INTERMEDIA COMMUNICATIONS INC.
and
CONTINENTAL STOCK TRANSFER & TRUST COMPANY
As Depositary
and
HOLDERS OF DEPOSITARY RECEIPTS
DEPOSIT AGREEMENT
Dated as of July 9, 1997
DEPOSIT AGREEMENT, dated as of July 9, 1997, among INTERMEDIA
COMMUNICATIONS INC., a Delaware corporation (the "Company"), CONTINENTAL STOCK
TRANSFER & TRUST COMPANY, a New York banking corporation, as depositary (the
"Depositary"), and all holders from time to time of Depositary Receipts issued
hereunder.
WITNESSETH
WHEREAS, the Company desires to provide for the deposit of shares of
7% Series D Junior Convertible Preferred Stock, par value $1.00 per share (the
"Preferred Stock"), of the Company and for the issuance of Depository 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.
"Certificate of Incorporation" means the Restated Certificate of
Incorporation, as amended from time to time, of the Company.
"Certificate of Designation" means the Certificate of Designation of
Voting Power, Designation Preferences and Relative, Participating, Optional or
other Special Rights and Qualifications, Limitations and Restrictions, filed
with the Secretary of State of the State of Delaware, setting forth the terms of
the Preferred Stock.
"Company" means Intermedia Communications Inc., a Delaware corporation
having its principal office at 0000 Xxxxx Xxxx Xxxxx, Xxxxx, Xxxxxxx 00000-0000,
and its successors.
"Common Stock" means the common stock, par value $0.01 per share, of
the Company.
"Corporate Trust Office" means the principal office of the Depositary
in New York, NY, at which at any particular time its corporate trust business
shall be administered.
"Deposit Agreement" means this Agreement, as the same may be amended
or supplemented from time to time.
"Depositary" means Continental Stock Transfer & Trust Company, a New
York banking corporation, and any successor as depositary hereunder.
"Depositary Shares" means the interest in 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-hundredth
(1/100) of one share of Preferred Stock (as such fraction may from time to time
be adjusted in the event of certain amendments to the Certificate of
Incorporation affecting the Preferred Stock).
"Depositary's Agent" means an agent appointed by the Depositary as
provided, and for purposes specified, in Section 7.5.
"Issue Date" means July 9, 1997.
"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 $2,500 per share.
"Nasdaq National Market" means the National Association of Securities
Dealers, Inc. Nasdaq National Market.
"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.
"Preferred Stock" means shares of the Company's 7% Series D Junior
Convertible Preferred Stock, par value $1.00 per share.
"Receipt" means one or more of the Depositary Receipts issued
hereunder.
2
"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 Preferred Stock, dated as of July 9, 1997, by and
among the Company, Bears, Xxxxxxx & Co. Inc. and Salomon Brothers Inc, as such
agreement may be amended, modified or supplemented from time to time.
"Securities Act of 1933" means the Act of May 27, 1933 (15 U.S. Code,
Secs. 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 Deposit
Agreement, with appropriate insertions, modifications and omissions, as
hereinafter provided. Receipts shall be executed by the Depositary by the manual
signature of a duly authorized representative of the Depositary, provided that
such signature may be a facsimile if a Registrar for the Receipts (other than
the Depositary) shall have been appointed and such Receipts are countersigned by
manual signature of a duly authorized representative of the Registrar. No
Receipt shall be entitled to any benefits under this Deposit Agreement or be
valid or obligatory for any purpose unless it shall have been executed on behalf
of the Company by the manual or facsimile signature of a duly authorized officer
and executed manually or, if a Registrar for the Receipts (other than the
Depositary) shall have been appointed, by facsimile signature of a duly
authorized representative of the Depositary and, if executed by facsimile
signature of the Depositary, shall have been countersigned manually by a duly
authorized representative of such Registrar. 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.
3
(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 ("Global
Certificates"). The Global Certificates shall be deposited on the Issue Date
with, or on behalf of, the Depositary Trust Company (the "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
(d) Any person having a beneficial interest in a 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 in writing that the 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 the holder 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 its Global Certificate, Depositary Shares in such form
will be issued to each person that the Global Certificate Holder and the DTC
identify as being the beneficial owner of the related Depositary Shares.
(e) Each 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 XXXXX XXXXXX, XXX XXXX, XXX XXXX) ("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
Depositary Shares shall bear a legend to the following effect, unless the
Company determines otherwise in compliance with applicable law:
5
"THE SECURITY (OR ITS PREDECESSOR) EVIDENCED HEREBY WAS ORIGINALLY
ISSUED IN A TRANSACTION EXEMPT FROM REGISTRATION UNDER XXXXXXX 0 XX
XXX XXXXXX XXXXXX 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 (1)(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 Depositary Shares 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
Corporate Trust Office (or at such other place as may be agreeable to the
Depositary) of a certificate or certificates for the Preferred Stock to be
deposited, properly endorsed or accompanied, if required by the Depositary, by a
duly executed instrument of transfer or endorsement, in form satisfactory to the
Depositary, together with all such certifications as may be required by the
Depositary in accordance with the provisions of this Deposit Agreement, and
together with a written order directing the Depositary to execute and deliver
to, or upon the written order of, the Person or Persons stated in such order a
Receipt for the
6
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 of the Company 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
Depositary's Corporate Trust 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 Corporate Trust
Office and at such other offices, if any, as it may designate. Delivery at other
offices shall be at the risk and expense of the Person requesting such delivery.
However, in each case, such delivery will be made only upon payment to the
Depositary of the fee of the Depositary by the Company (unless payable by the
holder) as provided in Section
7
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.
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 not less
than 60 days' 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. 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 holders of
record on the record date for such redemption (determined pursuant to Section
4.4) of the Receipts evidencing the Depositary Shares to be so redeemed, at the
addresses of such holders as the same appear on the records of the Depositary;
but neither failure to mail any such notice to one or more such holders nor any
defect in any notice shall affect the sufficiency of the proceedings for
redemption as to other 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 holder are to be redeemed, the number of such Depositary Shares
held by such holder to be so redeemed; the amount of cash to be received by such
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
8
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 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 100 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 100. 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
the Depositary's Agent 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
9
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 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 number of shares of Common
Stock to be issued upon conversion shall be rounded up to the nearest whole
share.
(d) From and after the Conversion Date, the Depositary Shares being
converted shall be deemed no longer to be outstanding, all dividends in respect
of the shares of Preferred Stock converted shall cease to accrue, all rights of
the holders of Receipts evidencing such Depositary Shares shall, to the
10
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 Corporate Trust 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 Corporate Trust Office or at such
other offices as it may designate for the purpose of effecting a split-up or
combination of such Receipt or Receipts, and subject to the terms and conditions
of this Deposit Agreement, the Depositary shall execute and deliver a new
Receipt or Receipts in the authorized denominations requested, evidencing the
same aggregate number of Depositary Shares evidenced by the Receipt or Receipts
surrendered.
SECTION 2.8 SURRENDER OF RECEIPTS AND WITHDRAWAL OF PREFERRED STOCK.
(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 Corporate Trust 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
11
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 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 Corporate Trust Office, except that at the request, risk and
expense of the holder that surrendered such Receipt or Receipts, and for the
account of the holder thereof, such delivery may be made at such other place as
may be designated by such holder.
SECTION 2.9 LIMITATIONS ON EXECUTION AND DELIVERY, TRANSFER, SPLIT-
UP, COMBINATION AND SURRENDER OF RECEIPTS. (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 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
12
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 of such
destruction or loss or theft of such Receipt, of the authenticity thereof and of
his ownership thereof and (b) the furnishing of the Depositary with an indemnity
bond or other reasonable indemnification satisfactory to it.
SECTION 2.11 CANCELLATION AND DESTRUCTION OF SURRENDERED RECEIPTS.
All Receipts surrendered to the Depositary or any Depositary's Agent shall be
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
13
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 dividends, interest payments
or other distributions may be withheld, or any part or all of the Preferred
Stock or other property represented by the Depositary Shares evidenced by such
Receipt and not theretofore sold may be sold for the account of the holder
thereof (after attempting by reasonable means to notify such holder prior to
such sale), and such dividends, interest payments or other distributions or the
proceeds of any such sale may be applied to any payment of such tax or other
governmental charge, the holder of such Receipt remaining liable for any
deficiency.
SECTION 3.3 REPRESENTATIONS AND WARRANTIES AS TO PREFERRED STOCK.
In the case of the initial deposit of the Preferred Stock, the Company and, in
the case of subsequent deposits thereof, each Person so depositing Preferred
Stock under this Deposit Agreement shall be deemed thereby to represent and
warrant that such Preferred Stock and each certificate therefore are valid and
that the Person making such deposit is duly authorized so to do. The Company
hereby further represents and warrants that the Preferred Stock, when issued,
will be validly issued, fully paid and nonassessable. Such representations and
warranties shall survive the deposit of the Preferred Stock and the issuance of
Receipts.
ARTICLE IV
THE DEPOSITED SECURITIES; NOTICES
SECTION 4.1 CASH DISTRIBUTIONS. Whenever the Depositary shall
receive any cash dividend or other cash distribution on Preferred Stock, the
Depositary shall, subject to Section 3.2, distribute to Record Holders of
Receipts on the record date fixed pursuant to Section 4.4 such amounts of such
sum as are, as nearly as practicable, in proportion to the respective numbers of
Depositary Shares evidenced by the Receipts held by such holders; provided,
--------
however, that in case the Company or the Depositary shall be required to
-------
withhold and does withhold from any cash dividend or other cash distribution in
respect of the Preferred Stock an amount on account of taxes, the amount made
available for distribution or distributed in respect of Depositary Shares shall
be reduced accordingly. The Depositary shall distribute or make available for
distribution, as the case may be, only such amount, however, as can be
distributed without attributing to any owner of Depositary Shares a fraction of
one cent, and any balance not so distributable shall be held by the Depositary
(without liability for interest thereon) and shall be added to and be treated as
part of the next sum received by the
14
Depositary for distribution to Record Holders of Receipts then outstanding.
SECTION 4.2 DISTRIBUTIONS OTHER THAN CASH. Whenever the Depositary
shall receive any distribution upon the Preferred Stock in shares of Common
Stock, the Depositary shall, subject to Section 3.2, distribute to Record
Holders of Receipts on the record date fixed pursuant to Section 4.4, such
shares of Common Stock received by it in proportion to the respective numbers of
Depositary Shares evidenced by the Receipts held by such holders, except that
the Depositary may not distribute fractional shares of Common Stock. If in the
opinion of the Company, after consultation with the Depositary, such
distribution cannot be made proportionately among such Record Holders, or if for
any reason (including any requirement that the Company or the Depositary
withhold an amount on account of taxes) the Depositary deems, after consultation
with the Company, such distribution not to be feasible, the Depositary may, at
the direction of the Company, adopt such method as the Company deems equitable
and practicable for the purpose of effecting such distribution, including the
sale at public 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 (a) if at the time of issue or offer of any such rights,
-------
preferences or privileges the Company determines that it is not lawful or (after
consultation with the Depositary) not feasible to make such rights, preferences
or privileges available to holders of Receipts by the
15
issue of warrants or otherwise or (b) if and to the extent so instructed by
holders of Receipts who do not desire to exercise such rights, preferences or
privileges, then the Company, in its discretion (with the approval of the
Depositary, in any case where the Company has determined that it is not feasible
to make such rights, preferences or privileges available), may, if applicable
laws or the terms of such rights, preferences or privileges permit such
transfer, sell such rights, preferences or privileges at public 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 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
16
any shares of Preferred Stock, the Depositary shall in each such instance fix a
record date (which shall be the same date as the record date fixed by the
Company with respect to the Preferred Stock) for the determination of the
holders of Receipts (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 holder of a Receipt on such record date, the Depositary shall endeavor insofar
as practicable to vote or cause to be voted the amount of Preferred Stock
represented by the Depositary Shares evidenced by such Receipt in accordance
with the instructions set forth in such request. To the extent any such
instructions request the voting of a fraction of a share of Preferred Stock, the
Depositary shall aggregate such fraction with all other fractions resulting from
requests with the same voting instructions and shall vote the number of whole
shares resulting from such aggregation in accordance with the instructions
received in such requests. The Company hereby agrees to take all reasonable
action which may be deemed necessary by the Depositary in order to enable the
Depositary to vote such Preferred Stock or cause such Preferred Stock to be
voted. In the absence of specific written instructions from the holder of a
Receipt, the Depositary will abstain from voting to the extent of the Preferred
Stock represented by the Depositary Shares evidenced by such Receipt.
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
17
such manner as the Company may deem equitable, (a) make such adjustments in (i)
the fraction of an interest represented by one Depositary Share in one share of
Preferred Stock and (ii) the ratio of the redemption price per Depositary Share
to the redemption price of a share of Preferred Stock in each case as may be
necessary to fully reflect the effects of such change in par or stated value,
split-up, consolidation or other reclassification of the Preferred Stock, or of
such recapitalization, reorganization, merger, amalgamation or such
consolidation or sale and (b) treat any securities which shall be received by
the Depositary in exchange for or upon conversion of or otherwise in respect of
the Preferred Stock as new deposited securities under this Deposit Agreement,
and Receipts then outstanding shall thenceforth represent the new deposited
securities so received. In any such case the Company may in its discretion,
direct the Depositary to execute and deliver additional Receipts, or may call
for the surrender of all outstanding Receipts to be exchanged for new Receipts
specifically describing such new deposited securities.
SECTION 4.7 REPORTS. The Depositary shall make available for
inspection by holders of Receipts at its Corporate Trust Office, and at such
other places as it may from time to time deem advisable, any reports and
communications received from the Company which are received by the Depositary as
the holder of Preferred Stock unless at the time of or prior to receipt the
Company advises the Depositary that such reports or communications have not been
generally available to the holders of Preferred Stock.
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 Corporate Trust
Office facilities for the execution and delivery, transfer, surrender and
exchange of Receipts, and at the offices of the Depositary's Agents, if any,
facilities for the delivery, transfer, surrender and exchange of Receipts, all
in accordance with the provisions of this Deposit Agreement.
18
(b) The Depositary shall keep books at its Corporate Trust Office for
the transfer of Receipts, which books at all reasonable times shall be open for
inspection by the Record Holders of Receipts, unless the Company advises the
Depositary in a particular instance that such inspection is not for a proper
purpose reasonably related to such Person's interest as an owner of Depositary
Shares evidenced by the Receipts. The Depositary may close such books, at any
time or from time to time, when deemed expedient by it in connection with the
performance of its duties hereunder.
(c) If the Receipts or the Depositary Shares evidenced thereby or the
Preferred Stock represented by such Depositary Shares shall be quoted on the
Nasdaq National Market, the Company may, upon consultation with the Depositary,
appoint a Registrar for registry of such Receipts or Depositary Shares in
accordance with the requirements of the Nasdaq National Market. Such Registrar
(which may be the Depositary if so permitted by the requirements of the Nasdaq
National Market) may be removed and a substitute registrar appointed by the
Depositary upon the request or with the approval of the Company. If the
Receipts of such Depositary Shares or such Preferred Stock are listed on one or
more stock exchanges, the Depositary will, at the request of the Company,
arrange 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 the Depositary's
Agent, 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
19
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 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
20
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 the Preferred Stock, the Depositary Shares or the Receipts are listed or
by the Certificate of Incorporation and the Authorizing Resolution to be
furnished by the Company to holders of Preferred Stock. Such transmission will
be at the Company's expense and the Company will provide the Depositary with
such number of copies of such documents as the Depositary may reasonably
request. In addition, the Depositary will transmit to the holders of Receipts
(at the Company's expense) such other documents as may be requested by the
Company.
SECTION 5.6 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
21
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)
and shall consult in good faith with the Company as to the conduct of the
defense of such action or claim, which shall be reasonable in the circumstances.
No indemnified person shall compromise or settle any action or claim without the
consent of the Company, which consent shall not be 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.
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
22
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.
(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) sell 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
23
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 Corporate Trust Office and the
respective offices of the Depositary's Agents, if any, by any holder of a
Receipt.
SECTION 7.2 EXCLUSIVE BENEFITS OF PARTIES. This Deposit Agreement is
for the exclusive benefit of the parties hereto, and their respective successors
hereunder, and shall not be deemed to give any legal or equitable right, remedy
or claim to any other Person whatsoever.
SECTION 7.3 INVALIDITY OF PROVISIONS. In case any one or more of the
provisions contained in this Deposit Agreement or in the Receipts should be or
become invalid, illegal or unenforceable in any respect, the validity, legality
and enforceability of the remaining provisions contained herein or therein shall
in no way be affected, prejudiced or disturbed thereby.
SECTION 7.4 NOTICES. (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 duly given if personally delivered or sent by mail or
telecopy confirmed by letter, addressed to the Company at 0000 Xxxxx Xxxx Xxxxx,
Xxxxx, Xxxxxxx 00000-0000, Attention: Chief Financial Officer, Telecopy: (813)
829-2390, 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
24
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
0 Xxxxxxxx, 00xx Xxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention: Compliance
Department, Telecopy: (000) 000-0000, 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.
(d) 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.
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 non-exclusive jurisdiction of such
courts.
25
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.
[SIGNATURE PAGE FOLLOWS]
26
IN WITNESS WHEREOF, INTERMEDIA COMMUNICATIONS INC. and CONTINENTAL
STOCK TRANSFER & TRUST COMPANY 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.
INTERMEDIA COMMUNICATIONS INC.
Attest:_____________________ By: ______________________________
Name:
Title:
CONTINENTAL STOCK TRANSFER & TRUST
COMPANY
Attest:_____________________ By: ______________________________
Name:
Title:
27
