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EXHIBIT 4.9
DRAFT 12/13/96
DEPOSIT AGREEMENT
dated as of January , 1997
among
XXXXXX FIBER PROPERTIES, INC.
a Delaware corporation,
THE BOATMEN'S TRUST COMPANY,
a Missouri corporation,
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 D Conversion
Preferred Stock, par value $0.01 per share (the "Stock"), of Xxxxxx Fiber
Properties, Inc. 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 so deposited; and
WHEREAS, the 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 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 capitalized terms used in this
Deposit Agreement and the Receipts:
"Automatic Conversion" shall mean the automatic conversion of
each outstanding share of Stock into shares of Common Stock on the Mandatory
Conversion Date, as provided in the Certificate.
"Certificate" shall mean the Certificate of Designations filed
with the Secretary of State of the 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 and with the Restated Certificate of Incorporation
of the Company.
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"Common Stock" shall mean the Company's Common Stock, par
value $0.01 per share.
"Company" shall mean Xxxxxx Fiber Properties, Inc., 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 The Boatmen's Trust Company, a
Missouri corporation, and any successor Depositary hereunder.
"Depositary Shares" shall mean the $______ Depositary Shares,
each representing a one-one hundredth (1/100) interest in a share of Stock and
evidenced by a Receipt.
"Depositary's Agent" shall mean any 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.
"Mandatory Conversion Date" shall mean _____________, 2000.
"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. If the context so requires,
the term "Receipt" shall be deemed to include the DTC Receipt (as defined in
Section 2.01 hereof).
"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 ownership and transfers of Receipts as
herein provided and may include the Depositary.
ARTICLE II
BOOK-ENTRY FORM; FORM OF RECEIPTS; DEPOSIT OF STOCK;
EXECUTION AND DELIVERY; TRANSFER AND SURRENDER OF RECEIPTS
SECTION 2.01. Book-Entry Form; Form and Transfer of Receipts.
The Company and the Depositary shall make application to The Depository Trust
Company ("DTC") for acceptance of all or a portion of the Receipts for its
book-entry settlement system. The Company
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hereby appoints the Depositary acting through any authorized officer thereof as
its attorney-in-fact, with full power to delegate, for purposes of executing any
agreements, certifications or other instruments or documents necessary or
desirable in order to effect the acceptance of such Receipts for DTC
eligibility, including but not limited to, the FAST Balance Certificate
Agreement between the Depositary and DTC (the "FAST Agreement"), a copy of which
is attached as Exhibit B. So long as the Receipts are eligible for book-entry
settlement with DTC, except as provided in Section 2.10 of this Deposit
Agreement or unless otherwise required by law, all Depositary Shares to be
traded on the Nasdaq National Market with book-entry settlement through DTC
shall be represented by a single receipt (the "DTC Receipt") which shall be
deposited with DTC (or its designee) evidencing all such Depositary Shares and
registered in the name of the nominee of DTC (initially Cede & Co.). The
Depositary or such other entity as is agreed to by DTC may hold the DTC Receipt
as custodian for DTC. During any period in which any Depositary Shares are
evidenced by the DTC Receipt, except as expressly provided in Section 2.10 of
this Deposit Agreement, no person acquiring Depositary Shares traded on the
Nasdaq National Market with book-entry settlement through DTC shall receive or
be entitled to receive physical delivery of the Receipts evidencing such
Depositary Shares. Ownership of beneficial interests in the DTC Receipt shall be
shown on, and the transfer of such ownership shall be effected through, records
maintained by (i) DTC or its nominee for such DTC Receipt or (ii) institutions
that have accounts with DTC.
If DTC subsequently ceases to make its book-entry settlement
system available for the Receipts, the Company may instruct the Depositary
regarding making other arrangements for book-entry settlement. In the event that
the Receipts are not eligible for, or it is no longer necessary to have the
Receipts available in, book-entry form, the Depositary shall provide written
instructions to DTC to deliver to the Depositary for cancellation the DTC
Receipt, and the Company shall instruct the Depositary (which instructions the
Depositary undertakes to comply with) to deliver to the beneficial owners of the
Depositary Shares previously evidenced by the DTC Receipt definitive Receipts in
physical form evidencing such Depositary Shares. Such definitive Receipts shall
be in the form annexed hereto as Exhibit A with appropriate insertions,
modifications and omissions, as hereafter provided.
The beneficial owners of Depositary Shares shall, except as
stated above with respect to Depositary Shares in book-entry form represented by
the DTC Receipt, be entitled to receive Receipts in physical, certificated form
as herein provided.
The Receipts may be typewritten, in the case of the DTC
Receipt, and otherwise shall, upon notice by the 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, modifications and omissions, as
hereinafter provided. The DTC Receipt shall bear such legend or legends as may
be required by DTC in order for it to accept the Depositary Shares for its
book-entry settlement system. 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,
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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 Depositary; provided, however,
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 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 or other market on 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, however, that until transfer of a Receipt shall be registered on the
books of 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, the right to
exchange
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Receipts pursuant to Section 2.10 or to any notice provided for in this Deposit
Agreement and for all other purposes.
The Depositary shall not lend any Stock deposited hereunder.
SECTION 2.02. Deposit of Stock; Execution and Delivery of
Receipts in Respect Thereof. Subject to the terms and conditions of this Deposit
Agreement, the Company or any other person authorized under the Underwriting
Agreement, dated January , 1997, 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 reclasssifications 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 51,750 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 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
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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 DTC Receipt shall provide that it shall evidence the
aggregate number of Depositary Shares from time to time indicated in the records
of the Depositary and that the aggregate number of Depositary Shares evidenced
thereby may from time to time be increased or decreased by making adjustments on
such records of the Depositary.
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 Receipt. Subject to
the 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 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 Receipts and Withdrawal of Stock. Upon surrender of a Receipt or
Receipts at the Depositary's 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 denomination 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 one hundred (100) Depositary Shares 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. If such holder's Depositary
Shares are being held by DTC or its nominee pursuant to Section 2.01, such
holder may request, in accordance with Section 2.10, withdrawal from the
book-entry system of the number of Depositary Shares specified in the preceding
sentence. 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
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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 or other market on which the Stock may be listed or to conform with any
usage with respect thereto, or to indicate any special limitations or
restrictions to which any particular shares of Stock are subject.
Subject to Section 2.10, 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,
Surrender and Exchange of Receipts. As a condition precedent to the execution
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 securities 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,
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surrender, exchange, split-up or combination of outstanding Receipts may be
suspended and the deposit or withdrawal of Stock may be refused (i) during any
period when the register of stockholders of the Company is closed or (ii) if any
such 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,
securities exchange or the NASD.
SECTION 2.06. Lost Receipts, etc. If any mutilated Receipt is
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. All Receipts surrendered to the Depositary or any Depositary's Agent
shall be cancelled by the Depositary. Except as prohibited by applicable law or
regulation, the Depositary is authorized to destroy all Receipts so cancelled.
Any Receipt evidenced in book-entry form shall be deemed cancelled when the
Depositary has caused the amount of Depositary Shares evidenced by the DTC
Receipt to be reduced in proportion to the number of Depositary Shares evidenced
by the surrendered Receipt.
SECTION 2.08. Stock Purchase Plans. Upon receipt of
instructions 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. Optional Conversion of Stock into Common Stock.
Receipts may be surrendered with written instructions to the Depositary to
instruct the Company to 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 rate then in effect
for the Stock (and, therefore, for the Depositary Shares) specified in the
Certificate, as such conversion rate 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
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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
cash 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 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.
The aggregate number of Depositary Shares evidenced by the DTC
Receipt may from time to time be decreased to reflect conversion of Stock
underlying Depositary Shares evidenced by such DTC 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 shall pay to
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the Depositary an amount equal to the proportionate amount of the dividend
payable on such dividend payment date on the Depositary Shares represented by
the Receipts being surrendered for conversion accruing between the date of
conversion and such dividend payment date, as instructed by the Depositary. 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. Interchangeability of Book-Entry Receipts and
Receipts in Physical, Certificated Form. Subject to the terms and conditions of
this Deposit Agreement, upon receipt by the Depositary of written instructions
from a DTC participant on behalf of any person having a beneficial interest in
Depositary Shares evidenced by the DTC Receipt for the purpose of directing the
Depositary to execute and deliver a Receipt in physical, certificated form
evidencing such Depositary Shares, the Depositary shall follow the procedures
set forth in the FAST Agreement for the purpose of reducing the number of
Depositary Shares evidenced by the DTC Receipt and, following such reduction,
shall execute and deliver to or upon the order of the person or persons named in
such order a Receipt or Receipts registered in the name or names requested by
such person and evidencing in the aggregate the number of Depositary Shares
equal to the reduction in the number evidenced by the DTC Receipt. The
Depositary may require in such written instructions any certification or
representation as it shall deem necessary to comply with applicable law.
Subject to the terms and conditions of this Deposit Agreement,
upon receipt by the Depositary of a Receipt or Receipts in physical,
certificated form, duly endorsed or accompanied by appropriate instruments of
transfer, in form satisfactory to the Depositary, including any required
certifications, and together with written instructions directing the Depositary
to adjust its records to reflect an increase in the aggregate amount of
Depositary Shares evidenced by the DTC Receipt (including, without limitation,
information regarding the DTC participant account to be credited with such
increase), and upon payment of the fees and expenses of the Depositary, the
Depositary
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shall cancel such Receipt or Receipts in physical, certificated form and shall
follow the procedures set forth in the FAST Agreement for the purpose of
reflecting such increase in the number of Depositary Shares evidenced by the DTC
Receipt.
SECTION 2.11. Automatic Conversion of Stock. On the Mandatory
Conversion Date, provided that the Company shall then have delivered to the
Depositary the shares of Common Stock and the aggregate amount of cash required
to pay any accrued and unpaid dividends and for fractional share interests
issuable and payable upon Automatic Conversion of the Stock then deposited with
the Depositary, the Depositary shall convert (using such shares of Common Stock
and cash so delivered to it) each holder's Depositary Shares into the
proportionate number of whole shares of Common Stock and the proportionate
amount of such cash to which such holder is thereby entitled.
The Depositary, as directed by the Company, shall mail, first
class postage prepaid, notice of such Automatic Conversion of Stock and the
proposed simultaneous Automatic Conversion of the Depositary Shares, not less
than five and not more than 15 days prior to the Mandatory Conversion 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
Automatic Conversion. The Company shall provide the Depositary with such notice,
and each such notice shall state: the Mandatory Conversion Date; that all
outstanding Depositary Shares on the Mandatory Conversion Date will be
automatically converted into shares of Common Stock and the conversion rate at
which such Automatic Conversion shall occur; the amount of accrued and unpaid
dividends, if any, payable with respect to each Depositary Share to be so
converted; the place or places where Receipts to be so converted are to be
surrendered for conversion; that dividends in respect of the Stock represented
by Depositary Shares to be so converted shall cease to accrue on the Mandatory
Conversion Date; and such additional information as the Company in its
discretion deems appropriate.
From and after the Mandatory Conversion Date, the Depositary
Shares automatically converted into shares of Common Stock 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 shares of Common Stock
and any cash payable upon Automatic Conversion) 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), the holders of such Receipts shall receive for each such
Depositary Share a number of shares of Common Stock equal to 1/100th of the
number of shares of Common Stock, and an amount of cash equal to 1/100th of the
cash for accrued and unpaid dividends, if any, delivered in respect of each
share of automatically converted Stock. The foregoing shall be subject further
to the terms and conditions of the Certificate.
ARTICLE III
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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 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 representation
and warranties are made.
SECTION 3.02. Payment of Taxes of 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 reserved or otherwise available a sufficient
number of authorized and unissued shares of Common Stock or its issued shares of
Common Stock held in its treasury, or both, 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 rate 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 nonassessable. Such
representation and warranty shall survive the conversion of the Stock into such
Common Stock.
ARTICLE IV
THE DEPOSITED SECURITIES; NOTICES
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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 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
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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 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 any meeting at which holders of Stock are entitled to vote or
of which holders of Stock are entitled to notice, 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 holder 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 holder 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 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.
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SECTION 4.06. Changes Affecting Deposited Securities and
Reclassification, 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
and (b) the ratio of the conversion rate per Depositary Share to the conversion
rate 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 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
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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 securities exchange or other
market on 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 or other 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, 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 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, securities 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 Restated 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
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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.
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. 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.
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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, 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, 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 or other market on which the Stock, the
Depositary Shares or the
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Receipts are listed or by the Company's Restated 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 arising out
of gross negligence or willful misconduct 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 and the
initial issuance of the Depositary Shares, withdrawals of the Stock and the
issuance of shares of Common Stock upon the conversion of the Stock. 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 materially and adversely alter the rights of the holders of Receipts
shall be effective unless such amendment shall have been approved by the holders
of at least 66-2/3% of the Depositary Shares then outstanding. Every holder of
an outstanding Receipt at the time any amendment becomes effective shall be
deemed, by continuing to hold such Receipt, to
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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 Sections 2.04 and 2.05 hereof, 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 Agreement may be terminated by
the Company or the Depositary only after (i) there shall have been made a final
distribution in respect of the Stock in connection with any liquidation,
dissolution or winding up of the Company, and such distribution shall have been
distributed to the holders of Depositary Shares pursuant to Section 4.01 or
4.02, as applicable, or (ii) each share of Stock shall have been converted into
shares of Common Stock.
Upon the termination of this Deposit Agreement, the parties
hereto shall be discharged from all obligations under this Deposit Agreement
except for their respective obligations under Sections 5.03, 5.06 and 5.07.
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 Xxxxxx Fiber
Properties, Inc., 000 Xxxxx Xxxx Xxxx Xxxxx, Xxxxx 000, Xxxx & Xxxxxxx, Xxxxxxxx
00000, telephone (000) 000-0000, facsimile (000) 000-0000, attention: Chief
Financial Officer, or at any other address and to the attention of any other
person of which the Company shall have notified the Depositary in writing.
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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, The
Boatmen's Trust Company, 000 Xxxxxx Xxxxxx - 0xx Xxxxx, Xxxxxxxxx Xxxxx
Xxxxxxxxxx, Xx. Xxxxx, Xxxxxxxx 00000, telephone (000) 000-0000, facsimile (314)
466-2469or 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,
telecopy 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, first class 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 DELAWARE (WITHOUT REFERENCE TO APPLICABLE CONFLICTS OF LAW PROVISIONS).
SECTION 7.08. 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 this Depositary's Agents, if any, by any holder of
a Receipt.
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SECTION 7.09. Headings. The headings of articles and sections
in this Deposit Agreement and in the form of the Receipt set forth in Exhibit A
hereto and the FAST Agreement set forth in Exhibit B 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.
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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.
XXXXXX FIBER PROPERTIES, INC.
By:
-------------------------------------
Authorized Officer
THE BOATMEN'S TRUST COMPANY
By:
-------------------------------------
Authorized Officer
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EXHIBIT A
DEPOSITARY RECEIPT
FOR
DEPOSITARY SHARES,
EACH REPRESENTING AN INTEREST IN ONE ONE-HUNDREDTH (1/100)
OF
A SHARE OF SERIES D CONVERSION PREFERRED
STOCK
(PAR VALUE $0.01 PER SHARE)
OF
XXXXXX FIBER PROPERTIES, INC.
(INCORPORATED UNDER THE LAWS OF THE STATE OF DELAWARE)
------------------------------
GDR __
-----------------
CUSIP 114399-20-7 DEPOSITARY SHARES
5,175,000 Depositary Shares (each Depositary Share represents an interest in
one one-hundredth (1/100) of a share of Series D Conversion Preferred Stock,
par value $0.01 per share)
The Boatmen's Trust Company, a corporation duly organized and
existing under the laws of the State of Missouri, with an office at the time of
the execution of the Deposit Agreement (as defined below) at 000 Xxxxxx Xxxxxx,
Xx. Xxxxx, Xxxxxxxx 00000, as Depositary (the "Depositary"), hereby certifies
that ____________________________________ is the registered owner of
__________________________ _________________ Depositary Shares ("Depositary
Shares"), each Depositary Share representing an interest in one one-hundredth
(1/100) of a share of Series D Conversion Preferred Stock, par value $0.01(the
"Stock"), of Xxxxxx Fiber Properties, Inc. a corporation duly organized and
existing under the laws of the State of Delaware (the "Company"). Subject to
the terms of the Deposit Agreement, each owner of a Depositary Share is
entitled, proportionately, through the Depositary to all the rights and
preferences of the Stock relating thereto, including dividend, voting,
conversion and liquidation rights and preferences contained in the Certificate
of Designations (the "Certificate") adopted by the Company's Board of
Directors pursuant to the Restated Certificate of Incorporation of the Company
setting forth the number, terms, powers, designations, rights, preferences,
qualifications, restrictions and limitations of the Stock, copies of which are
on file at the Depositary's Office.
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The Company will furnish to any holder of a Receipt without
charge, upon request addressed to its executive office or the office of its
transfer agent, a full statement of the powers, designations, preferences and
relative, participating, optional, or other special rights of each authorized
class of stock or series thereof and the qualifications, limitations, or
restrictions of such preferences and/or rights.
REFERENCE IS HEREBY MADE TO THE PROVISIONS SET FORTH UNDER THE
CAPTION "TERMS AND CONDITIONS CONTINUED" ENDORSED ON THE REVERSE HEREOF. SUCH
PROVISIONS SHALL FOR ALL PURPOSES HAVE THE SAME EFFECT AS THOUGH FULLY SET
FORTH AT THIS PLACE.
This Receipt shall not be entitled to any benefits under the
Deposit Agreement or be valid or obligatory for any purpose unless this Receipt
shall have been authenticated manually by, 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, if authenticated by
facsimile signature of the Depositary, shall have been countersigned manually
by such Registrar by the signature of a duly authorized officer.
THE DEPOSITARY IS NOT RESPONSIBLE FOR THE VALIDITY OF ANY DEPOSITED STOCK. THE
DEPOSITARY ASSUMES NO RESPONSIBILITY FOR THE CORRECTNESS OF THE FOREGOING
DESCRIPTION, WHICH CAN BE TAKEN AS A STATEMENT OF THE COMPANY SUMMARIZING
CERTAIN PROVISIONS OF THE DEPOSIT AGREEMENT THAT APPEAR IN THE DEPOSITARY
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.
Dated:
THE BOATMEN'S TRUST COMPANY
By:_____________________________
Authorized Officer
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[Form of Reverse Side]
TERMS AND CONDITIONS CONTINUED
1. The Deposit Agreement. Depositary Receipts (the
"Receipts"), of which this Receipt"), of which this Receipt is one, are made
available upon the terms and conditions set forth in the Deposit Agreement,
dated as of January ____, 1997 (the "Deposit Agreement"), among the Company,
the Depositary and all holders from time to time of Receipts. The Deposit
Agreement (copies of which are on file at the Depositary's Office) sets forth
the rights of holders of Receipts and the rights and duties of the Depositary
and the Company in respect of the Stock deposited, and any and all other
property and cash deposited from time to time thereunder. The statements made
on the face and the reverse of this Receipt are summaries of certain provisions
of the Deposit Agreement and are subject to the detailed provisions thereof, to
which reference is hereby made. Unless otherwise expressly herein provided,
all capitalized and undefined terms used herein shall have the meaning ascribed
thereto in the Deposit Agreement.
2. Transfer, Split-up, Combinations. This Receipt is
transferable on the books of the Depositary upon surrender of this Receipt to
the Depositary, properly endorsed or accompanied by a properly executed
instrument of transfer or endorsement, and upon such transfer the Depositary
shall execute a new Receipt to or upon the order of the person entitled
thereto, as provided in the Deposit Agreement. This Receipt may be split into
other Receipts or combined with other Receipts into one Receipt, representing
the same aggregate number of Depositary Shares as the Receipt or Receipts
surrendered. Any holder of at least one hundred (100) Depositary Shares 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. If such holder's Depositary
Shares are being held by DTC or its nominee pursuant to Section 2.01 of the
Deposit Agreement, such holder may request, in accordance with Section 2.10 of
the Deposit Agreement, withdrawal from the book-entry system of the number of
Depositary Shares specified in the preceding sentence. Thereafter, holders of
such whole shares will not be entitled to deposit such Stock and receive
Depositary Shares therefor.
3. Conversion Rights. This Receipt may be surrendered
with written instructions to the Depositary to instruct the Company to cause
the conversion of any specified number of whole or fractional shares of Stock
represented by the Depositary Shares evidenced thereby into whole shares of
Common Stock at the conversion rate then in effect for the Stock (and,
therefore, for the Depositary Shares) specified in the Certificate, as such
conversion rate may be adjusted by the Company from time to time as provided in
the Certificate. Subject to the terms and conditions of the 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
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Stock specified in such notice of conversion into shares of Common Stock, and
an assignment of such Receipt or Receipts to the Company or in blank, duly
completed and executed. To the extent that a holder delivers to the Depositary
for conversion a Receipt or Receipts which in the aggregate are convertible
into less than one whole share of Common Stock, the holder shall receive
payment in cash in lieu of such fractional share of Common Stock otherwise
issuable.
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 or 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
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
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.
The aggregate amount of Depositary Shares evidenced by the DTC
Receipt may from time to time be decreased to reflect conversion of Stock
underlying Depositary Shares evidenced by such DTC Receipt.
The holder of Depositary Shares on any dividend payment record
date established by the Depositary 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
shall pay to the Depositary an amount equal to the proportionate amount of the
dividend payable on such dividend payment date on the Depositary Shares
represented by the Receipts being surrendered for conversion accruing between
the date of conversion and such dividend payment date, as instructed by the
Depositary. 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
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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 canceled.
4. Interchangeability of Book-Entry Receipts and
Receipts in Physical, Certificated Form. Subject to the terms and conditions
of the Deposit Agreement, upon receipt by the Depositary of written
instructions from a DTC participant on behalf of any person having a beneficial
interest in Depositary Shares evidenced by the DTC Receipt for the purpose of
directing the Depositary to execute and deliver a Receipt in physical,
certificated form evidencing such Depositary Shares, the Depositary shall
follow the procedures set forth in the FAST Agreement for the purpose of
reducing the number of Depositary Shares evidenced by the DTC Receipt and,
following such reduction, shall execute and deliver to or upon the order of the
person or persons named in such order a Receipt or Receipts registered in the
name or names requested by such person and evidencing in the aggregate the
number of Depositary Shares equal to the reduction in the number evidenced by
the DTC Receipt. The Depositary may require in such written instructions any
certification or representation as it shall deem necessary to comply with
applicable law.
Subject to the terms and conditions of the Deposit Agreement,
upon receipt by the Depositary of a Receipt or Receipts in physical,
certificated form, duly endorsed or accompanied by appropriate instruments of
transfer, in form satisfactory to the Depositary, including any required
certifications, and together with written instructions directing the Depositary
to adjust its records to reflect an increase in the aggregate amount of
Depositary Shares evidenced by the DTC Receipt (including, without limitation,
information regarding the DTC participant account to be credited with such
increase), and upon payment of the fees and expenses of the Depositary, the
Depositary shall cancel such Receipt or Receipts in physical, certificated form
and shall follow the procedures set forth in the FAST Agreement for the purpose
of reflecting such increase in the number of Depositary Shares evidenced by the
DTC Receipt.
5 Automatic Conversion of Stock. On the Mandatory
Conversion Date, provided that the Company shall then have delivered to the
Depositary the shares of Common Stock and the aggregate amount of cash required
to pay any accrued and unpaid dividends and for fractional share interests
issuable and payable upon Automatic Conversion of the Stock then deposited with
the Depositary, the Depositary shall convert (using such shares of Common Stock
and cash so delivered to it) each holder's Depositary Shares into the
proportionate number of whole shares of Common Stock and the proportionate
amount of such cash to which such holder is thereby entitled.
A-5
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The Depositary shall, as directed by the Company, mail, first
class postage prepaid, notice of such Automatic Conversion of Stock and the
proposed simultaneous Automatic Conversion of the Depositary Shares, not less
than five and not more than 15 days prior to the Mandatory Conversion 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
notice 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 Automatic Conversion. The Company shall provide the Depositary
with such notice, and each such notice shall state: the Mandatory Conversion
Date; that all outstanding Depositary Shares on the Mandatory Conversion Date
will be automatically converted into shares of Common Stock and the conversion
rate at which such Automatic Conversion shall occur; the amount of accrued and
unpaid dividends, if any, payable with respect to each Depositary Share to be
so converted; the place or places where Receipts to be so converted are to be
surrendered for conversion; that dividends in respect of the Stock represented
by Depositary Shares to be so converted shall cease to accrue on the Mandatory
Conversion Date; and such additional information as the Company in its
discretion deems appropriate.
From and after the Mandatory Conversion Date, the Depositary
Shares automatically converted into shares of Common Stock shall be deemed no
longer to be outstanding and all rights or the holders of Receipts evidencing
such Depositary Shares (except the right to receive the shares of Common Stock
and any cash payable upon Automatic Conversion) 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), the holders of such Receipts shall receive for
each such Depositary Share a number of shares of Common Stock equal to 1/100th
of the number of shares of Common Stock, and an amount of cash equal to 1/100th
of the cash for accrued and unpaid dividends, if any, delivered in respect of
each share of automatically converted Stock. The foregoing shall be subject
further to the terms and conditions of the Certificate.
6. Suspension of Delivery, Transfer, etc. The transfer,
surrender, exchange, split-up or combination of this Receipt may be suspended
and except as otherwise provided in the Deposit Agreement, the deposit or
withdrawal of Stock may be refused during any period when the register of
stockholders of the Company is closed, or if any such action is deemed
necessary or advisable by the Depositary, any agent of the Depositary or the
Company at any time or from time to time because of any requirement of law or
of any government or governmental body or commission, or under any provision of
the Deposit Agreement.
7. Warranty by Company. The Company has warranted that
the Stock, when issued, and any shares of Common Stock issuable upon conversion
of the Stock, will be validly issued, fully paid and nonassessable.
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8. Amendment. The form of the Receipts and any
provisions of the Deposit Agreement may at any time and from time to time be
amended by agreement between the Company and the Depositary in any respect
which they may deem necessary or desirable; provided, however, that no such
amendment that shall materially and adversely alter the rights of the holders
of Receipts shall be effective unless such amendment shall have been approved
by the holders of at least 66 2/3% of the Depositary Shares then outstanding.
A holder of a Receipt at the time any 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 the Deposit Agreement as amended thereby.
9. Charges of Depositary. The Company will pay all
transfer and other taxes and governmental charges arising solely from the
existence of the Depositary arrangements, all charges of the Depositary in
connection with the initial deposit of the Stock and the initial issuance of
the Depositary Shares, withdrawal of the Stock and the issuance of shares of
Common Stock upon the surrender of Receipts for conversion. All other transfer
and other taxes and other governmental charges shall be at the expense of
holders of Depositary Shares.
10. Title to Receipts. This Receipt (and the Depositary
Shares evidenced hereby), when properly endorsed or accompanied by a properly
executed instrument of transfer, is transferable by delivery with the same
effect as in the case of a negotiable instrument; provided, however, that until
transfer of a Receipt shall be registered on the books of the Registrar, on
behalf of the Depositary, the Depositary may, notwithstanding any notice to the
contrary, treat the record holder hereof at such time as the absolute owner
hereof for the purpose of determining the person entitled to distributions of
dividends or other distributions with respect to the Stock, the exchange of
Depositary Shares for Stock or the right to exchange Receipts or to any notice
provided for in the Deposit Agreement, and for all other purposes.
11. Dividends and Distributions. Whenever the Depositary
receives any cash dividend or other cash distribution on the Stock, the
Depositary will, subject to the provisions of the Deposit Agreement, make such
distribution to the Receipt holders as nearly as practicable in proportion to
the number of Depositary Shares held by them; provided, however, that the
amount distributed will be reduced by any amounts required to be withheld by
the Company or the Depositary on account of taxes as otherwise required
pursuant to law, regulations or court order. Other distributions received on
the Stock may be distributed to holders of Receipts as provided in the Deposit
Agreement.
12. Fixing of Record Date. Whenever any cash dividend or
other cash distribution shall become payable or any distribution other than
cash shall be made, or if rights, preferences or privileges shall at any time
be offered with respect to the Stock, or whenever the Depositary shall receive
notice of any meeting at which holders of Stock are entitled to vote or of
which holders of Stock are entitled to notice, the Depositary shall in each
instance fix a record date (which shall be the record date fixed by the Company
with respect to the Stock) for the determination of the holders of Receipts who
shall be entitled to receive such dividend, distribution, rights, preferences,
privileges or the net proceeds of the sale thereof, or to give
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instructions for the exercise of voting rights at any such meeting, or who
shall be entitled to notice of such meeting.
13. Voting Rights. Upon receipt of notice of any meeting
at which 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, (ii) a statement that
holders of record at the close of business on a specified record date may
instruct the Depositary as to the exercise of the voting rights pertaining to
the amount of Stock (or portion thereof) relating to their respective
Depositary Shares and (iii) a brief statement as to the manner in which such
instructions may be given. Upon the written request of a holder of a Receipt
on such record date, the Depositary shall endeavor insofar as practicable to
vote or cause to be voted the amount of Stock (or portion thereof) relating to
such Receipt in accordance with the instructions set forth in such request.
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.
14. Changes Affecting Deposited Securities. 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 upon
the sale of all or substantially all the Company's assets, the Depositary may
in its discretion 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 and (b) the
ratio of the Optional Conversion Rate and Exchange Rate per Depositary Share to
the Optional Conversion Rate and Exchange Rate of a share of Stock, in each
case as may be necessary fully to reflect the effects of such change, 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, such Stock. In any such
case the Depositary may in its discretion, with the approval of the Company,
execute and deliver additional Receipts, or may call for the surrender of
outstanding Receipts to be exchanged for new Receipts specifically describing
such new deposited securities.
Anything to the contrary herein or in the Depositary Agreement
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 such Stock might have been exchanged or surrendered
immediately prior to the effective date of such transaction.
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15. Liability and Obligations of the Depositary, the
Depositary's Agents, the Registrar and 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 Restated 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 the 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 nonperformance or delay, caused as aforesaid, in
performance of any act or thing that the terms of the 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 the Deposit Agreement,
except in the event of the gross negligence or willful misconduct of the party
charged with such exercise or failure to exercise. Neither the Depositary nor
any Depositary's Agent nor the Company assumes any obligation or shall be
subject to any liability under the Deposit Agreement to holders of Receipts
other than to use its best judgment and good faith in the performance of such
duties as are specifically set forth in the Deposit Agreement. Neither the
Depositary nor any Depositary's Agent nor any Registrar shall be under any
obligation to appear in, prosecute or defend any action, suit or other
proceeding in respect to the Stock, the Depositary Shares or the Receipts that
in its opinion may involve it in expense or liability, unless indemnity
satisfactory to it against all expense and liability be furnished. The Deposit
Agreement contains various other exculpatory, indemnification and related
provisions, to which reference is hereby made.
16. Resignation and Removal of Depositary. The
Depositary may at any time (i) resign 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,
or (ii) be removed by the Company, such removal to take effect upon the
appointment of a successor Depositary and its acceptance of such appointment.
17. Termination of Deposit Agreement. The Deposit
Agreement may be terminated by the Company or the Depositary upon or after the
occurrence of any of the following events: (i) there shall have been made a
final distribution in respect of the Stock in connection with any liquidation,
dissolution or winding up of the Company and such distribution shall have been
distributed to the holders of Receipts; or (ii) each share of Stock shall have
been converted into shares of Common Stock.
18. Governing Law. THIS RECEIPT AND THE DEPOSIT
AGREEMENT 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 DELAWARE (WITHOUT REFERENCE TO APPLICABLE CONFLICTS OF LAW
PROVISIONS).
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33
NOTICE OF CONVERSION
The undersigned hereby irrevocably exercises the option to
convert this Receipt or a portion hereof below designated into shares of Common
Stock of Xxxxxx Fiber Properties, Inc. in accordance with the terms of the
Certificate referred to in this Receipt, and directs the Depositary to instruct
the Company that the shares of Common Stock issuable and deliverable upon the
conversion, together with any check in payment of accrued and unpaid dividends
or in lieu of fractional shares, and any Receipts representing any unconverted
Depositary Shares be issued and delivered to the undersigned unless, in the
case of such shares of Common Stock or Receipts, a different name has been
indicated below. If shares of Common Stock or Receipts are to be issued in the
name of a person other than the undersigned, the undersigned will pay all
transfer taxes payable with respect thereto.
Dated:___________________________ ___________________________
Signature of Holder (must
conform in all respects to
the name of the Holder
appearing on the face
hereof.)
Signature Guaranteed By:
Number of Depositary Shares to be ___________________________
Converted
___________________________
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34
Fill in for registration of shares of Common Stock and/or Receipts if to be
issued otherwise than to Holder.
______________________________ Social Security or Other Taxpayer
(Name) Identifying Number
______________________________ ______________________________
(Address)
______________________________
Please print name and address
(including zip code number)
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