1
EXHIBIT 4.3
SENSORMATIC ELECTRONICS CORPORATION
BANKBOSTON, N.A.
AS DEPOSITARY
AND
HOLDERS OF DEPOSITARY RECEIPTS
DEPOSIT AGREEMENT
DATED AS OF APRIL 13, 1998
DEPOSIT AGREEMENT, dated as of April 13, 1998, among SENSORMATIC
ELECTRONICS CORPORATION, a Delaware corporation (the "Company"), BANKBOSTON,
N.A., a national banking association, as depositary (the "Depositary"), and all
holders from time to time of Depositary Receipts issued hereunder.
W I T N E S S E T H:
WHEREAS, the Company desires to provide for the deposit of shares of 6
1/2% Convertible Preferred Stock, par value of $0.01 per share (the "Preferred
Stock"), of the Company and for the issuance of Depositary Receipts evidencing
Depositary Shares in respect of the Preferred Stock so deposited, all on the
terms and conditions set forth in this Agreement; and
WHEREAS, the Depositary Receipts are to be substantially in the form of
Exhibit A annexed hereto, with appropriate insertions, modifications and
omissions, as hereinafter provided in this Deposit Agreement;
NOW, THEREFORE, in consideration of the mutual premises contained
herein, it is agreed by and among the parties hereto as follows:
ARTICLE I
DEFINITIONS
SECTION 1.1 DEFINITIONS. The following definitions shall for all
purposes, unless otherwise clearly indicated, apply to the respective terms used
in this Agreement and the Depositary Receipts:
"Authorizing Resolutions" means the resolutions adopted by the
Company's Board of Directors establishing and setting forth the rights,
preferences and privileges of the Preferred Stock.
1
2
"Certificate of Incorporation" means the Restated Certificate
of Incorporation, as amended from time to time, of the Company.
"Certificate of Designations" means the Certificate of
Designations of the Powers, Preferences and Relative, Participating,
Optional or Other Special Rights of Preferred Stock and Qualifications,
Limitations and Restrictions Thereof, filed with the Secretary of State
of the State of Delaware, setting forth the terms of the Preferred
Stock.
"Company" means Sensormatic Electronics Corporation, a
Delaware corporation, having its principal office at ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇,
▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇, and its successors.
"Common Stock" means the common stock, par value $0.01 per
share, of the Company.
"Deposit Agreement" means this Agreement, as the same may be
amended or supplemented from time to time.
"Depositary" means BankBoston, N.A., a national banking
association, and any successor as depositary hereunder.
"Depositary Shares" means the interest in the Preferred Stock
deposited with the Depositary hereunder and represented by the
Receipts. Each Depositary Share shall, as provided herein, represent an
interest in one one-tenth (1/10th) of one share of Preferred Stock.
"Depositary's Agent" means any agent appointed by the
Depositary pursuant to Section 7.05.
"Issue Date" means April 13, 1998.
"Liquidated Damages" means all liquidated damages then owing
under the Registration Rights Agreement.
"Liquidation Preference" means, with respect to the Preferred
Stock, a liquidation preference of $250 per share.
"NYSE" means the New York Stock Exchange, Inc.
"Person" means any individual, partnership, firm, corporation,
association, trust, unincorporated organization or other entity, as
well as any syndicate or group that would be deemed to be a person
under Section 13(d)(3) of the Securities Exchange Act of 1934, as
amended.
2
3
"Preferred Stock" means shares of the Company's 6 1/2%
Convertible Preferred Stock, par value $0.01 per share.
"Principal Office" means the principal office of the
Depositary, at which at any particular time its corporate trust
business shall be administered.
"Receipt" means one or more of the Depositary Receipts issued
hereunder.
"Record Holder" as applied to a Receipt means the Person in
whose name a Receipt is registered on the books of the Depositary
maintained for such purpose.
"Registrar" means any bank or trust company which shall be
appointed to register Receipts as herein provided.
"Registration Rights Agreement" means the Registration Rights
Agreement with respect to the Depositary Shares, the Preferred Stock
and the Common Stock issuable upon conversion of the Preferred Stock,
dated as of April 13, 1998, by and among the Company, Bear, ▇▇▇▇▇▇▇ &
Co. Inc., ▇▇▇▇▇▇ Brothers Inc., NationsBanc ▇▇▇▇▇▇▇▇▇▇ Securities LLC
and ▇▇▇▇▇▇▇▇ & Co. Inc., as such agreement may be amended, modified or
supplemented from time to time.
"Securities Act of 1993" means the Act of May 27, 1933 (15
U.S. Code,ss.ss.77a-77aa)), as from time to time amended.
"Stockholders" means the holders of the Preferred Stock.
ARTICLE II
FORM OF RECEIPTS, DEPOSIT OF PREFERRED STOCK,
EXECUTION AND DELIVERY, TRANSFER, SURRENDER
AND REDEMPTION OF RECEIPTS
SECTION 2.1 FORM AND TRANSFERABILITY OF RECEIPTS. (a) Receipts shall be
engraved or printed or lithographed on steel engraved borders and shall be
substantially in the form set forth in Exhibit A annexed to this Depositary
Agreement, with appropriate insertions, modifications and omissions, as
hereinafter provided. Receipts shall be executed by the Depositary by the manual
signature of a duly authorized representative of the Depositary, PROVIDED that
such signature may be a facsimile if a Registrar for the Receipts (other than
the Depositary) shall have been appointed and such Receipts are countersigned by
manual signature of a duly authorized representative of the Registrar. No
Receipt shall be entitled to any benefits under this Deposit Agreement or be
valid or obligatory for any purpose unless it shall have been executed on behalf
of the Company by the manual or facsimile signature of a duly authorized officer
and executed manually or, if a Registrar for the Receipts (other than the
Depositary) shall have been appointed, by facsimile signature of a duly
authorized representative of the Depositary and, if executed by facsimile
signature of the Depositary, shall have been countersigned manually
3
4
by a duly authorized representative of such Registrar. The Depositary shall
record on its books each receipt so signed and delivered as hereinafter
provided.
(b) Receipts shall be in denominations of any number of whole
Depositary Shares, unless otherwise directed by the Company.
(c) Receipts may be endorsed with or have incorporated in the
text thereof such legends or recitals or changes not inconsistent with the
provisions of this Deposit Agreement as may be required by the Depositary at the
direction of the Company or required to comply with any applicable law or any
regulation thereunder or with the rules and regulations of any securities
exchange or Nasdaq National Market upon which the Preferred Stock, the
Depositary Shares or the Receipts may be listed or to conform with any usage
with respect thereto, or to indicate any special limitations or restrictions to
which any particular Receipts are subject by reason of the date of issuance of
the Preferred Stock or otherwise.
(d) Title to Depositary Shares evidenced by a Receipt which is
properly endorsed or accompanied by a properly executed instrument of transfer,
shall be transferable by delivery with the same effect as in the case of a
negotiable instrument; PROVIDED, HOWEVER, that until a Receipt shall be
transferred on the books of the Depositary as provided in Section 2.6, the
Depositary may, notwithstanding any notice to the contrary, treat the Record
Holder thereof at such time as the absolute owner thereof for the purpose of
determining the Person entitled to distribution of dividends or other
distributions or to any notice provided for in this Deposit Agreement and for
all other purposes.
SECTION 2.2 FORM, DENOMINATION AND REGISTRATION. (a) The Depositary
Shares shall be issued in the form of one or more Global Certificates
(collectively, the "Global Certificate"). The Global Certificate shall be
deposited on the Issue Date with, or on behalf of, the Depositary Trust Company
("DTC") and registered in the name of Cede & Co., as DTC's nominee (such nominee
being referred to as the "Global Certificate Holder").
(b) So long as the Global Certificate Holder is the registered
owner of any Depositary Shares, the Global Certificate Holder will be considered
the sole holder under this Deposit Agreement of any Depositary Shares evidenced
by the Global Certificate. Beneficial owners of Depositary Shares shall not be
considered the owners or holders thereof under this Deposit Agreement for any
purpose.
(c) Payments in respect of the Liquidation Preference,
dividends and Liquidated Damages, if any, on any Preferred Stock underlying
Depositary Shares registered in the name of the Global Certificate Holder on the
applicable record date shall be payable by the Company to or at the direction of
the Global Certificate Holder in its capacity as the registered holder under
this Deposit Agreement. The Company may treat the Persons in whose name
Depositary Shares, including the Global Certificate, are registered as the
owners thereof for the purpose of receiving such payments.
4
5
(d) Any Person having a beneficial interest in the Global
Certificate may, upon request to the Company, exchange such beneficial interest
for Depositary Shares in the form of registered definitive certificates (the
"Definitive Securities"). Upon any such issuance, the Company shall register
such Definitive Securities in the name of, and cause the same to be delivered
to, such Person or Persons (or the nominee of any thereof). If (i) the Company
notifies the holders of beneficial interests in the Global Certificate in
writing that DTC is no longer willing or able to act as a depositary and the
Company is unable to locate a qualified successor within 90 days, or (ii) the
Company, at its option, notifies such holders in writing that it elects to cause
the issuance of Depositary Shares in the form of Definitive Securities under
this Deposit Agreement, then, upon surrender by the Global Certificate Holder of
the Global Certificate, Depositary Shares in such form will be issued to each
Person that the Global Certificate Holder and DTC identify as being the
beneficial owner of the related Depositary Shares.
(e) The Global Certificate shall bear a legend in
substantially the following form:
"UNLESS AND UNTIL IT IS EXCHANGED IN WHOLE OR IN PART FOR A
SECURITY IN DEFINITIVE FORM, THIS SECURITY MAY NOT BE
TRANSFERRED EXCEPT AS A WHOLE BY THE DEPOSITARY TO A NOMINEE
OF THE DEPOSITARY OR BY A NOMINEE OF THE DEPOSITARY TO THE
DEPOSITARY OR ANOTHER NOMINEE OF THE DEPOSITARY OR BY THE
DEPOSITARY OR ANY SUCH NOMINEE TO A SUCCESSOR DEPOSITARY OR A
NOMINEE OF SUCH SUCCESSOR DEPOSITARY. THE DEPOSITARY TRUST
COMPANY SHALL ACT AS THE DEPOSITARY UNTIL A SUCCESSOR SHALL BE
APPOINTED BY THE COMPANY AND THE TRANSFER AGENT. UNLESS THIS
CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF
THE DEPOSITARY TRUST COMPANY (55 WATER STREET, NEW YORK, NEW
YORK ("DTC") TO THE ISSUER OR ITS AGENT FOR REGISTRATION OF
TRANSFER, EXCHANGE OR PAYMENT, AND ANY CERTIFICATE ISSUED IS
REGISTERED IN THE NAME OF CEDE & CO. OR SUCH OTHER NAME AS MAY
BE REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY
PAYMENT IS MADE TO CEDE & CO. OR SUCH OTHER ENTITY AS MAY BE
REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC), ANY
TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY
OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER
HEREOF, CEDE & CO., HAS AN INTEREST HEREIN."
(f) The Depositary Shares, Preferred Stock issuable upon
exchange for the Depositary Shares and the Common Stock issuable upon conversion
of the Preferred Stock shall
5
6
bear a legend to the following effect, unless the Company determines otherwise
in compliance with applicable law:
"THE SECURITY (OR ITS PREDECESSOR) EVIDENCED HEREBY WAS
ORIGINALLY ISSUED IN A TRANSACTION EXEMPT FROM REGISTRATION
UNDER ▇▇▇▇▇▇▇ ▇ ▇▇ ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇ SECURITIES ACT OF 1933,
AS AMENDED (THE "SECURITIES ACT"), AND THE SECURITY EVIDENCED
HEREBY MAY NOT BE OFFERED, SOLD OR OTHERWISE TRANSFERRED IN
THE ABSENCE OF SUCH REGISTRATION OR AN APPLICABLE EXEMPTION
THEREFROM. EACH PURCHASER OF THE SECURITY EVIDENCED HEREBY IS
HEREBY NOTIFIED THAT THE SELLER MAY BE RELYING ON THE
EXEMPTION FROM THE PROVISIONS OF SECTION 5 OF THE SECURITIES
ACT PROVIDED BY RULE 144A THEREUNDER. THE HOLDER OF THE
SECURITY EVIDENCED HEREBY AGREES FOR THE BENEFIT OF THE
COMPANY THAT (A) SUCH SECURITY MAY BE RESOLD, PLEDGED OR
OTHERWISE TRANSFERRED, ONLY (l)(a) TO A PERSON WHO THE SELLER
REASONABLY BELIEVES IS A QUALIFIED INSTITUTIONAL BUYER (AS
DEFINED IN RULE 144A UNDER THE SECURITIES ACT) IN A
TRANSACTION MEETING THE REQUIREMENTS OF RULE 144A, (b) IN A
TRANSACTION MEETING THE REQUIREMENTS OF RULE 144 UNDER THE
SECURITIES ACT, OR (c) IN ACCORDANCE WITH ANOTHER EXEMPTION
FROM THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT (AND
BASED UPON AN OPINION OF COUNSEL IF THE COMPANY SO REQUESTS),
(2) TO THE COMPANY OR (3) PURSUANT TO AN EFFECTIVE
REGISTRATION STATEMENT AND, IN EACH CASE, IN ACCORDANCE WITH
THE APPLICABLE SECURITIES LAWS OF ANY STATE OF THE UNITED
STATES OR ANY OTHER APPLICABLE JURISDICTION AND (B) THE HOLDER
WILL, AND EACH SUBSEQUENT HOLDER IS REQUIRED TO, NOTIFY ANY
PURCHASER FROM IT OF THE SECURITY EVIDENCED HEREBY OF THE
RESALE RESTRICTIONS SET FORTH IN (A) ABOVE."
(g) Holders of the Depositary Shares, the Preferred Stock
issuable upon exchange for the Depositary Shares and the Common Stock issuable
upon conversion of the Preferred Stock shall have such rights with respect to
such securities as are set forth in the Registration Rights Agreement.
SECTION 2.3 DEPOSIT OF PREFERRED STOCK, EXECUTION AND DELIVERY OF
RECEIPTS IN RESPECT THEREOF. (a) Subject to the terms and conditions of this
Deposit Agreement, any holder of Preferred Stock may deposit such Preferred
Stock under this Deposit Agreement by delivery to the Depositary at its
Principal Office (or at
6
7
such other place as may be agreeable to the Depositary) of a certificate or
certificates for the Preferred Stock to be deposited, properly endorsed or
accompanied, if required by the Depositary, by a duly executed instrument of
transfer or endorsement, in form satisfactory to the Depositary, together with
all such certifications as may be required by the Depositary in accordance with
the provisions of this Deposit Agreement, and together with a written order
directing the Depositary to execute and deliver to, or upon the written order
of, the Person or Persons stated in such order a Receipt for the number of
Depositary Shares representing such deposited Preferred Stock.
(b) The Depositary shall require, at the direction of the
Company, that Preferred Stock presented for deposit at any time, whether or not
the register of Stockholders is closed, shall also be accompanied by an
agreement or assignment, or other instrument satisfactory to the Depositary,
which will provide for the prompt transfer to the Depositary or its nominee of
any dividend or right to subscribe for additional Preferred Stock or to receive
other property which any Person in whose name the Preferred Stock is or has been
recorded may thereafter receive upon or in respect of such deposited Preferred
Stock, or in lieu thereof such agreement of indemnity or other agreement as
shall be satisfactory to the Depositary.
(c) Subject to the terms and conditions of this Deposit
Agreement, Preferred Stock may also be deposited hereunder in connection with
the delivery of Receipts to represent distributions under Section 4.2 and upon
exercise of the rights to subscribe referred to in Section 4.3.
(d) Upon each delivery to the Depositary of a certificate or
certificates for Preferred Stock to be deposited hereunder, together with the
other documents above specified, the Depositary shall, as soon as transfer and
recordation can be accomplished, present such certificate or certificates to the
Registrar and transfer agent of the Preferred Stock for transfer and recordation
in the name of the Depositary or its nominee of the Preferred Stock being
deposited. Deposited Preferred Stock shall be held by the Depositary, at the
Principal Office, or at such other place or places as the Depositary shall
determine.
(e) Upon receipt by the Depositary of a certificate or
certificates for Preferred Stock deposited in accordance with the provisions of
this Section, together with the other documents required as above specified, the
Depositary, subject to the terms and conditions of this Deposit Agreement, shall
execute and deliver to or upon the order of the Person or Persons named in the
written order delivered to the Depositary referred to in Section 2.3(a), a
Receipt for the number of Depositary Shares representing the Preferred Stock so
deposited and registered in such name or names as may be requested by such
Person or Persons. The Depositary shall execute and deliver such Receipts at its
Principal Office and at such other offices, if any, as it may designate.
Delivery at other offices shall be at the risk and expense of the Person
requesting such delivery. However, in each case, such delivery will be made only
upon payment to the Depositary of the fee of the Depositary by the Company
(unless payable by the holder) as provided in Section 5.7, for the execution and
delivery of such Receipt and of all taxes and governmental charges and fees
payable in connection with such deposit and the transfer of the deposited
Preferred Stock.
7
8
SECTION 2.4 OPTIONAL REDEMPTION OF PREFERRED STOCK. (a) The Company
shall have the right to redeem the Preferred Stock in accordance with the terms
of the Preferred Stock. Whenever the Company shall elect to redeem shares of
Preferred Stock pursuant to the terms of the Preferred Stock, it shall (unless
otherwise agreed in writing with the Depositary) give the Depositary notice of
the date of such proposed redemption of Preferred Stock and of the number of
shares held by the Depositary to be so redeemed not later than five days prior
to the proposed mailing date of the notice referenced below; PROVIDED, HOWEVER,
that if such notice by the Company is not accompanied by copies of the materials
to be mailed to the Record Holders, such notice must be given no later than 10
days prior to the date of such mailing. On the date of such redemption, PROVIDED
that the Company shall then have deposited with the Depositary the amount of
cash necessary to effect such redemption, the Depositary shall redeem the number
of Depositary Shares representing such Preferred Stock. The Depositary shall
mail notice of such redemption and the proposed simultaneous redemption of the
number of Depositary Shares representing the Preferred Stock to be redeemed, by
first class postage prepaid, not less than 30 and not more than 60 days prior to
the date fixed for redemption of such Preferred Stock and Depositary Shares (the
"Redemption Date"), to the Record Holders on the record date for such redemption
(determined pursuant to Section 4.4) of the Receipts evidencing the Depositary
Shares to be so redeemed, at the addresses of such Record Holders as the same
appear on the records of the Depositary; but neither failure to mail any such
notice to one or more such Record Holders nor any defect in any notice shall
affect the sufficiency of the proceedings for redemption as to other Record
Holders. Each such notice shall state the record date for the purposes of such
redemption; the Redemption Date; the number of Depositary Shares to be redeemed
and, if less than all of the Depositary Shares held by any such Record Holder
are to be redeemed, the number of such Depositary Shares held by such Record
Holder to be so redeemed; the amount of cash to be received by such Record
Holder; the place or places where Receipts evidencing Depositary Shares are to
be surrendered for cash; and that dividends in respect of the Preferred Stock
represented by the Depositary Shares to be redeemed will cease to accrue at the
close of business on such Redemption Date. In case less than all the outstanding
Depositary Shares are to be redeemed, the Depositary Shares to be so redeemed
shall be selected by lot or pro rata (as nearly as may be) or in any other
equitable manner determined by the Depositary to be consistent with the method
determined by the Board of Directors with respect to the Preferred Stock.
(b) Notice having been mailed by the Depositary as described
in Section 2.4(a), 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 Section 2.4(a)), all dividends in
respect of the shares of Preferred Stock so called for redemption shall cease to
accrue, the Depositary Shares being so redeemed shall be deemed no longer to be
outstanding, all rights of the holders of Receipts evidencing such Depositary
Shares shall cease and terminate and, upon surrender in accordance with said
notice of the Receipts evidencing any such Depositary Shares (properly endorsed
or assigned for transfer, if the Depositary shall so require), such Depositary
Shares shall be redeemed by the Depositary for the consideration therefor
specified in said notice, plus all money and other property, if any, represented
by such Depositary Shares, including all amounts, if any, paid by the Company in
respect of dividends which on the Redemption Date have accrued on the shares of
Preferred Stock to be so redeemed
8
9
and have not theretofore been paid. If less than all of the Depositary Shares
evidenced by any Receipt are called for redemption, the Depositary will deliver
to the holder of such Receipt upon its surrender to the Depositary, together
with the redemption payment, a new Receipt evidencing the Depositary Shares
evidenced by such prior Receipt and not called for redemption. The foregoing
shall further be subject to the terms and conditions of the Preferred Stock, as
set forth in the Certificate of Incorporation and Certificate of Designation.
(c) Any balance of monies deposited by the Company for the
purpose of redeeming Preferred Stock underlying the Depositary Shares and
unclaimed by the holders of the Depositary Shares entitled thereto at the
expiration of two years from the Redemption Date shall be repaid, together with
any interest or earnings thereon, if any, to the Company. After any such
repayment, such holders of Depositary Shares entitled to the funds so repaid to
the Company shall look only to the Company for payment without interest or other
earnings.
SECTION 2.5 CONVERSION OF DEPOSITARY SHARES. (a) The Depositary Shares
held by any holder of a Receipt or Receipts may, at the option of such holder,
be converted, in whole, or from time to time in part (but only in lots of ten
Depositary Shares or integral multiples thereof if less then all the Depositary
Shares held by such holder are being converted), into shares of Common Stock
upon the same terms and conditions as the Preferred Stock, except that the
number of shares of Common Stock received upon conversion of each Depositary
Share will be equal to the number of shares of Common Stock received upon
conversion of one share of Preferred Stock divided by ten. Whenever a holder of
a Receipt or Receipts shall elect to convert the Depositary Shares represented
by such Receipt or Receipts into shares of Common Stock pursuant to the terms of
the Preferred Stock, such holder shall deliver to the Depositary or any of the
Depositary's Agents the Receipt or Receipts evidencing the Depositary Shares to
be converted, together with a written notice of conversion and an assignment of
the Receipt or Receipts to the Company or in blank, in form reasonably
acceptable to the Depositary. In addition, if such holder surrenders such
Depositary Shares for conversion during the period from the close of business on
any record date fixed pursuant to Section 4.4 for the payment of dividends until
the opening of business of the dividend payment date corresponding to such
record date (the "Dividend Payment Date"), such Receipt or Receipts shall be
accompanied by a payment in cash, Common Stock or a combination thereof
(depending on the method of payment that the Company has chosen to pay the
dividend) in an amount equal to the dividend payable on the Dividend Payment
Date, unless such Depositary Shares have been called for redemption on a
Redemption Date occurring during the period from the close of business on such
record date until the close of business on the business day immediately
following the Dividend Payment Date. The dividend payment with respect to
Depositary Shares called for redemption on a date during the period from the
close of business on such record date to the close of business on the business
day immediately following the Dividend Payment Date will be payable on the
Dividend Payment Date to the Record Holder of such Depositary Shares on such
record date, notwithstanding the conversion of such Depositary Shares after such
record date and prior to the Dividend Payment Date, and the holder converting
such Depositary Shares need not include a payment of such dividend amount upon
surrender of such Depositary Shares. Each conversion of Depositary Shares shall
be deemed to have been effected immediately before the
9
10
close of business on the date on which the requirements specified in the
preceding sentence shall have been satisfied (the "Conversion Date").
(b) If a holder of a Receipt elects to convert less than all
of the Depositary Shares evidenced by a Receipt, the Depositary will deliver to
the holder of the Receipt upon its surrender to the Depositary a new Receipt
evidencing the Depositary Shares evidenced by such prior Receipt and not
converted, together with a certificate for the shares of Common Stock issued
upon conversion. The foregoing shall further be subject to the terms and
conditions of the Preferred Stock, as set forth in the Certificate of
Incorporation and Certificate of Designation.
(c) No fractional shares of Common Stock will be issued upon
conversion of Depositary Shares. If such conversion would otherwise result in a
fractional share of Common Stock being issued, the Company shall cause to be
delivered to the holder of such Depositary Shares an amount in cash for such
fractional share as provided in the Certificate of Designations.
(d) From and after the Conversion Date, the Depositary Shares
being converted shall be deemed no longer to be outstanding, all dividends with
respect to the shares of Preferred Stock converted shall cease to accrue, all
rights of the holders of Receipts evidencing such Depositary Shares shall, to
the extent of such Depositary Shares, cease and terminate, except the right to
receive shares of Common Stock into which the Depositary Shares have been
converted and the right to receive any money or other property to which the
holders of such Receipts were entitled upon conversion (including all amounts,
if any, paid by the Company in respect of dividends which, on the Conversion
Date, have accrued on the shares of Preferred Stock to be converted and have not
theretofore been paid).
SECTION 2.6 TRANSFER OF RECEIPTS. Subject to the terms and conditions
of this Deposit Agreement, the Depositary shall make transfers on its books from
time to time of Receipts upon any surrender thereof at the Depositary's
Principal Office by the holder in person or by duly authorized attorney,
properly endorsed or accompanied by a properly executed instrument of transfer,
and duly stamped as may be required by law. Thereupon the Depositary shall
execute a new Receipt or Receipts and deliver the same to or upon the order of
the Person entitled thereto evidencing the same aggregate number of Depositary
Shares as those evidenced by the Receipt or Receipts surrendered.
SECTION 2.7 COMBINATIONS AND SPLIT-UPS OF RECEIPTS. Upon surrender of a
Receipt or Receipts at the Depositary's Principal Office or at such other
offices as it may designate for the purpose of effecting a split-up or
combination of such Receipt or Receipts, and subject to the terms and conditions
of this Deposit Agreement, the Depositary shall execute and deliver a new
Receipt or Receipts in the authorized denominations requested, evidencing the
same aggregate number of Depositary Shares evidenced by the Receipt or Receipts
surrendered.
SECTION 2.8 SURRENDER OF RECEIPTS AND WITHDRAWAL OF PREFERRED STOCK.
(a) Any holder of a Receipt or Receipts representing any number of whole shares
of Preferred Stock may withdraw the Preferred Stock and all money and other
property, if any, represented thereby by surrendering such Receipt or Receipts,
at the Depositary's
10
11
Principal Office or at such other offices as the Depositary may designate for
such withdrawals. Thereafter, without unreasonable delay, the Depositary shall
deliver to such holder, or to the Person or Persons designated by such holder as
hereinafter provided, the number of whole shares of Preferred Stock and all
money and other property, if any, represented by the Receipt or Receipts so
surrendered for withdrawal. If the Receipt delivered by the holder to the
Depositary in connection with such withdrawal shall evidence a number of
Depositary Shares in excess of the number of Depositary Shares representing the
number of whole shares of Preferred Stock to be so withdrawn, the Depositary
shall at the same time, in addition to such number of whole shares of Preferred
Stock and such money and other property, if any, to be so withdrawn, deliver to
such holder, or upon his order, a new Receipt evidencing such excess number of
Depositary Shares. In no event will fractional shares of Preferred Stock (or
cash in lieu thereof) be distributed by the Depositary. Delivery of the
Preferred Stock and money and other property being withdrawn may be made by the
delivery of such certificates, documents of title and other instruments as the
Depositary may deem appropriate, which, if required by the Depositary, shall be
properly endorsed or accompanied by proper instruments of transfer.
(b) 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 Record 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 Record Holder for withdrawal of such
shares of Preferred Stock be properly endorsed in blank or accompanied by a
properly executed instrument of transfer in blank.
(c) Delivery of the Preferred Stock and the money and other
property, if any, represented by Receipts surrendered for withdrawal shall be
made by the Depositary at its Principal Office, except that at the request, risk
and expense of the holder that surrendered such Receipt or Receipts, and for the
account of the holder thereof, such delivery may be made at such other place as
may be designated by such holder.
SECTION 2.9 LIMITATIONS ON EXECUTION AND DELIVERY, TRANSFER, SPLIT-UP,
COMBINATION AND SURRENDER OF RECEIPTS. (a) As a condition precedent to the
execution and delivery, transfer, split-up, combination or surrender of any
Receipt, the Depositary, or any of the Depositary's Agents, or the Company, may
require (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), (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 consistent
with the provisions of this Deposit Agreement.
(b) The deposit of Preferred Stock may be refused, or the
delivery of Receipts against Preferred Stock may be suspended or the transfer of
Receipts may be refused, or the transfer, split-up, combination or surrender of
outstanding Receipts may be suspended (i) during
11
12
any period when the register of Stockholders of the Company is closed, or (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, with the
approval of the Company, for any other reason.
SECTION 2.10 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, upon (a) the filing by the holder thereof with the Depositary of
evidence satisfactory to the Depositary and the Company of such destruction or
loss or theft of such Receipt, of the authenticity thereof and of his ownership
thereof and (b) the furnishing of the Depositary and the Company with an
indemnity bond or other reasonable indemnification satisfactory to them.
SECTION 2.11 CANCELLATION AND DESTRUCTION OF SURRENDERED RECEIPTS. All
Receipts surrendered to the Depositary or any of the Depositary's Agents shall
be cancelled by the Depositary. Except as prohibited by applicable law or
regulation, the Depositary shall, unless otherwise directed by the Company, hold
on behalf of the Company such Receipts so cancelled.
ARTICLE III
CERTAIN OBLIGATIONS OF HOLDERS
OF RECEIPTS AND THE COMPANY
SECTION 3.1 FILING PROOFS, CERTIFICATES AND OTHER INFORMATION. Any
Person presenting Preferred Stock for deposit or any holder of a Receipt may be
required from time to time to file such proof of residence, or other matters or
other information, to execute such certificates and to make such representations
and warranties as the Depositary or the Company may reasonably deem necessary or
proper. The Depositary or the Company may withhold the delivery or delay the
transfer, redemption or exchange of any receipt or the withdrawal of the
Preferred Stock represented by the Depositary Shares evidenced by any Receipt or
the distribution of any dividend or other distribution or the sale of any rights
or of the proceeds thereof until such proof or other information is filed or
such certificates are executed or such representations and warranties are made.
SECTION 3.2 PAYMENT OF TAXES OR OTHER GOVERNMENTAL CHARGES. If any tax
or other governmental charge shall become payable by or on behalf of the
Depositary with respect to any Receipt evidencing Depositary Shares or with
respect to the Preferred Stock (or any fractional interest therein) represented
by such Depositary Shares, such tax (including transfer taxes, if any) or
governmental charge shall be payable by the holder of such Receipt, subject to
certain exceptions set forth in Section 5.7. Transfer of any Receipt or any
withdrawal of Preferred Stock and all money or other property, if any,
represented by the Depositary Shares evidenced by such Receipt may be refused
until such payment is made, and any
12
13
dividends, interest payments or other distributions may be withheld, or any part
or all of the Preferred Stock or other property represented by the Depositary
Shares evidenced by such Receipt and not theretofore sold may be sold for the
account of the holder thereof (after attempting by reasonable means to notify
such holder prior to such sale), and such dividends, interest payments or other
distributions or the proceeds of any such sale may be applied to any payment of
such tax or other governmental charge, the holder of such Receipt remaining
liable for any deficiency.
SECTION 3.3 REPRESENTATIONS AND WARRANTIES AS TO PREFERRED STOCK. In
the case of the initial deposit of the Preferred Stock, the Company and, in the
case of subsequent deposits thereof, each Person so depositing Preferred Stock
under this Deposit Agreement shall be deemed thereby to represent and warrant
that such Preferred Stock and each certificate therefore are valid and that the
Person making such deposit is duly authorized so to do. The Company hereby
further represents and warrants that the Preferred Stock, when issued, will be
validly issued, fully paid and nonassessable. Such representations and
warranties shall survive the deposit of the Preferred Stock and the issuance of
Receipts.
ARTICLE IV
THE DEPOSITED SECURITIES; NOTICES
SECTION 4.1 CASH DISTRIBUTIONS. Whenever the Depositary shall receive
any cash dividend or other cash distribution on Preferred Stock, including any
cash Liquidated Damages, the Depositary shall, subject to Section 3.2,
distribute to Record Holders of Receipts on the record date fixed pursuant to
Section 4.4 such amounts of such sum as are, as nearly as practicable, in
proportion to the respective numbers of Depositary Shares evidenced by the
Receipts held by such Record Holders; PROVIDED, HOWEVER, that in case the
Company or the Depositary shall be required to withhold and does from any cash
dividend or other cash distribution in respect of the Preferred Stock an amount
on account of taxes, the amount made available for distribution or distributed
in respect of Depositary Shares shall be reduced accordingly. The Depositary
shall distribute or make available for distribution, as the case may be, only
such amount, however, as can be distributed without attributing to any owner of
Depositary Shares a fraction of one cent, and any balance not so distributable
shall be held by the Depositary (without liability for interest thereon) and
shall be added to and be treated as part of the next sum received by the
Depositary for distribution to Record Holders of Receipts then outstanding.
SECTION 4.2 DISTRIBUTIONS OTHER THAN CASH. Whenever the Depositary
shall receive any distribution upon the Preferred Stock, including any
Liquidated Damages, in shares of Common Stock, the Depositary shall, subject to
Section 3.2, distribute to Record Holders of Receipts on the record date fixed
pursuant to Section 4.4, such shares of Common Stock received by it in
proportion to the respective numbers of Depositary Shares evidenced by the
Receipts held by such holders, except that the Depositary may not distribute
fractional shares of Common Stock. If in the opinion of the Company, after
consultation with the Depositary, such distribution cannot be made
proportionately among such Record Holders, or if for any reason
13
14
(including any requirement that the Company or the Depositary withhold an amount
on account of taxes) the Depositary deems, after consultation with the Company,
such distribution not to be feasible, the Depositary may, at the direction of
the Company, adopt such method as the Company deems equitable and practicable
for the purpose of effecting such distribution, including the sale at public
sale of the other securities or property thus received, or any part thereof, at
such place or places and upon such terms as it may deem proper. No fractional
shares of Common Stock will be issued as a distribution on the Preferred Stock
and, if such distribution would otherwise result in a fractional share of Common
Stock being issued, the Depositary shall sell the total number of shares of
Common Stock that would have been represented by such fractional shares at
public sale at such place or places and upon such terms it deems proper. The net
proceeds of any sale made pursuant to this Section 4.2 shall, subject to Section
3.2, be distributed or made available for distribution, as the case may be, by
the Depositary to Record Holders of Receipts as provided by Section 4.1 in the
case of a distribution received in cash.
SECTION 4.3 SUBSCRIPTION RIGHTS, PREFERENCES OR PRIVILEGES. (a) If the
Company shall at any time offer or cause to be offered to the Persons in whose
names Preferred Stock is recorded on the books of the Company any rights,
preferences or privileges to subscribe for or to purchase any securities or any
rights, preferences or privileges of any other nature, such rights, preferences
or privileges shall in each such instance be made available by the Depositary to
the Record Holders of Receipts in such manner as the Company may determine,
either by the issue to such Record Holders of warrants representing such rights,
preferences or privileges or by such other method as may be approved by the
Company in its discretion with the approval of the Depositary; PROVIDED,
HOWEVER, that (i) if at the time of issue or offer of any such rights,
preferences or privileges the Company determines that it is not lawful or (after
consultation with the Depositary) not feasible to make such rights, preferences
or privileges available to holders of Receipts by the issue of warrants or
otherwise or (ii) if and to the extent so instructed by holders of Receipts who
do not desire to exercise such rights, preferences or privileges, then the
Company, in its discretion (with the approval of the Depositary, in any case
where the Company has determined that it is not feasible to make such rights,
preferences or privileges available), may, if applicable laws or the terms of
such rights, preferences or privileges permit such transfer, sell such rights,
preferences or privileges at public sale, at such place or places and upon such
terms as it may deem proper. The net proceeds of any such sale shall be
distributed by the Depositary to the Record Holders of Receipts entitled thereto
as provided by Section 4.1 in the case of a distribution received in cash.
(b) If registration under the Securities Act of 1933 of the
securities to which any rights, preferences or privileges relate is required in
order for holders of Receipts to be offered or sold the securities to which such
rights, preferences or privileges relate, the Company agrees with the Depositary
that it will promptly file a registration statement pursuant to such Act with
respect to such rights, preferences or privileges and securities and use its
best efforts and take all steps available to it to cause such registration
statement to become effective sufficiently in advance of the expiration of 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 the Company
provides to the Depositary an opinion of counsel stating that the securities to
which such rights, preferences or
14
15
privileges relate have been registered under the Securities Act of 1933 or do
not need to be registered under such Act.
(c) If any other action under the laws of any jurisdiction or
any governmental or administrative authorization, consent or permit is required
in order for such rights, preferences or privileges to be made available to
holders of Receipts, the Company agrees with the Depositary that the Company
will use its best efforts to take such action or obtain such authorization,
consent or permit sufficiently in advance of the expiration of such rights,
preferences or privileges to enable such holders to exercise such rights,
preferences or privileges.
SECTION 4.4 NOTICE OF DIVIDENDS; FIXING OF RECORD DATE FOR HOLDERS OF
RECEIPTS. Whenever (a) any cash dividend or other cash distribution shall become
payable or any distribution other than cash shall be made, or any rights,
preferences or privileges shall at any time be offered, with respect to
Preferred Stock, or (b) the Depositary shall receive notice of any meeting at
which holders of Preferred Stock are entitled to vote or of which holders of
Preferred Stock are entitled to notice or of any election on the part of the
Company to redeem any shares of Preferred Stock, the Depositary shall in each
such instance fix a record date (which shall be the same date as the record date
fixed by the Company with respect tithe Preferred Stock) for the determination
of the Record Holders of Receipts (x) who shall be entitled to receive such
dividend, distribution, rights, preferences or privileges or the net proceeds of
the sale thereof, or (y) who shall be entitled to give instructions for the
exercise of voting rights at any such meeting, or who shall be entitled to
notice of such meeting, or (z) whose Depositary Shares are to be redeemed.
SECTION 4.5 VOTING RIGHTS. Upon receipt of notice of any meeting at
which the holders of Preferred Stock are entitled to vote, the Depositary shall,
as soon as practicable thereafter, mail to the Record Holders of Receipts a
notice which shall contain (a) such information as is contained in such notice
of meeting, and (b) a statement that the holders of Receipts at the close of
business on a specified record date determined pursuant to Section 4.4 will be
entitled, subject to any applicable provision of law and of the Certificate of
Incorporation or the Authorizing Resolution, to instruct the Depositary as to
the exercise of the voting rights pertaining to the amount of Preferred Stock
represented by their respective Depositary Shares, and a brief statement as to
the manner in which such instructions may be given. Upon the written request of
a Record Holder of a Receipt, the Depositary shall endeavor insofar as
practicable to vote or cause to be voted the amount of Preferred Stock
represented by the Depositary Shares evidenced by such Receipt in accordance
with the instructions set forth in such request. To the extent any such
instructions request the voting of a fraction of a share of Preferred Stock, the
Depositary shall aggregate such fraction with all other fractions resulting from
requests with the same voting instructions and shall vote the number of whole
shares resulting from such aggregation in accordance with the instructions
received in such requests. The Company hereby agrees to take all reasonable
action which may be deemed necessary by the Depositary in order to enable the
Depositary to vote such Preferred Stock or cause such Preferred Stock to be
voted. In the absence of specific written instructions from the Record 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.
15
16
SECTION 4.6 CHANGES AFFECTING DEPOSITED SECURITIES AND
RECLASSIFICATIONS, RECAPITALIZATIONS, ETC. Upon any change in par or stated
value, split-up, consolidation or any other reclassification of the Preferred
Stock, or upon any recapitalization, reorganization, merger, amalgamation or
consolidation or sale of all or substantially all of the Company's assets
affecting the Company or to which it is a party, the Depositary shall, upon the
instructions of the Company and in such manner as the Company may deem
equitable, (a) make such adjustments in (i) the fraction of an interest
represented by one Depositary Share in one share of Preferred Stock and (ii) the
ratio of the redemption price per Depositary Share to the redemption price of a
share of Preferred Stock in each case as may be necessary to fully reflect the
effects of such change in par or stated value, split-up, consolidation or other
reclassification of the Preferred Stock, or of such recapitalization,
reorganization, merger, amalgamation or such consolidation or sale and (b) treat
any securities which shall be received by the Depositary in exchange for or upon
conversion of or otherwise in respect of the Preferred Stock as new deposited
securities under this Deposit Agreement, and Receipts then outstanding shall
thenceforth represent the new deposited securities so received. In any such case
the Company may, in its discretion, direct the Depositary to execute and deliver
additional Receipts, or may call for the surrender of all outstanding Receipts
to be exchanged for new Receipts specifically describing such new deposited
securities.
SECTION 4.7 REPORTS. The Depositary shall make available for inspection
by Record Holders of Receipts at its Principal Office, and at such other places
as it may from time to time deem advisable, any reports and communications
received from the Company which are received by the Depositary as the holder of
Preferred Stock unless at the time of or prior to receipt the Company advises
the Depositary that such reports or communications have not been made generally
available to the holders of Preferred Stock.
SECTION 4.8 LISTS OF RECEIPT HOLDERS. Upon request from time to time by
the Company, the Depositary shall, without unreasonable delay, furnish to the
Company a list, as of a recent date, of the names, addresses and holdings of
Preferred Stock by all Persons in whose names Receipts are registered on the
books of the Depositary.
ARTICLE V
THE DEPOSITARY AND THE COMPANY
SECTION 5.1 MAINTENANCE OF OFFICE, AGENCIES, TRANSFER BOOKS BY THE
DEPOSITARY REGISTRAR. (a) Upon execution of this Deposit Agreement in accordance
with its terms, the Depositary shall maintain at its Principal Office facilities
for the execution and delivery, transfer, surrender and exchange of Receipts,
and at the offices of the Depositary's Agents, if any, facilities for the
delivery, transfer, surrender and exchange of Receipts, all in accordance with
the provisions of this Deposit Agreement.
(b) The Depositary shall keep books at its Principal Office
for the transfer of Receipts, which books at all reasonable times shall be open
for inspection by the Record Holders
16
17
of Receipts, unless the Company advises the Depositary in a particular instance
that such inspection is not for a proper purpose reasonably related to such
Person's interest as an owner of Depositary Shares evidenced by the Receipts.
The Depositary may close such books, at any time or from time to time, when
deemed expedient by it in connection with the performance of its duties
hereunder.
(c) If the Receipts or the Depositary Shares evidenced thereby
or the Preferred Stock represented by such Depositary Shares shall be quoted on
the NYSE, the Company may, upon consultation with the Depositary, appoint a
Registrar for registry of such Receipts or Depositary Shares in accordance with
the requirements of the NYSE. Such Registrar (which may be the Depositary if so
permitted by the requirements of the NYSE) may be removed and a substitute
registrar appointed by the Depositary upon the request or with the approval of
the Company. If the Receipts of such Depositary Shares or such Preferred Stock
are listed on one or more stock exchanges, the Depositary will, at the request
of the Company, arrange such facilities for the delivery, transfer, surrender
and exchange of such Receipts or such Depositary Share or such Preferred Stock
as may be required by law or applicable stock exchange regulation.
SECTION 5.2 PREVENTION OR DELAY IN PERFORMANCE BY THE DEPOSITARY, THE
DEPOSITARY'S AGENTS OR THE COMPANY. Neither the Depositary nor any Depositary's
Agent nor the Company shall incur any liability to any holder of any Receipt, if
by reason of any provision of any present or future law, or regulation
thereunder of the United States of America, or of any other governmental
authority or, in the case of the Depositary or any of the Depositary's Agents,
by reason of any provision, present or future, of the Certificate of
Incorporation or the Authorizing Resolution or by reason of any act of God or
war or other circumstance beyond the control of the relevant party, the
Depositary, any Depositary's Agent or the Company shall be prevented or
forbidden from or delayed in doing or performing any act or thing which the
terms of this Deposit Agreement provide shall or may be done or performed, or by
reason of any exercise of, or failure to exercise, any discretion provided for
in this Deposit Agreement.
SECTION 5.3 OBLIGATIONS OF THE DEPOSITARY, THE DEPOSITARY'S AGENTS AND
THE COMPANY. (a) Neither the Depositary nor any Depositary's Agent nor the
Company assumes any obligations or shall be subject to any liability under this
Deposit Agreement to holders of Receipts other than that each of them agrees to
use its best judgment and good faith in the performance of such duties as are
specifically set forth in this Deposit Agreement.
(b) Neither the Depositary nor any Depositary's Agent nor the
Company shall be under any obligation to appear in, prosecute or defend any
action, suit or other proceeding with respect to Preferred Stock, Depositary
Shares or Receipts, which in its opinion may involve it in expense or liability,
unless indemnity satisfactory to it against all expense and liability be
furnished as often as may be required.
(c) 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
17
18
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.
(d) The Depositary and the Depositary's Agents may own and
deal in any class of securities of the Company and its affiliates and in
Receipts. The Depositary may also act as transfer agent or registrar of any of
the securities of the Company and its affiliates.
SECTION 5.4 RESIGNATION AND REMOVAL OF THE DEPOSITARY, APPOINTMENT OF
SUCCESSOR DEPOSITARY. (a) 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.
(b) 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.
(c) 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 having its principal office
in the United States of America. Each successor depositary shall execute and
deliver to its predecessor and to the Company an instrument in writing accepting
its appointment hereunder, and thereupon such successor depositary, without any
further act or deed, shall become fully vested with all the rights, powers,
duties and obligations of its predecessor and for all purposes shall be the
Depositary under this Deposit Agreement, and such predecessor, upon payment of
all sums due it and on the written request of the Company, shall promptly
execute and deliver an instrument transferring to such successor all rights and
powers of such predecessor hereunder, shall duly assign, transfer and deliver
all rights, title and interest in the stock and any moneys or property held
hereunder to such successor, and shall deliver to such successor a list of the
Record Holders of all outstanding Receipts. Any successor depositary shall
promptly mail notice of its appointment to the Record Holders of Receipts.
(d) Any corporation into or with which the Depositary may be
merged, consolidated or converted shall be the successor of such Depositary
without the execution or filing of any document or any further act. Such
successor depositary may authenticate the Receipts in the name of the
predecessor depositary or in the name of the successor depositary.
SECTION 5.5 CORPORATE NOTICES AND REPORTS. The Company agrees that it
will deliver to the Depositary, and the Depositary will, promptly after receipt
thereof, transmit to the Record Holders of Receipts, in each case at the address
recorded in the Depositary's books, copies of all notices and reports
(including, without limitation, financial statements) required by law, by the
rules of any national securities exchange or the Nasdaq National Market upon
which
18
19
the Preferred Stock, the Depositary Shares or the Receipts are listed or
by the Certificate of Incorporation (including the Certificate of Designations)
and the Authorizing Resolution to be furnished by the Company to holders of
Preferred Stock. Such transmission will be at the Company's expense and the
Company will provide the Depositary with such number of copies of such documents
as the Depositary may reasonably request. In addition, the Depositary will
transmit to the holders of Receipts (at the Company's expense) such other
documents as may be requested by the Company.
SECTION 5.6 INDEMNIFICATION BY THE COMPANY. (a) The Company agrees to
indemnify the Depositary and its directors, employees and agents (including any
Depositary's Agent and any Registrar) against, and hold each of them harmless
from, any loss, liability or expense (including reasonable costs of
investigation, court costs, and attorneys' fees and disbursements) which may
arise out of acts performed or omitted in accordance with the provisions of this
Deposit Agreement, as the same may be amended, modified or supplemented from
time to time, and of the Receipts (i) by the Depositary, and Registrar or any of
their respective officers, employees or agents (including any Depositary's
Agent), except for any loss, liability or expense arising out of negligence, bad
faith or willful misconduct on the part of any such Person or Persons, or (ii)
by the Company or any of its agents.
(b) Any Person seeking indemnification hereunder (an
"indemnified person") shall notify the Company of the commencement of any
indemnifiable action or claim promptly after such indemnified person becomes
aware of such commencement (provided that the failure to make such notification
shall not affect such indemnified person's rights otherwise than under this
Section 5.6). In case any such action is brought against any indemnified party,
and it notifies the Company of the commencement thereof, the Company will be
entitled to participate therein, and to the extent it may elect by written
notice delivered to the indemnified party promptly after receiving the aforesaid
notice from the indemnified party, to assume the defense thereof with counsel
reasonably satisfactory to the Company. Notwithstanding the foregoing, the
indemnified party or parties shall have the right to employ its or their own
counsel in any such case, but the fees and expenses of such counsel shall be at
the expense of such indemnified party or parties unless (i) the employment of
such counsel shall have been authorized in writing by the Company in connection
with the defense of such action, (ii) the Company shall not have employed
counsel to have charge of the defense of such action within a reasonable time
after notice of commencement of such action, or (iii) such indemnified party or
parties shall have reasonably concluded that there may be defenses available to
it or them which are different from or additional to those available to the
Company (in which case the Company shall not have the right to direct the
defense of such action on behalf of such indemnified party or parties), in any
of which events such reasonable fees and expenses shall be borne by the Company.
Anything in this subsection to the contrary notwithstanding, the Company shall
not be liable for any settlement of any claim or action effected without its
written consent; PROVIDED, HOWEVER, that such consent was not unreasonably
withheld.
(c) The obligations provided in this Section 5.6 shall survive
the termination of this Deposit Agreement and the succession or substitution of
any Person indemnified hereby.
19
20
SECTION 5.7 CHARGES AND EXPENSES. The Company shall pay all transfer
and other taxes and governmental charges arising solely from the existence of
the depositary arrangements. The Company shall pay any and all fees of the
Depositary as shall be agreed to between the Company and the Depositary, and all
charges of the Depositary in connection with the initial deposit of the
Preferred Stock and the initial issuance of the Depositary Receipts,
distribution of information to the holders of Receipts with respect to matters
on which holders of Preferred Stock are entitled to vote, withdrawals of the
Preferred Stock by holders of the Receipts and any redemption or conversion of
the Depositary Receipts. All other transfer and other taxes and governmental
charges shall be at the expense of holders of Depositary Shares. If, at the
request of a holder of Receipts, the Depositary incurs charges or expenses for
which it is not otherwise liable hereunder, such holder will be liable for such
charges and expenses. All other reasonable charges and expenses of the
Depositary and any Depositary's Agent hereunder and of any Registrar (including,
in each case, reasonable fees and expenses of counsel) incident to the
performance of their respective obligations hereunder will be paid upon
consultation and agreement between the Depositary and the Company as to the
amount and nature of such charges and expenses. The Depositary shall present its
statement for charges and expenses to the Company monthly or at such other
intervals as the Company and the Depositary may agree.
ARTICLE VI
AMENDMENT AND TERMINATION
SECTION 6.1 AMENDMENT. The form of the Receipts and any provision of
this Deposit Agreement may at any time and from time to time be amended by
agreement between the Company and the Depositary in any respect which they may
deem necessary or desirable. Any amendment which shall impose any fees, taxes or
charges (other than fees and charges provided for herein), or which shall
otherwise prejudice any substantial existing right of holders of Receipts, shall
not become effective as to outstanding Receipts until the expiration of 90 days
after notice of such amendment shall have been given to the Record Holders of
outstanding Receipts. Every holder of an outstanding Receipt at the time any
such amendment so becomes effective shall be deemed, by continuing to hold such
Receipt, to consent and agree to such amendment and to be bound by this Deposit
Agreement as amended thereby. In no event shall any amendment impair the right,
subject to the provisions of Sections 2.8 and 2.9 and Article III, of any owner
of any Receipts to instruct the Depositary to deliver to the holder of Receipts
representing whole shares of Preferred Stock the whole shares of Preferred Stock
represented by such Receipts and all money and other property, if any,
represented by such Receipts, except in order to comply with mandatory
provisions of applicable law.
SECTION 6.2 TERMINATION. (a) Whenever so directed by the Company, the
Depositary will terminate this Deposit Agreement by mailing notice of such
termination to the Record Holders of all Receipts then outstanding at least 30
days prior to the date fixed in such notice for such termination. The Depositary
may likewise terminate this Deposit Agreement if at any time 45 days shall have
expired after the Depositary shall have delivered to the Company 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.
20
21
(b) If any Receipts shall remain outstanding after the date of
termination of this Deposit Agreement, the Depository thereafter shall
discontinue the transfer of Receipts, shall suspend the distribution of
dividends to the holders thereof, and shall not give any further notices (other
than notice of such termination) or perform any further acts under this Deposit
Agreement, except that the Depositary shall continue to (i) collect dividends
and other distributions pertaining to the Preferred Stock, (ii) to deliver the
dividends and distributions and the net proceeds from any sales of rights,
preferences or privileges as provided in this Deposit Agreement, and (iii)
deliver the Preferred Stock and any money and other property, without liability
for interest thereon, represented by Receipts upon surrender thereof by the
holders thereof. At any time after the expiration of two years from the date of
termination, the Depositary shall sell the Preferred Stock then held hereunder
at public or private sale, at such places and upon such terms as the Depositary
deems proper and may thereafter hold the net proceeds of any such sale, together
with any money and other property held by it hereunder, without liability for
interest, for the benefit, pro rata in accordance with their holdings, of the
holders of Receipts which have not theretofore been surrendered. After making
such sale, the Depositary shall be discharged from all obligations under this
Deposit Agreement, except to account for such net proceeds and money and other
property. Upon the termination of this Deposit Agreement, the Company shall be
discharged from all obligations under this Deposit Agreement except for its
obligations to the Depositary, any Depositary's Agent and any Registrar under
Sections 5.6 and 5.7.
ARTICLE VII
MISCELLANEOUS
SECTION 7.1 COUNTERPARTS. This Deposit Agreement may be executed in any
number of counterparts, and by each of the parties hereto on separate
counterparts, each of which counterparts, when so executed and delivered, shall
be deemed an original, but all such counterparts taken together shall constitute
one and the same instrument. Copies of this Deposit Agreement shall be filed
with the Depositary and the Depositary's Agents and shall be open to inspection
during business hours at the Depositary's Principal 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. (a) Any and all notices to be given to the Company
hereunder or under the Depositary Receipts shall be in writing and shall be
deemed to have been
21
22
duly given if personally delivered or sent by mail or telecopy confirmed by
letter, addressed to the Company at ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇
▇▇▇▇▇-▇▇▇▇, Attention: Treasurer, Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇, or at any other
place to which the Company may specify in writing to the Depositary.
(b) Any and all notices to be given to the Depositary
hereunder or under the Depositary Receipts shall be in writing and shall be
deemed to have been duly given if personally delivered or sent by mail or by
telecopy confirmed by letter, addressed to the Depositary, at BankBoston, N.A.,
c/o Boston Equiserve Limited Partnership, ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇, ▇▇, ▇▇▇▇▇,
Attention: Client Administration, Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇, or at any other
place to which the Depositary may specify in writing to the Company.
(c) Any and all notices given to a Record Holder of a Receipt
hereunder or under the Depositary Receipts shall be in writing and shall be
deemed to have been duly given if personally delivered or sent by mail or by
telecopy confirmed by letter, addressed to such Record Holder at the address of
such Record Holder as it appears on the books of the Depositary, or if such
holder shall have filed with the Depositary a written request that notices
intended for such holder be mailed to some other address, at the address
designated in such request.
Delivery of a notice sent by mail or by telecopy shall be
deemed to be effected at the time when a duly addressed letter containing the
same (or a confirmation thereof in the case of a telecopy message) is deposited,
postage prepaid, in a post office letter box. The Depositary or the Company,
may, however, act upon any telecopy message received by it from the other or
from any holder of a Receipt, notwithstanding that such telecopy message shall
not subsequently be confirmed by letter as aforesaid.
SECTION 7.5 DEPOSITARY'S AGENTS. The Depositary may from time to time
appoint Depositary's Agents to act in any respect or the Depositary for the
purposes of this Deposit Agreement and may at any time appoint additional
Depositary's Agents. The Depositary will notify the Company of any such action.
The Depository may also subcontract for performance of services hereunder with
Boston Equiserve Limited Partnership, a Delaware limited partnership.
SECTION 7.6 HOLDERS OF RECEIPTS ARE PARTIES. The holders of Receipts
from time to time shall be deemed to be parties to this Deposit Agreement and
shall be bound by all of the terms and conditions hereof and of the Receipts by
acceptance of delivery thereof.
SECTION 7.7 GOVERNING LAW. The Deposit Agreement and the Receipts and
all rights hereunder and thereunder and provisions hereof and thereof shall be
governed by, and construed in accordance with, the internal laws of the State of
New York without reference to the principles of conflicts of law thereof. The
Company and the Depositary agree that the federal courts in the State of New
York for the Southern District of New York shall have jurisdiction to hear and
determine any suit, action or proceeding and to settle any dispute between them
that may arise out of or in connection with this Deposit Agreement and, for such
purposes, each irrevocably submits to the nonexclusive jurisdiction of such
courts.
22
23
SECTION 7.8 WAIVER OF JURY TRIAL. EACH OF THE COMPANY AND THE
DEPOSITARY HEREBY WAIVES TRIAL BY JURY IN ANY ACTION, PROCEEDING OR COUNTERCLAIM
BROUGHT BY OR AGAINST IT BY THE OTHER PARTY ON ANY MATTERS WHATSOEVER, IN
CONTRACT OR IN TORT, ARISING OUT OF OR IN ANY WAY CONNECTED WITH THIS AGREEMENT.
SECTION 7.9 ASSIGNMENT. This Deposit Agreement may not be assigned by
either the Company or the Depositary without the consent of the other party.
SECTION 7.10 HEADINGS. The headings of articles and sections in this
Deposit Agreement and in the form of a Receipt set forth in Exhibit A hereto
have been inserted for convenience only and are not to be regarded as a part of
this Deposit Agreement or to have any bearing upon the meaning or interpretation
of any provision contained herein or in the Receipts.
* * *
23
24
IN WITNESS WHEREOF, Sensormatic Electronics Corporation and BankBoston,
N.A. have duly executed this Agreement as of the day and year first above set
forth and all holders of Receipts shall become parties hereto by and upon
acceptance by them of delivery of Receipts issued in accordance with the terms
hereof.
SENSORMATIC ELECTRONICS CORPORATION
Attest: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
-------------------------- ----------------------------------
▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Senior Vice Presdient and
Chief Financial Officer
BANKBOSTON, N.A.
Attest: /s/ ▇▇▇▇▇ ▇▇▇▇▇▇-▇▇▇▇ By: /s/ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
-------------------------- ----------------------------------
▇▇▇▇▇ ▇▇▇▇▇▇-▇▇▇▇ Name: ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Title: Administration Manager
24