EXHIBIT 4.4
DEPOSIT AGREEMENT
dated as of November , 1995
among
CABLEVISION SYSTEMS CORPORATION,
a Delaware corporation,
[Name of Depositary],
a [national banking association],
AND THE HOLDERS FROM TIME TO TIME
OF THE RECEIPTS DESCRIBED HEREIN.
WHEREAS, it is desired to provide, as hereinafter set forth in this
Deposit Agreement, for the deposit of shares of Series I Cumulative Convertible
Exchangeable Preferred Stock, par value $.01 per share, of CABLEVISION SYSTEMS
CORPORATION with the Depositary (as hereinafter defined) for the purposes set
forth in this Deposit Agreement and for the issuance hereunder of Receipts (as
hereinafter defined) by the Depositary evidencing Depositary Shares (as
hereinafter defined) in respect of the Stock (as hereinafter defined) so
deposited; and
WHEREAS, the Receipts are to be substantially in the form of Exhibit A
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annexed hereto, with appropriate insertions, modifications and omissions as
hereinafter provided in this Deposit Agreement;
NOW, THEREFORE, in consideration of the premises contained herein and
such other good and valuable consideration, receipt of which is hereby
acknowledged, the parties hereto agree as follows:
ARTICLE I
DEFINITIONS
The following definitions shall for all purposes, unless otherwise
indicated, apply to the respective terms used in this Deposit Agreement and the
Receipts (as hereinafter defined):
"Certificate" shall mean the Certificate of Designations filed with
the Secretary of State of Delaware establishing the Stock as a series of
preferred stock of the Company, as it may be amended from time to time in
accordance with its terms.
"Common Stock" shall mean the Company's Class A Common Stock, par
value $.01 per share.
"Company" shall mean Cablevision Systems Corporation, a Delaware
corporation, and its successors.
"Deposit Agreement" shall mean this Deposit Agreement, as amended or
supplemented from time to time in accordance with the terms hereof.
"Depositary" shall mean [Name of Depositary], a [national banking
association], and any successor Depositary hereunder.
"Depositary Shares" shall mean the Depositary Shares, each
representing a one-tenth (1/10) interest in a share of Stock and evidenced by a
Receipt.
"Depositary's Agent" shall mean an agent appointed by the Depositary
pursuant to Section 7.05.
"Depositary's Office" shall mean the principal office of the
Depositary at which at any particular time its depositary business shall be
administered.
"Exchange" shall mean the exchange, at the Company's option, of
Depositary Shares and Stock for the Exchange Debentures.
"Exchange Date" shall mean the date on or after November 1, 1997 on
which the Company may elect in accordance with the Certificate to exchange
Depositary Shares and Stock for Exchange Debentures.
"Exchange Debentures" shall mean the Company's % Convertible
Subordinated Debentures due 2007.
"Receipt" shall mean one of the depositary receipts, whether in
definitive or temporary form, issued hereunder by the Depositary, each
representing any number of whole Depositary Shares.
"Record Holder" or "Holder" with respect to a Receipt shall mean the
individual, entity or person in whose name a Receipt is registered on the books
of the Depositary or any register of any Registrar maintained for such purpose
at a given time.
"Registrar" shall mean any bank or trust company that shall be
appointed by the Depositary to register
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ownership and transfers of Receipts as herein provided and may include the
Depositary.
"Stock" shall mean shares of the Company's Series I Cumulative
Convertible Exchangeable Preferred Stock (liquidation preference $250.00 per
share).
ARTICLE II
FORM OF RECEIPTS; DEPOSIT OF STOCK; EXECUTION AND DELIVERY, TRANSFER AND
SURRENDER OF RECEIPTS
SECTION 2.01. Form and Transfer of Receipts, Surrender and Redemption
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of Receipts. The Receipts may be typewritten or shall, upon notice by the
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Company to the Depositary, be definitive Receipts which shall be engraved,
printed or typewritten and shall be substantially in the form set forth in
Exhibit A annexed to this Deposit Agreement, with appropriate insertions,
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modifications and omissions, as hereinafter provided. Pending the preparation
of definitive Receipts, the Depositary, upon the written order of the Company
delivered in compliance with Section 2.02, shall execute and deliver temporary
Receipts, which shall be printed, lithographed, typewritten, mimeographed or
otherwise substantially of the tenor of the definitive Receipts in lieu of which
they are issued and with such appropriate insertions, omissions, substitutions
and other variations as the persons executing such Receipts may determine, as
evidenced by their execution of such Receipts. If temporary Receipts are
issued, the Company and the Depositary will cause definitive Receipts to be
prepared without unreasonable delay. After the preparation of definitive
Receipts, the temporary Receipts shall be exchangeable for definitive Receipts
upon surrender of the temporary Receipts at the Depositary's Office, without
charge to the holder. Upon surrender for cancellation of any one or more
temporary Receipts, the Depositary shall execute and deliver in exchange
therefor definitive Receipts representing the same number of Depositary Shares
as represented by the surrendered temporary Receipt or Receipts registered in
the name (and only the name) of the holder of the temporary Receipt. Such
exchange shall be made at the Company's expense and without any charge therefor
to the holder. Until so exchanged, the temporary Receipts shall in all respects
be entitled to the same benefits under this Deposit Agreement, and with respect
to the Stock, as definitive Receipts.
Receipts shall be executed by the Depositary by the manual signature
of a duly authorized officer of the
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Depositary; provided, however, that such signature may be a facsimile if a
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Registrar for the Receipts (other than the Depositary) shall have been appointed
and such Receipts are countersigned by manual signature of a duly authorized
officer of the Registrar. No Receipt shall be entitled to any benefits under
this Deposit Agreement or be valid or obligatory for any purpose unless it shall
have been executed manually by a duly authorized officer of the Depositary or,
if a Registrar for the Receipts (other than the Depositary) shall have been
appointed, by facsimile signature of a duly authorized officer of the Depositary
and countersigned manually by a duly authorized officer of such Registrar. The
Depositary shall record on its books each Receipt so signed and delivered as
hereinafter provided. The manual or facsimile signatures of individuals who
were at any time proper officers of the Depositary or the Registrar, as the case
may be, shall constitute adequate signatures hereunder, notwithstanding that
such individuals or any of them have ceased to hold such offices prior to the
delivery of Receipts bearing such signatures or did not hold such offices on the
date of delivery of such Receipts.
Receipts shall be in denominations of any number of whole Depositary
Shares.
Receipts may be endorsed with or have incorporated in the text thereof
such legends or recitals or changes not inconsistent with the provisions of this
Deposit Agreement as may be required by the Depositary and approved by the
Company or required to comply with any applicable law or regulation or with the
rules and regulations of any securities exchange upon which the Stock, the
Depositary Shares or the Receipts may be listed or to conform with any usage
with respect thereto, or to indicate any special limitations or restrictions to
which any particular Receipts are subject.
Title to any Receipt (and to the Depositary Shares evidenced by such
Receipt) that is properly endorsed, or accompanied by a properly executed
instrument of transfer, shall be transferable by delivery of such Receipt with
the same effect as if such Receipt were a negotiable instrument; provided,
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however, that until transfer of a Receipt shall be registered on the books of
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the Registrar, on behalf of the Depositary, as provided in Section 2.03, the
Depositary may, notwithstanding any notice to the contrary, treat the record
holder as the absolute owner thereof for the purpose of determining the person
entitled to distributions of dividends or other distributions with respect to
the Stock, the exchange of Depositary Shares for Stock, or to any notice
provided for in this Deposit Agreement and for all other purposes.
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The Depositary shall not lend any Stock deposited hereunder.
SECTION 2.02. Deposit of Stock; Execution and Delivery of Receipts in
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Respect Thereof. Subject to the terms and conditions of this Deposit Agreement,
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the Company or any other person authorized under the underwriting agreement,
dated November 1, 1995, between the Company and the underwriters with respect to
the Stock (the "Other Persons"), may from time to time deposit shares of Stock
with the Depositary under this Deposit Agreement by delivery to the Depositary
of a certificate or certificates representing the Stock to be deposited;
provided, however, that other than in the case of splits, combinations or other
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reclassifications affecting the Stock, or in the case of dividends or other
distributions of Stock, if any, there shall be deposited with the Depositary
hereunder not more than [1,380,000] shares of Stock. Such certificate or
certificates representing the Stock shall be properly endorsed or accompanied,
if required by the Depositary, by a duly executed instrument of transfer or
endorsement, in form satisfactory to the Depositary, together with a written
order of the Company directing the Depositary to execute and deliver to the
person or persons named in such order a Receipt or Receipts evidencing in the
aggregate the number of Depositary Shares representing such deposited Stock.
All Stock deposited by the Company or the Other Persons, as the case
may be, with the Depositary shall be held by the Depositary at the Depositary's
Office or at such other place or places as the Depositary shall determine.
If required by the Depositary, Stock presented for deposit at any time
(except for the initial deposit of Stock by the Company or the Other Persons and
any subsequent deposit by the Company or the Other Persons of Stock acquired by
such Other Persons pursuant to such Other Persons' overallotment option),
whether or not the register of stockholders of the Company 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 Stock or to
receive other property that any person in whose name the Stock is or has been
registered may thereafter receive upon or in respect of such deposited 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
representing Stock deposited with the
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Depositary by the Company or the Other Persons, as the case may be, in
accordance with the provisions of this Section, together with the other
documents required as above specified, and upon recordation of the Stock so
deposited on the books of the Company in the name of the Depositary, the
Depositary shall execute and deliver, to the person or persons named in the
written order delivered to the Depositary referred to in the first paragraph of
this Section 2.02, a Receipt or Receipts evidencing in the aggregate the number
of Depositary Shares relating to the Stock so deposited. Such Receipt or
Receipts shall be registered by the Depositary or the Registrar in such name or
names as may be requested by the person or persons named in the written order of
the Company delivered to the Depositary. The Depositary shall execute and
deliver such Receipts at the Depositary's Office or such other offices, if any,
as such person may designate. Delivery at other offices shall be at the risk
and expense of the person requesting such delivery. In each case, delivery will
be made only upon payment by the Company to the Depositary of all taxes and
other governmental charges and any fees payable in connection with such deposit
and the transfer of the deposited Stock.
The Company shall deliver to the Depositary from time to time such
quantities of blank Receipts as the Depositary may request to enable it to
perform its obligations under this Deposit Agreement.
SECTION 2.03. Registration of Transfer of Receipts. Subject to the
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terms and conditions of this Deposit Agreement, the Registrar, on behalf of the
Depositary, shall register on its books transfers of Receipts from time to time
upon notice to the Registrar by the Depositary of the surrender of a Receipt for
transfer by the holder in person or by duly authorized attorney, which Receipt
in each case must be properly endorsed or accompanied by a properly executed
instrument of transfer or endorsement together with evidence of the payment of
any transfer taxes as may be required by law. Upon surrender of a properly
endorsed Receipt or a Receipt accompanied by an instrument of transfer or
endorsement, the Depositary shall execute a new Receipt or Receipts evidencing
the same aggregate number of Depositary Shares as those evidenced by the Receipt
or Receipts surrendered and deliver such new Receipt or Receipts to or upon the
order of the transferee named in the endorsement or instrument of transfer.
SECTION 2.04. Split-ups and Combinations of Receipts; Surrender of
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Receipts and Withdrawal of Stock. Upon surrender of a Receipt or Receipts at
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the Depositary's
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Office or at such other office as it may designate for the purpose of effecting
a split-up or combination of such Receipt or Receipts, the Depositary shall
execute and deliver a new Receipt or Receipts to the holder thereof or to such
holder's order in the denominations requested, evidencing the aggregate number
of Depositary Shares evidenced by the Receipt or Receipts surrendered. The
Depositary shall give prompt notice of such action and the certificate numbers
to the Registrar for the purpose of recording such split-up or consolidation.
Any holder of at least ten (10) Depositary Shares which have not been
previously called for redemption or in respect of which a notice of Exchange has
been given may withdraw the number of whole shares of Stock underlying such
Depositary Shares and all money and other property, if any, represented thereby
by surrendering such Receipt or Receipts at the Depositary's Office or at such
other offices as the Depositary may designate for such withdrawals. Thereafter,
without unreasonable delay, the Depositary shall deliver to such holder, or to
the person or persons designated by such holder as hereinafter provided, the
number of whole shares of Stock and all money and other property, if any,
represented by the Receipt or Receipts so surrendered for withdrawal, but
holders of such whole shares of Stock will not thereafter be entitled to deposit
such Stock hereunder or to receive Depositary Shares therefor. If the Receipt
or Receipts delivered by the holder to the Depositary in connection with such
withdrawal shall evidence in the aggregate a number of Depositary Shares in
excess of the number of Depositary Shares representing the number of whole
shares of Stock to be so withdrawn, the Depositary shall at the same time, in
addition to such number of whole shares of Stock and such money and other
property, if any, to be so withdrawn, deliver to such holder, or (subject to
Sections 2.02, 2.03 and 3.02) upon his order, a new Receipt evidencing such
excess number of Depositary Shares. Delivery of the Stock and the 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.
Stock delivered pursuant to the preceding paragraph may be endorsed
with or have incorporated in the text thereof such legends or recitals or
changes not inconsistent with the provisions of this Deposit Agreement as may be
required by the Depositary or required to comply with any applicable law or any
regulation thereunder or with the rules and regulations of any securities
exchange upon which the Stock may be listed or to conform with any usage with
respect thereto, or to indicate any special limitations
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or restrictions to which any particular shares of Stock are subject.
If the 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 Stock, such holder shall execute
and deliver to the Depositary a written order so directing the Depositary and
the Depositary may require that the Receipt or Receipts surrendered by such
holder for withdrawal of such shares of Stock be properly endorsed in blank or
accompanied by a properly executed instrument of transfer in blank.
Delivery of the Stock and the money and other property, if any,
represented by Receipts surrendered for withdrawal shall be made by the
Depositary at the Depositary's Office, except that, at the request, risk and
expense of the holder surrendering such Receipt or Receipts and for the account
of the holder thereof, such delivery may be made at such other place as may be
designated by such holder.
SECTION 2.05. Limitations on Execution and Delivery, Transfer,
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Surrender and Exchange of Receipts. As a condition precedent to the execution
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and delivery, registration of transfer, split-up, combination, surrender or
exchange of any Receipt, the Depositary, any of the Depositary's Agents or the
Company may require payment to it of a sum sufficient for the payment (or, in
the event that the Depositary or the Company shall have made such payment, the
reimbursement to it) of any taxes, charges or expenses payable by the holder of
a Receipt pursuant to Sections 3.02 and 5.07, may require the production of
evidence satisfactory to it as to the identity and genuineness of any signature
and may also require compliance with the rules and regulations of any
governmental body, any stock exchange or any applicable self-regulatory body,
including, without limitation, the Securities Transfer Association, Inc. (the
"STA"), the National Association of Securities Dealers, Inc. (the "NASD") or
such procedures, if any, as the Depositary or the Company may establish
consistent with the provisions of this Deposit Agreement.
The delivery of Receipts against Stock deposited with the Depositary
may be suspended, the registration of transfer of Receipts may be refused and
the registration of transfer, surrender, exchange, split-up or combination of
outstanding Receipts may be suspended and the deposit of Stock may be refused
(i) during any period when the register of stockholders of the Company is closed
or (ii) if any such
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action is deemed necessary 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, governmental body or commission, stock exchange or the
NASD.
SECTION 2.06. Lost Receipts, etc. If any mutilated Receipt is
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surrendered to the Depositary, the Depositary shall execute and deliver in
exchange therefor a new Receipt of like form and tenor in exchange and
substitution for such mutilated Receipt. In case any Receipt shall be
destroyed, lost or stolen, the Depositary shall execute and deliver a Receipt to
the holder thereof of like form and tenor in exchange and substitution for such
destroyed, lost or stolen Receipt, upon (i) the filing by the holder thereof
with the Depositary of evidence satisfactory to the Depositary of such
destruction or loss or theft of such Receipt, of the authenticity thereof and of
such holder's ownership thereof and (ii) the holder's furnishing the Depositary
with reasonable indemnification satisfactory to such Depositary and (iii)
payment of any expenses, including fees, charges and expenses of the Depositary
in connection with such execution and delivery (which may include the customary
premium payable to its insurance carrier in connection therewith). Every new
Receipt issued pursuant to this Section in lieu of any mutilated, destroyed,
lost or stolen Receipt shall constitute an original additional contractual
obligation under this Deposit Agreement, whether or not the mutilated,
destroyed, lost or stolen Receipt shall be at any time enforceable by anyone.
SECTION 2.07. Cancellation and Destruction of Surrendered Receipts.
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All Receipts surrendered to the Depositary or any Depositary's Agent shall be
canceled by the Depositary. Except as prohibited by applicable law or
regulation, the Depositary is authorized to destroy all Receipts so cancelled.
SECTION 2.08. Stock Purchase Plans. Upon receipt of instructions
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from the Company, the Depositary shall take such action as shall be reasonable
to permit the record holders of the Depositary Shares to participate in any
dividend reinvestment or other stock purchase plan sponsored by the Company that
permits the participation by such holders on such terms and conditions as the
Company may determine.
SECTION 2.09. Conversion of Stock into Common Stock. Receipts may
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be surrendered with written instructions to the Depositary to instruct the
Company to
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cause the conversion of any specified number of whole or fractional shares of
Stock represented by the Depositary Shares evidenced thereby into whole shares
of Common Stock at the conversion price then in effect for the Stock (and,
therefore, for the Depositary Shares) specified in the Certificate, as such
conversion price may be adjusted by the Company from time to time as provided in
the Certificate. Subject to the terms and conditions of this Deposit Agreement
and the Certificate, a holder of a Receipt or Receipts evidencing Depositary
Shares representing whole or fractional shares of Stock may surrender such
Receipt or Receipts at the Depositary's Office or to 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 thereof of underlying 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 lieu of such fractional shares 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 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 or
fractions thereof of 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 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 Common
Stock and the amount of money, if any, to be delivered to the holders of
Receipts surrendered for conversion in payment of any accrued and unpaid
dividends and in lieu of fractional shares of Common 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 Common Stock into which the Stock represented by the Depositary Shares
evidenced by such Receipt or Receipts has
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been converted, and (ii) any money or other property to which the holder is
entitled. Upon such conversion, the Depositary (i) shall deliver to the holder
a Receipt evidencing the number of Depositary Shares, if any, which such holder
has elected not to convert and evidencing the number of Depositary Shares, if
any, in excess of the number of Depositary Shares representing Stock which 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 Stock for cancellation the shares of Stock represented by
the Depositary Shares evidenced by the Receipts so surrendered and so converted.
If any Stock shall be called by the Company for redemption, the
Depositary Shares representing such Stock may be converted into Common Stock as
provided in this Deposit Agreement until and including, but not after, the close
of business on the fifth business day preceding the Redemption Date unless the
Company shall default in making payment of the cash redemption price and other
amounts payable upon such redemption, in which case the Depositary Shares
representing such Stock may continue to be converted into Common Stock until and
including, but not after, the close of business on the date on which the Company
makes full payment of the cash redemption price and other amounts payable on
such redemption. Upon receipt by the Depositary of a Receipt or Receipts,
together with a properly completed and executed notice of conversion,
representing any Stock called for redemption, the shares of 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 the close of business on the date of such receipt.
The record holder of Depositary Shares on any dividend payment record
date established by the Depositary pursuant to Section 4.04 shall be entitled to
receive the dividend payable with respect to such Depositary Shares on the
corresponding dividend payment date notwithstanding the subsequent conversion of
the shares of Stock to which such Depositary Shares relate. If a share of Stock
is converted between the record date with respect to any dividend payment on the
Stock and the next succeeding dividend payment date, any holder of Receipts
surrendered with instructions to the Depositary for conversion of the underlying
Stock (except for Depositary Shares converted after the issuance of a notice of
redemption with respect to a Redemption Date during such period which shall be
entitled to such dividend on the dividend payment date) shall pay to the
Depositary an amount equal to the dividend payable on such dividend
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payment date on the Depositary Shares represented by the Receipts being
surrendered for conversion. Any holder of Receipts on a dividend payment record
date who (or whose transferee) surrenders the Receipts with instructions to the
Depositary for conversion of the underlying Stock on the corresponding dividend
payment date will receive the dividend payable with respect to the Depositary
Shares underlying such Receipts and will not be required to include payment of
the amount of such dividend upon surrender of the Receipts for conversion.
Upon the conversion of any shares of Stock for which a request for
conversion has been made by the holder of Depositary Shares representing such
shares, 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 Common Stock, any cash payable with respect to any
fractional shares of Common Stock as provided herein and any cash payable on
account of accrued dividends 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 2.07 hereof.
No fractional shares of Common Stock shall be issuable upon conversion
of Stock underlying the Depositary Shares. If any holder of Receipts
surrendered with instructions to the Depositary for conversion of the underlying
Stock would be entitled to a fractional share of Common 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.
Section 2.10. Redemption of Stock. Whenever the Company shall elect
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to redeem shares of Stock in accordance with the provisions of the Certificate,
it shall (unless otherwise agreed in writing with the Depositary) mail notice to
the Depositary of such redemption, by first class mail, postage prepaid, on the
same date on which the Company first publicly announces such redemption, which
date shall not be less than 35 days prior to the date of such redemption. On
the date of such redemption, provided that the Company shall then have deposited
with the Depositary an amount in cash required pursuant to the Certificate in
order to effect a redemption of the number of shares of Stock specified in the
notice of redemption and any other amounts per share payable with respect to the
Stock, the Depositary shall redeem the Depositary Shares relating to such Stock.
The Depositary shall provide notice of such redemption and the simultaneous
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redemption of the number of Depositary Shares relating to the Stock to be
redeemed to the record holders of the Receipts evidencing the Depositary Shares
to be so redeemed on the record date fixed pursuant to Section 4.04 hereof by
first-class mail, postage prepaid, at the addresses of such holders as they
appear on the records of the Depositary, not less than 30 and not more than 60
days prior to the date fixed for redemption of such Stock and Depositary Shares
(the "Redemption Date"). Neither failure to mail any such notice to one or more
such holders nor any defect in any notice or in the mailing thereof to one or
more such holders shall affect the validity of the proceedings for redemption of
any Depositary Shares as to other holders. Each such notice of redemption
provided by the Depositary to the holder shall state, as appropriate: (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 and
the method by which the Depositary Shares will be chosen for redemption; (iii)
the redemption price per Depositary Share (expressed as an amount of cash) and
any other amounts per share payable with respect to the Depositary Shares; (iv)
the place or places where Receipts evidencing Depositary Shares are to be
surrendered for redemption; (v) the then-current conversion price; and (vi) that
dividends in respect of the Stock to be redeemed, which are represented by the
Depositary Shares to be redeemed, will cease to accrue at the close of business
on such Redemption Date, except as otherwise provided in the Certificate. If
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 may
be determined by the Depositary.
Notice having been mailed by the Depositary as aforesaid, from and
after the Redemption Date (unless the Company shall have failed to deliver to
the Depositary cash sufficient to redeem the shares of Stock to be redeemed by
it or any other amounts per share payable with respect to the Stock as set forth
in the Company's notice provided for in the preceding paragraph), all dividends
in respect of the shares of Stock so called for redemption shall cease to accrue
(except as otherwise provided in the Certificate), the Depositary Shares being
redeemed shall be deemed no longer to be outstanding, all rights of the holders
of Receipts evidencing such Depositary Shares (except the right to receive the
cash redemption price required to redeem such Depositary Shares and any other
amounts per Share payable with respect to the Stock) shall, to the extent of
such Depositary Shares, cease and terminate and, upon surrender in accordance
with such notice of the Receipts evidencing
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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 an amount of cash per Depositary Share equal to one-tenth (1/10)
of the cash amount required by the Certificate to be delivered in respect of one
share of Stock plus all money and other property, if any, underlying such
Depositary Shares, including all amounts paid by the Company in respect of
dividends that, on the Redemption Date, have accrued on the shares of Stock to
be so redeemed and relate to dividend periods ending on or prior to the
Redemption Date or to the extent provided in the Certificate, to the dividend
period ending after the Redemption Date, and have not theretofore been paid.
If less than all the Depositary Shares evidenced by a Receipt are
called for redemption, the Depositary will deliver to the holder of such Receipt
upon its surrender to the Depositary, together with the delivery of a cash
amount sufficient to redeem the shares of Stock to be redeemed and any other
amounts per share payable with respect to the Stock, a new Receipt evidencing
such number of Depositary Shares as were evidenced by such prior Receipt and not
called for redemption.
Upon any redemption, the Company shall deliver to the Depositary an
amount in cash required by the Certificate in order to effect the redemption of
the number of shares of Stock specified in the notice of redemption mailed by
the Company to the Depositary pursuant to this Section 2.10 and a sufficient
amount of funds to pay any other amounts per share payable with respect to the
Stock. The Depositary shall deliver to each holder of a Receipt surrendered for
redemption an amount in cash equal to the number or amount required by the
Certificate to effect a redemption of the number of Depositary Shares evidenced
by such Receipt to be redeemed.
Section 2.11. Exchange. On the Exchange Date, provided that the
--------
Company shall then have delivered to the Depositary the Exchange Debentures and
the aggregate amount of cash required to pay any accrued and unpaid dividends
and cash in respect of fractional debenture interests issuable and payable with
respect to the Stock then deposited with the Depositary, the Depositary shall
deliver to each holder the proportionate amount of such Exchange Debentures
(subject to the minimum denomination requirements of such Exchange Debentures
referred to below in this Section 2.11) and cash so delivered to the Depositary
in respect of such holder's Depositary Shares.
-14-
The Depositary shall, as directed by the Company, mail, first class
postage prepaid, notice of such Exchange of Stock and the proposed simultaneous
Exchange of the Depositary Shares, not less than five and not more than 15 days
prior to the Exchange Date. Such notice shall be mailed to each holder at the
address of such holder as the same appears on the records of the Depositary at
the close of business on the second business day immediately preceding the date
on which the mailing of such notices is commenced; but neither failure to mail
any such notice to one or more holders nor any defect in any notice shall affect
the sufficiency of the proceedings for the Exchange. The Company shall provide
the Depositary with such notice, and each such notice shall state: the Exchange
Date; that all outstanding Depositary Shares on the Exchange Date will be
exchanged for Exchange Debentures; the amount of accrued and unpaid dividends,
if any, payable with respect to each Depositary Share to be so exchanged; the
place or places where Receipts to be so exchanged are to be surrendered for
exchange; that dividends in respect of the Stock represented by the Depositary
Shares to be so exchanged shall cease to accrue on the Exchange Date; the
minimum principal amount in which Exchange Debentures shall be issued; and such
additional information as the Company in its discretion deems appropriate.
From and after the Exchange Date, the Depositary Shares automatically
exchanged for Exchange Debentures 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 Exchange Debentures and any cash payable upon
the Exchange) shall, to the extent of such Depositary Shares, cease and
terminate. Upon surrender, in accordance with the notice specified in the
preceding paragraph, of the Receipts evidencing such Depositary Shares (properly
endorsed or assigned for transfer, if the Depositary shall so require), a holder
of such Receipts shall receive for such holder's Depositary Shares a principal
amount of Exchange Debentures equal to the principal amount of Exchange
Debentures, and an amount of cash equal to the cash for accrued and unpaid
dividends, if any, delivered in respect of the exchanged Stock represented by
such Depositary Shares. An amount of cash will be paid to holders in respect of
any principal amount of Exchange Debentures otherwise issuable which is less
than $1,000, or such other minimum denomination as shall be specified in the
notice referred to in the preceding paragraph. The foregoing shall be subject
further to the terms and conditions of the Certificate.
ARTICLE III
-15-
CERTAIN OBLIGATIONS OF THE HOLDERS
OF RECEIPTS AND THE COMPANY
SECTION 3.01. Filing Proofs, Certificates and Other Information.
-------------------------------------------------
Except for the initial deposit of Stock by the Company or the Other Persons and
any subsequent deposit by the Company or the Other Persons of Stock acquired by
such Other Persons pursuant to such Other Persons' overallotment option, any
person presenting 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 obtain such guaranties of signature, to execute such
certificates and to make such customary representations and warranties
consistent with the terms of the Stock as the Depositary or the Company may
reasonably deem necessary or proper. The Depositary or the Company may withhold
the delivery, or delay the registration of transfer, conversion, redemption or
exchange, of 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 3.02. Payment of Taxes or Other Governmental Charges.
----------------------------------------------
Holders of Receipts shall be obligated to make payments to the Depositary of
certain charges and expenses as provided in Section 5.07. Registration of
transfer of any Receipt and delivery of all money or other property, if any,
represented by the Depositary Shares evidenced by such Receipt may be refused
until any such payment due is made, and any dividends, interest payments or
other distributions may be withheld or all or any part of the 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 charges or expenses, the holder
of such Receipt remaining liable for any deficiency.
SECTION 3.03. Warranty as to Stock. The Company hereby represents
--------------------
and warrants to the Depositary that the Stock, when issued, will be validly
issued, fully paid and nonassessable. Such representation and warranty shall
survive the deposit of the Stock and the issuance of Receipts.
SECTION 3.04. Covenants and Warranties as to Common Stock. The
-------------------------------------------
Company covenants that it will keep
-16-
reserved or otherwise available a sufficient number of authorized and unissued
shares of Common Stock to meet conversion requirements in respect of the Stock
and that it will give written notice to the Depositary of any adjustments in the
conversion price as set forth in the Certificate. The Company represents and
warrants that the Common Stock issued upon conversion of Stock, when issued,
will be validly issued, fully paid and non-assessable.
ARTICLE IV
THE DEPOSITED SECURITIES; NOTICES
SECTION 4.01. Cash Distributions. Whenever the Depositary shall
------------------
receive any cash dividend or other cash distribution with respect to the Stock,
the Depositary shall, subject to Section 3.02, distribute to record holders of
Receipts on the record date fixed pursuant to Section 4.04 such amounts, as
nearly as practicable, of such dividend or distribution as are applicable to the
number of Depositary Shares evidenced by the Receipts held by such holders;
provided, however, that if the Company or the Depositary shall be required to
-------- -------
withhold and shall withhold any monies from any cash dividend or other cash
distribution in respect of the Stock on account of taxes or as otherwise
required by law, regulation or court order, the distribution 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 holder 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 succeeding distribution to record
holders of Receipts then outstanding.
SECTION 4.02. Distributions Other than Cash. Whenever the Depositary
-----------------------------
shall receive any property (including securities) for distribution in a form
other than cash with respect to the Stock, the Depositary shall, subject to
Section 3.02, distribute to record holders of Receipts on the record date fixed
pursuant to Section 4.04 such amounts, as nearly as practicable, of such
property (including securities) received by it as are applicable to the number
of Depositary Shares evidenced by the Receipts held by such holders, in any
manner that the Depositary may deem equitable and practicable for accomplishing
such distribution. If, in the opinion of the Depositary, such distribution
cannot be made proportionately among such record holders, or if for any other
reason (including any
-17-
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, adopt such
method as it deems equitable and practicable for the purpose of effecting such
distribution, including the sale of the property thus received, or any part
thereof, in a commercially reasonable manner. The net proceeds of any such sale
shall, subject to Section 3.02, be distributed or made available for
distribution, as the case may be, by the Depositary to record holders of
Receipts in accordance with the provisions of Section 4.01 for a distribution
received in cash.
SECTION 4.03. Subscription Rights, Preferences or Privileges. If the
----------------------------------------------
Company shall at any time offer or cause to be offered to the persons in whose
names 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 Depositary 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
Depositary in its discretion with the approval of the Company; provided,
--------
however, that (i) if at the time of issue or offer of any such rights,
-------
preferences or privileges the Depositary determines that it is not lawful or
(after consultation with the Company) 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 Depositary, in its discretion (with the approval of the Company, in any
case where the Depositary has determined that it is not feasible to make such
rights, preferences or privileges available), may, if applicable laws or the
terms of such rights, preferences or privileges permit such transfer, sell such
rights, preferences or privileges at public or private sale, at such place or
places and upon such terms as it may deem proper. The net proceeds of any such
sales shall be distributed by the Depositary to the record holders of Receipts
entitled thereto as provided by Section 4.01 in the case of a distribution
received in cash.
If any action under the laws of any jurisdiction or any governmental
or administrative authorization, consent or permit is required in order for such
rights, preferences
-18-
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 4.04. Notice of Dividends, etc.; Fixing of Record Date for
----------------------------------------------------
Holders of Receipts. Whenever any cash dividend or other cash distribution
-------------------
shall become payable or any distribution of property (including securities)
other than cash shall be made, or if rights, preferences or privileges shall at
any time be offered, with respect to Stock, or whenever the Depositary shall
receive notice of (i) any meeting at which holders of Stock are entitled to vote
or of which holders of Stock are entitled to notice, or (ii) any election on the
part of the Company to redeem, or issue Exchange Debentures in exchange for, any
shares of Stock, the Depositary, in each such instance, shall fix a record date
(which shall be the same date as the record date fixed by the Company with
respect to the Stock) for the determination of the holders of Receipts who shall
be entitled hereunder to receive a distribution in respect of such dividend,
distribution, rights, 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.
SECTION 4.05. Voting Rights. Upon receipt of notice of any meeting
-------------
at which the holders of Stock are entitled to vote, the Depositary shall, as
soon as practicable thereafter, mail to the record holders of Receipts a notice
which shall be provided by the Company and which shall contain (i) such
information as is contained in such notice of meeting and (ii) a statement that
the holders of record at the close of business on the specified record date
fixed pursuant to Section 4.04 will be entitled to instruct the Depositary as to
the exercise of the voting rights pertaining to the amount of Stock (or portion
thereof) underlying 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 the holders of Receipts on the applicable record date, the
Depositary shall endeavor, insofar as practicable, to vote or cause to be voted,
in accordance with the instructions set forth in such requests, the votes
relating to the shares of Stock (or portion thereof) underlying the Depositary
Shares evidenced by all Receipts as to which any particular voting instructions
are received. The Company hereby agrees to take all necessary action in order
to enable the Depositary to vote
-19-
such Stock (or portion thereof) or cause such Stock (or portion thereof) to be
voted. Absent specific instructions from the holder of a Receipt, the
Depositary will abstain from voting (but, at its discretion, not from appearing
at any meeting with respect to such Stock unless directed to the contrary by the
holders of all the Receipts) to the extent of the Stock (or portion thereof)
underlying the Depositary Shares evidenced by such Receipt.
SECTION 4.06. Changes Affecting Deposited Securities and
------------------------------------------
Reclassifications, Recapitalizations, etc. Upon any change in par or stated
-----------------------------------------
value, split-up, combination or any other reclassification of the Stock, or upon
any recapitalization, reorganization, merger, amalgamation or consolidation to
which the Company is a party or sale of all or substantially all of the
Company's assets (each of the foregoing being referred to herein as a
"Transaction"), the Depositary may with the approval of, and shall upon the
instructions of, the Company, and (in either case) in such manner as to retain
as nearly as possible the percentage ownership interest in Stock of holders of
Receipts immediately prior to such event, (i) make such adjustments in (a) the
fraction of an interest in one share of Stock underlying one Depositary Share,
(b) the ratio of the redemption price per Depositary Share to the redemption
price of a share of Stock and (c) the ratio of the conversion price per
Depositary Share to the conversion price per share of Stock, in each case as may
be necessary fully to reflect the effects of such Transaction, and (ii) treat
any securities received by the Depositary in exchange for, or upon conversion or
in respect of, the Stock as new deposited securities so received in exchange
for, or upon conversion or in respect of the Stock. In any such case the
Depositary may, with the approval of the Company, execute and deliver additional
Receipts, or may call for surrender of all outstanding Receipts to be exchanged
for new Receipts specifically describing such new deposited securities.
Anything to the contrary herein or in the Receipt notwithstanding,
holders of Receipts shall have the right from and after the effective date of
any such Transaction, to the extent that holders of Stock had the right, prior
to or on the applicable effective date, to convert, exchange or surrender shares
of Stock into or for other stock, securities, property or cash, to surrender
such Receipts to the Depositary with instructions to convert, exchange or
surrender the Stock represented thereby only into or for, as the case may be,
the kind and amount of shares of stock and other securities and property and
cash into which the Stock represented by such Receipts has been converted or for
which
-20-
such Stock might have been exchanged or surrendered immediately prior to the
effective date of such transaction.
SECTION 4.07. Inspection of Reports. The Depositary shall make
---------------------
available for inspection by holders of Receipts during normal business hours at
the Depositary's Office, and at such other places as it may from time to time
deem advisable, any reports and communications received from the Company that
are both received by the Depositary as the holder of Stock and made generally
available to the holders of Stock.
SECTION 4.08. List of Receipt Holders. Promptly upon request by, and
-----------------------
at the expense of, the Company, the Depositary shall furnish to it a list, as of
a specified date, of the names and addresses of all persons in whose names
Receipts are registered on the books of the Depositary, and the amount of Stock
represented thereby.
ARTICLE V
THE DEPOSITARY, THE DEPOSITARY'S AGENTS,
THE REGISTRAR AND THE COMPANY
SECTION 5.01. Maintenance of Offices, Agencies and Transfer Books by
------------------------------------------------------
the Depositary; Registrar. Upon execution of this Deposit Agreement, the
-------------------------
Depositary shall maintain, at the Depositary's Office, facilities for the
execution and delivery, registration and registration of transfer, surrender and
exchange of Receipts, and at the offices of the Depositary's Agents, if any,
facilities for the delivery, registration of transfer, surrender and exchange of
Receipts, all in accordance with the provisions of this Deposit Agreement.
The Depositary shall, with the approval of the Company, appoint a
Registrar for registration of such Receipts or Depositary Shares in accordance
with any requirements of any applicable stock exchange in which the Receipts or
the Depositary Shares are listed. Such Registrar (which may be the Depositary
if so permitted by the requirements of such exchange) may be removed and a
substitute Registrar appointed by the Depositary upon the request or with the
approval of the Company. If the Receipts, the Depositary Shares or the Stock
are listed on one or more other stock exchanges, the Depositary will, at the
request of the Company, arrange such facilities for the delivery, registration,
registration of transfer, surrender and exchange of such Receipts, such
Depositary Shares or
-21-
such Stock as may be required by law or applicable stock exchange regulation.
The Registrar shall maintain books at the Depositary's Office for the
registration and registration of transfer of Receipts or at such other place as
shall be approved by the Company and of which the holders of Receipts shall have
reasonable notice, which books at all reasonable times during normal business
hours shall be open for inspection by the record holders of Receipts; provided,
--------
that any such holder requesting to exercise such right shall certify in writing
to the Registrar that such inspection shall be for a proper purpose reasonably
related to such person's interest as an owner of Depositary Shares evidenced by
the Receipts.
The Depositary may cause the Registrar to close the books with respect
to the Receipts, at any time or from time to time, when the register of
stockholders of the Company is closed with respect to the Stock or when such
action is deemed necessary or advisable by the Depositary, any Depositary's
Agent or the Company because of any requirement of law or of any government,
governmental body or commission, stock exchange or any applicable self-
regulatory body, including, without limitation, the NASD.
SECTION 5.02. Prevention of or Delay in Performance by the
--------------------------------------------
Depositary, the Depositary's Agents, the Registrar or the Company. Neither the
-----------------------------------------------------------------
Depositary nor any Depositary's Agent nor any Registrar 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, or by reason of any
provision, present or future, of the Company's Certificate of Incorporation
(including the Certificate) or by reason of any act of God, war or civil
disorder, failure of power, fire or other casualty damage or governmental
requirements or restrictions, the Depositary, the Depositary's Agent, the
Registrar or the Company shall be prevented or forbidden from doing or
performing any act or thing that the terms of this Deposit Agreement provide
shall be done or performed; nor shall the Depositary, any Depositary's Agent,
any Registrar or the Company incur any liability or be subject to any obligation
(i) 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 (ii) by reason of any exercise of, or
failure to exercise, any discretion provided for in this Deposit Agreement,
except in the event of the gross negligence or willful misconduct of the party
charged with such exercise or failure to exercise.
-22-
SECTION 5.03. Obligations of the Depositary, the Depositary's Agents,
-------------------------------------------------------
the Registrar and the Company. Neither the Depositary nor any Depositary's
-----------------------------
Agent nor any Registrar shall be under any obligation to appear in, prosecute or
defend any action, suit or other proceeding in respect of the Stock, the
Depositary Shares or the Receipts that in its opinion may involve it in expense
or liability unless indemnity satisfactory to such party against all such
expense and liability be furnished as often as required.
Neither the Depositary nor any Depositary's Agent nor the Company
assumes any obligation or shall be subject to any liability under this Deposit
Agreement to holders of Receipts other than to use its best judgment and good
faith in the performance of such duties as are specifically set forth in this
Deposit Agreement. Neither the Depositary nor any Depositary's Agent nor any
Registrar nor the Company shall be liable to any party hereto for any action or
any failure to act by it with respect to this Deposit Agreement in reliance upon
the written advice of legal counsel or accountants, or information from any
person presenting Stock for deposit or any holder of a Receipt. The Depositary,
any Depositary's Agent, any Registrar 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 undertakes, and shall cause any Registrar to undertake,
to perform such duties and only such duties as are specifically set forth in
this Deposit Agreement using its best efforts and in good faith. The parties
hereto acknowledge that no implied covenants or obligations shall be read into
this Deposit Agreement against the Depositary or any Registrar or against the
Company with respect to the Depositary and any Registrar.
The Depositary, its parent, affiliates, or subsidiaries, any
Depositary's Agent and the Company (to the extent permitted by law) may own,
buy, sell or deal in any class of securities of the Company and its affiliates
and in Receipts or Depositary Shares. The Depositary, its parent, affiliates, or
subsidiaries, and any Depositary's Agent may become pecuniarily interested in
any transaction in which the Company or its affiliates may be interested or
contract with or lend money to the Company or its affiliates or otherwise act as
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 or act in any other capacity
for the Company or its affiliates.
-23-
Neither the Depositary (or its officers, directors, employees or agents) nor any
Depositary's Agent makes any representation or has any responsibility as to the
validity of the Registration Statement pursuant to which the Depositary Shares
are registered under the Securities Act, the Stock, the Depositary Shares, the
Receipts (except its counter signature thereon) or any instruments referred to
therein or herein, or as to the correctness of any statement made therein except
the number of Depositary Shares represented by such Receipts.
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 Stock at any time deposited with the Depositary hereunder or
of the Depositary Shares or as to the value of the Depositary Shares. The
Depositary shall not be accountable for the use or application by the Company of
the Depositary Shares or the Receipts or the proceeds thereof.
SECTION 5.04. Resignation and Removal of the Depositary; Appointment
------------------------------------------------------
of Successor Depositary. The Depositary may at any time resign as Depositary
-----------------------
hereunder by written notice of its election so to resign 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.
If the Depositary acting hereunder shall at any time 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, use its reasonable best efforts to
appoint a successor Depositary, which shall be a bank or trust company having
its principal office in the United States of America and having a combined
capital and surplus of at least $50,000,000. Every successor Depositary shall
execute and deliver to its predecessor and to the Company an instrument in
writing accepting its appointment hereunder and agreeing to become a party to
this Deposit Agreement, and thereupon such successor Depositary, without any
further act or deed, shall become fully vested with all the rights,
-24-
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 execute and
deliver an instrument transferring to such successor all rights and powers of
such predecessor hereunder, shall duly assign, transfer and deliver all right,
title and interest in the Stock and any moneys or property held hereunder to
such successor and shall deliver to such successor a list of the record holders
of all outstanding Receipts. Any successor Depositary shall promptly mail
notice of its appointment to the record holders of Receipts.
Any corporation or other entity into or with which the Depositary may
be merged, consolidated or converted, or to which the Depositary may sell all or
substantially all its assets, 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 5.05. Corporate Notices and Reports. The Company agrees that
-----------------------------
it will deliver to the Depositary and the Depositary will, promptly after
receipt thereof, transmit to the record holders of Receipts, in each case at the
address furnished to it pursuant to Section 4.08, all notices and reports
(including, without limitation, financial statements) required by law, the rules
of any national securities exchange upon which the Stock, the Depositary Shares
or the Receipts are listed or by the Company's Certificate of Incorporation
(including the Certificate) or By-laws to be furnished by the Company to holders
of Stock. Such transmission will be at the Company's expense and the Company
will provide the Depositary with such number of copies of such documents as the
Depositary may reasonably request. In addition, the Depositary will transmit to
record holders of Receipts at the Company's expense such other documents as may
be requested by the Company.
SECTION 5.06. Indemnification by the Company. The Company shall
------------------------------
indemnify the Depositary, any Depositary's Agent and any Registrar against, and
hold each of them harmless from, any loss, liability or expense (including the
reasonable costs and expenses of defending itself) that may arise out of (i)
acts performed or omitted in connection with this Deposit Agreement and the
Receipts (a) by the Depositary, any Registrar or any of their respective agents
(including any Depositary's Agent) except for any liability
-25-
arising out of negligence or willful misconduct or breach of this Deposit
Agreement on the respective parts of any such person or persons, or (b) by the
Company or any of its agents, or (ii) the offer, sale or registration of the
Depositary Shares, Receipts or the Stock pursuant to the provisions hereof.
This indemnification does not extend in favor of holders of Depositary Shares,
Receipts or Stock.
SECTION 5.07. 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 all charges of
the Depositary in connection with the initial deposit of the Stock, the initial
issuance of the Depositary Shares, the redemption of the Stock and the issuance
of Exchange Debentures. 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 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 payable by the Company only after prior
consultation and agreement between the Depositary and the Company and consent by
the Company to the incurrence of such expenses, which consent shall not be
unreasonably withheld. The Depositary shall present any statement for charges
and expenses to the Company promptly, unless the Company shall agree otherwise.
ARTICLE VI
AMENDMENT AND TERMINATION
SECTION 6.01. 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 which they may
deem necessary or desirable; provided, however, that no such amendment that
-------- -------
shall impose or increase any fees, taxes, or other charges upon holders of
Receipts (other than taxes and other governmental charges, fees, and other
expenses payable by such holders as stated under Section 5.07 hereof), or that
shall otherwise prejudice any substantial existing right of holders of Receipts
shall take effect as to outstanding Receipts until the expiration of 30 days
after notice of such amendment has been mailed to the record holders of
outstanding Receipts. Every holder of an
-26-
outstanding Receipt at the time any amendment becomes effective shall be deemed,
by continuing to hold such 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 this Deposit Agreement,
of any owner of any Depositary Shares to surrender any Receipt evidencing such
Depositary Shares to the Depositary with instructions to cause the conversion of
such Receipt into Common Stock or to deliver to the holder the Stock and all
money, and other property, if any, represented thereby, except in order to
comply with mandatory provisions of applicable law or the rules and regulations
of any governmental body, agency or commission, the NASD or any applicable stock
exchange.
SECTION 6.02. Termination. This Deposit Agreement may be terminated
-----------
at the direction of the Company or by the Depositary if a period of 45 days
shall have expired after the Depositary has delivered to the Company written
notice of its election to resign and a successor depositary shall not have been
appointed. Upon termination of this Deposit Agreement, the Depositary will
discontinue the transfer of Receipts, will suspend the distribution of dividends
to the holders thereof, and will not give any further notices (other than notice
of such termination) or perform any further acts under this Deposit Agreement
except that the Depositary will continue to collect dividends and other
distributions pertaining to the Stock, will sell rights, preferences or
privileges as provided in this Deposit Agreement and will continue to deliver
Stock certificates together with such dividends and distributions and the net
proceed of any sales of rights, performances, privileges, or other property in
exchange for Receipts surrendered. At any time after the expiration of two
years from the date of termination, the Depositary may sell the Stock and hold
the proceeds of such sale, without interest, for the benefit of the holders of
Receipts who have not then surrendered their Receipts. After making such sale,
the Depositary will be discharged from all obligations under this Deposit
Agreement except to account for such proceeds and except as provided in the
following paragraph. In the event this Deposit Agreement is terminated, the
Company will use its best efforts to list the underlying shares of Preferred
Stock on any stock exchange on which the Depositary Shares were listed.
Upon the termination of this Deposit Agreement, the parties hereto
shall be discharged from all obligations under this Agreement except for their
respective obligations under Sections 5.03, 5.06 and 5.07.
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ARTICLE VII
MISCELLANEOUS
SECTION 7.01. 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 of which counterparts taken together shall
constitute one and the same instrument.
SECTION 7.02. Exclusive Benefit 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 7.03. Invalidity of Provisions. If 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 modified thereby.
SECTION 7.04. Notices. Any and all 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 mail or telegram,
telecopy or telex confirmed by letter, addressed to the Company at Cablevision
Systems Corporation, βββ βββββ βββββββββ, ββββββββ, βββ ββββ βββββ, telephone
(βββ) βββ-ββββ, attention: General Counsel, with a copy to Treasury Department,
or at any other address and to the attention of any other person of which the
Company shall have notified the Depositary in writing.
Any and all 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 mail or by telegram, telecopy or telex confirmed
by letter, addressed to the Depositary at the Depositary's Office, [name,
address, contact, phone and fax information of depositary], or at any other
address and to the attention of any other person of which the Depositary shall
have notified the Company in writing.
Any and all notices to be 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 mail or by telegram, tele-
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copy or telex 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 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, telecopy or telex
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 telegram or
telex message) is deposited, postage prepaid, in a post office letter box or
sent by overnight courier service. The Depositary or the Company may, however,
act upon any telegram or telecopy message received by it from the other or from
any holder of a Receipt, notwithstanding that such telegram or telecopy message
shall not subsequently be confirmed by letter or as aforesaid.
SECTION 7.05. Depositary's Agents. The Depositary may from time to
-------------------
time appoint any Depositary's Agent 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 7.06. Holders of Receipts Are Parties. By acceptance of
-------------------------------
delivery of the Receipts, any holder of such Receipt from time to time shall be
deemed to have agreed to become a party to this Deposit Agreement and to be
bound by all of the terms and conditions hereof and of the Receipts to the same
extent as though such person executed this Agreement.
SECTION 7.07. 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 LAWS OF THE STATE OF NEW
YORK (WITHOUT REFERENCE TO APPLICABLE CONFLICTS OF LAW PROVISIONS).
SECTION 7.8. Inspection of Deposit Agreement. Copies of this Deposit
-------------------------------
Agreement shall be filed with the Depositary and the Depositary's Agents and
shall be open to inspection during business hours at the Depositary's Office and
the respective offices of the Depositary's Agents, if any, by any holder of a
Receipt.
SECTION 7.9. Headings. The headings of articles and sections in this
--------
Deposit Agreement and in the form of
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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, the Company and the Depositary have caused their
duly authorized officers to execute and deliver this Deposit Agreement as of the
day and year first above set forth, and all holders of Receipts shall become
parties hereto by and upon acceptance by them of delivery of Receipts issued in
accordance with the terms hereof.
CABLEVISION SYSTEMS CORPORATION
By: _________________________
Authorized Officer
[NAME OF DEPOSITARY]
By: _________________________
____________________
Vice President
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