UNITED INTERNATIONAL HOLDINGS, INC.
Firstar Bank of Minnesota, N.A., as Depositary
AND
THE HOLDERS FROM TIME TO TIME OF
THE DEPOSITARY RECEIPTS DESCRIBED HEREIN
DEPOSIT AGREEMENT
FOR
7% SERIES C SENIOR CUMULATIVE CONVERTIBLE PREFERRED STOCK
Dated as of July 6, 1999
TABLE OF CONTENTS
Page
ARTICLE I Definitions......................................................................... 1
ARTICLE II Book-Entry, Form of Receipts, Deposit of Preferred Stock, Execution and Delivery,
Transfer, Surrender and Redemption of Receipts ..................................... 3
Section 2.1 Book-Entry Form; Form and Transfer of Receipts....................... 3
Section 2.2 Deposit of Preferred Stock; Execution and Delivery of
Receipts in Respect Thereof.......................................... 5
Section 2.3 Redemption and Conversion of Preferred Stock......................... 7
Section 2.4 Registration of Transfer of Receipts................................. 11
Section 2.5 Surrender of Receipts and Withdrawal of Preferred Stock.............. 11
Section 2.6 Limitations on Execution and Delivery, Transfer,
Surrender and Exchange of Receipts................................... 13
Section 2.7 Lost Receipts, etc................................................... 13
Section 2.8 Cancellation and Destruction of Surrendered
Receipts............................................................. 13
Section 2.9 Interchangeability of Book-Entry Receipts and
Receipts in Physical, Certificated Form.............................. 14
ARTICLE III Certain Obligations of Holders of Receipts and the Company.......................... 14
Section 3.1 Filing Proofs, Certificates and Other Information.................... 14
Section 3.2 Payment of Taxes or Other Governmental Charges....................... 15
Section 3.3 Warranty as to Preferred Stock....................................... 15
ARTICLE IV The Deposited Securities; Notices................................................... 15
Section 4.1 Cash and Common Stock Distributions.................................. 15
Section 4.2 Distributions Other than Cash, Rights, Preferences
or Privileges........................................................ 16
Section 4.3 Subscription Rights, Preferences or Privileges....................... 17
Section 4.4 Notice of Dividends, etc.; Fixing of Record Date
for Holders of Receipts.............................................. 18
Section 4.5 Voting Rights........................................................ 18
Section 4.6 Inspection of Reports................................................ 19
Section 4.7 Lists of Receipt Holders............................................. 19
Section 4.8 Tax and Regulatory Compliance........................................ 19
Section 4.9 Withholding.......................................................... 19
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ARTICLE V The Depositary, the Depositary's Agents, the Registrar
and the Company..................................................................... 20
Section 5.1 Maintenance of Offices, Agencies and Transfer Books
by the Depositary; Registrar......................................... 20
Section 5.2 Prevention of or Delay in Performance by the Depositary, the
Depositary's Agents, the Registrar or the Company.................... 21
Section 5.3 Obligations of the Depositary, the Depositary's
Agents, the Registrar and the Company................................ 21
Section 5.4 Resignation and Removal of the Depositary;
Appointment of Successor Depositary.................................. 23
Section 5.5 Corporate Notices and Reports........................................ 24
Section 5.6 Indemnification by the Company....................................... 24
Section 5.7 Charges and Expenses................................................. 24
ARTICLE VI Amendment and Termination........................................................... 25
Section 6.1 Amendment............................................................ 25
Section 6.2 Termination.......................................................... 25
ARTICLE VII Miscellaneous....................................................................... 26
Section 7.1 Counterparts......................................................... 26
Section 7.2 Exclusive Benefit of Parties......................................... 27
Section 7.3 Invalidity of Provisions............................................. 27
Section 7.4 Notices.............................................................. 27
Section 7.5 Depositary's Agents.................................................. 28
Section 7.6 Holders of Receipts are Parties...................................... 28
Section 7.7 Governing Law........................................................ 28
Section 7.8 Inspection of Deposit Agreement...................................... 28
Section 7.9 Headings............................................................. 28
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DEPOSIT AGREEMENT
DEPOSIT AGREEMENT dated as of July 6, 1999, among United International
Holdings, Inc., a Delaware corporation doing business as UnitedGlobalCom (the
"Company"), Firstar Bank of Minnesota, N.A., as Depositary, and the holders from
time to time of the Receipts (as hereinafter defined) issued hereunder.
WHEREAS, it is desired to provide, as hereinafter set forth in this Deposit
Agreement, for the deposit of shares of the Preferred Stock (as hereinafter
defined) of the Company with the Depositary for the purposes set forth in this
Deposit Agreement and for the issuance hereunder of Receipts evidencing
Depositary Shares (as hereinafter defined) in respect of the Preferred 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, the
parties hereto agree as follows:
ARTICLE I
Definitions
The following definitions shall for all purposes, unless otherwise
indicated, apply to the respective terms used in this Deposit Agreement. Terms
not otherwise defined herein shall be given the meaning assigned to such terms
in the Certificate.
"Beneficial Owner" shall have the meaning set forth in Section 2.1 hereof.
"Certificate" shall mean the Certificate of Designation filed with the
Secretary of State of the State of Delaware establishing the Preferred Stock as
a series of preferred stock of the Company designated as 7% Series C Senior
Cumulative Convertible Preferred Stock."
"Common Stock" shall mean the Company's Class A Common Stock, par value
$0.01 per share, or any security into which such Common Stock may be converted.
"Company" shall mean United International Holdings, Inc., a Delaware
corporation, and its successors.
"Deposit Agreement" shall mean this Deposit Agreement, as amended, modified
or supplemented from time to time.
"Depositary" shall mean Firstar Bank of Minnesota, N.A., and any successor
as Depositary hereunder.
"Depositary Shares" shall mean Depositary Shares, each representing
ownership of one-twentieth of a share of the Preferred Stock deposited with the
Depositary under this Deposit Agreement, all as evidenced by a Receipt. Subject
to the terms of this Deposit Agreement, each owner of a Depositary Share is
entitled, in proportion to the applicable fraction of a share of Preferred Stock
represented by such Depositary Share, to all the rights, preferences and
privileges of the Preferred Stock represented by such Depositary Share,
including dividend, voting, redemption, conversion and liquidation rights and
subject, proportionately, to all of the limitations of the Preferred Stock
represented thereby, contained in the Certificate, and to the benefits of all
obligations of the Company under the Certificate.
"Depositary's Agent" shall mean any agent appointed by the Depositary
pursuant to Section 7.5.
"Depositary's Office" shall mean the corporate trust office of the
Depositary in New York, New York, at which at any particular time its depositary
receipt business shall be administered.
"DTC" shall have the meaning set forth in Section 2.1.
"DTC Receipt" shall have the meaning set forth in Section 2.1.
"Officer's Certificate" shall mean a certificate signed by the Chairman of
the Board, the President or any Vice President of the Company and delivered to
the Depositary.
"Preferred Stock" shall mean the Company's 7% Series C Senior Cumulative
Convertible Preferred Stock, par value $0.01 per share.
"Receipt" shall mean one of the Depositary Receipts issued hereunder by the
Depositary, whether in definitive or temporary form, evidencing interests held
in Depositary Shares, in substantially the form set forth in Exhibit A hereto.
2
Wherein the context requires, the term "Receipt" shall be deemed to include the
DTC Receipt.
"Record Holder" as applied to a Receipt shall mean the person in whose name
a Receipt is registered on the books of the Depositary maintained for such
purpose.
"Redemption Date" shall have the meaning specified in Section 2.3(a).
"Securities Act" shall mean the Securities Act of 1933, as amended.
ARTICLE II
Book-Entry, Form of Receipts, Deposit of Preferred Stock, Execution
and Delivery, Transfer, Surrender and Redemption of Receipts
Section 2.1 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 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, a letter of
representations, in form satisfactory to the Company, the Depositary and DTC. So
long as the Receipts are eligible for book-entry settlement with DTC, except as
provided for in Section 2.9 of this Deposit Agreement, or unless otherwise
required by law, all Depositary Shares to be issued and sold in reliance on Rule
144A are expected to be eligible for trading in the Private Offerings, Resales
and Trading Through Automated Linkages ("PORTAL") market of the National
Association of Securities Dealers, Inc. with book-entry settlement through DTC,
shall be represented by a single receipt (the "DTC Receipt") which shall be
deposited with DTC (or its custodian) evidencing all such Depositary Shares and
registered in the name of the nominee of DTC (initially expected to be Cede &
Co.). Firstar Bank of Minnesota, N.A. 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 Receipts, except as expressly
provided for in the following paragraph and in Section 2.9 of this Deposit
Agreement, Beneficial Owners acquiring Depositary Shares, issued and sold in
reliance on Rule 144A with book-entry settlement through DTC, shall not receive
or be entitled to receive physical delivery of the Receipts representing their
ownership interest in such Depositary Shares. Ownership of beneficial interests
3
in the DTC Receipt ("Beneficial Owners") 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 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 Receipts shall 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 or printed or lithographed on steel-engraved
borders and shall be substantially in the form set forth as 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. Until such time as the Receipts are
so engraved or printed or lithographed in accordance with the preceding
sentence, the Depositary, upon the written order of the Company or any holder of
Preferred Stock, as the case may be, delivered in compliance with Section 2.2,
shall execute and deliver temporary Receipts which are printed, lithographed,
typewritten, mimeographed or otherwise substantially identical to (and entitling
the Record Holders thereof to all the rights pertaining to) the definitive
Receipts in lieu of which they are issued, and with such appropriate insertions,
omissions, substitutions and other variations as the persons executing such
Receipts may determine, as evidenced by their execution of such Receipts. 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 Record Holder. Upon surrender for
cancellation of any one or more temporary Receipts, the Depositary shall execute
and deliver in exchange therefor definitive Receipts representing the same
number of Depositary Shares as represented by the surrendered temporary Receipt
or Receipts. Such exchange shall be made at the Company's expense and without
any charge therefor to the Record Holder of the Receipts. 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 Preferred Stock, as
definitive Receipts.
4
Receipts shall be executed by the Depositary by the manual signature of a
duly authorized signatory of the Depositary; provided, that such signature may
be a facsimile if a registrar for the Receipts (other than the Depositary) shall
have been appointed by the Depositary and such Receipts are countersigned by
manual signature of a duly authorized signatory of such 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 signatory of the Depositary or, if a registrar for the Receipts
(other than the Depositary) shall have been appointed, by manual or facsimile
signature of a duly authorized signatory of the Depositary and countersigned
manually by a duly authorized signatory of such registrar. The Depositary shall
record on its books each Receipt so signed and delivered as hereinafter
provided.
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 (in each case as set forth in an Officer's Certificate
delivered to the Depositary) as may be required by the Company or the Depositary
or required to comply with any applicable law or any regulation or with the
rules and regulations of any securities exchange upon which the Preferred Stock,
the Depositary Shares or the Receipts may be listed or to conform with any usage
with respect thereto, or to indicate any special limitations or restrictions to
which any particular Receipts are subject.
Subject to any limitations set forth in a Receipt or in this Deposit
Agreement, title to Depositary Shares evidenced by a Receipt which is properly
endorsed or accompanied by a properly executed instrument of transfer, shall be
transferable by delivery with the same effect as in the case of a negotiable
instrument; provided, however, that until transfer of a Receipt shall be
registered on the books of the Depositary as provided in Section 2.4, the
Depositary may, notwithstanding any notice to the contrary, treat the Record
Holder thereof at such time as the absolute owner thereof for the purpose of
determining the person entitled to distributions of dividends or other
distributions, the exchange of Depositary Shares for Preferred Stock, the right
to exchange Receipts pursuant to Section 2.9 or to any notice provided for in
this Deposit Agreement and for all other purposes.
Section 2.2 DEPOSIT OF PREFERRED STOCK; EXECUTION AND DELIVERY OF RECEIPTS
IN RESPECT THEREOF. Concurrently with the execution of this Deposit Agreement,
the Company is delivering to the Depositary a certificate or certificates,
5
registered in the name of the Depositary and evidencing 425,000 shares of
Preferred Stock, properly endorsed or accompanied, if required by the
Depositary, by a duly executed instrument of transfer or endorsement, in form
satisfactory to the Depositary. Subject to the terms and conditions of this
Deposit Agreement, the Company or any holder of Preferred Stock may from time to
time deposit shares of the Preferred Stock under this Deposit Agreement by
delivery to the Depositary of a certificate or certificates for the Preferred
Stock to be deposited, properly endorsed or accompanied, if required by law or
the Depositary, by a duly executed instrument of transfer or endorsement, in
form satisfactory to the Depositary. Concurrently with each delivery of
certificates, the Company or the holder, as the case may be, is delivering or
shall deliver, as the case may be, to the Depositary (i) all such certifications
as may be required by the Depositary in accordance with the provisions of this
Deposit Agreement and (ii) a written order of the Company directing the
Depositary to execute and deliver to, or upon the written or oral order of, the
person or persons stated in such order a Receipt or Receipts for the Depositary
Shares representing such deposited Preferred Stock. The Depositary acknowledges
receipt of the deposited Preferred Stock delivered on the date of this Deposit
Agreement, together with all related documentation, and agrees to hold such
deposited Preferred Stock in an account to be established by the Depositary at
the Corporate Office or at such other office as the Depositary shall determine.
The Company hereby appoints the Depositary as the registrar, transfer agent and
paying agent for the Preferred Stock and the Depositary hereby accepts such
appointment and, as such, will reflect changes in the number of shares
(including any fractional shares) of deposited Preferred Stock held by notation,
book-entry or other appropriate method.
Upon receipt by the Depositary of a certificate or certificates for
Preferred Stock deposited in accordance with the provisions of this Section,
together with the other documents required as above specified, and upon
recordation of the Preferred Stock on the books of the Company in the name of
the Depositary or its nominee, the Depositary, subject to the terms and
conditions of this Deposit Agreement, shall execute and deliver, to or upon the
order of the Company or a holder of Preferred Stock depositing shares of
Preferred Stock in accordance with the first paragraph of this Section, a
Receipt or Receipts for the number of whole Depositary Shares representing the
Preferred Stock so deposited and registered in such name or names as may be
requested by the Company or such holder. The Depositary shall execute and
deliver such Receipt or Receipts at the Depositary's Office or such other
offices, if any, as the Depositary may designate. Delivery at other offices
shall be at the risk and expense of the person requesting such delivery. 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
6
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.
Other than in the case of splits, combinations or other reclassifications
affecting the Preferred Stock, or in the case of dividends or other
distributions of Preferred Stock, if any, there shall be deposited hereunder not
more than the number of shares constituting the Preferred Stock as set forth in
the Certificate, as such may be amended from time to time.
Section 2.3 REDEMPTION AND CONVERSION OF PREFERRED STOCK.
(a) OPTIONAL REDEMPTION AND CONVERSION AT THE OPTION OF THE COMPANY.
Whenever the Company shall elect to redeem or convert deposited shares of
Preferred Stock in accordance with the provisions of the Certificate, it shall
(unless otherwise agreed to in writing with the Depositary) give the Depositary
not less than five (unless a shorter period shall be acceptable to the
Depositary) nor more than 10 days' prior written notice of the proposed date of
the mailing of a notice of redemption or conversion of Depositary Shares to
Record Holders of Receipts in connection with a redemption or conversion of
Preferred Stock of the number of such shares of Preferred Stock held by the
Depositary to be so redeemed or converted as hereinafter provided and such other
information as shall be required by the Depository to furnish the notice of
redemption or conversion required by the next succeeding paragraph. Any such
notice shall be accompanied by an Officer's Certificate from the Company stating
that such redemption or conversion of Preferred Stock is in accordance with the
provisions of the Certificate. Such notice to the Depositary, if given more than
60 days prior to the redemption date or conversion date, shall be in addition to
the notice required to be given for redemption or conversion pursuant to the
Certificate. On the date of any such redemption or such conversion, provided
that the Company shall then have deposited with the Depositary the shares of
Common Stock as required by the Certificate, the Depositary shall redeem or
convert (using the shares of Common Stock and funds, if any, deposited with it)
the number of Depositary Shares representing such redeemed or converted
Preferred Stock.
The Depositary shall mail notice of redemption of Preferred Stock and the
number of Depositary Shares representing the Preferred Stock to be redeemed by
first-class mail, postage prepaid, not less than 20 and not more than 60 days
prior to the date fixed for redemption of such Preferred Stock and Depositary
Shares (the "Redemption Date"). Such notice shall be mailed to Record Holders of
the Receipts evidencing the Depositary Shares to be so redeemed, at the
addresses of such Record Holders as they appear on the Receipt register of the
Depositary; but neither failure to mail any such notice to one or more such
7
Record Holders nor any defect in any notice to one or more such Record Holders
shall affect the sufficiency of the proceedings for redemption as to other
Record Holders. Each such notice shall state the record date for such
redemption; the Redemption Date that all outstanding Depositary Shares are to be
redeemed, in the case of a redemption of fewer than all outstanding Depositary
Shares in connection with a partial redemption of Preferred Stock, the number of
such Depositary Shares held by such Record Holder to be so redeemed; the
Redemption Price for the Depositary Shares, the number of shares of Common Stock
deliverable upon redemption of each Depositary Share to be redeemed; the amount
of cash, if any, that the Company is paying in lieu of fractional shares of
Common Stock and the Market Value (as defined in the Certificate) to be used to
calculate the number of shares of Common Stock to be delivered; the place or
places where Receipts evidencing Depositary Shares to be redeemed are to be
surrendered for redemption; and that dividends in respect of the Preferred Stock
represented by the Depositary Shares to be redeemed will cease to accumulate on
such Redemption Date. In case less than all the outstanding Depositary Shares
are to be redeemed, the Depositary Shares to be so redeemed shall be selected by
lot or pro rata (as nearly as practicable without creating fractional shares) or
by any other equitable method determined by the Depositary, except that the
Depositary may redeem Depositary Shares held by any Record Holder of fewer than
100 Depositary Shares (or Depositary Shares held by Record Holders of Preferred
Stock who would hold fewer than 100 Depositary Shares as a result of such
redemption).
The Depositary shall mail notice of conversion of Preferred Stock and the
number of Depositary Shares representing the Preferred Stock to be converted by
first-class mail, postage prepaid, at any time within 10 days after the
occurrence of the event giving rise to the right of conversion in accordance
with the provisions of the Certificate or for so long as such conditions giving
rise to such right of conversion are continuing. Such notice shall be mailed to
Record Holders of the Receipts evidencing the Depositary Shares to be so
converted, at the addresses of such Record Holders as they appear on the Receipt
register of the Depositary; but neither failure to mail any such notice to one
or more such Record Holders nor any defect in any notice to one or more such
Record Holders shall affect the sufficiency of the proceedings for conversion as
to other Record Holders. Such notice shall state the date for such conversion
(which date shall be the date of such notice); the closing price of the Common
Stock as of the date of such notice; a statement that the Company is exercising
its right to cause the mandatory conversion and a brief description of the
provsions of the Preferred Stock conferring such right upon the Company; a brief
summary of any transfer restrictions on the shares of Common Stock issuable upon
conversion; the amount of cash, if any, that the Company is paying in lieu of
fractional shares of Common Stock and the Market Value (as defined in the
Certificate) to be used to calculate the number of shares of Common Stock to be
8
delivered; the approximate date and manner upon which shares of Common Stock
will be made available; the Conversion Price as of the date of the notice; the
amount of accumulated but unpaid dividends, liquidated damages and Quarterly
Return Amounts, if any; and a statement that unless the Company defaults in
delivery of the shares of Common Stock into which such Preferred Stock has been
converted, the rights as holders of Preferred Stock shall cease as of the date
of such notice and holders shall thereafter have all rights as other holders of
Common Stock.
Notice having been mailed by the Depositary as aforesaid with respect to
redemptions or conversions described in the preceding paragraphs, from and after
the Redemption Date or Conversion Date (unless the Company shall have failed to
redeem or convert the shares of Preferred Stock to be redeemed or converted as
set forth in the Company's notice provided for in the preceding paragraphs), all
dividends in respect of the shares of Preferred Stock so called for redemption
or conversion shall cease to accumulate, the Depositary Shares called for
redemption or conversion shall be deemed no longer to be outstanding, and all
rights of the Record Holders of Receipts evidencing such Depositary Shares
(except the right to receive shares of Common Stock and, if applicable, cash
upon redemption or conversion) shall, to the extent of such Depositary Shares,
cease and terminate. The foregoing shall be subject further to the terms and
conditions of the Certificate.
Anything herein to the contrary notwithstanding, the holders of record of
Receipts evidencing Depositary Shares representing Preferred Stock at the close
of business on a record date for the payment of dividends on the Preferred Stock
will be entitled to receive the dividend payable with respect to the Preferred
Stock represented by the Depositary Shares evidenced by such Receipts (except
that holders of Depositary Shares called for redemption on a redemption date
between the record date and a date which is two days after payment of the
dividend payment dated will be entitled to receive such dividend on such
redemption date) on the corresponding dividend payment date for the Preferred
Stock notwithstanding the subsequent conversion of such Preferred Stock or
Depositary Shares after such record date and on or prior to such dividend
payment date or the Company's default in the payment of the dividend due on such
dividend payment date, in which case the amount payable upon conversion of such
Depositary Shares will not include any amount in respect of such dividend (and
the full amount of the dividend payable for the applicable dividend period shall
instead be paid on such dividend payment date to the holders of record of such
Receipts on such record date as aforesaid).
9
If less than all the Depositary Shares evidenced by a Receipt are called
for redemption, the Depositary will deliver to the Record Holder of such
Receipt, upon surrender of such Receipt to the Depositary, a new Receipt
evidencing the Depositary Shares evidenced by such prior Receipt and not called
for redemption, together with certificates representing the shares of Common
Stock issuable upon redemption of the Depositary Shares called for redemption.
(b) CONVERSION AT OPTION OF HOLDER. Whenever a Record Holder of Receipts
shall elect to convert shares of Preferred Stock underlying the Depositary
Shares evidenced by such Receipts in accordance with the provisions of the
Certificate, it shall deliver Receipts evidencing the Depositary Shares relating
to the shares of Preferred Stock to be converted, together with written notice
of conversion and a proper assignment of the Receipts to the Company or in blank
to the Depositary or its agent. Each optional conversion of shares of Preferred
Stock underlying Depositary Shares shall be deemed to have been effected
immediately prior to the close of business on the date of which the foregoing
requirements have been satisfied.
From and after the relevant date fixed for conversions (the "Conversion
Date")(unless the Company shall have failed to convert the shares of Preferred
Stock to be converted by it), all dividends or Quarterly Return Amounts in
respect of the shares of Preferred Stock so called for conversion shall cease to
accumulate, the shares of Preferred Stock and Depositary Shares so converted
shall be deemed no longer to be outstanding, and all rights of the Record
Holders of Receipts evidencing such Depositary Shares (except the right to
receive shares of Common Stock and, if applicable, cash upon conversion) shall,
to the extent of such Depositary Shares, cease and terminate. Upon any surrender
for conversion of the Receipts evidencing any such Depositary Shares (properly
endorsed or assigned for transfer, if the Depositary shall so require), shares
of Preferred Stock underlying such Depositary Shares shall be converted by the
Company (as nearly as may be practicable without creating fractional shares)
into shares of Common Stock at a conversion rate equal to one-twentieth of the
number of shares of Common Stock received upon conversion of each share of
Preferred Stock pursuant to the Certificate. The foregoing shall be subject
further to the terms and conditions of the Certificate.
(c) FRACTIONAL INTERESTS. To the extent that shares of Preferred Stock
underlying Depositary Shares are redeemed for or converted into shares of Common
Stock and all of such shares of Common Stock cannot be distributed to the Record
Holders of Receipts without creating fractional interests in such shares, the
Company shall cause the Depositary to distribute cash to Record Holders in lieu
of fractional shares. The amount distributed in the foregoing case will be
reduced by any amount required to be withheld by the Company or the Depositary
10
on account of taxes or otherwise required pursuant to law, regulation or court
process. In the Company's discretion, no fractional shares of Common Stock or
securities respresenting fractional shares of Common Stock will be issued upon
conversion, redemption, change of control or in connection with dividend
payments. Any fractional interest in a share of Common Stock will be paid in
cash based on the closing price of the Common Stock on the trading day next
preceding the date of conversion or such later time as the Company is legally
and contractually able to purchase such fractional shares.
(d) LIMITATIONS ON DEPOSITARY REQUIREMENTS FOR TRANSFER AND EXCHANGE. The
Depositary shall not be required (a) to issue, register the transfer of or
exchange any Receipts for a period beginning at the opening of business 10 days
next preceding any selection of Depositary Shares to be redeemed and ending at
the close of business on the day of the mailing of notice of redemption of
Depositary Shares or (b) to register the transfer of or exchange for another
Receipt any Receipt evidencing Depositary Shares called or being called for
redemption in whole or in part.
Section 2.4 REGISTRATION OF TRANSFER OF RECEIPTS. Subject to the terms and
conditions of this Deposit Agreement, the Depositary shall register on its books
from time to time transfers of Receipts upon any surrender thereof by the Record
Holder in person or by such Record Holder's duly authorized attorney, properly
endorsed or accompanied by a properly executed instrument of transfer. No
service charge will be made for any registration of transfer or exchange of
Receipts, but the Company or the Depositary may require payment of any transfer
tax or similar governmental charge payable in connection therewith. Upon such
surrender, the Depositary shall execute a new Receipt or Receipts evidencing the
same aggregate number of Depositary Shares as those evidenced by the Receipt or
Receipts surrendered and deliver such new Receipt or Receipts to or upon the
order of the person entitled thereto.
Section 2.5 SURRENDER OF RECEIPTS AND WITHDRAWAL OF PREFERRED STOCK. Any
Record Holder of a Receipt or Receipts representing any number of whole shares
of Preferred Stock (or such Record Holder's duly authorized attorney), unless
the related Depositary Shares have been previously called for redemption, may
withdraw the Preferred Stock and all money and other property, if any,
represented thereby by surrendering such Receipt or Receipts at the Depositary's
Office or at such other offices as the Depositary may designate for such
withdrawals. If such Record Holder's Depositary Shares are being held by DTC or
its nominee pursuant to Section 2.1, such Record Holder shall request, in
accordance with Section 2.9, 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 Record Holder, or to the
11
person or persons designated by such Record Holder as hereinafter provided, the
number of whole shares of Preferred Stock and all money and other property, if
any, represented by the Receipt or Receipts so surrendered for withdrawal, but
holders of such whole shares of Preferred Stock will not thereafter be entitled
to receive Depositary Shares in exchange therefor except in compliance with
Section 2.2 hereof. If a Receipt delivered by the Record Holder to the
Depositary in connection with such withdrawal shall evidence a number of
Depositary Shares in excess of the number of Depositary Shares representing the
number of whole shares of Preferred Stock to be so withdrawn, the Depositary
shall at the same time, in addition to such number of whole shares of Preferred
Stock and such money and other property, if any, to be so withdrawn, deliver to
such Record Holder, or (subject to Section 2.4) upon his order, a new Receipt
evidencing such excess number of Depositary Shares. Delivery of the Preferred
Stock and money and other property being withdrawn may be made by the delivery
of such certificates, documents of title and other instruments as the Depositary
may deem appropriate.
Preferred 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 Company or required to comply with any applicable law or any
regulation thereunder or with the rules and regulations of any securities
exchange upon which the Preferred 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 Preferred Stock are subject.
If the Preferred Stock and the money and other property being withdrawn are
to be delivered to a person or persons other than the Record Holder of the
Receipt or Receipts being surrendered for withdrawal of Preferred Stock, such
Record Holder shall execute and deliver to the Depositary a written order so
directing the Depositary and the Depositary may require that the Receipt or
Receipts surrendered by such Record Holder for withdrawal of such shares of
Preferred Stock be properly endorsed in blank or accompanied by a properly
executed instrument of transfer in blank.
Delivery of the Preferred Stock and the money and other property, if any,
represented by Receipts surrendered for withdrawal shall be made by the
Depositary at the Depositary's Office, except that, at the request, risk and
expense of the Record Holder surrendering such Receipt or Receipts and for the
account of the Record Holder thereof, such delivery may be made at such other
place as may be designated by such Record Holder.
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Section 2.6 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 any or all of the following: (i) payment to it of a sum sufficient for
the payment (or, in the event that the Depositary or the Company shall have made
such payment, the reimbursement to it) of any charges or expenses payable by the
Record Holder of a Receipt pursuant to Section 5.7 (or evidence reasonably
satisfactory to the Company that such charges and expenses have been paid), (ii)
the production of evidence satisfactory to it as to the identity and genuineness
of any signature and (iii) compliance with such regulations, if any, as the
Depositary or the Company may establish not inconsistent with the provisions of
this Deposit Agreement.
The deposit of Preferred Stock may be refused, the delivery of Receipts
against Preferred Stock may be suspended, the registration of transfer of
Receipts may be refused and the registration of transfer, split-up, combination
surrender or exchange of outstanding Receipts may be suspended (i) during any
period when the register of Stockholders of the Company is closed or (ii) if any
such action is deemed necessary or advisable by the Depositary or the Company
any of the Depositary's Agents or the Company at any time or from time to time
because of any requirement of law or of any government or governmental body or
commission or under any provision of this Deposit Agreement.
Section 2.7 LOST RECEIPTS, ETC. In case any Receipt shall be mutilated,
destroyed, lost or stolen, the Depositary in its discretion may execute and
deliver a Receipt of like form and tenor in exchange and substitution for such
mutilated Receipt, or in lieu of and in substitution for such destroyed, lost or
stolen Receipt, upon (i) the filing by the Record Holder thereof with the
Depositary of evidence satisfactory to the Depositary of such destruction or
loss or theft of such Receipt, of the authenticity thereof and of his or her
ownership thereof and (ii) the furnishing to the Depositary of indemnification
satisfactory to it.
Section 2.8 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.
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Section 2.9 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
DTC on behalf of any Beneficial Owner 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 customary
procedures established by DTC 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 Company
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 shall
cancel such Receipt or Receipts in physical, certificated form and shall follow
the customary procedures established by DTC for the purpose of reflecting such
increase in the number of Depositary Shares evidenced by the DTC Receipt.
ARTICLE III
Certain Obligations of
Holders of Receipts and the Company
Section 3.1 FILING PROOFS, CERTIFICATES AND OTHER INFORMATION. Any Record
Holder of a Receipt may be required from time to time to file such proof of
residence, or other information, to execute such certificates and to make such
representations and warranties as the Depositary or the Company may reasonably
deem necessary or proper. The Depositary or the Company may withhold the
delivery, or delay the registration of transfer, redemption or exchange, of any
Receipt or the withdrawal of the Preferred Stock represented by the Depositary
Shares evidenced by any Receipt or the distribution of any dividend or other
14
distribution or the sale of any rights or of the proceeds thereof until such
proof or other information is filed or such certificates are executed or such
representations and warranties are made.
Section 3.2 PAYMENT OF TAXES OR OTHER GOVERNMENTAL CHARGES. Record Holders
of Receipts shall be obligated to make payments to the Depositary of certain
charges and expenses as provided in Section 5.7, or provide reasonably
satisfactory evidence to the Depositary that such charges and expenses have been
paid. Registration of transfer of any Receipt or any withdrawal of Preferred
Stock and all money or other property, if any, represented by the Depositary
Shares evidenced by such Receipt may be refused until any such payment due is
made, and any dividends, interest payments or other distributions may be
withheld or any part of or all the Preferred Stock or other property represented
by the Depositary Shares evidenced by such Receipt and not theretofore sold may
be sold for the account of the Record Holder thereof (after attempting by
reasonable means to notify such Record 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 Record
Holder of such Receipt remaining liable for any deficiency. The Depositary shall
at the direction of the Company withhold any payments, distributions and
exchanges made with respect to the Depositary Shares and Receipts, and the
Preferred Stock, Common Stock or other securities or assets represented thereby
(collectively, the "Securities"). In the event the Depositary is required to pay
any such amounts, the Company shall reimburse the Depositary for payment thereof
upon the request of the Depositary and the Depositary shall, upon the Company's
request and as instructed by the Company, pursue its rights against such Record
Holder at the Company's expense.
Section 3.3 WARRANTY AS TO PREFERRED STOCK. The Company hereby represents
and warrants that the Receipts, when issued, will evidence legal and valid
interests in the Depositary Shares and each Depositary Share will represent a
legal and valid one-twentieth fractional interest in a deposited share of
Preferred Stock and that the Preferred Stock, when issued, will be validly
issued, fully paid and nonassessable. Such representation and warranty shall
survive the deposit of the Preferred Stock and the issuance of the Receipts.
ARTICLE IV
The Deposited Securities; Notices
Section 4.1 CASH AND COMMON STOCK DISTRIBUTIONS. Whenever the Depositary
shall receive any cash dividend or other cash distribution on Preferred Stock
(including Liquidated Damages and Quarterly Return Amounts, each as defined in
15
the Offering Memorandum pursuant to which the Preferred Stock was originally
issued) or distribution of Common Stock, the Depositary shall, subject to
Sections 3.1 and 3.2, distribute to Record Holders of Receipts on the record
date fixed pursuant to Section 4.4 such amounts of such dividend or distribution
as are, as nearly as practicable, in proportion to the respective numbers of
Depositary Shares evidenced by the Receipts held by such Record Holders; to the
extent that dividends are paid in shares of Common Stock and all of such shares
of Common Stock cannot be distributed to the Record Holders of Receipts without
creating fractional interests in such shares, the Company shall cause the
Depositary to distribute cash to Record Holders in lieu of fractional shares,
subject to Section 2.3(c) hereof; provided, however, that in case the Company or
the Depositary shall be required to withhold and shall withhold from any cash
dividend or other cash distribution in respect of the Preferred Stock an amount
on account of taxes, the amount made available for distribution or distributed
in respect of Depositary Shares shall be reduced accordingly. The Depositary
shall distribute or make available for distribution, as the case may be, only
such amount, however, as can be distributed without attributing any Record
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 sum received
by the Depositary for distribution to Record Holders of Receipts then
outstanding.
Section 4.2 DISTRIBUTIONS OTHER THAN CASH, RIGHTS, PREFERENCES OR
PRIVILEGES. Whenever the Depositary shall receive any distribution other than
cash, rights, preferences or privileges upon Preferred Stock, the Depositary
shall, subject to Sections 3.1 and 3.2, distribute to Record Holders of Receipts
on the record date fixed pursuant to Section 4.4 such amounts of the securities
or property received by it as are, as nearly as practicable, in proportion to
the respective numbers of Depositary Shares evidenced by the Receipts held by
such Record 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) 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 (at public or private sale) of the securities or property
thus received, or any part thereof, at such place or places and upon such terms
as it may deem proper. The net proceeds of any such sale shall, subject to
Sections 3.1 and 3.2, be distributed or made available for distribution, as the
case may be, by the Depositary to Record Holders of Receipts as provided by
Section 4.1 in the case of a distribution received in cash. The Company shall
16
not make any distribution of such securities unless the Company shall have
provided an opinion of counsel stating that such securities have been registered
under the Securities Act or that the offering and sale of such securities by the
Company are exempt from registration under the Securities Act.
Section 4.3 SUBSCRIPTION RIGHTS, PREFERENCES OR PRIVILEGES. If the Company
shall at any time offer or cause to be offered to the persons in whose names
Preferred Stock is recorded on the books of the Company any rights, preferences
or privileges to subscribe for or to purchase any securities or any rights,
preferences or privileges of any other nature, such rights, preferences or
privileges shall in each such instance be made available by the Depositary to
the Record Holders of Receipts in such manner as the Company may determine,
either by the issue to such Record Holders of warrants representing such rights,
preferences or privileges or by such other method as may be determined by the
Company in its discretion with the approval of the Depositary; provided,
however, that (i) if at the time of issue or offer of any such rights,
preferences or privileges the Company determines that it is not lawful or (after
consultation with the Depositary) not feasible to make such rights, preferences
or privileges available to Record Holders of Receipts by the issue of warrants
or otherwise or (ii) if and to the extent so instructed by Record Holders of
Receipts who do not desire to exercise such rights, preferences or privileges,
then the Company, in its discretion, 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 sale shall,
subject to Sections 3.1 and 3.2, be distributed by the Depositary to the Record
Holders of Receipts entitled thereto as provided by Section 4.1 in the case of a
distribution received in cash. The Company shall not make any distribution of
any such rights, preferences or privileges unless the Company shall have
provided an opinion of counsel stating that such rights, preferences or
privileges have been registered under the Securities Act or that the offering
and sale of such rights, preferences or privileges are exempt from registration
under the Securities Act.
If registration under the Securities Act of the securities to which any
rights, preferences or privileges relate is required in order for Record Holders
of Receipts to be offered or sold the securities to which such rights,
preferences or privileges relate, the Company agrees with the Depositary that it
will promptly file a registration statement pursuant to the Securities Act with
respect to such rights, preferences or privileges and securities and use its
best efforts and take all steps available to it to cause such registration
statement to become effective sufficiently in advance of the expiration of such
rights, preferences or privileges to enable such Record Holders to exercise such
rights, preferences or privileges. In no event shall the Depositary make
17
available to the Record Holders of Receipts any right, preference or privilege
to subscribe for or to purchase any securities unless and until such
registration statement shall have become effective, or unless the offering and
sale of such securities to such Record Holders are exempt from registration
under the provisions of the Securities Act.
If any other action under the laws of any jurisdiction or any governmental
or administrative authorization, consent or permit is required in order for such
rights, preferences or privileges to be made available to Record 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 Record Holders to exercise such rights, preferences or
privileges.
Section 4.4 NOTICE OF DIVIDENDS, ETC.; FIXING OF RECORD DATE FOR HOLDERS
OF RECEIPTS. Whenever (i) any cash dividend or other cash distribution shall
become payable, any distribution other than cash shall be made, or any rights,
preferences or privileges shall at any time be offered, with respect to
Preferred Stock, or (ii) the Depositary shall receive notice of any meeting at
which holders of Preferred Stock are entitled to vote or of which holders of
Preferred Stock are entitled to notice or any solicitation of consents in
respect of the Preferred Stock, or any call of any shares of Preferred Stock or
at any time the Depositary and the Company shall decide it is appropriate, the
Depositary shall in each such instance fix a record date (which shall be the
same date as the record date fixed by the Company with respect to the Preferred
Stock) for the determination of the Record Holders of Receipts who shall be
entitled to (a) receive such dividend, distribution, rights, preferences or
privileges or the net proceeds of the sale thereof, (b) receive notice of, and
give instructions for the exercise of voting rights at, any such meeting or (c)
receive notice of any such call, subject to the provisions hereof.
Section 4.5 VOTING RIGHTS. Upon receipt of notice of any meeting at which
the holders of Preferred Stock are entitled to vote or any solicitation of
consents in respect of Preferred Stock, the Depositary shall, as soon as
practicable thereafter, mail to the Record Holders of Receipts a notice which
shall contain (i) such information as is contained in such notice of meeting or
consent solicitation and (ii) a statement that the Record Holders may, subject
to any applicable restrictions, instruct the Depositary as to the exercise of
the voting rights pertaining to the amount of Preferred Stock represented by
their respective Depositary Shares and a brief statement as to the manner in
which such instructions may be given. Upon the written request of a Record
Holder of a Receipt on the relevant record date, the Depositary shall use its
best efforts insofar as practicable to vote or cause to be voted or deliver a
18
consent with respect to the amount of Preferred Stock represented by the
Depositary Shares evidenced by such Receipt, in accordance with the instructions
set forth in such request. The Company hereby agrees to take all reasonable
action which may be deemed necessary by the Depositary in order to enable the
Depositary to vote such Preferred Stock or cause such Preferred Stock to be
voted. In the absence of specific instructions from the Record Holder of a
Receipt, the Depositary will abstain from voting to the extent of the Preferred
Stock represented by the Depositary Shares evidenced by such Receipt.
Record Holders of Receipts shall also be entitled to vote on certain
amendments to this Deposit Agreement pursuant to Section 6.1 hereof.
Section 4.6 INSPECTION OF REPORTS. The Depository shall make available for
inspection by Record Holders of Receipts at the Depositary's Office during
normal business hours, and at such other places as it may from time to time deem
advisable, any reports and communications received from the Company which are
received by the Depositary as the holder of Preferred Stock.
Section 4.7 LISTS OF RECEIPT HOLDERS. Promptly upon request from time to
time by the Company, the Depositary shall furnish to it a list, as of recent
date, of the names, addresses and holdings of Depositary Shares of all persons
in whose names Receipts are registered on the books of the Depositary.
Section 4.8 TAX AND REGULATORY COMPLIANCE. The Depositary shall be
responsible for (i) preparation and mailing of Internal Revenue Service Forms
1099 for all open and closed accounts, (ii) foreign tax withholding, (iii)
back-up withholding (or any withholding as may be required at the then
applicable rate) on dividends paid and other distributions made to eligible
holders of Receipts, (iv) mailing Internal Revenue Service Forms W-9 to new
holders of Receipts without a certified taxpayer identification number, (v)
processing certified Internal Revenue Service Forms W-9, (vi) preparation and
filing of state information returns and (vii) escheatment services.
Section 4.9 WITHHOLDING. Notwithstanding any other provision of this
Deposit Agreement, in the event that the Depositary determines that any
distribution in property is subject to any tax which the Depositary is obligated
by law to withhold, the Depositary may dispose of all or a portion of such
property in such amounts and in such manner as the Depositary deems necessary
and practicable to pay such taxes, by public or private sale, and the Depositary
shall distribute the net proceeds of any such sale or the balance of any such
property after deduction of such taxes to the holders of Receipts entitled
19
thereto in proportion to the number of Depositary Shares held by them
respectively.
ARTICLE V
The Depositary, the Depositary's
Agents, the Registrar and the Company
Section 5.1 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, all in accordance with the provisions of this Deposit Agreement.
The Depositary shall keep books at the Depositary's Office for the
registration and registration of transfer of Receipts, and to reflect potential
split-ups and combinations of Depositary Shares, which books at all reasonable
times shall be open for inspection by the Record Holders of Receipts; provided,
that any such Record Holder requesting to exercise such right shall certify to
the Depositary 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 close each such books only when the Depositary's Office
is not open for business, the register of stockholders of the Company is closed
or as otherwise required by law.
If the Receipts or the Depositary Shares evidenced thereby or the Preferred
Stock represented by such Depositary Shares shall be listed on a national
securities exchange or the Nasdaq National Market, the Depositary may appoint a
registrar (acceptable to the Company) for registration of such Receipts or
Depositary Shares in accordance with any requirements of such exchange or
quotation system. Such registrar (which may be the Depositary if so permitted by
the requirements of such exchange or quotation system may be removed and a
substitute registrar appointed by the Depositary upon the request or with the
approval of the Company. If the Receipts, such Depositary Shares or such
Preferred Stock are listed on one or more other stock exchanges or quotation
system, 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 Preferred Stock as
may be required by law or applicable stock exchange or quotation system
regulation.
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Section 5.2 PREVENTION OF OR DELAY IN PERFORMANCE BY THE DEPOSITARY, THE
DEPOSITARY'S AGENTS, THE REGISTRAR OR THE COMPANY. None of the Depositary, any
Depositary's Agent or the Company shall incur any liability to any Record Holder
of any Receipt if by reason of any provision of any present or future law, or
regulation thereunder, of the United States of America or of any other
governmental authority or, in the case of the Depositary or any Depositary's
Agent, by reason of any provision, present or future, of the Company's Amended
and Restated Certificate of Incorporation, as amended (including the
Certificate) or by reason of any act of God or war or other circumstance beyond
the control of the relevant party, the Depositary, any Depositary's Agent, or
the Company shall be prevented or forbidden from, or subjected to any penalty on
account of, doing or performing any act or thing which the terms of this Deposit
Agreement provide shall be done or performed; nor shall the Depositary, any
Depositary's Agent or the Company incur any liability to any Record Holder of a
Receipt (i) by reason of any nonperformance or delay, caused as aforesaid, in
the performance of any act or thing which the terms of this Deposit Agreement
provide shall or may be done or performed, or (ii) by reason of any exercise of,
or failure to exercise, any discretion provided for in this Deposit Agreement
except, in the case of any such exercise or failure to exercise discretion not
caused as aforesaid, if caused by the negligence, willful misconduct or bad
faith of the party charged with such exercise or failure to exercise.
Section 5.3 OBLIGATIONS OF THE DEPOSITARY, THE DEPOSITARY'S AGENTS, THE
REGISTRAR AND THE COMPANY. None of the Depositary, any Depositary's Agent or the
Company assumes any obligation or shall be subject to any liability under this
Deposit Agreement to Record Holders of Receipts other than for its negligence,
willful misconduct or bad faith.
None of the Depositary, any Depositary's Agent or the Company shall be
under any obligation to appear in, prosecute or defend any action, suit or other
proceeding in respect of the Preferred Stock, the Common Stock, the Depositary
Shares or the Receipts which in its opinion may involve it in expense or
liability unless indemnity satisfactory to it against all expense and liability
be furnished as often as may be required.
None of the Depositary, any Depositary's Agent or the Company shall be
liable for any action or any failure to act by it in reliance upon the written
advice of legal counsel or accountants, or information from any person
presenting Preferred Stock for deposit, any Record Holder of a Receipt or any
other person believed by it in good faith to be competent to give such
information. The Depositary, any Depositary's Agent, any Registrar and the
Company may each rely and shall each be protected in acting upon any written
21
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 shall not be responsible for any failure to carry out any
instruction to vote any of the shares of Preferred Stock or for the manner or
effect of any such vote made, as long as any such action or non-action is in
good faith or in accordance with the Deposit Agreement. The Depositary
undertakes, and any Registrar shall be required to undertake, to perform such
duties and only such duties as are specifically set forth in this Deposit
Agreement, and no implied covenants or obligations shall be read into this
Deposit Agreement against the Depositary or any Registrar. The Depositary and
the Depositary's Agents may own and deal in any class of securities of the
Company and its affiliates and in Receipts. The Depositary may also act as
transfer agent or registrar of any of the securities of the Company and its
affiliates.
It is intended that neither the Depositary nor any Depositary's Agent shall
be deemed to be an "issuer" of the securities under the federal securities laws
or applicable state securities laws, it being expressly understood and agreed
that the Depositary and any Depositary's Agent are acting only in a ministerial
capacity as depositary for the Preferred Stock.
None of the Depositary (or its officers, directors, employees or agents),
any Depositary's Agent or the Registrar makes any representation or has any
responsibility as to the validity of the shelf registration statement pursuant
to which the Depositary Shares will be registered under the Securities Act, the
Preferred Stock, the Depositary Shares or the Receipts (except its
countersignature thereon), or any instruments referred to therein or herein, or
as to the correctness of any statement made therein or herein; provided,
however, that the Depositary is responsible for its representations in this
Deposit Agreement.
The Depositary assumes no responsibility for the correctness of the
description that appears in the Receipts, which can be taken as a statement of
the Company summarizing certain provisions of this Deposit Agreement.
Notwithstanding any other provision herein or in the Receipts, the Depositary
makes no warranties or representations as to the validity, genuineness or
sufficiency of any Preferred Stock at any time deposited with the Depositary
hereunder or of the Depositary Shares or the Receipts, as to the validity or
sufficiency of this Deposit Agreement, as to the value of the Depositary Shares
or as to any right, title or interest of the Record Holders of Receipts in and
to the Depositary Shares, except that the Depositary hereby represents and
warrants as follows: (i) the Depositary has been duly organized and is validly
existing and in good standing under the laws of the United States, with full
power, authority and legal right under such law to execute, deliver and carry
22
out the terms of this Deposit Agreement; (ii) this Deposit Agreement has been
duly authorized, executed and delivered by the Depositary; and (iii) this
Deposit Agreement constitutes a valid and binding obligation of the Depositary,
enforceable against the Depositary in accordance with its terms.
Section 5.4 RESIGNATION AND REMOVAL OF THE DEPOSITARY; APPOINTMENT OF
SUCCESSOR DEPOSITARY. The Depositary may at any time resign as Depositary
hereunder by notice of its election so to do delivered to the Company, such
resignation to take effect upon the appointment of a successor Depositary and
its acceptance of such appointment as hereinafter provided.
The Depositary may at any time be removed by the Company by notice of such
removal delivered to the Depositary, such removal to take effect upon the
appointment of a successor Depositary and its acceptance of such appointment as
hereinafter provided.
In case at any time the Depositary acting hereunder shall resign or be
removed, the Company shall, within 45 days after the delivery of the notice of
resignation or removal, as the case may be, appoint a successor Depositary,
which shall be a bank or trust company having its principal office in the United
States of America and having a combined capital and surplus of at least
$50,000,000. If no successor Depositary shall have been so appointed and have
accepted appointment within 45 days after delivery of such notice, the resigning
or removed Depositary may petition any court of competent jurisdiction for the
appointment of a successor Depositary. Every successor Depositary shall execute
and deliver to its predecessor and to the Company an instrument in writing
accepting its appointment hereunder, and thereupon such successor Depositary,
without any further act or deed, shall become fully vested with all the rights,
powers, duties and obligations of its predecessor and for all purposes shall be
the Depositary under this Deposit Agreement, and such predecessor, upon payment
of all sums due it and on the written request of the Company, shall 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 Preferred Stock and any moneys or property held
hereunder to such successor, and shall deliver to such successor a list of the
Record Holders of all outstanding Receipts. Any successor Depositary shall
promptly mail notice of its appointment to the Record Holders of Receipts.
Any corporation into or with which the Depositary may be merged,
consolidated or converted, or any corporation succeeding to all or substantially
23
all of the corporate trust business of the Depositary, shall be the successor of
such Depositary without the execution or filing of any document or any further
act, and notice thereof shall not be required hereunder. Such successor
Depositary may authenticate the Receipts in the name of the predecessor
Depositary or in the name of the successor Depositary.
Section 5.5 CORPORATE NOTICES AND REPORTS. The Company agrees that it will
forward to the Depositary, and the Depositary shall in turn transmit to the
Record Holders of Receipts, in each case at the addresses furnished to it
pursuant to Section 4.8, all notices and reports (including without limitation
financial statements) required by law, by the rules of any national securities
exchange or quotation system upon which the Preferred Stock, the Depositary
Shares or the Receipts are listed or quoted by the Company's Second Amended and
Restated Certificate of Incorporation, as amended (including the Certificate),
to be furnished by the Company to holders of Preferred Stock. Such transmission
will be at the Company's expense.
Section 5.6 INDEMNIFICATION BY THE COMPANY. The Company shall indemnify
the Depositary and any Depositary's Agent against, and hold each of them
harmless from, any loss, liability or expense (including the costs and expenses
of defending itself) which may arise out of (a) acts performed or omitted in
connection with this Deposit Agreement and the Receipts (i) by the Depositary or
any of its agents (including any Depositary's Agent), except for any liability
arising out of negligence, wilful misconduct or bad faith on the respective
parts of any such person or persons, or (ii) by the Company or any of its
agents, or (b) the offer, sale or registration of the Receipts, the Common Stock
or the Preferred Stock pursuant to the provisions hereof. The obligations of the
Company set forth in this Section 5.6 shall survive any resignation or removal
of any Depositary or Depositary's Agent and the termination of this Deposit
Agreement.
Section 5.7 CHARGES AND EXPENSES. The Company shall pay all transfer and
other taxes and governmental charges arising solely from the existence of the
depositary arrangements. The Company shall pay all charges of the Depositary in
connection with the initial deposit of the Preferred Stock, the initial issuance
of the Depositary Shares and any redemption or conversion of the Preferred Stock
and all withdrawals of shares of the Preferred Stock by owners of Depositary
Shares. All other transfer and other taxes and governmental charges shall be at
the expense of Record Holders of Depositary Shares. The Depositary may refuse to
effect any registration of transfer of a Receipt or any withdrawal of Preferred
Stock evidenced thereby until all such taxes and charges with respect to such
Receipt or Preferred Stock are paid by the holder thereof. If a Record Holder of
Receipts requests the Depositary to perform duties not required under this
24
Deposit Agreement, the Depositary shall notify the Record Holder of the
approximate cost of the performance of such duties. If such duties are
subsequently performed at the request of such Record Holder, such Record Holder
will be liable for such charges and expenses. All other charges and expenses of
the Depositary and any Depositary's Agent hereunder (including, in each case,
fees and expenses of counsel) incident to the performance of their respective
obligations hereunder will be paid pursuant to the terms of the fee letter
previously provided to the Company.
ARTICLE VI
Amendment and Termination
Section 6.1 AMENDMENT. The form of Receipt evidencing the Depositary Shares
and any provision of this Deposit Agreement may at any time be amended by
agreement between the Company and the Depositary. However, any amendment to such
documents which materially and adversely alters the rights of the holders of
Receipts or of the Depositary Shares evidenced thereby (or, which relates to or
affects rights to receive dividends or distributions, or voting or redemption
rights) will not be effective unless such amendment has been approved by the
Record Holders of at least 66b% of the Depositary Shares then outstanding. In no
event may any amendment impair the right of any Record Holders of Receipts,
subject to the conditions specified in this Deposit Agreement, upon such
surrender of the Receipts evidencing such Depositary Shares, to receive
Preferred Stock or upon conversion of the Preferred Stock represented by the
Depositary Receipts, to receive shares of Common Stock, and in each case any
money or other property represented thereby, including any accumulated dividends
and return of Liquidation Preference, except in order to comply with mandatory
provisions of applicable law. Every Record Holder of Receipts at the time any
such amendment becomes effective shall be deemed to consent and agree to such
amendment and to be bound by this Deposit Agreement.
Section 6.2 TERMINATION. This Deposit Agreement may be terminated by the
Company or the Depositary only if (i) all outstanding Depositary Shares have
been redeemed or converted, (ii) there has been a final distribution in respect
of the Preferred Stock in connection with any liquidation, dissolution or
winding up of the Company and such distribution has been distributed to the
Record Holders of Receipts or (iii) upon the consent of Record Holders of
Receipts representing not less than 66b% of the Depositary Shares then
outstanding.
25
Whenever this Deposit Agreement has been terminated pursuant to clause
(iii) of the preceding paragraph the Depositary will mail notice of such
termination to the Record Holders of all Receipts then outstanding at least 30
days prior to the date fixed in such notice for such termination. The Depositary
may likewise terminate this Deposit Agreement if at any time 90 days shall have
expired after the Depositary shall have delivered to the Company a written
notice of its election to resign and a successor depositary shall not have been
appointed and accepted its appointment. If any Receipts remain outstanding after
the date of termination, the Depositary thereafter will discontinue the transfer
of Receipts, will suspend the distribution of dividends to the Record Holders
thereof, and will not give any further notices (other than notices of such
termination) or perform any further acts under this Deposit Agreement except as
provided below and except that the Depositary will continue to (i) collect
dividends on the Preferred Stock and any distributions with respect thereto and
(ii) deliver the Preferred Stock together with such dividends and distributions
and the net proceeds of any sales of rights, preferences, privileges or other
property, without liability for interest thereon, in exchange for Receipts
surrendered. At any time after the expiration of three years from the date of
termination, the Depositary may sell the Preferred Stock then held by it at
public or private sales, at such place or places and upon such terms as it deems
proper and may thereafter hold the net proceeds of any such sale, together with
any money and other property then held by it, without liability or interest
thereon, for the pro rata benefit of the Record Holders of Receipts which have
not been surrendered. Subject to applicable escheat laws, any monies set aside
by the Company in respect of any payment with respect to the Preferred Stock
represented by the Depositary Shares, or dividends thereon, and unclaimed at the
end of three years from the date upon which such payment is due and payable
shall revert to the general funds of the Company, after which time the Record
Holders of such Depositary Shares shall look only to the general funds of the
Company for the payment thereof.
Upon the termination of this Deposit Agreement, the Company shall be
discharged from all obligations under this Deposit Agreement except for its
obligations to the Depositary and any Depositary's Agent under Sections 5.6 and
5.7.
ARTICLE VII
Miscellaneous
Section 7.1 COUNTERPARTS. This Deposit Agreement may be executed in any
number of counterparts, and by each of the parties hereto on separate
counterparts, each of which counterparts, when so executed and delivered, shall
26
be deemed an original, but all such counterparts taken together shall constitute
one and the same instrument.
Section 7.2 EXCLUSIVE BENEFIT OF PARTIES. This Deposit Agreement is for
the exclusive benefit of the parties hereto, including the holders of the
Receipts, and their respective successors hereunder, and shall not be deemed to
give any legal or equitable right, remedy or claim to any other person
whatsoever.
Section 7.3 INVALIDITY OF PROVISIONS. In case any one or more of the
provisions contained in this Deposit Agreement or in the Receipts should be or
become invalid, illegal or unenforceable in any respect, the validity, legality
and enforceability of the remaining provisions contained herein or therein shall
in no way be affected, prejudiced or disturbed thereby.
Section 7.4 NOTICES. Any 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, telegram, telex or
facsimile confirmed by letter, addressed to the Company at 0000 Xxxxx Xxxxxx
Xxxxxx, Xxxxxx, Xxxxxxxx 00000, to the attention of Xxxx XxXxxxx, the Chief
Financial Officer, facsimile number (000) 000-0000, or at any other address of
which the Company shall have notified the Depositary in writing.
Any and all notices to be given to the Depositary hereunder or under the
Receipts shall be in writing and shall be deemed to have been duly given if
personally delivered or sent by mail, telegram or facsimile confirmed by letter,
addressed to the Depositary at the Depositary's Office at 000 Xxxx Xxxxx Xxxxxx
Xx. Xxxx, Xxxxxxxxx 00000-0000 to the attention of the Corporate Trust
Department, facsimile (612) 229-6415or at any other address 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 or telex confirmed
by letter, addressed to such Record Holder at the address of such Record Holder
as it appears on the Receipt register of the Depositary, or if such Record
Holder shall have filed with the Depositary a written request that notices
intended for such Record Holder be mailed to some other address, at the address
designated in such request.
Delivery of a notice sent by mail, by telegram, telex or facsimile shall be
deemed to be effective at the time when a duly addressed letter containing the
same (or a confirmation thereof in the case of a telegram or telex message) is
deposited, postage prepaid, in a post office letter box. The Depositary or the
27
Company may, however, act upon any telegram, telex or facsimile message received
by it from the other or from any Record Holder of a Receipt, notwithstanding
that such telegram, telex or facsimile message shall not subsequently be
confirmed by letter or as aforesaid.
Section 7.5 DEPOSITARY'S AGENTS. The Depositary may from time to time
appoint one or more agents (each, a "Depository'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 notify the Company
of any such action.
Section 7.6 HOLDERS OF RECEIPTS ARE PARTIES. The Record Holders of Receipts
from time to time shall be parties to this Deposit Agreement and shall be bound
by and entitled to the benefits of all of the terms and conditions hereof and of
the Receipts by acceptance of delivery thereof.
Section 7.7 GOVERNING LAW. This Deposit Agreement and the Receipts and all
rights hereunder and thereunder and provisions hereof and thereof shall be
governed by, and construed in accordance with, the laws of the State of Colorado
without giving effect to principles of conflict of laws.
Section 7.8 INSPECTION OF DEPOSIT AGREEMENT. Copies of this Deposit
Agreement shall be filed with the Depositary and the Depositary's Agents and
shall be open to inspection during business hours at the Depositary's Office and
the respective offices of the Depositary's Agents, if any, by any Record Holder
of a Receipt.
Section 7.9 HEADINGS. The headings of articles and sections in this Deposit
Agreement and in the form of Receipt set forth in Exhibit A hereto have been
inserted for convenience only and are not to be regarded as a part of this
Deposit Agreement or the Receipts or to have any bearing upon the meaning or
interpretation of any provision contained herein or in the Receipts.
28
IN WITNESS WHEREOF, the Company and the Depositary have duly executed 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.
UNITED INTERNATIONAL HOLDINGS, INC.
By: /s/ Xxxxx X. Xxxxxxxx
----------------------------------------
Name: Xxxxx X. Xxxxxxxx
Title: Senior Vice President and Secretary
FIRSTAR BANK OF MINNESOTA, N.A.,
as Depositary
By: /s/ Xxxxx X. Xxxxxx III
----------------------------------------
Name: Xxxxx X. Xxxxxx III
Title: Vice President
29
ANNEX A
FORM OF DEPOSITARY RECEIPT
THIS SECURITY (OR ITS PREDECESSOR) HAS NOT BEEN REGISTERED UNDER THE U.S.
SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT"), AND ACCORDINGLY, MAY
NOT BE OFFERED, SOLD, PLEDGED OR OTHERWISE TRANSFERRED, EXCEPT AS SET FORTH
BELOW. BY ITS ACQUISITION HEREOF OR OF A BENEFICIAL INTEREST HEREIN, THE HOLDER:
(1) REPRESENTS THAT, IN CONNECTION WITH EXEMPT RESALES OF THE DEPOSITARY SHARES
BY XXXXXXXXX, XXXXXX & XXXXXXXX SECURITIES CORPORATION, XXXXXXX, SACHS & CO.,
CREDIT SUISSE FIRST BOSTON CORPORATION AND XXXXXXX XXXXX XXXXXX INC. (THE
"INITIAL PURCHASERS"), IT IS A "QUALIFIED INSTITUTIONAL BUYER" (AS DEFINED IN
RULE 144A UNDER THE SECURITIES ACT) (A "QIB");
(2) AGREES THAT, IN CONNECTION WITH RESALES AND TRANSFERS OF THIS SECURITY OTHER
THAN EXEMPT RESALES OF THE DEPOSITARY SHARES BY THE INITIAL PURCHASERS, IT WILL
NOT RESELL OR OTHERWISE TRANSFER THIS SECURITY EXCEPT (A) TO THE COMPANY OR ANY
OF ITS SUBSIDIARIES, (B) IN A TRANSACTION MEETING THE REQUIREMENTS OF RULE 144
UNDER THE SECURITIES ACT, (C) IN ACCORDANCE WITH ANOTHER EXEMPTION FROM THE
REGISTRATION REQUIREMENTS OF THE SECURITIES ACT (AND BASED UPON AN OPINION OF
COUNSEL ACCEPTABLE TO THE COMPANY), OR (D) PURSUANT TO AN EFFECTIVE REGISTRATION
STATEMENT AND, IN ADDITION, IN THE CASE OF RESALES OF DEPOSITARY SHARES OR
PREFERRED STOCK, (A) TO A PERSON WHOM THE SELLER REASONABLY BELIEVES IS A QIB
PURCHASING FOR ITS OWN ACCOUNT OR FOR THE ACCOUNT OF A QIB IN A TRANSACTION
MEETING THE REQUIREMENTS OF RULE 144A OR (B) IN AN OFFSHORE TRANSACTION MEETING
THE REQUIREMENTS OF RULE 903 OR 904 OF REGULATION S UNDER THE SECURITIES ACT IN
EACH CASE, IN ACCORDANCE WITH THE APPLICABLE SECURITIES LAWS OF ANY STATE OF THE
UNITED STATES OR ANY OTHER APPLICABLE JURISDICTION; AND
(3) AGREES THAT IT WILL DELIVER TO EACH PERSON TO WHOM THIS SECURITY OR AN
INTEREST HEREIN IS TRANSFERRED A NOTICE SUBSTANTIALLY TO THE EFFECT OF THIS
LEGEND.
AS USED HEREIN, THE TERM "OFFSHORE TRANSACTION," HAS THE MEANING GIVEN TO IT BY
RULE 902 OF REGULATION S UNDER THE SECURITIES ACT.
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITARY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), TO THE AGENT
AUTHORIZED BY THE ISSUER FOR THE REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT
AND ANY CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH
OTHER NAME AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY
PAYMENT IS MADE TO CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN
AUTHORIZED REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE, OR OTHER USE HEREOF FOR
VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED
OWNER HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.
A-1
Number 001 8,500,000 DEPOSITARY SHARES
(each representing 1/20th of one share 7% Series C Senior Cumulative
Convertible Preferred Stock)
DEPOSITARY RECEIPT FOR DEPOSITARY SHARES REPRESENTING
7% SERIES C SENIOR CUMULATIVE CONVERTIBLE PREFERRED STOCK OF
UNITED INTERNATIONAL HOLDINGS, INC. 913247 10 2
INCORPORATED UNDER THE LAWS OF THE STATE OF DELAWARE
SEE REVERSE FOR CERTAIN
DEFINITIONS AND INFORMATION
Firstar Bank of Minnesota, N.A., as Depositary
(the "Depositary"), hereby certifies that Cede & Co.
is the registered owner of EIGHT MILLION FIVE HUNDRED THOUSAND SHARES,
("Depositary Shares"), each Depositary Share representing one twentieth of one
share of 7% Series C Senior Cumulative Convertible Preferred Stock, par value
$0.01, of United International Holdings, Inc., a Delaware corporation (the
"Corporation"), on deposit with the Depositary, subject to the terms and
entitled to the benefits of the Deposit Agreement dated as of July 6, 1999 (the
"Deposit Agreement"), between the Corporation and the Depositary. By accepting
this Depositary Receipt the holder hereof becomes a party to and agrees to be
bound by all the terms and conditions of the Deposit Agreement. This Depositary
Receipt shall not be valid or obligatory for any purpose or entitled to any
benefits under the Deposit Agreement unless it shall have been executed by the
Depositary by the manual signature of a duly authorized officer or, if executed
in facsimile by the Depositary, countersigned by a Registrar in respect of the
Depositary Receipts by the manual signature of a duly authorized officer
thereof.
All Depositary Shares evidenced by this Depositary Receipt and all increases and
decreases of the number of Depositary Shares and the respective dates thereof
shall be endorsed by the holder or any appointed custodian hereof on the
schedule attached hereto and made a part hereof, or on a continuation thereof
which shall be attached hereto and made a part hereof.
Dated: July 6, 1999
Firstar Bank of Minnesota, N.A.
-------------------------------
Name: Xxxxx X. Xxxxxx, III
Title: Vice President
THE ADDRESS OF THE PRINCIPAL CORPORATE TRUST OFFICE
OF THE DEPOSITARY IS 000 XXXX XXXXX XXXXXX
XX. XXXX, XXXXXXXXX 00000-0000
A-2
UNITED INTERNATIONAL HOLDINGS, INC.
UNITED INTERNATIONAL HOLDINGS, INC. WILL FURNISH WITHOUT CHARGE TO EACH
RECEIPTHOLDER WHO SO REQUESTS A COPY OF THE DEPOSIT AGREEMENT AND A STATEMENT OR
SUMMARY OF THE POWERS, DESIGNATIONS, PREFERENCES AND RELATIVE, PARTICIPATING,
OPTIONAL OR OTHER SPECIAL RIGHTS OF EACH CLASS OR STOCK OR SERIES THEREOF WHICH
THE CORPORATION IS AUTHORIZED TO ISSUE AND OF THE QUALIFICATIONS, LIMITATIONS OR
RESTRICTIONS OF SUCH PREFERENCES AND/OR RIGHTS. ANY SUCH REQUEST IS TO BE
ADDRESSED TO THE DEPOSITARY NAMED AND AT THE ADDRESS SET FORTH ON THE FACE OF
THIS RECEIPT.
------------------------------
The following abbreviations when used in the instructions on the face of this
receipt shall be construed as though they were written out in full according to
applicable laws or regulations.
TEN COM - as tenant in common UNIF GIFT MIN ACT - _____ Custodian ______
(Cust) (Minor)
TEN ENT - as tenants by the entireties Under Uniform Gifts to Minors Act
JT TEN - as joint tenants with right of
survivorship and not as -------------------------------
tenants in comon (State)
Additional abbreviations may also be used though not in the above
list.
For value received, hereby sell(s), assign(s) and
transfer(s) unto
PLEASE INSERT SOCIAL SECURITY OR OTHER
IDENTIFYING NUMBER OF ASSIGNEE
________________________________________________________________________________
________________________________________________________________________________
PLEASE PRINT OR TYPEWRITE NAME AND ADDRESS INCLUDING POSTAL ZIP CODE OF ASSIGNEE
Depositary Shares represented by the within Receipt, and do hereby irrevocably
constitute and appoint ___________________________ Attorney to transfer the said
Depositary Shares on the books of the within named Depositary with full power of
substitution in the premises.
Dated: _________________ Signed:_______________________
NOTICE: The signature to the assignment must correspond with the name as written
upon the face of this Receipt in every particular, without alteration or
enlargement or any change whatever.
Signature(s) Guaranteed:
__________________________________________________________________________
THE SIGNATURE(S) SHOULD BE GUARANTEED BY AN ELIGIBLE GUARANTOR INSTITUTION
(BANKS, STOCKHOLDERS, SAVING AND LOAN ASSOCIATIONS AND CREDIT UNIONS) WITH
MEMBERSHIP IN AN APPROVED SIGNATURE GUARANTEE MEDALLION PROGRAM PURSUANT
TO S.E.C. RULE 17Ad-15.
A-3
NOTICE OF CONVERSION
The undersigned holder of this Receipt hereby irrevocably exercises the option
to convert ____ shares of 7% Series C Senior Cumulative Convertible Preferred
Stock represented by this Receipt into shares of Class A Common Stock (par value
$.01 per share (the "Common Stock") and any other applicable securities or
property) of the Company. In accordance with the terms of and conditions of the
7% Series C Senior Cumulative Convertible Preferred Stock and further as
provided in the Deposit Agreement, and directs that the shares of Common Stock
deliverable upon such conversion be registered in the name of and delivered,
together with a check in payment for any fractional share and any other property
deliverable upon such conversion, to the undersigned unless a different name has
been indicated below. If securities are to be registered in the name of a person
other than the undersigned, the undersigned will pay all transfer taxes payable
with respect thereto. If the number of shares of 7% Series C Senior Cumulative
Convertible Preferred Stock indicated above is less than the number of shares of
7% Series C Senior Cumulative Convertible Preferred Stock on deposit in respect
of this Receipt the undersigned directs that the Depositary issue to the
undersigned, unless a different name is indicated below, a new Receipt
evidencing the 7% Series C Senior Cumulative Convertible Preferred Stock for the
balance of the shares of 7% Series C Senior Cumulative Convertible Preferred
Stock not to be converted.
Dated: ___________________
Signature: __________________________________
NOTE: The above signature should correspond
exactly with the name on the face of this
Receipt or with the name of the assignee
appearing in the assignment form
(Please print name and address of registered holder)
Name:___________________________________________________________________________
Address_________________________________________________________________________
(Please indicate other delivery instructions, if applicable)
Name:___________________________________________________________________________
Address:________________________________________________________________________
A-4
SCHEDULE OF EXCHANGES/CONVERSIONS OF DEPOSITARY SHARES
The following exchanges or conversions of a part of this Depositary Receipt
have been made:
------------------------------ -------------------- --------------------- -------------------- -----------------------
Number of
Depositary Shares
Exchanged
for 7% Series C Number of
Senior Cumulative Depositary Shares Number of Signature of
Date of Convertible Converted to Depositary Shares Authorized Signatory
Exchange/Conversion Preferred Stock Class A Common Stock Remaining of Custodian
------------------------------ -------------------- --------------------- -------------------- -----------------------
------------------------------ -------------------- --------------------- -------------------- -----------------------
------------------------------ -------------------- --------------------- -------------------- -----------------------
------------------------------ -------------------- --------------------- -------------------- -----------------------
A-5
