lend money to
the Company or any of its affiliates or officers, or otherwise act fully or as
freely as if it were not the Depositary or the Depositary's Agent hereunder.
The Depositary may also act as transfer agent or registrar of any of the
securities of the Company and its affiliates.
It is intended that neither the Depositary nor any Depositary's Agent shall
be deemed to be an "issuer" of securities under the federal securities laws or
applicable state securities laws, it being expressly understood and agreed
that the Depositary and any Depositary's Agent are acting only in a
ministerial capacity as Depositary for the Preferred Stock; provided, however,
that the Depositary agrees to comply with all information reporting and
withholding requirements applicable to it under law or this Deposit Agreement
in its capacity as Depositary.
The Depositary assumes no responsibility for the correctness of the
description that appears in the Receipts, which can be taken as a statement of
the Company summarizing certain provisions of this Deposit Agreement.
Notwithstanding any other provision herein or in the Receipts, the Depositary
makes no warranties or representations as to the validity, genuineness or
sufficiency of any Preferred Stock at any time deposited with the Depositary
hereunder or of the Depositary Shares, as to the validity or sufficiency of
this Deposit Agreement, as to the value of the Depositary Shares, or as to any
right, title or interest of the record holders of Receipts in and to the
Depositary Shares, except that the Depositary hereby represents and warrants
as follows: (i) the Depositary has been duly organized and is validly existing
and in good standing under the laws of the United States with full power,
authority and legal right under such laws to execute, deliver and carry out
the terms of this Deposit Agreement; (ii) this Deposit Agreement has been duly
authorized, executed and delivered by the Depositary; and (iii) this Deposit
Agreement constitutes a valid and binding obligation of the Depositary,
enforceable against the Depositary in accordance with its terms, except as
enforcement thereof may be limited by bankruptcy, insolvency, reorganization
or other similar laws affecting enforcement of creditors rights generally and
except as enforcement thereof is subject to general principles of equity
(regardless of whether enforcement is considered in a proceeding in equity or
at law). The Depositary shall not be accountable for the use or application by
the Company of the Depositary Shares or the Receipts or the proceeds of the
sale thereof.
15
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 45 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, or an affiliate of a bank or trust
company having its principal office in the United States of America and having
a combined capital and surplus of at least $50,000,000. If a successor
depositary shall not have been appointed in 45 days, the resigning Depositary
may petition a court of competent jurisdiction to appoint a successor
depositary. Every successor depositary shall execute and deliver to its
predecessor and to 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 Preferred 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 and such
other records respecting the Receipts, the Depositary Shares and the Preferred
Stock as the successor shall require in order to perform its duties. 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, or to which the Depositary transfers all or
substantially all of its corporate trust business, shall be the successor of
such Depositary without the execution or filing of any document or any further
act. Such successor depositary may execute the Receipts either in the name of
the predecessor depositary or in the name of the successor depositary.
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, and as directed by the Company transmit to the record holders of
Receipts, in each case at the most recent address recorded in the Depositary's
books, copies of all notices and reports (including financial statements)
required by law, by the rules of any national securities exchange or national
market system upon which the Preferred Stock, the Depositary Shares or the
Receipts are listed, or by the Certificate of Incorporation and the
Certificate of Designations 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 record 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. 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 and no registration statement is at such time
in effect as to such Preferred Stock.
Section 5.7. Indemnification by the Company. The Company shall indemnify
Depositary, any Depositary's Agent and any Registrar for, and hold each of
them harmless against, any loss, liability or expense (including reasonable
attorneys' fees) incurred without gross negligence or intentional misconduct
on the part of any such person, arising out of or in connection with this
Deposit Agreement and the Receipts, including the costs and expenses of any of
its duties under this Deposit Agreement or the Receipts. Anything in this
Agreement to the contrary notwithstanding, in no event shall Depositary, any
Depositary's Agent or Registrar be liable for
16
special, indirect or consequential loss or damage of any kind whatsoever
(including but not limited to lost profits) even if Depositary, any
Depositary's Agent or Registrar has been advised of the likelihood of such
loss or damage and regardless of the form of the action. The obligations of
the Company to Depositary, any Depositary's Agent or Registrar shall survive
the termination of this Agreement.
Section 5.8. Fees, Charges and Expenses. No fees, charges and expenses of
the Depositary or any Depositary's Agent hereunder or of any Registrar shall
be payable by any person other than the Company, except for any taxes and
other governmental charges and except as provided in this Deposit Agreement.
If the Depositary incurs fees, charges or expenses for which it is not
otherwise liable hereunder at the election of a holder of a Receipt or other
person, such holder or other person will be liable for such fees, charges and
expenses. All other fees, charges and expenses of the Depositary and any
Depositary's Agent hereunder 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 from time to time upon
consultation and agreement between the Depositary and the Company as to the
amount and nature of such fees, charges and expenses.
ARTICLE VI
Amendment and Termination
Section 6.1. Amendment. The form of the Receipts and any provisions of this
Deposit Agreement may at any time and from time to time be amended by
agreement between the Company and the Depositary in any respect that they may
deem necessary or desirable. Any amendment that shall impose any fees, taxes
or charges payable by holders of Receipts (other than taxes and other
governmental charges, fees and other expenses provided for herein or in the
Receipts), or that 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. Every holder of an
outstanding Receipt at the time any such amendment becomes effective shall be
deemed, by continuing to hold such Receipt, to consent and agree to such
amendment and to be bound by this Deposit Agreement as amended thereby. In no
event shall any amendment impair the right, subject to the provisions of
Sections 2.3, 2.6, 2.7 and 2.10 and Article III, of any owner of any
Depositary Shares to surrender the Receipt evidencing such Depositary Shares
with instructions to the Depositary to deliver to the holder the Preferred
Stock and all money and other property, if any, represented thereby, or to
cause the conversion of the underlying Preferred Stock into Series A Stock and
cash for any fractional share amount, except in order to comply with mandatory
provisions of applicable law. The Depositary shall sign any amendment
authorized pursuant to this Section 6.1 if the amendment does not adversely
affect the rights, duties, liabilities or immunities of the Depositary. If it
does, the Depositary may but need not sign it. In signing such amendment the
Depositary shall be entitled to receive indemnity reasonably satisfactory to
it and to receive, and shall be fully protected in relying upon, an opinion of
counsel stating that such amendment is permitted by this Agreement, that all
conditions precedent, if any, provided for in this Agreement relating to the
proposed amendment have been complied with, and that such amendment complies
with all applicable laws.
Section 6.2. Termination. Whenever so directed by the Company upon at least
five Business Days' prior notice, the Depositary will terminate this Deposit
Agreement, provided, that notice of such termination has been given 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
17
further acts under this Deposit Agreement, except as hereinafter provided in
this paragraph and except that the Depositary shall continue to collect
dividends and other distributions pertaining to Preferred Stock and shall
continue to deliver the Preferred Stock and any money and other property
represented by Receipts, without liability for interest thereon, upon
surrender thereof by the holders thereof. At any time after the expiration of
two years from the date of termination, the Depositary may, subject to
applicable provisions of law, sell Preferred Stock then held hereunder at
public or private sale, at such place or places and upon such terms as it
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 that 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 obligations under this
Deposit Agreement except for its obligations to the Depositary, any Depositary
Agent and any Registrar under Sections 5.7 and 5.8. In the event this Deposit
Agreement is terminated and a sufficient number of shares of Preferred Stock
remain outstanding, the Company hereby agrees to use its best efforts to cause
the shares of Preferred Stock to be split to 1 (so that each Depositary
Share then represents one share of Preferred Stock) and to have the Preferred
Stock included for quotation on the Nasdaq National Market (unless the holders
of a majority of the outstanding shares of Preferred Stock shall consent to
the Company not effecting such listing).
ARTICLE VII
Miscellaneous
Section 7.1. Counterparts. This Deposit Agreement may be executed by the
Company and the Depositary in separate counterparts, each of which
counterpart, when so executed and delivered, shall be deemed an original, but
all such counterparts taken together shall constitute one and the same
instrument. Delivery of an executed counterpart of a signature page to this
Deposit Agreement by facsimile transmission shall be effective as delivery of
a manually executed counterpart of this Deposit Agreement. Copies of this
Deposit Agreement shall be filed with the Depositary and each Depositary's
Agent, if any, and shall be open to inspection during business hours at the
Depositary's 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 notices to be given to the Company hereunder or
under the Receipts shall be in writing and shall be deemed to have been duly
given if personally delivered or sent by first class mail, postage prepaid or
by facsimile transmission confirmed by letter, addressed to the Company at
Terrace Tower II, ββββ βββ βββββββ, βββββββββ, ββββββββ βββββ-ββββ, Attention:
General Counsel, or at any other place to which the Company may have
transferred its principal executive office.
Any notices to be given to the Depositary hereunder or under the Receipts
shall be in writing and shall be deemed to have been duly given if personally
delivered or sent by first class mail, postage prepaid, or by telegram or
telex or telecopier confirmed by letter, addressed to the Depositary at the
Depositary's Office.
Any notices given to any record holder of a Receipt hereunder or under the
Receipts shall be in writing and shall be deemed to have been duly given if
personally delivered or sent by first class mail, postage prepaid, or
18
by telegram or telex or telecopier confirmed by letter, addressed to such
record holder at the most recent address of such record holder as it appears
on the books of the Depositary or, if such holder shall have timely 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.
Delivery of a notice sent by mail, or by telegram or telex or telecopier,
shall be deemed to be effected at the time when a duly addressed letter
containing the same (or a duly addressed letter confirming an earlier notice
in the case of a facsimile transmission, telegram or telex) is deposited,
postage prepaid, in a post office letter box. The Depositary or the Company
may, however, act upon any facsimile transmission received by it from the
other or from any holder of a Receipt, notwithstanding that such facsimile
transmission shall not subsequently be confirmed by letter as aforesaid.
Delivery of a notice delivered personally shall be deemed to be effected on
the date of delivery (or the date delivery is refused by the addressee upon
presentation).
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 and vary or terminate the appointment of such Depositary's
Agents. The Depositary will promptly notify the Company of any such action.
Section 7.6. Holders of Receipts Are Parties. Notwithstanding that holders
of Receipts have not executed and delivered this Deposit Agreement or any
counterpart thereof, the holders of Receipts from time to time shall be deemed
to be parties to this Deposit Agreement and shall be bound by all of the terms
and conditions hereof and of the Receipts by acceptance of delivery of
Receipts.
Section 7.7. Governing Law. This 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 law of the State of New
York without giving effect to principles of conflict of laws.
Section 7.8. Headings. The headings of articles and sections in this Deposit
Agreement and in the form of the 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 the Receipts or to have any bearing upon the meaning
or interpretation of any provision contained herein or in the Receipts.
IN WITNESS WHEREOF, Tele-Communications, Inc. and 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 executed and delivered in accordance with the terms
hereof.
Tele-Communications, Inc.
By: _________________________________
Name:
Title:
_____________________________________
as Depositary,
By: _________________________________
Name:
Title:
19
EXHIBIT A
DEPOSITARY RECEIPT FOR DEPOSITARY SHARES, EACH REPRESENTING OF A SHARE OF
[TITLE OF UNDERLYING PREFERRED STOCK] PAR VALUE $0.01 PER SHARE
OF
TELE-COMMUNICATIONS, INC.
(INCORPORATED UNDER THE LAWS OF THE STATE OF DELAWARE)
No.
DEPOSITARY SHARES
CUSIP
, as Depositary (the "Depositary"), hereby certifies that is
the registered owner of Depositary Shares (the "Depositary Shares"),
each Depositary Share representing one-hundredth of a share of [title of
underlying preferred stock], par value $0.01 per share (the "Preferred
Stock"), of Tele-Communications, Inc., a corporation duly organized and
existing under the laws of the State of Delaware (the "Company"), and the same
proportionate interest in any and all other property received by the
Depositary in respect of such shares of Preferred Stock and held by the
Depositary under the Deposit Agreement (as defined below). Subject to the
terms of the Deposit Agreement, each owner of a Depositary Share is entitled,
proportionately, to all the rights, preferences and privileges of the
Preferred Stock represented thereby, including the dividend, voting,
[conversion,] liquidation and other rights contained in the Certificate of
Designations, establishing the rights, preferences, privileges and limitations
of the Preferred Stock (the "Certificate of Designations"), copies of which
are on file at the office of the Depositary at which at any particular time
its business in respect of matters governed by the Deposit Agreement shall be
administered, which at the time of the execution of the Deposit Agreement is
located at , , (the "Depositary's Office").
THE DEPOSITARY IS NOT RESPONSIBLE FOR THE VALIDITY OF ANY DEPOSITED STOCK.
THE DEPOSITARY ASSUMES NO RESPONSIBILITY FOR THE CORRECTNESS OF THE
DESCRIPTION SET FORTH IN THIS RECEIPT, WHICH CAN BE TAKEN AS A STATEMENT OF
THE COMPANY SUMMARIZING CERTAIN PROVISIONS OF THE DEPOSIT AGREEMENT. UNLESS
EXPRESSLY SET FORTH IN THE DEPOSIT AGREEMENT, THE DEPOSITARY MAKES NO
WARRANTIES OR REPRESENTATIONS AS TO THE VALIDITY, GENUINENESS OR SUFFICIENCY
OF ANY STOCK AT ANY TIME DEPOSITED WITH THE DEPOSITARY UNDER THE DEPOSIT
AGREEMENT OR OF THE DEPOSITARY SHARES OR RECEIPTS (EXCEPT FOR ITS
COUNTERSIGNATURES THEREON), AS TO THE VALIDITY OR SUFFICIENCY OF THE DEPOSIT
AGREEMENT, AS TO THE VALUE OF THE DEPOSITARY SHARES OR AS TO ANY RIGHT, TITLE
OR INTEREST OF THE RECORD HOLDERS OF THE RECEIPTS IN AND TO THE DEPOSITARY
SHARES.
The Company will furnish to any holder of a Receipt without charge, upon
request addressed to its executive office or the office of its transfer agent,
a statement or summary of the powers, designations, preferences and relative,
participating, optional or other special rights of each authorized class of
capital stock of the Company, and of each class and series of preferred stock
of the Company authorized to be issued, so far as the same may have been
fixed, and of the qualifications, limitations or restrictions of such
preferences and/or rights.
A-1
This Depositary Receipt (the "Receipt") is continued on the reverse hereof
and the additional provisions therein set forth for all purposes have the same
effect as if set forth at this place.
Dated:
_____________________________________
Depositary and Registrar
By: _________________________________
Authorized Signatory
A-2
[FORM OF REVERSE
OF DEPOSITARY RECEIPT]
1. 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 , 199 (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 Office and
at the office of any Depositary's Agent) sets forth the rights of holders of
Receipts and the rights and duties of the Depositary. The statements made on
the face and the reverse of this Receipt are summaries of certain provisions of
the Deposit Agreement and are subject to the detailed provisions thereof, to
which reference is hereby made. In the event of any conflict between the
provisions of this Receipt and the provisions of the Deposit Agreement, the
provisions of the Deposit Agreement will govern.
2. Definitions. Unless otherwise expressly herein provided, all defined terms
used herein shall have the meanings ascribed thereto in the Deposit Agreement.
3. Redemption of Preferred Stock. Whenever the Company shall elect to redeem
shares of Preferred Stock in accordance with the Certificate of Designations,
it shall (unless otherwise agreed in writing with the Depositary) give the
Depositary in its capacity as Depositary the notice required by the Deposit
Agreement. The Depositary shall mail, first class postage prepaid, notice of
such redemption and the proposed simultaneous redemption of the number of
Depositary Shares representing the Preferred Stock held by the Depositary to be
redeemed, not less than and not more than days prior to the date fixed for
redemption of such Preferred Stock and Depositary Shares (the "Redemption
Date"), to the record holders of the Receipts evidencing the Depositary Shares
to be so redeemed, at the addresses of such holders as they appear on the
records of the Depositary; but neither failure to mail any such notice to one
or more such holders nor any defect in any notice to one or more such holders
shall affect the sufficiency of the proceedings for redemption as to other
holders. Each such notice shall state: (i) the Redemption Date; (ii) the number
of Depositary Shares to be redeemed and, if less than all the Depositary Shares
held by any such holder are to be redeemed, the number of such Depositary
Shares held by such holder to be so redeemed; (iii) the redemption price; (iv)
the place or places where Receipts evidencing Depositary Shares are to be
surrendered for payment of the redemption price; and (v) that dividends in
respect of the shares of Preferred Stock represented by the Depositary Shares
to be redeemed will cease to accumulate from and after such Redemption Date.
Any such notices shall be mailed in the same manner as notices of redemption of
the Preferred Stock are required to be mailed pursuant to Section of the
Certificate of Designations and published in the same manner as notices of
redemption of the Preferred Stock are required to be published pursuant to said
section, if so required. In case fewer than all the outstanding Depositary
Shares are to be redeemed, the Depositary Shares to be redeemed shall be
selected by lot or pro rata (as nearly as may be) or by any other equitable
method determined by the Depositary to be consistent with the method determined
by the Board of Directors of the Company with respect to the Preferred Stock.
Notice having been mailed and published 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 above), the Depositary Shares called for
redemption shall be deemed no longer to be outstanding and all rights of the
holders of Receipts evidencing such Depositary Shares (except the right to
receive the redemption price) shall, to the extent of such Depositary Shares,
cease and terminate. Upon surrender in accordance with said notice of the
Receipts evidencing such Depositary Shares (properly endorsed or assigned for
transfer, if the Depositary shall so require), such Depositary Shares shall be
redeemed for a redemption price at a rate per Depositary Share equal to one-
of the redemption price delivered upon redemption of a share of Preferred Stock
pursuant to the Certificate of Designations. The foregoing shall be subject
further to the terms and conditions of the Certificate of Designations and the
Deposit Agreement.
If fewer 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
A-3
redemption price for the Depositary Shares called for redemption, a new
receipt evidencing the Depositary Shares evidenced by such prior Receipt and
not called for redemption.
[4. Surrender of Receipts and Withdrawal of Preferred Stock. Upon surrender
of this Receipt to the Depositary at the Depositary's Office or such other
offices as the Depositary may designate, and subject to the provisions of the
Deposit Agreement, the holder hereof is entitled to withdraw, and to obtain
delivery of, to or upon the order of such holder, any or all of the Preferred
Stock (but only in whole shares of Preferred Stock) and any or all money and
other property, if any, at the time represented by the Depositary Shares
evidenced by this Receipt; provided, however, that, in the event this Receipt
shall evidence a number of Depositary Shares in excess of the number of
Depositary Shares representing the whole number of shares of Preferred Stock
to be withdrawn, the Depositary shall, in addition to such whole number of
shares of Preferred Stock and such money and other property, if any, to be
withdrawn, deliver, to or upon the order of such holder, a new Receipt or
Receipts evidencing such excess number of whole Depositary Shares.]
[5. Conversion of Preferred Stock into Common Stock. Subject to the terms
and conditions of the Deposit Agreement and the Certificate of Designations,
this Receipt may be surrendered with written instructions to the Depositary to
instruct the Company to cause the conversion of any specified number of whole
shares of Preferred Stock represented by whole Depositary Shares evidenced
hereby into whole shares of Series A Stock, par value $1.00 per share ("Common
Stock"), and cash for any fractional share of Common Stock at the conversion
price then in effect for the Preferred Stock pursuant to the Certificate of
Designations as such conversion price may be adjusted by the Company from time
to time as provided in the Certificate of Designations. Subject to the terms
and conditions of the Deposit Agreement and the Certificate of Designations, a
holder of a Receipt or Receipts evidencing Depositary Shares representing
whole or fractional shares of Preferred Stock may surrender such Receipt or
Receipts at the Depositary's Office or at such office or to such Depositary's
Agents as the Depositary may designate for such purpose, together with a
notice of conversion duly completed and executed, thereby directing the
Depositary to instruct the Company to cause the conversion of the number of
shares, or fractions of shares, of underlying Preferred Stock specified in
such notice of conversion into shares of Common Stock, and an assignment of
such Receipt or Receipts to the Company or in blank, duly completed and
executed. To the extent that a holder delivers to the Depositary for
conversion a Receipt or Receipts which in the aggregate are convertible into
less than one whole share of Common Stock, the holder shall receive payment in
cash in lieu of such fractional share of Common Stock otherwise issuable. If
more than one Receipt shall be delivered for conversion at one time by the
same holder, the number of whole shares of Common Stock issuable upon
conversion thereof shall be computed on the basis of the aggregate number of
Depositary Shares represented by the Receipts so delivered.
If Preferred Stock shall be called by the Company for redemption, the
Depositary Shares representing such Preferred Stock may be converted into
Common Stock as provided in the Deposit Agreement until, but not after, the
close of business on the Redemption Date unless the Company shall fail to
deposit with the Depositary the amounts required to redeem the Preferred Stock
held by the Depositary, in which case the Depositary Shares representing such
Preferred Stock may continue to be converted into Common Stock until, but not
after, the close of business on the date on which the Company deposits with
the Depositary such amounts as are required by the Certificate of Designations
to make full payment of the amounts payable upon such redemption. Upon receipt
by the Depositary of a Receipt or Receipts, together with a properly completed
and executed notice of conversion, representing any Preferred Stock called for
redemption, the shares of Preferred Stock held by the Depositary represented
by such Depositary Shares for which conversion is requested shall be deemed to
have been received by the Company for conversion as of immediately prior to
the close of business on the date of such receipt by the Depositary.]
6. Transfers, Split-ups, Combinations. Subject to Paragraphs 7, 8 and 9
below, this Receipt is transferable on the books of the Depositary upon
surrender of this Receipt to the Depositary at the Depositary's Office or such
other offices as the Depositary may designate, properly endorsed or
accompanied by a properly executed instrument of transfer or endorsement, and
upon such surrender the Depositary shall execute and deliver a Receipt to or
upon the order of the person entitled thereto, all as provided in and subject
to the Deposit
A-4
Agreement. This Receipt may be split into other Receipts or combined with
other Receipts into one Receipt evidencing the same aggregate number of
Depositary Shares evidenced by the Receipt or Receipts surrendered; provided,
however, that the Depositary shall not execute and deliver any Receipt
evidencing a fractional Depositary Share.
7. Conditions to Signing and Delivery, Transfer, etc., of Receipts. Prior to
the execution and delivery, transfer, split-up, combination, surrender or
exchange of this Receipt, the Depositary, any of the Depositary's Agents or
the Company may require any or all of the following: (i) payment to it of a
sum sufficient for the payment (or, in the event that the Depositary or the
Company shall have made such payment, the reimbursement to it) of any tax or
other governmental charge with respect thereto (including any such tax or
charge with respect to Preferred Stock being deposited or withdrawn or with
respect to [Common Stock or] other securities or property of the Company being
issued upon [conversion or] redemption); (ii) the production of proof
satisfactory to it as to the identity and genuineness of any signature; and
(iii) compliance with such regulations, if any, as the Depositary or the
Company may establish not inconsistent with the Deposit Agreement. Any person
presenting Preferred Stock for deposit, or any holder of this Receipt, may be
required to file such proof of information, to execute such certificates and
to make such representations and warranties as the Depositary or the Company
may reasonably deem necessary or proper. The Depositary or the Company may
withhold or delay the delivery of any Receipt, the transfer, redemption[,
conversion] or exchange of any Receipt, the withdrawal of [the Preferred Stock
or] money or other property, if any, represented by the Depositary Shares
evidenced by this Receipt or the distribution of any dividend or other
distribution until such proof or other information is filed, such certificates
are executed or such representations and warranties are made.
8. Suspension of Delivery, Transfer, etc. The deposit of Preferred Stock may
be refused, the delivery of Receipts against Preferred Stock may be suspended,
the transfer of Receipts may be refused and the transfer, split-up,
combination, surrender or exchange of this Receipt may be suspended (i) during
any period when the register of holders of Receipts is closed; (ii) if any
such action is deemed necessary or advisable by the Depositary, any of the
Depositary's Agents or the Company at any time or from time to time because of
any requirement of law or of any government or governmental body or
commission, or under any provision of the Deposit Agreement; or (iii) except
for the transfer of Receipts, with the approval of the Company, for any other
reason. [Except with respect to a conversion of Depositary Shares which may
occur pursuant to Section of the Certificate of Designations,] the
Depositary shall not be required (a) to execute and deliver, transfer or
exchange any Receipts for a period beginning at the opening of business 15
days next preceding any selection of Depositary Shares and Preferred Stock to
be redeemed and ending at the close of business on the day of the mailing of
notice of redemption of Depositary Shares or (b) to transfer or exchange for
another Receipt any Receipt evidencing Depositary Shares called or being
called for redemption in whole or in part, except as provided in the second to
last paragraph of Paragraph 3 above.
9. 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, the Depositary Shares evidenced by this Receipt,
the Preferred Stock (or any fractional interest therein) represented by such
Depositary Shares or any transaction referred to in Section 4.6 of the Deposit
Agreement, such tax (including transfer, issuance or acquisition taxes, if
any) or governmental charge shall be payable by the holder hereof. Until such
payment is made, transfer, redemption, [conversion] or exchange of this
Receipt or any withdrawal of the Preferred Stock or money and other property,
if any, represented by the Depositary Shares evidenced by this Receipt may be
refused, any dividend or other distribution may be withheld and any part or
all of the Preferred Stock or other property represented by the Depositary
Shares evidenced by this Receipt may be sold for the account of the holder
hereof (after attempting by reasonable means to notify such holder prior to
such sale). Any dividend or other distribution so withheld and the proceeds of
any such sale may be applied to any payment of such tax or other governmental
charge, the holder of this Receipt remaining liable for any deficiency.
10. Amendment. The form of the Receipts and any provision of the Deposit
Agreement may at any time and from time to time be amended by agreement
between the Company and the Depositary in any respect that they may deem
necessary or desirable. Any amendment that shall impose any fees, taxes or
charges payable by
A-5
holders of Receipts (other than taxes and other governmental charges, fees and
other expenses provided for herein or in the Deposit Agreement), or that 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 of this Receipt at the time any
such amendment becomes effective shall be deemed, by continuing to hold this
Receipt, to consent and agree to such amendment and to be bound by the Deposit
Agreement as amended thereby. In no event shall any amendment impair the
right, subject to the provisions of Paragraphs 3, 4, 5, 6, 8, 9 and 10 hereof
and of Sections 2.3, 2.6, 2.7 and 2.10 and Article III 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 Preferred Stock and all money and other property, if any,
represented hereby, [or to cause the conversion of the underlying Preferred
Stock into Common Stock and cash for any fractional share amount], except in
order to comply with mandatory provisions of applicable law.
11. Fees, Charges and Expenses. The Company will pay all fees, charges and
expenses of the Depositary, except for taxes (including transfer taxes, if
any) and other governmental charges and such charges as are expressly provided
in the Deposit Agreement to be at the expense of persons depositing Preferred
Stock, holders of Receipts or other persons.
12. Ownership of Receipts. It is a condition of this Receipt, and every
successive holder hereof by accepting or holding the same consents and agrees,
that ownership of this Receipt (and of the Depositary Shares evidenced hereby)
when properly endorsed or accompanied by a properly executed instrument of
transfer or endorsement, is transferable by delivery; provided, however, that
until this Receipt shall be transferred on the books of the Depositary as
provided in Section 2.4 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 distributions or to any
notice provided for in the Deposit Agreement and for all other purposes.
13. 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, distribute such
portions of such sum to record holders of Receipts as are, as nearly as
practicable, proportionate 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 or as otherwise required by law,
regulation or court order, 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.
14. 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 registered on the books of the Company any rights, preferences or
privileges to subscribe for or to purchase any securities or any rights,
preferences or privileges of any other nature, such rights, preferences or
privileges shall in each such instance, subject to the provisions of the
Deposit Agreement, be made available by the Depositary to the record holders
of receipts if the Company so directs in such manner as the Company shall
instruct.
15. Notice of Dividends; Fixing of Record Date. Whenever any cash dividend
or other cash distribution shall become payable, any distribution other than
cash shall be made, or any rights, preferences or privileges shall at any time
be offered, with respect to the Preferred Stock, or whenever the Depositary
shall receive notice of (i) any meeting at which holders of Preferred Stock
are entitled to vote or of which holders of Preferred Stock are entitled to
notice or (ii) any election on the part of the Company to call for redemption
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
A-6
date fixed by the Company with respect to the Preferred Stock) for the
determination of the holders of Receipts (i) who shall be entitled to receive
such dividend, distribution, rights, preferences or privileges or the net
proceeds of the sale thereof, or to give instructions for the exercise of
voting rights at any such meeting or to receive notice of such meeting or (ii)
whose Depositary Shares are to be so redeemed.
16. Voting Rights. Upon issuance of notice of any meeting at which the
holders of Preferred Stock are entitled to vote, the Company shall direct the
Depositary, as soon as practicable thereafter, to mail to the record holders
of Receipts a notice, which shall contain (i) such information as is contained
in such notice of meeting (and, if applicable, such information as is provided
together with such notice of meeting), (ii) a statement that the holders of
Receipts at the close of business on a specified record date determined as
provided in Paragraph 14 will be entitled, subject to any applicable provision
of law, the Certificate of Incorporation or the Certificate of Designations,
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 (iii) 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. The Company has agreed to take all
reasonable action that may be deemed necessary by the Depositary in order to
enable the Depositary to vote such Preferred Stock or cause such Preferred
Stock to be voted. In the absence of specific instructions from the holder of
a Receipt, the Depositary will abstain from voting to the extent of the
Preferred Stock represented by the Depositary Shares evidenced by such
Receipt. After aggregating all voting Depositary Shares, the Depositary will
disregard for voting purposes any fractional share of Preferred Stock
remaining.
17. Reports, Inspection of Transfer Books. The Depositary shall make
available for inspection by holders of Receipts at the Depositary's Office and
at such other places as it may from time to time deem advisable during normal
business hours any reports and communications received from the Company that
are both received by the Depositary as the holder of Preferred Stock and made
generally available to the holders of Preferred Stock by the Company. The
Depositary shall keep books at the Depositary's Office for the registration
and transfer of Receipts, which books during normal business hours will be
open for inspection by the record holders of receipts as provided by
applicable law.
18. 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 any Depositary's Agent, by
reason of any provision, present or future, of the Restated Certificate of
Incorporation or the Certificate of Designations or, in the case of the
Company, the Depositary or any Depositary's Agent, 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 that the terms of the
Deposit Agreement provide shall or may 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 that 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.
19. 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 hereunder or under
the Deposit Agreement to holders of Receipts other than that each of them
agrees to use good faith in the performance of such duties as are specifically
set forth in the 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, Receipts [or Common Stock] that in its
opinion may involve it in expense or liability, unless indemnity satisfactory
to it against all expense and liability be furnished as often as may be
required. Neither the Depositary nor any Depositary's Agent nor the Company
will be liable for any action or failure to act by it in reliance upon the
advice of or information
A-7
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.
20. Termination of Deposit Agreement. Whenever so directed by the Company
upon at least five Business Days' prior notice, the Depositary will terminate
the Deposit Agreement, provided that notice of such termination has been given
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 the 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 of the Deposit Agreement. 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 under Sections 5.7 and 5.8 of the Deposit
Agreement.
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.
21. 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 law of the State of New York without
giving effect to principles of conflict of laws.
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 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 signatory and, if executed by facsimile
signature of the Depositary, shall have been countersigned manually by such
Registrar by the signature of a duly authorized signatory.
Dated:
_____________________________________
Depositary and Registrar
By: _________________________________
Authorized Signatory
A-8
[NOTICE OF CONVERSION
The undersigned holder of this Receipt for Depositary Shares hereby
irrevocably exercises the option to convert that number of shares, or
fractions of shares, of [title of underlying preferred stock] of the Company
represented by Depositary Shares into shares of Common Stock of the
Company and cash for any fraction of Common Stock in accordance with the terms
of and subject to the conditions of the Preferred Stock, including the
Certificate of Designations in respect thereof and the Deposit Agreement, and
directs the Depositary to instruct the Company that the shares of Common Stock
deliverable upon such conversion be registered in the name of, and delivered
together with a check in payment for any fractional shares of Common Stock to,
the undersigned unless a different name has been indicated below. If the
shares of Common Stock are to be registered in the name of a person other than
the undersigned, the undersigned will pay all transfer and similar taxes
payable with respect thereto. If the number of shares of Preferred Stock,
represented by the number of Depositary Shares set forth above, is less than
the number of shares of Preferred Stock on deposit in respect of this Receipt,
the undersigned directs that the Depositary execute and deliver to the
undersigned, unless a different name is indicated below, a new receipt
evidencing Depositary Shares for the balance of such Preferred Stock not to be
converted.
Dated:
Signature: __________________________
( )
NOTE: The signature on this notice
of conversion must correspond with
the name as written upon the face of
this Receipt in every particular
without alteration or enlargement or
any change whatsoever, and must be
guaranteed by a commercial bank,
trust company, securities broker or
dealer, credit union, savings
association or other eligible
guarantor institution which is a
member of or participant in a
signature guarantee program
acceptable to the Depositary.
Name: _______________________________
Address: ____________________________
(Please print name and
address of Registered
Holder)
Name: _______________________________
Address: __________________________ ]
(Please indicate other
delivery instructions, if
applicable)
A-9