SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
--------
FORM 8-K
CURRENT REPORT
Pursuant to Section 13 or 15(d) of
the Securities Exchange Act of 1934
Date of Report: (Date of earliest event reported): March 21, 1994
Digital Equipment Corporation
________________________________________________________________
(Exact name of registrant as specified in its charter)
Massachusetts 0-5296 04-2226590
_______________________________________________________________________
(State or other jurisdiction of (Commission (I.R.S. Employer
incorporation or organization) File Number) Identification No.)
146 Main Street, Maynard, Massachusetts 01754
_______________________________________________________________
(Address of principal executive offices) (Zip Code)
Registrant's telephone number, including area code: (508) 493-5111
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(Former name or former address, if changed since last report)
-1-<PAGE>
Item 5. Other Information.
On March 22, 1994, the registrant filed with the Securities and
Exchange Commission pursuant to Rule 424(b)(2) a Prospectus Supplement
dated March 21, 1994 relating to the issuance of 16,000,000 Depositary
Shares representing 4,000,000 shares of Series A 8 7/8% Cumulative
Preferred Stock.
Item 7. Financial Statements and Exhibits.
Exhibit No.
4.1 Certificate of Designation filed with the Secretary of
State of the Commonwealth of Massachusetts on March 22,
1994.
4.2 Specimen Certificate of Series A 8 7/8% Cumulative
Preferred Stock of Digital Equipment Corporation.
4.3 Deposit Agreement relating to the Series A 8 7/8%
Cumulative Preferred Stock of Digital Equipment
Corporation.
-2-<PAGE>
SIGNATURE
Pursuant to the requirements of Section 12 of the Securities
Exchange Act of 1934, the registrant has duly caused this report to be
signed on its behalf by the undersigned, hereunto duly authorized.
DIGITAL EQUIPMENT CORPORATION
(Registrant)
By /s/ Gail S. Mann
Gail S. Mann
Assistant General Counsel, Clerk
and Secretary
Date: March 22, 1994
-3-<PAGE>
Exhibit 4.1
THE COMMONWEALTH OF MASSACHUSETTS
OFFICE OF THE MASSACHUSETTS SECRETARY OF STATE
MICHAEL JOSEPH CONNOLLY, Secretary FEDERAL IDENTIFICATION
NO. 042226590
ONE ASHBURTON PLACE, BOSTON, MASS. 02108
CERTIFICATE OF VOTE OF DIRECTORS ESTABLISHING
A SERIES OF A CLASS OF STOCK
General Laws, Chapter 156B, Section 26
We, Robert B. Palmer, President and Gail S. Mann, Clerk of
DIGITAL EQUIPMENT CORPORATION
located at 146 Main Street, Maynard, Massachusetts 01754-1499
do hereby certify that at a meeting of the directors of the corporation
held on January 20, 1994, the following vote establishing and
designating a series of a class of stock and determining the relative
rights and preferences thereof was duly adopted and that pursuant to the
unanimous written consent of a duly authorized committee of the directors
of the corporation on March 21, 1994, the following votes establishing and
designating a series of a class of stock and determining the relative
rights and preferences thereof were duly adopted:
VOTED: That, subject to the limitations set
forth in these votes, the Board of
Directors deems it advisable and in the
best interests of the Corporation for the
Corporation to be able to issue and sell
from time to time securities (the
"Securities") consisting of debt
securities (the "Debt Securities"), which
may be either senior debt securities (the
"Senior Debt Securities") or subordinated
debt securities (the "Subordinated Debt
Securities"), preferred stock of the
Corporation, par value $1.00 per share
(the "Preferred Stock), depositary shares
(the "Depositary Shares") and warrants to
purchase Debt Securities or equity<PAGE>
securities of or owned by the Corporation
(the "Warrants") pursuant to a
Registration Statement on Form S-3 under
Rule 415 of the Securities Act of 1933,
as amended (the "Act"), covering the
registration of Securities at an
aggregate offering price of
$1,000,000,000 (One Billion Dollars); and
further
VOTED: That the Board of Directors hereby
authorizes the Corporation to issue and
sell up to an aggregate of $1,000,000,000
(One Billion Dollars) of the Securities
on such terms and conditions as shall be
determined by the Committee (as defined
in and established in the immediately
succeeding vote); and further
VOTED: That the Board of Directors hereby
designates and appoints a committee, of
which Robert B. Palmer, the President and
Chief Executive Officer and a director of
the Corporation, shall be the sole member
(the "Committee"), which shall have the
full power of the Board of Directors in
all matters relating to the Securities,
subject to the limitations set forth in
these votes; and further
VOTED: That, subject to the limitations set
forth in these votes, the Committee may
at any time cause the Corporation to
effect one or more issues and sales of
Preferred Stock and Depositary Shares
(collectively, the "Equity Securities")
and, in connection with any such issue,
determine, approve or appoint, as the
case may be:
(a) the designations, preferences and
limitations, if any, of the Equity
Securities;
(b) the dividend rights, if any, relating
to any such Equity Securities;
(c) the redemption rights, if any, of the
Corporation and of the holders of such
Equity Securities and related redemption
prices and any limitations on such
redemption;
(d) the rights upon liquidation,<PAGE>
dissolution or winding up of the
Corporation;
(e) the conversion rights, if any,
relating to any Equity Securities,
related conversion rates and formulae
which may be used to adjust such
conversion rates and the reservation of
any shares of common stock of the
Corporation to be reserved for issuance
upon exercise of such conversion rights;
(f) the sinking fund, if any, to be
established with respect to any Equity
Securities, and related redemption
prices;
(g) the voting rights, if any, provided
that the holders of shares of Equity
Securities will not be entitled to more
than one vote per share when voting as a
class with the holders of shares of
Common Stock of the Corporation;
(h) certificates of designation for
filing with the Secretary of State of the
Commonwealth of Massachusetts setting
forth the designations, preferences and
limitations of any series of Preferred
Stock;
(i) the price and other terms and
conditions on which the Equity Securities
may be sold;
(j) the option to offer Depositary Shares
rather than shares of Preferred Stock and
the applicable fraction of a share of a
specified series of Preferred Stock
represented by a Depositary Share and
related dividend, voting, redemption,
conversion and liquidation rights;
(k) the form of stock certificate to be
used to represent the shares of Preferred
Stock;
(l) the form of depositary receipt to be
used to represent the Depositary Shares;
(m) the appointment of a transfer agent
and registrar with respect to the Equity
Securities, including the adoption of any
prescribed form of resolution or<PAGE>
resolutions required by any such transfer
agent or registrar;
(n) such other terms, conditions and
provisions as the Committee authorizing
the same shall deem necessary or
desirable;
and that the President, Vice President -
Finance or Treasurer be, and each of them
hereby is, authorized, in the name and on
behalf of the Corporation, to take any
and all such actions and to do, or
authorize to be done, all such things as
such officer may approve as being
necessary or desirable to effectuate the
purpose of these votes, in each such
case, the taking of such action or doing
of such thing to be conclusive evidence
of such approval and of the authority
therefor hereunder; and further
VOTED: That, as and when necessary to effect the
issuance of one or more series of
Preferred Stock under the proposed
Registration Statement on Form S-3 in the
form presented at this Meeting, an
amendment of the Restated Articles of
Organization of the Corporation
(including any such amendment effected
through the filing of a certificate of
designation or similar document with
respect to any such series of Preferred
Stock) setting forth the voting powers
attached to the Preferred Stock with
respect to the election of directors of
the Corporation, the following provision
is hereby adopted and approved in
substantially the following form:
In the event that the Corporation
shall have failed to declare and pay
or set apart for payment in full the
dividends accumulated on the
outstanding shares of the Preferred
Stock for any number of periodic
dividend payment periods as may be
specified by the Board of Directors or
duly constituted Committee thereof,
whether or not consecutive, and all
such preferred dividends remain unpaid
(a "Preferred Dividend Default"), the
Board of Directors shall take such
action as may be necessary, including,<PAGE>
without limitation, amending the
Corporation's By-laws, to increase the
number of directors of the Corporation
by two and the holders of outstanding
shares of the Preferred Stock, voting
together as a class with all other
series of preferred stock then
entitled to vote on the election of
such directors (each hereinafter
referred to as a "Preferred Stock
Director" and together the "Preferred
Stock Directors"), shall be entitled
to elect such two Preferred Stock
Directors until the full dividends
accumulated on all outstanding shares
of the Preferred Stock have been
declared and paid in full. Upon the
occurrence of a Preferred Dividend
Default, the Board of Directors shall
within 20 business days (any day other
than a day which is a Saturday, Sunday
or legal holiday on which banks are
open for business in Boston,
Massachusetts) of such default amend
the Corporation's By-laws to make
provision for the election of such
directors consistent with the terms
herein specified and call a special
meeting of the holders of shares of
the Preferred Stock and all other
holders of a series of preferred stock
who are then entitled to participate
in the election of such directors for
the purpose of electing the additional
directors provided by the foregoing
provisions; provided that, in lieu of
________
holding such meeting, the holders of
record of all of the outstanding
shares of the Preferred Stock and all
other series of preferred stock who
are then entitled to participate in
the election of such directors may by
action taken by written consent as
permitted by law and these Restated
Articles of Organization and the
By-Laws of the Corporation, elect such
Preferred Stock Directors. If and
when all accumulated dividends on the
shares of the Preferred Stock have
been declared and paid or set aside
for payment in full, the holders of
shares of the Preferred Stock shall be
divested of the special voting rights
provided by this paragraph, subject to<PAGE>
revesting in the event of each and
every subsequent Preferred Dividend
Default. Upon termination of such
special voting rights attributable to
all holders of shares of the Preferred
Stock and any other series of
preferred stock, the term of office of
each Preferred Stock Director pursuant
to such special voting rights shall
forthwith terminate and the Board of
Directors shall take such action as
may be necessary, including without
limitation, amending the Corporation's
By-Laws, to reduce the number of
directors by two, subject always to
its obligation to increase the number
of directors pursuant to the foregoing
provisions in case of a future
Preferred Dividend Default. Any
Preferred Stock Director may be
removed at any time with or without
cause by, and shall not be removed
otherwise than by, the vote of the
holders of record of a majority of the
outstanding shares of the Preferred
Stock and all other series of
preferred stock who were entitled to
participate in such Preferred Stock
Director's election, voting as a
separate class, at a meeting called
for such purpose or by unanimous
written consent as permitted by law
and these Restated Articles of
Organization and the By-laws of the
Corporation. So long as a Preferred
Dividend Default shall continue, any
vacancy in the office of a Preferred
Stock Director may be filled by
written consent of the Preferred Stock
Director remaining in office or, if
none remains in office, by vote of the
holders of record of a majority of the
outstanding shares of the Preferred
Stock and all other series of
preferred stock who are then entitled
to participate in the election of such
Preferred Stock Directors as provided
above. The Preferred Stock Directors
shall each be entitled to one vote per
director on any matter.
VOTED: That pursuant to the authority expressly
granted to and vested in this Committee of
the Board of Directors of the Corporation,<PAGE>
the Committee hereby creates a series of
the Corporation's capital stock consisting
of 4,000,000 shares of the Corporation's
Preferred Stock, par value $1.00 per
share, which is hereby designated as the
Series A 8 7/8% Cumulative Preferred Stock
(the "Series A Preferred Stock"), and
hereby determines that the preferences,
voting powers, qualifications and special
and relative rights and privileges of such
Series A Preferred Stock shall be as set
forth in Exhibit A attached to this
_________
consent.
VOTED: That pursuant to the preceding votes the
President and the Secretary and Clerk are
hereby authorized to execute and file with
the Secretary of State of The Commonwealth
of Massachusetts the Certificate of
Designation substantially in the form
attached to this consent.
EXHIBIT A
SERIES A 8 7/8% CUMULATIVE PREFERRED STOCK
1. Designation, Number and Liquidation Preference. A
series of preferred stock is hereby designated "Series A 8 7/8%
Cumulative Preferred Stock". The number of Shares constituting
the Series A 8 7/8% Cumulative Preferred Stock is 4,000,000.
Shares of the Series A 8 7/8% Cumulative Preferred Stock shall
have a par value of $1.00 and a liquidation preference of $100
per share.
2. Dividend Rate.
(a) Shares of the Series A 8 7/8% Cumulative Preferred
Stock shall be entitled to receive dividends at a fixed annual
rate of $8.875 per share. Such dividends shall be cumulative from
the date of original issue of such shares and shall be payable,
out of funds legally available therefor, when and as declared by
the Board of Directors, quarterly in arrears on January 15,
April 15, July 15 and October 15 of each year, commencing on
April 15, 1994. If a dividend payment date is not a business
day, dividends on the Series A 8 7/8 % Preferred Stock will be paid
on the immediately succeeding business day, without interest.
Each such dividend shall be paid to the holders of record of
shares of the Series A 8 7/8% Cumulative Preferred Stock as they
appear on the stock register on the applicable record date, which
shall be the 15th day prior to the payment date thereof or such
other date designated by the Board of Directors of the
Corporation (or an authorized committee thereof) for the payment
of dividends that is not more than thirty (30) nor less than ten<PAGE>
(10) days prior to such dividend payment date. Dividends on
account of arrears for any past dividend periods may be declared
and paid at any time, without reference to any regular dividend
payment date, to holders of record on such date as may be fixed
by the Board of Directors which shall not exceed 30 days
preceding such dividend payment date thereof.
(b) No dividends shall be declared or paid or set apart
for payment on any shares of any class or classes of stock of the
Corporation or any series thereof ranking, as to dividends, on a
parity with or junior to the Series A 8 7/8% Cumulative Preferred
Stock for any period unless full cumulative dividends have been
or contemporaneously are declared and paid, or declared and a sum
sufficient for the payment thereof set apart for such payment, on
the Series A 8 7/8% Cumulative Preferred Stock for all dividend
payment periods terminating on or prior to the date of payment of
such full cumulative dividends. When dividends are not paid in
full, as aforesaid, upon the shares of the Series A 8 7/8%
Cumulative Preferred Stock and any other shares of any class or
classes of stock or series thereof ranking on a parity as to
dividends with the Series A 8 7/8% Cumulative Preferred Stock, all
dividends declared upon shares of the Series A 8 7/8% Cumulative
Preferred Stock and any other shares of such class or classes or
series thereof ranking on a parity as to dividends with the
Series A 8 7/8% Cumulative Preferred Stock shall be declared pro
rata so that the amount of dividends declared per share on the
Series A 8 7/8% Cumulative Preferred Stock and such other shares
shall in all cases bear to each other the same ratio that accrued
dividends per share on the shares of the Series A 8 7/8%
Cumulative Preferred Stock and such other shares bear to each
other. The Corporation's 8 7/8% Cumulative Convertible Preferred
Stock, Series A, ranks, as to dividends, on a parity with the
Series A 8 7/8% Cumulative Preferred Stock. Holders of shares of
the Series A 8 7/8% Cumulative Preferred Stock shall not be
entitled to any dividend, whether payable in cash, property or
stock, in excess of full cumulative dividends, as herein
provided, on the Series A 8 7/8% Cumulative Preferred Stock. No
interest, or sum of money in lieu of interest, shall be payable
in respect of any dividend payment or payments on the Series A
8 7/8% Cumulative Preferred Stock which may be in arrears.
(c) So long as any shares of the Series A 8 7/8%
Cumulative Preferred Stock are outstanding, no dividend (other
than a dividend in capital stock or in any other shares ranking
junior to the Series A 8 7/8% Cumulative Preferred Stock as to
dividends and upon Liquidation, as defined in section 6(a), and
other than as provided in paragraph (b) of this section 2) shall
be declared or paid or set aside for payment or other
distribution declared or made upon the shares of capital stock or
upon any other shares ranking junior to or on a parity with the
Series A 8 7/8% Cumulative Preferred Stock as to dividends or upon
Liquidation, nor shall any of the shares of capital stock or any
other shares of the Corporation ranking junior to or on a parity
with the Series A 8 7/8% Cumulative Preferred Stock as to<PAGE>
dividends or upon Liquidation be redeemed, purchased or otherwise
acquired for any consideration (or any moneys be paid to or made
available for a sinking fund for the redemption of any such
shares) by the Corporation (except by conversion into or exchange
for shares of the Corporation ranking junior to the Series A
8 7/8% Cumulative Preferred Stock as to dividends and upon
Liquidation and except for repurchases of shares of Common Stock
at cost by the Corporation under employee stock plans and
programs approved by the Board of Directors) unless, in each
case, the full cumulative dividends on all outstanding shares of
the Series A 8 7/8% Cumulative Preferred Stock shall have been or
contemporaneously are declared and paid, or declared and a sum
sufficient for payment thereof is set apart for payment, for all
past dividend payment periods.
(d) Dividends payable on the Series A 8 7/8% Cumulative
Preferred Stock for any period less than a full quarterly
dividend period, and for the dividend period beginning on the
date of issuance of the shares of the Series A 8 7/8% Cumulative
Preferred Stock, shall be computed on the basis of a 360-day year
consisting of twelve 30-day months. The amount of dividends
payable on shares of the Series A 8 7/8% Cumulative Preferred
Stock for each full quarterly dividend period shall be computed
by dividing by four the annual rate per share set forth above in
section 2(a).
3. Redemption.
(a) The shares of the Series A 8 7/8% Cumulative
Preferred Stock shall not be redeemable prior to April 1,
1999. On and after April 1, 1999, the Corporation, at its
option, may redeem shares of the Series A 8 7/8% Cumulative
Preferred Stock, out of funds legally available therefor, as a
whole or in part, at any time or from time to time, at a
redemption price per share of $100 plus, in each case, accrued
and unpaid dividends thereon to the date fixed for redemption.
(b) In the event that fewer than all the outstanding
shares of the Series A 8 7/8% Cumulative Preferred Stock are to be
redeemed, the number of shares to be redeemed shall be determined
by the Board of Directors and the shares to be redeemed shall be
determined by lot or pro rata as may be determined by the Board
of Directors or by any other method as may be determined by the
Board of Directors in its sole discretion to be equitable.
(c) In the event the Corporation shall redeem shares of
the Series A 8 7/8% Cumulative Preferred Stock, notice of such
redemption shall be given by first class mail, postage prepaid,
mailed not less than 35 nor more than 60 days prior to the
redemption date, to each holder of record of the shares to be
redeemed, at such holder's address as the same appears on the
stock register of the Depositary (as provided in section 10(c)
below). Each such mailed notice shall state: (1) the redemption
date; (2) the number of shares of the Series A 8 7/8% Cumulative<PAGE>
Preferred Stock to be redeemed and, if fewer than all the shares
held by such holder are to be redeemed, the number of such shares
to be redeemed from such holder; (3) the redemption price;
(4) the place or places where certificates for such shares are to
be surrendered for payment of the redemption price; and (5) that
dividends on the shares to be redeemed will cease to accrue on
such redemption date. No defect in the notice of redemption or
in the mailing thereof shall affect the validity of the
redemption proceedings, and the failure to give notice to any
holders of shares of the Series A 8 7/8% Cumulative Preferred
Stock to be so redeemed shall not affect the validity of the
notice given to the other holders of shares of the Series A 8 7/8%
Cumulative Preferred Stock to be so redeemed.
(d) Notice having been mailed as aforesaid, and the
redemption price (including any accrued and unpaid dividends to
the date fixed for redemption) having been paid or set aside for
payment, then, notwithstanding that the certificates evidencing
the shares of the Series A 8 7/8% Cumulative Preferred Stock shall
not have been surrendered, from and after the redemption date
dividends on the shares of the Series A 8 7/8% Cumulative
Preferred Stock so called for redemption shall cease to accrue,
and said shares shall no longer be deemed to be outstanding, and
all rights of the holders thereof as stockholders (including
dividend and voting rights) of the Corporation (except the right
to receive from the Corporation the redemption price) shall
cease. Upon surrender in accordance with said notice of the
certificates for any shares so redeemed (properly endorsed or
assigned for transfer, if the Board of Directors shall so require
and the notice shall so state), such shares shall be redeemed by
the Corporation at the redemption price aforesaid. In case fewer
than all the shares represented by any such certificate are
redeemed, a new certificate shall be issued representing the
unredeemed shares without cost to the holder thereof.
(e) Any shares of the Series A 8 7/8% Cumulative
Preferred Stock which shall at any time have been redeemed shall,
after such redemption, have the status of authorized but unissued
shares of Preferred Stock, without designation as to series until
such shares are once more designated as part of a particular
series by the Board of Directors (or an authorized committee
thereof).
(f) Notwithstanding the foregoing provisions of this
section 3, if any dividends on the Series A 8 7/8% Cumulative
Preferred Stock are in arrears, no shares of the Series A 8 7/8%
Cumulative Preferred Stock shall be redeemed unless all
outstanding shares of the Series A 8 7/8% Cumulative Preferred
Stock are simultaneously redeemed, and the Corporation shall not
purchase or otherwise acquire any shares of the Series A 8 7/8%
Cumulative Preferred Stock; provided, however, that the foregoing
shall not prevent the purchase or acquisition of shares of the
Series A 8 7/8% Cumulative Preferred Stock pursuant to a purchase
or exchange offer made on the same terms to holders of all<PAGE>
outstanding shares of the Series A 8 7/8% Cumulative Preferred
Stock.
4. Conversion. The holders of shares of the Series A 8 7/8%
Cumulative Preferred Stock shall not have any rights herein to
convert such shares into or exchange such shares for shares of
any other class or classes or of any other series of any class or
classes of stock of the Corporation.
5. Voting. The shares of the Series A 8 7/8% Cumulative
Preferred Stock shall not have any voting powers either general
or special, except as required by law and except that:
(a) So long as any of the shares of the Series A 8 7/8%
Cumulative Preferred Stock are outstanding, the consent of the
holders of at least two-thirds of all the shares of the Series A
8 7/8% Cumulative Preferred Stock at the time outstanding, voting
together as a class with all other Preferred Stock then
outstanding and affected in the same manner, given in person or
by proxy, by a vote at a meeting called for such purpose shall be
necessary for authorizing, effecting or validating the amendment,
alteration or repeal of any of the provisions of the Restated
Articles of Organization or of any certificate amendatory thereof
or supplemental thereto (including any certificate of designation
or any similar document relating to any series of preferred
stock) which would adversely affect the voting powers,
qualifications and preferences or special or relative rights of
the Series A 8 7/8% Cumulative Preferred Stock, including the
creation or authorization of any class of stock that ranks senior
to the Series A 8 7/8% Cumulative Preferred Stock with respect to
dividends or upon Liquidation. Any amendment or any vote or
action of the Board of Directors which would create or issue any
series of preferred stock out of the authorized shares of
preferred stock, or which would authorize, create or issue any
shares or class of stock (whether or not already authorized),
ranking junior to or on a parity with the Series A 8 7/8%
Cumulative Preferred Stock with respect to the payment of
dividends and upon any Liquidation, shall not be considered to
affect adversely the voting powers, qualifications and
preferences or special or relative rights of the outstanding
shares of the Series A 8 7/8% Cumulative Preferred Stock.
(b) In the event that the Corporation shall have failed
to declare and pay or set apart for payment in full the dividends
accumulated on the outstanding shares of the Series A 8 7/8%
Cumulative Preferred Stock for any six quarterly dividend payment
periods, whether or not consecutive, and all such preferred
dividends remain unpaid (a "Preferred Dividend Default"), the
Board of Directors shall take such action as may be necessary,
including, without limitation, amending the Corporation's
By-laws, to increase the number of directors of the Corporation
by two and the holders of outstanding shares of the Series A
8 7/8% Cumulative Preferred Stock, voting together as a class with
all other series of preferred stock then entitled to vote on the<PAGE>
election of such directors (each hereinafter referred to as a
"Preferred Stock Director" and together the "Preferred Stock
Directors"), shall be entitled to elect such two Preferred Stock
Directors until the full dividends accumulated on all outstanding
shares of the Series A 8 7/8% Cumulative Preferred Stock have been
declared and paid in full. Upon the occurrence of a Preferred
Dividend Default, the Board of Directors shall within twenty (20)
business days (any day, other than a day which is a Saturday,
Sunday or legal holiday, on which banks are open for business in
Boston, Massachusetts) after such default amend the Corporation's
By-laws to make provision for the election of such directors
consistent with the terms herein specified and call a special
meeting of the holders of shares of the Series A 8 7/8% Cumulative
Preferred Stock and all other holders of a series of preferred
stock who are then entitled to participate in the election of
such directors for the purpose of electing the additional
directors provided by the foregoing provisions; provided that, in
lieu of holding such meeting, the holders of record of all of the
outstanding shares of the Series A 8 7/8% Cumulative Preferred
Stock and all other series of preferred stock who are then
entitled to participate in the election of such directors may by
action taken by written consent as permitted by law and these
Restated Articles of Organization and the By-laws of the
Corporation, elect such Preferred Stock Directors. If and when
all accumulated dividends on the shares of the Series A 8 7/8%
Cumulative Preferred Stock have been declared and paid or set
aside for payment in full, the holders of shares of the Series A
8 7/8% Cumulative Preferred Stock shall be divested of the special
voting rights provided by this paragraph, subject to revesting in
the event of each and every subsequent Preferred Dividend
Default. Upon termination of such special voting rights
attributable to all holders of shares of the Series A 8 7/8%
Cumulative Preferred Stock and any other series of preferred
stock, the term of office of each Preferred Stock Director
pursuant to such special voting rights shall forthwith terminate
and the Board of Directors shall take such action as may be
necessary, including, without limitation, amending the
Corporation's By-laws, to reduce the number of directors by two,
subject always to its obligation to increase the number of
directors pursuant to the foregoing provisions in case of a
future Preferred Dividend Default. Any Preferred Stock Director
may be removed at any time with or without cause by, and shall
not be removed otherwise than by, the vote of the holders of
record of a majority of the outstanding shares of the Series A
8 7/8% Cumulative Preferred Stock and all other series of
preferred stock who were entitled to participate in such
Preferred Stock Director's election, voting as a separate class,
at a meeting called for such purpose or by unanimous written
consent as permitted by law and these Restated Articles of
Organization and the By-laws of the Corporation. So long as a
Preferred Dividend Default shall continue, any vacancy in the
office of a Preferred Stock Director may be filled by written
consent of the Preferred Stock Director remaining in office or,
if none remains in office, by vote of the holders of record of a<PAGE>
majority of the outstanding shares of the Series A 8 7/8%
Cumulative Preferred Stock and all other series of preferred
stock who are then entitled to participate in the election of
such Preferred Stock Directors as provided above. The Preferred
Stock Directors shall each be entitled to one vote per director
on any matter.
6. Liquidation Rights.
(a) Upon the dissolution, liquidation or winding up of
the affairs of the Corporation, whether voluntary or involuntary
(collectively, a "Liquidation"), after payment or provision for
payment has been made of the debts and other liabilities of the
Corporation and payment or provision for payment has been made on
all amounts required to be paid in respect of all outstanding
shares of any class or classes of stock of the Corporation or
series thereof ranking senior to the shares of the Series A 8 7/8%
Cumulative Preferred Stock, the holders of the shares of the
Series A 8 7/8% Cumulative Preferred Stock shall be entitled,
subject to paragraph (d) of this section 6, to receive out of the
assets of the Corporation, before any payment or distribution
shall be made on Common Stock or on any other class of stock
ranking junior to the Series A 8 7/8% Cumulative Preferred Stock
upon Liquidation, the amount of $100 per share, plus a sum equal
to all dividends (whether or not earned or declared) on such
shares accrued and unpaid thereon to the date of final
distribution.
(b) Neither the sale, transfer or lease of all or any
part of the property or business of the Corporation, nor the
merger or consolidation of the Corporation into or with any other
corporation or the merger or consolidation of any other
corporation into or with the Corporation, shall be deemed to be a
Liquidation for the purposes of this section 6.
(c) After the payment to the holders of the shares of
the Series A 8 7/8% Cumulative Preferred Stock of the full
preferential amounts provided for in this section 6, the holders
of the Series A 8 7/8% Cumulative Preferred Stock as such shall
have no right or claim to any of the remaining assets of the
Corporation and the shares of the Series A 8 7/8% Cumulative
Preferred Stock shall no longer be deemed to be outstanding or be
entitled to any other powers, preferences, qualifications or
special rights or privileges, including, without limitation,
voting rights, and such shares shall be surrendered for
cancellation to the Corporation.
(d) In the event the assets of the Corporation
available for distribution to the holders of shares of the
Series A 8 7/8% Cumulative Preferred Stock upon any Liquidation
shall be insufficient to pay in full all amounts to which such
holders are entitled pursuant to paragraph (a) of this section 6,
no such distribution shall be made on account of any shares of
any series of preferred stock ranking on a parity with the shares<PAGE>
of the Series A 8 7/8% Cumulative Preferred Stock upon such
Liquidation unless proportionate distributive amounts shall be
paid on account of the shares of the Series A 8 7/8% Cumulative
Preferred Stock, ratably, in proportion to the full distributable
amounts for which holders of all such parity shares are
respectively entitled upon such Liquidation.
7. Priority. Any shares of any class or classes of the
Corporation or series thereof shall be deemed to rank:
(a) prior or senior to the shares of the Series A 8 7/8%
Cumulative Preferred Stock, either as to dividends or upon
Liquidation, if the holders of such class or classes shall be
entitled to the receipt of dividends or of amounts distributable
upon Liquidation of the Corporation, in preference or priority to
the holders of shares of the Series A 8 7/8% Cumulative Preferred
Stock;
(b) on a parity with shares of the Series A 8 7/8%
Cumulative Preferred Stock, either as to dividends or upon
Liquidation, whether or not the dividend rates, dividend payment
dates or redemption or Liquidation prices per share or sinking
fund provisions, if any, are different from those of the Series A
8 7/8% Cumulative Preferred Stock, if the holders of such shares
shall be entitled to the receipt of dividends or of amounts
distributable upon Liquidation of the Corporation, in proportion
to their respective dividend rates or Liquidation prices, without
preference or priority, one over the other, as between the
holders of such shares and the holders of shares of the Series A
8 7/8% Cumulative Preferred Stock; and
(c) junior to shares of the Series A 8 7/8% Cumulative
Preferred Stock, either as to dividends or upon Liquidation, if
such class is Common Stock or if the holders of shares of the
Series A 8 7/8% Cumulative Preferred Stock shall be entitled to
receipt of dividends or of amounts distributable upon Liquidation
of the Corporation in preference or priority to the holders of
shares of such class or classes.
8. Sinking or Retirement Fund. The shares of the Series A
8 7/8% Cumulative Preferred Stock shall not be entitled to the
benefit of a sinking or retirement fund to be applied to the
purchase or redemption of such shares.
9. Distribution to Common Stock Holders. Distribution of
any of the Series A 8 7/8% Cumulative Preferred Stock or any other
series of preferred stock may, in the discretion of the Board of
Directors, be made to the holders of shares of Common Stock.
10. Miscellaneous.
(a) Subject to paragraph (c) of section 3 above, all
notices referred to herein shall be in writing, and all notices
hereunder shall be deemed to have been given upon the earlier of<PAGE>
receipt thereof or three business days after the mailing thereof
if sent by registered mail (unless first-class mail shall be
specifically permitted for such notice under the terms of these
Restated Articles of Organization) with postage prepaid,
addressed: if to the Corporation, to its offices at
111 Powdermill Road, Maynard, Massachusetts 01754 (Attention:
Office of the Corporate Secretary and Clerk), if to the
Depositary (as defined in paragraph (c) below), to such holder at
the address of such holder as listed in the stock book (which may
include the records of the Depositary if appropriate); or to such
other address as the Corporation or holder, as the case may be,
shall have designated by notice similarly given.
(b) In the event a holder of shares of the Series A
8 7/8% Cumulative Preferred Stock shall not by written notice
designate the name to whom payment upon redemption of any shares
of the Series A 8 7/8% Cumulative Preferred Stock should be made
or the address to which the certificate or certificates
representing such shares, or such payment, should be sent, the
Corporation shall be entitled to register such shares, and make
such payment, in the name of the holder of such shares as shown
on the records of the Corporation and to send the certificate or
certificates representing such shares, or such payment, to the
address of such holder shown on the records of the Corporation.
(c) Citibank, N.A. of New York, New York initially
shall be appointed the initial depositary (the "Depositary") for
the shares of the Series A 8 7/8% Cumulative Preferred Stock. The
Depositary shall act as transfer agent, registrar and dividend
disbursing agent for the shares of the Series A 8 7/8% Cumulative
Preferred Stock.
<PAGE>
IN WITNESS WHEREOF AND UNDER THE PENALTIES OF PERJURY, we have hereunto
signed our names this 22nd day of March in the year 1994.
/s/ Robert B. Palmer
- ------------------------------------------------------------, President
/s/ Gail S. Mann
- ------------------------------------------------------------, Clerk<PAGE>
THE COMMONWEALTH OF MASSACHUSETTS
Certificate of Vote of Directors Establishing
A Series of a Class of Stock
(General Laws, Chapter 156B, Section 26)
I hereby approve the within certificate and, the
filing fee in the amount of $100.00
having been paid, said certificate is hereby filed this
22nd day of March, 1994.
MICHAEL JOSEPH CONNOLLY
Secretary of State
TO BE FILLED IN BY CORPORATION
Photo Copy of Certificate To Be Sent
TO: Gail S. Mann, Esq.
Digital Equipment Corporation
111 Powdermill Road - MSO2-3/F13
Maynard, Massachusetts 01754-1499
Telephone (508) 493-2206 <PAGE>
Exhibit 4.2
[FRONT OF CERTIFICATE]
Organized under the Laws of Massachusetts
No. XXX XXX Shares
Digital Equipment Corporation
8 7/8% Cumulative Convertible Preferred Stock, Series A
THIS CERTIFIES THAT XXX is the owner of
XXX Shares of the Capital Stock of
DIGITAL EQUIPMENT CORPORATION
transferable only on the books of the Corporation by the holder hereof in
person or by Attorney upon surrender of the Certificate properly endorsed.
IN WITNESS WHEREOF, the said Corporation has caused this Certificate
to be signed by its duly authorized officers and its Corporate Seal to be
hereunto affixed this day of A.D. 19 .
- ------------------------- --------------------------
Vice President Treasurer
Par Value
SHARES $1.00 per share EACH
[SEAL]
<PAGE>
[BACK OF CERTIFICATE]
CERTIFICATE
FOR
XXX
SHARES
OF THE
CAPITAL STOCK
DIGITAL EQUIPMENT
CORPORATION
8 7/8% CUMULATIVE
CONVERTIBLE PREFERRED
STOCK, SERIES A
ISSUED TO
xxx
----------------------
date
xxx
----------------------
For Value Received xxx hereby sell, assign and transfer
xxx
unto -----------------------------------------------
- -------------------------------------------------- Shares
of the Capital Stock represented by the within Certificate,
and do hereby irrevocably constitute and appoint
xxx
- -------------------------------------------------- Attorney
to transfer the said Stock on the books of the within named
Corporation with full power of substitution in the premises.
Dated xxxxxxxxx 19xx
In presence of
xxx<PAGE>
--------------------------
xxx
- -----------------------------<PAGE>
Exhibit 4.3
DIGITAL EQUIPMENT CORPORATION
CITIBANK, N.A., as Depository
and
THE HOLDERS FROM TIME TO TIME OF
THE DEPOSITARY RECEIPTS DESCRIBED HEREIN.
Deposit Agreement
relating to
Series A 8 7/8% Cumulative Preferred Stock of
Digital Equipment Corporation
Dated as of March 1, 1994<PAGE>
TABLE OF CONTENTS
Page
PARTIES. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .1
RECITALS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .1
ARTICLE I
Definitions
"Business Day" . . . . . . . . . . . . . . . . . . . . . . . . . 1
"Certificate of Designation" . . . . . . . . . . . . . . . . . . 1
"Depositary Shares" . . . . . . . . . . . . . . . . . . . . . . 1
"Depositary's Agent" . . . . . . . . . . . . . . . . . . . . . . 1
"Depositary's Office". . . . . . . . . . . . . . . . . . . . . . 2
"Receipt". . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
"Record Holder". . . . . . . . . . . . . . . . . . . . . . . . . 2
"Registrar". . . . . . . . . . . . . . . . . . . . . . . . . . . 2
ARTICLE II
Form of Receipts, Deposit of Preferred Stock, Execution and
Delivery, Transfer, Surrender and Redemption of Receipts
SECTION 2.01. Form and Transfer of Receipts . . . . . . . . . . 2
SECTION 2.02. Deposit of Preferred Stock; Execution and
Delivery of Receipts in Respect Thereof. . . . . . . . . . . . 3
SECTION 2.03. Redemption of Preferred Stock . . . . . . . . . . 4
SECTION 2.04. Registration of Transfer of Receipts. . . . . . . 5
SECTION 2.05. Split-ups and Combinations of Receipts;
Surrender of Receipts and Withdrawal of Preferred Stock. . . . 5
SECTION 2.06. Limitations on Execution and Delivery,
Transfer, Surrender and Exchange of Receipts . . . . . . . . . 6
SECTION 2.07. Lost Receipts, etc. . . . . . . . . . . . . . . . 7
SECTION 2.08. Cancellation and Destruction of
Surrendered Receipts. . . . . . . . . . . . . . . . . . . . . . 7
SECTION 2.09. Prohibition Against Preferred Stock,
Depositary Shares or Receipt Lending. . . . . . . . . . . . . . 7
ARTICLE III
Certain Obligations of Holders of Receipts and the Company
SECTION 3.01. Filing Proofs, Certificates, and Other
Information . . . . . . . . . . . . . . . . . . . . . . . . . . 7
SECTION 3.02. Payment of Taxes or Other Governmental Charges. . 8
SECTION 3.03. Representation and Warranty as to Preferred Stock 8
SECTION 3.04. Covenant as to Receipts . . . . . . . . . . . . . 8
SECTION 3.5. Covenant as to Holidays . . . . . . . . . . . . . 8
ARTICLE IV
The Deposited Securities; Notices
SECTION 4.01. Cash Distributions. . . . . . . . . . . . . . . . 9<PAGE>
SECTION 4.02. Distributions Other than Cash, Rights,
Preferences or Privileges. . . . . . . . . . . . . . . . . . . 9
SECTION 4.03. Subscription Rights, Preferences or Privileges. . 10
SECTION 4.04. Notice of Dividends, etc.; Fixing of Record
Date for Record Holders of Receipts. . . . . . . . . . . . . . 11
SECTION 4.05. Voting Rights . . . . . . . . . . . . . . . . . . 11
SECTION 4.06. Changes Affecting Deposited Preferred Stock and
Reclassifications, Recapitalizations, etc. . . . . . . . . . . 11
SECTION 4.07. Inspection of Reports . . . . . . . . . . . . . . 12
SECTION 4.08. Lists of Receipt Holders. . . . . . . . . . . . . 12
SECTION 4.09. Tax and Regulatory Compliance . . . . . . . . . . 12
SECTION 4.10. Withholding . . . . . . . . . . . . . . . . . . . 13
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. . . . . . . . . . . . . . . . . . 13
SECTION 5.02. Prevention of or Delay in Performance by the
Depositary, the Depositary's Agents, the Registrar or the
Company . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
SECTION 5.03. Obligations of the Depositary, the Depositary's
Agents, the Registrar and the Company . . . . . . . . . . . . . 14
SECTION 5.04. Resignation and Removal of the Depositary;
Appointment of Successor Depositary . . . . . . . . . . . . . . 16
SECTION 5.06. Indemnification . . . . . . . . . . . . . . . . . 17
SECTION 5.07. Charges and Expenses. . . . . . . . . . . . . . . 17
ARTICLE VI
Amendment and Termination
SECTION 6.01. Amendment . . . . . . . . . . . . . . . . . . . . 17
SECTION 6.02. Termination . . . . . . . . . . . . . . . . . . . 18
ARTICLE VII
Miscellaneous
SECTION 7.01. Counterparts. . . . . . . . . . . . . . . . . . . 19
SECTION 7.02. Record Holders of Receipts are Parties;
Exclusive Benefit of Parties. . . . . . . . . . . . . . . . . . 19
SECTION 7.03. Invalidity of Provisions. . . . . . . . . . . . . 19
SECTION 7.04. Notices . . . . . . . . . . . . . . . . . . . . . 19
SECTION 7.05. Depositary's Agents . . . . . . . . . . . . . . . 20
SECTION 7.06. Governing Law . . . . . . . . . . . . . . . . . . 20
SECTION 7.07. Inspection of Agreement . . . . . . . . . . . . . 20
SECTION 7.08. Headings. . . . . . . . . . . . . . . . . . . . . 20
SECTION 7.09. Board of Directors. . . . . . . . . . . . . . . . 20
TESTIMONIUM. . . . . . . . . . . . . . . . . . . . . . . . . .
SIGNATURES . . . . . . . . . . . . . . . . . . . . . . . . . .
EXHIBIT A: Form of Depositary Receipt . . . . . . . . . . . . <PAGE>
DEPOSIT AGREEMENT dated as of March 1, 1994
among DIGITAL EQUIPMENT CORPORATION, a
Massachusetts corporation (the "Company"), CITIBANK, N.A.,
a national banking association, as depositary (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
Agreement, for the deposit of Series A 8 7/8% Cumulative Convertible
Preferred Stock, $1.00 par value, $100 liquidation preference per share
(the "Preferred Stock"), of the Company with the Depositary for the
purposes set forth in this Agreement and for the issuance hereunder of
Receipts (as defined in Article I) evidencing Depositary Shares (as defined
in Article I) representing an interest in the Preferred 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 Agreement;
NOW, THEREFORE, the parties hereto agree as follows:
ARTICLE I
Definitions
The following definitions shall for all purposes, unless otherwise
indicated or the context otherwise requires, apply to the respective terms
used in this Agreement:
"Business Day" means each Monday, Tuesday, Wednesday, Thursday and
Friday which is not a day on which banking institutions in the State of New
York or the Commonwealth of Massachusetts are authorized or obligated by
law or executive order to close.
"Certificate of Designation" means the Company's Certificate of Vote
of Directors Establishing a Series of a Class of Stock, setting forth the
voting powers, designation, preferences and other rights of the Preferred
Stock dated March 22, 1994, as filed with the Secretary of State of the
Commonwealth of Massachusetts pursuant to M.G.L. Chapter 156B, Section 26.
"Depositary Shares" shall mean Depositary Shares of the Company, each
representing one-fourth of a share of 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 office of the Depositary in the
Borough of Manhattan, New York, New York, at which at any particular time
its depositary receipt business shall be administered.
"Receipt" shall mean one of the depositary receipts issued hereunder,<PAGE>
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 that shall be
appointed to register ownership and transfers of Receipts as herein
provided.
ARTICLE II
Form of Receipts, Deposit of Preferred Stock, Execution and
Delivery, Transfer, Surrender and Redemption of Receipts
SECTION 2.01. Form and Transfer of Receipts. Definitive Receipts
shall be engraved or printed or lithographed on steel-engraved borders and
shall be substantially in the form set forth in Exhibit A hereto, with
appropriate insertions, modifications and omissions, as hereinafter
provided. Pending the preparation of definitive Receipts, the
Depositary, upon the written order of the Company or any Record Holder of
Preferred Stock, as the case may be, delivered for deposit in compliance
with Section 2.02, shall execute and deliver temporary Receipts which are
printed, lithographed, typewritten, mimeographed or otherwise substantially
of the tenor of the definitive Receipts in lieu of which they are issued
and with such appropriate insertions, omissions, substitutions and other
variations as the persons executing such Receipts may determine, as
evidenced by their execution of such Receipts. If temporary Receipts are
issued, the Company and the Depositary will cause definitive Receipts to be
prepared without unreasonable delay. After the preparation of definitive
Receipts, the temporary Receipts shall be exchangeable for definitive
Receipts upon surrender of the temporary Receipts at an office described in
the second last paragraph of Section 2.02, without charge to the Record
Holder. Upon surrender for cancellation of any one or more temporary
Receipts, the Depositary shall execute and deliver in exchange therefor
definitive Receipts representing the same number of Depositary
Shares as represented by the surrendered temporary Receipt or Receipts.
Such exchange shall be made at the Company's expense and without any charge
to the Record Holder thereof. Until so exchanged, the temporary Receipts
shall in all respects be entitled to the same benefits under this
Agreement, and with respect to the Preferred Stock deposited hereunder, as
definitive Receipts.
Receipts shall be executed by the Company and authenticated by the
Depositary by the manual signature of a duly authorized officer of the
Depositary; provided, however, that such signature may be a facsimile if a
Registrar for the Receipts (other than the Depositary) shall have been
appointed and such Receipts are countersigned by manual signature of a duly
authorized officer of the Registrar. No Receipt shall be entitled to any
benefits under this Agreement or be valid or obligatory for any purpose
unless it shall have been executed manually by a duly authorized officer of
the Depositary or, if a Registrar for the Receipts (other than the
Depositary) shall have been appointed, by manual or facsimile signature of
a duly authorized officer of the Depositary and countersigned manually by a<PAGE>
duly authorized officer of such Registrar. The Depositary or, if a
Registrar (other than the Depositary) shall have been appointed, the
Registrar shall record on its books each Receipt so signed and delivered as
hereinafter provided.
Except as the Depositary may otherwise determine, Receipts shall be in
denominations of any number of whole Depositary Shares. All Receipts shall
be dated the date of their issuance.
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 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 Preferred Stock, the
Depositary Shares or the Receipts may be listed or to conform with any
usage with respect thereto, or to indicate any special limitations or
restrictions to which any particular Receipts are subject.
Title to Depositary Shares 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 to any notice provided
for in this Agreement and for all other purposes.
SECTION 2.02. Deposit of Preferred Stock; Execution and Delivery of
Receipts in Respect Thereof. Subject to the terms and conditions of this
Agreement, the Company or any holder of Preferred Stock may from time to
time deposit shares of Preferred Stock under this Agreement by delivery to
the Depositary of (i) a certificate or certificates for the shares
of 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 (ii) all
certifications as may be required by the Depositary in accordance with the
provisions of this Agreement, and (iii) a written order of the Company
or such Record 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 shares of Preferred Stock.
Upon receipt by the Depositary of a certificate or certificates for
the shares of Preferred Stock deposited in accordance with the provisions
of this Section 2.02, together with the other documents required, and upon
registration of such shares of 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 Agreement, shall execute and deliver, to
or upon the order of the person or persons named in the written order
delivered to the Depositary referred to in the first paragraph of this
Section 2.02, a Receipt or Receipts for the number of whole Depositary
Shares representing such shares of Preferred Stock and registered in<PAGE>
such name or names as may be requested by such person or persons.
Certificates in the name of the Depositary for the deposited shares of
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.
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. In each case, delivery will be
made only upon payment by such person to the Depositary of all taxes and
other governmental charges and any fees payable in connection with such
deposit and the transfer of the deposited Preferred Stock.
The Company shall deliver to the Depositary from time to time such
quantities of receipts as the Depositary may request to enable the
Depositary to perform its obligations under this Agreement.
SECTION 2.03. Redemption of Preferred Stock. Whenever the Company
shall elect to redeem shares of Preferred Stock deposited hereunder in
accordance with the provisions of the Certificate of Designation, the
Company shall (unless otherwise agreed in writing with the Depositary) give
the Depositary not less than 35 nor more than 60 days notice of (a) the
date of such proposed redemption of the Preferred Stock, which notice shall
be accompanied by a certificate from the Company stating that such
redemption of the Preferred Stock is in accordance with the provisions of
the Certificate of Designation and (b) the number of such shares of
Preferred Stock held by the Depositary to be redeemed as hereinafter
provided. On the date of such redemption, provided that the Company shall
then have paid in full to the Depositary the redemption price of any
deposited shares of Preferred Stock to be redeemed, plus any accrued and
unpaid dividends thereon in accordance with the Certificate of Designation,
the Depositary shall redeem the number of Depositary Shares representing
such shares of Preferred Stock. The Depositary shall mail notice of such
redemption of the Preferred Stock and the proposed simultaneous redemption
of the number of Depositary Shares representing the deposited shares of
Preferred Stock to be redeemed, first-class postage prepaid, as promptly as
practicable upon receipt of such notice from the Company and not less than
30 and not more than 60 days prior to the date fixed for redemption of such
Preferred Stock and Depositary Shares (the "Redemption Date"), to the
Record Holders of the Receipts evidencing the Depositary Shares to be so
redeemed, at the addresses of such Record Holders as they appear on the
records of the Depositary; but neither failure to mail any such notice to
one or more such Record Holders nor any defect in any notice to one or more
such Record Holders shall affect the sufficiency of the proceedings
for redemption as to other Record Holders. Each such notice shall state:
(i) the Redemption Date; (ii) the number of Depositary Shares to be
redeemed and, if less than all the Depositary Shares held by any such
Record Holder are to be redeemed, the number of such Depositary Shares held
by such Record Holder to be so redeemed; (iii) the redemption price;
(iv) the place or places where Receipts evidencing Depositary Shares are to
be surrendered for payment of the redemption price; and (v) that dividends
in respect of the shares of Preferred Stock represented by the Depositary
Shares to be redeemed will cease to accumulate on such Redemption Date. In<PAGE>
case less than all the outstanding Depositary Shares are to be redeemed,
the Depositary Shares to be so redeemed shall be selected by lot
or pro rata as may be determined by the Depositary to be equitable.
Notice having been mailed by the Depositary as aforesaid, from and
after the Redemption Date (unless the Company shall have failed to redeem
the deposited shares of Preferred Stock to be redeemed by it as set forth
in the Company's notice provided for in the preceding paragraph) all
dividends in respect of the deposited shares of Preferred Stock so
called for redemption shall cease to accumulate, the Depositary Shares
being redeemed from such proceeds shall be deemed no longer to be
outstanding, all rights of the Record Holders of Receipts evidencing such
Depositary Shares (except the right to receive the redemption
price) shall, to the extent of such Depositary Shares cease and terminate
and, upon surrender in accordance with such notice of the Receipts
evidencing any such Depositary Shares (properly endorsed or assigned for
transfer, if the Depositary shall so require), such Depositary Shares shall
be redeemed by the Depositary at a redemption price per Depositary Share
equal to one-fourth of the redemption price per share paid in respect of
the redeemed deposited shares of Preferred Stock plus all money and other
property, if any, represented by such Depositary Shares, including all
amounts paid by the Company in respect of dividends which on the Redemption
Date have accumulated on the shares of Preferred Stock to be so redeemed
and have not theretofore been paid.
If less than all the Depositary Shares evidenced by a single Receipt
are called for redemption, the Depositary will deliver to the Record Holder
of such Receipt upon its surrender to the Depositary a new Receipt
evidencing the Depositary Shares evidenced by such prior Receipt and not
called for redemption, together with the redemption payment.
SECTION 2.04. Registration of Transfer of Receipts. Subject to the
terms and conditions of this Agreement, the Depositary shall register on
its books from time to time transfers of Receipts upon any surrender
thereof by the Record Holder in person or by duly authorized attorney,
properly endorsed or accompanied by a properly executed instrument of
transfer or endorsement together with evidence of the payment of any
transfer taxes as may be required by law. 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 2.05. Split-ups and Combinations of Receipts; Surrender of
Receipts and Withdrawal of Preferred Stock. Upon surrender of a Receipt 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
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 Record Holder of a Receipt or Receipts representing any whole<PAGE>
number of deposited shares of Preferred Stock may withdraw such shares of
Preferred Stock and all money and other property, if any, represented
thereby by surrendering such Receipt or Receipts at the Depositary's Office
or at such other offices as the Depositary may designate for such
withdrawals. Thereafter, without unreasonable delay, the Depositary shall
deliver to such Record Holder, or to the person or persons designated by
such Record Holder as hereinafter provided, the whole number of shares of
Preferred Stock and all money and other property, if any, represented by
the Receipt or Receipts so surrendered for withdrawal, but holders of such
shares of Preferred Stock will not thereafter be entitled to deposit such
shares of Preferred Stock hereunder or to receive Depositary Shares
therefor. If a Receipt delivered by the Record Holder to the Depositary in
connection with such withdrawal shall evidence a number of Depositary
Shares in excess of the number of deposited Depositary Shares representing
the number of shares of Preferred Stock to be so withdrawn, the Depositary
shall at the same time, in addition to such number of shares of Preferred
Stock and such money and other property, if any, to be so withdrawn,
deliver to such Record Holder, or (subject to Section 2.02) upon his order,
a new Receipt evidencing such excess number of Depositary Shares. Delivery
of the shares of Preferred Stock and money and other property being
withdrawn may be made by the delivery of such certificates, documents of
title and other instruments as the Depositary may deem appropriate.
If the shares of 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 the Preferred Stock, such Record Holder shall execute and deliver to the
Depositary a written order so directing the Depositary and the Depositary
may require that the Receipt or Receipts surrendered by such Record Holder
for withdrawal of such shares of Preferred Stock be appropriately endorsed
or accompanied by a properly executed instrument of transfer or
endorsement.
Delivery of the shares of Preferred Stock and the money and other
property, if any, represented by Receipts surrendered for withdrawal shall
be made by the Depositary at the Depositary's Office, except that, at the
request, risk and expense of the Record Holder surrendering such Receipt or
Receipts and for the account of the Record Holder thereof, such delivery
may be made at such other place as may be designated by such Record Holder.
SECTION 2.06. Limitations on Execution and Delivery, Transfer,
Surrender and Exchange of Receipts. As a condition precedent to the
execution and delivery, registration of transfer, split-up, combination,
surrender or exchange of any Receipt, the Depositary, any of the
Depositary's Agents or the Company may require payment to it of a sum
sufficient for the payment (or, in the event that the Depositary or the
Company shall have made such payment, the reimbursement to it) of any
charges or expenses payable by the Record Holder of a Receipt pursuant to
Section 5.07 (including any tax or charge with respect to the Preferred
Stock being deposited or withdrawn; provided, that the Company shall pay
any documentary, stamp or similar issue or transfer tax due on the issue of
Common Stock upon conversion; and provided further that the Record Holder
of such Receipt shall pay the amount of any tax which is due if the shares
are to be issued in a name other than the name of such Record Holder), may<PAGE>
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 Agreement.
The deposit of shares of Preferred Stock may be refused, the delivery
of Receipts against Preferred Stock may be suspended, the registration of
transfer of Receipts may be refused and the registration of transfer,
surrender or exchange of outstanding Receipts may be suspended (i) during
any period when the register of holders of Preferred Stock of the
Company is closed or (ii) if any such action is deemed necessary or
advisable by the Depositary, any agent of the Depositary or the Company at
any time or from time to time because of any requirement of law or of any
government or governmental body or commission or under any provision of
this Agreement.
SECTION 2.07. Lost Receipts, etc. In case any Receipt shall be
mutilated, destroyed, lost or stolen, the Depositary in its discretion may
execute and deliver a Receipt of like form and tenor in exchange and
substitution for such mutilated Receipt, or in lieu of and in substitution
for such destroyed, lost or stolen Receipt, upon (i) the filing by the
Record Holder thereof with the Depositary of evidence satisfactory to the
Depositary of such destruction or loss or theft of such Receipt, of the
authenticity thereof and of his or her ownership thereof, and (ii) the
furnishing of the Depositary with reasonable indemnification satisfactory
to it and payment of any expenses (including fees, charges and expenses of
the Depositary) in connection with such execution and delivery.
SECTION 2.08. Cancellation and Destruction of Surrendered Receipts.
All Receipts surrendered to the Depositary or any Depositary's Agent shall
be cancelled by the Depositary. Except as prohibited by applicable law or
regulation, the Company is authorized to destroy all Receipts so cancelled.
SECTION 2.09. Prohibition Against Preferred Stock, Depositary Shares
or Receipt Lending. The Depositary shall not lend any Preferred Stock,
Depositary Shares or Receipts at any time held hereunder.
ARTICLE III
Certain Obligations of Holders of Receipts and the Company
SECTION 3.01. Filing Proofs, Certificates, and Other Information.
Any Record Holder of a Receipt may be required from time to time to file
such proof of residence, or other matters or other information, to execute
such certificates and to make such representations and warranties as the
Depositary or the Company may reasonably deem necessary or proper. The
Depositary or the Company may withhold the delivery, or delay the
registration of transfer, redemption or exchange, of any Receipt or the
withdrawal of the shares of Preferred Stock represented by the Depositary
Shares evidenced by any Receipt or the distribution of any dividend or
other distribution or the sale of any rights or of the proceeds thereof
until such proof or other information is filed or such certificates are
executed or such representations and warranties are made.<PAGE>
SECTION 3.02. Payment of Taxes or Other Governmental Charges. Record
Holders of Receipts shall be obligated to make payments to the Depositary
of certain charges and expenses, as provided in Sections 2.06 and 5.07.
Registration of transfer of any Receipt or any withdrawal of shares of
Preferred Stock and all money or other property, if any, represented by the
Depositary Shares evidenced by such Receipt may be refused until any
such payment due is made, and any dividends, interest payments or other
distributions may be withheld or any part of or all the shares of Preferred
Stock or other property represented by the Depositary Shares evidenced by
such Receipt and not theretofore sold may be sold for the account of the
Record Holder thereof (after attempting by reasonable means to notify
such Record Holder prior to such sale), and such dividends, interest
payments or other distributions or the proceeds of any such sale may be
applied to any payment of such charges or expenses, the Record Holder of
such Receipt remaining liable for any deficiency.
SECTION 3.03. Representation and Warranty as to Preferred Stock. In
the case of the initial deposit of the Preferred Stock and payment
therefor, the Company and, in the case of subsequent deposits thereof, each
person so depositing Preferred Stock under this Agreement, shall be deemed
thereby to represent and warrant that the shares of Preferred
Stock and each certificate therefor are validly issued, fully paid and
nonassessable and that the person making such deposit is duly authorized to
do so. Such representations and warranties shall survive the deposit of
any shares of Preferred Stock and the issuance of Receipts.
SECTION 3.04. Covenant as to Receipts. The Company will take any
necessary action to ensure that the Receipts, when issued, will represent
legal and valid interests in the Preferred Stock. Such covenant shall
survive the deposit of the Preferred Stock and the issuance of Receipts.
SECTION 3.05. Covenant as to Holidays. The Company agrees to deliver
to the Depositary on the date of execution of this Agreement, and
subsequently on December 1 of each year, a list of bank holidays in the
Commonwealth of Massachusetts.
ARTICLE IV
The Deposited Securities; Notices
SECTION 4.01. Cash Distributions. The Company hereby authorizes the
Depositary to debit the Company's DDA checking account with the Depositary,
if any, for the funds necessary to make a payment of any dividends, cash or
any other distributions to be paid by the Depositary in connection with the
Preferred Stock; provided, however, that the parties may elect to have the
Company transfer the necessary funds to a specified Depositary account for
any such payment. Whenever the Depositary shall receive any cash dividend
or other cash distribution on deposited shares of Preferred Stock, the
Depositary shall, subject to Sections 3.01 and 3.02, 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 Record Holders; provided, however, that in case
the Company or the Depositary shall be required to withhold and shall<PAGE>
withhold from any cash dividend or other cash distribution in respect of
the Preferred Stock an amount on account of taxes or as otherwise required
by law or court process, the amount made available for distribution or
distributed in respect of Depositary Shares shall be reduced accordingly.
In the event that the calculation of any such cash dividend or other such
cash distribution to be paid to any Record Holder on the aggregate number
of Receipts held by such Record Holder results in an amount which is a
fraction of a cent, the amount the Depositary shall distribute to such
Record Holder shall be rounded to the next highest whole cent; and upon
request of the Depositary, the Company shall pay the additional amount to
the Depositary for distribution.
SECTION 4.02. Distributions Other than Cash, Rights, Preferences or
Privileges. Whenever the Depositary shall receive any distribution other
than cash, rights, preferences or privileges upon deposited shares of
Preferred Stock, the Depositary shall, subject to Sections 3.01 and 3.02,
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 Record Holders,
in any manner that the Depositary may deem equitable and practicable for
accomplishing such distribution. If in the opinion of the Depositary such
distribution cannot be made proportionately among such Record Holders,
or if for any other reason (including any requirement that the Company or
the Depositary withhold an amount on account of taxes or as otherwise
required by law or court process) the Depositary deems, after consultation
with the Company, such distribution not to be feasible, the Company shall
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 Depositary 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, as amended (the Act ) 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 the shares of Preferred Stock are 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
issuance 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 issuance or offer of any such rights,
preferences or privileges the Depositary determines that it is not lawful
or (after consultation with the Company) not feasible to make such rights,<PAGE>
preferences or privileges available to Record Holders of Receipts by the
issuance of warrants or otherwise, or (ii) if and to the extent so
instructed by Record Holders of Receipts who do not desire to exercise such
rights, preferences or privileges, then the Depositary, in its discretion
(with the approval of the Company, in any case where the Depositary has
determined that it is not feasible to make such rights, preferences or
privileges available), may, if applicable laws and 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 Act or do not need to be registered.
If registration under the Act of the securities to which any rights,
preferences or privileges relate is required in order for Record Holders of
Receipts to be offered or sold the securities to which such rights,
preferences or privileges relate, the Company will file promptly a
registration statement pursuant to the Act with respect to such rights,
preferences or privileges and securities and use its best efforts and take
all steps available to it to cause such registration statement to become
effective sufficiently in advance of the expiration of such rights,
preferences or privileges to enable such Record Holders to exercise such
rights, preferences or privileges. In no event shall the Depositary make
available to the Record Holders of Receipts any right, preference or
privilege to subscribe for or to purchase any securities unless and until
the Company delivers to the Depositary an opinion of counsel stating either
that (i) such a registration statement shall have become effective, or (ii)
the offering and sale of such securities to such Record Holders are exempt
from registration under the provisions of the Act.
If any other action under the laws of any jurisdiction or any
governmental or administrative authorization, consent or permit is required
in order for such rights, preferences or privileges to be made available to
Record Holders of Receipts, the Company will use its best efforts to take
such action or obtain such authorization, consent or permit sufficiently in
advance of the expiration of such rights, preferences or privileges to
enable such Record Holders to exercise such rights, preferences or
privileges.
SECTION 4.04. Notice of Dividends, etc.; Fixing of Record Date for
Record 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 Preferred Stock, or whenever the Depositary
shall receive notice of any meeting at which holders of shares of Preferred
Stock are entitled to vote or of which holders of shares of Preferred Stock
are entitled to notice, 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<PAGE>
Company with respect to the Preferred Stock) for the determination of the
Record 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 for
any other appropriate reasons.
SECTION 4.05. Voting Rights. Upon receipt of notice of any meeting
at which the holders of shares of Preferred Stock are entitled to vote, the
Depositary shall, as soon as practicable thereafter, mail to the Record
Holders of Receipts a notice which shall be provided by the Company and
which shall contain (i) such information as is contained in such notice of
meeting and (ii) a statement that the Record Holders of Receipts may,
subject to any applicable restrictions, instruct the Depositary as to the
exercise of the voting rights pertaining to the number of shares of
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 (iii) a brief statement as to the manner in which such
instructions may be given. Upon the written request of the Record Holders
of Receipts on the relevant record date, the Depositary shall endeavor
insofar as practicable to vote or cause to be voted, in accordance with the
instructions set forth in such requests, the maximum whole number of shares
of 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 shares of
Preferred Stock or cause such shares of Preferred Stock to be voted. In
the absence of specific instructions from the Record Holder of a Receipt,
the Depositary will abstain from voting (but, at its discretion, not from
appearing at any meeting with respect to such shares of Preferred Stock
unless directed to the contrary by the Record Holders of all the Receipts)
to the extent of the number of shares of Preferred Stock represented by the
Depositary Shares evidenced by such Receipt.
SECTION 4.06. Changes Affecting Deposited Preferred Stock and
Reclassifications, Recapitalizations, etc. Upon any change in par value or
liquidation preference, split-up, combination or any other reclassification
of the 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, 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 ofPreferred Stock, and (y)
the ratio of the redemption price per Depositary Share to the
redemption price per share of Preferred Stock, in each case as may be
necessary fully to reflect the effects of such changes in par value or
liquidation preference, split-up, combination or other reclassification of
the 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 deposited shares of Preferred Stock as new deposited
securities so received in exchange for or upon conversion or in respect of<PAGE>
such shares of 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,
Record Holders of Receipts shall have the right from and after the
effective date of any such change in par value or liquidation preference,
split-up, combination or other reclassification of the 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 shares of Preferred
Stock represented thereby only into or for, as the case may be, the kind
and amount of shares of Preferred Stock and other securities and property
and cash into which the Preferred Stock represented by such Receipts might
have been converted or for which such Preferred Stock might have been
exchanged or surrendered immediately prior to the effective date of such
transaction.
SECTION 4.07. Inspection of Reports. The Depositary shall make
available for inspection by Record Holders of Receipts at the Depositary's
Office during normal business hours, and at such other places as it may
from time to time deem advisable, any reports and communications received
from the Company which are received by the Depositary as theholder of
Preferred Stock and are generally available to holders of Preferred Stock.
SECTION 4.08. 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.
SECTION 4.09. Tax and Regulatory Compliance. The Depositary shall be
responsible for (i) preparation and mailing of all applicable tax forms for
all open and closed accounts and (ii) all applicable foreign and domestic
tax withholding, including without limitation the mailing of W-9 forms to
new Record Holders of Receipts without a certified taxpayer identification
number, the processing of certified W-9 forms, the preparation and
filing of state information returns and the provision of escheatment
services.
SECTION 4.10. Withholding. Notwithstanding any other provision of
this Deposit Agreement, in the event that the Depositary determines that
any distribution in property is subject to any tax which the Depositary is
obligated to withhold, the Depositary may dispose of all or a portion of
such property in such amounts and in such manner as the Depositary deems
necessary and practicable to pay such taxes, by public or private sale, and
the Depositary shall distribute the net proceeds of any such sale or the
balance of any such property after deduction of such taxes to the Record
Holders of Receipts entitled thereto in proportion to the number of
Depositary Shares held by them respectively.
ARTICLE V
The Depositary, the Depositary's Agents, the Registrar and the Company<PAGE>
SECTION 5.01. Maintenance of Offices, Agencies and Transfer Books by
the Depositary; Registrar. Upon execution of this Agreement, the
Depositary shall maintain at the Depositary's Office, facilities for the
execution and delivery, registration and registration of transfer,
surrender and exchange of Receipts, and at the offices of the Depositary's
Agents, if any, facilities for the delivery, registration of transfer,
surrender and exchange of Receipts, all in accordance with the provisions
of this 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 during normal business hours shall be open for inspection
by the Record Holders of Receipts to the extent provided by applicable law;
provided, however, that any such Record Holder requesting to exercise such
right shall certify to the Depositary that such inspection shall be for a
proper purpose reasonably related to such person's interest as an owner of
Depositary Shares evidenced by 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.
If the Receipts or the Depositary Shares evidenced thereby or the
Preferred Stock represented by such Depositary Shares shall be listed on
the New York Stock Exchange, the Depositary may, with the approval of the
Company, appoint a Registrar for registration of such Receipts or
Depositary Shares in accordance with any requirements of such Exchange.
Such Registrar (which may be the Depositary if so permitted by the
requirements of such Exchange) may be removed and a substituted registrar
appointed by the Depositary upon the request or with the approval of the
Company. If the Receipts, the Depositary Shares or the Preferred Stock
shall be listed on one or more other stock exchanges, the Depositary will,
at the request and expense of the Company, arrange such facilities for the
delivery, registration, registration of transfer, surrender and exchange of
the Receipts, the Depositary Shares or the Preferred Stock as may be
required by law or applicable stock exchange regulation.
SECTION 5.02. Prevention of or Delay in Performance by the
Depositary, the Depositary's Agents, the Registrar or the Company. Neither
the Depositary nor any Depositary's Agent nor any Registrar nor the Company
shall incur any liability to any Record Holder of any Receipt if by reason
of any provision of any present or future law, or regulation thereunder, of
the United States of America or of any other governmental authority or, in
the case of the Depositary, the Depositary's Agent or the Registrar, by
reason of any provision, present or future, of the Company's Restated
Articles of Organization, as amended (including the Certificate of
Designation) 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 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 Record Holder of a Receipt (i) by reason<PAGE>
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 Agreement except, in case
of any such exercise or failure to exercise discretion not caused as
aforesaid, if caused by the gross negligence or willful misconduct of the
party charged with such exercise or failure to exercise.
SECTION 5.03. Obligations of the Depositary, the Depositary's Agents,
the Registrar and the Company. Neither the Depositary nor any Depositary's
Agent nor any Registrar nor the Company assumes any obligation or shall be
subject to any liability under this Agreement or any Receipt to Record
Holders of Receipts other than for its gross negligence or willful
misconduct.
Neither the Depositary nor any Depositary's Agent nor any Registrar
nor the Company shall be under any obligation under this Agreement to
appear in, prosecute or defend any action, suit or other proceeding in
respect of deposited shares of Preferred Stock, the Depositary Shares or
the Receipts that in its opinion may involve it in expense or liability
unless indemnity satisfactory to it against all expense and liability be
furnished as often as may be required.
Neither the Depositary nor any Depositary's Agent nor any Registrar
nor the Company shall be liable for any action or any failure to act by it
in reliance upon the advice of legal counsel or written advice of
accountants, or information from any person presenting shares of Preferred
Stock for deposit, any Record Holder of a Receipt or any other person
believed by it in good faith to be competent to give such advice or
information. The Depositary, any Depositary's Agent, any Registrar and the
Company may each rely and shall each be protected in acting upon any
written notice, request, direction or other document believed by it to be
genuine and to have been signed or presented by the proper party or
parties.
In the event the Depositary shall receive conflicting claims, requests
or instructions from any Record Holders of Receipts, on the one hand, and
the Company, on the other hand, the Depositary shall notify the Company and
thereafter, absent instructions to the contrary from the Company, shall be
entitled to act on such claims, requests or instructions received from the
Company, and shall be entitled to the full indemnification set forth in
Section 5.06 hereof in connection with any action so taken.
Notwithstanding the first paragraph of this Section 5.03, the
Depositary shall not be responsible for any failure to carry out any
instruction to vote any of the deposited shares of Preferred Stock or for
the manner or effect of any such vote made, as long as any such
action or non-action is in good faith or in accordance with this Agreement.
The Depositary undertakes, and any Registrar shall be required to
undertake, to perform such duties and only such duties as are specifically
set forth in this Deposit Agreement, and no implied covenants or
obligations shall be read into this Deposit Agreement against the
Depositary or any Registrar. The Depositary and its affiliates, the
Depositary's Agents and any Registrar may own, buy, sell, and deal in any<PAGE>
class of securities of the Company and its affiliates and in Receipts or
Depositary Shares or become pecuniarily interested in any transaction in
which the Company or its affiliates are interested or contract with or lend
money to or otherwise act as fully and as freely as if it were not the
Depositary or the Depositary's Agent or Registrar hereunder. The
Depositary may also act as transfer agent or registrar of any of the
securities of the Company and its affiliates.
It is intended that neither the Depositary nor any Depositary's Agent,
acting as the Depositary Agent, shall be deemed to be an "issuer" of the
Receipts under the Federal securities laws or applicable state securities
laws, it being expressly understood and agreed that the Depositary and any
Depositary's Agent are acting only in a ministerial capacity as Depositary
for the Preferred Stock.
Neither the Depositary (or its officers, directors, employees or
agents) nor any Depositary's Agent makes any representation or has any
responsibility as to the validity of the Registration Statement pursuant to
which the Depositary Shares are registered under the Act, the Preferred
Stock, the Depositary Shares or the Receipts (except for its counter-
signatures thereon) or any instruments referred to therein or herein, or as
to the correctness of any statement made therein or herein.
The Depositary assumes no responsibility for the correctness of the
description that appears in the Receipts, which can be taken as a statement
of the Company summarizing certain provisions of this Agreement.
Notwithstanding any other provision herein or in the Receipts, the
Depositary makes no warranties or representations as to the validity,
genuineness or sufficiency of any Preferred Stock at any time deposited
with the Depositary hereunder or of the Depositary Shares, as to the
validity or sufficiency of this Agreement, as to the value of the
Depositary Shares or as to any right, title or interest of the Record
Holders of Receipts in and to the Depositary Shares. The Depositary shall
not be accountable for the use or application by the Company of the
Depositary Shares or the Receipts or the proceeds thereof.
The Depositary shall have no duty to make advances, or payments of any
kind, from its own funds. Payments hereunder shall be made by the
Depositary only after, and conditioned upon, receipt of available funds in
accordance with Section 4.01 hereof.
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 to do so delivered to the
Company, such resignation to take effect upon the appointment of a
successor Depositary and its acceptance of such appointment as herein
after 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 herein after provided.
In case at any time the Depositary acting hereunder shall resign or be<PAGE>
removed, the Company shall, within 60 days after the delivery of the notice
of resignation or removal, as the case may be, appoint a successor
Depositary, which shall be a bank or trust company having its principal
office in the United States of America and having a combined capital and
surplus of at least $50,000,000. If no successor Depositary shall have
been so appointed and have accepted appointment within 60 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 Agreement, and such predecessor, upon payment of all
sums due it and on the written request of the Company, shall execute and
deliver an instrument transferring to such successor all rights and powers
of such predecessor hereunder, shall duly assign, transfer and deliver all
right, title and interest in the Preferred Stock and any moneys or property
held hereunder to such successor, and shall deliver to such successor a
list of the Record Holders of all outstanding Receipts. Any successor
Depositary shall promptly mail notice of its appointment to the Record
Holders of Receipts.
Any corporation into or with which the Depositary may be merged,
consolidated or converted 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 shall deliver to the Depositary and the Depositary shall, in reliance
upon the Company's written instructions, promptly after receipt thereof,
forward to the Record Holders of Receipts all notices and reports and other
communications from the Company (including without limitation financial
statements) which are delivered to the Depositary, and which in
the judgment of the Company are required by law, by the rules of any
national securities exchange upon which the Preferred Stock, the Depositary
Shares or the Receipts are listed or by the Company's Restated Articles of
Organization, as amended (including the Certificate of Designation), to be
furnished by the Company to holders of shares of Preferred Stock. Such
transmission will be to the addresses for Record Holders in the
Depositary's books and will be at the Company's expense and the Company
will provide the Depositary with such number of copies as the Depositary
may reasonably request.
SECTION 5.06. Indemnification.
The Company shall indemnify the Depositary (including its directors,
officers, employees and agents), any Depositary's Agent and any Registrar
against, and hold each of them harmless from, any loss, liability or
expense (including fees and expenses of counsel and the costs and expenses
of defending itself) that may arise out of (i) acts performed or omitted in
connection with this Deposit Agreement and the Receipts (a) by the<PAGE>
Depositary, any Registrar or any of their respective agents (including any
Depositary's Agent), except for any liability arising out of gross
negligence or bad faith on the respective parts of any such person or
persons, or (b) by the Company or any of its agents, or (ii) the offer,
sale or registration of the Receipts, the Depositary Shares or the
Preferred Stock pursuant to the provisions hereof. This indemnification
shall survive the termination of this Agreement and, as to the Depositary,
the appointment of a successor thereto in any function.
SECTION 5.07. Charges and Expenses. The Company shall pay all
transfer and other taxes and governmental charges arising solely from the
existence of the depositary arrangements. The Company shall pay all
charges of the Depositary in connection with the initial deposit of the
Preferred Stock and the initial issuance of the Depositary Shares,
redemption of the Preferred Stock at the option of the Company and all
withdrawals of shares of the Preferred Stock by owners of Depositary
Shares. All other transfer and other taxes and governmental charges shall
be at the expense of Record Holders of Depositary Shares. If, at the
request of a Record Holder of Receipts, the Depositary incurs charges or
expenses for which it is not otherwise liable hereunder, such Record Holder
will be liable for such charges and expenses. The Company agrees to pay
all other reasonable and customary charges and expenses of the Depositary
and any Depositary's Agent hereunder and of any Registrar (including, in
each case, fees and expenses of counsel) incident to the performance
of their respective obligations hereunder, including any other reasonable
and customary charges and expenses incurred by the Depositary under the
second paragraph of Section 6.02.
ARTICLE VI
Amendment and Termination
SECTION 6.01. Amendment. The form of the Receipts and any provisions
of this 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
Depositary's Agent, which shall go into effect not sooner than three
months after notice thereof to the Record Holders of the Receipts) that
shall materially and adversely alter the rights of the Record holders of
Receipts shall be effective unless such amendment shall have been approved
by the Record Holders of at least a majority of the Depositary Shares then
outstanding. Any amendment that shall impose any fees, taxes or
charges (other than fees and charges provided for herein or in the
Receipts), or that shall otherwise prejudice any substantial existing right
of Record Holders of Receipts, shall not become effective as to outstanding
Receipts until the expiration of 30 days after notice of such amendment
shall have been given to the Record Holders of outstanding Receipts. Every
Record Holder of an outstanding Receipt at the time any such amendment
becomes effective shall be deemed, by continuing to hold such Receipt, to
consent and agree to such amendment and to be bound by this Agreement as
amended thereby.
SECTION 6.02. Termination. This Agreement may be terminated by the<PAGE>
Company or the Depositary only after (a) (i) all outstanding Depositary
Shares shall have been redeemed pursuant to Section 2.03 or surrendered
pursuant to Section 2.05 or (ii) there shall have been made a final
distribution in respect of the Preferred Stock in connection with
any liquidation, dissolution or winding up of the Company and such
distribution shall have been distributed to the Record Holders of
Depositary Shares pursuant to Section 4.01 or 4.02, as applicable and (b)
reasonable notice has been given to any remaining Record Holders of
Receipts.
If any Receipts shall remain outstanding after the date of termination
of this Agreement, the Depositary thereafter shall discontinue the transfer
of Receipts, shall suspend the distribution of dividends to the Record
Holders thereof and shall not give any further notices (other than notice
of such termination) or perform any future acts under this Agreement,
except that the Depositary shall continue to collect dividends and other
distributions pertaining to Preferred Stock, shall sell rights, preferences
or privileges as provided in this Agreement and shall continue to deliver
the Preferred Stock and any money and other property represented by
Receipts upon surrender thereof by the Record Holders thereof. After the
expiration of two years from the date of termination, the Depositary shall
remit to the Company the remaining Preferred Stock and any money and other
property represented by Receipts that have not therefore been surrendered
(including any interest earned on such amounts during such two year
period), along with all registers and records relating thereto; provided,
however, that the Depositary shall be entitled to deduct from such
amounts (or, if such amounts are insufficient, shall be entitled to
liquidate Preferred Stock) to reimburse itself for any amounts still due
and owing to the Depositary. After such remittance, the Depositary shall
be discharged from all obligations under this Deposit Agreement.
Upon the termination of this 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.
ARTICLE VII
Miscellaneous
SECTION 7.01. Counterparts. This 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. Delivery of an executed
counterpart of a signature page to this Deposit Agreement by telecopier
shall be effective as delivery of a manually executed counterpart of this
Deposit Agreement. Copies of this Deposit Agreement shall be filed with
the Depositary and the Depositary's Agents and shall be open to inspection
during business hours at the Depositary's Office and the respective offices
of the Depositary's Agents, if any, by any Record Holder of a Receipt.
SECTION 7.02. Record Holders of Receipts are Parties; Exclusive
Benefit of Parties. The Record Holders of Receipts from time to time shall<PAGE>
be parties to this Agreement and shall be bound by all of the terms and
conditions hereof and of the Receipts by acceptance of delivery thereof.
This 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 Agreement or in the Receipts should be or
become invalid, illegal or unenforceable in any respect, the validity,
legality and enforceability of the remaining provisions contained herein or
therein shall in no way be affected, prejudiced or disturbed thereby.
SECTION 7.04. 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
by telegram or telex confirmed by letter, addressed to the Company at 111
Powdermill Road, Maynard, MA 01754-1418, attention of Ilene B. Jacobs,
Vice President and Treasurer (MS02-2/F23), with a copy to Gail S. Mann,
Esq., Secretary and Clerk (MS02-3/F13), or at any other address of which
the Company shall have notified the Depositary in writing.
Any and all notices to be given to the Depositary hereunder (i) by the
Company shall be in writing and shall be deemed to have been duly given if
personally delivered or sent by mail or by telegram or telex confirmed by
letter or by telephone, addressed to the Depositary, at 120 Wall Street,
13th Floor, New York, New York 10043, Attn: John Reasor; or (ii) by a
Record Holder shall be in writing and shall be deemed to have been duly
given if personally delivered or sent by mail or by telegram or telex
confirmed by letter at (212) 480-1614, or by telecopy at (201) 262-2541,
addressed to the Depositary, at 111 Wall Street, 5th Floor, New York, New
York 10043, or at any other address of which the Depositary shall have
notified the Company in writing.
Any and all notices to be given to any Record Holder of a Receipt
hereunder or under the Receipts shall be in writing and shall be deemed to
have been duly given if personally delivered or sent by mail or by telegram
or telex confirmed by letter, addressed to such Record Holder at the
address of such Record Holder as it appears on the books of the
Depositary, or if such Record Holder shall have filed with the Depositary a
written request that notices intended for such Record Holder be mailed to
some other address, at the address designated in such request.
Delivery of a notice sent by mail or by telegram or telex shall be
deemed to be effected at the time when a duly addressed letter containing
the same (or a confirmation thereof in the case of a telegram or telex
message) is deposited, postage prepaid, in a post office letter box. The
Depositary or the Company may, however, act upon any telegram or telex
message received by it from the other or from any Record Holder of a
Receipt, notwithstanding that such telegram or telex message shall not
subsequently be confirmed by letter or as aforesaid.
SECTION 7.05. Depositary's Agents. The Depositary may from time to
time appoint Depositary's Agents to act in any respect for the Depositary
for the purposes of this Agreement and may at any time appoint additional<PAGE>
Depositary's Agents and vary or terminate the appointment of such
Depositary's Agents. The Depositary will notify the Company of
any such action. The Company hereby also appoints the Depositary as
Registrar and Transfer Agent in respect of the Receipts and the Depositary
hereby accepts such appointments.
SECTION 7.06. Governing Law. This 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 Commonwealth
of Massachusetts; provided, however, that the rights and duties of the
Depositary shall be governed by, and construed in accordance with, the laws
of the State of New York.
SECTION 7.07. Inspection of Agreement. Copies of this Agreement
shall be filed with the Depositary and shall be open to inspection during
business hours at the Depositary's office by any Record Holder of a
Receipt.
SECTION 7.08. Headings. The headings of articles and sections in
this 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 Agreement or the Receipts or have any bearing upon the meaning
or interpretation of any provision contained herein or in the Receipts.
SECTION 7.09. Board of Directors. All references to any actions to
be taken by the Company's Board of Directors shall be deemed to include
actions taken by either the Company's Board of Directors or an authorized
committee thereof.<PAGE>
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 Receipt issued in accordance with the terms hereof.
DIGITAL EQUIPMENT CORPORATION
/s/ Ilene B. Jacobs
By_____________________________________
Vice President and Treasurer
Attested by
/s/ Gail S. Mann
_____________________________
[SEAL] Secretary and Clerk
CITIBANK, N.A., as Depositary
/s/ John Reasor
By_____________________________________
Attested by
_____________________________
[SEAL]<PAGE>
