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SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
Form 8-A
For Registration of Certain Classes of Securities
Pursuant to Section 12(b) or (g) of the
Securities Exchange Act of 1934
NETWORK PLUS CORP.
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(Exact name of registrant as specified in its charter)
Delaware 04-3430576
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(State of incorporation (I.R.S. Employer
or organization) Identification No.)
234 Copeland Street
Quincy, Massachusetts 02167
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(Address of principal executive offices) (Zip Code)
If this form relates to the registration of a class of securities pursuant to
Section 12(b) of the Exchange Act and is effective pursuant to General
Instruction A.(c), please check the following box. [ ]
If this form relates to the registration of a class of securities pursuant to
Section 12(g) of the Exchange Act and is effective pursuant to General
Instruction A.(d), please check the following box. [x]
Securities Act registration statement file number to which this form relates:
333-32042
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(If applicable)
Securities to be registered pursuant to Section 12(b) of the Act:
Title of Each Class Name of Each Exchange on Which
to be so Registered Each Class, is to be Registered
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Securities to be registered pursuant to Section 12(g) of the Act:
Depository Shares each representing 1/10 of a share of 7 1/2% Series A
Cumulative Convertible Preferred Stock (liquidation preference $50 per share)
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(Title of Class)
7 1/2% Series A Cumulative Convertible Preferred Stock, $0.01 par value
per share (liquidation preference $500 per share)
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(Title of Class)
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Item 1: DESCRIPTION OF REGISTRANT'S SECURITIES TO BE REGISTERED.
The description under the heading "Description of Depositary Shares"
relating to the Registrant's Depositary Shares in the Prospectus (the
"Prospectus") filed by the Registrant with the Securities and Exchange
Commission pursuant to Rule 424(b)(4) under the Securities Act of 1933, as
amended, relating to the Registrant's Registration Statement on Form S-3 (File
No. 333-32042) is incorporated herein by reference.
The description under the heading "Description of 7 1/2% Convertible
Preferred Stock" relating to the Registrant's 7 1/2% Series A Cumulative
Convertible Preferred Stock in the Prospectus is incorporated herein by
reference.
Item 2: EXHIBITS.
The following exhibits are filed herewith (or incorporated by reference as
indicated below):
1. Amended and Restated Certificate of Incorporation of the Registrant,
as amended, incorporated by reference to Exhibit 3.5 to the
Registrant's Registration Statement on Form S-1 filed with the
Securities and Exchange Commission (the "Registration Statement on
Form S-l") (File No. 333-79479).
2. Amended and Restated Bylaws of the Registrant, incorporated by
reference to Exhibit 3.6 to the Registration Statement on Form S-1.
3. Certificate of Designation for 7 1/2% Series A Cumulative Convertible
Preferred Stock (filed herewith as Exhibit 4.3).
4. Deposit Agreement for Depositary Shares representing 7 1/2% Series A
Cumulative Convertible Preferred Stock, among the Registrant, American
Stock Transfer & Trust Company, as Depositary, and the Holders from
time to time of the Depositary Shares, dated as of April 6, 2000
(filed herewith as Exhibit 4.4).
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SIGNATURE
Pursuant to the requirements of Section 12 of the Securities Exchange Act
of 1934, the Registrant has duly caused this registration statement to be signed
on its behalf by the undersigned, thereto duly authorized.
Network Plus Corp.
Date: April 13, 2000 By: /s/ James J. Crowley
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James J. Crowley
Executive Vice President,
Chief Operating Officer and Secretary
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EXHIBIT 4.3
EXECUTION COPY
NETWORK PLUS CORP.
CERTIFICATE OF DESIGNATIONS OF THE POWERS,
PREFERENCES AND RELATIVE, PARTICIPATING, OPTIONAL
AND OTHER SPECIAL RIGHTS OF 7 1/2% SERIES A
CUMULATIVE CONVERTIBLE PREFERRED STOCK AND
QUALIFICATIONS, LIMITATIONS AND RESTRICTIONS THEREOF
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Pursuant to Section 151 of the
General Corporation Law of the State of Delaware
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Network Plus Corp. (the "Company"), a corporation organized and
existing under the General Corporation Law of the State of Delaware, does hereby
certify that, pursuant to authority conferred upon the board of directors of the
Company (the "Board of Directors") by its Restated Certificate of Incorporation,
as amended (hereinafter referred to as the "Restated Certificate of
Incorporation"), and pursuant to the provisions of Sections 141(c)(2) and 151 of
the General Corporation Law of the State of Delaware, said Board of Directors is
authorized to issue Preferred Stock of the Company in one or more series and has
duly approved and adopted the following resolution on April 6, 2000 (the
"Resolution"):
RESOLVED that, pursuant to the authority vested in the Board of
Directors by its Restated Certificate of Incorporation, the Board of
Directors does hereby create, authorize and provide for the issuance of 7
1/2% Series A Cumulative Convertible Preferred Stock, par value $.01 per
share, with a liquidation preference of $500 per share, consisting of
500,000 shares having the designations, preferences, relative,
participating, optional and other special rights and the qualifications,
limitations and restrictions thereof that are set forth in the Restated
Certificate of Incorporation and in this Resolution as follows:
(a) Designation. There is hereby created out of the authorized and
unissued shares of Preferred Stock of the Company a series of Preferred Stock
designated as the "7 1/2% Series A Cumulative Convertible Preferred Stock" (the
"Convertible Preferred Stock"). The number of shares constituting the
Convertible Preferred Stock shall be 500,000. The liquidation preference of the
Convertible Preferred Stock shall be $500 per share (the "Liquidation
Preference").
Capitalized terms used herein but not defined shall have the
meanings assigned to them in paragraph (o).
(b) Rank. The Convertible Preferred Stock will, with respect to dividend
rights and rights on liquidation, winding-up and dissolution, rank
(i) junior to all of the Company's existing and future indebtedness and
other obligations;
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(ii) on parity with any other class of Capital Stock or preferred shares
established by the Company after April 6, 2000, the terms of which
expressly provide that such class or series will rank on a parity with the
Convertible Preferred Stock as to dividend distribution and distributions
upon liquidation, winding-up and dissolution of the Company, or "parity"
securities; and
(iii) senior to all classes of Common Stock and to each other class of
Capital Stock of the Company or series of preferred stock of the Company
established after April 6, 2000, the terms of which do not expressly
provide that such class or series ranks senior to or on a parity with the
Convertible Preferred Stock as to dividend distributions and distributions
upon liquidation, winding-up and dissolution of the Company, or "junior"
securities.
The Company may not, without the affirmative vote or consent of the
holders of at least 662/3% of the outstanding shares of Convertible Preferred
Stock, authorize, create, by way of reclassification or otherwise or issue any
class or series of Capital Stock of the Company ranking senior to the
Convertible Preferred Stock, or "senior" securities, or any obligation or
security convertible or exchangeable into or evidencing a right to purchase,
shares of any senior securities.
(c) Dividends. (i) Holders of the outstanding shares of Convertible
Preferred Stock will be entitled to receive, when, as and if declared by the
Board of Directors of the Company, out of funds legally available therefor,
dividends on each share from the Issue Date of the Convertible Preferred Stock
accumulating at the rate of $37.50 per share of Convertible Preferred Stock per
annum, or $9.375 per share of Convertible Preferred Stock per quarter, payable
quarterly in arrears on April 1, July 1, October 1 and January 1 of each year
(each, a "Dividend Payment Date") or, if any such date is not a business day, on
the next succeeding business day, to the holders of record as of the next
preceding March 15, June 15, September 15 and December 15 (each, a "Record
Date"). Accumulated but unpaid dividends, if any, may be paid on such dates as
determined by the Board of Directors. Dividends will be payable in cash except
as set forth below. The first dividend payment of $8.229 per share of
Convertible Preferred Stock will be payable on July 1, 2000.
(ii) All dividends on the Convertible Preferred Stock, to the extent
accumulated, shall be cumulative, whether or not earned or declared, on a daily
basis from the last date through which dividends have been paid or, if no
dividends have been paid, from the Issue Date. Dividends will accumulate to the
extent they are not paid on the Dividend Payment Date for the quarter to which
they relate. Accumulated unpaid dividends will accrue and cumulate at a rate of
7.5% per annum. The Company will take all reasonable actions required or
permitted under Delaware law to permit the payment of dividends on the
Convertible Preferred Stock.
(iii) Any dividend on the Convertible Preferred Stock shall be, at
the option of the Company, payable (A) in cash, (B) through the issuance of a
number of shares (rounded up or down to the nearest whole number) of Common
Stock (hereinafter referred to as "Dividend Common Stock") determined as set
forth in the next paragraph or (C) a combination thereof.
(iv) Dividends may, at the option of the Company, be paid in Common
Stock. If the Company elects to pay any dividend with Dividend Common Stock, the
Company will give the Holders of the Convertible Preferred Stock 10 trading days
(as defined herein) notice prior to the related Dividend Payment Date. If the
Company elects to pay any dividend with
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Dividend Common Stock, the number of shares of Dividend Common Stock to be
distributed will be calculated by dividing the amount of such dividend otherwise
payable in cash by 95% of the arithmetic average of the closing price (as
defined below) for the 5 trading days preceding the Dividend Payment Date. The
Convertible Preferred Stock will not be redeemable unless all dividends accrued
through such redemption date shall have been paid in full. The Company shall not
be required to declare or pay a dividend if another person, including, without
limitation, any of its Subsidiaries, pays an amount to the Holders of the
Convertible Preferred Stock equal to the amount of such dividend on the
Company's behalf and, in such event, the dividend will be deemed paid for all
purposes.
(v) All dividends paid with respect to shares of the Convertible
Preferred Stock pursuant to paragraph (c)(i) shall be paid pro rata to the
holders entitled thereto.
(vi) No dividend whatsoever shall be declared or paid upon, or any
sum set apart for the payment of dividends upon, any outstanding share of the
Convertible Preferred Stock with respect to any Dividend Period unless all
dividends for all preceding Dividend Periods have been declared and paid or
declared and a sufficient sum set apart for the payment of such dividend, upon
all outstanding shares of Convertible Preferred Stock. Unless all dividends on
all outstanding shares of Convertible Preferred Stock due for all past dividend
periods shall have been declared and paid, or declared and a sufficient sum for
the payment thereof set apart, then:
(A) no dividend, other than a dividend payable solely in shares of junior
securities or options, warrants or rights to purchase junior securities,
shall be declared or paid upon, or any sum set apart for the payment of
dividends upon, any shares of junior securities;
(B) no other distribution shall be declared or made upon, or any sum set
apart for the payment of any distribution upon, any shares of junior
securities;
(C) no shares of junior securities shall be purchased, redeemed or
otherwise acquired or retired for value, excluding an exchange for shares
of other junior securities or a purchase, redemption or other acquisition
from the proceeds of a substantially concurrent sale of junior securities,
by the Company or any Subsidiary; and
(D) no monies shall be paid into or set apart or made available for a
sinking or other like fund for the purchase, redemption or other
acquisition or retirement for value of any shares of junior securities by
the Company or any Subsidiary.
Holders of the Convertible Preferred Stock will not be entitled to
any dividends, whether payable in cash, property or stock, in excess of the
dividends as herein described.
(iv) The Company will not (A) declare, pay or set apart funds for
the payment of any dividend or other distribution with respect to any junior
securities or (B) redeem, purchase or otherwise acquire for consideration any
junior securities through a sinking fund or otherwise, unless (1) all accrued
and unpaid dividends with respect to the Convertible Preferred Stock and any
parity securities at the time such dividends are payable have been paid or funds
have been set apart for payment of such dividends and (2) sufficient funds have
been paid or set apart for the payment of the dividend for the current Dividend
Period with respect to the Convertible Preferred Stock and any parity
securities. Notwithstanding anything in this Certificate of Designations to the
contrary, the Company may declare and pay dividends on
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parity securities which are payable solely in additional shares of or by the
increase in the liquidation value of parity securities or junior securities or
on junior securities which are payable in additional shares of or by the
increase in the liquidation value of junior securities, as applicable, or
repurchase, redeem or otherwise acquire junior securities in exchange for junior
securities and parity securities in exchange for parity securities or junior
securities.
(v) Dividends on account of arrears for any past Dividend Period and
dividends in connection with any optional redemption may be declared and paid at
any time, without reference to any regular Dividend Payment Date, to holders of
record on the Business Day immediately prior to the payment thereof, as may be
fixed by the Board of Directors of the Company.
(vi) Dividends payable on the Convertible Preferred Stock for any
period other than a Dividend Period shall be computed on the basis of a 360-day
year consisting of twelve 30-day months and will be deemed to accrue on a daily
basis. If a Dividend Payment Date is not a Business Day, payment of dividends
shall be made on the next succeeding Business Day and dividends accruing for the
intervening period shall be paid on the next succeeding Dividend Payment Date.
(d) Liquidation Preference. (i) Upon any voluntary or involuntary
liquidation, dissolution or winding-up of the Company, after payment in full of
the Liquidation Preference (and any accumulated and unpaid dividends) on any
senior securities, Holders of Convertible Preferred Stock will be entitled to be
paid, out of the assets of the Company available for distribution to its
stockholders, on an equal basis with the holders of any outstanding parity
securities, the Liquidation Preference of the outstanding shares of Convertible
Preferred Stock, plus, without duplication, an amount in cash equal to all
accumulated and unpaid dividends (whether or not earned or declared) thereon to
the date fixed for liquidation, dissolution or winding-up (including an amount
equal to a prorated dividend for the period from the last Dividend Payment Date
to the date fixed for liquidation, dissolution or winding-up that would have
been payable had the Convertible Preferred Stock been the subject of a
redemption on such date pursuant to paragraph (e)(i)) before any distribution is
made on any junior securities. If, upon any voluntary or involuntary
liquidation, dissolution or winding up of the Company, the amounts payable with
respect to the Convertible Preferred Stock and all parity securities are not
paid in full, the Convertible Preferred Stock and the parity securities will
share equally and ratably (in proportion to the respective amounts that would be
payable on such shares of Convertible Preferred Stock and the parity securities,
respectively, if all amounts payable thereon had been paid in full) in any
distribution of assets of the Company to which each is entitled. After payment
of the full amount of the Liquidation Preference of the outstanding shares of
Convertible Preferred Stock (and, if applicable, an amount equal to a prorated
dividend), the Holders of shares of Convertible Preferred Stock will not be
entitled to any further participation in any distribution of assets of the
Company.
(ii) For the purposes of this paragraph (d), neither the voluntary
sale, conveyance, exchange or transfer (for cash, shares of stock, securities or
other consideration) of all or substantially all of the property or assets of
the Company nor the consolidation or merger of the Company with or into one or
more other entities shall be deemed to be a voluntary or involuntary
liquidation, dissolution or winding-up of the Company unless such sale,
conveyance, exchange, transfer, consolidation or merger shall be in connection
with a liquidation, dissolution or winding up of the affairs of the Company or a
reduction or decrease in Capital Stock.
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(e) Redemption. (i) Optional Redemption. (A) The Convertible Preferred
Stock shall not be redeemable at the option of the Company prior to April 10,
2005. On or after April 10, 2005, each share of the Convertible Preferred Stock
may be redeemed (subject to the legal availability of funds therefor) at any
time, in whole or in part, at the option of the Company, at the redemption
prices set forth below (expressed as percentages of the Liquidation Preference
thereof) plus, without duplication, an amount equal to all accrued and unpaid
dividends to the "redemption effective date", upon not less than 30 nor more
than 60 days prior written notice. We may redeem the Convertible Preferred Stock
during the period commencing April 10, 2005 to March 31, 2006 at 103.750% and
thereafter during the 12-month period commencing on April 1 of each of the years
set forth below:
<TABLE>
<CAPTION>
Redemption
Year Price
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<S> <C>
2006....................... 103.000%
2007....................... 102.250%
2008....................... 101.500%
2009....................... 100.750%
2010 and thereafter........ 100.000%
</TABLE>
If any date set forth above is not a Business Day then the period
beginning on that day will start on the next succeeding Business Day.
(B) In the case of a redemption date falling after a Record Date and
prior to the related Dividend Payment Date, the Holders of the Convertible
Preferred Stock at the close of business on such record date will be entitled to
receive the dividend payable on such shares on the corresponding Dividend
Payment Date, notwithstanding the redemption of such shares following such
record date. Except as provided for in the preceding sentence, no payment or
allowance will be made for accrued dividends on any shares of Convertible
Preferred Stock called for redemption.
(C) The Company must give the Holders of the Convertible Preferred
Stock 30 days' prior notice of its intention to satisfy the Company's redemption
payment obligation by delivering Common Stock instead of cash.
(ii) Procedure for Redemption. (A) The "redemption effective date"
will be a Business Day specified as such date in the Redemption Notice (as
defined below). On the redemption effective date:
(1) all consideration to be paid as part of the redemption price will
become payable,
(2) all dividends on the Convertible Preferred Stock to be redeemed will
cease to accrue, and
(3) the right to convert the Convertible Preferred Stock to be redeemed
will cease at the close of business.
(B) As described below, if any shares of Common Stock are to be
delivered as part of the redemption price,
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(1) the number of shares of Common Stock to be delivered will be
determined on the basis of 95% of the average of the closing market prices
of those shares for the 10 "trading days", which is each Monday, Tuesday,
Wednesday, Thursday or Friday, other than any day on which securities are
not traded on the applicable securities exchange or in the applicable
securities market, following the redemption effective date, and
(2) those shares will be deliverable on the 14th trading day following the
redemption effective date.
(C) With respect to a redemption pursuant to paragraph (e)(i), the
Company will send a written notice of redemption by first class mail to each
Holder of shares of Convertible Preferred Stock, not fewer than 30 days nor more
than 60 days prior to the Redemption Date at its registered address (the
"Redemption Notice"); provided, however, that no failure to give such notice nor
any deficiency therein shall affect the validity of the procedure for the
redemption of any shares of Convertible Preferred Stock to be redeemed except as
to the Holder or Holders to whom the Company has failed to give said notice or
except as to the Holder or Holders whose notice was defective. Each Redemption
Notice must specify:
(1) the redemption effective date,
(2) the redemption price,
(3) the form of consideration to be paid, and
(4) if any portion of the redemption price is to be paid by the delivery
of Common Stock, the method for determining the applicable average market
value and the date on which the shares of Common Stock will be
deliverable.
In the case of any partial redemption, the Company will select the
shares of Convertible Preferred Stock to be redeemed on a pro rata basis, by lot
or any other method that the Company believes is fair and appropriate, provided
that the Company may redeem all shares held by Holders of fewer than 100 shares
of Convertible Preferred Stock following such redemption, prior to the Company's
redemption of other Convertible Preferred Stock.
If the redemption effective date falls after a dividend payment
record date and before the related Dividend Payment Date, the Holders of
Convertible Preferred Stock at the close of business on that dividend payment
record date will be entitled to receive the dividend payable on those shares on
the corresponding Dividend Payment Date, even if those shares are redeemed after
that dividend payment record date.
The number of shares of Common Stock to be delivered to the Holders
of Convertible Preferred Stock will be the amount of the redemption payment
divided by the market price of the Common Stock, determined as described in this
subsection (C).
(D) Each holder of Convertible Preferred Stock shall surrender the
certificate or certificates representing such shares of Convertible Preferred
Stock to the Company, duly endorsed (or otherwise in proper form for transfer,
as determined by the Company), in the manner and at the place designated in the
Redemption Notice, and on the Redemption Date the full Optional Redemption Price
for such shares shall be payable to the person whose name appears on such
certificate or certificates as the owner thereof, and each surrendered
certificate
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shall be canceled and retired. In the event that less than all of the shares
represented by any such certificate are redeemed, a new certificate shall be
issued representing the unredeemed shares.
(E) Mandatory Redemption. Unless it has already been redeemed or
converted, the Company will be required to redeem the Convertible Preferred
Stock on April 1, 2012 at a redemption price equal to 100% of the Liquidation
Preference, together with accumulated and unpaid dividends to the mandatory
redemption date.
(F) Repurchase at the Option of Holders. If the Company experiences
a change of control, unless the Company has delivered a Redemption Notice in
connection with the Convertible Preferred Stock pursuant to the provisions
described above, each holder of Convertible Preferred Stock will have the right
to require the Company to repurchase all or any part of the holder's Convertible
Preferred Stock pursuant to an offer (the "change of control offer"), on the
terms set forth herein. In the change of control offer, the Company will offer a
payment in cash equal to 100% of the Liquidation Preference of Convertible
Preferred Stock repurchased plus all accumulated and unpaid dividends and
liquidated damages, if any, thereon, to the date of purchase, subject to the
right of holders of record on the relevant record date to receive dividends due
on the relevant dividend payment date. Within 30 days following any change of
control, the Company will mail a notice to each holder describing the
transaction or transactions that constitute the change of control and offering
to repurchase Convertible Preferred Stock on the date specified in such notice,
which date shall be no earlier than 30 days and no later than 60 days from the
date such notice is mailed, pursuant to the procedures required by this
Certificate of Designations and described in such notice.
The Company will comply with the requirements of Rule 14e-1 under
the Exchange Act and any other securities laws and regulations to the extent
those laws and regulations are applicable in connection with the purchase of the
Convertible Preferred Stock as a result of a change of control. To the extent
that the provisions of any securities laws or regulations conflict with the
change of control provisions of this Certificate of Designations, the Company
will comply with the applicable securities laws and regulations and will not be
deemed to have breached its obligations under the change of control provisions
herein by virtue of such conflict.
On the date scheduled for payment of the Convertible Preferred
Stock, the Company will, to the extent lawful:
- - accept for payment all Convertible Preferred Stock or portions thereof
properly tendered;
- - deposit with the Transfer Agent an amount of consideration equal to the
change of control payment in respect of all Convertible Preferred Stock or
portions thereof so tendered; and
- - deliver or cause to be delivered to the Transfer Agent for cancellation
the Convertible Preferred Stock so accepted together with an officers'
certificate stating the aggregate Liquidation Preference of the
Convertible Preferred Stock or portions thereof being purchased by the
Company.
The Transfer Agent will promptly mail to each Holder of shares of
Convertible Preferred Stock so tendered the applicable payment for those shares
of Convertible Preferred
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Stock, and the Transfer Agent will promptly authenticate and mail, or cause to
be transferred by book entry, to each holder a new Convertible Preferred Stock
certificate equal in liquidation preference to any unpurchased portion of the
Convertible Preferred Stock surrendered, if any.
Prior to complying with any of the provisions of the change of
control covenant, but in any event within 90 days following a change of control,
the Company will either repay all outstanding obligations under the Existing
Credit Facility or the Senior Secured Credit Facilities or obtain the requisite
consents, if any, under all agreements governing the Company's outstanding
indebtedness to permit the repurchase of Convertible Preferred Stock required by
this repurchase obligation. The Company will publicly announce the results of
the change of control offer on or as soon as practicable after the change of
control payment date.
The provisions described above that require the Company to make a
change of control offer (as defined herein) following a change of control (as
defined herein) will be applicable regardless of whether any other provisions of
this Certificate of Designations are applicable.
The Company will not be required to make a change of control offer
upon a change of control if a third party makes the change of control offer in
the manner, at the times and otherwise in compliance with the requirements set
forth in this Certificate of Designations applicable to a change of control
offer made by the Company and purchases all Convertible Preferred Stock validly
tendered and not withdrawn under such change of control offer.
The provisions under this Certificate of Designations relating to
the Company's obligation to make an offer to repurchase the Convertible
Preferred Stock as a result of a change of control may be waived or modified
with the written consent of the holders of 662/3% of the Convertible Preferred
Stock.
A "change of control" means:
- - a "person" or "group" (within the meaning of Sections 13(d) and 14(d)(2)
of the Exchange Act (other than the Hale Family) becomes the ultimate
"beneficial owner" (as defined in Rule 13-d under the Exchange Act without
such transaction being deemed a change of control) of more than 50% of the
total voting power of the Company's "voting stock" on a fully diluted
basis; or
- - Individuals who on the effective date of the Certificate of Designations
constitute the Board of Directors (together with any new directors whose
election by the Board of Directors or whose nomination for election by
stockholders was approved by a vote of at least 662/3% of the members of
the Board of Directors then in office who either were members of the Board
of Directors on the closing date or whose election or nomination for
election was previously so approved) cease for any reason to constitute a
majority of the members of the Board of Directors then in office.
There shall be no change of control if either the closing price of
the Common Stock exceeds 105% of the effective conversion rate at the time of
the announcement of the change of control or all of the consideration received
by the holders of Common Stock in a transaction that gives rise to the change of
control is publicly-traded common stock.
(f) Voting Rights. (A) The holders of Convertible Preferred Stock,
except as otherwise required under Delaware law or as set forth in paragraphs
(B) and (C) below, shall
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not be entitled to vote on any matter required or permitted to be voted upon by
the stockholders of the Company.
(B) (1) If dividends on the Convertible Preferred Stock are in
arrears and unpaid for six or more Dividend Periods, whether or not
consecutive, together with any event with a similar effect pursuant to the
terms of any series of preferred stock upon which like rights have been
conferred, which is referred to as a "Voting Rights Triggering Event",
then the number of directors constituting the Board of Directors will,
subject to paragraph (f)(B)(5), be increased by two directors, unless
previously increased pursuant to the terms of any other series of
preferred stock upon which like rights have been conferred, and the
Holders of the then outstanding shares of Convertible Preferred Stock
(together with the holders of parity securities upon which like rights
have been conferred and are exercisable), voting separately and as a
class, shall have the right and power to elect to serve on the Board of
Directors such two additional members to the Board of Directors, unless
previously increased pursuant to the terms of any other series of
preferred stock upon which like rights have been conferred.
(2) The voting rights set forth in paragraph (f)(B)(1) above will
continue until such time as all dividends in arrears on the Convertible
Preferred Stock are paid in full, at which time the term of any directors
elected pursuant to the provisions of paragraph (f)(B)(1) above (subject
to the right of holders of any other Preferred Stock to elect directors
pursuant to the terms of the instruments governing such Preferred Stock)
shall terminate forthwith and the number of directors constituting the
Board of Directors shall be decreased by such number (until the occurrence
of any subsequent Voting Rights Triggering Event). The right to elect
directors upon a Voting Rights Triggering Event will expire when the
number of shares of Convertible Preferred Stock outstanding is reduced to
83,333 or less.
At any time after voting power to elect directors shall have become
vested and be continuing in the holders of Convertible Preferred Stock
(together with the holders of parity securities upon which like rights
have been conferred and are exercisable) pursuant to paragraph (f)(B)(1)
hereof, or if vacancies shall exist in the offices of directors elected by
such holders, a proper officer of the Company may, and upon the written
request of the holders of record of at least 25% of the shares of
Convertible Preferred Stock then outstanding or the holders of 25% of the
shares of parity securities then outstanding upon which like rights have
been confirmed and are exercisable addressed to the secretary of the
Company shall, call a special meeting of the Holders of Convertible
Preferred Stock and the holders of such parity securities for the purpose
of electing the directors which such holders are entitled to elect
pursuant to the terms hereof; provided, however, that no such special
meeting shall be called if the next annual meeting of stockholders of the
Company is to be held within 60 days after the voting power to elect
directors shall have become vested, in which case such meeting shall be
deemed to have been called for such next annual meeting. If such meeting
shall not be called by a proper officer of the Company within 20 days
after personal service to the secretary of the Company at its principal
executive offices, then the Holders of record of at least 25% of the
outstanding shares of Convertible Preferred Stock or the holders of 25% of
the shares of parity securities upon which like rights have been confirmed
and are exercisable may designate in writing one of their members to call
such meeting at the expense of the Company, and such meeting may be called
by the person so designated upon the notice required for the annual
meetings of
<PAGE> 10
10
stockholders of the Company and shall be held at the place for holding the
annual meetings of stockholders. Any holder of Convertible Preferred Stock
or such parity securities so designated shall have, and the Company shall
provide, access to the lists of holders of Convertible Preferred Stock and
the holders of such parity securities to be called pursuant to the
provisions hereof. If no special meeting of the Holders of Convertible
Preferred Stock and the holders of such parity securities is called as
provided in this paragraph (f)(B), then such meeting shall be deemed to
have been called for the next annual meeting of stockholders of the
Company or special meeting of the holders of any other Capital Stock of
the Company.
(3) At any meeting held for the purposes of electing directors at
which the Holders of Convertible Preferred Stock (together with the
holders of parity securities upon which like rights have been conferred
and are exercisable) shall have the right, voting together as a separate
class, to elect directors as aforesaid, the presence in person or by proxy
of the holders of at least a majority in voting power of the outstanding
shares of Convertible Preferred Stock (and such parity securities) shall
be required to constitute a quorum thereof.
(4) Any vacancy occurring in the office of a director elected by the
Holders of Convertible Preferred Stock (and such parity securities) may be
filled by the remaining director elected by the Holders of Convertible
Preferred Stock (and such parity securities) unless and until such vacancy
shall be filled by the Holders of Convertible Preferred Stock (and such
parity securities).
(5) If an event occurs at any time that results in the holders of
any parity securities having voting rights to elect directors to the Board
of Directors, then holders of Convertible Preferred Stock shall, whether
or not such event otherwise constitutes a Voting Rights Triggering Event
pursuant to paragraph (f)(B)(1), have the voting rights set forth in
paragraphs (f)(B)(1) and (f)(B)(2), and such event shall be deemed (for
purposes of this paragraph (f) only) to constitute a Voting Rights
Triggering Event. In addition, in the event that during a time in which
directors elected by the holders of Convertible Preferred Stock pursuant
to this paragraph (f)(B) are serving on the Board of Directors
("Previously-Elected Directors") an event occurs that results in holders
of parity securities having voting rights to elect (voting together with
the Holders of Convertible Preferred Stock) at least two directors to the
Board of Directors, the Holders of Convertible Preferred Stock shall vote
together with the holders of such parity securities to elect such new
directors, and upon the election of the new directors the
Previously-Elected Directors shall (unless such Previously-Elected
Directors are elected as new directors) cease to serve on the Board of
Directors.
(C) (1) So long as any shares of the Convertible Preferred Stock are
outstanding, the Company will not authorize, create or increase the
authorized amount of any class or series of senior securities without the
affirmative vote or consent of Holders of at least 662/3% of the shares of
Convertible Preferred Stock then outstanding, voting or consenting, as the
case may be, as one class, given in person or by proxy, either in writing
or by resolution adopted at an annual or special meeting. However, without
the consent of any Holder of Convertible Preferred Stock, the Company may
create additional classes of stock, increase the authorized number of
shares of Convertible Preferred Stock or issue a series of parity
securities or junior securities.
<PAGE> 11
11
(2) The Company may amend this Certificate of Designations with the
consent of the Holders of a majority of the Convertible Preferred Stock
then outstanding, including votes or consents obtained in connection with
a tender offer or exchange offer for Convertible Preferred Stock, and,
except as otherwise provided by applicable law, any past default or
failure to comply with any provision of this Certificate of Designations
may also be waived with the consent of such Holders. Notwithstanding the
foregoing, however, without the consent of each Holder affected, an
amendment or waiver may not (with respect to any shares of the Convertible
Preferred Stock held by a non-consenting Holder) (a) alter the voting
rights with respect to the Convertible Preferred Stock or reduce the
number of shares of the Convertible Preferred Stock the Holders of which
must consent to an amendment, supplement or waiver, (b) reduce the
Liquidation Preference of any share of the Convertible Preferred Stock or
adversely alter the provisions with respect to the redemption of
Convertible Preferred Stock, (c) reduce the rate of or change the time for
payment of dividends on any share of the Convertible Preferred Stock, (d)
waive a default in the payment of dividends or liquidated damages, if any,
on the Convertible Preferred Stock, (e) make any share of the Convertible
Preferred Stock payable in money other than United States dollars, (f)
make any change in the provisions of the Certificate of Designations
relating to waivers of the rights of holders of the Convertible Preferred
Stock to receive the liquidation, (g) preference, dividends or liquidated
damages, if any, on the Convertible Preferred Stock, or (h) make any
change in the foregoing amendment and waiver provisions.
Notwithstanding the foregoing, without the consent of any Holder of
the Convertible Preferred Stock, the Company may, to the extent permitted
by Delaware law, amend or supplement the Certificate of Designations to
cure any ambiguity, defect or inconsistency, to provide for uncertificated
shares of the Convertible Preferred Stock in addition to or in place of
certificated shares of the Convertible Preferred Stock or to make any
change that would provide any additional rights or benefits to the Holders
of the Convertible Preferred Stock or to make any change that the Board of
Directors determines, in good faith, is not materially adverse to Holders
of the Convertible Preferred Stock.
(3) Except as set forth in paragraph (f)(C)(1) or (2) above, (x) the
creation, authorization or issuance of any shares of any junior securities
or parity securities, including the designation of a series of Convertible
Preferred Stock, or (y) the increase or decrease in the amount of
authorized Capital Stock of any class, including Preferred Stock, shall
not require the consent of Holders of Convertible Preferred Stock and
shall not be deemed to affect adversely the rights, preferences,
privileges or voting rights of shares of Convertible Preferred Stock.
(D) In any case in which the Holders of Convertible Preferred Stock
shall be entitled to vote pursuant to this paragraph (f) or pursuant to Delaware
law, each Holder of Convertible Preferred Stock entitled to vote with respect to
such matters shall be entitled to one vote for each share of Convertible
Preferred Stock held.
(E) Except as required by law, the Holders of the Convertible
Preferred Stock will not be entitled to vote on any merger or consolidation
involving the Company or a sale of all or substantially all the assets of the
Company.
<PAGE> 12
12
(g) Conversion. The Convertible Preferred Stock will be convertible, at
the option of the Holder and unless previously redeemed or repurchased, into the
number of shares of Common Stock issuable upon conversion of one share of
Convertible Preferred Stock, which will be determined by dividing the
Liquidation Preference, plus all accrued and unpaid dividends thereon to the
date of conversion, of such share of Convertible Preferred Stock as of such date
by the Conversion Price (as defined herein) then in effect, which is referred to
as the "conversion rate", subject to the adjustments described below. The right
to convert a share of the Convertible Preferred Stock called for redemption or
delivered for repurchase will terminate at the close of business on the
redemption date, as defined below, for such Convertible Preferred Stock or at
the time of repurchase, as the case may be.
(3) The price at which Common Stock shall be delivered upon
conversion, herein called the "Conversion Price", shall be initially $34.80 per
share of Common Stock. The Conversion Price shall be adjusted in certain
instances as provided in paragraph (g)(D) and paragraph (g)(E).
(B) In order to exercise the conversion privilege provided for in
paragraph (g)(A)(1), the Holder of any share of Convertible Preferred Stock to
be converted shall surrender the certificate for such share of Convertible
Preferred Stock, duly endorsed or assigned to the Company or in blank, at the
office of the Transfer Agent or at any office or agency of the Company
maintained for that purpose, accompanied by written notice to the Company in the
form of Exhibit B that the Holder elects to convert such share of Convertible
Preferred Stock or, if fewer than all the shares of Convertible Preferred Stock
represented by a single share certificate are to be converted, the number of
shares represented thereby to be converted. Such notice shall also contain the
office or the address to which the Company should deliver shares of Common Stock
issuable upon conversion (and any other payments or certificates related
thereto). Upon any conversion of Convertible Preferred Stock pursuant to
paragraph (g)(A)(2), the Company will promptly notify the Holders thereof and
will deliver shares of Common Stock issuable upon such conversion to the office
or address specified by such Holders.
Holders of shares of Convertible Preferred Stock at the close of
business on a record date will be entitled to receive the dividend payable on
such shares on the corresponding Dividend Payment Date notwithstanding the
conversion of such shares following such record date and prior to such Dividend
Payment Date. Shares of Convertible Preferred Stock surrendered for conversion
during the period between the close of business on any record date and the
opening of business on the corresponding Dividend Payment Date (except shares
converted after the issuance of a notice of redemption with respect to a
redemption date during such period, which will be entitled to such dividend)
must be accompanied by payment of an amount equal to the dividend payable on
such shares on such Dividend Payment Date. A holder of shares of Convertible
Preferred Stock on a record date who (or whose transferee) tenders any such
shares for conversion into shares of Common Stock on or prior to such Dividend
Payment Date (or where shares of Convertible Preferred Stock are automatically
converted during such period) will receive the dividend payable by the Company
on such shares of Convertible Preferred Stock on such date, and the converting
holder need not include payment of the amount of such dividend upon surrender of
shares of Convertible Preferred Stock for conversion. Except as provided above,
the Company will make no payment or allowance for unpaid dividends, whether or
not in arrears, on converted shares or the dividends on the shares of Common
Stock issued upon such conversion.
<PAGE> 13
13
Shares of Convertible Preferred Stock shall be deemed to have been
converted immediately prior to the close of business on the day (x) of surrender
of such shares of Convertible Preferred Stock for conversion in accordance with
the foregoing provisions or (y) in the case of an automatic conversion, the
Transfer Agent receives the appropriate notice from the Company, and at such
time the rights of the Holders of such shares of Convertible Preferred Stock as
Holders shall cease, and the person or persons entitled to receive the Common
Stock issuable upon conversion shall be treated for all purposes as the record
holder or holders of such Common Stock at such time. As promptly as practicable
on or after the conversion date, the Company shall issue and shall deliver to
such office or agency as the converting Holder shall have designated in its
written notice to the Company a certificate or certificates for the number of
full shares of Common Stock issuable upon conversion, together with payment in
lieu of any fraction of a share, as provided in paragraph (g)(C) hereof.
In the case of any conversion of fewer than all the shares of
Convertible Preferred Stock evidenced by a certificate, upon such conversion the
Company shall execute and the Transfer Agent shall authenticate and deliver to
the Holder thereof (at the address designated by such Holder), at the expense of
the Company, a new certificate or certificates representing the number of
unconverted shares of Convertible Preferred Stock.
(C) No fractional shares of Common Stock shall be issued upon the
conversion of a share of Convertible Preferred Stock. If more than one share of
Convertible Preferred Stock shall be surrendered for conversion at one time by
the same holder, the number of full shares of Common Stock which shall be
issuable upon conversion thereof shall be computed on the basis of the aggregate
shares of Convertible Preferred Stock so surrendered. Instead of any fractional
share of Common Stock which would otherwise be issuable upon conversion of any
share of Convertible Preferred Stock, the Company shall pay a cash adjustment in
respect of such fraction in an amount equal to the same fraction of the closing
price (as defined in paragraph (g)(D)(7)) per share of Common Stock at the close
of business on the Business Day prior to the day of conversion.
(D) The Conversion Price shall be adjusted from time to time by the
Company as follows:
(1) If the Company shall hereafter pay a dividend or make a
distribution in Common Stock to all holders of any outstanding class or
series of Common Stock, the Conversion Price in effect at the opening of
business on the date following the date fixed for the determination of
stockholders entitled to receive such dividend or other distribution shall
be reduced by multiplying such Conversion Price by a fraction of which the
numerator shall be the number of shares of Common Stock outstanding at the
close of business on the Record Date (as defined in paragraph (g)(D)(7))
fixed for such determination and the denominator shall be the sum of such
number of outstanding shares and the total number of shares constituting
such dividend or other distribution, such reduction to become effective
immediately after the opening of business on the day following the Record
Date. If any dividend or distribution of the type described in this
paragraph (g)(D)(1) is declared but not so paid or made, the Conversion
Price shall again be adjusted to the Conversion Price which would then be
in effect if such dividend or distribution had not been declared.
(2) If the Company shall offer or issue rights or warrants to all
holders of its outstanding Common Stock entitling them to subscribe for or
purchase Common Stock at a price per share less than the Current Market
Price (as defined in
<PAGE> 14
14
paragraph (g)(D)(7)) on the Record Date fixed for the determination of
stockholders entitled to receive such rights or warrants, the Conversion
Price shall be adjusted so that the same shall equal the price determined
by multiplying the Conversion Price in effect at the opening of business
on the date after such Record Date by a fraction of which the numerator
shall be the number of shares of Common Stock outstanding at the close of
business on the Record Date plus the number of shares of Common Stock
which the aggregate offering price of the total number of shares of Common
Stock subject to such rights or warrants would purchase at such Current
Market Price and of which the denominator shall be the number of shares of
Common Stock outstanding at the close of business on the Record Date plus
the total number of additional shares of Common Stock subject to such
rights or warrants for subscription or purchase. Such adjustment shall
become effective immediately after the opening of business on the day
following the Record Date fixed for determination of stockholders entitled
to purchase or receive such rights or warrants. To the extent that shares
of Common Stock are not delivered pursuant to such rights or warrants,
upon the expiration or termination of such rights or warrants the
Conversion Price shall again be adjusted to be the Conversion Price which
would then be in effect had the adjustments made upon the issuance of such
rights or warrants been made on the basis of delivery of only the number
of shares of Common Stock actually delivered. If such rights or warrants
are not so issued, the Conversion Price shall again be adjusted to be the
Conversion Price which would then be in effect if such date fixed for the
determination of stockholders entitled to receive such rights or warrants
had not been fixed. In determining whether any rights or warrants entitle
the holders to subscribe for or purchase Common Stock at less than such
Current Market Price, and in determining the aggregate offering price of
such shares of Common Stock, there shall be taken into account any
consideration received for such rights or warrants, with the value of such
consideration, if other than cash, to be determined by the Board of
Directors.
(3) If the outstanding shares of Common Stock shall be subdivided
into a greater number of shares of Common Stock, the Conversion Price in
effect at the opening of business on the day following the day upon which
such subdivision becomes effective shall be proportionately reduced, and,
conversely, if the outstanding shares of Common Stock shall be combined
into a smaller number of shares of Common Stock, the Conversion Price in
effect at the opening of business on the day following the day upon which
such combination becomes effective shall be proportionately increased,
such reduction or increase, as the case may be, to become effective
immediately after the opening of business on the day following the day
upon which such subdivision or combination becomes effective.
(4) If the Company shall, by dividend or otherwise, distribute to
all holders of its shares of Common Stock shares of any class of Capital
Stock of the Company (other than any dividends or distributions to which
paragraph (g)(D)(1) applies) or evidences of its indebtedness, cash or
other assets (including securities, but excluding any rights or warrants
of a type referred to in paragraph (g)(D)(2) and excluding dividends and
distributions paid exclusively in cash and excluding any Capital Stock,
evidences of indebtedness, cash or assets distributed upon a merger or
consolidation to which paragraph (g)(E) applies) (the foregoing
hereinafter in this paragraph (g)(D)(4) called the "Distributed
Securities"), then, in each such case, the Conversion Price shall be
reduced so that the same shall be equal to the price determined by
multiplying the Conversion Price in effect immediately prior to the close
of business on the Record Date (as defined in paragraph (g)(D)(7)) with
respect to such distribution by a fraction
<PAGE> 15
15
of which the numerator shall be the Current Market Price (determined as
provided in paragraph (g)(D)(7)) of the Common Stock on such date less the
fair market value (as determined by the Board of Directors, whose
determination shall be conclusive and described in a resolution of the
Board of Directors) on such date of the portion of the Distributed
Securities so distributed applicable to one share of Common Stock and the
denominator shall be such Current Market Price, such reduction to become
effective immediately prior to the opening of business on the day
following the Record Date. If such dividend or distribution is not so paid
or made, the Conversion Price shall again be adjusted to be the Conversion
Price which would then be in effect if such dividend or distribution had
not been declared. If the Board of Directors determines the fair market
value of any distribution for purposes of this paragraph (g)(D)(4) by
reference to the actual or when issued trading market for any securities
comprising all or part of such distribution, it must in doing so consider
the prices in such market over the same period used in computing the
Current Market Price pursuant to paragraph (g)(D)(7) to the extent
possible.
Rights or warrants distributed by the Company to all holders of Common
Stock entitling the holders thereof to subscribe for or purchase shares of
the Company's Capital Stock (either initially or under certain
circumstances), which rights or warrants, until the occurrence of a
specified event or events ("Dilution Trigger Event"): (i) are deemed to be
transferred with such Common Stock; (ii) are not exercisable; and (iii)
are also issued in respect of future issuances of Common Stock, shall be
deemed not to have been distributed for purposes of this paragraph
(g)(D)(4) (and no adjustment to the Conversion Price under this paragraph
(g)(D)(4) shall be required) until the occurrence of the earliest Dilution
Trigger Event, whereupon such rights and warrants shall be deemed to have
been distributed and an appropriate adjustment to the Conversion Price
under this paragraph (g)(D)(4) shall be made; provided, however, that no
such adjustment shall be made unless the rights or warrants issued are
exercisable for shares of Common Stock or other securities with an
exercise price per share less than the Current Market Price. If any such
rights or warrants, including any such existing rights or warrants
distributed prior to the date hereof, are subject to subsequent events,
upon the occurrence of each of which such rights or warrants shall become
exercisable to purchase different securities, evidences of indebtedness or
other assets, then the occurrence of each such event shall be deemed to be
such date of issuance and record date with respect to new rights or
warrants (and a termination or expiration of the existing rights or
warrants without exercise by the holder thereof). In addition, in the
event of any distribution (or deemed distribution) of rights or warrants,
or any Dilution Trigger Event with respect thereto, that was counted for
purposes of calculating a distribution amount for which an adjustment to
the Conversion Price under this paragraph (g)(D)(4) was made, (1) in the
case of any such rights or warrants which shall all have been redeemed or
repurchased without exercise by any holders thereof, the Conversion Price
shall be readjusted upon such final redemption or repurchase to give
effect to such distribution or Dilution Trigger Event, as the case may be,
as though it were a cash distribution, equal to the per share redemption
or repurchase price received by a holder or holders of Common Stock with
respect to such rights or warrants (assuming such holder had retained such
rights or warrants), made to all holders of Common Stock as of the date of
such redemption or repurchase, and (2) in the case of such rights or
warrants which shall have expired or been terminated without exercise by
any holders thereof, the Conversion Price shall be readjusted as if such
rights and warrants had not been issued.
<PAGE> 16
16
Notwithstanding any other provision of this paragraph (g)(D)(4) to the
contrary, Capital Stock, rights, warrants, evidences of indebtedness,
other securities, cash or other assets (including any rights distributed
pursuant to any shareholder rights plan) shall be deemed not to have been
distributed for purposes of this paragraph (g)(D)(4) if the Company makes
proper provision so that each holder of shares of Convertible Preferred
Stock who converts a share of Convertible Preferred Stock (or any portion
thereof) after the date fixed for determination of stockholders entitled
to receive such distribution shall be entitled to receive upon such
conversion, in addition to the Common Stock issuable upon such conversion,
the amount and kind of such distributions that such holder would have been
entitled to receive if such holder had, immediately prior to such
determination date, converted such share of Convertible Preferred Stock
into Common Stock.
For purposes of this paragraph (g)(D)(4) and paragraphs (g)(D)(1) and (2),
any dividend or distribution to which this paragraph (g)(D)(4) is
applicable that also includes Common Stock, or rights or warrants to
subscribe for or purchase Common Stock to which paragraph (g)(D)(2)
applies (or both), shall be deemed instead to be (1) a dividend or
distribution of the evidences of indebtedness, cash, assets, shares of
Capital Stock, rights or warrants other than (A) such shares of Common
Stock or (B) rights or warrants to which paragraph (g)(D)(2) applies (and
any Conversion Price reduction required by this paragraph (g)(D)(4) with
respect to such dividend or distribution shall then be made) immediately
followed by (2) a dividend or distribution of such Common Stock or such
rights or warrants (and any further Conversion Price reduction required by
paragraph (g)(D)(1) and (2) with respect to such dividend or distribution
shall then be made), except that (x) the Record Date of such dividend or
distribution shall be substituted as "the Record Date fixed for the
determination of stockholders entitled to receive such dividend or other
distribution", "Record Date fixed for such determination" and "Record
Date" within the meaning of paragraph (g)(D)(1) and as "the Record Date
fixed for the determination of stockholders entitled to receive such
rights or warrants", "the date fixed for the determination of the
stockholders entitled to receive such rights or warrants" and "such Record
Date" within the meaning of paragraph (g)(D)(2), and (y) any share of
Common Stock included in such dividend or distribution shall not be deemed
"outstanding at the close of business on the date fixed for such
determination" within the meaning of paragraph (g)(D)(1).
(5) If the Company shall, by dividend or otherwise, distribute to
all holders of its Common Stock cash (excluding any cash that is
distributed upon a merger or consolidation to which paragraph (g)(E)
applies or as part of a distribution referred to in paragraph (g)(D)(4))
in an aggregate amount that, combined together with (1) the aggregate
amount of any other such distributions to all holders of its Common Stock
made exclusively in cash within the 12 months preceding the date of
payment of such distribution, and in respect of which no adjustment
pursuant to this paragraph (g)(D)(5) has been made, and (2) the aggregate
of any cash plus the fair market value (as determined by the Board of
Directors, whose determination shall be conclusive and described in a
resolution of the Board of Directors) of consideration payable in respect
of any tender offer by the Company or a Subsidiary of the Company for all
or any portion of the Common Stock concluded within the 12 months
preceding the date of payment of such distribution, and in respect of
which no adjustment pursuant to paragraph (g)(D)(4) has been made, exceeds
the greater of (x) 10% of the product of the Current Market Price
(determined as provided in paragraph (g)(D)(7)) on the Record Date with
respect to such distribution times the number of shares of Common
<PAGE> 17
17
Stock outstanding on such date or (y) the amount paid on shares of Common
Stock within the preceding 12-month period, to the extent such payments
did not require an adjustment to the conversion rate, then, and in each
such case, immediately after the close of business on such date, the
Conversion Price shall be reduced so that the same shall equal the price
determined by multiplying the Conversion Price in effect immediately prior
to the close of business on such Record Date by a fraction (i) the
numerator of which shall be equal to the Current Market Price on the
Record Date less an amount equal to the quotient of (x) the excess of such
combined amount over the greater of (1) such 10% amount or (2) the amount
paid on Common Stock within the preceding 12-month period divided by (y)
the number of shares of Common Stock outstanding on the Record Date and
(ii) the denominator of which shall be equal to the Current Market Price
on such Record Date; provided, however, that, if the portion of the cash
so distributed applicable to one share of Common Stock is equal to or
greater than the Current Market Price of the Common Stock on the Record
Date, in lieu of the foregoing adjustment, adequate provision shall be
made so that each holder of Convertible Preferred Stock shall have the
right to receive upon conversion of a share of Convertible Preferred Stock
(or any portion thereof) the amount of cash such holder would have
received had such holder converted such share of Convertible Preferred
Stock (or portion thereof) immediately prior to such Record Date. If such
dividend or distribution is not so paid or made, the Conversion Price
shall again be adjusted to be the Conversion Price which would then be in
effect if such dividend or distribution had not been declared.
(6) If a tender or exchange offer made by the Company or any of its
Subsidiaries for all or any portion of the Common Stock expires and such
tender or exchange offer (as amended upon the expiration thereof) requires
the payment to stockholders (based on the acceptance (up to any maximum
specified in the terms of the tender offer) of Purchased Shares (as
defined below)) of an aggregate consideration having a fair market value
(as determined by the Board of Directors, whose determination shall be
conclusive and described in a resolution of the Board of Directors) that,
combined together with (i) the aggregate of the cash plus the fair market
value (as determined by the Board of Directors, whose determination shall
be conclusive and described in a resolution of the Board of Directors), as
of the expiration of such tender offer, of consideration payable in
respect of any other tender offers by the Company or any of its
Subsidiaries for all or any portion of the Common Stock expiring within
the 12 months preceding the expiration of such tender offer and in respect
of which no adjustment pursuant to this paragraph (g)(D)(6) has been made
and (ii) the aggregate amount of any distributions to all holders of the
Common Stock made exclusively in cash within 12 months preceding the
expiration of such tender offer and in respect of which no adjustment
pursuant to paragraph (g)(D)(5) has been made, exceeds 10% of the product
of the Current Market Price (determined as provided in paragraph
(g)(D)(7)) as of the last time (the "Expiration Time") tenders could have
been made pursuant to such tender offer (as it may be amended) times the
number of shares of Common Stock outstanding (including any tendered
shares) at the Expiration Time, then, and in each such case, immediately
prior to the opening of business on the day after the date of the
Expiration Time, the Conversion Price shall be adjusted so that the same
shall equal the price determined by multiplying the Conversion Price in
effect immediately prior to the close of business on the date of the
Expiration Time by a fraction of which the numerator shall be the number
of shares of Common Stock outstanding (including any tendered shares) at
the Expiration Time multiplied by the Current Market Price of the Common
Stock on the Trading Day next succeeding the
<PAGE> 18
18
Expiration Time and the denominator shall be the sum of (x) the number
which equals (1) the fair market value (determined as aforesaid) of the
aggregate consideration payable to stockholders based on the acceptance
(up to any maximum specified in the terms of the tender offer) of all
shares validly tendered and not withdrawn as of the Expiration Time (the
shares deemed so accepted, up to any such maximum, being referred to as
the "Purchased Shares") divided by (2) 10% of the Current Market Price (as
determined in paragraph (g)(D)(7)) as of the Expiration Time times the
number of shares of Common Stock outstanding (including any tendered
shares) at the Expiration Time and (y) the product of the number of shares
of Common Stock outstanding (less any Purchased Shares) at the Expiration
Time and the Current Market Price of the Common Stock on the Trading Day
next succeeding the Expiration Time, such reduction (if any) to become
effective immediately prior to the opening of business on the day
following the Expiration Time. If the Company is obligated to purchase
shares pursuant to any such tender offer, but the Company is permanently
prevented by applicable law from effecting any such purchases or all such
purchases are rescinded, the Conversion Price shall again be adjusted to
be the Conversion Price which would then be in effect if such tender offer
had not been made. If the application of this paragraph (g)(D)(6) to any
tender offer would result in an increase in the Conversion Price, no
adjustment shall be made for such tender offer under this paragraph
(g)(D)(6).
(7) For purposes of this paragraph (g), the following terms shall
have the meaning indicated:
"closing price" with respect to any securities on any day means the last
sale price on such day or, if no such sale takes place on such day, the
average of the reported high bid and low ask prices on such day, in each
case on the NNM or the New York Stock Exchange, as applicable, or, if such
security is not listed or admitted to trading on such national market or
exchange, on the principal national securities exchange or quotation
system on which such security is quoted or listed or admitted to trading,
or, if not quoted or listed or admitted to trading on any national
securities exchange or quotation system, the average of the high bid and
low ask prices of such security on the over-the-counter market on the day
in question as reported by the National Quotation Bureau Incorporated or a
similar generally accepted reporting service, or, if not so available, in
such manner as furnished by any New York Stock Exchange member firm
selected from time to time by the Board of Directors for that purpose, or
a price determined in good faith by the Board of Directors, whose
determination shall be conclusive and described in a resolution of the
Board of Directors.
"Current Market Price" means the average over the 10 trading days ending
on the date immediately preceding the date of such determination of the
last reported sale price, or, if no such sale takes place on any such day,
the closing bid price, in either case as reported for consolidated
transactions on the principal national securities exchange (including the
NNM) on which the Common Stock is listed or admitted for trading;
provided, however, that if any event (other than a change of control) that
results in an adjustment of the conversion rate occurs during the period
beginning on the first day of such 10-day period and ending on the date
immediately preceding the date of determination, the Current Market Price
as determined pursuant to the foregoing will be appropriately adjusted as
necessary to reflect the occurrence of such event.
"fair market value" shall mean the amount which a willing buyer would pay
a willing seller in an arm's-length transaction.
<PAGE> 19
19
"Record Date" shall mean, with respect to any dividend, distribution or
other transaction or event in which the holders of Common Stock have the
right to receive any cash, securities or other property or in which the
Common Stock (or other applicable security) is exchanged for or converted
into any combination of cash, securities or other property, the date fixed
for determination of stockholders entitled to receive such cash,
securities or other property (whether such date is fixed by the Board of
Directors or by statute, contract or otherwise).
(8) No adjustment in the Conversion Price shall be required unless
such adjustment would require an increase or decrease of at least 1% in
such price; provided, however, that any adjustments which by reason of
this paragraph (g)(D)(8) are not required to be made shall be carried
forward and taken into account in any subsequent adjustment. All
calculations under this paragraph (g)(D) shall be made by the Company and
shall be made to the nearest cent or to the nearest one-hundredth of a
share, as the case may be. No adjustment need be made for a change in the
par value or no par value of the Common Stock.
(9) Whenever the Conversion Price is adjusted as herein provided,
the Company shall promptly file with the Transfer Agent an Officers'
Certificate setting forth the Conversion Price after such adjustment and
setting forth a brief statement of the facts requiring such adjustment.
Promptly after delivery of such certificate, the Company shall prepare a
notice of such adjustment of the Conversion Price setting forth the
adjusted Conversion Price and the date on which each adjustment becomes
effective and shall mail such notice of such adjustment of the Conversion
Price to each holder of Convertible Preferred Stock at such holder's last
address appearing on the register of holders maintained for that purpose
within 20 days of the effective date of such adjustment. Failure to
deliver such notice shall not affect the legality or validity of any such
adjustment.
(10) In any case in which this paragraph (g)(D) provides that an
adjustment shall become effective immediately after a Record Date for an
event, the Company may defer until the occurrence of such event issuing to
the holder of any share of Convertible Preferred Stock converted after
such Record Date and before the occurrence of such event the additional
Common Stock issuable upon such conversion by reason of the adjustment
required by such event over and above the Common Stock issuable upon such
conversion before giving effect to such adjustment.
(11) For purposes of this paragraph (g)(D), the number of shares of
Common Stock at any time outstanding shall not include shares held in the
treasury of the Company but shall include shares issuable in respect of
scrip certificates issued in lieu of fractions of Common Stock. The
Company shall not pay any dividend or make any distribution on Common
Stock held in the treasury of the Company.
(E) In case of any consolidation of the Company with, or merger of
the Company into, any other corporation, or in case of any merger of
another corporation into the Company (other than a merger which does not
result in any reclassification, conversion, exchange or cancellation of
outstanding shares of Common Stock of the Company), or in case of any
conveyance or transfer of the properties and assets of the Company
substantially as an entirety, the holder of each share of Convertible
Preferred Stock then outstanding shall have the right thereafter, during
the period such Convertible Preferred Stock shall be convertible as
specified in paragraph (g)(A), to
<PAGE> 20
20
convert such share of Convertible Preferred Stock only (subject to
paragraph (e)(ii)(F) in the case of a Common Stock Change in Control) into
the kind and amount of securities, cash and other property receivable upon
such consolidation, merger, conveyance or transfer by a holder of the
number of shares of Common Stock of the Company into which such share of
Convertible Preferred Stock might have been converted immediately prior to
such consolidation, merger, conveyance or transfer, assuming such holder
of Common Stock of the Company failed to exercise his rights of election,
if any, as to the kind or amount of securities, cash and other property
receivable upon such consolidation, merger, conveyance or transfer
(provided that, if the kind or amount of securities, cash and other
property receivable upon such consolidation, merger, conveyance or
transfer is not the same for each share of Common Stock of the Company in
respect of which such rights of election shall not have been exercised
("nonelecting share"), then for the purpose of this paragraph (g)(E) the
kind and amount of securities, cash and other property receivable upon
such consolidation, merger, conveyance or transfer by each nonelecting
share of Common Stock shall be deemed to be the kind and amount so
receivable per share by a plurality of the nonelecting shares). In the
event that the consideration received in such consolidation, merger,
conveyance or transfer is securities, and such securities received are
convertible or exchangeable, such securities shall provide for adjustments
which, for events subsequent to the effective date of the triggering
event, shall be as nearly equivalent as may be practicable to the
adjustments provided for in this paragraph (g)(E). The above provisions of
this Section shall similarly apply to successive consolidations, mergers,
conveyances or transfers.
(F) In case:
(1) the Company shall declare a dividend (or any other distribution)
on its Common Stock payable otherwise than in cash out of its earned surplus; or
(2) the Company shall authorize the granting to all holders of its
Common Stock of rights or warrants to subscribe for or purchase any shares of
Capital Stock of any class or of any other rights; or
(3) of any reclassification of the Common Stock of the Company
(other than a subdivision or combination of its outstanding Common Stock), or of
any consolidation or merger to which the Company is a party and for which
approval of any stockholders of the Company is required, or the sale or transfer
of all or substantially all the assets of the Company; or
(4) of the voluntary or involuntary dissolution, liquidation or
winding up of the Company;
then the Company shall cause to be filed with the Transfer Agent and at each
office or agency maintained for the purpose of conversion of the Convertible
Preferred Stock, and shall cause to be mailed to all holders at their last
addresses as they shall appear in the Convertible Preferred Stock Register, at
least 20 days (or 10 days in any case specified in clause (1) or (2) above)
prior to the applicable date hereinafter specified, a notice stating (x) the
date on which a record is to be taken for the purpose of such dividend,
distribution, rights or warrants, or, if a record is not to be taken, the date
as of which the holders of Common Stock of record to be entitled to such
dividend, distribution, rights or warrants are to be determined or (y) the date
on which such reclassification, consolidation, merger, sale, transfer,
dissolution, liquidation or winding up
<PAGE> 21
21
is expected to become effective, and the date as of which it is expected that
holders of Common Stock of record shall be entitled to exchange their Common
Stock for securities, cash or other property deliverable upon such
reclassification, consolidation, merger, sale, transfer, dissolution,
liquidation or winding up. Failure to give the notice requested by this Section
or any defect therein shall not affect the legality or validity of any dividend,
distribution, right, warrant, reclassification, consolidation, merger, sale,
transfer, dissolution, liquidation or winding up, or the vote upon any such
action.
(G) The Company shall at all times reserve and keep available, free
from preemptive rights, out of its authorized but unissued shares of
Common Stock (or out of its authorized shares of Common Stock held in the
treasury of the Company), for the purpose of effecting the conversion of
the Convertible Preferred Stock, the full number of shares of Common Stock
then issuable upon the conversion of all outstanding shares of Convertible
Preferred Stock.
(H) The Company will pay any and all document, stamp or similar
issue or transfer taxes that may be payable in respect of the issue or
delivery of Common Stock on conversion of the Convertible Preferred Stock
pursuant hereto. The Company shall not, however, be required to pay any
tax which may be payable in respect of any transfer involved in the issue
and delivery of shares of Common Stock in a name other than that of the
holder of the share of Convertible Preferred Stock or the shares of
Convertible Preferred Stock to be converted, and no such issue or delivery
shall be made unless and until the Person requesting such issue has paid
to the Company the amount of any such tax, or has established to the
satisfaction of the Company that such tax has been paid.
(I) Reserved.
(J) If, as a result of the operation of this paragraph (g), the
cumulative number of shares of Common Stock issued or issuable upon conversion
of the Convertible Preferred Stock, after giving effect to the adjustments
described in this paragraph (g) and all prior conversions of Convertible
Preferred Stock, would exceed a number (the "Threshold Number") equal to 19.99%
of the outstanding shares of Common Stock as of the Issue Date, then until and
unless the Company obtains the approval of its Common Stockholders for the
issuance of any shares of Common Stock in excess of the Threshold Number, the
Conversion Price shall be adjusted pursuant to this paragraph (g) to that price
that would entitle the holders of Convertible Preferred Stock to receive in the
aggregate, upon conversion of all the Convertible Preferred Stock (including all
prior conversions of Convertible Preferred Stock), no more than the Threshold
Number of shares of Common Stock. If, as a result of the operation of the
preceding sentence, the adjustments required by operation of paragraph (g) in
the Conversion Price is limited because appropriate stockholder approval has not
been obtained, the Company agrees for the benefit of the Holders of Convertible
Preferred Stock to seek, as promptly as reasonably practicable, the requisite
approval of its Common Stockholders for the full adjustment of the Conversion
Price as required by operation of paragraph (g) (without giving effect to the
preceding sentence) and the Company shall not be required to issue securities in
excess of the Threshold Number until such stockholder approval is obtained.
(h) Reissuance of Convertible Preferred Stock. Shares of Convertible
Preferred Stock that have been issued and reacquired in any manner, including
shares purchased, redeemed, converted or exchanged, shall not be reissued as
shares of Convertible Preferred
<PAGE> 22
22
Stock and shall (upon compliance with any applicable provisions of the laws of
Delaware) have the status of authorized and unissued shares of Preferred Stock
undesignated as to series and may be redesignated and reissued as part of any
series of Preferred Stock; provided, however, that so long as any shares of
Convertible Preferred Stock are outstanding, any issuance of such shares must be
in compliance with the terms hereof. Upon any such reacquisitions, the number of
shares of Convertible Preferred Stock authorized pursuant to this Certificate of
Designations shall be reduced by the number of shares so reacquired.
(i) Business Day. If any payment, redemption or exchange shall be required
by the terms hereof to be made on a day that is not a Business Day, such
payment, redemption or exchange shall be made on the immediately succeeding
Business Day.
(j) Limitation on Mergers and Asset Sales. The Company may not consolidate
with or merge with or into, or convey, transfer or lease all or substantially
all its assets to, any person unless: (1) the successor, transferee or lessee
(if not the Company) is organized and existing under the laws of the United
States of America or any State thereof or the District of Columbia and the
Convertible Preferred Stock shall be converted into or exchanged for and shall
become shares of such successor, transferee or lessee, having in respect of such
successor, transferee or lessee substantially the same powers, preference and
relative participating, optional or other special rights and the qualifications,
limitations or restrictions thereon, that the Convertible Preferred Stock had
immediately prior to such transaction; and (2) the Company delivers to the
Transfer Agent an Officers' Certificate and an Opinion of Counsel stating that
such consolidation, merger or transfer does not conflict with the Certificate of
Designations. The successor, transferee or lessee will be the successor company.
(k) Reserved.
(l) Reports. So long as any shares of the Convertible Preferred Stock are
outstanding, the Company will furnish to the holders of the Convertible
Preferred Stock
- all quarterly and annual financial information that would be
required to be contained in a fling with the SEC on Forms 10-Q
and 10-K and, with respect to the annual information only, a
report thereon by our certified independent accountants, and
- all information that would be required to be contained in a
current report on Form 8-K.
In the event we have filed any of these reports with the SEC, we
will only furnish the report to holders who request a copy of the report. Unless
prohibited by the SEC, we will make our reports publicly available.
(m) Payment for Consents. The Company may not pay, whether by way of
dividend or other distribution, fee or otherwise, to any holder of shares of the
Convertible Preferred Stock (and the corresponding depositary shares) for or as
an inducement to any consent, waiver or amendment of any of the terms or
provisions of the Certificate of Designations or the Convertible Preferred Stock
unless such consideration is offered to be paid and is paid to all Convertible
Preferred Stock that consent, waive or agree to amend in the time frame set
forth in the solicitation documents relating to such consent, waiver or
agreement.
<PAGE> 23
23
(n) Transactions with Affiliates. The Company will not, and will not
permit any of its Subsidiaries to, without the affirmative vote or consent of
the holders of a majority of the outstanding shares of Convertible Preferred
Stock, make any payment to, or sell, lease, transfer or otherwise dispose of any
of its properties or assets to, or purchase any property or assets from, or
enter into or make or amend any contract, agreement, understanding, loan,
advance or guarantee with, or for the benefit of, any affiliate, unless
- the transaction is on terms that no less favorable to us than
those that would have been obtained in a comparable
transaction with an unrelated third party, as determined by a
majority of the members of the board of directors that are
disinterested with the transaction, and
- the transaction has been approved by a majority of the members
of the board of directors that are disinterested with the
transaction.
The provisions of the foregoing paragraph shall not prohibit:
- any issuance of securities, or other payments, pursuant to
employment arrangements and stock plans,
- the grant of stock options or similar rights to any employees
and directors under our stock plans,
- any employment or consulting agreement,
- the payment of reasonable fees to our directors who are not
our employees,
- any transaction with one of our Subsidiaries, or
- the grant of registration rights with respect to securities of
the Company.
The provisions of the foregoing paragraph shall also not apply to any affiliate
transaction publicly disclosed prior to April 6, 2000 in a filing by the Company
with the SEC or in the prospectus dated April 6, 2000.
(o) Certain Definitions. As used in this Certificate of Designations, the
following terms shall have the following meanings (and (1) terms defined in the
singular have comparable meanings when used in the plural and vice versa, (2)
"including" means including without limitation, (3) "or" is not exclusive and
(4) an accounting term not otherwise defined has the meaning assigned to it in
accordance with United States generally accepted accounting
<PAGE> 24
24
principles as in effect on the Issue Date and all accounting calculations will
be determined in accordance with such principles), unless the content otherwise
requires:
"affiliate" means, with respect to any specified person, any other
person directly or indirectly controlling or controlled by or under direct or
indirect common control with such specified person. For purposes of this
definition, "control", including, with correlative meanings, the terms
"controlling," "controlled by" and "under common control with", as used with
respect to any person, shall mean the possession, directly or indirectly, of the
power to direct or cause the direction of the management or policies of such
person, whether through the ownership of voting securities, by agreement or
otherwise; provided that beneficial ownership of 10% or more of the voting
securities of a person shall be deemed to be control.
"Business Day" means each day which is not a Legal Holiday.
"Capital Stock" means, with respect to any Person, any and all
shares, interests, participations or other equivalents (however designated,
whether voting or non-voting) in equity of such Person, whether now outstanding
or issued after the Issue Date, including all Common Stock and Preferred Stock.
"Common Stock" means the Company's common stock, par value $0.01 per
share.
"Continuing Directors" means, as of any date of determination,
individuals who on the Issue Date constituted the Board of Directors (together
with any new directors whose election by the Board of Directors or whose
nomination for election by the Company's stock holders was approved by a vote of
at least two-thirds of the members of the Board of Directors then in office who
either were members of the Board of Directors on the Issue Date or whose
election or nomination for election was previously so approved).
"Dividend Period" means each period between two consecutive Dividend
Payment Dates and the period from the Issue Date to the first Dividend Payment
Date.
"DTC" means The Depository Trust Company.
"Exchange Act" means the Securities Exchange Act of 1934, as
amended.
"Existing Credit Facility" means the Loan and Security Agreement
dated October 7, 1998 by and between Network Plus, Inc., as Borrower, Goldman
Sachs Credit Partners L.P. and Fleet National Bank as Lenders, Fleet National
Bank as Agent and Goldman Sachs Credit Partners L.P. as Syndication and
Arrangement Agent, as amended from time to time.
"Hale Family" means collectively Robert T. Hale, Robert T. Hale, Jr.
and members of their immediate families, any of their respective spouses,
estates, lineal descendants, heirs, executors, personal representatives,
administrators, trusts for any of their benefit and charitable foundations to
which shares of the Company's Capital Stock beneficially owned by any of the
foregoing have been transferred.
"Holders" means the registered holders from time to time of the
Convertible Preferred Stock.
<PAGE> 25
25
"Issue Date" means the date on which the Convertible Preferred Stock
is initially issued.
"Legal Holiday" means a Saturday, a Sunday or a day on which banking
institutions are not required to be open in the State of New York.
"NNM" means The Nasdaq National Market.
"Officer" means the Chairman of the Board of Directors, the
President, any Vice President, the Treasurer, the Secretary or any Assistant
Secretary of the Company.
"Officers' Certificate" means a certificate signed by two Officers.
"Opinion of Counsel" means a written opinion from legal counsel who
is acceptable to the Transfer Agent. The counsel may be an employee of or
counsel to the Company or the Transfer Agent.
"person" or "Person" means any individual, corporation, partnership,
joint venture, limited liability company, association, joint-stock company,
trust, unincorporated organization, government or any agency or political
subdivision thereof or any other entity.
"Preferred Stock" means, with respect to any Person, any and all
shares, interests, participations or other equivalents (however designated,
whether voting or non-voting) of such Person's preferred or preference stock,
whether now outstanding or issued after the Issue Date, including all series and
classes of such preferred or preference stock.
"SEC" or "Commission" means the Securities and Exchange Commission.
"Securities Act" means the Securities Act of 1933.
"Senior Secured Credit Facilities" means the Company's proposed
senior secured credit facility to be provided and syndicated by Goldman Sachs
Credit Partners L.P. which is described in the Company Registration Statement on
Form S-3 filed with the U.S. Securities and Exchange Commission (File No.
333-32040), as in effect from time to time.
"Subsidiary" means with respect to any Person any corporation,
association or other business entity of which Voting Stock representing more
than 50% of the voting power of shares of outstanding Voting Stock is owned,
directly or indirectly, by such Person, or one or more other Subsidiaries of
such Person.
"Transfer Agent" means the Transfer Agent for the Convertible
Preferred Stock appointed by the Company, which initially shall be American
Stock Transfer & Trust Company.
"Voting Stock" of a corporation means all classes of Capital Stock
of such corporation then outstanding and normally entitled to vote in the
election of directors.
<PAGE> 26
26
IN WITNESS WHEREOF, said Network Plus Corp., has caused this
Certificate of Designations to be signed by Joanne Callahan, its Vice President
and Controller, this 6th day of April, 2000.
NETWORK PLUS CORP.,
by /s/ Joanne Callahan
---------------------------------------
Name: Joanne Callahan
Title: Vice President and Controller
<PAGE> 27
EXHIBIT B
NOTICE OF CONVERSION
(To be Executed by the Registered Holder
in order to Convert the Convertible Preferred Stock)
The undersigned hereby irrevocably elects to convert (the "Conversion") shares
of 7 1/2% Series A Cumulative Convertible Preferred Stock (the "Convertible
Preferred Stock"), represented by stock certificate No(s). (the
"Convertible Preferred Stock Certificates") into shares of common stock ("Common
Stock") of Network Plus Corp. (the "Company") according to the conditions of the
Certificate of Designations, Preferences and Rights of the Convertible Preferred
Stock (the "Certificate of Designations"), as of the date written below. If
shares are to be issued in the name of a person other than the undersigned, the
undersigned will pay all transfer taxes payable with respect thereto and is
delivering herewith such certificates. No fee will be charged to the holder for
any conversion, except for transfer taxes, if any. A copy of each Convertible
Preferred Stock Certificate is attached hereto (or evidence of loss, theft or
destruction thereof).
The undersigned represents and warrants that all offers and sales by the
undersigned of the shares of Common Stock issuable to the undersigned upon
conversion of the Convertible Preferred Stock shall be made pursuant to
registration of the Common Stock under the Securities Act of 1933 (the "Act"),
or pursuant to any exemption from registration under the Act.
Capitalized terms used but not defined herein shall have the meanings ascribed
thereto in or pursuant to the Certificate of Designations.
Date of Conversion:_______________________________
Applicable Conversion Price:__________________
Number of shares of Convertible
Preferred Stock to be Converted:____________________
Number of shares of
Common Stock to be Issued:___________________________
Signature:____________________________________________
Name:_________________________________________________
Address:**____________________________________________
Fax No.:______________________________________________
*The Company is not required to issue shares of Common Stock until the original
Convertible Preferred Stock Certificate(s) (or evidence of loss, theft or
destruction thereof) to be converted are received by the Company or its Transfer
Agent. The Company shall issue and deliver shares of Common Stock to an
overnight courier not later than three business days following receipt of the
original Convertible Preferred Stock Certificate(s) to be converted.
<PAGE> 28
**Address where shares of Common Stock and any other payments or certificates
shall be sent by the Company.
<PAGE> 1
EXHIBIT 4.4
EXECUTION COPY
- --------------------------------------------------------------------------------
DEPOSIT AGREEMENT
Among
NETWORK PLUS CORP.,
AMERICAN STOCK TRANSFER & TRUST COMPANY, as Depositary,
and
THE HOLDERS FROM TIME TO TIME OF
THE DEPOSITARY RECEIPTS DESCRIBED HEREIN
Dated as of April 6, 2000
- --------------------------------------------------------------------------------
<PAGE> 2
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TABLE OF CONTENTS
ARTICLE I
Definitions
ARTICLE II
Form of Receipts, Deposit of Convertible Preferred Stock,
Execution and Delivery, Transfer,
Surrender and Redemption of Receipts
SECTION 2.01. Form and Transferability of Receipts .................... 3
SECTION 2.02. Deposit of Convertible Preferred Stock;
Execution and Delivery of Receipts in
Respect Thereof ....................................... 4
SECTION 2.03. Conversion at the Option of Holders ..................... 6
SECTION 2.04. Redemption of Convertible Preferred
Stock ................................................. 8
SECTION 2.05. Registration of Transfer of Receipts .................... 10
SECTION 2.06. Split-ups and Combinations of Receipts;
Surrender of Receipts and Withdrawal
of Convertible Preferred Stock ........................ 11
SECTION 2.07. Limitations on Execution and Delivery,
Transfer, Surrender and Exchange of
Receipts .............................................. 12
SECTION 2.08. Lost Receipts, etc ...................................... 13
SECTION 2.09. Cancellation and Destruction of
Surrendered Receipts .................................. 13
SECTION 2.10. Lost Depositary Share Certificates, etc. ................ 13
ARTICLE III
Certain Obligations of Holders
of Receipts and the Company
SECTION 3.01. Filing Proofs, Certificates and Other
Information ........................................... 13
SECTION 3.02. Payment of Taxes or Other Governmental
Charges ............................................... 14
SECTION 3.03. Warranty as to Convertible Preferred
Stock ................................................. 14
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ARTICLE IV
The Deposited Securities; Notices
SECTION 4.01. Cash Distributions ...................................... 15
SECTION 4.02. Distribution Other than Cash, Rights,
Preferences or Privileges ............................. 15
SECTION 4.03. Subscription Rights, Preferences or
Privileges ............................................ 16
SECTION 4.04. Notice of Dividends, etc.; Fixing
of Record Date for Holders of
Receipts .............................................. 17
SECTION 4.05. Notice of Change of Control ............................. 18
SECTION 4.06. Voting Rights ........................................... 18
SECTION 4.07. Changes Affecting Deposited Securities
and Reclassifications,
Recapitalizations, etc. ............................... 18
SECTION 4.08. Inspection of Reports ................................... 19
SECTION 4.09. Lists of Receipt Holders ................................ 20
ARTICLE V
The Depositary, the Depositary's Agents,
the Registrar and the Company
SECTION 5.01. Maintenance of Offices, Agencies and
Transfer Books by the Depositary;
Registrar ............................................. 20
SECTION 5.02. Prevention of or Delay in Performance
by the Depositary, the Depositary's
Agents, the Registrar or the Company .................. 21
SECTION 5.03. Obligations of the Depositary, the
Depositary's Agents, the Registrar
and the Company ....................................... 21
SECTION 5.04. Resignation and Removal of the Depositary;
Appointment of Successor Depositary ................... 23
SECTION 5.05. Corporate Notices and Reports ........................... 24
SECTION 5.06. Indemnification by the Company .......................... 24
SECTION 5.07. Charges and Expenses .................................... 24
SECTION 5.08. Tax Compliance .......................................... 25
SECTION 5.09. Deposit of Convertible Preferred Stock
by the Company ........................................ 25
ARTICLE VI
Amendment and Termination
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SECTION 6.01. Amendment ............................................... 26
SECTION 6.02. Termination ............................................. 26
SECTION 2.03. Consents ................................................ 26
ARTICLE VII
Miscellaneous
SECTION 7.01. Counterparts ............................................ 27
SECTION 7.02. Exclusive Benefit of Parties ............................ 28
SECTION 7.03. Invalidity of Provisions ................................ 28
SECTION 7.04. Notices ................................................. 28
SECTION 7.05. Depositary's Agents ..................................... 29
SECTION 7.06. Holders of Receipts Are Parties ......................... 29
SECTION 7.07. Governing Law ........................................... 29
SECTION 7.08. Inspection of Deposit Agreement ......................... 29
SECTION 7.09. Headings ................................................ 29
TESTIMONIUM ............................................................ 30
SIGNATURES ............................................................. 30
</TABLE>
EXHIBIT A: Form of Depositary Receipt
EXHIBIT B: Resolutions
iii
<PAGE> 5
DEPOSIT AGREEMENT dated as of April 6, 2000, among NETWORK
PLUS CORP., a Delaware corporation (the "Company"), AMERICAN
STOCK TRANSFER & TRUST COMPANY, a New York corporation (the
"Depositary"), and the holders from time to time of the
Receipts described herein.
WHEREAS it is desired to provide, as hereinafter set forth in this
Deposit Agreement, for the deposit of 250,000 shares of Series A Cumulative
Convertible Preferred Stock ($500 Liquidation Preference per share), of Network
Plus Corp. with the Depositary for the purposes set forth in this Deposit
Agreement and for the issuance hereunder of Receipts evidencing Depositary
Shares in respect of the Stock so deposited; and
WHEREAS the Receipts are to be substantially in the form of Exhibit
A hereto, with appropriate insertions, modifications and omissions, as
hereinafter provided in this Deposit Agreement;
NOW, THEREFORE, in consideration of the premises and agreements
contained herein, and for other good and valuable consideration, the receipt and
adequacy of which are hereby acknowledged, it is agreed by and among the parties
hereto 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:
"Authorizing Resolutions" shall mean the resolutions adopted by the
Board of Directors of the Company or a duly authorized committee thereof
establishing and setting forth the rights, preferences and privileges of the
Convertible Preferred Stock and filed in the form of a certificate of the voting
powers, designations, preferences and relative participating, optional or other
special rights, and qualifications, limitations and restrictions thereof, of the
Convertible Preferred Stock with the Secretary of State of the State of Delaware
pursuant to Section 151 of the General
<PAGE> 6
Corporation Law of the State of Delaware, attached hereto as Exhibit B.
"Certificate" shall mean the certificate of designations to the
Certificate of Incorporation of the Company filed with the Secretary of State of
Delaware establishing the Convertible Preferred Stock as a series of series
preferred stock, without par value $.01, of the Company.
"Company" shall mean Network Plus Corp., a Delaware corporation, and
its successors.
"Convertible Preferred Stock" shall mean shares of the Company's 7
1/2% Series A Cumulative Convertible Preferred Stock ($500 Liquidation
Preference per share).
"Deposit Agreement" shall mean this Deposit Agreement, as amended or
supplemented from time to time.
"Depositary" shall mean American Stock Transfer & Trust Company, a
New York corporation, and any successor as Depositary hereunder.
"Depositary Shares" shall mean Depositary Shares, each representing
one-tenth (1/10) of a share of Convertible Preferred Stock and evidenced by a
Receipt.
"Depositary's Agent" shall mean an agent
appointed by the Depositary pursuant to Section 7.05.
"Depositary's Office" shall mean the principal office of the
Depositary in New York City, at which at any particular time its depositary
receipt business shall be administered.
"Paying Agent" shall have the meaning specified
in the Certificate.
"Receipt" shall mean one of the Depositary Receipts issued
hereunder, whether in definitive or temporary form.
"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.
"Registrar" shall mean any bank or trust company which shall be
appointed to register ownership and transfers of Receipts as herein provided.
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ARTICLE II
Form of Receipts, Deposit of Convertible Preferred Stock,
Execution and Delivery, Transfer,
Surrender and Redemption of Receipts
SECTION 2.01. Form and Transferability of Receipts. Definitive
Receipts shall be printed or lithographed on steel-engraved borders and shall be
substantially in the form set forth in Exhibit A annexed to this Deposit
Agreement, in each case with appropriate insertions, modifications and
omissions, as hereinafter provided. Pending the preparation of definitive
Receipts, the Depositary, upon the written order of the Company delivered in
compliance with Section 2.02, shall execute and deliver temporary Receipts which
shall be printed, lithographed, typewritten, mimeographed or otherwise
substantially of the tenor of the definitive Receipts in lieu of which they are
issued and in each case with such appropriate insertions, omissions,
substitutions and other variations as the persons executing such Receipts may
determine, as evidenced by their execution of such Receipts. If temporary
Receipts are issued, the Company and the Depositary will cause definitive
Receipts to be prepared without unreasonable delay. After the preparation of
definitive Receipts, the temporary Receipts shall be exchangeable for definitive
Receipts upon surrender of the temporary Receipts at an office described in
Section 2.02, without charge to the holder. Upon surrender for cancellation of
any one or more temporary Receipts, the Depositary shall execute and deliver in
exchange therefor definitive Receipts representing the same number of Depositary
Shares as represented by the surrendered temporary Receipt or Receipts. Such
exchange shall be made at the Company's expense and without any charge therefor.
Until so exchanged, the temporary Receipts shall in all respects be entitled to
the same benefits under this Agreement, and with respect to the Convertible
Preferred Stock, as definitive Receipts.
Receipts shall be executed by the Depositary by the manual signature
of a duly authorized officer of the Depositary; provided, that such signature
may be a facsimile if a Registrar for the Receipts (other than the Depositary)
shall have been appointed and such Receipts are countersigned by manual
signature of a duly authorized officer of the Registrar. No Receipt shall be
entitled to any benefits under this Deposit Agreement or be valid or obligatory
for any purpose unless it shall
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have been executed manually by a duly authorized officer of the Depositary or,
if a Registrar for the Receipts (other than the Depositary) shall have been
appointed, by manual or facsimile signature of a duly authorized officer of the
Depositary and countersigned manually by a duly authorized officer of such
Registrar. The Depositary shall record on its books each Receipt so signed and
delivered as hereinafter provided.
Receipts shall be in denominations of any number of whole Depositary
Shares up to but not in excess of Depositary Shares for any particular Receipt.
Receipts may be endorsed with or have incorporated in the text
thereof such legends or recitals or changes not inconsistent with the provisions
of this Deposit Agreement as may be required by the Depositary or required to
comply with any applicable law or any regulation thereunder or with the rules
and regulations of any securities exchange upon which the Stock, the Depositary
Shares or the Receipts may be listed or to conform with any usage with respect
thereto, or to indicate any special limitations or restrictions to which any
particular Receipts are subject.
Title to Depositary Shares (and the interest in the Convertible
Preferred Stock evidenced thereby) evidenced by a Receipt that 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 2.04, 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 or payments with respect to the Convertible Preferred Stock, to
exercise conversion rights or to receive any notice provided for in this Deposit
Agreement and for all other purposes.
The Depositary shall not lend any Convertible Preferred Stock
deposited hereunder.
SECTION 2.02. Deposit of Convertible Preferred Stock; Execution and
Delivery of Receipts in Respect Thereof. Subject to the terms and conditions of
this Deposit Agreement, the Company or any holder of
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Convertible Preferred Stock may from time to time deposit shares of the
Convertible Preferred Stock under this Deposit Agreement by delivery to the
Depositary of a certificate or certificates for the Convertible Preferred Stock
to be deposited, properly endorsed or accompanied, if required by the
Depositary, by a duly executed instrument of transfer or endorsement, in form
satisfactory to the Depositary, together with all such certifications as may be
required by the Depositary in accordance with the provisions of this Deposit
Agreement, and together with a written order of the Company or such holder, as
the case may be, directing the Depositary to execute and deliver to, or upon the
written order of, the person or persons stated in such order a Receipt or
Receipts for the number of Depositary Shares representing such deposited
Convertible Preferred Stock.
Deposited Convertible Preferred Stock shall be held by the
Depositary at the Depositary's Office or at such other place or places as the
Depositary shall determine.
Simultaneously with the execution and delivery hereof, the Company,
on behalf of each underwriter of an interest in the Convertible Preferred Stock
that is to be represented by the Depositary Shares, is depositing under this
Deposit Agreement certificates representing all outstanding shares of
Convertible Preferred Stock, together with a written order directing the
Depositary to execute and deliver Depositary Shares representing such
Convertible Preferred Stock registered in such names as have been designated in
writing by Goldman, Sachs & Co., as the representative of the underwriters for
the Depositary Shares that are to represent such Convertible Preferred Stock.
Upon each delivery to the Depositary of a certificate or
certificates for Convertible Preferred Stock to be deposited hereunder in
accordance with the provisions of this Section, together with the other
documents required as above specified, and as soon as transfer and recordation
of the Convertible Preferred Stock on the books of the Company in the name of
the Depositary or its nominee can be accomplished, the Depositary, subject to
the terms and conditions of this Deposit Agreement, shall execute and deliver
to, or upon the order of, the Exchange Agent a Receipt or Receipts for the
number of Depositary Shares representing the Convertible Preferred Stock so
deposited and registered in such name or names of the person or persons as
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specified in the written order delivered to the Depositary referred to in the
first paragraph of this Section. Deposited Convertible Preferred Stock shall be
held by the Depositary in trust for the benefit of the holders from time to time
of the Depositary Shares at the principal office of the Depositary or at such
other place or places as the Depositary shall determine, such deposited
Convertible Preferred Stock (and any dividends or other distributions thereon)
to be at all times segregated, separate and apart from the property of the
Depositary.
Upon receipt by the Depositary of a certificate or certificates for
Convertible Preferred Stock deposited in accordance with the provisions of this
Section 2.02, together with the other documents required as above specified and
upon recordation of such Convertible 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 person or persons named in the written order referred to
above in this Section 2.02 one or more Depositary Shares for the number of
Depositary Shares attributable to such Convertible Preferred Stock so deposited
and registered in such name or names as requested by such person or persons. 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. However, in each case subsequent to the initial
deposit hereunder, such delivery will be made only upon payment to the
Depositary of all taxes and governmental charges and fees payable in connection
with such deposit and the transfer of the deposited Convertible Preferred Stock.
The Depositary shall not issue any Depositary Shares certificates other than
Depositary Shares certificates for Depositary Shares representing Convertible
Preferred Stock actually deposited with the Depositary.
Other than in the case of splits, combinations or other
reclassifications affecting the Convertible Preferred Stock, or in the case of
dividends or other distributions of Convertible Preferred Stock, if any, or
unless the Company provides written notice to the Depositary as to a different
number of shares of Convertible Preferred Stock, there shall be deposited
hereunder not more than 250,000 shares of Convertible Preferred Stock.
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SECTION 2.03. Conversion at the Option of Holders. Subject to the
terms and conditions of this Deposit Agreement and the Authorizing Resolutions,
Depositary Shares may be surrendered at any time by the holders thereof with
written instructions to the Depositary to convert any specified number of shares
of Convertible Preferred Stock represented by such Depositary Shares into shares
of Common Stock (and cash in lieu of fractional shares of Common Stock) at the
conversion rate in respect of the Convertible Preferred Stock determined in
accordance with the Authorizing Resolutions. A holder of Depositary Shares may
surrender such Depositary Shares at such office as the Depositary may from time
to time designate for such purpose, together with a notice of conversion thereof
duly completed and executed, thereby instructing the Depositary to cause the
conversion of the number of shares of Convertible Preferred Stock specified in
such notice of conversion into shares of Common Stock.
Upon receipt by the Depositary of a Depositary Shares certificate,
together with a notice of conversion supplied by the Company containing the
applicable conversion rate instructing the Depositary to convert a specified
number of shares of Convertible Preferred Stock duly completed and executed, the
Depositary shall (a) give written notice to the transfer agent for the
Convertible Preferred Stock of the number of shares of Convertible Preferred
Stock surrendered for conversion and the number of shares of Common Stock to be
delivered upon conversion of such shares of Convertible Preferred Stock and the
amount of immediately available funds, if any, to be delivered to the holder of
such Depositary Shares in payment of any fractional shares of Common Stock
otherwise issuable, (b) cancel such Depositary Shares certificate or, if a
Registrar for Depositary Shares certificates (other than the Depositary) shall
have been appointed, cause such Registrar to cancel such Depositary Shares
certificate and (c) deliver to the transfer agent for the Convertible Preferred
Stock or any other authorized agent of the Company certificates for the
Convertible Preferred Stock represented by such Depositary Shares, which
certificates shall thereupon be canceled by such transfer agent or other
authorized agent. As promptly as practicable after such transfer agent or other
authorized agent of the Company has received such certificates from the
Depositary, (a) the Company shall cause to be furnished to the Depositary a
certificate or certificates evidencing such number of shares of Common Stock,
and such amount of immediately
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available funds, if any, as specified in a written notice to the Company and (b)
subject to the next succeeding sentence, the Depositary shall deliver at its
office designated for such purpose or such other place as may be requested by
any holder surrendering Depositary Shares as provided in this Section 2.03 (i) a
certificate or certificates evidencing the number of shares of Common Stock into
which the Convertible Preferred Stock represented by the Depositary Shares has
been converted,(ii) cash in lieu of receiving fractional shares of Common Stock
in accordance with Section 2.06 and (iii) the right to receive cash in an amount
in an amount equal to all accrued and unpaid dividends on such shares of
Convertible Preferred Stock to the extent provided in the Certificate of
Designations for the Convertible Preferred Stock. However, if a number of
Depositary Shares that is not divisible by 10, without remainder, is submitted
for conversion, any fractional share of Convertible Preferred Stock otherwise
issuable upon such conversion will be rounded down.
Upon any optional conversion of the Convertible Preferred Stock
represented by the Depositary Shares, no allowance, adjustment or payment shall
be made with respect to dividends upon such Convertible Preferred Stock or
shares of Common Stock issued upon the conversion thereof, except as set forth
in the Authorizing Resolutions. If Depositary Shares representing shares of
Convertible Preferred Stock (other than Depositary Shares called for redemption
within such period in connection with a redemption of Convertible Preferred
Stock) are surrendered for conversion between the close of business on the
record date with respect to any dividend payment on such Convertible Preferred
Stock and the opening of business on the next succeeding dividend payment date,
any holder of Depositary Shares surrendered with instructions to the Depositary
for conversion of the Convertible Preferred Stock represented thereby shall
remit to the Depositary with such Depositary Shares an amount of funds equal to
the dividend payable on the underlying Convertible Preferred Stock on such
dividend payment date computed and paid as set forth in the Authorizing
Resolutions.
Delivery of Common Stock and other property may be made by the
delivery of certificates and other proper documents of title, which, if required
by law, shall be properly endorsed or accompanied by proper instruments of
transfer. If such delivery is to be made otherwise than at the Depositary's
corporate trust office in New York
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City, such delivery shall be made, as hereinafter provided, without unreasonable
delay, at the risk of any holder surrendering Depositary Shares, and for the
account of such holder, to such place designated in writing by such holder.
SECTION 2.04. Redemption of Convertible Preferred Stock. The
Convertible Preferred Stock represented by the Depositary Shares shall not be
redeemable by the Company prior to April 10, 2005. At any time and from time to
time on or after that date until immediately prior to the Mandatory Redemption
Date, the Company will have the right to redeem, in whole or in part, the
Convertible Preferred Stock represented by the Depositary Shares, at the price
per share of Convertible Preferred Stock specified pursuant to the Authorizing
Resolutions. Whenever the Company shall elect under the Authorizing Resolutions
to redeem shares of Convertible Preferred Stock, the Depositary shall effect a
simultaneous redemption, from the proceeds of such redemption by the Company, of
a number of Depositary Shares representing a number of shares of Convertible
Preferred Stock equal to the number of shares of Convertible Preferred Stock
being redeemed. In the case of any such redemption, the Company shall give the
Depositary not less than 30 nor more than 60 days' notice of the date of such
proposed redemption (the "redemption date"), the number of shares of the
Convertible Preferred Stock held by the Depositary to be so redeemed, the number
of Depositary Shares to be simultaneously redeemed and the applicable redemption
price, including the amount of any accumulated and unpaid dividends to the date
of such redemption computed as provided in the Authorizing Resolutions. The
Depositary shall mail notice of such redemption (which shall also constitute a
notice of redemption of Depositary Shares), by first-class mail, postage
prepaid, not less than 30 nor more than 60 days prior to the redemption date, to
the holders of record of Depositary Shares representing a number of shares of
Convertible Preferred Stock equal to the number of shares of Convertible
Preferred Stock held by the Depositary that are to be redeemed by the Company,
at the addresses of such holders as the same appear on the records of the
Depositary; but neither failure to mail any such notice, nor any defect in any
notice, to one or more holders shall affect the validity of the proceedings for
redemption except as to any holder to whom the Depositary has failed to give
said notice or whose notice was defective. Each such notice shall state the
redemption date, the number of shares of Convertible Preferred Stock
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and number of Depositary Shares to be redeemed, and, if less than all the shares
of Convertible Preferred Stock represented by Depositary Shares are to be
redeemed, the number of Depositary Shares to be redeemed from such holder; the
applicable redemption price; that dividends in respect of the Convertible
Preferred Stock represented by such Depositary Shares to be redeemed will cease
to accrue as of the date specified in the notice of redemption from the Company;
that the conversion rights with respect to such shares of Convertible Preferred
Stock will cease as of the redemption date (except as described below), and
instructions for the surrender of the certificates representing the Depositary
Shares to be redeemed. Any notice that is mailed in the manner herein provided
shall be conclusively presumed to have been duly given whether or not the holder
receives the notice. The Company shall make a public announcement (by press
release to the Dow Jones News Service) of any call for redemption prior to or at
the time of the mailing of such notice of redemption. In case less than all the
outstanding shares of Convertible Preferred Stock represented by Depositary
Shares are to be called for redemption, the Depositary Shares to be redeemed
(which shall represent a number of shares of Convertible Preferred Stock equal
to the total number of shares of Convertible Preferred Stock being held by the
Depositary that are to be redeemed) shall be selected by the Depositary in the
same manner as that determined by the Company with respect to the redemption by
the Company of the shares of Convertible Preferred Stock.
Notice having been mailed by the Depositary as aforesaid, on and
after the redemption date, the Depositary Shares to be redeemed shall no longer
be deemed outstanding and all rights of the holders of such Depositary Shares
including any accrued and unpaid dividends shall cease, except the right to
receive a distribution of the redemption price, without interest as provided
herein, (unless the Company defaults in payment of the redemption price). As of
the close of business on the redemption date, if the Company shall have redeemed
the shares of Convertible Preferred Stock called for redemption, upon surrender
in accordance with such notice of the certificates representing the Depositary
Shares being redeemed from the proceeds of such redemption (properly endorsed or
assigned for transfer, if required and stated in such notice), the holders of
such Depositary Shares shall be entitled to receive, for each Depositary Share
surrendered, an amount equal to the redemption price per 1/10-share (10%) of
Convertible
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Preferred Stock redeemed plus all money and other property, if any, attributable
thereto pursuant to the Authorizing Resolutions, including cash in lieu of any
fractional shares of Common Stock in accordance with Section 2.06. On or
promptly following the redemption date, the Depositary shall surrender all
shares of Convertible Preferred Stock held by it that have been redeemed.
If less than all of the Depositary Shares represented by a
Depositary Shares certificate are called for redemption, the Depositary will
deliver to the holder of the Depositary Shares certificate upon the later of (i)
the surrender of the Depositary Shares certificate to the Depositary and (ii)
the redemption date a new Depositary Shares certificate representing the
Depositary Shares not called for redemption together with the redemption
payment.
If a notice of redemption of any shares of Convertible Preferred
Stock represented by Depositary Shares has been given pursuant to this Section
2.05, the right to convert the shares of Convertible Preferred Stock represented
by such Depositary Shares will terminate immediately prior to the close of
business on the relevant redemption date.
Unless the Convertible Preferred Stock has already been redeemed or
converted, the Company will be required to redeem the Convertible Preferred
Stock on April 1, 2012, at a redemption price equal to 100% of the liquidation
preference, together with accumulated and unpaid dividends to April 1, 2012.
SECTION 2.05. 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 holder in person or by duly authorized attorney, properly endorsed or
accompanied by a properly executed instrument of transfer. Thereupon 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 2.06. Split-ups and Combinations of Receipts; Surrender of
Receipts and Withdrawal of Convertible Preferred Stock. Upon surrender of a
Receipt
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or Receipts at the Depositary's Office or at such other offices as it may
designate for the purpose of effecting a split-up or combination of such Receipt
or Receipts, and subject to the terms and conditions of this Deposit Agreement,
the Depositary shall execute and deliver a new Receipt or Receipts in the
authorized denomination or denominations requested, evidencing the aggregate
number of Depositary Shares evidenced by the Receipt or Receipts surrendered.
Any holder of a Receipt or Receipts representing any number of whole
shares of Convertible Preferred Stock may (unless the related Depositary Shares
have previously been converted or called for redemption) withdraw the
Convertible Preferred Stock on the basis of one share of Convertible Preferred
Stock for every ten Depositary Shares surrendered and all money and other
property, if any, represented thereby by surrendering such Receipt or Receipts,
at the Depositary's office or at such other offices as the Depositary may
designate for such withdrawals. Thereafter, without unreasonable delay, the
Depositary shall deliver to such holder, or to the person or persons designated
by such holder as hereinafter provided, the number of whole shares of
Convertible 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 Convertible Preferred Stock will not thereafter
be entitled to deposit such Convertible Preferred Stock hereunder or to receive
Depositary Shares therefor. However, if a Receipt delivered by the holder to the
Depositary in connection with such withdrawal shall evidence a number of
Depositary Shares that is not divisible by 10, without remainder, any fractional
share of Convertible Preferred Stock otherwise issuable upon conversion will be
rounded down. Delivery of the Convertible Preferred Stock and money and other
property being withdrawn may be made by the delivery of such certificates,
documents of title, which, if required by law, shall be properly endorsed or
accompanied by proper instruments of transfer, and other instruments as the
Depositary may deem appropriate.
If the Convertible 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
Convertible Preferred Stock, such holder shall execute and deliver to the
Depositary a written order so directing the Depositary and the Depositary may
require
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that the Receipt or Receipts surrendered by such holder for withdrawal of such
shares of Convertible Preferred Stock be properly endorsed in blank or
accompanied by a properly executed instrument of transfer in blank.
Delivery of the Convertible 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 holder surrendering such Receipt or Receipts and for the
account of the holder thereof, such delivery may be made at such other place as
may be designated by such holder.
SECTION 2.07. 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, or the exercise of any right of conversion, redemption
or withdrawal, the Depositary, any of the Depositary's Agents or the Company may
require payment to it of a sum sufficient for the payment (or, in the event that
the Depositary or the Company shall have made such payment, the reimbursement to
it) of any charges or expenses payable by the holder of a Receipt pursuant to
Section 5.07, may require the production of evidence satisfactory to it as to
the identity and genuineness of any signature and may also require compliance
with such regulations, if any, as the Depositary or the Company may establish
consistent with the provisions of this Deposit Agreement, or with the approval
of the Company, for any other reason. Without limitation of the foregoing, the
Depositary shall not knowingly accept for deposit under this Deposit Agreement
any Convertible Preferred Stock in connection with a distribution of Depositary
Shares which is required to be registered under the Securities Act of 1933,
unless a registration statement under such Act is in effect as to such
Depositary Shares and such Convertible Preferred Stock.
The deposit of Convertible Preferred Stock may be refused, the
delivery of Receipts against Convertible Preferred Stock may be suspended, the
registration of transfer of Receipts may be refused and the registration of
transfer, 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, any
of the Depositary's Agents or the
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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 2.08. 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 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 with
reasonable indemnification and/or surety bond satisfactory to it.
SECTION 2.09. Cancellation and Destruction of Surrendered Receipts.
All Receipts surrendered to the Depositary or any Depositary's Agent shall be
canceled by the Depositary. Except as prohibited by applicable law or
regulation, the Depositary is authorized to destroy all Receipts so canceled.
SECTION 2.10. Lost Depositary Share Certificates, etc. In case any
Depositary Share certificate shall be mutilated or be destroyed or lost or
stolen, the Depositary will execute and deliver a Depositary Share certificate
of like form and tenor in exchange and substitution for such mutilated
Depositary Share certificate, or in lieu of and in substitution for such
destroyed, lost or stolen Depositary Share certificate, upon the holder thereof
filing with the Registrar evidence satisfactory to the Depositary of such
destruction, loss or theft of such Depositary Share certificate and the
authenticity thereof and of his ownership thereof and furnishing the Depositary
with reasonable indemnification and/or surety bond satisfactory to it.
ARTICLE III
Certain Obligations of Holders
of Receipts and the Company
SECTION 3.01. Filing Proofs, Certificates and Other Information. Any
holder of a Receipt may be required from time to time to file such proof of
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residence, or other matters or other information, to execute such certificates
and to make such representations and warranties as the Depositary or the Company
may be 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 Convertible Preferred Stock
represented by the Depositary Shares evidenced by any Receipt or the
distribution of any dividend or other distribution or the sale of any rights or
of the proceeds thereof or of the proceeds of the exercise of any conversion
right specified in Section 2.03 or the mandatory redemption pursuant to Section
2.04 until such proof or other information is filed or such certificates are
executed or such representations and warranties are made.
SECTION 3.02. Payment of Taxes or Other Governmental Charges.
Holders of Receipts shall be obligated to make payments to the Depositary of
certain charges and expenses, as provided in Section 5.07. Registration of
transfer of any Receipt or any withdrawal of Convertible Preferred Stock and all
money or other property, if any, represented by the Depositary Shares evidenced
by such Receipt or of the proceeds of the exercise of any conversion right
specified in Section 2.03 or the mandatory redemption pursuant to Section 2.04
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
Convertible Preferred Stock or other property represented by the Depositary
Shares evidenced by such Receipt and not theretofore sold may be sold for the
account of the holder thereof (after attempting by reasonable means to notify
such holder prior to such sale), and such dividends, interest payments or other
distributions or the proceeds of any such sale or of the proceeds of the
exercise of any conversion right specified in Section 2.03 or the mandatory
redemption pursuant to Section 2.04 may be applied to any payment of such
charges or expenses, the holder of such Receipt remaining liable for any
deficiency.
SECTION 3.03. Warranty as to Convertible Preferred Stock. The
Company hereby represents, with respect to the initial deposit of Convertible
Preferred Stock, and each subsequent depositor shall be deemed to represent,
with respect to any deposit made by such person, that each certificate for such
Convertible Preferred Stock so deposited is valid, and that the
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person making such deposit is duly authorized so to do. The Company hereby
further represents and warrants that the Convertible Preferred Stock, when
issued, will be validly issued, fully paid and nonassessable. Such
representation and warranty shall survive the deposit of the Convertible
Preferred Stock and the issuance of Receipts.
ARTICLE IV
The Deposited Securities; Notices
SECTION 4.01. Cash Distributions. Whenever the Depositary shall
receive any cash dividend or other cash distribution on the Convertible
Preferred Stock, the Depositary shall, subject to Sections 3.01 and 3.02 hereof,
distribute to record holders of Receipts on the record date fixed pursuant to
Section 4.04 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 holders; 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 Convertible
Preferred Stock an amount on account of taxes, the amount made available for
distribution or distributed in respect of Depositary Shares shall be reduced
accordingly. The Depositary shall distribute or make available for distribution,
as the case may be, only such amount, however, as can be distributed without
attributing to any 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 of record holders of Receipts
then outstanding.
SECTION 4.02. Distribution Other than Cash, Rights, Preferences or
Privileges. Whenever the Depositary shall receive any distribution other than
cash, rights, preferences or privileges upon Convertible Preferred Stock, the
Depositary shall, subject to Sections 3.01 and 3.02 hereof, distribute to record
holders of Receipts on the record date fixed pursuant to Section 4.04 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 holders, in any
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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 3.01 and 3.02, be distributed or made
available for distribution, as the case may be, by the Depositary to record
holders of Receipts as provided by Section 4.01 in the case of a distribution
received in cash. The Company shall 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 of 1933 or do not need
to be registered.
SECTION 4.03. Subscription Rights, Preferences or Privileges. If the
Company shall at any time offer or cause to be offered to the persons in whose
names Convertible 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 Depositary
may determine, either by the issue to such record holders of warrants
representing such rights, preferences or privileges or by such other method as
may be approved by the Depositary in its discretion, with the approval of the
Company; provided, however, that (i) if at the time of issue or offer of any
such rights, preferences or privileges the Depositary determines (after
consultation with the Company) that it is not lawful or not feasible to make
such rights, preferences or privileges available to holders of Receipts by the
issue of warrants or otherwise, or (ii) if and to the extent so instructed by
holders of Receipts who do not desire to exercise such rights, preferences or
privileges, then the Depositary, in its discretion (with the approval of the
Company, in any case where the
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Depositary has determined that it is not feasible to make such rights,
preferences or privileges available), may, if applicable laws or the terms of
such rights, preferences or privileges permit such transfer, sell such rights,
preferences or privileges at public or private sale, at such place or places and
upon such terms as it may deem proper. The net proceeds of any such sale shall,
subject to Sections 3.01 and 3.02, be distributed by the Depositary to the
record holders of Receipts entitled thereto as provided by Section 4.01 in the
case of a distribution received in cash. 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 of 1933 or do not
need to be registered.
If registration under the Securities Act of 1933 of the securities
to which any rights, preferences or privileges relate is required in order for
holders of Receipts to be offered or sold the securities to which such rights,
preferences or privileges relate, the Company agrees with the Depositary that it
will file promptly a registration statement pursuant to such Act with respect to
such rights, preferences or privileges and securities and use its best efforts
and take all steps available to it to cause such registration statement to
become effective sufficiently in advance of the expiration of such rights,
preferences or privileges to enable such holders to exercise such rights,
preferences or privileges. In no event shall the Depositary make available to
the holders of Receipts any right, preference or privilege to subscribe for or
to purchase any securities unless and until such registration statement shall
have become effective, or unless the offering and sale of such securities to
such holders are exempt from registration under the provisions of such 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 holders
of Receipts, the Company agrees with the Depositary that the Company will use
its best efforts to take such action or obtain such authorization, consent or
permit sufficiently in advance of the expiration of such rights, preferences or
privileges to enable such holders to exercise such rights, preferences or
privileges.
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SECTION 4.04. Notice of Dividends, etc.; Fixing of Record Date for
Holders of Receipts. Whenever any cash dividend or other cash distribution shall
become payable or any distribution other than cash shall be made, or if rights,
preferences or privileges shall at any time be offered, with respect to the
Convertible Preferred Stock, or whenever the Depositary shall receive notice of
any meeting at which holders of Convertible Preferred Stock are entitled to vote
or of which holders of Convertible Preferred Stock are entitled to notice or any
request for action by written consent, or whenever 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 Convertible Preferred Stock) for the
determination of the holders of Receipts who shall be entitled to receive such
dividend, distribution, rights, preferences or privileges or the net proceeds of
the sale thereof, or to give instructions for the exercise of voting rights at
any such meeting, or who shall be entitled to notice of such meeting or any
request for action by written consent or for any other appropriate reasons.
SECTION 4.05. Notice of Change of Control. Upon receipt of notice of
any change of control offer (as defined in the Certificate of Designations with
respect to the Convertible 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 change of
control offer and (ii) if applicable, a statement that the holders may, subject
to any applicable restrictions, instruct the Depositary as to the exercise of
the voting rights of the holders in compliance with Section 4.06 herein. Upon
receipt of notice from the Company of any change of control (as defined in the
Certificate of Designations with respect to the Convertible Preferred Stock),
the Depositary shall, as soon as practicable thereafter, mail to the record
holders of Receipts a notice that shall contain (i) a description of the
transaction or transactions constituting the change of control and (ii) the
offer from the Company to repurchase the Depositary Shares or Convertible
Preferred Stock, as the case may be, on the date specified in such notice,
pursuant to the procedures set forth in the Certificate of Designations with
respect to the Convertible Preferred Stock.
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SECTION 4.06. Voting Rights. Upon receipt of notice of any meeting
at which the holders of Convertible Preferred Stock are entitled to vote, the
Depositary shall, as soon as practicable thereafter, mail to the record holders
of Receipts a notice which shall contain (i) such information as is contained in
such notice of meeting and (ii) a statement that the holders may, subject to any
applicable restrictions, instruct the Depositary as to the exercise of the
voting rights pertaining to the amount of Convertible Preferred Stock
represented by their respective Depositary Shares (including an express
indication that instructions may be given to the Depositary to give a
discretionary proxy to a person designated by the Company) and a brief statement
as to the manner in which such instructions maybe be given. Upon the written
request of the holders of Receipts on the relevant record date (which shall be
the same date as the record date for the Convertible Preferred Stock), the
Depositary shall endeavor insofar as practicable to vote or cause to be voted,
in accordance with the instructions set forth in such requests, the maximum
number of whole shares of Convertible Preferred Stock represented by the
Depositary Shares evidenced by all Receipts as to which any particular voting
instructions are received. The Company hereby agrees to take all action which
may be deemed necessary by the Depositary in order to enable the Depositary to
vote such Convertible Preferred Stock or cause such Convertible Preferred Stock
to be voted. In the absence of specific instructions from the holder of a
Receipt, the Depositary will abstain from voting (but, at its discretion, not
from appearing at any meeting with respect to such Convertible Preferred Stock
unless directed to the contrary by the holders of all the Receipts) to the
extent of the Convertible Preferred Stock represented by the Depositary Shares
evidenced by such Receipt. Any voting instructions given hereunder shall be
revocable to the same extent as a proxy granted with respect to the Convertible
Preferred Stock represented thereby.
SECTION 4.07. Changes Affecting Deposited Securities and
Reclassifications, Recapitalizations, etc. Upon any change in par or stated
value or liquidation preference, split-up, combination or any other
reclassification of the Convertible Preferred Stock, or upon any
recapitalization, reorganization, merger, amalgamation or consolidation
affecting the Company or to which it is a party, the Depositary may in its
discretion with the approval of, and shall upon the instructions of,
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the Company, and (in either case) in such manner as the Depositary may deem
equitable, (i) make such adjustments as are certified by the Company in (x) the
fraction of an interest represented by one Depositary Share in one share of
Convertible Preferred Stock and (y) the ratio of the redemption price per
Depositary Share to the redemption price of a share of Convertible Preferred
Stock, in each case as may be necessary fully to reflect the effects of such
change in par or stated value or liquidation preference, split-up, combination
or other reclassification of Convertible Preferred Stock, or of such
recapitalization, reorganization, merger, amalgamation or consolidation and (ii)
treat any securities which shall be received by the Depositary in exchange for
or upon conversion of or in respect of the Convertible Preferred Stock as new
deposited securities so received in exchange for or upon conversion or in
respect of such Convertible Preferred Stock. In any such case, the Depositary
may in its discretion, with the approval of the Company, execute and deliver
additional Receipts, or may call for the surrender of all outstanding Receipts
to be exchanged for new Receipts specifically describing such new deposited
securities. Anything to the contrary herein notwithstanding, holders of Receipts
shall have the right from and after the effective date of any such change in par
or stated value or liquidation preference, split-up, combination or other
reclassification of the Convertible Preferred Stock or any such
recapitalization, reorganization, merger, amalgamation or consolidation to
surrender such Receipts to the Depositary with instructions to convert, exchange
or surrender the Convertible Preferred Stock represented thereby only into or
for, as the case may be, the kind and amount of shares of stock and other
securities and property and cash into which the Convertible Preferred Stock
represented by such Receipts might have been converted or for which such
Convertible Preferred Stock might have been exchanged or surrendered immediately
prior to the effective date of such transaction.
SECTION 4.08. Inspection of Reports. The Depositary shall transmit
to the record holders of Receipts, at the addresses of such record holders as
set forth on the books of the Depositary, and shall make available for
inspection by holders of Receipts at the Depositary's office, and at such other
places as it may from time to time deem advisable, any reports and
communications received from the Company which are received by the Depositary as
the holder of Convertible Preferred Stock. The Registrar for the Depositary
Shares
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will keep books for the transfer of the Depositary Shares. At all reasonable
times such books will be open for inspection by holders of the Depositary Shares
to the same extent as a record holder of the shares of Convertible Preferred
Stock may inspect books for the transfer thereof.
SECTION 4.09. Lists of Receipt Holders. Promptly upon request from
time to time by the Company, the Depositary shall furnish to it a list, as of a
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.
ARTICLE V
The Depositary, the Depositary's Agents,
the Registrar and the Company
SECTION 5.01. Maintenance of Offices, Agencies and Transfer Books by
the Depositary; Registrar. Upon execution of this Deposit Agreement and until
termination of this Deposit Agreement in accordance with its terms, the
Depositary shall maintain at the Depositary's Office, facilities for the
execution and delivery, registration and registration of transfer, surrender and
exchange of Receipts, and at the offices of the Depositary's Agents, if any,
facilities for the delivery, registration of transfer, surrender and exchange of
Receipts, all in accordance with the provisions of this Deposit Agreement.
The Depositary shall keep books at the Depositary's Office for the
registration and registration of transfer of Receipts, which books at all
reasonable times shall be open for inspection by the record holders of Receipts;
provided, that any such 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 such books, at any time or from time to
time, when deemed expedient by it in connection with the performance of its
duties hereunder.
The Depositary may, with the approval of the Company, appoint a
Registrar for registration of the Receipts or the Depositary Shares evidenced
thereby. If the Receipts or the Depositary Shares evidenced thereby
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or the Convertible Preferred Stock represented by such Depositary Shares shall
be listed on the Nasdaq National Market, the Depositary will appoint a Registrar
(acceptable to the Company) for registration of such Receipts or Depositary
Shares in accordance with any requirements of the Nasdaq National Market. Such
Registrar (which may be the Depositary if so permitted by the requirements of
the Nasdaq National Market) may be removed and a substitute registrar appointed
by the Depositary upon the request or with the approval of the Company. If the
Receipts, such Depositary Shares or such Convertible Preferred Stock are listed
on one or more stock exchanges or other automated quotation systems, 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 Convertible Preferred Stock as may be
required by law or applicable stock exchange or automated quotation system
regulation.
SECTION 5.02. 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, the Registrar or the Company shall incur any
liability to any holder of any Receipt if by reason of any provision of any
present or future law, or regulation thereunder, of the United States of America
or of any other governmental authority or, in the case of the Depositary, the
Depositary's Agent or the Registrar, by reason of any provision, present or
future, of the Company's Restated Certificate of Incorporation (including the
Certificate) or by reason of any act of God or war or other circumstance beyond
the control of the relevant party, the Depositary, the Depositary's Agent, the
Registrar 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, any Registrar or the Company incur any
liability to any 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 case of any such exercise or
failure to exercise discretion not caused as aforesaid, if caused by the
negligence or willful misconduct of the party charged with such exercise or
failure to exercise.
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SECTION 5.03. Obligations of the Depositary, the Depositary's
Agents, the Registrar and the Company. None of the Depositary, any Depositary's
Agent, the Registrar or the Company assumes any obligation or shall be subject
to any liability under this Deposit Agreement to holders of Receipts other than
for its gross negligence or willful misconduct and each of them agrees to use
its best judgment and good faith in the performance of such duties as are
specifically set forth in this Deposit Agreement and shall perform such duties
and otherwise act hereunder on behalf of the holders of Depositary Shares.
None of the Depositary, any Depositary's Agent, the Registrar or the
Company shall be under any obligation to appear in, prosecute or defend any
action, suit or other proceeding in respect of the Convertible Preferred 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, any Registrar or the
Company shall be liable for any action or any failure to act by it in good faith
reliance upon the written advice of legal counsel or accountants, or information
from any person presenting Convertible Preferred Stock for deposit, any holder
of a Receipt or any other person believed by it in good faith to be competent to
give such information. The Depositary, any Depositary's Agent, the Registrar and
the Company may each rely and shall each be protected in acting upon any written
notice, request, direction or other document believed by it to in good faith 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 Convertible 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. The Depositary undertakes, and the Registrar shall
be required to undertake, to perform such duties and only such duties as are
specifically set forth in this Agreement, and no implied covenants or
obligations shall be read into this Agreement against the Depositary or the
Registrar. The Depositary will be liable to the Company for any liability which
may arise out of acts performed or omitted by the Depositary or the Depositary's
Agents due to its or their gross negligence or willful misconduct.
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The Depositary, the Depositary's Agents, and any Registrar may own and deal in
any class of securities of the Company and its affiliates and in Receipts. The
Depositary may also act as transfer agent or registrar of any of the securities
of the Company and its affiliates.
SECTION 5.04. 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, 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 Convertible 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
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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 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 5.05. Corporate Notices and Reports. The Company agrees that
it will transmit to the record holders of Receipts, in each case at the
addresses furnished to it pursuant to Section 4.08, all notices and reports
(including without limitation financial statements) required by law, by the
rules of any national securities exchange upon which the Convertible Preferred
Stock, the Depositary Shares or the Receipts are listed or by the Company's
Restated Certificate of Incorporation (including the Certificate) to be
furnished by the Company to holders of Convertible Preferred Stock. Such
transmission will be at the Company's expense and the Company will provide the
Depositary with such number of copies of such documents as the Depositary may
reasonably request for such purpose. In addition, the Depositary will transmit
to the holders of Depositary Shares (at Company expense) such other documents as
may be requested by the Company. The Company further agrees that it will
promptly notify the Depositary in writing of any change in the conversion rate
and conversion price in respect of the Convertible Preferred Stock.
SECTION 5.06. Indemnification by the Company. The Company shall
indemnify the Depositary, any Depositary's Agent and any Registrar against, and
hold each of them harmless from, any loss, liability or expense (including the
costs and expenses of defending itself and reasonable counsel fees) which may
arise out of (a) acts performed or omitted in connection with this Deposit
Agreement and the Receipts (i) by the Depositary, the Registrar or any of their
respective agents (including any Depositary's Agent), except for any liability
arising out of negligence 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 Depositary Shares or the
Convertible Preferred Stock pursuant to the provisions hereof. The obligations
of the
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Company set forth in this Section 5.06 shall survive any succession of any
Depositary, Registrar or Depositary's Agent.
SECTION 5.07. Charges and Expenses. The Company shall pay all
transfer and other taxes and governmental charges arising solely from the
existence of the depositary arrangements hereunder. The Company shall pay all
charges of the Depositary in connection with the initial deposit of the
Convertible Preferred Stock and the initial issuance of the Depositary Shares,
redemption of the Convertible Preferred Stock at the option of the Company and
all withdrawals of shares of the Convertible Preferred Stock by owners of
Depositary Shares. All other transfer and other taxes and governmental charges
shall be at the expense of holders of Depositary Shares. If, at the request of a
holder of Receipts, the Depositary incurs charges or expenses for which it is
not otherwise liable hereunder, such holder will be liable for such charges and
expenses. All other charges and expenses of the Depositary and any Depositary's
Agent hereunder and of the Registrar (including, in each case, reasonable fees
and expenses of counsel) incident to the performance of their respective
obligations hereunder will be paid upon consultation and agreement between the
Depositary and the Company as to the amount and nature of such charges and
expenses. The Depositary shall present its statement for charges and expenses to
the Company once every three months or at such other intervals as the Company
and the Depositary may agree.
SECTION 5.08. Tax Compliance. (a) The Depositary, on its own behalf
and on behalf of the Company will comply with all applicable certification,
information reporting and withholding (including "backup" withholding)
requirements imposed by applicable tax laws, regulations or administrative
practice with respect to (i) any payments made with respect to the Depositary
Shares or (ii) the issuance, delivery, holding, transfer, redemption or exercise
of rights under the Depositary Receipts or the Depositary Shares. Such
compliance shall include, without limitation, the preparation and timely filing
of required returns and the timely payment of all amounts required to be
withheld to the appropriate taxing authority or its designated agent.
(b) The Depositary shall comply with any direction received from the
Company with respect to the
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application of such requirements to particular payments or holders or in other
particular circumstances, and may for purposes of this Agreement rely on any
such direction in accordance with the provisions of Section 5.03 hereof.
(c) The Depositary shall maintain all appropriate records
documenting compliance with such requirements, and shall make such records
available on request to the Company or to its authorized representatives.
SECTION 5.09. Deposit of Convertible Preferred Stock by the Company.
The Company agrees with the Depositary that neither the Company nor any company
controlled by the Company will at any time deposit any Convertible Preferred
Stock if such Convertible Preferred Stock is required to be registered under the
provisions of the Securities Act of 1933 unless a registration statement is in
effect as to such Convertible Preferred Stock.
ARTICLE VI
Amendment and Termination
SECTION 6.01. Amendment. The form of the Receipts and any provisions
of this Deposit Agreement may at any time and from time to time be amended by
agreement between the Company and the Depositary in any respect which they may
deem necessary or desirable; provided, however, that no such amendment (other
than any change in the fees of any Depositary, Registrar or Transfer Agent)
which shall materially and adversely alter the rights of the holders of Receipts
shall be effective unless such amendment shall have been approved by the holders
of Receipts evidencing at least 66 2/3% of the Depositary Shares then
outstanding. Every holder of an outstanding Receipt at the time any such
amendment becomes effective, or any transferee of such holder shall be deemed,
by continuing to hold such Receipt, or by reason of the acquisition thereof, to
consent and agree to such amendment and to be bound by the Deposit Agreement as
amended thereby. In no event shall any amendment impair the right, subject to
the applicable provisions hereof, of any owner of Depositary Shares to withdraw
the Convertible Preferred Stock represented by the Depositary Shares or to
convert the shares of Convertible Preferred Stock represented thereby into
Common Stock, except as
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provided in the Authorizing Resolutions or in order to comply with mandatory
provisions of applicable law.
SECTION 6.02. Termination. This Agreement may be terminated by the
Company or the Depositary only after (i) all outstanding Depositary Shares shall
have been redeemed pursuant to Section 2.03 or (ii) there shall have been made a
final distribution in respect of the Convertible Preferred Stock in connection
with any liquidation, dissolution or winding up of the Company and such
distributions shall have been distributed to the holders of Receipts evidencing
the Depositary Shares pursuant to Section 4.01 or 4.02, as applicable.
Upon the termination of this Deposit Agreement, the Company shall be
discharged from all obligations under this Deposit Agreement except for its
obligations to the Depositary, any Depositary's Agent and any Registrar under
Sections 5.06 and 5.07.
SECTION 6.03. Consents. Consents of holders of Depositary Shares
required by this Article VI may be evidenced by one or more instruments signed
by such holder or by his agent duly appointed in writing, and shall be effective
when delivered to the Depositary. Proof of execution of any such instrument or
of a writing appointing any such agent shall be sufficient for any purpose of
this Deposit Agreement and conclusive in favor of the Depositary, the Registrar
and the Company, if made in the manner herein provided.
The execution of any proxy, consent or other instrument by the
holder of Depositary Shares or his agent or proxy shall be revocable, except as
otherwise specifically provided, and be deemed sufficient and conclusive for all
purposes of this Deposit Agreement if (a) the Depositary, Registrar or Company,
as the case may be, shall have mailed or delivered to the holder at his address
as shown on the books of the Depositary such proxy, consent or other instrument,
(b) the proxy, consent or other instrument shall have been returned to the
Depositary, Registrar or Company, as the case may be, bearing a signature
purporting and reasonably appearing to be that of the holder, his agent or
proxy, and (c) the person receiving the executed proxy, consent or other
instrument shall have no actual knowledge or notice of any irregularity or of
any fact or circumstance, which, if substantiated, would impair the validity of
such proxy, consent or other instrument. The matters referred to in clauses (a),
(b) and (c) above may be evidenced by
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a certificate of the Depositary, Registrar or Company, as the case may be.
The ownership of Depositary Shares shall be proved by the books of
the Depositary or, if a Registrar for Depositary Shares (other than the
Depositary) shall have been appointed, the Registrar or by a certificate of the
Depositary or Registrar, as applicable.
The Depositary shall not be bound to recognize any person as a
holder unless and until his title to the Depositary Shares held by him is proved
in the manner provided herein.
Any such consent of the holder of any Depositary Shares shall bind
every future holder of the same Depositary Shares including the holder of every
Depositary Shares issued upon the registration of transfer thereof or in
exchange therefor or in lieu thereof, whether or not notation of such consent is
made upon any such Depositary Shares.
ARTICLE VII
Miscellaneous
SECTION 7.01. Counterparts. This Deposit Agreement may be executed
in any number of counterparts, and by each of the parties hereto on separate
counterparts, each of which counterparts, when so executed and delivered, shall
be deemed an original, but all such counterparts taken together shall constitute
one and the same instrument.
SECTION 7.02. Exclusive Benefit of Parties. This Deposit Agreement
is for the exclusive benefit of the parties hereto, and their respective
successors hereunder, and shall not be deemed to give any legal or equitable
right, remedy or claim to any other person whatsoever.
SECTION 7.03. Invalidity of Provisions. 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.
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SECTION 7.04. Notices. Any and all notices to be given to the
Company hereunder or under the Receipts shall be in writing and shall be deemed
to have been duly given if personally delivered or sent by mail or telegram,
telex or telecopier confirmed by letter, addressed to the Company at 234
Copeland Street, Quincy, MA 02169, fax 617-786-4013 to the attention of the
Office of the Secretary, or at any other address of which the Company shall have
notified the Depositary in writing, with a copy to Hale and Dorr LLP, 60 State
Street, Boston, MA 02109, fax 617-526-5000, attention: Jeffrey N. Carp, Esq.
Any and all notices to be given to the Depositary hereunder or under
the Receipts shall be in writing and shall be deemed to have been duly given if
personally delivered or sent by mail or by telegram, telex or telecopier
confirmed by letter, addressed to the Depositary at the Depositary's Office, at
40 Wall Street, New York, NY 10005, fax 718-236-4588, attention: Executive Vice
President or at any other address of which the Depositary shall have notified
the Company and the record holders of the Receipts 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, telex or
telecopier confirmed by letter, addressed to such record holder at the address
of such record holder as it appears on the books of the Depositary, or if such
holder shall have filed with the Depositary a written request that notices
intended for such holder be mailed to some other address, at the address
designated in such request.
Delivery of a notice sent by mail or by telegram, telex or
telecopier shall be deemed to be effected at the time when a duly addressed
letter containing the same (or a confirmation thereof in the case of a telegram,
telex or telecopier message) is deposited, postage prepaid, in a post office
letter box. The Depositary or the Company however, act upon any telegram, telex
or telecopier message received by it from the other or from any holder of a
Receipt, notwithstanding that such telegram, telex or telecopier message shall
not subsequently be confirmed by letter or as aforesaid.
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SECTION 7.05. Depositary's Agents. The Depositary may from time to
time appoint Depositary's Agents 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
Agent. The Depositary will notify the Company of any such action.
SECTION 7.06. Holders of Receipts Are Parties. The holders of
Receipts from time to time shall be parties to this Deposit Agreement and shall
be bound by all of the terms and conditions hereof and of the Receipts by
acceptance of delivery thereof.
SECTION 7.07. Governing Law. This Deposit Agreement and the Receipts
and all rights hereunder and thereunder and provisions hereof and thereof shall
be governed by, and construed in accordance with, the laws of the State of New
York.
SECTION 7.08. Inspection of Deposit Agreement. Copies of this
Deposit Agreement shall be filed with the Depositary and the Depositary's Agents
and shall be open to inspection during business hours at the Depositary's Office
and the respective offices of the Depositary's Agents, if any, by any holder of
a Receipt.
SECTION 7.09. Headings. The headings of articles and sections in
this Deposit Agreement and in the form of the Receipt set forth in Exhibit A
hereto 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
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bearing upon the meaning or interpretation of any provision contained herein or
in the Receipts.
IN WITNESS WHEREOF, the Company and the Depositary have duly
executed this Agreement as of the day and year first above set forth, and all
holders of Receipts shall become parties hereto by and upon acceptance by them
of delivery of Receipts issued in accordance with the terms hereof.
NETWORK PLUS CORP.,
by
/s/ Joanne Callahan
-------------------
AMERICAN STOCK TRANSFER &
TRUST COMPANY
by
/s/[signature illegible]
------------------------
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Exhibit A
[FORM OF FACE OF RECEIPT]
TEMPORARY RECEIPT - Exchangeable for Definitive Engraved Receipt When Ready for
Delivery
NUMBER ____________________________________ DEPOSITARY SHARES
CERTIFICATE FOR TWO MILLION FIVE HUNDRED THOUSAND DEPOSITARY SHARES
TDR
DEPOSITARY RECEIPT FOR DEPOSITARY SHARES, REPRESENTING 1/10 OF A SHARE OF
7 1/2 Series A Cumulative Convertible Preferred Stock
($500 LIQUIDATION PREFERENCE) OF NETWORK PLUS CORP.
CUSIP 64122D605
INCORPORATED UNDER THE LAWS OF THE STATE OF DELAWARE SEE REVERSE
FOR
CERTAIN DEFINITIONS
AMERICAN STOCK TRANSFER & TRUST COMPANY, as Depositary (the "Depositary"),
hereby certifies that is the registered owner of
DEPOSITARY SHARES
("Depositary Shares"), each Depositary Share representing 1/10 of one share of
7 1/2% Series A Cumulative Convertible Preferred Stock ($500 Liquidation
Preference) (the "Convertible Preferred Stock"), of Network Plus Corp., 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 April 6, 2000 (the "Deposit Agreement"), among the Corporation, the
Depositary and the
A-1
<PAGE> 39
holders from time to time of the depositary receipts described therein. 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.
Dated: Countersigned:
[ ] [ ] [ ]
Depositary Registrar Transfer Agent
By
Authorized officer By Authorized Officer By Authorized officer
A-2
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[FORM OF REVERSE OF RECEIPT]
NETWORK PLUS CORP.
NETWORK PLUS CORP. WILL FURNISH WITHOUT CHARGE TO EACH RECEIPT HOLDER 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 OF 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
TRANSFER AGENT NAMED ON THE FACE OF THIS RECEIPT.
The following abbreviations when used in the inscription 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 tenants 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 common
____________ ______________________
(State)
Additional abbreviations may also be used though not in the above list
For value received, ______________________ hereby sells, assigns and
transfers unto
PLEASE INSERT SOCIAL SECURITY OR OTHER
OTHER IDENTIFYING NUMBER OF ASSIGNEE
_______________________________________________________________________________
_______________________________________________________________________________
PLEASE PRINT OR TYPEWRITE NAME AND ADDRESS INCLUDING POSTAL ZIP CODE OF ASSIGNEE
<PAGE> 41
_______________________________________________________________________________
_______________________________________________________________________________
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________________
_________________________
Name:
Title:
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 whatsoever.
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EXHIBIT B
[RESOLUTIONS]
B-1
