<PAGE>
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
---------------
FORM 8-A
FOR REGISTRATION OF CERTAIN CLASSES OF SECURITIES
PURSUANT TO SECTION 12(b) OR 12(g) OF THE
SECURITIES EXCHANGE ACT OF 1934
Alco Standard Corporation
(Exact name of registrant as specified in its charter)
Ohio 23-0334400
- --------------------------------- ---------------------------------
(State or other jurisdiction (IRS Employer Identification No.)
of incorporation or organization)
P.O. Box 834, Valley Forge,
Pennsylvania 19482
- ---------------------------- ---------------------------------
(Address of principal (Zip Code)
executive offices)
---------------
Securities to be registered pursuant to Section 12(b) of the Act:
Name of each exchange on
Title of each class which each class is to
to be so registered be registered
------------------- -------------------------
3,877,200 Depositary Shares Each New York Stock Exchange, Inc.
Representing a One-Hundredth
Interest in a Share of Series BB
Conversion Preferred Stock
--------------
Securities to be registered pursuant to Section 12(g) of the Act:
NONE
(Title of Class)
<PAGE>
Item 1. Description of Registrant's Securities to be Registered
-------------------------------------------------------
A description of the securities registered hereunder comparable to that
required by Item 1 of Form 8-A is set forth under the captions "Description of
Capital Stock" and "Description of Depositary Shares" in the Prospectus
contained in the Registration Statement on Form S-3 (No. 33-52285) filed with
the Commission on February 15, 1994, as supplemented by the Prospectus
Supplement filed pursuant to Rule 424. Such Prospectus may be revised,
supplemented, modified or amended, and is hereby incorporated by reference in
Answer to this Item 1.
Item 2. Exhibits.
---------
Exhibit No. Description
----------- -----------
1 Form of Depositary Share each representing a one-
hundredth interest in a share of Series BB Conversion
Preferred Stock.
2 Form of Deposit Agreement between the Registrant and
National City Bank, as Depositary.
3 Form of Series BB Conversion Preferred Stock.
4 Form of Certificate of Amendment to the Registrant's
Articles of Incorporation describing the rights and
preferences of the Registrant's Series BB Conversion
Preferred Stock.
<PAGE>
Pursuant to the requirements of Section 12 of the Securities and
Exchange Act of 1934, as amended, the Registrant has duly caused this
Registration Statement to be signed on its behalf by the undersigned, thereunto
duly authorized.
ALCO STANDARD CORPORATION
-------------------------
(Registrant)
By: /s/ Michael J. Dillon
----------------------
Michael J. Dillon
Vice President and
Controller
Dated: July 19, 1995
<PAGE>
INDEX TO EXHIBITS
-----------------
Exhibit Sequentially
Number Exhibits Numbered Pages
- ------ -------- --------------
(1) Form of Depositary Share each
representing a one-hundredth
interest in a share of Series BB
Conversion Preferred Stock.
(2) Form of Deposit Agreement between the
Registrant and National City Bank,
as Depositary.
(3) Form of Series BB Conversion
Preferred Stock.
(4) Form of Certificate of Amendment to
the Registrant's Articles of
Incorporation describing the rights
and preferences of the Registrant's
Series BB Conversion Preferred Stock.
<PAGE>
EXHIBIT 1
Draft of July 14, 1995
EXHIBIT A
---------
Unless this certificate is presented by an authorized representative of The
Depository Trust Company, a New York corporation ("DTC"), to the agent
authorized by the issuer for the registration of transfer, exchange or payment,
and any certificate issued is registered in the name of Cede & Co. or in such
other name as is requested by an authorized representative of DTC (and any
payment is made to Cede & Co. or to such other entity as is requested by an
authorized representative of DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR
VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL inasmuch as the registered
owner hereof, Cede & Co., has an interest herein.
DEPOSITARY RECEIPT
FOR
DEPOSITARY SHARES,
EACH REPRESENTING AN INTEREST IN ONE-ONE HUNDREDTH (1/100)
OF
A SHARE OF SERIES BB CONVERSION PREFERRED
STOCK
(NO PAR VALUE)
OF
ALCO STANDARD CORPORATION
(INCORPORATED UNDER THE LAWS OF THE STATE OF OHIO)
GDR 1 [3,400,000]
CUSIP DEPOSITARY SHARES
...........................................Depositary Shares (each Depositary
Share represents an interest in one-one hundredth (1/100) of a share of Series
BB Conversion Preferred Stock (no par value))
National City Bank, a national banking association duly organized and
existing under the laws of the United States, with an office at the time of the
execution of the Deposit Agreement (as defined below) at 1900 East 9th Street,
Corporate Trust Department, 3rd Floor Annex, Cleveland, Ohio 44114, as
Depositary (the "Depositary"), hereby certifies that CEDE & CO. is the
------------
registered owner of [3,400,000] Depositary Shares ("Depositary Shares"), each
Depositary Share representing an interest in one-one hundredth (1/100) of a
share of Series BB Conversion Preferred Stock, no par value (the "Stock"), of
Alco Standard Corporation, a corporation duly organized and existing under the
laws of the State of
<PAGE>
Ohio (the "Company"). Subject to the terms of the Deposit Agreement, each owner
of a Depositary Share is entitled, proportionately, through the Depositary to
all the rights and preferences of the Stock relating thereto, including
dividend, voting, conversion and liquidation rights and preferences contained in
the Certificate of Amendment to the Amended Articles of Incorporation, adopted
by the Company's Board of Directors setting forth the number, terms, powers,
designations, rights, preferences, qualifications, restrictions and limitations
of the Stock (the "Certificate"), copies of which are on file at the
Depositary's Office.
The Company will furnish to any holder of a Receipt without charge,
upon request addressed to its executive office or the office of its transfer
agent, a full statement of the powers, designations, preferences and relative,
participating, optional, or other special rights of each authorized class of
stock or series thereof and the qualifications, limitations, or restrictions of
such preferences and/or rights.
REFERENCE IS HEREBY MADE TO THE PROVISIONS SET FORTH UNDER THE CAPTION
"TERMS AND CONDITIONS CONTINUED" ENDORSED ON THE REVERSE HEREOF. SUCH
PROVISIONS SHALL FOR ALL PURPOSES HAVE THE SAME EFFECT AS THOUGH FULLY SET FORTH
AT THIS PLACE.
This receipt shall not be entitled to any benefits under the Deposit
Agreement or be valid or obligatory for any purpose unless this Receipt shall
have been authenticated, manually or, if a Registrar for the Receipts (other
than the Depositary) shall have been appointed, by facsimile signature of a duly
authorized officer of the Depositary and, if authenticated by facsimile
signature of the Depositary, shall have been countersigned manually by such
Registrar by the signature of a duly authorized officer.
THE DEPOSITARY IS NOT RESPONSIBLE FOR THE VALIDITY OF ANY DEPOSITED STOCK. THE
DEPOSITARY ASSUMES NO RESPONSIBILITY FOR THE CORRECTNESS OF THE FOREGOING
DESCRIPTION, WHICH CAN BE TAKEN AS A STATEMENT OF THE COMPANY SUMMARIZING
CERTAIN PROVISIONS OF THE DEPOSIT AGREEMENT THAT APPEAR IN THE DEPOSITARY
RECEIPTS. THE DEPOSITARY MAKES NO WARRANTIES OR REPRESENTATIONS AS TO THE
VALIDITY, GENUINENESS OR SUFFICIENCY OF ANY STOCK AT ANY TIME DEPOSITED WITH THE
DEPOSITARY HEREUNDER OR OF THE DEPOSITARY SHARES, OR AS TO THE VALUE OF THE
DEPOSITARY SHARES.
Dated:
NATIONAL CITY BANK
A-2
<PAGE>
By:____________________________
Authorized Officer
A-3
<PAGE>
[Form of Reverse Side]
TERMS AND CONDITIONS CONTINUED
1. The Deposit Agreement. Depositary Receipts (the "Receipts"), of
---------------------
which this Receipt is one, are made available upon the terms and conditions set
forth in the Deposit Agreement, dated as of July __, 1995 (the "Deposit
Agreement"), among the Company, the Depositary and all holders from time to time
of Receipts. The Deposit Agreement (copies of which are on file at the
Depositary's Office) sets forth the rights of holders of Receipts and the rights
and duties of the Depositary and the Company in respect of the Stock deposited,
and any and all other property and cash deposited from time to time thereunder.
The statements made on the face and the reverse of this Receipt are summaries of
certain provisions of the Deposit Agreement and are subject to the detailed
provisions thereof, to which reference is hereby made. Unless otherwise
expressly herein provided, all capitalized and undefined terms used herein shall
have the meaning ascribed thereto in the Deposit Agreement.
2. Transfer, Split-ups, Combinations. This Receipt is transferable
---------------------------------
on the books of the Depositary upon surrender of this Receipt to the Depositary,
properly endorsed or accompanied by a properly executed instrument of transfer
or endorsement, and upon such transfer the Depositary shall execute a new
Receipt to or upon the order of the person entitled thereto, as provided in the
Deposit Agreement. This Receipt may be split into other Receipts or combined
with other Receipts into one Receipt, representing the same aggregate number of
Depositary Shares as the Receipt or Receipts surrendered. Any holder of at
least one hundred (100) Depositary Shares may withdraw the number of whole
shares of Stock underlying such Depositary Shares and all money and other
property, if any, represented thereby by surrendering such Receipt or Receipts
at the Depositary's Office or at such other offices as the Depositary may
designate for such withdrawals. Thereafter, holders of such whole shares will
not be entitled to deposit such Stock and receive Depositary Shares therefor.
3. Conversion Rights. This Receipt may be surrendered with written
-----------------
instructions to the Depositary to instruct the Company to cause the conversion
of any specified number of whole or fractional shares of Stock represented by
the Depositary Shares evidenced thereby into whole shares of Common Stock at the
conversion rate then in effect for the Stock (and, therefore, for the Depositary
Shares) specified in the Certificate, as such conversion rate may be adjusted by
the Company from time to time as provided in the Certificate.
A-4
<PAGE>
Subject to the terms and conditions of the Deposit Agreement and the
Certificate, a holder of a Receipt or Receipts evidencing Depositary Shares
representing whole or fractional shares of Stock may surrender such Receipt or
Receipts at the Depositary's Office or to such office or to such Depositary's
Agents as the Depositary may designate for such purpose, together with a notice
of conversion duly completed and executed, thereby directing the Depositary to
instruct the Company to cause the conversion of the number of shares or
fractions thereof of underlying Stock specified in such notice of conversion
into shares of Common Stock, and an assignment of such Receipt or Receipts to
the Company or in blank, duly completed and executed. To the extent that a
holder delivers to the Depositary for conversion a Receipt or Receipts which in
the aggregate are convertible into less than one whole share of Common Stock,
the holder shall receive payment in lieu of such fractional share of Common
Stock otherwise issuable.
Upon receipt by the Depositary of a Receipt or Receipts, together with
notice of conversion, duly completed and executed, directing the Depositary to
instruct the Company to cause the conversion of a specified number of shares or
fractions thereof of Stock and an assignment of such Receipt or Receipts to the
Company or in blank, duly completed and executed, the Depositary shall instruct
the Company (i) to cause the conversion of the Depositary Shares evidenced by
the Receipts so surrendered for conversion as specified in the written notice to
the Depositary and (ii) to cause the delivery to the holders of such Receipts of
a certificate or certificates evidencing the number of whole shares of Common
Stock, and the amount of money, if any, to be delivered to the holders of
Receipts surrendered for conversion in payment of any accrued and unpaid
dividends or in lieu of fractional shares of Common Stock otherwise issuable.
The Company shall as promptly as practicable after receipt thereof cause the
delivery of (i) a certificate or certificates evidencing the number of whole
shares of Common Stock into which the Stock represented by the Depositary Shares
evidenced by such Receipt or Receipts has been converted, and (ii) any money or
other property to which the holder is entitled. Upon such conversion, the
Depositary (i) shall deliver to the holder a Receipt evidencing the number of
Depositary Shares, if any, which such holder has elected not to convert and
evidencing the number of Depositary Shares, if any, in excess of the number of
Depositary Shares representing Stock which has been so converted, (ii) shall
cancel the Depositary Shares evidenced by Receipts surrendered for conversion
and (iii) shall deliver to the Company or its transfer agent for the Stock for
cancellation the shares of Stock represented by
A-5
<PAGE>
the Depositary Shares evidenced by the Receipts so surrendered and so converted.
The holder of Depositary Shares on any dividend payment record date
established by the Depositary shall be entitled to receive the dividend payable
with respect to such Depositary Shares on the corresponding dividend payment
date notwithstanding the subsequent conversion of the shares of Stock to which
such Depositary Shares relate. If a share of Stock is converted between the
record date with respect to any dividend payment on the Stock and the next
succeeding dividend payment date, any holder of Receipts surrendered with
instructions to the Depositary for conversion of the underlying Stock shall pay
to the Depositary an amount equal to the dividend payable on such dividend
payment date on the Depositary Shares represented by the Receipts being
surrendered for conversion. Any holder of Receipts on a dividend payment record
date who (or whose transferee) surrenders the Receipts with instructions to the
Depositary for conversion of the underlying Stock on the corresponding dividend
payment date will receive the dividend payable with respect to the Depositary
Shares underlying such Receipts and will not be required to include payment of
the amount of such dividend upon surrender of the Receipts for conversion.
Upon the conversion of any shares of Stock for which a request for
conversion has been made by the holder of Depositary Shares representing such
shares, all dividends in respect of such Depositary Shares shall cease to
accrue, such Depositary Shares shall be deemed no longer outstanding, all rights
of the holder of the Receipt with respect to such Depositary Shares (except the
right to receive the Common Stock, any cash payable with respect to any
fractional shares of Common Stock as provided herein and any cash payable on
account of accrued dividends and any Receipts evidencing Depositary Shares not
so converted) shall terminate, and the Receipt evidencing such Depositary Shares
shall be cancelled.
4. Suspension of Delivery, Transfer, etc. The transfer, split-up,
-------------------------------------
combination or surrender of this Receipt may be suspended and except as
otherwise provided in the Deposit Agreement, the deposit of Stock may be refused
during any period when the register of stockholders of the Company is closed, or
if any such action is deemed necessary or advisable by the Depositary, any agent
of the Depositary or the Company at any time or from time to time because of any
requirement of law or of any government or governmental body or commission, or
under any provision of the Deposit Agreement.
5. Warranty by Company. The Company has warranted that the Stock
-------------------
when issued, and any shares of Common Stock
A-6
<PAGE>
issuable upon conversion of the Stock, will be validly issued, fully paid and
nonassessable.
6. Amendment. The form of the Receipts and any provisions of the
---------
Deposit Agreement may at any time and from time to time be amended by agreement
between the Company and the Depositary in any respect which they may deem
necessary or desirable; provided, however, that no such amendment that shall
-------- -------
materially and adversely alter the rights of the holders of Receipts shall be
effective unless such amendment shall have been approved by the holders of at
least 66 2/3% of the Depositary Shares then outstanding. A holder of a Receipt
at the time any amendment so becomes effective shall be deemed, by continuing to
hold such Receipt, to consent and agree to such amendment and to be bound by the
Deposit Agreement as amended thereby.
7. Charges of Depositary. The Company will pay all transfer and
---------------------
other taxes and governmental charges arising solely from the existence of the
Depositary arrangements, all charges of the Depositary in connection with the
initial deposit of the Stock and the initial issuance of the Depositary Shares,
withdrawal of the Stock and the issuance of shares of Common Stock upon the
surrender of Receipts for conversion. All other transfer and other taxes and
other governmental charges shall be at the expense of holders of Depositary
Shares.
8. Title to Receipts. This Receipt (and the Depositary Shares
-----------------
evidenced hereby), when properly endorsed or accompanied by a properly executed
instrument of transfer, is transferable by delivery with the same effect as in
the case of a negotiable instrument; provided, however, that until transfer of a
-------- -------
Receipt shall be registered on the books of the Registrar, on behalf of the
Depositary, the Depositary may, notwithstanding any notice to the contrary,
treat the record holder hereof at such time as the absolute owner hereof for the
purpose of determining the person entitled to distributions of dividends or
other distributions or to any notice provided for in the Deposit Agreement, and
for all other purposes.
9. Dividends and Distributions. Whenever the Depositary receives any
---------------------------
cash dividend or other cash distribution on the Stock, the Depositary will,
subject to the provisions of the Deposit Agreement, make such distribution to
the Receipt holders as nearly as practicable in proportion to the number of
Depositary Shares held by them; provided, however, that the amount distributed
-------- -------
will be reduced by any amounts required to be withheld by the Company or the
Depositary on account of taxes or as otherwise required
A-7
<PAGE>
pursuant to law, regulations or court order. Other distributions received on
the Stock may be distributed to holders of Receipts as provided in the Deposit
Agreement.
10. Fixing of Record Date. Whenever any cash dividend or other cash
---------------------
distribution shall become payable or any distribution other than cash shall be
made, or if rights, preferences or privileges shall at any time be offered with
respect to Stock, or whenever the Depositary shall receive notice of any meeting
at which holders of Stock are entitled to vote or of which holders of Stock are
entitled to notice, the Depositary shall in each instance fix a record date
(which shall be the record date fixed by the Company with respect to the Stock)
for the determination of the holders of Receipts who shall be entitled to
receive such dividend, distribution, rights, preferences, privileges or the net
proceeds of the sale thereof, or to give instructions for the exercise of voting
rights at any such meeting, or who shall be entitled to notice of such meeting.
11. Voting Rights. Upon receipt of notice of any meeting at which
-------------
holders of Stock are entitled to vote, the Depositary shall, as soon as
practicable thereafter, mail to the record holders of Receipts a notice which
shall be provided by the Company and which shall contain (i) such information
as is contained in such notice of meeting, (ii) a statement informing holders of
record at the close of business on a specified record date that they may
instruct the Depositary as to the exercise of the voting rights pertaining to
the amount of Stock (or portion thereof) relating to their respective Depositary
Shares and (iii) a brief statement as to the manner in which such instructions
may be given. Upon the written request of a holder of a Receipt on such record
date, the Depositary shall endeavor insofar as practicable to vote or cause to
be voted the amount of Stock (or portion thereof) relating to such Receipt in
accordance with the instructions set forth in such request. Absent specific
instructions from the holder of a Receipt, the Depositary will abstain from
voting (but, at its discretion, not from appearing at any meeting with respect
to such Stock unless directed to the contrary by the holders of all the
Receipts) to the extent of the Stock (or portion thereof) underlying the
Depositary Shares evidenced by such Receipt.
12. Changes Affecting Deposited Securities. Upon any change in par
--------------------------------------
or stated value, split-up, combination or any other reclassification of the
Stock or upon any recapitalization, reorganization, merger, amalgamation or
consolidation to which the Company is a party, or upon the sale of all or
substantially all the Company's assets, the Depositary may in its discretion
with the approval of, and
A-8
<PAGE>
shall upon the instructions of, the Company, and (in either case) in such manner
as to retain as nearly as possible the percentage ownership interest in Stock of
holders of Receipts immediately prior to such event, (i) make such adjustments
in (a) the fraction of an interest in one share of Stock underlying one
Depositary Share and (b) the ratio of the Optional Conversion Rate and Exchange
Rate per Depositary Share to the Optional Conversion Rate and Exchange Rate of a
share of Stock, in each case as may be necessary fully to reflect the effects of
such change, and (ii) treat any securities received by the Depositary in
exchange for, or upon conversion or in respect of, the Stock as new deposited
securities so received in exchange for, or upon conversion or in respect of,
such Stock. In any such case the Depositary may in its discretion, with the
approval of the Company, execute and deliver additional Receipts, or may call
for the surrender of outstanding Receipts to be exchanged for new Receipts
specifically describing such new deposited securities.
Anything to the contrary herein or in the Depositary Agreement
notwithstanding, holders of Receipts shall have the right from and after the
effective date of any such transaction, to the extent that holders of Stock had
the right, prior to or on the applicable effective date, to convert, exchange or
surrender shares of Stock into or for other stock, securities, property or cash,
to surrender such Receipts to the Depositary with instructions to convert,
exchange or surrender the Stock represented thereby only into or for, as the
case may be, the kind and amount of shares of stock and other securities and
property and cash into which the Stock represented by such Receipts has been
converted or for which such Stock might have been exchanged or surrendered
immediately prior to the effective date of such transaction.
13. Liability and Obligations of the Depositary, the Depositary's
-------------------------------------------------------------
Agents or the Company. Neither the Depositary nor any Depositary's Agent nor
- ---------------------
any Registrar nor the Company shall incur any liability to any holder of any
Receipt if by reason of any provision of any present or future law, or
regulation thereunder, or by reason of any provision, present or future, of the
Company's Articles of Incorporation (including the Articles) or by reason of any
act of God, war or civil disorder, failure of power, fire or other casualty
damage or governmental requirements or restrictions, the Depositary, the
Depositary's Agent, the Registrar or the Company shall be prevented or forbidden
from doing or performing any act or thing that the terms of the Deposit
Agreement provide shall be done or performed; nor shall the Depositary, any
Depositary's Agent, any Registrar or the Company incur any liability or be
subject to any obligation
A-9
<PAGE>
(i) by reason of nonperformance or delay, caused as aforesaid, in performance
of any act or thing that the terms of the Deposit Agreement provide shall or may
be done or performed, or (ii) by reason of any exercise of, or failure to
exercise, any discretion provided for in the Deposit Agreement, except in the
event of the gross negligence or willful misconduct of the party charged with
such exercise or failure to exercise. Neither the Depositary nor any
Depositary's Agent nor the Company assumes any obligation or shall be subject to
any liability under the Deposit Agreement to holders of Receipts other than to
use its best judgment and good faith in the performance of such duties as are
specifically set forth in the Deposit Agreement. Neither the Depositary nor any
Depositary's Agent nor any Registrar shall be under any obligation to appear in,
prosecute or defend any action, suit or other proceeding in respect to the
Stock, the Depositary Shares or the Receipts that in its opinion may involve it
in expense or liability, unless indemnity satisfactory to it against all expense
and liability be furnished. The Deposit Agreement contains various other
exculpatory, indemnification and related provisions, to which reference is
hereby made.
14. Resignation and Removal of Depositary. The Depositary may at any
-------------------------------------
time (i) resign by written notice of its election so to resign delivered to the
Company, such resignation to take effect upon the appointment of a successor
Depositary and its acceptance of such appointment, or (ii) be removed by the
Company, such removal to take effect upon the appointment of a successor
Depositary and its acceptance of such appointment.
15. Termination of Deposit Agreement. The Deposit Agreement may be
--------------------------------
terminated by the Company or the Depositary upon or after the occurrence of any
of the following events: (i) there shall have been made a final distribution
in respect of the Stock in connection with any liquidation, dissolution or
winding up of the Company and such distribution shall have been distributed to
the holders of Receipts; or (ii) each share of Stock shall have been converted
into shares of Common Stock.
16. Governing Law. THIS RECEIPT AND THE DEPOSIT AGREEMENT AND ALL
-------------
RIGHTS HEREUNDER AND THEREUNDER AND PROVISIONS HEREOF AND THEREOF SHALL BE
GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF OHIO
(WITHOUT REFERENCE TO APPLICABLE CONFLICTS OF LAW PROVISIONS).
A-10
<PAGE>
NOTICE OF CONVERSION
The undersigned hereby irrevocably exercises the option to convert
this Receipt or a portion hereof below designated into shares of Common Stock of
Alco Standard Corporation in accordance with the terms of the Certificate
referred to in this Receipt, and directs the Depositary to instruct the Company
that the shares of Common Stock issuable and deliverable upon the conversion,
together with any check in payment of accrued and unpaid dividends or in lieu of
fractional shares, and any Receipts representing any unconverted Depositary
Shares be issued and delivered to the undersigned unless, in the case of such
shares of Common Stock or Receipts, a different name has been indicated below.
If shares of Common Stock or Receipts are to be issued in the name of a person
other than the undersigned, the undersigned will pay all transfer taxes payable
with respect thereto.
Dated:
--------------------- -----------------------------------------------
Signature of Holder (must conform in all
respects to the name of the Holder appearing on
the face hereof.)
Signature Guaranteed By:
-----------------------------------------------
Number of Depositary Shares to
be Converted
- -----------------------------
A-11
<PAGE>
Fill in for registration of shares of Common Stock and/or Receipts if to be
issued otherwise than to Holder.
----------------------------- Social Security or Other
(Name) Taxpayer Identifying Number
----------------------------- ---------------------------
(Address)
-----------------------------
Please print name and address
(including zip code number)
A-12
<PAGE>
EXHIBIT 2
Draft of July 14, 1995
DEPOSIT AGREEMENT
dated as of July , 1995
among
ALCO STANDARD CORPORATION,
an Ohio corporation,
NATIONAL CITY BANK,
a national banking association,
AND THE HOLDERS FROM TIME TO TIME
OF THE RECEIPTS DESCRIBED HEREIN.
WHEREAS, it is desired to provide, as hereinafter set forth in this
Deposit Agreement, for the deposit of shares of Series BB Conversion Preferred
Stock, no par value, of ALCO STANDARD CORPORATION with the Depositary (as
hereinafter defined) for the purposes set forth in this Deposit Agreement and
for the issuance hereunder of Receipts (as hereinafter defined) by the
Depositary evidencing Depositary Shares (as hereinafter defined) in respect of
the Stock (as hereinafter defined) so deposited; and
WHEREAS, the Receipts are to be substantially in the form of Exhibit A
---------
annexed hereto, with appropriate insertions, modifications and omissions as
hereinafter provided in this Deposit Agreement;
NOW, THEREFORE, in consideration of the premises contained herein and
such other good and valuable consideration, receipt of which is hereby
acknowledged, the parties hereto agree as follows:
ARTICLE I
DEFINITIONS
The following definitions shall for all purposes, unless otherwise
indicated, apply to the respective terms used in this Deposit Agreement and the
Receipts (as hereinafter defined):
"Certificate" shall mean the Certificate of Amendment to the Amended
Articles of Incorporation filed with the Secretary of State of Ohio establishing
the Stock as a series of preferred stock of the Company, as it may be amended
from time to time in accordance with its terms.
"Common Stock" shall mean the Company's Common Stock, no par value.
<PAGE>
"Company" shall mean Alco Standard Corporation, an Ohio corporation,
and its successors.
"Deposit Agreement" shall mean this Deposit Agreement, as amended or
supplemented from time to time in accordance with the terms hereof.
"Depositary" shall mean National City Bank, a national banking
association, and any successor Depositary hereunder.
"Depositary Shares" shall mean the Depositary Shares, each
representing a one-one hundredth (1/100) interest in a share of Stock and
evidenced by a Receipt.
"Depositary's Agent" shall mean an agent appointed by the Depositary
pursuant to Section 7.05.
"Depositary's Office" shall mean the principal office of the
Depositary at which at any particular time its depositary business shall be
administered.
"Receipt" shall mean one of the depositary receipts, whether in
definitive or temporary form, issued hereunder by the Depositary, each
representing any number of whole Depositary Shares. If the context so requires,
the term "Receipt" shall be deemed to include the DTC Receipt (as defined in
Section 2.01 hereof).
"Record Holder" or "Holder" with respect to a Receipt shall mean the
individual, entity or person in whose name a Receipt is registered on the books
of the Depositary or any register of any Registrar maintained for such purpose
at a given time.
"Registrar" shall mean any bank or trust company that shall be
appointed by the Depositary to register ownership and transfers of Receipts as
herein provided and may include the Depositary.
"Stock" shall mean shares of the Company's Series BB Conversion
Preferred Stock (liquidation preference $_______ per share).
-2-
<PAGE>
ARTICLE II
BOOK-ENTRY FORM; FORM OF RECEIPTS; DEPOSIT OF STOCK; EXECUTION AND DELIVERY,
TRANSFER AND SURRENDER OF RECEIPTS
SECTION 2.01. Book-Entry Form; Form and Transfer of Receipts. The
----------------------------------------------
Company and the Depositary shall make application to The Depository Trust
Company ("DTC") for acceptance of all or a portion of the Receipts for its book-
entry settlement system. The Company hereby appoints the Depositary acting
through any authorized officer thereof as its attorney-in-fact, will full power
to delegate, for purposes of executing any agreements, certifications or other
instruments or documents necessary or desirable in order to effect the
acceptance of such Receipts for DTC eligibility, including but not limited to,
the FAST Balance Certificate Agreement between the Depositary and DTC (the "FAST
Agreement"), a copy of which is attached as Exhibit B. So long as the Receipts
---------
are eligible for book-entry settlement with DTC except as provided for in
Section [2.09] of this Deposit Agreement, or unless otherwise required by law,
all Depositary Shares to be traded on the New York Stock Exchange with book-
entry settlement through DTC shall be represented by a single receipt (the "DTC
Receipt") which shall be deposited with DTC (or its designee) evidencing all
such Depositary Shares and registered in the name of the nominee of DTC
(initially expected to be Cede & Co.). National City Bank or such other entity
as is agreed to by DTC may hold the DTC Receipt as custodian for DTC. During
any period in which any Depositary Shares are evidenced by the DTC Receipt
except as expressly provided for in Section 2.10 of this Deposit Agreement, no
person acquiring Depositary Shares traded on the New York Stock Exchange with
book-entry settlement through DTC shall receive or be entitled to receive
physical delivery of the Receipts evidencing such Depositary Shares. Ownership
of beneficial interests in the DTC Receipt shall be shown on, and the transfer
of such ownership shall be effected through, records maintained by (i) DTC or
its nominee for such DTC Receipt, or (ii) institutions that have accounts with
DTC.
If DTC subsequently ceases to make its book-entry settlement system
available for the Receipts, the Company may instruct the Depositary regarding
making other arrangements for book-entry settlement. In the event that the
Receipts are not eligible for, or it is no longer necessary to have the Receipts
available in book-entry form, the Depositary shall provide written instructions
to DTC to deliver to the Depositary for cancellation the DTC Receipt, and the
Company shall instruct the Depositary to deliver to the beneficial owners of the
Depositary Shares previously
-3-
<PAGE>
evidenced by the DTC Receipt definitive Receipts in physical form evidencing
such Depositary Shares. Such definitive Receipts shall be in the form annexed
hereto as Exhibit A with appropriate insertions, modifications and omissions, as
---------
hereafter provided.
The beneficial owners of Depositary Shares shall, except as stated
above with respect to Depositary Shares in book-entry form represented by the
DTC Receipt, be entitled to receive Receipts in physical, certificated form as
herein provided.
The Receipts may be typewritten, in the case of the DTC Receipt, and
otherwise shall, upon notice by the Company to the Depositary, be definitive
Receipts which shall be engraved, printed or typewritten and shall be
substantially in the form set forth in Exhibit A annexed to this Deposit
---------
Agreement, with appropriate insertions, modifications and omissions, as
hereinafter provided. The DTC Receipt shall bear such legend or legends as may
be required by DTC in order for it to accept the Depositary Shares for its book-
entry settlement system. Pending the preparation of definitive Receipts, the
Depositary, upon the written order of the Company delivered in compliance with
Section 2.02, shall execute and deliver temporary Receipts, which shall be
printed, lithographed, typewritten, mimeographed or otherwise substantially of
the tenor of the definitive Receipts in lieu of which they are issued and with
such appropriate insertions, omissions, substitutions and other variations as
the persons executing such Receipts may determine, as evidenced by their
execution of such Receipts. If temporary Receipts are issued, the Company and
the Depositary will cause definitive Receipts to be prepared without
unreasonable delay. After the preparation of definitive Receipts, the temporary
Receipts shall be exchangeable for definitive Receipts upon surrender of the
temporary Receipts at the Depositary's Office, without charge to the holder.
Upon surrender for cancellation of any one or more temporary Receipts, the
Depositary shall execute and deliver in exchange therefor definitive Receipts
representing the same number of Depositary Shares as represented by the
surrendered temporary Receipt or Receipts registered in the name (and only the
name) of the holder of the temporary Receipt. Such exchange shall be made at
the Company's expense and without any charge therefor to the holder. Until so
exchanged, the temporary Receipts shall in all respects be entitled to the same
benefits under this Deposit Agreement, and with respect to the Stock, as
definitive Receipts.
-4-
<PAGE>
Receipts shall be executed by the Depositary by the manual signature
of a duly authorized officer of the Depositary; provided, however, that such
--------- -------
signature may be a facsimile if a Registrar for the Receipts (other than the
Depositary) shall have been appointed and such Receipts are countersigned by
manual signature of a duly authorized officer of the Registrar. No Receipt
shall be entitled to any benefits under this Deposit Agreement or be valid or
obligatory for any purpose unless it shall have been executed manually by a duly
authorized officer of the Depositary or, if a Registrar for the Receipts (other
than the Depositary) shall have been appointed, by facsimile signature of a duly
authorized officer of the Depositary and countersigned manually by a duly
authorized officer of such Registrar. The Depositary shall record on its books
each Receipt so signed and delivered as hereinafter provided. The manual or
facsimile signatures of individuals who were at any time proper officers of the
Depositary or the Registrar, as the case may be, shall constitute adequate
signatures hereunder, notwithstanding that such individuals or any of them have
ceased to hold such offices prior to the delivery of Receipts bearing such
signatures or did not hold such offices on the date of delivery of such
Receipts.
Receipts shall be in denominations of any number of whole Depositary
Shares.
Receipts may be endorsed with or have incorporated in the text thereof
such legends or recitals or changes not inconsistent with the provisions of this
Deposit Agreement as may be required by the Depositary and approved by the
Company or required to comply with any applicable law or regulation or with the
rules and regulations of any securities exchange upon which the Stock, the
Depositary Shares or the Receipts may be listed or to conform with any usage
with respect thereto, or to indicate any special limitations or restrictions to
which any particular Receipts are subject.
Title to any Receipt (and to the Depositary Shares evidenced by such
Receipt) that is properly endorsed, or accompanied by a properly executed
instrument of transfer, shall be transferable by delivery of such Receipt with
the same effect as if such Receipt were a negotiable instrument; provided,
--------
however, that until transfer of a Receipt shall be registered on the books of
- -------
the Registrar, on behalf of the Depositary, as provided in Section 2.03, the
Depositary may, notwithstanding any notice to the contrary, treat the record
holder as the absolute owner thereof for the purpose of determining the person
entitled to distributions of dividends or other distributions with respect to
the Stock, the exchange of Depositary Shares for Stock, the right to
-5-
<PAGE>
exchange Receipts pursuant to Section 2.10 or to any notice provided for in this
Deposit Agreement and for all other purposes.
The Depositary shall not lend any Stock deposited hereunder.
SECTION 2.02. Deposit of Stock; Execution and Delivery of Receipts in
-------------------------------------------------------
Respect Thereof. Subject to the terms and conditions of this Deposit Agreement,
- ---------------
the Company or any other person authorized under the underwriting agreement,
dated July __, 1995, between the Company and the underwriters with respect to
the Stock (the "Other Persons"), may from time to time deposit shares of Stock
with the Depositary under this Deposit Agreement by delivery to the Depositary
of a certificate or certificates representing the Stock to be deposited;
provided, however, that other than in the case of splits, combinations or other
- -------- -------
reclassifications affecting the Stock, or in the case of dividends or other
distributions of Stock, if any, there shall be deposited with the Depositary
hereunder not more than ___________ shares of Stock. Such certificate or
certificates representing the Stock shall be properly endorsed or accompanied,
if required by the Depositary, by a duly executed instrument of transfer or
endorsement, in form satisfactory to the Depositary, together with a written
order of the Company directing the Depositary to execute and deliver to the
person or persons named in such order a Receipt or Receipts evidencing in the
aggregate the number of Depositary Shares representing such deposited Stock.
All Stock deposited by the Company or the Other Persons, as the case
may be, with the Depositary shall be held by the Depositary at the Depositary's
Office or at such other place or places as the Depositary shall determine.
If required by the Depositary, Stock presented for deposit at any time
(except for the initial deposit of Stock by the Company or the Other Persons and
any subsequent deposit by the Company or the Other Persons of Stock acquired by
such Other Persons pursuant to such Other Persons' overallotment option),
whether or not the register of stockholders of the Company is closed, shall also
be accompanied by an agreement or assignment, or other instrument satisfactory
to the Depositary, that will provide for the prompt transfer to the Depositary
or its nominee of any dividend or right to subscribe for additional Stock or to
receive other property that any person in whose name the Stock is or has been
registered may thereafter receive upon or in respect of such deposited Stock, or
in lieu thereof
-6-
<PAGE>
such agreement of indemnity or other agreement as shall be satisfactory to the
Depositary.
Upon receipt by the Depositary of a certificate or certificates
representing Stock deposited with the Depositary by the Company or the Other
Persons, as the case may be, in accordance with the provisions of this Section,
together with the other documents required as above specified, and upon
recordation of the Stock so deposited on the books of the Company in the name of
the Depositary, the Depositary shall execute and deliver, to the person or
persons named in the written order delivered to the Depositary referred to in
the first paragraph of this Section 2.02, a Receipt or Receipts evidencing in
the aggregate the number of Depositary Shares relating to the Stock so
deposited. Such Receipt or Receipts shall be registered by the Depositary or
the Registrar in such name or names as may be requested by the person or persons
named in the written order of the Company delivered to the Depositary. The
Depositary shall execute and deliver such Receipts at the Depositary's Office or
such other offices, if any, as such person may designate. Delivery at other
offices shall be at the risk and expense of the person requesting such delivery.
In each case, delivery will be made only upon payment by the Company to the
Depositary of all taxes and other governmental charges and any fees payable in
connection with such deposit and the transfer of the deposited Stock. The DTC
Receipt shall provide that it shall evidence the aggregate amount of Depositary
Shares from time to time indicated in the records of the Depositary and that the
aggregate amount of Depositary Shares evidenced thereby may from time to time be
increased or decreased by making adjustments on such records of the Depositary.
The Company shall deliver to the Depositary from time to time such
quantities of blank Receipts as the Depositary may request to enable it to
perform its obligations under this Deposit Agreement.
SECTION 2.03. Registration of Transfer of Receipts. Subject to the
------------------------------------
terms and conditions of this Deposit Agreement, the Registrar, on behalf of the
Depositary, shall register on its books transfers of Receipts from time to time
upon notice to the Registrar by the Depositary of the surrender of a Receipt for
transfer by the holder in person or by duly authorized attorney, which Receipt
in each case must be properly endorsed or accompanied by a properly executed
instrument of transfer or endorsement together with evidence of the payment of
any transfer taxes as may be required by law. Upon surrender of a properly
endorsed Receipt or a Receipt accompanied by an
-7-
<PAGE>
instrument of transfer or endorsement, the Depositary shall execute a new
Receipt or Receipts evidencing the same aggregate number of Depositary Shares as
those evidenced by the Receipt or Receipts surrendered and deliver such new
Receipt or Receipts to or upon the order of the transferee named in the
endorsement or instrument of transfer.
SECTION 2.04. Split-ups and Combinations of Receipts; Surrender of
----------------------------------------------------
Receipts and Withdrawal of Stock. Upon surrender of a Receipt or Receipts at
- --------------------------------
the Depositary's Office or at such other office as it may designate for the
purpose of effecting a split-up or combination of such Receipt or Receipts, the
Depositary shall execute and deliver a new Receipt or Receipts to the holder
thereof or to such holder's order in the denominations requested, evidencing the
aggregate number of Depositary Shares evidenced by the Receipt or Receipts
surrendered. The Depositary shall give prompt notice of such action and the
certificate numbers to the Registrar for the purpose of recording such split-up
or consolidation.
Any holder of at least one hundred (100) Depositary Shares may
withdraw the number of whole shares of Stock underlying such Depositary Shares
and all money and other property, if any, represented thereby by surrendering
such Receipt or Receipts at the Depositary's Office or at such other offices as
the Depositary may designate for such withdrawals. If such holder's Depositary
Shares are being held by DTC or its nominee pursuant to Section 2.01, such
holder shall request, in accordance with Section 2.10, withdrawal from the book-
entry system of the number of Depositary Shares specified in the preceding
sentence. Thereafter, without unreasonable delay, the Depositary shall deliver
to such holder, or to the person or persons designated by such holder as
hereinafter provided, the number of whole shares of Stock and all money and
other property, if any, represented by the Receipt or Receipts so surrendered
for withdrawal, but holders of such whole shares of Stock will not thereafter be
entitled to deposit such Stock hereunder or to receive Depositary Shares
therefor. If the Receipt or Receipts delivered by the holder to the Depositary
in connection with such withdrawal shall evidence in the aggregate a number of
Depositary Shares in excess of the number of Depositary Shares representing the
number of whole shares of Stock to be so withdrawn, the Depositary shall at the
same time, in addition to such number of whole shares of Stock and such money
and other property, if any, to be so withdrawn, deliver to such holder, or
(subject to Sections 2.03 and 3.02) upon his order, a new Receipt evidencing
such excess number of Depositary Shares. Delivery of the Stock and the money
and other property being
-8-
<PAGE>
withdrawn may be made by the delivery of such certificates, documents of title
and other instruments as the Depositary may deem appropriate.
Stock delivered pursuant to the preceding paragraph may be endorsed
with or have incorporated in the text thereof such legends or recitals or
changes not inconsistent with the provisions of this Deposit Agreement as may be
required by the Depositary or required to comply with any applicable law or any
regulation thereunder or with the rules and regulations of any securities
exchange upon which the Stock may be listed or to conform with any usage with
respect thereto, or to indicate any special limitations or restrictions to which
any particular shares of Stock are subject.
If the Stock and the money and other property being withdrawn are to
be delivered to a person or persons other than the record holder of the Receipt
or Receipts being surrendered for withdrawal of Stock, such holder shall execute
and deliver to the Depositary a written order so directing the Depositary and
the Depositary may require that the Receipt or Receipts surrendered by such
holder for withdrawal of such shares of Stock be properly endorsed in blank or
accompanied by a properly executed instrument of transfer in blank.
Delivery of the Stock and the money and other property, if any,
represented by Receipts surrendered for withdrawal shall be made by the
Depositary at the Depositary's Office, except that, at the request, risk and
expense of the holder surrendering such Receipt or Receipts and for the account
of the holder thereof, such delivery may be made at such other place as may be
designated by such holder.
SECTION 2.05. Limitations on Execution and Delivery, Transfer,
------------------------------------------------
Surrender and Exchange of Receipts. As a condition precedent to the execution
- -----------------------------------
and delivery, registration of transfer, split-up, combination, surrender or
exchange of any Receipt, the Depositary, any of the Depositary's Agents or the
Company may require payment to it of a sum sufficient for the payment (or, in
the event that the Depositary or the Company shall have made such payment, the
reimbursement to it) of any taxes, charges or expenses payable by the holder of
a Receipt pursuant to Sections 3.02 and 5.07, may require the production of
evidence satisfactory to it as to the identity and genuineness of any signature
and may also require compliance with the rules and regulations of any
governmental body, any stock exchange or any applicable self-regulatory body,
including, without
-9-
<PAGE>
limitation, the Securities Transfer Association, Inc. (the "STA"), the National
Association of Securities Dealers, Inc. (the "NASD") or such procedures, if any,
as the Depositary or the Company may establish consistent with the provisions of
this Deposit Agreement.
The delivery of Receipts against Stock deposited with the Depositary
may be suspended, the registration of transfer of Receipts may be refused and
the registration of transfer, surrender, exchange, split-up or combination of
outstanding Receipts may be suspended and the deposit of Stock may be refused
(i) during any period when the register of stockholders of the Company is closed
or (ii) if any such action is deemed necessary by the Depositary, any of the
Depositary's Agents or the Company at any time or from time to time because of
any requirement of law or of any government, governmental body or commission,
stock exchange or the NASD.
SECTION 2.06. Lost Receipts, etc. If any mutilated Receipt is
------------------
surrendered to the Depositary, the Depositary shall execute and deliver in
exchange therefor a new Receipt of like form and tenor in exchange and
substitution for such mutilated Receipt. In case any Receipt shall be
destroyed, lost or stolen, the Depositary shall execute and deliver a Receipt to
the holder thereof of like form and tenor in exchange and substitution for such
destroyed, lost or stolen Receipt, upon (i) the filing by the holder thereof
with the Depositary of evidence satisfactory to the Depositary of such
destruction or loss or theft of such Receipt, of the authenticity thereof and of
such holder's ownership thereof and (ii) the holder's furnishing the Depositary
with reasonable indemnification satisfactory to such Depositary and (iii)
payment of any expenses, including fees, charges and expenses of the Depositary
in connection with such execution and delivery (which may include the customary
premium payable to its insurance carrier in connection therewith). Every new
Receipt issued pursuant to this Section in lieu of any mutilated, destroyed,
lost or stolen Receipt shall constitute an original additional contractual
obligation under this Deposit Agreement, whether or not the mutilated,
destroyed, lost or stolen Receipt shall be at any time enforceable by anyone.
SECTION 2.07. Cancellation and Destruction of Surrendered Receipts.
----------------------------------------------------
All Receipts surrendered to the Depositary or any Depositary's Agent shall be
canceled by the Depositary. Except as prohibited by applicable law or
regulation, the Depositary is authorized to destroy all Receipts so cancelled.
Any Receipt evidenced in book-entry
-10-
<PAGE>
form shall be deemed cancelled when the Depositary has caused the amount of
Depositary Shares evidenced by the DTC Receipt to be reduced in proportion to
the number of Depositary Shares evidenced by the surrendered Receipt.
SECTION 2.08. Stock Purchase Plans. Upon receipt of instructions
--------------------
from the Company, the Depositary shall take such action as shall be reasonable
to permit the record holders of the Depositary Shares to participate in any
dividend reinvestment or other stock purchase plan sponsored by the Company that
permits the participation by such holders on such terms and conditions as the
Company may determine.
SECTION 2.09. Conversion of Stock into Common Stock. Receipts may
-------------------------------------
be surrendered with written instructions to the Depositary to instruct the
Company to cause the conversion of any specified number of whole or fractional
shares of Stock represented by the Depositary Shares evidenced thereby into
whole shares of Common Stock at the conversion rate then in effect for the Stock
(and, therefore, for the Depositary Shares) specified in the Certificate, as
such conversion rate may be adjusted by the Company from time to time as
provided in the Certificate. Subject to the terms and conditions of this
Deposit Agreement and the Certificate, a holder of a Receipt or Receipts
evidencing Depositary Shares representing whole or fractional shares of Stock
may surrender such Receipt or Receipts at the Depositary's Office or to such
office or to such Depositary's Agents as the Depositary may designate for such
purpose, together with a notice of conversion duly completed and executed,
thereby directing the Depositary to instruct the Company to cause the conversion
of the number of shares or fractions thereof of underlying Stock specified in
such notice of conversion into shares of Common Stock, and an assignment of such
Receipt or Receipts to the Company or in blank, duly completed and executed. To
the extent that a holder delivers to the Depositary for conversion a Receipt or
Receipts which in the aggregate are convertible into less than one whole share
of Common Stock, the holder shall receive payment in lieu of such fractional
shares of Common Stock otherwise issuable. If more than one Receipt shall be
delivered for conversion at one time by the same holder, the number of whole
shares of Common Stock issuable upon conversion thereof shall be computed on the
basis of the aggregate number of Receipts so delivered.
Upon receipt by the Depositary of a Receipt or Receipts, together with
notice of conversion, duly completed and executed, directing the Depositary to
instruct the Company to cause the conversion of a specified number of
-11-
<PAGE>
shares or fractions thereof of Stock and an assignment of such Receipt or
Receipts to the Company or in blank, duly completed and executed, the Depositary
shall instruct the Company (i) to cause the conversion of the Depositary Shares
evidenced by the Receipts so surrendered for conversion as specified in the
written notice to the Depositary and (ii) to cause the delivery to the holders
of such Receipts of a certificate or certificates evidencing the number of whole
shares of Common Stock and the amount of money, if any, to be delivered to the
holders of Receipts surrendered for conversion in payment of any accrued and
unpaid dividends and in lieu of fractional shares of Common Stock otherwise
issuable. The Company shall as promptly as practicable after receipt thereof
cause the delivery of (i) a certificate or certificates evidencing the number of
whole shares of Common Stock into which the Stock represented by the Depositary
Shares evidenced by such Receipt or Receipts has been converted, and (ii) any
money or other property to which the holder is entitled. Upon such conversion,
the Depositary (i) shall deliver to the holder a Receipt evidencing the number
of Depositary Shares, if any, which such holder has elected not to convert and
evidencing the number of Depositary Shares, if any, in excess of the number of
Depositary Shares representing Stock which has been so converted, (ii) shall
cancel the Depositary Shares evidenced by Receipts surrendered for conversion
and (iii) shall deliver to the Company or its transfer agent for the Stock for
cancellation the shares of Stock represented by the Depositary Shares evidenced
by the Receipts so surrendered and so converted.
The record holder of Depositary Shares on any dividend payment record
date established by the Depositary pursuant to Section 4.04 shall be entitled to
receive the dividend payable with respect to such Depositary Shares on the
corresponding dividend payment date notwithstanding the subsequent conversion of
the shares of Stock to which such Depositary Shares relate. If a share of Stock
is converted between the record date with respect to any dividend payment on the
Stock and the next succeeding dividend payment date, any holder of Receipts
surrendered with instructions to the Depositary for conversion of the underlying
Stock shall pay to the Depositary an amount equal to the dividend payable on
such dividend payment date on the Depositary Shares represented by the Receipts
being surrendered for conversion. Any holder of Receipts on a dividend payment
record date who (or whose transferee) surrenders the Receipts with instructions
to the Depositary for conversion of the underlying Stock on the corresponding
dividend payment date will receive the dividend payable with respect to the
Depositary Shares underlying such Receipts and will
-12-
<PAGE>
not be required to include payment of the amount of such dividend upon surrender
of the Receipts for conversion.
Upon the conversion of any shares of Stock for which a request for
conversion has been made by the holder of Depositary Shares representing such
shares, all dividends in respect of such Depositary Shares shall cease to
accrue, such Depositary Shares shall be deemed no longer outstanding, all rights
of the holder of the Receipt with respect to such Depositary Shares (except the
right to receive the Common Stock, any cash payable with respect to any
fractional shares of Common Stock as provided herein and any cash payable on
account of accrued dividends and any Receipts evidencing Depositary Shares not
so converted) shall terminate, and the Receipt evidencing such Depositary Shares
shall be cancelled in accordance with Section 2.07 hereof.
No fractional shares of Common Stock shall be issuable upon conversion
of Stock underlying the Depositary Shares. If any holder of Receipts
surrendered with instructions to the Depositary for conversion of the underlying
Stock would be entitled to a fractional share of Common Stock upon such
conversion, the Company shall cause to be delivered to such holder an amount in
cash for such fractional share as provided in the Certificate.
Section 2.10. Interchangeability of Book-Entry Receipts and Receipts
------------------------------------------------------
in Physical, Certificated Form. Subject to the terms and conditions of this
- ------------------------------
Deposit Agreement, upon receipt by the Depositary of written instructions from a
DTC participant on behalf of any person having a beneficial interest in
Depositary Shares evidenced by the DTC Receipt for the purpose of directing the
Depositary to execute and deliver a Receipt in physical, certificated form
evidencing such Depositary Shares, the Depositary shall follow the procedures
set forth in the FAST Agreement for the purpose of reducing the number of
Depositary Shares evidenced by the DTC Receipt and, following such reduction,
shall execute and deliver to or upon the order of the person or persons named in
such order a Receipt or Receipts registered in the name or names requested by
such person and evidencing in the aggregate the number of Depositary Shares
equal to the reduction in the number evidenced by the DTC Receipt. The
Depositary may require in such written instructions any certification or
representation as it shall deem necessary to comply with applicable law.
Subject to the terms and conditions of this Deposit Agreement, upon
receipt by the Depositary of a
-13-
<PAGE>
Receipt or Receipts in physical, certificated form, duly endorsed or accompanied
by appropriate instruments of transfer, in form satisfactory to the Depositary,
including any required certifications, and together with written instructions
directing the Depositary to adjust its records to reflect an increase in the
aggregate amount of Depositary Shares evidenced by the DTC Receipt (including,
without limitation, information regarding the DTC participant account to be
credited with such increase), and upon payment of the fees and expenses of the
Depositary, the Depositary shall cancel such Receipt or Receipts in physical,
certificated form and shall follow the procedures set forth in the FAST
Agreement for the purpose of reflecting such increase in the number of
Depositary Shares evidenced by the DTC Receipt.
SECTION 2.11. Automatic Conversion of Stock. On the Mandatory
-----------------------------
Conversion Date, provided that the Company shall then have delivered to the
Depositary the shares of Common Stock and the aggregate amount of cash required
to pay any accrued and unpaid dividends and for fractional share interests
issuable and payable upon Automatic Conversion of the Stock then deposited with
the Depositary, the Depositary shall convert (using such shares of Common Stock
and cash so delivered to it) each holder's Depositary Shares into the
proportionate number of whole shares of Common Stock and the proportionate
amount of such cash to which such holder is thereby entitled.
The Depositary shall, as directed by the Company, mail, first class
postage prepaid, notice of such Automatic Conversion of Stock and the proposed
simultaneous Automatic Conversion of the Depositary Shares, not less than five
and not more than 15 days prior to the Mandatory Conversion Date. Such notice
shall be mailed to each holder at the address of such holder as the same appears
on the records of the Depositary at the close of business on the second business
day immediately preceding the date on which the mailing of such notices is
commenced; but neither failure to mail any such notice to one or more holders
nor any defect in any notice shall affect the sufficiency of the proceedings for
Automatic Conversion. The Company shall provide the Depositary with such
notice, and each such notice shall state: the Mandatory Converison Date; that
all outstanding Depositary Shares on the Mandatory Conversion Date will be
automatically converted into shares of Common Stock and the conversion rate at
which such Automatic Conversion shall occur; the amount of accrued and unpaid
dividends, if any, payable with respect to each Depositary Share to be so
converted; the place or places where Receipts to be so converted are to be
surrendered for conversion;
-14-
<PAGE>
that dividends in respect of the Stock represented by Depositary Shares to be so
converted shall cease to accrue of the Mandatory Conversion Date; and such
additional information as the Company in its discretion deems appropriate.
From and after the Mandatory Conversion Date, the Depositary Shares
automatically converted into shares of Common Stock shall be deemed no longer to
be outstanding and all rights of the holders of Receipts evidencing such
Depositary Shares (except the right to receive the shares of Common Stock and
any cash payable upon Automatic Conversion) shall, to the extent of such
Depositary Shares, cease and terminate. Upon surrender, in accordance with the
notice specified in the preceding paragraph, of the Receipts evidencing such
Depositary Shares (properly endorsed or assigned for transfer, if the Depositary
shall so require), the holders of such Receipts shall receive for each such
Depositary Share a number of shares of Common Stock equal to 1/100th of the
number of shares of Common Stock and of the cash for accrued and unpaid
dividends delivered in respect of each share of automatically converted Stock.
The foregoing shall be subject further to the terms and conditions of the
Certificate.
ARTICLE III
CERTAIN OBLIGATIONS OF THE HOLDERS
OF RECEIPTS AND THE COMPANY
SECTION 3.01. Filing Proofs, Certificates and Other Information.
-------------------------------------------------
Except for the initial deposit of Stock by the Company or the Other Persons and
any subsequent deposit by the Company or the Other Persons of Stock acquired by
such Other Persons pursuant to such Other Persons' overallotment option, any
person presenting Stock for deposit or any holder of a Receipt may be required
from time to time to file such proof of residence, or other matters or other
information, to obtain such guaranties of signature, to execute such
certificates and to make such customary representations and warranties
consistent with the terms of the Stock as the Depositary or the Company may
reasonably deem necessary or proper. The Depositary or the Company may withhold
the delivery, or delay the registration of transfer, conversion or exchange, of
any Receipt or the distribution of any dividend or other distribution or the
sale of any rights or of the proceeds thereof until such proof or other
information is filed or such certificates are executed or such representations
and warranties are made.
-15-
<PAGE>
SECTION 3.02. Payment of Taxes or Other Governmental Charges.
----------------------------------------------
Holders of Receipts shall be obligated to make payments to the Depositary of
certain charges and expenses as provided in Section 5.07. Registration of
transfer of any Receipt and delivery of all money or other property, if any,
represented by the Depositary Shares evidenced by such Receipt may be refused
until any such payment due is made, and any dividends, interest payments or
other distributions may be withheld or all or any part of the Stock or other
property represented by the Depositary Shares evidenced by such Receipt and not
theretofore sold may be sold for the account of the holder thereof (after
attempting by reasonable means to notify such holder prior to such sale), and
such dividends, interest payments or other distributions or the proceeds of any
such sale may be applied to any payment of such charges or expenses, the holder
of such Receipt remaining liable for any deficiency.
SECTION 3.03. Warranty as to Stock. The Company hereby represents
--------------------
and warrants to the Depositary that the Stock, when issued, will be validly
issued, fully paid and nonassessable. Such representation and warranty shall
survive the deposit of the Stock and the issuance of Receipts.
SECTION 3.04. Covenants and Warranties as to Common Stock. The
-------------------------------------------
Company covenants that it will keep reserved or otherwise available a sufficient
number of authorized and unissued shares of Common Stock or its issued shares of
Common Stock held in its treasury, or both, to meet conversion requirements in
respect of the Stock and that it will give written notice to the Depositary of
any adjustments in the conversion price as set forth in the Certificate. The
Company represents and warrants that the Common Stock issued upon conversion of
Stock, when issued, will be validly issued, fully paid and non-assessable. Such
representation and warranty shall survive the conversion of the Stock into such
Common Stock.
ARTICLE IV
THE DEPOSITED SECURITIES; NOTICES
SECTION 4.01. Cash Distributions. Whenever the Depositary shall
------------------
receive any cash dividend or other cash distribution with respect to the Stock,
the Depositary shall, subject to Section 3.02, distribute to record holders of
Receipts on the record date fixed pursuant to Section 4.04 such amounts, as
nearly as practicable, of such dividend or distribution as are applicable to the
number of
-16-
<PAGE>
Depositary Shares evidenced by the Receipts held by such holders; provided,
--------
however, that if the Company or the Depositary shall be required to withhold and
- -------
shall withhold any monies from any cash dividend or other cash distribution in
respect of the Stock on account of taxes or as otherwise required by law,
regulation or court order, the distribution in respect of Depositary Shares
shall be reduced accordingly. The Depositary shall distribute or make available
for distribution, as the case may be, only such amount, however, as can be
distributed without attributing to any holder of Depositary Shares a fraction of
one cent, and any balance not so distributable shall be held by the Depositary
(without liability for interest thereon) and shall be added to and be treated as
part of the next succeeding distribution to record holders of Receipts then
outstanding.
SECTION 4.02. Distributions Other than Cash. Whenever the Depositary
-----------------------------
shall receive any property (including securities) for distribution in a form
other than cash with respect to the Stock, the Depositary shall, subject to
Section 3.02, distribute to record holders of Receipts on the record date fixed
pursuant to Section 4.04 such amounts, as nearly as practicable, of such
property (including securities) received by it as are applicable to the number
of Depositary Shares evidenced by the Receipts held by such holders, in any
manner that the Depositary may deem equitable and practicable for accomplishing
such distribution. If, in the opinion of the Depositary, such distribution
cannot be made proportionately among such record holders, or if for any other
reason (including any requirement that the Company or the Depositary withhold an
amount on account of taxes or as otherwise required by law, regulation or court
order) the Depositary deems, after consultation with the Company, such
distribution not to be feasible, the Depositary may, with the approval of the
Company, adopt such method as it deems equitable and practicable for the purpose
of effecting such distribution, including the sale of the property thus
received, or any part thereof, in a commercially reasonable manner. The net
proceeds of any such sale shall, subject to Section 3.02, be distributed or made
available for distribution, as the case may be, by the Depositary to record
holders of Receipts in accordance with the provisions of Section 4.01 for a
distribution received in cash.
SECTION 4.03. Subscription Rights, Preferences or Privileges. If the
----------------------------------------------
Company shall at any time offer or cause to be offered to the persons in whose
names Stock is recorded on the books of the Company any rights, preferences or
privileges to subscribe for or to purchase any securities or any rights,
preferences or privileges of any other
-17-
<PAGE>
nature, such rights, preferences or privileges shall in each such instance be
made available by the Depositary to the record holders of Receipts in such
manner as the Depositary may determine, either by the issue to such record
holders of warrants representing such rights, preferences or privileges or by
such other method as may be approved by the Depositary in its discretion with
the approval of the Company; provided, however, that (i) if at the time of issue
-------- -------
or offer of any such rights, preferences or privileges the Depositary determines
that it is not lawful or (after consultation with the Company) not feasible to
make such rights, preferences or privileges available to holders of Receipts by
the issue of warrants or otherwise, or (ii) if and to the extent so instructed
by holders of Receipts who do not desire to exercise such rights, preferences or
privileges, then the Depositary, in its discretion (with the approval of the
Company, in any case where the Depositary has determined that it is not feasible
to make such rights, preferences or privileges available), may, if applicable
laws or the terms of such rights, preferences or privileges permit such
transfer, sell such rights, preferences or privileges at public or private sale,
at such place or places and upon such terms as it may deem proper. The net
proceeds of any such sales shall be distributed by the Depositary to the record
holders of Receipts entitled thereto as provided by Section 4.01 in the case of
a distribution received in cash.
If any action under the laws of any jurisdiction or any governmental
or administrative authorization, consent or permit is required in order for such
rights, preferences or privileges to be made available to holders of Receipts,
the Company agrees with the Depositary that the Company will use its best
efforts to take such action or obtain such authorization, consent or permit
sufficiently in advance of the expiration of such rights, preferences or
privileges to enable such holders to exercise such rights, preferences or
privileges.
SECTION 4.04. Notice of Dividends, etc.; Fixing of Record Date for
----------------------------------------------------
Holders of Receipts. Whenever any cash dividend or other cash distribution
- -------------------
shall become payable or any distribution of property (including securities)
other than cash shall be made, or if rights, preferences or privileges shall at
any time be offered, with respect to Stock, or whenever the Depositary shall
receive notice of any meeting at which holders of Stock are entitled to vote or
of which holders of Stock are entitled to notice, the Depositary, in each such
instance, shall fix a record date (which shall be the same date as the record
date fixed by the Company with respect to the Stock) for the determination of
the holders of Receipts who shall be entitled hereunder
-18-
<PAGE>
to receive a distribution in respect of such dividend, distribution, rights,
privileges or the net proceeds of the sale thereof, or to give instructions for
the exercise of voting rights at any such meeting, or to receive notice of such
meeting.
SECTION 4.05. Voting Rights. Upon receipt of notice of any meeting
-------------
at which the holders of Stock are entitled to vote, the Depositary shall, as
soon as practicable thereafter, mail to the record holders of Receipts a notice
which shall be provided by the Company and which shall contain (i) such
information as is contained in such notice of meeting and (ii) a statement that
the holders of record at the close of business on the specified record date
fixed pursuant to Section 4.04 will be entitled to instruct the Depositary as to
the exercise of the voting rights pertaining to the amount of Stock (or portion
thereof) underlying their respective Depositary Shares and (iii) a brief
statement as to the manner in which such instructions may be given. Upon the
written request of the holders of Receipts on the applicable record date, the
Depositary shall endeavor, insofar as practicable, to vote or cause to be voted,
in accordance with the instructions set forth in such requests, the votes
relating to the shares of Stock (or portion thereof) underlying the Depositary
Shares evidenced by all Receipts as to which any particular voting instructions
are received. The Company hereby agrees to take all necessary action in order
to enable the Depositary to vote such Stock (or portion thereof) or cause such
Stock (or portion thereof) to be voted. Absent specific instructions from the
holder of a Receipt, the Depositary will abstain from voting (but, at its
discretion, not from appearing at any meeting with respect to such Stock unless
directed to the contrary by the holders of all the Receipts) to the extent of
the Stock (or portion thereof) underlying the Depositary Shares evidenced by
such Receipt.
SECTION 4.06. Changes Affecting Deposited Securities and
------------------------------------------
Reclassifications, Recapitalizations, etc. Upon any change in par or stated
- -----------------------------------------
value, split-up, combination or any other reclassification of the Stock, or upon
any recapitalization, reorganization, merger, amalgamation or consolidation to
which the Company is a party or sale of all or substantially all of the
Company's assets (each of the foregoing being referred to herein as a
"Transaction"), the Depositary may with the approval of, and shall upon the
instructions of, the Company, and (in either case) in such manner as to retain
as nearly as possible the percentage ownership interest in Stock of holders of
Receipts immediately prior to such event, (i) make such adjustments in (a) the
fraction of an interest in one share
-19-
<PAGE>
of Stock underlying one Depositary Share, and (b) the ratio of the Optional
Conversation Rate and Exchange Rate per Depositary Share to the Optional
Conversion Rate and Exchange Rate of a share of Stock, in each case as may be
necessary fully to reflect the effects of such Transaction, and (ii) treat any
securities received by the Depositary in exchange for, or upon conversion or in
respect of, the Stock as new deposited securities so received in exchange for,
or upon conversion or in respect of the Stock. In any such case the Depositary
may, with the approval of the Company, execute and deliver additional Receipts,
or may call for surrender of all outstanding Receipts to be exchanged for new
Receipts specifically describing such new deposited securities.
Anything to the contrary herein or in the Receipt notwithstanding,
holders of Receipts shall have the right from and after the effective date of
any such Transaction, to the extent that holders of Stock had the right, prior
to or on the applicable effective date, to convert, exchange or surrender shares
of Stock into or for other stock, securities, property or cash, to surrender
such Receipts to the Depositary with instructions to convert, exchange or
surrender the Stock represented thereby only into or for, as the case may be,
the kind and amount of shares of stock and other securities and property and
cash into which the Stock represented by such Receipts has been converted or for
which such Stock might have been exchanged or surrendered immediately prior to
the effective date of such transaction.
SECTION 4.07. Inspection of Reports. The Depositary shall make
---------------------
available for inspection by holders of Receipts during normal business hours at
the Depositary's Office, and at such other places as it may from time to time
deem advisable, any reports and communications received from the Company that
are both received by the Depositary as the holder of Stock and made generally
available to the holders of Stock.
SECTION 4.08. List of Receipt Holders. Promptly upon request by, and
-----------------------
at the expense of, the Company, the Depositary shall furnish to it a list, as of
a specified date, of the names and addresses of all persons in whose names
Receipts are registered on the books of the Depositary, and the amount of Stock
represented thereby.
ARTICLE V
THE DEPOSITARY, THE DEPOSITARY'S AGENTS,
THE REGISTRAR AND THE COMPANY
-20-
<PAGE>
SECTION 5.01. Maintenance of Offices, Agencies and Transfer Books by
------------------------------------------------------
the Depositary; Registrar. Upon execution of this Deposit Agreement, the
- -------------------------
Depositary shall maintain, at the Depositary's Office, facilities for the
execution and delivery, registration and registration of transfer, surrender and
exchange of Receipts, and at the offices of the Depositary's Agents, if any,
facilities for the delivery, registration of transfer, surrender and exchange of
Receipts, all in accordance with the provisions of this Deposit Agreement.
The Depositary shall, with the approval of the Company, appoint a
Registrar for registration of such Receipts or Depositary Shares in accordance
with any requirements of any applicable stock exchange in which the Receipts or
the Depositary Shares are listed. Such Registrar (which may be the Depositary
if so permitted by the requirements of such exchange) may be removed and a
substitute Registrar appointed by the Depositary upon the request or with the
approval of the Company. If the Receipts, the Depositary Shares or the Stock
are listed on one or more other stock exchanges, the Depositary will, at the
request of the Company, arrange such facilities for the delivery, registration,
registration of transfer, surrender and exchange of such Receipts, such
Depositary Shares or such Stock as may be required by law or applicable stock
exchange regulation.
The Registrar shall maintain books at the Depositary's Office for the
registration and registration of transfer of Receipts or at such other place as
shall be approved by the Company and of which the holders of Receipts shall have
reasonable notice, which books at all reasonable times during normal business
hours shall be open for inspection by the record holders of Receipts; provided,
--------
that any such holder requesting to exercise such right shall certify in writing
to the Registrar that such inspection shall be for a proper purpose reasonably
related to such person's interest as an owner of Depositary Shares evidenced by
the Receipts.
The Depositary may cause the Registrar to close the books with respect
to the Receipts, at any time or from time to time, when the register of
stockholders of the Company is closed with respect to the Stock or when such
action is deemed necessary or advisable by the Depositary, any Depositary's
Agent or the Company because of any requirement of law or of any government,
governmental body or commission, stock exchange or any applicable self-
regulatory body, including, without limitation, the NASD.
-21-
<PAGE>
SECTION 5.02. Prevention of or Delay in Performance by the
--------------------------------------------
Depositary, the Depositary's Agents, the Registrar or the Company. Neither the
- -----------------------------------------------------------------
Depositary nor any Depositary's Agent nor any Registrar nor the Company shall
incur any liability to any holder of any Receipt if by reason of any provision
of any present or future law, or regulation thereunder, or by reason of any
provision, present or future, of the Company's Articles of Incorporation
(including the Certificate) or by reason of any act of God, war or civil
disorder, failure of power, fire or other casualty damage or governmental
requirements or restrictions, the Depositary, the Depositary's Agent, the
Registrar or the Company shall be prevented or forbidden from doing or
performing any act or thing that the terms of this Deposit Agreement provide
shall be done or performed; nor shall the Depositary, any Depositary's Agent,
any Registrar or the Company incur any liability or be subject to any obligation
(i) by reason of any nonperformance or delay, caused as aforesaid, in the
performance of any act or thing that the terms of this Deposit Agreement provide
shall or may be done or performed, or (ii) by reason of any exercise of, or
failure to exercise, any discretion provided for in this Deposit Agreement,
except in the event of the gross negligence or willful misconduct of the party
charged with such exercise or failure to exercise.
SECTION 5.03. Obligations of the Depositary, the Depositary's Agents,
-------------------------------------------------------
the Registrar and the Company. Neither the Depositary nor any Depositary's
- -----------------------------
Agent nor any Registrar shall be under any obligation to appear in, prosecute or
defend any action, suit or other proceeding in respect of the Stock, the
Depositary Shares or the Receipts that in its opinion may involve it in expense
or liability unless indemnity satisfactory to such party against all such
expense and liability be furnished as often as required.
Neither the Depositary nor any Depositary's Agent nor the Company
assumes any obligation or shall be subject to any liability under this Deposit
Agreement to holders of Receipts other than to use its best judgment and good
faith in the performance of such duties as are specifically set forth in this
Deposit Agreement. Neither the Depositary nor any Depositary's Agent nor any
Registrar nor the Company shall be liable to any party hereto for any action or
any failure to act by it with respect to this Deposit Agreement in reliance upon
the written advice of legal counsel or accountants, or information from any
person presenting Stock for deposit or any holder of a Receipt. The Depositary,
any Depositary's Agent, any Registrar and the Company may each rely and shall
each be protected in acting upon any written notice, request, direction or other
document believed by it
-22-
<PAGE>
to be genuine and to have been signed or presented by the proper party or
parties.
The Depositary undertakes, and shall cause any Registrar to undertake,
to perform such duties and only such duties as are specifically set forth in
this Deposit Agreement using its best efforts and in good faith. The parties
hereto acknowledge that no implied covenants or obligations shall be read into
this Deposit Agreement against the Depositary or any Registrar or against the
Company with respect to the Depositary and any Registrar.
The Depositary, its parent, affiliates, or subsidiaries, any
Depositary's Agent and the Company (to the extent permitted by law) may own,
buy, sell or deal in any class of securities of the Company and its affiliates
and in Receipts or Depositary Shares. The Depositary, its parent, affiliates, or
subsidiaries, and any Depositary's Agent may become pecuniarily interested in
any transaction in which the Company or its affiliates may be interested or
contract with or lend money to the Company or its affiliates or otherwise act as
fully or as freely as if it were not the Depositary or the Depositary's Agent
hereunder. The Depositary may also act as transfer agent or registrar of any of
the securities of the Company and its affiliates or act in any other capacity
for the Company or its affiliates. Neither the Depositary (or its officers,
directors, employees or agents) nor any Depositary's Agent makes any
representation or has any responsibility as to the validity of the Registration
Statement pursuant to which the Depositary Shares are registered under the
Securities Act, the Stock, the Depositary Shares, the Receipts (except its
counter signature thereon) or any instruments referred to therein or herein, or
as to the correctness of any statement made therein except the number of
Depositary Shares represented by such Receipts.
The Depositary assumes no responsibility for the correctness of the
description that appears in the Receipts, which can be taken as a statement of
the Company summarizing certain provisions of this Deposit Agreement.
Notwithstanding any other provision herein or in the Receipts, the Depositary
makes no warranties or representations as to the validity, genuineness or
sufficiency of any Stock at any time deposited with the Depositary hereunder or
of the Depositary Shares or as to the value of the Depositary Shares. The
Depositary shall not be accountable for the use or application by the Company of
the Depositary Shares or the Receipts or the proceeds thereof.
-23-
<PAGE>
SECTION 5.04. Resignation and Removal of the Depositary; Appointment
------------------------------------------------------
of Successor Depositary. The Depositary may at any time resign as Depositary
- -----------------------
hereunder by written notice of its election so to resign delivered to the
Company, such resignation to take effect upon the appointment of a successor
Depositary and its acceptance of such appointment as hereinafter provided.
The Depositary may at any time be removed by the Company by notice of
such removal delivered to the Depositary, such removal to take effect upon the
appointment of a successor Depositary and its acceptance of such appointment as
hereinafter provided.
If the Depositary acting hereunder shall at any time resign or be
removed, the Company shall, within 45 days after the delivery of the notice of
resignation or removal, as the case may be, appoint a successor Depositary,
which shall be a bank or trust company having its principal office in the United
States of America and having a combined capital and surplus of at least
$50,000,000. Every successor Depositary shall execute and deliver to its
predecessor and to the Company an instrument in writing accepting its
appointment hereunder and agreeing to become a party to this Deposit Agreement,
and thereupon such successor Depositary, without any further act or deed, shall
become fully vested with all the rights, powers, duties and obligations of its
predecessor and for all purposes shall be the Depositary under this Deposit
Agreement, and such predecessor, upon payment of all sums due it and on the
written request of the Company, shall execute and deliver an instrument
transferring to such successor all rights and powers of such predecessor
hereunder, shall duly assign, transfer and deliver all right, title and interest
in the Stock and any moneys or property held hereunder to such successor and
shall deliver to such successor a list of the record holders of all outstanding
Receipts. Any successor Depositary shall promptly mail notice of its
appointment to the record holders of Receipts.
Any corporation or other entity into or with which the Depositary may
be merged, consolidated or converted, or to which the Depositary may sell all or
substantially all its assets, shall be the successor of such Depositary without
the execution or filing of any document or any further act. Such successor
Depositary may authenticate the Receipts in the name of the predecessor
Depositary or in the name of the successor Depositary.
SECTION 5.05. Corporate Notices and Reports. The Company agrees that
-----------------------------
it will deliver to the Depositary and
-24-
<PAGE>
the Depositary will, promptly after receipt thereof, transmit to the record
holders of Receipts, in each case at the address furnished to it pursuant to
Section 4.08, all notices and reports (including, without limitation, financial
statements) required by law, the rules of any national securities exchange upon
which the Stock, the Depositary Shares or the Receipts are listed or by the
Company's Articles of Incorporation (including the Certificate) or By-laws to be
furnished by the Company to holders of Stock. Such transmission will be at the
Company's expense and the Company will provide the Depositary with such number
of copies of such documents as the Depositary may reasonably request. In
addition, the Depositary will transmit to record holders of Receipts at the
Company's expense such other documents as may be requested by the Company.
SECTION 5.06. Indemnification by the Company. The Company shall
------------------------------
indemnify the Depositary, any Depositary's Agent and any Registrar against, and
hold each of them harmless from, any loss, liability or expense (including the
reasonable costs and expenses of defending itself) that may arise out of (i)
acts performed or omitted in connection with this Deposit Agreement and the
Receipts (a) by the Depositary, any Registrar or any of their respective agents
(including any Depositary's Agent) except for any liability arising out of gross
negligence or willful misconduct on the respective parts of any such person or
persons, or (b) by the Company or any of its agents, or (ii) the offer, sale or
registration of the Depositary Shares, Receipts or the Stock pursuant to the
provisions hereof. This indemnification does not extend in favor of holders of
Receipts.
SECTION 5.07. Charges and Expenses. The Company shall pay all
--------------------
transfer and other taxes and governmental charges arising solely from the
existence of the Depositary arrangements. The Company shall pay all charges of
the Depositary in connection with the initial deposit of the Stock and the
initial issuance of the Depositary Shares, withdrawals of the Stock and the
issuance of shares of Common Stock upon the conversion of the Stock. All other
transfer and other taxes and governmental charges shall be at the expense of
holders of Depositary Shares. If, at the request of a holder of Receipts, the
Depositary incurs charges or expenses for which it is not otherwise liable
hereunder, such holder will be liable for such charges and expenses. All other
charges and expenses of the Depositary and any Depositary's Agent hereunder and
of any Registrar (including, in each case, reasonable fees and expenses of
counsel) incident to the performance of their respective obligations hereunder
will be payable by the Company only
-25-
<PAGE>
after prior consultation and agreement between the Depositary and the Company
and consent by the Company to the incurrence of such expenses, which consent
shall not be unreasonably withheld. The Depositary shall present any statement
for charges and expenses to the Company promptly, unless the Company shall agree
otherwise.
ARTICLE VI
AMENDMENT AND TERMINATION
SECTION 6.01. Amendment. The form of the Receipts and any provisions
---------
of this Deposit Agreement may at any time and from time to time be amended by
agreement between the Company and the Depositary in any respect which they may
deem necessary or desirable; provided, however, that no such amendment that
-------- -------
shall materially and adversely alter the rights of the holders of Receipts shall
be effective unless such amendment shall have been approved by the holders of at
least 66-2/3% of the Depositary Shares then outstanding. Every holder of an
outstanding Receipt at the time any amendment becomes effective shall be deemed,
by continuing to hold such Receipt, to consent and agree to such amendment and
to be bound by the Deposit Agreement as amended thereby. In no event shall any
amendment impair the right, subject to the provisions of Sections 2.04 and 2.05
hereof, of any owner of any Depositary Shares to surrender any Receipt
evidencing such Depositary Shares to the Depositary with instructions to cause
the conversion of such Receipt into Common Stock or to deliver to the holder the
Stock and all money, and other property, if any, represented thereby, except in
order to comply with mandatory provisions of applicable law or the rules and
regulations of any governmental body, agency or commission, the NASD or any
applicable stock exchange.
SECTION 6.02. Termination. This Agreement may be terminated by the
-----------
Company or the Depositary only after (i) there shall have been made a final
distribution in respect of the Stock in connection with any liquidation,
dissolution or winding up of the Company and such distribution shall have been
distributed to the holders of Depositary Shares pursuant to Section 4.01 or
4.02, as applicable, or (ii) each share of Stock shall have been converted into
shares of Common Stock.
Upon the termination of this Deposit Agreement, the parties hereto
shall be discharged from all obligations under this Deposit Agreement except for
their respective obligations under Sections 5.03, 5.06 and 5.07.
-26-
<PAGE>
ARTICLE VII
MISCELLANEOUS
SECTION 7.01. Counterparts. This Deposit Agreement may be executed
------------
in any number of counterparts, and by each of the parties hereto on separate
counterparts, each of which counterparts, when so executed and delivered, shall
be deemed an original, but all of which counterparts taken together shall
constitute one and the same instrument.
SECTION 7.02. Exclusive Benefit of Parties. This Deposit Agreement
----------------------------
is for the exclusive benefit of the parties hereto, and their respective
successors hereunder, and shall not be deemed to give any legal or equitable
right, remedy or claim to any other person whatsoever.
SECTION 7.03. Invalidity of Provisions. If any one or more of the
------------------------
provisions contained in this Deposit Agreement or in the Receipts should be or
become invalid, illegal or unenforceable in any respect, the validity, legality
and enforceability of the remaining provisions contained herein or therein shall
in no way be affected, prejudiced or modified thereby.
SECTION 7.04. Notices. Any and all notices to be given to the
-------
Company hereunder or under the Receipts shall be in writing and shall be deemed
to have been duly given if personally delivered or sent by mail or telegram,
telecopy or telex confirmed by letter, addressed to the Company at Alco Standard
Corporation, P.O. Box 834, Valley Forge, Pennsylvania 19482, telephone (610)
296-8000, attention: Law Department with a copy to Treasury Department, or
at any other address and to the attention of any other person of which the
Company shall have notified the Depositary in writing.
Any and all notices to be given to the Depositary hereunder or under
the Receipts shall be in writing and shall be deemed to have been duly given if
personally delivered or sent by mail or by telegram, telecopy or telex confirmed
by letter, addressed to the Depositary at the Depositary's Office, National City
Bank, 1900 East 9th Street, Corporate Trust Department, 3rd Floor Annex,
Cleveland, Ohio 44114, (216) 575-2492, attention: ______________, or at any
other address and to the attention of any other person of which the Depositary
shall have notified the Company in writing.
-27-
<PAGE>
Any and all notices to be given to any record holder of a Receipt
hereunder or under the Receipts shall be in writing and shall be deemed to have
been duly given if personally delivered or sent by mail or by telegram, telecopy
or telex confirmed by letter, addressed to such record holder at the address of
such record holder as it appears on the books of the Depositary, or if such
holder shall have timely filed with the Depositary a written request that
notices intended for such holder be mailed to some other address, at the address
designated in such request.
Delivery of a notice sent by mail or by telegram, telecopy or telex
shall be deemed to be effected at the time when a duly addressed letter
containing the same (or a confirmation thereof in the case of a telegram or
telex message) is deposited, postage prepaid, in a post office letter box. The
Depositary or the Company may, however, act upon any telegram or telecopy
message received by it from the other or from any holder of a Receipt,
notwithstanding that such telegram or telecopy message shall not subsequently be
confirmed by letter or as aforesaid.
SECTION 7.05. Depositary's Agents. The Depositary may from time to
-------------------
time appoint any Depositary's Agent to act in any respect for the Depositary for
the purposes of this Deposit Agreement and may at any time appoint additional
Depositary's Agents and vary or terminate the appointment of such Depositary's
Agents. The Depositary will promptly notify the Company of any such action.
SECTION 7.06. Holders of Receipts Are Parties. By acceptance of
-------------------------------
delivery of the Receipts, any holder of such Receipt from time to time shall be
deemed to have agreed to become a party to this Deposit Agreement and to be
bound by all of the terms and conditions hereof and of the Receipts to the same
extent as though such person executed this Agreement.
SECTION 7.07. Governing Law. THIS DEPOSIT AGREEMENT AND THE RECEIPTS
-------------
AND ALL RIGHTS HEREUNDER AND THEREUNDER AND PROVISIONS HEREOF AND THEREOF SHALL
BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF OHIO
(WITHOUT REFERENCE TO APPLICABLE CONFLICTS OF LAW PROVISIONS).
SECTION 7.8. Inspection of Deposit Agreement. Copies of this Deposit
-------------------------------
Agreement shall be filed with the Depositary and the Depositary's Agents and
shall be open to inspection during business hours at the Depositary's Office and
the respective offices of the Depositary's Agents, if any, by any holder of a
Receipt.
-28-
<PAGE>
SECTION 7.9. Headings. The headings of articles and sections in this
--------
Deposit Agreement and in the form of the Receipt set forth in Exhibit A hereto
---------
have been inserted for convenience only and are not to be regarded as a part of
this Deposit Agreement or the Receipts or to have any bearing upon the meaning
or interpretation of any provision contained herein or in the Receipts.
-29-
<PAGE>
IN WITNESS WHEREOF, the Company and the Depositary have caused their
duly authorized officers to execute and deliver this Deposit Agreement as of the
day and year first above set forth, and all holders of Receipts shall become
parties hereto by and upon acceptance by them of delivery of Receipts issued in
accordance with the terms hereof.
ALCO STANDARD CORPORATION
By: _________________________
Authorized Officer
NATIONAL CITY BANK
By: _________________________
____________________
Vice President
-30-
<PAGE>
EXHIBIT 3
No. __________Shares
SERIES PREFERRED STOCK SERIES PREFERRED STOCK
INCORPORATED UNDER THE LAWS OF THE STATE OF OHIO
ALCO STANDARD CORPORATION
SEE REVERSE FOR
CERTAIN DEFINITIONS
THIS CERTIFIES THAT IS THE OWNER OF
FULLY-PAID AND NON-ASSESSABLE SHARES OF THE SERIES PREFERRED STOCK WITHOUT
PAR VALUE OF ALCO STANDARD CORPORATION.
transferable on the books of the Corporation by the holder hereof in person or
by duly authorized attorney upon surrender of this Certificate properly
endorsed. A copy of the respective express terms of the classes of stock of the
Corporation is available in full as stated on the reverse of this Certificate
and the holder hereof, by accepting this Certificate, assents to and is bound by
all the express terms of the classes of stock of the Corporation.
This Certificate is not valid unless countersigned and registered by the
Transfer Agent and Registrar.
WITNESS the facsimile seal of the Corporation and the facsimile signatures of
its duly authorized Officers
Dated
ALCO STANDARD CORPORATION
CORPORATE SEAL
/s/ /s/
SECRETARY CHAIRMAN
COUNTERSIGNED AND REGISTERED:
BY NATIONAL CITY BANK
(CLEVELAND, OHIO) TRANSFER AGENT
AND REGISTRAR
AUTHORIZED OFFICER
<PAGE>
ALCO STANDARD CORPORATION
----------
The Corporation will mail to the holder of the shares of Series Preferred
Stock ("Preferred Stock") represented by this Certificate, without charge within
five days after receipt of written request therefor, a copy of the express terms
of the shares represented by this Certificate and of the other classes and
series of shares which the Corporation is authorized to issue.
----------
The shares represented by this Certificate are convertible into Common Stock
in accordance with the express terms of the Preferred Stock at any time prior
to the close of business on the second day preceding the redemption date at the
rate of, subject to adjustment, shares of Common Stock for one share of
Preferred Stock so converted.
----------
The shares represented hereby may be converted by (1) endorsing this
Certificate for transfer to the Corporation, (2) executing the form set forth
below, and (3) surrendering this Certificate to the transfer agent.
NOTICE OF ELECTION TO CONVERT
The undersigned hereby irrevocably exercises the right to convert
shares of the Series Preferred Stock represented by this Certificate into
Common Stock of Alco Standard Corporation in accordance with the terms of the
Series Preferred Stock relating thereto.
Dated:________________________
Signature_____________________________________
----------
The following abbreviations, when used in the inscription on the face of this
Certificate, shall be construed as though they were written out in full
according to applicable laws or regulations.
TEN COM - as tenants in common UNIF GIFT MIN ACT.....Custodian......
TEN ENT - as tenants by the entireties (Cust) (Minor)
JT TEN - as joint tenants with right
of survivorship and not as Under Uniform Gift to Minors Act
tenants in common --------------------------------
(State)
Additional abbreviations may also be used though not in the above list.
PLEASE INSERT SOCIAL SECURITY OR TAX
IDENTIFICATION NUMBER OF ASSIGNEE
For value received, ______ hereby
sell, assign and transfer unto
- --------------------------------------------------------------------------------
(please print or typewrite name and address of assignee)
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------shares
of the capital stock represented by the within Certificate, and do hereby
irrevocably constitute and appoint
- ------------------------------------------------------------------------Attorney
to transfer the said stock on the books of the within named Corporation with
full power of substitution in the premises.
Dated _______________________
_________________________________
NOTICE: The signature to this
assignment should correspond
with the name as written upon the
face of the Certificate in every
particular without alteration or
enlargement or any change
whatsoever.
<PAGE>
EXHIBIT 4
[Draft of July 19, 1995]
AMENDMENT TO THE ARTICLES OF INCORPORATION
------------------------------------------
TO CREATE A SERIES OF SERIAL PREFERRED STOCK
--------------------------------------------
DESIGNATED AS SERIES BB CONVERSION PREFERRED STOCK
--------------------------------------------------
RESOLVED, that pursuant to the authority vested in the Board of
Directors of this Corporation, Article FOURTH of the Amended Articles of
Incorporation of this Corporation be, and it hereby is, amended to provide the
terms of this Corporation's Series BB Conversion Preferred Stock (hereinafter
sometimes referred to as the "Series BB Preferred Stock"), a series of this
Corporation's Serial Preferred Stock, which amendment shall be accomplished by
adding after Division A, Section 10 of Article FOURTH of the Amended Articles of
Incorporation a new Section (11):
There is hereby established a series of the Serial Preferred Stock to
be known as Series BB Conversion Preferred Stock to which all of the Express
Terms of the Serial Preferred Stock set forth in 1 through 7 above as well as
the following provisions shall be applicable:
I. Designation and Number. The designation of the series is Series
----------------------
BB Conversion Preferred Stock. The number of shares of the series, which
number the Board of Directors may increase or decrease (but not below the
number of shares then outstanding) is________ shares.
II. Dividend Rate and Dividend Payment Dates. The annual dividend
----------------------------------------
rate of the series shall be in an amount per share equal to, but no more
than, $_______________. The dividends provided above shall accrue from the
date of original issue of the Series BB Preferred Stock and be payable
quarterly on January 1, April 1, July 1 and October 1 of each year,
commencing October 1, 1995 (each such date being referred to herein as a
"Dividend Payment Date"), to holders of record as they appear on the stock
records of the Corporation at the close of business on such record dates,
not exceeding 60 days preceding the payment dates thereof, as shall be
fixed by the Board of Directors. Dividends payable on the Series BB
Preferred Stock for any period greater or less than a full dividend period
will be computed on the basis of a 360-day year consisting of twelve 30-day
months. Dividends payable on the Series BB Preferred Stock for each full
dividend period will be computed by dividing the annual dividend rate by
four.
<PAGE>
III. Conversion.
----------
(a) Mandatory Conversion. Unless earlier converted at the option of
--------------------
the holder in accordance with the provisions of paragraph (b), on October
1, 1998 (the "Mandatory Conversion Date"), each outstanding share of the
Series BB Preferred Stock shall convert automatically (the "Automatic
Conversion") into (i) shares of authorized Common Stock (the "Common
Stock") at the Exchange Rate (as hereinafter defined) in effect on the
Mandatory Conversion Date and (ii) the right to receive an amount in cash
equal to all accrued and unpaid dividends on such share to the Mandatory
Conversion Date, whether or not earned or declared, out of funds legally
available therefor. The Exchange Rate is equal to (a) if the Current
Market Price is greater than or equal to $ per share (the "Threshold
Price"), ___ shares of Common Stock (the "Upper Exchange Rate"), (b) if the
Current Market Price is less than the Threshold Price but greater than the
Initial Price, the number of shares of Common Stock having a value
(determined at the Current Market Price) equal to 100 times the Initial
Price (the "Middle Exchange Rate"), and (c) if the Current Market Price is
less than or equal to the Initial Price, 100 shares of Common Stock (the
"Lower Exchange Rate") per share of Series BB Preferred Stock, and is
subject to adjustment as set forth in paragraph (c) below. Dividends on
the shares of Series BB Preferred Stock shall cease to accrue and such
shares of Series BB Preferred Stock shall cease to be outstanding on the
Mandatory Conversion Date. The Corporation shall make such arrangements as
it deems appropriate for the issuance of certificates representing shares
of Common Stock and for the payment of cash in respect of such accrued and
unpaid dividends, if any, or cash in lieu of fractional shares, if any, in
exchange for and contingent upon surrender of certificates representing the
shares of Series BB Preferred Stock, and the Corporation may defer the
payment of dividends on such shares of Common Stock and the voting thereof
until, and make such payment and voting contingent upon, the surrender of
such certificates representing the shares of Series BB Preferred Stock,
provided that the Corporation shall give the holders of the shares of
Series BB Preferred Stock such notice of any such actions as the
Corporation deems appropriate and upon such surrender such holders shall be
entitled to receive such dividends declared and paid on such shares of
Common Stock subsequent to the Mandatory Conversion Date. Amounts payable
in cash in respect of the shares
-2-
<PAGE>
of Series BB Preferred Stock or in respect of such shares of Common Stock
shall not bear interest.
(b) Optional Conversion. Shares of Series BB Preferred Stock are
-------------------
convertible, in whole or in part, at the option of the holders thereof
("Optional Conversion"), at any time after September , 1995 and prior to
the Mandatory Conversion Date, into shares of Common Stock at a rate of
shares of Common Stock for each share of Series BB Preferred Stock (the
"Optional Conversion Rate"), subject to adjustment as set forth below.
Optional Conversion of shares of Series BB Preferred Stock may be
effected by delivering certificates evidencing such shares, together with
written notice of conversion and a proper assignment of such certificates
to the Corporation or in blank (and, if applicable, payment of an amount
equal to the dividend payable on such shares), to the office of any
transfer agent for the Series BB Preferred Stock or to any other office or
agency maintained by the Corporation for that purpose and otherwise in
accordance with Optional Conversion procedures established by the
Corporation. Each Optional Conversion shall be deemed to have been
effected immediately prior to the close of business on the date on which
the foregoing requirements shall have been satisfied. The Optional
Conversion shall be at the Optional Conversion Rate in effect at such time
and on such date.
Holders of shares of Series BB Preferred Stock at the close of
business on a dividend payment record date shall be entitled to receive the
dividend payable on such shares on the corresponding Dividend Payment Date
notwithstanding the Optional Conversion of such shares following such
record date and prior to such Dividend Payment Date. However, shares of
Series BB Preferred Stock surrendered for Optional Conversion after the
close of business on a dividend payment record date and before the opening
of business on the next succeeding Dividend Payment Date must be
accompanied by payment in cash of an amount equal to the dividend payable
on such shares on such Dividend Payment Date. Except as provided above,
upon any Optional Conversion of shares of Series BB Preferred Stock, the
Corporation shall make no payment or allowance for unpaid Preferred
Dividends, whether or not in arrears, on such shares of Series BB Preferred
Stock as to which Optional Conversion has been effected or for dividends or
-3-
<PAGE>
distributions on the shares of Common Stock issued upon such Optional
Conversion.
(c) Adjustments to the Exchange Rate and the Optional Conversion
------------------------------------------------------------
Rate. The Exchange Rate and the Optional Conversion Rate shall each be
subject to adjustment from time to time as provided below in this paragraph
(c).
(i) If the Corporation shall pay or make a dividend or other
distribution with respect to its Common Stock in shares of Common
Stock (including by way of reclassification of any shares of its
Common Stock), the Exchange Rate and the Optional Conversion Rate in
effect at the opening of business on the day following the date fixed
for the determination of stockholders entitled to receive such
dividend or other distribution shall each be increased by multiplying
such Exchange Rate and Optional Conversion Rate by a fraction of which
the numerator shall be the sum of the number of shares of Common Stock
outstanding at the close of business on the date fixed for such
determination plus the total number of shares of Common Stock
constituting such dividend or other distribution, and of which the
denominator shall be the number of shares of Common Stock outstanding
at the close of business on the date fixed for such determination,
such increase to become effective immediately after the opening of
business on the day following the date fixed for such determination.
(ii) In case outstanding shares of Common Stock shall be
subdivided into a greater number of shares of Common Stock, the
Exchange Rate and the Optional Conversion Rate in effect at the
opening of business on the day following the day upon which such
subdivision becomes effective shall each be proportionately increased,
and, conversely, in case outstanding shares of Common Stock shall be
combined into a smaller number of shares of Common Stock, the Exchange
Rate and the Optional Conversion Rate in effect at the opening of
business on the day following the day upon which such combination
becomes effective shall each be proportionately reduced, such
increases or reductions, as the case may be, to become effective
immediately after the opening of business on the day following the day
upon which such subdivision or combination becomes effective.
-4-
<PAGE>
(iii) If the Corporation shall, after the date hereof, issue rights or
warrants, in each case other than the Rights, to all holders of its
Common Stock entitling them (for a period not exceeding 45 days from
the date of such issuance) to subscribe for or purchase shares of
Common Stock at a price per share less than the Fair Market Value of
the Common Stock on the record date for the determination of
stockholders entitled to receive such rights or warrants, then in each
case the Exchange Rate and the Optional Conversion Rate shall each be
adjusted by multiplying the Exchange Rate and the Optional Conversion
Rate in effect on such record date, by a fraction of which the
numerator shall be the number of shares of Common Stock outstanding on
the date of issuance of such rights or warrants, immediately prior to
such issuance, plus the number of additional shares of Common Stock
offered for subscription or purchase pursuant to such rights or
warrants, and of which the denominator shall be the number of shares
of Common Stock outstanding on the date of issuance of such rights or
warrants, immediately prior to such issuance, plus the number of
shares of Common Stock which the aggregate offering price of the total
number of shares of Common Stock so offered for subscription or
purchase pursuant to such rights or warrants would purchase at such
Fair Market Value (determined by multiplying such total number of
shares by the exercise price of such rights or warrants and dividing
the product so obtained by such Fair Market Value). Shares of Common
Stock owned by the Corporation or by another company of which a
majority of the shares entitled to vote in the election of directors
are held, directly or indirectly, by the Corporation shall not be
deemed to be outstanding for purposes of such computation. Such
adjustment shall become effective at the opening of business on the
business day next following the record date for the determination of
stockholders entitled to receive such rights or warrants. To the
extent that shares of Common Stock are not delivered after the
expiration of such rights or warrants, the Exchange Rate and the
Optional Conversion Rate shall each be readjusted to the Exchange Rate
and the Optional Conversion Rate which would then be in effect had the
adjustments made upon the issuance of such rights or warrants been
made upon the basis of the issuance of rights or warrants in
-5-
<PAGE>
respect of only the number of shares of Common Stock actually
delivered.
(iv) If the Corporation shall pay a dividend or make a
distribution to all holders of its Common Stock consisting of
evidences of its indebtedness or other assets (including shares of
capital stock of the Corporation other than Common Stock but excluding
any cash dividends or any dividends or other distributions referred to
in clauses (i) and (ii) above), or shall issue to all holders of its
Common Stock rights or warrants to subscribe for or purchase any of
its securities (other than those referred to in clause (iii) above),
then in each such case the Exchange Rate and the Optional Conversion
Rate shall each be adjusted by multiplying the Exchange Rate and the
Optional Conversion Rate in effect on the record date for such
dividend or distribution or for the determination of stockholders
entitled to receive such rights or warrants, as the case may be, by a
fraction of which the numerator shall be the Fair Market Value per
share of the Common Stock on such record date), and of which the
denominator shall be such Fair Market Price per share of Common Stock
less the fair market value (as determined by the Board of Directors,
whose determination shall be conclusive) as of such record date of the
portion of the assets or evidences of indebtedness so distributed, or
of such subscription rights or warrants, applicable to one share of
Common Stock. Such adjustment shall become effective on the opening
of business on the business day next following the record date for
such dividend or distribution or for the determination of stockholders
entitled to receive such rights or warrants, as the case may be.
(v) Any shares of Common Stock issuable in payment of a dividend
or other distribution shall be deemed to have been issued immediately
prior to the close of business on the record date for such dividend or
other distribution for purposes of calculating the number of
outstanding shares of Common Stock under subparagraph (ii) above.
(vi) Anything in this subsection III notwithstanding, the
Corporation shall be entitled to make such upward adjustments in the
Exchange Rate and the Optional Conversion Rate, in addition to those
required by this subsection III as the
-6-
<PAGE>
Corporation in its sole discretion shall determine to be advisable, in
order that any stock dividends, subdivision of shares, distribution of
rights to purchase stock or securities, or distribution of securities
convertible into or exchangeable for stock (or any transaction which
could be treated as any of the foregoing transactions pursuant to
Section 305 of the Internal Revenue Code of 1986, as amended)
hereafter made by the Corporation to its stockholders shall not be
taxable.
(vii) In any case in which this paragraph (c) shall require that
an adjustment as a result of any event become effective at the opening
of business on the business day next following a record date and the
date fixed for conversion pursuant to paragraph (a) occurs after such
record date, but before the occurrence of such event, the Corporation
may in its sole discretion elect to defer the following until after
the occurrence of such event: (A) issuing to the holder of any shares
of Series BB Preferred Stock surrendered for conversion the additional
shares of Common Stock issuable upon such conversion over the shares
of Common Stock issuable before giving effect to such adjustment; and
(B) paying to such holder any amount in cash in lieu of a fractional
share of Common Stock pursuant to paragraph (g).
(viii) For purposes hereof, an "adjustment in the Exchange Rate"
means, and shall be implemented by, an adjustment of the nature and
amount specified, effected in the manner specified, in each of the
Upper Exchange Rate, the Middle Exchange Rate and the Lower Exchange
Rate. If an adjustment is made to the Exchange Rate pursuant to this
paragraph (c), an adjustment shall also be made to the Current Market
Price solely to determine which of clauses (a), (b) or (c) of the
definition of Exchange Rate in paragraph (a) will apply on the
Mandatory Conversion Date. Such adjustment shall be made by
multiplying the Current Market Price by a fraction of which the
numerator shall be the Exchange Rate immediately after such adjustment
pursuant to paragraph (c) and the denominator shall be the Exchange
Rate immediately before such adjustment. All adjustments to the
Exchange Rate and the Optional Conversion Rate shall be calculated to
the nearest 1/10,000th of a share of Common Stock. No adjustment in
the Exchange Rate
-7-
<PAGE>
or in the Optional Conversion Rate shall be required unless such
adjustment would require an increase or decrease of at least one
percent in the Lower Exchange Rate; provided, however, any adjustments
which by reason of this subparagraph are not required to be made shall
be carried forward and taken into account in any subsequent
adjustment. All adjustments to the Exchange Rate and the Optional
Conversion Rate shall be made successively.
(ix) Before taking any action that would cause an adjustment
increasing the Exchange Rate or the Optional Conversion Rate such that
the conversion price (for purposes of this paragraph (c), an amount
equal to the liquidation value per share of Series BB Preferred Stock
divided by the Optional Conversion Rate, respectively, as in effect
from time to time) would be below the then par value of the Common
Stock, the Corporation will take any corporate action which may, in
the opinion of its counsel, be necessary in order that the Corporation
may validly and legally issue fully paid and nonassessable shares of
Common Stock at the Optional Conversion Rate as so adjusted.
(d) Adjustment for Certain Consolidations or Mergers. In case of any
------------------------------------------------
consolidation or merger to which the Corporation is a party (other than a
merger or consolidation in which the Corporation is the continuing
corporation and in which the Common Stock outstanding immediately prior to
the merger or consolidation remains unchanged), or in case of any sale or
transfer to another corporation of the property of the Corporation as an
entirety or substantially as an entirety, or in case of any statutory
exchange of securities with another corporation (other than in connection
with a merger or acquisition), proper provision shall be made so that each
share of the Series BB Preferred Stock shall, after consummation of such
transaction, be subject to (i) conversion at the option of the holder into
the kind and amount of securities, cash or other property receivable upon
consummation of such transaction by a holder of the number of shares of
Common Stock into which such share of the Series BB Preferred Stock might
have been converted immediately prior to consummation of such transaction,
and (ii) conversion on the Mandatory Conversion Date into the kind and
amount of securities, cash or other property receivable upon consummation
of such transaction by a holder of the number of shares of
-8-
<PAGE>
Common Stock into which such share of the Series BB Preferred Stock would
have been converted if the conversion on the Mandatory Conversion Date had
occurred immediately prior to the date of consummation of such transaction;
assuming in each case that such holder of Common Stock failed to exercise
rights of election, if any, as to the kind or amount of securities, cash or
other property receivable upon consummation of such transaction (provided
that if the kind or amount of securities, cash or other property receivable
upon consummation of such transaction is not the same for each nonelecting
share, then the kind and amount of securities, cash or other property
receivable upon consummation of such transaction for each nonelecting share
shall be deemed to be the kind and amount so receivable per share by a
plurality of the nonelecting shares). The kind and amount of securities
into which the shares of the Series BB Preferred Stock shall be convertible
after consummation of such transaction shall be subject to adjustment as
described in paragraph (c) following the date of consummation of such
transaction. The Corporation may not become a party to any such
transaction unless the terms thereof are consistent with the foregoing.
(e) Notice of Adjustments. Whenever the Exchange Rate and Optional
---------------------
Conversion Rate are adjusted as provided in paragraph (c), the Corporation
shall:
(i) Forthwith compute the adjusted Exchange Rate and Optional
Conversion Rate and prepare a certificate signed by the Chief
Financial Officer, any Vice President, the Treasurer or the Controller
of the Corporation setting forth the adjusted Exchange Rate and
Optional Conversion Rate, the method of calculation thereof in
reasonable detail and the facts requiring such adjustment and upon
which such adjustment is based, which certificate shall be prima facie
evidence of the correctness of the adjustment, and file such
certificate forthwith with the Transfer Agent;
(ii) Make a prompt public announcement stating that the Exchange
Rate and Optional Conversion Rate have been adjusted and setting forth
the adjusted Exchange Rate and Optional Conversion Rate; and
(iii) Promptly mail a notice stating that the Exchange Rate and
Optional Conversion Rate have
-9-
<PAGE>
been adjusted, the facts requiring such adjustment and upon which such
adjustment is based and setting forth the adjusted Exchange Rate and
Optional Conversion Rate, to the holders of record of the outstanding
shares of the Series BB Preferred Stock at or prior to the time the
Corporation mails an interim statement to its stockholders covering
the fiscal quarter period during which the facts requiring such
adjustment occurred but in any event within 45 days of the end of such
fiscal quarter period.
(f) Notices of Proposed Actions. In case, at any time while any of
---------------------------
the shares of Series BB Preferred Stock are outstanding,
(i) the Corporation shall declare a dividend (or any other
distribution) on the Common Stock, (other than in cash out of profits
or surplus and other than the Rights), or
(ii) the Corporation shall authorize the issuance to all holders
of the Common Stock of rights or warrants (other than the Rights) to
subscribe for or purchase shares of the Common Stock or of any other
subscription rights or warrants, or
(iii) of any reclassification of the Common Stock (other than a
subdivision or combination thereof) or of any consolidation or merger
to which the Corporation is a party and for which approval of any
stockholders of the Corporation is required (except for a merger of
the Corporation into one of its subsidiaries solely for the purpose of
changing the corporate domicile of the Corporation to another state of
the United States and in connection with which there is no substantive
change in the rights or privileges of any securities of the
Corporation other than changes resulting from differences in the
corporate statutes of the then existing and the new state of
domicile), or of the sale or transfer of all or substantially all of
the assets of the Corporation,
then the Corporation shall cause to be filed at each office or agency
maintained for the purpose of conversion of the shares of Series BB
Preferred Stock, and shall cause to be mailed to the holders of shares of
Series BB Preferred Stock at their last addresses as
-10-
<PAGE>
they shall appear on the stock register, as promptly as possible, but at
least 15 days before the date hereinafter specified (or the earlier of the
dates hereinafter specified, in the event that more than one date is
specified), a notice stating (A) the date on which a record is to be taken
for the purpose of such dividend, distribution, rights or warrants, or, if
a record is not to be taken, the date as of which the holders of Common
Stock of record to be entitled to such dividend, distribution, rights or
warrants are to be determined, or (B) the date on which any such
reclassification, consolidation, merger, sale, transfer, dissolution,
liquidation or winding up is expected to become effective, and the date as
of which it is expected that holders of Common Stock of record shall be
entitled to exchange their Common Stock for securities or other property
(including cash), if any, deliverable upon such reclassification,
consolidation, merger, sale, transfer, dissolution, liquidation or winding
up. The failure to give or receive the notice required by this paragraph
(f) or any defect therein shall not affect the legality or validity of any
such dividend, distribution, right or warrant or other action.
(g) No Fractional Shares. No fractional shares of Common Stock shall
--------------------
be issued upon the conversion of any shares of the Series BB Preferred
Stock. In lieu of any fraction of a share of Common Stock which would
otherwise be issuable in respect of the aggregate number of shares of the
Series BB Preferred Stock surrendered by the same holder upon Automatic
Conversion or Optional Conversion, such holder shall have the right to
receive an amount in cash (computed to the nearest cent) equal to the same
fraction of the Closing Price of the Common Stock determined (A) as of the
fifth Trading Day immediately preceding the Mandatory Conversion Date, in
the case of Automatic Conversion or (B) as of the second Trading
immediately preceding the effective date of conversion, in the case of an
Optional Conversion by a holder. If more than one share of Series BB
Preferred Stock shall be surrendered for conversion at one time by or for
the same holder, the number of full shares of Common Stock issuable upon
conversion thereof shall be computed on the basis of the aggregate number
of shares of the Series BB Preferred Stock so surrendered.
(h) Treasury Shares. For the purposes of this subsection III, the
---------------
number of shares of Common Stock at any time outstanding shall not include
shares held in
-11-
<PAGE>
the treasury of the Corporation but shall include shares issuable in
respect of scrip certificates issued in lieu of fractions of shares of
Common Stock. The Corporation will not pay any dividend or make any
distribution on shares of Common Stock held in the treasury of the
Corporation.
(i) Other Action. If the Corporation shall take any action affecting
------------
the Common Stock, other than action described in this subsection III, that
in the opinion of the Board of Directors would materially adversely affect
the conversion rights of the holders of the shares of Series BB Preferred
stock, the Exchange Rate and/or the Optional Conversion Rate for the Series
BB Preferred Stock may be adjusted, to the extent permitted by law, in such
manner, if any, and at such time, as the Board of Directors may determine
to be equitable in the circumstances.
(j) Conversion. The Corporation covenants that it will at all times
----------
reserve and keep available, free from preemptive rights, out of the
aggregate of its authorized but unissued shares of Common Stock for the
purpose of effecting conversion of the Series BB Preferred Stock, the full
number of shares of Common Stock deliverable upon the conversion of all
outstanding shares of Series BB Preferred Stock not theretofore converted.
For purposes of this paragraph (j), the number of shares of Common Stock
that shall be deliverable upon the conversion of all outstanding shares of
Series BB Preferred Stock shall be computed as if at the time of
computation all such outstanding shares were held by a single holder.
The Corporation covenants that any shares of Common Stock issued upon
conversion of the Series BB Preferred Stock shall be validly issued, fully
paid and non-assessable.
The Corporation shall endeavor to list the shares of Common Stock
required to be delivered upon conversion of the Series BB Preferred Stock,
prior to such delivery, upon each national securities exchange, if any,
upon which the outstanding Common Stock is listed at the time of such
delivery.
Prior to the delivery of any securities that the Corporation shall be
obligated to deliver upon conversion of the Series BB Preferred stock, the
Corporation shall endeavor to comply with all federal and state laws and
regulations thereunder requiring the
-12-
<PAGE>
registration of such securities with, or any approval of or consent to the
delivery thereof by, any governmental authority.
(k) Taxes. The Corporation will pay any and all documentary stamp or
-----
similar issue or transfer taxes payable in respect of the issue or delivery
of shares of Common Stock or other securities or property on conversion of
the Series BB Preferred Stock pursuant thereto; provided, however, that the
-------- -------
Corporation shall not be required to pay any tax that may be payable in
respect of any transfer involved in the issue or delivery of shares of
Common Stock or other securities or property in a name other than that of
the holder of the Series BB Preferred Stock to be converted and no such
issue or delivery shall be made unless and until the person requesting such
issue or delivery has paid to the Corporation the amount of any of such tax
or established, to the reasonable satisfaction of the Corporation, that
such tax has been paid.
IV. Definition. For purposes of the Series BB Preferred Stock, the
----------
following terms shall have the meanings indicated:
"business day" shall mean any day other than a Saturday, Sunday
or a day on which banking institutions in the state of New York are
authorized or obligated by law or executive order to close.
"Initial Price" shall mean $ _______ per share of Common Stock.
"Current Market Price" per share of the Common Stock shall mean
the average Closing Price per share of the Common Stock of the Company
on the 20 Trading Days immediately prior to, but not including, the
Mandatory Conversion Date.
"Closing Price" of a share of Common Stock on any date of
determination shall mean the closing sale price (or, if no closing
sale price is reported, the last reported sale price) of such share on
the New York Stock Exchange (the "NYSE") on such date or, if the
Common Stock is not listed for trading on the NYSE on any such date,
as reported in the composite transactions for the principal United
States securities exchange on which the Common Stock is so listed, or
if it is not so listed on a United States national or
-13-
<PAGE>
regional securities exchange, as reported by The Nasdaq Stock Market,
or, if it is not so reported, the last quoted bid price for the Common
Stock in the over-the-counter market as reported by the National
Quotation Bureau or similar organization, or, if such bid price is not
available, the market value of a share of Common Stock on such date as
determined by a nationally recognized independent investment banking
firm retained for this purpose by the Company.
"Fair Market Value" on any day shall mean the average of the
daily Closing Prices of a share of Common Stock of the Company on the
five (5) consecutive Trading Days selected by the Corporation
commencing not more than 20 Trading Days before, and ending not later
than, the earlier of the day in question and the day before the "ex"
date with respect to the issuance or distribution requiring such
computation. The term "'ex' date", when used with respect to any
issuance or distribution, means the first day on which the Common
Stock trades regular way, without the right to receive such issuance
or distribution, on the exchange or in the market, as the case may be,
used to determine that day's Closing Price.
"Rights" shall mean the rights of the Corporation which are
issuable under the Corporation's Stockholder Rights Plan adopted on
February 10, 1988 and as amended from time to time, or rights to
purchase any capital stock of the Corporation under any successor
shareholder rights plan or plan adopted in replacement of the
Corporation's Stockholder Rights Plan.
"Trading Day" shall mean a day on which the Common Stock (a) is
not suspended from trading on any national or regional securities
exchange or association or over-the-counter market at the close of
business and (b) has traded at least once on the national or regional
securities exchange or association or over-the-counter market that is
the primary market for the trading of such security.
"Transfer Agent" means National City Bank or such other agent or
agents of the Corporation as may be designated by the Board of
Directors as the transfer agent for the Series BB Preferred Stock.
-14-
<PAGE>
V. Liquidation, etc.. Upon the liquidation, dissolution or winding
-----------------
up of the Corporation, whether voluntary or involuntary, the holders of the
shares of this Series BB Preferred Stock shall be entitled to receive an
amount equal to $_________ per share, plus accrued and unpaid dividends
thereon (whether or not earned or declared) at the date of final
distribution to such holders.
VI. Issuance of Fractional Shares. Series BB Preferred Stock may be
-----------------------------
issued in fractions of a share which shall entitle the holder, in
proportion to such holder's fractional shares to exercise voting rights,
receive dividends, participate in distributions and to have the benefit of
all other rights of holders of Series BB Preferred Stock.
-15-
