<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 (g) OF THE
SECURITIES EXCHANGE ACT OF 1934
Cablevision Systems Corporation
- - --------------------------------------------------------------------------------
(Exact name of registrant as specified in its charter)
Delaware 11-2776686
- - ---------------------------------------- --------------
(State of incorporation or organization) (IRS employer
identification
no.)
One Media Crossways, Woodbury, New York 11797
- - ---------------------------------------- ----------
(Address of principal executive offices) (Zip code)
Securities to be registered pursuant to Section 12(b) of the Act:
Title of each class Name of each exchange on which
to be so registered each class is to be registered
- - ------------------- ------------------------------
Depositary Shares, each American Stock Exchange
representing a one-tenth
interest in a share of __%
Series I Cumulative
Convertible Exchangeable
Preferred Stock
Securities to be registered pursuant to Section 12(g) of the Act:
None
----------------
(Title of Class)
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Item 1. Description of Registrant's Securities to be Registered.
-------------------------------------------------------
The description of the Registrant's Depositary Shares, each
representing a one-tenth interest in a share of __% Series I Cumulative
Convertible Exchangeable Preferred Stock (the "Depositary Shares"), to be
registered hereunder is incorporated by reference from the description of such
Depositary Shares contained under the captions "DESCRIPTION OF DEPOSITARY
SHARES" and "DESCRIPTION OF SERIES I PREFERRED STOCK" in the Prospectus
Supplement relating to such Depositary Shares to the Prospectus, dated October
18, 1995, included in Registration Statement No. 33-62313, and under the
captions "DESCRIPTION OF DEPOSITARY SHARES" and "DESCRIPTION OF CAPITAL STOCK"
in such Prospectus. This registration statement will incorporate by reference
the description of such Depositary Shares contained in any prospectus supplement
relating to such Depositary Shares subsequently filed pursuant to Rule 424(b) of
the Securities Act.
Item 2. Exhibits.
--------
The following exhibits are numbered in accordance with Item 601 of
Regulation S-K under the Securities Exchange Act of 1934.
4.1 Form of Certificate of Incorporation of the Registrant (incorporation
herein by reference to Exhibit 3.1 to the Company's Registration
Statement on Form S-1 dated January 17, 1986, File No. 33-1936)
4.1A Amendment to Certificate of Incorporation and complete copy of the
amended and restated Certificate of Incorporation (incorporated herein
by reference to Exhibits 3.1A(i) and 3.1A(ii) to the Company's Annual
Report on Form 10-K for the fiscal year ended December 31, 1989)
4.1B Certificate of Designations for the Series E Redeemable Exchangeable
Convertible Preferred Stock (incorporated herein by reference to the
Company's Report on Form 10-K/A for the year ended December 31, 1993,
filed on April 13, 1994)
4.1C Certificate of Designations for the Series F Redeemable Preferred
Stock (incorporated herein by reference to the Company's Report on
Form 10-K/A for the year ended December 31, 1993, filed on April 13,
1994)
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4.1D Certificate of Designations for the Series G Redeemable
Exchangeable Preferred Stock (incorporated by reference herein to
Exhibit 3.1D to the Company's Amendment No. 1 to the Registration
Statement on Form S-4 dated October 17, 1995, File No. 33-62717)
4.1E Certificate of Designations for the Series I Cumulative Convertible
Exchangeable Preferred Stock
4.2 Amended and restated By-laws (incorporated herein by reference to
Exhibit 3.2D to the Company's Registration Statement on Form S-4 dated
October 17, 1995, File No. 33-62717)
4.3 Form of Certificate for shares of Common Stock (incorporated herein by
reference to the Company's Registration Statement on Form S-1, dated
January 17, 1986, File No. 33-1936)
4.4 Form of Deposit Agreement
4.5 Form of Depositary Receipt
3
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SIGNATURE
Pursuant to the requirements of Section 12 of the Securities Exchange
Act of 1934, the registrant has duly caused this registration statement to be
signed on its behalf by the undersigned, thereto duly authorized.
CABLEVISION SYSTEMS CORPORATION
By /s/ Jerry Shaw
------------------------------
Vice President and Controller
Date: October 31, 1995
4
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EXHIBIT INDEX
Exhibit No. Description
- - ----------- -----------
4.1 Certificate of Incorporation of the Registrant
(incorporation herein by reference to Exhibit 3.1 to the
Company's Registration Statement on Form S-1 dated January 17,
1986, File No. 33-1936)
4.1A Amendment to Certificate of Incorporation and
complete copy of the amended and restated Certificate of
Incorporation (incorporated herein by reference to Exhibits
3.1A(i) and 3.1A(ii) to the Company's Annual Report on Form 10-K
for the fiscal year ended December 31, 1989)
4.1B Certificate of Designations for the Series E
Redeemable Exchangeable Convertible Preferred Stock (incorporated
herein by reference to the Company's Report on Form 10-K/A for
the year ended December 31, 1993, filed on April 13, 1994)
4.1C Certificate of Designations for the Series F
Redeemable Preferred Stock (incorporated herein by reference to
the Company's Report on Form 10-K/A for the year ended December
31, 1993, filed on April 13, 1994)
4.1D Certificate of Designations for the Series G
Redeemable Exchangeable Preferred Stock (incorporated by
reference herein to Exhibit 3.1D to the Company's Amendment No. 1
to the Registration Statement on Form S-4 dated October 17, 1995,
File No. 33-62717)
4.1E Certificate of Designations for the Series I Cumulative
5
<PAGE>
Convertible Exchangeable Preferred Stock
4.2 Amended and restated By-laws (incorporated herein by
reference to Exhibit 3.2D to the Company's Registration Statement
on Form S-4 dated October 17, 1995, File No. 33-62717)
4.3 Form of Certificate for shares of Common Stock
(incorporated herein by reference to the Company's Registration
Statement on Form S-1, dated January 17, 1986, File No. 33-1936)
4.4 Form of Deposit Agreement
4.5 Form of Depositary Receipt
6
<PAGE>
EXHIBIT 4.1(E)
[S&S DRAFT
10/31/95]
CERTIFICATE OF VOTING POWERS, DESIGNATIONS, PREFERENCES
AND RELATIVE, PARTICIPATING, OPTIONAL OR OTHER SPECIAL
RIGHTS AND QUALIFICATIONS, LIMITATIONS AND
RESTRICTIONS THEREOF OF THE __% SERIES I
CUMULATIVE CONVERTIBLE
EXCHANGEABLE PREFERRED STOCK
OF
CABLEVISION SYSTEMS CORPORATION
__________________________
Pursuant to Section 151 of the
General Corporation Law of the State of Delaware
__________________________
I, William J. Bell, Vice Chairman of Cablevision Systems Corporation
(the "corporation"), a corporation organized and existing under and by virtue of
the General Corporation Law of the State of Delaware, in accordance with the
provisions of Section 151 of the General Corporation Law of the State of
Delaware, DO HEREBY CERTIFY:
That, pursuant to authority conferred upon the Board of Directors by
the Certificate of Incorporation as amended of said corporation, said Board of
Directors, at a meeting duly called and held on __________, 1995, adopted a
resolution providing for the issuance of One Million Three Hundred and Eighty
Thousand (1,380,000) authorized shares of __% Series I Cumulative Convertible
Exchangeable Preferred Stock ("Series I Preferred Stock"), which resolution is
as follows:
WHEREAS, the Board of Directors of the corporation (the "Board of
Directors") is authorized, within the limitations and restrictions stated in the
Certificate of Incorporation, as amended, to fix by resolution or resolutions
the designation of each series of preferred stock and the powers, designations,
preferences and relative participating, optional or other rights, if any, or the
qualifications, limitations or restrictions thereof, including, without limiting
the generality of the foregoing, such provisions as may be desired concerning
voting, redemption, dividends, dissolution or the distribution of assets,
conversion or exchange, and such other subjects or matters as may be fixed by
resolution or resolutions of the Board of Directors under the General
Corporation Law of Delaware; and
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2
WHEREAS, it is the desire of the Board of Directors, pursuant to its
authority as aforesaid, to authorize and fix the terms of a series of preferred
stock and the number of shares constituting such series;
NOW, THEREFORE, BE IT RESOLVED, that there is hereby authorized such
series of preferred stock on the terms and with the provisions herein set forth:
I. Certain Definitions.
-------------------
As used herein, the following terms shall have the following meanings
(with terms defined in the singular having comparable meanings when used in the
plural and vice versa), unless the context otherwise requires:
"ASE" has the meaning specified in Section IX(A) hereof.
"Additional Preferred Stock" has the meaning specified in Article
Fourth of the corporation's Certificate of Incorporation.
"Board of Directors" means the Board of Directors of the corporation.
"Business Day" means a day other than a Saturday, Sunday, national or
New York State holiday or other day on which commercial banks in New York
City are authorized or required by law to close.
"Capital Stock" means any and all shares, interests, participations,
rights or other equivalents (however designated) of corporate stock.
"Change of Control" with respect to the corporation shall be deemed to
have occurred in the event that (A) any person (within the meaning of
Sections 13(d)(3) and 14(d)(2) of the Exchange Act), or group (within the
meaning of Rule 13d-5(b)(1) under the Exchange Act), other than Dolan,
becomes entitled to elect a majority of the Board of Directors; (B) any
person (within the meaning of Sections 13(d)(3) and 14(d)(2) of the
Exchange Act) or group (within the meaning of Rule 13d-5(b)(1) under the
Exchange Act), other than Dolan, is or becomes the beneficial owner (as
defined in Section 13(d) of the Exchange Act and the rules promulgated
thereunder), directly or indirectly, of shares representing 50% or more of
the outstanding voting power of the corporation; (C) a transaction or an
event occurs in connection with which 66-2/3% or more of the aggregate
outstanding amount of Common Stock shall be exchanged for, converted into,
acquired for or constitutes solely the right to receive, cash, securities
of an entity other than the corporation or any of its subsidiaries,
property or other assets (whether by means of an exchange offer, tender
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3
offer, consolidation, merger (other than a holding company reorganization
or a change of domicile merger), combination or similar transaction); or
(D) there occurs the conveyance, sale, lease, assignment, transfer or other
disposal of (but excluding any mortgage or pledge of, or other grant of a
security interest in) of all or substantially all of the corporation's
property, business or assets; provided, however, that a Change of Control
will not be deemed to have occurred with respect to either of the following
transactions or events: (a) any transaction or event in which more than
50% (by value as determined in good faith by the Board of Directors) of the
consideration received by holders of Class A Common Stock consists of
Marketable Stock, or (b) any consolidation or merger of the corporation in
which the holders of Common Stock immediately prior to such transaction
own, directly or indirectly, (i) 50% or more of the common equity
securities of the sole surviving entity (or of the ultimate parent of such
sole surviving entity) outstanding at the time immediately after such
consolidation or merger and (2) securities representing 50% or more of the
combined voting power of the surviving entity's voting power (or the voting
power of the ultimate parent of such surviving entity) outstanding at such
time. If a conveyance, sale, lease, assignment, transfer or other disposal
of all or substantially all of the corporation's property, business or
assets occurs and the consideration, including Marketable Stock, received
by the corporation is not subsequently distributed to the holders of Class
A Common Stock, a Change of Control would be deemed to have occurred.
"Class A Common Stock" means the Class A Common Stock, par value $.01
per share, of the corporation.
"Class B Common Stock" means the Class B Common Stock, par value $.01
per share, of the corporation.
"Common Stock" means the Class A Common Stock and the Class B Common
Stock and any other class of common stock hereafter authorized by the
corporation from time to time.
"Conversion Agent" has the meaning specified in Section IX(A) hereof.
"Conversion Date" has the meaning specified in Section IX(A) hereof.
"Conversion Price" has the meaning specified in Section IX(A) hereof.
"corporation" means Cablevision Systems Corporation.
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4
"Dividend Payment Date" means each January 1, April 1, July 1 and
October 1 of each year on which dividends shall be paid or are payable, any
Redemption Date and any other date on which dividends in arrears may be
paid.
"Dividend Period" means the Initial Dividend Period, and, thereafter,
each Quarterly Dividend Period.
"Dividend Record Date" means, with respect to the dividend payable on
each Dividend Payment Date, the fifteenth day immediately preceding such
Dividend Payment Date, or such other record date as may be designated by
the Board of Directors with respect to the dividend payable on such
Dividend Payment Date; provided, however, that such record date may not be
more than 60 days or less than ten days prior to such Dividend Payment
Date.
"Dolan" shall mean Mr. Charles F. Dolan, his spouse, his descendants
or any spouse of any such descendants, and trusts for the benefit of, inter
alia, him, his spouse, his descendants or any spouse of any such
descendants, and any estate testamentary trust, or executor, administrator,
conservator or legal or personal representative of any of the foregoing or
any partnership, limited liability company or similar entity comprised of
any of the foregoing.
"Exchange Act" means the Securities Exchange Act of 1934, as amended.
"Exchange Date" has the meaning specified in Section VIII(A) hereof.
"Exchange Debentures" shall mean the __% Convertible Subordinated
Debentures due 2007 of the corporation into which shares of ___% Series I
Preferred Stock are exchangeable at the option of the corporation.
"Exchange Indenture" has the meaning specified in Section VII(D)
hereof.
"Exchange Notice" has the meaning specified in Section VIII(A) hereof.
"Fair Market Value" means, with respect to any asset or property, the
sale value that would be obtained in an arm's-length transaction between an
informed and willing seller under no compulsion to sell and an informed and
willing buyer under no compulsion to buy.
"Holder" means a registered holder of shares of Series I Preferred
Stock.
"Initial Dividend Period" means the dividend period commencing on and
including the Original Issue Date and ending on and including December 31,
1995.
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5
"Junior Securities" has the meaning specified in Section III(A)(i) hereof.
"Liquidation Preference" means the Original Liquidation Preference,
plus an amount equal to all accrued and unpaid dividends from and after the
Dividend Payment Date on which such dividends were to be paid. The
Liquidation Preference of a share of Series I Preferred Stock will increase
by the amount of dividends that accrue on such share on a Dividend Payment
Date and will decrease only to the extent such dividends are actually paid,
all as provided in Section IV hereof. Notwithstanding the foregoing, in
determining the amount to be paid on a Redemption Date or Exchange Date,
Liquidation Preference shall not be deemed to include any dividends to the
extent such dividends are to be paid on such date in accordance with the
requirements of this Certificate of Designations.
"Market Value" of the Class A Common Stock in the event of a Change of
Control means the average of the last reported sale price of the Class A
Common Stock for the five Trading Days ending on the last Business Day
preceding the date of the Change of Control, provided, however, that if the
Class A Common Stock is not traded on any national securities exchange or
similar quotation system as described in the definition of "Marketable
Stock" during such period, then the Market Value of such Class A Common
Stock shall be the Fair Market Value of such Class A Common Stock as
determined in good faith by the Board of Directors.
"Marketable Stock" means common equity securities of (i) any entity
that is the successor to all or substantially all of the business or assets
of the corporation as a result of a Change of Control (or the ultimate
parent of such successor), or (ii) a wholly-owned subsidiary of the
corporation, which in the case of either clauses (i) or (ii) is (or will,
upon distribution thereof, be) listed or quoted on the American Stock
Exchange or another national securities exchange or the NASDAQ National
Market System or any similar system of automated dissemination of quotation
of securities prices in the United States.
"Optional Redemption Price" has the meaning set forth in Section
VI(A)(i) hereof.
"Original Issue Date" means the date on which shares of Series I
Preferred Stock were first issued by the corporation.
"Original Liquidation Preference" means $250 per share of Series I
Preferred Stock.
"Parity Securities" has the meaning specified in Section III(A)(ii)
hereof.
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6
"Person" means any individual, partnership, corporation, business
trust, joint stock company, trust, unincorporated association, joint
venture, governmental authority or other entity of whatever nature.
"Quarterly Dividend Period" means the quarterly period commencing on
and including a Dividend Payment Date and ending on and including the day
immediately preceding the next subsequent Dividend Payment Date.
"Rainbow Spin-off" means the payment of any dividend by the
corporation or the making by the corporation of any other distribution or
the consummation of an exchange offer, or any combination of the foregoing,
which results in all or a portion of the capital stock of Rainbow
Programming Holdings, Inc. or any successor to the assets or equity
interests thereof, or of another entity, holding only assets that were held
by Rainbow Programming Holdings, Inc. immediately prior to the acquisition
thereof by such entity, being held by all or any portion of the
shareholders of the corporation.
"Redemption Date" has the meaning specified in Section VI(B)(i)(d)
hereof.
"Redemption Notice" has the meaning specified in Section VI(B)(i)
hereof.
"SEC" means the Securities and Exchange Commission.
"Securities Act" means the Securities Act of 1933, as amended.
"Senior Securities" has the meaning specified in Section III(A)(iii)
hereof.
"Series C Preferred Stock" means the Series C Cumulative Preferred
Stock of the corporation.
"Series D Preferred Stock" means the Series D Cumulative Preferred
Stock of the corporation.
"Series G Preferred Stock" means the 11 3/4% Series G Redeemable
Exchangeable Preferred Stock of the corporation.
"Series H Preferred Stock" means the 11 3/4% Series H Redeemable
Exchangeable Preferred Stock of the corporation to be established and
issued in exchange for shares of the Series G Preferred Stock.
"Special Conversion Exercise Period" means the period commencing on
the date following the mailing of a notice by the corporation that a Change
of Control has
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7
occurred and ending on the 45th day thereafter or, if such 45th day is not
a Business Day, the next succeeding Business Day.
"Special Conversion Notice" has the meaning specified in Section
IX(B)(2) hereof.
"Special Conversion Termination Date" means the last day of the
Special Conversion Exercise Period.
"Special Conversion Price" means the greater of the Market Value of
the Class A Common Stock and $[ ] per share (which amount, each time the
then prevailing Conversion Price shall be adjusted as provided elsewhere
herein, shall likewise be adjusted so that the ratio of such dollar amount
to the then prevailing Conversion Price, after giving effect to any such
adjustment, shall always be the same as the ratio of $[ ] to the initial
Conversion Price (without giving effect to any adjustment)).
"Subsidiary" means, with respect to any Person, any corporation,
association or other business entity of which more than fifty percent (50%)
of the total voting power of shares of Capital Stock entitled (without
regard to the occurrence of any contingency) to vote in the election of
directors, managers or trustees thereof is at the time owned or controlled,
directly or indirectly, by any Person or one or more of the other
Subsidiaries of such Person or a combination thereof.
"Trading Day" has the meaning specified in Section IX(A) hereof.
"Transfer Agent" means [ ] or any
successor transfer agent.
"Trust Indenture Act" means the Trust Indenture Act of 1939, as
amended.
"Trustee" means The Bank of New York, as Trustee under the Exchange
Indenture, or any successor Trustee appointed in accordance with the terms
of the Exchange Indenture.
"Voting Rights Triggering Event" has the meaning specified in Section
VII(G)(i) hereof.
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8
II. Designation.
-----------
The series of preferred stock authorized hereunder shall be designated
as the "Series I Cumulative Convertible Exchangeable Preferred Stock". The
number of shares constituting such series shall be 1,380,000, the par value of
the Series I Preferred Stock shall be $.01 per share of Series I Preferred
Stock, and the initial liquidation preference of the Series I Preferred Stock
shall be $250 per share.
III. Ranking.
-------
(A) The Series I Preferred Stock shall rank, with respect to dividends
and distributions upon the liquidation, dissolution and winding-up of the
corporation:
(i) senior to all classes or series of Common Stock of the corporation
and any Capital Stock, including any series of Additional Preferred Stock
hereafter created by the Board of Directors, the terms of which Capital
Stock or Additional Preferred Stock do not expressly provide that it ranks
senior to or on a parity with the Series I Preferred Stock as to dividends
and distributions upon liquidation, dissolution and winding-up of the
corporation (collectively referred to as "Junior Securities");
(ii) on a parity with the Series C Preferred Stock, the Series D
Preferred Stock, the Series G Preferred Stock, the Series H Preferred Stock
and any Capital Stock, including any series of Additional Preferred Stock
hereafter created by the Board of Directors, the terms of which expressly
provide that it ranks on a parity with the Series I Preferred Stock as to
dividends and distributions upon the liquidation, dissolution and winding-
up of the corporation; (collectively referred to as "Parity Securities");
and
(iii) junior to any Capital Stock, including any series of Additional
Preferred Stock hereafter created by the Board of Directors, the terms of
which expressly provide that it ranks senior to the Series I Preferred
Stock as to dividends and distributions upon the liquidation, dissolution
and winding-up of the corporation ("Senior Securities").
IV. Dividends.
---------
(A) Beginning on the Original Issue Date, Holders shall be entitled to
receive, when, as and if declared by the Board of Directors, out of funds
legally available for the payment of dividends, cash dividends on each
outstanding share of Series I Preferred Stock, at a rate per annum equal to __%
of the Liquidation Preference per share of the Series
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9
I Preferred Stock, payable with respect to each Dividend Period. All dividends
shall be cumulative and shall be payable in arrears for each Dividend Period on
each Dividend Payment Date, commencing on January 1, 1996.
(B) Each dividend paid on the Series I Preferred Stock shall be
payable to Holders of record as their names shall appear in the stock ledger of
the corporation on the Dividend Record Date for such dividends, except that
dividends in arrears for any past Dividend Payment Date may be declared and paid
at any time without reference to such regular Dividend Payment Date to Holders
of record on a later dividend record date determined by the Board of Directors.
(C) Dividends shall cease to accumulate in respect of shares of Series
I Preferred Stock on the day prior to the Exchange Date or on the day prior to
their earlier redemption, unless the corporation shall have failed to issue the
appropriate aggregate principal amount of Exchange Debentures in respect of the
Series I Preferred Stock on the Exchange Date or shall have failed to pay the
Optional Redemption Price on the Redemption Date with respect to such shares of
Series I Preferred Stock.
(D) All dividends paid with respect to shares of the Series I
Preferred Stock shall be paid pro rata to the Holders entitled thereto based
upon the number of shares of Series I Preferred Stock held by each such Holder
on the relevant dividend record date. Dividends shall cease to accumulate in
respect of any particular share of Series I Preferred Stock on the day prior to
the Redemption Date with respect thereto.
(E) No full dividends shall be declared by the Board of Directors or
paid or funds set apart for payment by the corporation on the Series I Preferred
Stock or any Parity Securities for any period unless full cumulative dividends
have been or contemporaneously are declared and paid, or declared and a sum set
apart sufficient for such payment, on the Series I Preferred Stock and any
Parity Securities for all Dividend Periods terminating on or prior to the date
of payment of such full dividends on the Series I Preferred Stock or such Parity
Securities. If any dividends are not paid in full, as aforesaid, upon the
shares of the Series I Preferred Stock and any other Parity Securities, all
dividends declared upon shares of the Series I Preferred Stock and any other
Parity Securities shall be declared pro rata so that the amount of dividends
declared per share on the Series I Preferred Stock and such Parity Securities
shall in all cases bear to each other the same ratio that accrued and unpaid
dividends per share on the Series I Preferred Stock and such Parity Securities
bear to each other. No interest or additional dividends, or sum of money in
lieu of interest or additional dividends, shall be payable in respect of any
dividend payment or payments on the Series I Preferred Stock or any other Parity
Securities which may be in arrears.
(F) So long as any shares of the Series I Preferred Stock are
outstanding, except with respect to (i) any conversion of Class B Common Stock
into Class A Common
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10
Stock, (ii) prior to November , 2000, the occurrence of the Rainbow Spin-off,
(iii) repurchases of Common Stock, warrants, rights, calls or options
exercisable for or convertible into Common Stock issued under the corporation's
stock incentive programs from employees of the corporation, and (iv) dividends
or distributions payable in kind in additional shares of, or warrants, rights,
calls or options exercisable for or convertible into additional shares of Junior
Securities, the corporation shall not declare, pay or set apart for payment any
dividend on any Junior Securities (except dividends on Junior Securities payable
in additional shares of Junior Securities), or make any payment on account of,
or set apart for payment money for a sinking or other similar fund for, the
purchase, redemption or other retirement of, any of the Junior Securities or any
warrants, rights, calls or options exercisable for or convertible into any of
the Junior Securities, and shall not permit any corporation or other entity
directly or indirectly controlled by the corporation to purchase or redeem any
of the Junior Securities or any warrants, rights, calls or options exercisable
for or convertible into any of the Junior Securities, unless prior to or
concurrently with such declaration, payment, setting apart for payment,
purchase, redemption or distribution, as the case may be, all accrued and unpaid
dividends on shares of the Series I Preferred Stock not paid on the dates
provided for in Section IV(A) hereof (and, to the extent previously due but not
yet paid, any and all redemption payments on the Series I Preferred Stock) shall
have been or are concurrently being paid.
(G) Dividends payable on shares of the Series I Preferred Stock for
any period less than a year shall be computed on the basis of a 360-day year of
twelve 30-day months and the actual number of days elapsed in the period for
which payable. If any Dividend Payment Date occurs on a day that is not a
Business Day, any accrued dividends otherwise payable on such Dividend Payment
Date shall be paid on the next succeeding Business Day.
V. Payment on Liquidation.
----------------------
(A) Upon any voluntary or involuntary liquidation, dissolution or
winding-up of the affairs of the corporation, Holders will be entitled to
receive out of the assets of the corporation available for distribution to the
holders of its Capital Stock, whether such assets are capital, surplus or
earnings, an amount in cash equal to the Liquidation Preference, before any
payment shall be made or any assets distributed to the holders of any of the
Junior Securities. Except as set forth in the preceding sentence, Holders shall
not be entitled to any distribution in the event of voluntary or involuntary
liquidation, dissolution or winding-up of the affairs of the corporation. If
upon any voluntary or involuntary liquidation, dissolution or winding-up of the
affairs of the corporation, the assets of the corporation are not sufficient to
pay in full the liquidation payments payable to the holders of outstanding
shares of the Series I Preferred Stock and all Parity Securities, then the
holders of all such shares shall share equally and ratably in any distribution
of assets in proportion to
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11
the full liquidation preferences, determined as of the date of such voluntary or
involuntary liquidation, dissolution or winding-up, to which they are entitled.
(B) For the purposes of this Section V only, neither the sale, lease,
conveyance, exchange or transfer (for cash, shares of stock, securities or other
consideration) of all or substantially all of the property or assets of the
corporation nor the consolidation or merger of the corporation with or into one
or more corporations shall be deemed to be a liquidation, dissolution or
winding-up of the affairs of the corporation.
VI. Redemption.
----------
(A) Optional Redemption. (i) The corporation may, at its option, at
-------------------
any time redeem (subject to contractual and other restrictions with respect
thereto and the legal availability of funds therefor), at any time on or after
November , 1998, from any source of funds legally available therefor, in whole
or in part, in the manner provided in Section VI(B) hereof, any or all of the
shares of the Series I Preferred Stock, at the redemption prices (expressed as a
percentage of the Liquidation Preference thereof) set forth below plus an amount
in cash equal to all accumulated and unpaid dividends per share for the period
from the Dividend Payment Date immediately prior to the Redemption Date to the
day prior to the Redemption Date) (the "Optional Redemption Price"), if redeemed
during the 12-month period beginning November , of the years indicated:
<TABLE>
<CAPTION>
Year Percentage
- - --------------------- ----------
<S> <C>
1998................. %
1999.................
2000 and thereafter.. 100.000
</TABLE>
(ii) In the event of a redemption pursuant to this Section VI(A) of
only a portion of the then outstanding shares of Series I Preferred Stock, the
corporation shall effect such redemption pro rata according to the number of
shares held by each Holder of such Series I Preferred Stock or by lot, as
determined by the corporation, except that the corporation may redeem such
shares held by any Holders of fewer than 100 shares (or shares held by Holders
who would hold less than 100 shares as a result of such redemption) as
determined by the corporation in its sole discretion.
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12
(B) Procedure for Redemption. (i) Not more than sixty (60) and not
------------------------
less than thirty (30) days prior to the date fixed for any redemption of the
Series I Preferred Stock, written notice (the "Redemption Notice") shall be
given by first-class mail, postage prepaid, to each Holder of record of shares
to be redeemed on the record date fixed for such redemption of the Series I
Preferred Stock at such Holder's address as the same appears on the stock ledger
of the corporation, provided, however, that no failure to give such notice nor
any deficiency therein shall affect the validity of the procedure for the
redemption of any shares of Series I Preferred Stock to be redeemed except as to
the Holder or Holders to whom the corporation has failed to give said notice or
except as to the Holder or Holders whose notice was defective. The Redemption
Notice shall state:
(a) the Optional Redemption Price;
(b) whether all or less than all the outstanding shares of the
Series I Preferred Stock redeemable thereunder are to be redeemed and the
total number of shares of such Series I Preferred Stock being redeemed;
(c) the number of shares of Series I Preferred Stock held by the
Holder that the corporation intends to redeem;
(d) the date fixed for redemption (the "Redemption Date");
(e) that the Holder is to surrender to the corporation, at the
place or places, which shall be designated in such Redemption Notice, its
certificates representing the shares of Series I Preferred Stock to be
redeemed;
(f) that dividends on the shares of the Series I Preferred Stock
to be redeemed shall cease to accrue on such Redemption Date unless the
corporation defaults in the payment of the Optional Redemption Price; and
(g) the name of any bank or trust company performing the duties
referred to in Section VI(B)(v) below.
(ii) On or before the Redemption Date, each Holder of Series I
Preferred Stock to be redeemed shall surrender the certificate or certificates
representing such shares of Series I Preferred Stock to the corporation, in the
manner and at the place designated in the Redemption Notice, and on the
Redemption Date the full Optional Redemption Price for such shares shall be
payable in cash to the Person whose name appears on such certificate or
certificates as the owner thereof, and each surrendered certificate shall be
returned to authorized but unissued shares. In the event that less than all of
the shares represented by any such certificate are redeemed, a new certificate
shall be issued representing the unredeemed shares.
<PAGE>
13
(iii) Unless the corporation defaults in the payment in full of
the Optional Redemption Price, dividends on the Series I Preferred Stock called
for redemption shall cease to accumulate on the day prior to the Redemption
Date, and the Holders of such shares shall cease to have any further rights with
respect thereto on the Redemption Date, other than the right to receive the
Optional Redemption Price, without interest.
(iv) If a Redemption Notice shall have been duly given, and if, on or
before the Redemption Date specified therein, all funds necessary for such
redemption shall have been set aside by the corporation, separate and apart from
its other funds, in trust for the pro rata benefit of the Holders of the Series
I Preferred Stock called for redemption so as to be and continue to be available
therefor, then, notwithstanding that any certificate for shares so called for
redemption shall not have been surrendered for cancellation, all shares so
called for redemption shall no longer be deemed outstanding, and all rights with
respect to such shares shall forthwith on such Redemption Date cease and
terminate, except only the right of the Holders thereof to receive the amount
payable on redemption thereof, without interest.
(v) If a Redemption Notice shall have been duly given or if the
corporation shall have given to the bank or trust company hereinafter referred
to irrevocable authorization promptly to give such notice, and if on or before
the Redemption Date specified therein the funds necessary for such redemption
shall have been deposited by the corporation with such bank or trust company in
trust for the pro rata benefit of the Holders of the Series I Preferred Stock
called for redemption, then, notwithstanding that any certificate for shares so
called for redemption shall not have been surrendered for cancellation, from and
after the time of such deposit, all shares so called, or to be so called
pursuant to such irrevocable authorization, for redemption shall no longer be
deemed to be outstanding and all rights with respect of such shares shall
forthwith cease and terminate, except only the right of the Holders thereof to
receive from such bank or trust company at any time after the time of such
deposit the funds so deposited, without interest. The aforesaid bank or trust
company shall be organized and in good standing under the laws of the United
States of America or of the State of New York, shall be doing business in the
Borough of Manhattan, The City of New York, shall have capital, surplus and
undivided profits aggregating at least $100,000,000 according to its last
published statement of condition, and shall be identified in the Redemption
Notice. Any interest accrued on such funds shall be paid to the corporation
from time to time. Any funds so set aside or deposited, as the case may be, and
unclaimed at the end of three years from such Redemption Date shall, to the
extent permitted by law, be released or repaid to the corporation, after which
repayment the Holders of the shares so called for redemption shall look only to
the corporation for payment thereof.
<PAGE>
14
VII. Voting Rights.
-------------
(A) Holders, except as otherwise required under Delaware law and as
set forth in paragraphs (B) and (C) below, shall not be entitled or permitted to
vote on any matter required or permitted to be voted upon by the stockholders of
the corporation.
(B) Without the approval of Holders of at least a majority of the
shares of Series I Preferred Stock then outstanding, voting or consenting, as
the case may be, as one class, given in person or by proxy, either in writing or
by resolution adopted at an annual or special meeting called for the purpose,
the corporation will not (i) create, authorize or issue any Senior Securities or
any warrants, rights, calls or options exercisable or exchangeable for or
convertible into, or any obligations evidencing the right to purchase or acquire
any Senior Securities, including in connection with a merger, consolidation or
other reorganization or (ii) reclassify any Junior Securities, Parity Securities
or other outstanding Capital Stock of the corporation into any Senior Securities
or any warrants, rights, calls or options exercisable or exchangeable for or
convertible into, or any obligations evidencing the right to purchase or acquire
any Senior Securities.
(C) Without the approval of Holders of at least a majority of the
shares of Series I Preferred Stock then outstanding, voting or consenting, as
the case may be, as one class, given in person or by proxy, either in writing or
by resolution adopted at an annual or special meeting called for the purpose,
the corporation will not amend, modify or repeal the Certificate of
Incorporation (including this Certificate of Designations), By-Laws of the
corporation, or any other specified designations, rights, preferences or powers
of the Series I Preferred Stock in a manner adverse to the Holders.
(D) Prior to the exchange of Series I Preferred Stock for Exchangeable
Debentures, the corporation shall not amend or modify the indenture dated
November 1, 1995, between the corporation and the Trustee for the Exchange
Debentures, as supplemented by a supplemental indenture dated as of November 1,
1995 (as so supplemented, the "Exchange Indenture"), a copy of which is on file
at the principal executive offices of the corporation, without the affirmative
vote or consent of Holders of at least a majority of the shares of Series I
Preferred Stock then outstanding, voting or consenting, as the case may be, as
one class, given in person or by proxy, either in writing or by resolution
adopted at an annual or special meeting called for the purpose; provided that
the corporation and the Trustee shall be permitted, without any vote or consent
of the Holders, to effect any amendments to the Exchange Indenture that could
have been effected under the Exchange Indenture without the consent of holders
of Exchange Debentures if any Exchange Debentures were then outstanding.
(E) The Holders of at least a majority of the shares of Series I
Preferred Stock then outstanding, voting or consenting, as the case may be, as
one class, whether
<PAGE>
15
voting in person or by proxy, either in writing or by resolution adopted at an
annual or special meeting called for the purpose, may waive compliance with any
provision of this Certificate of Designations.
(F) Notwithstanding anything herein to the contrary, (i) the creation,
authorization or issuance of any shares of any Parity Securities or Junior
Securities, or (ii) the increase or decrease in the amount of authorized Capital
Stock of any class, including any preferred stock, shall not require the consent
of the Holders and shall not be deemed to affect adversely the rights,
preferences, privileges or voting rights of Holders.
(G) (i) In the event that dividends on the Series I Preferred Stock
are in arrears and unpaid for six Quarterly Dividend Periods (whether or not
consecutive), then the number of directors constituting the Board of Directors
shall be adjusted to permit the Holders of the majority of the shares of Series
I Preferred Stock then outstanding, voting as one class, to elect one member of
the Board of Directors of the corporation and a second member of the Board of
Directors if the right to elect a second director is required by the American
Stock Exchange or any other national securities exchange on which the
corporation elects to list the Class A Common Stock or by the requirements of
the NASDAQ National Market System if the corporation elects to have the Class A
Common Stock traded thereon. The foregoing event described herein is a "Voting
Rights Triggering Event". Holders of a majority of the issued and outstanding
shares of Series I Preferred Stock, voting as one class shall thereupon have the
exclusive right to elect one or two members of the Board of Directors, as the
case may be, at any annual or special meeting of stockholders or at a special
meeting of the holders of Series I Preferred Stock called as hereinafter
provided.
(ii) The right of the Holders to vote pursuant to Section VII(G)(i) to
elect one or two members of the Board of Directors, as the case may be, as
aforesaid, shall continue until such time as all accumulated dividends that are
in arrears on the Series I Preferred Stock are paid in full, at which time the
special right of the Holders to vote for the election of one or two directors,
as the case may be, and the term of office of such director or directors elected
by the Holders shall terminate, and the number of directors constituting the
Board of Directors shall be reduced accordingly. At any time after voting power
to elect a director shall have become vested and be continuing in the Holders
pursuant to Section VII(G)(i) hereof, or if a vacancy shall exist in the office
of a director elected by the Holders, a proper officer of the corporation may,
and upon the written request of the Holders of record of at least twenty percent
(20%) of the shares of Series I Preferred Stock then outstanding addressed to
the Secretary of the corporation shall, call a special meeting of the Holders,
for the purpose of electing the one or two directors, as the case may be, which
such Holders are entitled to elect as herein provided. If such meeting shall
not be called by a proper officer of the corporation within 20 days after
personal service of said written request upon the Secretary of the corporation,
or within 20 days after mailing the same within the United States by certified
mail, addressed to the Secretary of the corporation at its principal
<PAGE>
16
executive offices, then the Holders of record of at least twenty percent (20%)
of the outstanding shares of Series I Preferred Stock may designate in writing
one of their number to call such meeting at the expense of the corporation, and
such meeting may be called by the Person so designated upon the notice required
for the annual meetings of stockholders of the corporation and shall be held at
the place for holding the annual meetings of stockholders. Notwithstanding the
provisions of this Section VII(G)(ii), no such special meeting shall be called
if any such request is received less than 60 days before the date fixed for the
next ensuing annual or special meeting of stockholders of the corporation. Any
Holder so designated shall have access to the lists of stockholders of Series I
Preferred Stock to be called pursuant to the provisions hereof.
(iii) At any meeting held for the purpose of electing directors at
which the Holders shall have the right, voting as one class, to elect one or two
directors, as the case may be, as aforesaid, the presence in person or by proxy
of the Holders of at least a majority of the outstanding Series I Preferred
Stock shall be required to constitute a quorum.
(H) (i) Any vacancy occurring in the office of a director elected by
the Holders may be filled by the remaining director, if any, or otherwise by the
departing director unless and until such vacancy shall be filled by the Holders.
(ii) In any case in which the Holders shall be entitled to vote
pursuant to this Section VII or pursuant to Delaware law, each Holder of shares
of Series I Preferred Stock shall be entitled to one vote for each share of
Series I Preferred Stock held.
VIII. Exchange.
--------
(A) The corporation may, at its option, on any regular Dividend
Payment Date on or after January 1, 1998, exchange the shares of Series I
Preferred Stock, in whole but not in part, for the Exchange Debentures issued
pursuant to the Exchange Indenture (such date, the "Exchange Date").
Notwithstanding the foregoing, the corporation may not exercise such exchange
option unless (i) all accrued and unpaid dividends in respect of shares of
Series I Preferred Stock surrendered to the corporation upon exchange shall have
been paid, or (ii) the corporation has set aside funds to provide for the
payment in full of such dividends. At least thirty (30) and not more than sixty
(60) days prior to the date fixed for exchange, the corporation shall send a
written notice (the "Exchange Notice") of exchange by mail to each Holder, which
notice shall state: (a) that the corporation has elected to exchange the Series
I Preferred Stock into Exchange Debentures pursuant to this Certificate of
Designations; (b) the Exchange Date; (c) that the Holder is to surrender to the
corporation, at the place or places where certificates for shares of Series I
Preferred Stock are to be surrendered for exchange, in the manner designated in
the Exchange Notice, its certificate or certificates representing the shares of
Series I Preferred Stock; (d) that
<PAGE>
17
dividends on the shares of Series I Preferred Stock to be exchanged shall cease
to accrue at the close of business on the day prior to the Exchange Date whether
or not certificates for shares of Series I Preferred Stock are surrendered for
exchange on the Exchange Date unless the corporation shall default in the
delivery of Exchange Debentures; and (e) that interest on the Exchange
Debentures shall accrue from the Exchange Date whether or not certificates for
shares of Series I Preferred Stock are surrendered for exchange on the Exchange
Date. On the Exchange Date, if the conditions set forth in clauses (i) through
(iv) below are satisfied and if the exchange is then permitted under the
Exchange Indenture, the corporation shall issue Exchange Debentures in exchange
for the Series I Preferred Stock as provided in the next paragraph, provided
that on the Exchange Date: (i) there shall be legally available funds
sufficient for the exchange to occur (including, without limitation, legally
available funds sufficient therefor under Sections 160 and 170 (or any successor
provisions), to the extent applicable, of the General Corporation Law of the
State of Delaware; (ii) the corporation shall have obtained a written opinion of
counsel acceptable to the corporation that an exemption from the registration
requirements of the Securities Act is available for such exchange, and such
exemption is relied upon by the corporation for such exchange or, alternatively,
that the Exchange Debentures have been registered thereunder; (iii) the Exchange
Indenture and the Trustee shall have been qualified under the Trust Indenture
Act or the corporation shall have obtained a written opinion of counsel that
such qualification is not required; (iv) immediately after giving effect to such
exchange, no Default or Event of Default (each as defined in the Exchange
Indenture) would exist under the Exchange Indenture. In the event that any of
the conditions set forth in clauses (i) through (iv) of the preceding sentence
are not satisfied on the Exchange Date, then no shares of Series I Preferred
Stock shall be exchanged, and in order to effect an exchange as provided for in
this Section VIII, the corporation shall be required to fix another date for the
exchange and issue a new Exchange Notice.
(B) Upon any exchange pursuant to Section VIII(A), Holders shall be
entitled to receive a principal amount of Exchange Debentures equal to the
Liquidation Preference of Series I Preferred Stock, plus an amount in cash equal
to all accrued and unpaid dividends thereon for the period from the immediately
preceding Dividend Payment Date to the day prior to the Exchange Date); provided
that the corporation shall pay cash in lieu of issuing an Exchange Debenture in
a principal amount of less than $1,000 and, provided further, that the Exchange
Debentures will be issuable only in denominations of $1,000 and integral
multiples thereof.
(C) On or before the Exchange Date, each Holder shall surrender the
certificate or certificates representing such shares of Series I Preferred
Stock, in the manner and at the place designated in the Exchange Notice. The
corporation shall cause the Exchange Debentures to be executed on the Exchange
Date and, upon surrender in accordance with the Exchange Notice of the
certificates for any shares of Series I Preferred Stock so exchanged (properly
endorsed or assigned for transfer, if the notice shall so state),
<PAGE>
18
such shares shall be exchanged by the corporation into Exchange Debentures as
aforesaid. The corporation shall pay interest on the Exchange Debentures at the
rate and on the dates specified therein from the Exchange Date.
(D) If the Exchange Notice has been mailed as aforesaid, and if
before the Exchange Date all Exchange Debentures necessary for such exchange
shall have been duly executed by the corporation and delivered to the Trustee
with irrevocable instructions to authenticate the Exchange Debentures necessary
for such exchange, then the rights of the Holders as stockholders of the
corporation shall cease (except the right to receive Exchange Debentures), and
the Person or Persons entitled to receive the Exchange Debentures issuable upon
exchange shall be treated for all purposes as the registered Holder or Holders
of such Exchange Debentures as of the date of exchange. Upon the exchange of
the Series I Preferred Stock for Exchange Debentures, the rights of Holders as
stockholders of the corporation shall cease (except the right to receive the
Exchange Debentures), and the Person or Persons entitled to receive the Exchange
Debentures issuable upon exchange shall be treated for all purposes as
registered holder or holders of such Exchange Debentures as of the date of
exchange.
IX. Conversion.
----------
(A) General Rights. Each share of Series I Preferred Stock shall be
--------------
convertible, at any time after January __, 1996, at the option of the Holder
thereof, (but if such share is called for redemption pursuant to Section VI or
exchange pursuant to Section VIII, then only to and including but not after the
close of business on the fifth business day preceding the date fixed for such
redemption or exchange, provided that no default by the corporation in the
payment of the applicable Optional Redemption Price or in the exchange of such
share, as the case may be, shall have occurred and be continuing on the date
fixed for such redemption or exchange, as the case may be, in which case such
right of conversion shall be reinstated), into that number of fully paid and
non-assessable shares of Class A Common Stock of the corporation (calculated as
to each conversion to the nearest 1/100th of a share) obtained by dividing the
Original Liquidation Preference of the shares of Series I Preferred Stock
surrendered for conversion by the Conversion Price (as defined below) then in
effect (such date of conversion, a "Conversion Date").
The conversion price shall initially be $_____ (the "Conversion
Price").
In order to exercise the conversion privilege, a Holder shall
surrender the certificate(s) representing such shares, accompanied by transfer
instrument(s) satisfactory to the corporation and sufficient to transfer the
Series I Preferred Stock being converted to the corporation free of any adverse
interest, at any of the offices or agencies maintained for such purpose by the
conversion agent designated by the corporation (the "Conversion Agent") and
<PAGE>
19
shall give written notice to the corporation that the Holder elects to convert
such shares. The initial Conversion Agent shall be Harris Bank & Trust Company,
the transfer agent for the Series I Preferred Stock. Such notice shall also
state the name(s), together with address(es), in which the certificate(s) for
shares of Class A Common Stock shall be issued. As promptly as practicable
after the surrender of such shares of Series I Preferred Stock as aforesaid, the
corporation shall issue and deliver at the office of such Conversion Agent to
such Holder, or on his written order, certificate(s) representing the number of
full shares of Class A Common Stock issuable upon the conversion of such shares
in accordance with the provisions hereof, and any fractional interest in respect
of a share of Class A Common Stock arising upon such conversion shall be settled
as provided for below. Certificates will be issued representing the balance of
any remaining shares of Series I Preferred Stock in any case in which fewer than
all of the shares of Series I Preferred Stock represented by a certificate are
converted. Each conversion shall be deemed to have been effected immediately
prior to the close of business on the date on which shares of Series I Preferred
Stock shall have been surrendered and notice received by the corporation as
aforesaid, and the Person(s) in whose name(s) any certificate(s) for shares of
Class A Common Stock shall be issuable upon such conversion shall be deemed to
have become the holder(s) of record of the Class A Common Stock represented
thereby at such time, unless the stock transfer books of the corporation shall
be closed on the date on which shares of Series I Preferred Stock are so
surrendered for conversion, in which event such conversion shall be deemed to
have been effected immediately prior to the close of business on the next
succeeding day on which such stock transfer books are open, and such person(s)
shall be deemed to have become such holder(s) of record of the Class A Common
Stock at the close of business on such later day. In either circumstance, such
conversion shall be at the Conversion Price in effect on the date upon which
such share shall have been surrendered and such notice received by the
corporation.
In the case of any share of Series I Preferred Stock which is
converted after any Dividend Record Date and on or prior to the Dividend Payment
Date with respect to such dividend, the dividend due on such Dividend Payment
Date shall be payable to the Holder of record of such share at the close of
business as of such Dividend Record Date notwithstanding such conversion on or
prior to the Dividend Payment Date or the default by the corporation in the
payment of the dividends due on such Dividend Payment Date. Shares of Series I
Preferred Stock surrendered for conversion during the period from the close of
business on any Dividend Record Date to the opening of business on the Dividend
Payment Date with respect to such dividend shall (except in the case of shares
of Series I Preferred Stock converted after the issuance of a notice of
redemption with respect to a Redemption Date within such period, which shares of
Series I Preferred Stock shall be entitled to the payment of a dividend) be
accompanied by payment in immediately available funds or other funds acceptable
to the corporation of an amount equal to the dividend payable on such Dividend
Payment Date on the shares of Series I Preferred Stock being surrendered for
conversion. The dividend with respect to a share of Series I Preferred Stock
called for redemption on a Redemption Date during the period from the close of
business on any
<PAGE>
20
Dividend Record Date to and including the Dividend Payment Date with respect to
such dividend shall be payable on such Dividend Payment Date to the Holder of
record of such share on such Dividend Record Date notwithstanding the conversion
of such share of Series I Preferred Stock after such Dividend Record Date and
prior to such Dividend Payment Date, and the Holder converting such share of
Series I Preferred Stock need not include a payment of such dividend amount upon
surrender of such share of Series I Preferred Stock for conversion. Except as
provided in this paragraph, no payment or adjustment shall be made upon any
conversion on account of any dividends accrued on shares of Series I Preferred
Stock surrendered for conversion or on account of any dividends on the Class A
Common Stock issued upon conversion.
No fractional interest in a share of Class A Common Stock shall be
issued by the corporation upon the conversion of any share(s) of Series I
Preferred Stock. Any fractional interest in a share of Class A Common Stock
resulting from conversion of any share(s) of Series I Preferred Stock shall be
paid in cash (computed to the nearest cent) based on the last reported sales
price (or closing bid price if no sale occurred) on the last Trading Day prior
to which such share or shares of Series I Preferred Stock are surrendered for
conversion in the manner set forth above on the American Stock Exchange (the
"ASE") or, if the ASE is not the principal national securities exchange on which
the Class A Common Stock is listed or admitted for trading, on such principal
national securities exchange or, if the Class A Common Stock is not so listed or
admitted for trading on the ASE or any other national securities exchange but is
quoted on the NASDAQ National Market System or any similar system of automated
dissemination of quotations of securities prices, on the NASDAQ National Market
System or such similar system. If more than one certificate representing shares
of Series I Preferred Stock shall be surrendered for conversion at one time by
the same holder, the number of full shares issuable upon conversion thereof
shall be computed on the basis of the aggregate number of shares of Series I
Preferred Stock represented by such certificates which are to be converted. As
used herein, the term "Trading Day" means any day on which the ASE or such
principal national securities exchange, as the case may be, is open for business
or, if the Class A Common Stock is not so listed or admitted for trading on the
ASE or any other national securities exchange but is quoted on the NASDAQ
National Market System or any similar system of automated dissemination of
quotations of securities prices, any day on which trades may be made on such
system.
The Conversion Price shall be adjusted from time to time as follows:
(a) In case the corporation shall pay or make a dividend or other
distribution on any class of capital stock of the corporation in Class A
Common Stock, the Conversion Price 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 be reduced by
multiplying such Conversion Price by a
<PAGE>
21
fraction the numerator of which shall be the number of shares of Class A
Common Stock outstanding at the close of business on the date fixed for
such determination and the denominator of which shall be the sum of such
number of shares and the total number of shares constituting such dividend
or other distribution, such reduction to become effective immediately after
the opening of business on the day following the date fixed for such
determination. For the purposes of this subsection (a), the number of
shares of Class A Common Stock at any time outstanding shall not include
shares held in the treasury of the corporation. The corporation will not
pay any dividend or make any distribution on shares of Class A Common Stock
held in the treasury of the corporation.
(b) In case the corporation shall issue rights or warrants to all
holders of its Class A Common Stock entitling them to subscribe for,
purchase or acquire shares of Class A Common Stock at a price per share
less than the current market price per share (determined as provided in
subsection (f) below) of the Class A Common Stock on the date fixed for the
determination of stockholders entitled to receive such rights, warrants or
convertible or exchangeable securities, the Conversion Price in effect at
the opening of business on the day following the date fixed for such
determination shall be reduced by multiplying such Conversion Price by a
fraction the numerator of which shall be the number of shares of Class A
Common Stock outstanding at the close of business on the date fixed for
such determination plus the number of shares of Class A Common Stock which
the aggregate of the offering price of the total number of shares of Class
A Common Stock so offered for subscription, purchase or acquisition would
purchase at such current market price and the denominator of which shall be
the number of shares of Class A Common Stock outstanding at the close of
business on the date fixed for such determination plus the number of shares
of Class A Common Stock so offered for subscription, purchase or
acquisition, such reduction to become effective immediately after the
opening of business on the day following the date fixed for such
determination. For the purposes of this subsection (b), the number of
shares of Class A Common Stock at any time outstanding shall not include
shares held in the treasury of the corporation. The corporation will not
issue any rights, warrants or convertible or exchangeable securities in
respect of shares of Class A Common Stock held in the treasury of the
corporation.
(c) In case the outstanding shares of Class A Common Stock shall
be subdivided into a greater number of shares of Class A Common Stock, the
Conversion Price in effect at the opening of business on the day following
the day upon which such subdivision becomes effective shall be
proportionately reduced, and, conversely, in case the outstanding shares of
Class A Common Stock shall each be combined into a smaller number of shares
of Class A Common Stock, the Conversion Price in effect at the opening of
business on the day following the day upon which such combination becomes
effective shall be proportionately increased, such reduction
<PAGE>
22
or increase, as the case may be, to become effective immediately after the
opening of business on the day following the day upon which such
subdivision or combination becomes effective.
(d) In case the corporation shall, by dividend or otherwise,
distribute to all holders of its Class A Common Stock (i) evidences of its
indebtedness and/or (ii) cash or other assets (excluding (A) any rights or
warrants referred to in subsection (b) above, (B) any dividend or
distribution referred to in subsection (a) above, and (C) cash dividends or
distributions from earnings unless the sum of (x) all such cash dividends
and distributions made within the preceding 12 months in respect of which
no adjustment has been made and (y) any cash and the fair market value of
other consideration paid in respect of any repurchases of Common Stock by
the corporation or any of its subsidiaries within the preceding 12 months
in respect of which no adjustment has been made, exceeds 20% of the
corporation's market capitalization (being the product of the then current
market price per share (determined as provided in subsection (f) below) of
the Class A Common Stock times the aggregate number of shares of Class A
Common Stock and Class B Common Stock then outstanding) on the record date
for such distribution), then in each case the Conversion Price shall be
adjusted so that the Conversion Price shall equal the price determined by
multiplying the Conversion Price in effect immediately prior to the close
of business on the record date for the determination of holders of Common
Stock entitled to receive such distribution by a fraction of which the
numerator shall be the current market price per share (determined as
provided in subsection (f) below) of the Class A Common Stock on such
record date less the then fair market value as determined by the Board of
Directors (whose determination shall be conclusive and shall be described
in a statement filed with any Conversion Agent) of the portion of the other
assets or evidences of indebtedness so distributed (and for which an
adjustment to the Conversion Price has not previously been made pursuant to
the terms of this Section IX) applicable to one share of Class A Common
Stock, and the denominator shall be such current market price per share of
the Class A Common Stock, such adjustment to become effective immediately
prior to the opening of business on the day following such record date.
The following transactions shall be excluded from the foregoing clauses (x)
and (y): (i) any conversion of Class B Common Stock into Class A Common
Stock, (ii) repurchases of Common Stock issued under the corporation's
stock incentive programs from employees of the corporation, and (iii)
dividends or distributions payable-in-kind in additional shares of, or
warrants, rights, calls or options exercisable for or convertible into
additional shares of, Junior Securities.
(e) The reclassification or change of Class A Common Stock into
securities including securities other than Class A Common Stock (other than
any reclassification upon a consolidation or merger to which subsection (i)
below applies) shall be deemed
<PAGE>
23
to involve (i) a distribution of such securities other than Class A Common
Stock to all holders of Class A Common Stock (and the effective date of
such reclassification shall be deemed to be "the record date for the
determination of holders of Class A Common Stock entitled to receive such
distribution" within the meaning of subsection (d) above), and (ii) a
subdivision or combination, as the case may be, of the number of shares of
Class A Common Stock outstanding immediately prior to such reclassification
into the number of shares of Class A Common Stock outstanding immediately
thereafter (and the effective date of such reclassification shall be deemed
to be "the day upon which such subdivision becomes effective" or "the day
upon which such combination becomes effective," as the case may be, and
"the day upon which such subdivision or combination becomes effective"
within the meaning of subsection (c) above).
(f) For the purpose of any computation under subsection (b) or
(d) above, the current market price per share of Class A Common Stock on
any day shall be deemed to be the average of the closing prices for the 20
consecutive Trading Days selected by the Board of Directors commencing no
more than 30 Trading Days before and ending no later than the day before
the day in question. The closing price for each Trading Day shall be the
last reported sale price regular way on the ASE (or, if the ASE is not the
principal national securities exchange on which the Class A Common Stock is
listed or admitted for trading, on such principal national securities
exchange or, if the Class A Common Stock is not so listed or admitted for
trading on the ASE or any other national securities exchange, on the NASDAQ
National Market System or, if the Class A Common Stock is not quoted on
such NASDAQ National Market System, the average of the closing bid and
asked prices in the over-the-counter market as furnished by any New York
Stock Exchange member firm selected from time to time by the corporation
for that purpose).
(g) No adjustment in the Conversion Price shall be required
unless such adjustment would require an increase or decrease of at least 1%
of such price; provided, however, that any adjustments which by reason of
this clause (g) are not required to be made shall be carried forward and
taken into account in any subsequent adjustment and provided further that
adjustment shall be required and made in accordance with the provisions of
this Section IX (other than this clause (g)) not later than such time as
may be required in order to preserve the tax free nature of a distribution
to the holders of shares of Class A Common Stock. Anything in this clause
(g) to the contrary notwithstanding, the corporation shall be entitled, at
its option, to make such reductions in the Conversion Price, in addition to
those required by this Section IX, as it in its discretion shall determine
to be advisable in order that any stock dividend, subdivision or
combination of shares, distribution of capital stock or rights or warrants
to purchase stock or securities, or distribution of evidences of
indebtedness or assets (other than cash dividends or distributions paid
from earnings)
<PAGE>
24
or other event shall be a tax free distribution for federal income tax
purposes. All calculations shall be made to the nearest cent.
(h) Whenever the Conversion Price is adjusted as herein provided,
the corporation shall promptly mail a certificate of a firm of independent
public accountants setting forth the Conversion Price after such adjustment
and setting forth a brief statement of the facts requiring such adjustment
and the manner of computing same, which certificate shall constitute
conclusive evidence, absent manifest error, of the correctness of such
adjustment. The certificate shall be mailed to each Holder at his last
address as the same appears on the stock transfer books of the corporation
and to the Conversion Agent.
(i) In case of (i) any consolidation of the corporation with, or
merger of the corporation into, any other entity, (ii) any merger of
another entity into the corporation (other than a merger which does not
result in any reclassification, conversion, exchange or cancellation of
outstanding shares of Class A Common Stock) or (iii) any sale or transfer
of all or substantially all of the assets of the corporation, each Holder
shall have the right thereafter to convert such share only into the kind
and amount of securities, cash and other property receivable upon such
consolidation, merger, sale or transfer by a holder of the number of shares
of Class A Common Stock into which such share of Series I Preferred Stock
might have been converted immediately prior to such consolidation, merger,
sale or transfer, assuming such holder of Class A Common Stock is not an
entity with which the corporation consolidated or into which the
corporation merged or which merged into the corporation or to which such
sale or transfer was made, as the case may be (a "constituent entity"), or
an affiliate of a constituent entity and failed to exercise its rights of
election, if any, as to the kind or amount of securities, cash or other
property receivable upon such consolidation, merger, sale or transfer
(provided that if the kind or amount of securities, cash and other property
receivable upon such consolidation, merger, sale or transfer is not the
same for each share of Class A Common Stock held immediately prior to such
consolidation, merger, sale or transfer by other than a constituent entity
or an affiliate thereof and in respect of which such rights of election
shall not have been exercised ("non-electing share"), then for the purpose
of this subsection (i) the kind and amount of securities, cash and other
property receivable upon such consolidation, merger, sale or transfer by
each non-electing share shall be deemed to be the kind and amount so
receivable per share by a plurality of the non-electing shares). If
necessary, appropriate adjustment shall be made in the application of the
provisions set forth herein with respect to the rights and interests
thereafter of the holders of shares of Series I Preferred Stock, to the end
that the provisions set forth herein shall thereafter correspondingly be
made applicable, as nearly as may reasonably be, in relation to any shares
of stock or other securities or property thereafter deliverable on the
conversion of the shares. Any such adjustment
<PAGE>
25
shall be evidenced by a certificate of independent public accountants and a
notice of such adjustment filed and mailed in the manner set forth in
subsection (h) above, and each containing the information set forth in such
subsection (h), and any adjustment so certified shall for all purposes
hereof conclusively be deemed to be an appropriate adjustment. The above
provisions shall similarly apply to successive consolidations, mergers,
sales or transfers.
For purposes of this Section IX, "Class A Common Stock" includes any
stock of any class of the corporation, other than Class B Stock, which has no
preference in respect of dividends or of amounts payable in the event of any
voluntary or involuntary liquidation, dissolution or winding-up of the
corporation and which is not subject to redemption by the corporation. However,
subject to the provisions of subsection (i) above, shares issuable on conversion
of shares of Series I Preferred Stock shall include only shares of the class
designated as Class A Common Stock of the corporation on the date of the initial
issuance of Series I Preferred Stock by the corporation, or shares of any class
or classes resulting from any reclassification thereof and which have no
preferences in respect of dividends or amounts payable in the event of any
voluntary or involuntary liquidation, dissolution or winding-up of the
corporation and which are not subject to redemption by the corporation; provided
that if at any time there shall be more than one such resulting class, the
shares of each such class then so issuable shall be substantially in the
proportion which the total number of shares of such class resulting from all
such reclassifications bears to the total number of shares of all such classes
resulting from all such reclassifications.
In case:
(i) the corporation shall take any action that would result in an
adjustment to the Conversion Price; or
(ii) of any consolidation, merger or share exchange to which the
corporation is a party and for which approval of any stockholders of the
corporation is required, or of the sale or transfer of all or substantially
all of the assets of the corporation; or
(iii) of the voluntary or involuntary dissolution, liquidation
or winding-up of the corporation;
then the corporation shall cause to be filed with any Conversion Agent and shall
cause to be mailed to each Holder at its last address as the same appears on the
books of the corporation, at least 15 days prior to the applicable record or
effective date hereinafter specified, a notice stating (A) the date on which a
record is to be taken for the purpose of such actions, or, if the record is not
to be taken, the date as of which the holders of Class A Common Stock of record
are to be determined, or (B) the date on which such consolidation, merger, share
<PAGE>
26
exchange, sale, transfer, dissolution, liquidation or winding-up is expected to
become effective, and the date as of which it is expected that holders of Class
A Common Stock of record shall be entitled to exchange their shares of Class A
Common Stock for securities, cash or other property deliverable upon such
consolidation, merger, share exchange, sale, transfer, dissolution, liquidation
or winding-up. Neither the failure to give such notice nor any defect therein
shall affect the legality or validity of the proceedings described in clauses
(i) through (iii) above.
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
Class A Common Stock on conversion of shares of Series I Preferred Stock
pursuant hereto; provided, however, that the corporation shall not be required
to pay any tax which may be payable in respect of any transfer involved in the
issue or delivery of shares of Class A Common Stock in a name other than that of
the Holder of the shares of Series I 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 such tax or has
established, to the satisfaction of the corporation, that such tax has been
paid.
The corporation covenants that all shares of Class A Common Stock
which may be issued upon conversions of shares of Series I Preferred Stock will,
upon issue, be duly and validly issued, fully paid and non-assessable, free of
all liens and charges and not subject to any preemptive rights.
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 Class A Common Stock, for the purpose of effecting
conversions of shares of Series I Preferred Stock, the full number of shares of
Class A Common Stock deliverable upon the conversion of all outstanding shares
of Series I Preferred Stock not theretofore converted.
(B) Special Conversion Rights Upon Change of Control. (1) Upon the
------------------------------------------------
occurrence of a Change of Control, each Holder shall have the right, at the
Holder's option, during the Special Converson Exercise Period to convert all,
but not less than all, of such Holder's Series I Preferred Stock into Class A
Common Stock at an adjusted Conversion Price per share equal to the Special
Conversion Price. The corporation may, at its option, in lieu of providing
Class A Common Stock upon any such conversion, provide the Holder, out of funds
legally available therefor, with cash equal to the Market Value of the Class A
Common Stock multiplied by the number of shares of Class A Common Stock into
which such shares of Preferred Stock would have been convertible immediately
prior to such Change of Control at an adjusted conversion price equal to the
Special Conversion Price. Series I Preferred Stock which becomes convertible
pursuant to a special conversion right shall, unless so converted, remain
convertible into Class A Common Stock as provided pursuant to Section IX(A). If
a Change of Control involves a consolidation, merger or sale
<PAGE>
27
of assets of the corporation, the holders of shares of the Series I Preferred
Stock exercising their conversion rights will be entitled to receive the same
consideration as would be received by a holder of the number of shares of Class
A Common Stock into which their shares of Series I Preferred Stock would have
been converted pursuant to their special conversion rights.
(2) Upon the occurrence of a Change of Control, within 30 days after
such occurrence, the corporation shall mail to each Holder of Series I Preferred
Stock a notice of such occurrence (the "Special Conversion Notice") setting
forth the following:
(i) the event constituting the Change of Control, together with
such other information as may be required pursuant to the securities laws;
(ii) the Special Conversion Exercise Period and the Special
Conversion Termination Date;
(iii) the Special Conversion Price;
(iv) the Conversion Price then in effect and the continuing
conversion rights, if any, under Section IX;
(v) the name and address of the paying agent and Conversion
Agent;
(vi) that the Holders who want to convert shares of Series I
Preferred Stock must exercise such conversion right during the Special
Conversion Exercise Period;
(vii) that exercise of such special conversion right shall be
irrevocable except that Holders shall have the right to withdraw their
election to exercise the special conversion right at any time prior to the
close of business on the Special Conversion Termination Date by providing
written, telegraphic or facsimile transmission notice of withdrawal to the
Conversion Agent, which notice, to be effective, must be received by the
Conversion Agent prior to the close of business on the Special Conversion
Termination Date, and no dividends on shares of Series I Preferred Stock
(or portions thereof) tendered for conversion shall accrue from and after
the Special Conversion Termination Date; and
(viii) that the corporation (or a successor entity, if
applicable) may, at its option, elect to pay cash (specifying the amount
thereof per share) for all shares of Series I Preferred Stock tendered for
conversion.
(3) A Holder must exercise the special conversion right during the
Special Conversion Exercise Period or such special conversion right shall
expire. Such right must be
<PAGE>
28
exercised in accordance with Section IX to the extent the procedures in Section
IX(A) are consistent with the special provisions of Section IX(B)(2) and this
Section IX(B)(3). Exercise of such conversion right shall, except as provided
above, be irrevocable, and dividends on Series I Preferred Stock tendered for
conversion shall cease to accrue from and after the Special Conversion
Termination Date. The conversion date with respect to the exercise of a special
conversion right arising upon a Change of Control shall be the Special
Conversion Termination Date.
X. Merger, Consolidation and Sale of Assets.
-----------------------------------------
Without the affirmative vote or consent of the holders of a majority
of the issued and outstanding shares of Series I Preferred Stock, the
corporation may not consolidate or merge with or into, or sell, assign,
transfer, lease, convey or otherwise dispose of all or substantially all of its
assets to, any Person unless: (a) the entity formed by such consolidation or
merger (if other than the corporation) or to which such sale, assignment,
transfer, lease, conveyance or other disposition shall have been made shall be a
corporation organized or existing under the laws of the United States or any
state thereof or the District of Columbia; (b) the Series I Preferred Stock
shall be converted into or exchanged for and shall become, shares of such
successor, transferee or resulting corporation, having in respect of such
successor, transferee or resulting corporation the same powers, preferences and
relative participating, optional or other special rights, and the
qualifications, limitations or restrictions thereon, that the Series I Preferred
Stock had immediately prior to such transaction (provided that if, in accordance
with the provisions hereof, the Series I Preferred Stock shall become
convertible into a different amount or type of securities, cash or other
property, such change shall not be deemed to be a change in the powers,
preferences and relative participating, optional or other special rights of the
Series I Preferred Stock); and (c) immediately after giving effect to such
transaction, no Voting Rights Triggering Event shall have occurred and be
continuing; provided, however, that the foregoing provisions of this Article X
shall not be applicable to a transaction that constitutes a Change of Control
(determined without regard to the proviso to the definition thereof).
XI. Covenant to Report.
------------------
Notwithstanding that the corporation may not be subject to the
reporting requirements of Section 13 or Section 15(d) of the Exchange Act, the
corporation will file with the SEC and provide the Transfer Agent and the
holders of the Series I Preferred Stock with all information, documents and
reports specified in Section 13 and Section 15(d) of the Exchange Act.
<PAGE>
29
XII. Mutilated or Missing Series I Preferred Stock Certificates.
----------------------------------------------------------
If any of the Series I Preferred Stock certificates shall be
mutilated, lost, stolen or destroyed, the corporation shall issue, in exchange
and in substitution for and upon cancellation of the mutilated Series I
Preferred Stock certificate, or in lieu of and substitution for the Series I
Preferred Stock certificate lost, stolen or destroyed, a new Series I Preferred
Stock certificate of like tenor and representing an equivalent amount of shares
of Series I Preferred Stock, but only upon receipt of evidence of such loss,
theft or destruction of such Series I Preferred Stock certificate and indemnity,
if requested, satisfactory to the corporation and the Transfer Agent (if other
than the corporation).
XIII. Reissuance; Preemptive Rights
-----------------------------
(i) Shares of Series I Preferred Stock that have been issued and
reacquired in any manner, including shares purchased or redeemed or exchanged,
shall (upon compliance with any applicable provisions of the laws of the State
of Delaware) have the status of authorized and unissued shares of preferred
stock undesignated as to series and may be redesignated and reissued as part of
any series of Additional Preferred Stock other than the Series I Preferred
Stock.
(ii) No shares of Series I Preferred Stock shall have any rights of
preemption whatsoever as to any securities of the corporation, or any warrants,
rights or options issued or granted with respect thereto, regardless of how such
securities or such warrants, rights or options may be designated, issued or
granted.
XIV. Business Day.
------------
If any payment or redemption shall be required by the terms hereof to
be made on a day that is not a Business Day, such payment, redemption or
exchange shall be made on the immediately succeeding Business Day and no further
dividends shall accumulate after the day payment was required.
XV. Headings of Subdivisions.
------------------------
The headings of various subdivisions hereof are for convenience of
reference only and shall not affect the interpretation of any of the provisions
hereof.
<PAGE>
30
XVI. Severability of Provisions.
--------------------------
If any right, preference or limitation of the Series I Preferred Stock
set forth in these resolutions and the Certificate of Designations filed
pursuant hereto (as such Certificate of Designations may be amended from time to
time) is invalid, unlawful or incapable of being enforced by reason of any rule
or law or public policy, all other rights, preferences and limitations set forth
in such Certificate of Designations, as amended, which can be given effect
without the invalid, unlawful or unenforceable right, preference or limitation
shall, nevertheless remain in full force and effect, and no right, preference or
limitation herein set forth shall be deemed dependent upon any other such right,
preference or limitation unless so expressed herein.
XVII. Notice to the Corporation.
-------------------------
All notices and other communications required or permitted to be given
to the corporation hereunder shall be made by first-class mail, postage prepaid,
to the corporation at its principal executive offices (currently located on the
date of the adoption of these resolutions at the following address: Cablevision
Systems Corporation, One Media Crossways, Woodbury, New York 11797, Attention:
General Counsel). Minor imperfections in any such notice shall not affect the
validity thereof.
XVIII. Limitations.
-----------
Except as may otherwise be required by law, the shares of Series I
Preferred Stock shall not have any powers, preferences or relative,
participating, optional or other special rights other than those specifically
set forth in this resolution (as such resolution may be amended from time to
time) or otherwise in the Certificate of Incorporation of the corporation.
<PAGE>
31
IN WITNESS WHEREOF, this Certificate has been signed on this
____ day of November, 1995.
CABLEVISION SYSTEMS CORPORATION
By:_____________________________________
Name:
Title:
Attested by:
- - ------------------
<PAGE>
EXHIBIT 4.4
DEPOSIT AGREEMENT
dated as of November , 1995
among
CABLEVISION SYSTEMS CORPORATION,
a Delaware corporation,
[Name of Depositary],
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 I Cumulative Convertible
Exchangeable Preferred Stock, par value $.01 per share, of CABLEVISION SYSTEMS
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 Designations filed with
the Secretary of State of Delaware establishing the Stock as a series of
preferred stock of the Company, as it may be amended from time to time in
accordance with its terms.
<PAGE>
"Common Stock" shall mean the Company's Class A Common Stock, par
value $.01 per share.
"Company" shall mean Cablevision Systems Corporation, a Delaware
corporation, and its successors.
"Deposit Agreement" shall mean this Deposit Agreement, as amended or
supplemented from time to time in accordance with the terms hereof.
"Depositary" shall mean [Name of Depositary], a [national banking
association], and any successor Depositary hereunder.
"Depositary Shares" shall mean the Depositary Shares, each
representing a one-tenth (1/10) 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.
"Exchange" shall mean the exchange, at the Company's option, of
Depositary Shares and Stock for the Exchange Debentures.
"Exchange Date" shall mean the date on or after November 1, 1997 on
which the Company may elect in accordance with the Certificate to exchange
Depositary Shares and Stock for Exchange Debentures.
"Exchange Debentures" shall mean the Company's % Convertible
Subordinated Debentures due 2007.
"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.
"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
-2-
<PAGE>
ownership and transfers of Receipts as herein provided and may include the
Depositary.
"Stock" shall mean shares of the Company's Series I Cumulative
Convertible Exchangeable Preferred Stock (liquidation preference $250.00 per
share).
ARTICLE II
FORM OF RECEIPTS; DEPOSIT OF STOCK; EXECUTION AND DELIVERY, TRANSFER AND
SURRENDER OF RECEIPTS
SECTION 2.01. Form and Transfer of Receipts, Surrender and Redemption
-------------------------------------------------------
of Receipts. The Receipts may be typewritten or 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. 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.
Receipts shall be executed by the Depositary by the manual signature
of a duly authorized officer of the
-3-
<PAGE>
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, or to any notice
provided for in this Deposit Agreement and for all other purposes.
-4-
<PAGE>
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 November 1, 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 [1,380,000] shares of Stock. Such certificate or
certificates representing the Stock shall be properly endorsed or accompanied,
if required by the Depositary, by a duly executed instrument of transfer or
endorsement, in form satisfactory to the Depositary, together with a written
order of the Company directing the Depositary to execute and deliver to the
person or persons named in such order a Receipt or Receipts evidencing in the
aggregate the number of Depositary Shares representing such deposited Stock.
All Stock deposited by the Company or the Other Persons, as the case
may be, with the Depositary shall be held by the Depositary at the Depositary's
Office or at such other place or places as the Depositary shall determine.
If required by the Depositary, Stock presented for deposit at any time
(except for the initial deposit of Stock by the Company or the Other Persons and
any subsequent deposit by the Company or the Other Persons of Stock acquired by
such Other Persons pursuant to such Other Persons' overallotment option),
whether or not the register of stockholders of the Company is closed, shall also
be accompanied by an agreement or assignment, or other instrument satisfactory
to the Depositary, that will provide for the prompt transfer to the Depositary
or its nominee of any dividend or right to subscribe for additional Stock or to
receive other property that any person in whose name the Stock is or has been
registered may thereafter receive upon or in respect of such deposited Stock, or
in lieu thereof such agreement of indemnity or other agreement as shall be
satisfactory to the Depositary.
Upon receipt by the Depositary of a certificate or certificates
representing Stock deposited with the
-5-
<PAGE>
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 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 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
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<PAGE>
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 ten (10) Depositary Shares which have not been
previously called for redemption or in respect of which a notice of Exchange has
been given 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,
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 2.02, 2.03 and 3.02) upon his order, a new Receipt evidencing such
excess number of Depositary Shares. Delivery of the Stock and the money and
other property being withdrawn may be made by the delivery of such certificates,
documents of title and other instruments as the Depositary may deem appropriate.
Stock delivered pursuant to the preceding paragraph may be endorsed
with or have incorporated in the text thereof such legends or recitals or
changes not inconsistent with the provisions of this Deposit Agreement as may be
required by the Depositary or required to comply with any applicable law or any
regulation thereunder or with the rules and regulations of any securities
exchange upon which the Stock may be listed or to conform with any usage with
respect thereto, or to indicate any special limitations
-7-
<PAGE>
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 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
-8-
<PAGE>
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.
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
-9-
<PAGE>
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 price then in effect for the Stock (and,
therefore, for the Depositary Shares) specified in the Certificate, as such
conversion price 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 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
-10-
<PAGE>
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.
If any Stock shall be called by the Company for redemption, the
Depositary Shares representing such Stock may be converted into Common Stock as
provided in this Deposit Agreement until and including, but not after, the close
of business on the fifth business day preceding the Redemption Date unless the
Company shall default in making payment of the cash redemption price and other
amounts payable upon such redemption, in which case the Depositary Shares
representing such Stock may continue to be converted into Common Stock until and
including, but not after, the close of business on the date on which the Company
makes full payment of the cash redemption price and other amounts payable on
such redemption. Upon receipt by the Depositary of a Receipt or Receipts,
together with a properly completed and executed notice of conversion,
representing any Stock called for redemption, the shares of Stock held by the
Depositary represented by such Depositary Shares for which conversion is
requested shall be deemed to have been received by the Company for conversion as
of the close of business on the date of such receipt.
The record holder of Depositary Shares on any dividend payment record
date established by the Depositary pursuant to Section 4.04 shall be entitled to
receive the dividend payable with respect to such Depositary Shares on the
corresponding dividend payment date notwithstanding the subsequent conversion of
the shares of Stock to which such Depositary Shares relate. If a share of Stock
is converted between the record date with respect to any dividend payment on the
Stock and the next succeeding dividend payment date, any holder of Receipts
surrendered with instructions to the Depositary for conversion of the underlying
Stock (except for Depositary Shares converted after the issuance of a notice of
redemption with respect to a Redemption Date during such period which shall be
entitled to such dividend on the dividend payment date) shall pay to the
Depositary an amount equal to the dividend payable on such dividend
-11-
<PAGE>
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 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. Redemption of Stock. Whenever the Company shall elect
-------------------
to redeem shares of Stock in accordance with the provisions of the Certificate,
it shall (unless otherwise agreed in writing with the Depositary) mail notice to
the Depositary of such redemption, by first class mail, postage prepaid, on the
same date on which the Company first publicly announces such redemption, which
date shall not be less than 35 days prior to the date of such redemption. On
the date of such redemption, provided that the Company shall then have deposited
with the Depositary an amount in cash required pursuant to the Certificate in
order to effect a redemption of the number of shares of Stock specified in the
notice of redemption and any other amounts per share payable with respect to the
Stock, the Depositary shall redeem the Depositary Shares relating to such Stock.
The Depositary shall provide notice of such redemption and the simultaneous
-12-
<PAGE>
redemption of the number of Depositary Shares relating to the Stock to be
redeemed to the record holders of the Receipts evidencing the Depositary Shares
to be so redeemed on the record date fixed pursuant to Section 4.04 hereof by
first-class mail, postage prepaid, at the addresses of such holders as they
appear on the records of the Depositary, not less than 30 and not more than 60
days prior to the date fixed for redemption of such Stock and Depositary Shares
(the "Redemption Date"). Neither failure to mail any such notice to one or more
such holders nor any defect in any notice or in the mailing thereof to one or
more such holders shall affect the validity of the proceedings for redemption of
any Depositary Shares as to other holders. Each such notice of redemption
provided by the Depositary to the holder shall state, as appropriate: (i) the
Redemption Date; (ii) the number of Depositary Shares to be redeemed and, if
less than all the Depositary Shares held by any such holder are to be redeemed,
the number of such Depositary Shares held by such holder to be so redeemed and
the method by which the Depositary Shares will be chosen for redemption; (iii)
the redemption price per Depositary Share (expressed as an amount of cash) and
any other amounts per share payable with respect to the Depositary Shares; (iv)
the place or places where Receipts evidencing Depositary Shares are to be
surrendered for redemption; (v) the then-current conversion price; and (vi) that
dividends in respect of the Stock to be redeemed, which are represented by the
Depositary Shares to be redeemed, will cease to accrue at the close of business
on such Redemption Date, except as otherwise provided in the Certificate. If
less than all the outstanding Depositary Shares are to be redeemed, the
Depositary Shares to be so redeemed shall be selected by lot or pro rata as may
be determined by the Depositary.
Notice having been mailed by the Depositary as aforesaid, from and
after the Redemption Date (unless the Company shall have failed to deliver to
the Depositary cash sufficient to redeem the shares of Stock to be redeemed by
it or any other amounts per share payable with respect to the Stock as set forth
in the Company's notice provided for in the preceding paragraph), all dividends
in respect of the shares of Stock so called for redemption shall cease to accrue
(except as otherwise provided in the Certificate), the Depositary Shares being
redeemed shall be deemed no longer to be outstanding, all rights of the holders
of Receipts evidencing such Depositary Shares (except the right to receive the
cash redemption price required to redeem such Depositary Shares and any other
amounts per Share payable with respect to the Stock) shall, to the extent of
such Depositary Shares, cease and terminate and, upon surrender in accordance
with such notice of the Receipts evidencing
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<PAGE>
any such Depositary Shares (properly endorsed or assigned for transfer, if the
Depositary shall so require), such Depositary Shares shall be redeemed by the
Depositary for an amount of cash per Depositary Share equal to one-tenth (1/10)
of the cash amount required by the Certificate to be delivered in respect of one
share of Stock plus all money and other property, if any, underlying such
Depositary Shares, including all amounts paid by the Company in respect of
dividends that, on the Redemption Date, have accrued on the shares of Stock to
be so redeemed and relate to dividend periods ending on or prior to the
Redemption Date or to the extent provided in the Certificate, to the dividend
period ending after the Redemption Date, and have not theretofore been paid.
If less than all the Depositary Shares evidenced by a Receipt are
called for redemption, the Depositary will deliver to the holder of such Receipt
upon its surrender to the Depositary, together with the delivery of a cash
amount sufficient to redeem the shares of Stock to be redeemed and any other
amounts per share payable with respect to the Stock, a new Receipt evidencing
such number of Depositary Shares as were evidenced by such prior Receipt and not
called for redemption.
Upon any redemption, the Company shall deliver to the Depositary an
amount in cash required by the Certificate in order to effect the redemption of
the number of shares of Stock specified in the notice of redemption mailed by
the Company to the Depositary pursuant to this Section 2.10 and a sufficient
amount of funds to pay any other amounts per share payable with respect to the
Stock. The Depositary shall deliver to each holder of a Receipt surrendered for
redemption an amount in cash equal to the number or amount required by the
Certificate to effect a redemption of the number of Depositary Shares evidenced
by such Receipt to be redeemed.
Section 2.11. Exchange. On the Exchange Date, provided that the
--------
Company shall then have delivered to the Depositary the Exchange Debentures and
the aggregate amount of cash required to pay any accrued and unpaid dividends
and cash in respect of fractional debenture interests issuable and payable with
respect to the Stock then deposited with the Depositary, the Depositary shall
deliver to each holder the proportionate amount of such Exchange Debentures
(subject to the minimum denomination requirements of such Exchange Debentures
referred to below in this Section 2.11) and cash so delivered to the Depositary
in respect of such holder's Depositary Shares.
-14-
<PAGE>
The Depositary shall, as directed by the Company, mail, first class
postage prepaid, notice of such Exchange of Stock and the proposed simultaneous
Exchange of the Depositary Shares, not less than five and not more than 15 days
prior to the Exchange 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 the Exchange. The Company shall provide
the Depositary with such notice, and each such notice shall state: the Exchange
Date; that all outstanding Depositary Shares on the Exchange Date will be
exchanged for Exchange Debentures; the amount of accrued and unpaid dividends,
if any, payable with respect to each Depositary Share to be so exchanged; the
place or places where Receipts to be so exchanged are to be surrendered for
exchange; that dividends in respect of the Stock represented by the Depositary
Shares to be so exchanged shall cease to accrue on the Exchange Date; the
minimum principal amount in which Exchange Debentures shall be issued; and such
additional information as the Company in its discretion deems appropriate.
From and after the Exchange Date, the Depositary Shares automatically
exchanged for Exchange Debentures 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 Exchange Debentures and any cash payable upon
the Exchange) 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), a holder
of such Receipts shall receive for such holder's Depositary Shares a principal
amount of Exchange Debentures equal to the principal amount of Exchange
Debentures, and an amount of cash equal to the cash for accrued and unpaid
dividends, if any, delivered in respect of the exchanged Stock represented by
such Depositary Shares. An amount of cash will be paid to holders in respect of
any principal amount of Exchange Debentures otherwise issuable which is less
than $1,000, or such other minimum denomination as shall be specified in the
notice referred to in the preceding paragraph. The foregoing shall be subject
further to the terms and conditions of the Certificate.
ARTICLE III
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<PAGE>
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, redemption 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.
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
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<PAGE>
reserved or otherwise available a sufficient number of authorized and unissued
shares of Common Stock 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.
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 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
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<PAGE>
requirement that the Company or the Depositary withhold an amount on account of
taxes or as otherwise required by law, regulation or court order) the Depositary
deems, after consultation with the Company, such distribution not to be
feasible, the Depositary may, with the approval of the Company, adopt such
method as it deems equitable and practicable for the purpose of effecting such
distribution, including the sale of the property thus received, or any part
thereof, in a commercially reasonable manner. The net proceeds of any such sale
shall, subject to Section 3.02, be distributed or made available for
distribution, as the case may be, by the Depositary to record holders of
Receipts in accordance with the provisions of Section 4.01 for a distribution
received in cash.
SECTION 4.03. Subscription Rights, Preferences or Privileges. If the
----------------------------------------------
Company shall at any time offer or cause to be offered to the persons in whose
names Stock is recorded on the books of the Company any rights, preferences or
privileges to subscribe for or to purchase any securities or any rights,
preferences or privileges of any other nature, such rights, preferences or
privileges shall in each such instance be made available by the Depositary to
the record holders of Receipts in such manner as the Depositary may determine,
either by the issue to such record holders of warrants representing such rights,
preferences or privileges or by such other method as may be approved by the
Depositary in its discretion with the approval of the Company; provided,
--------
however, that (i) if at the time of issue or offer of any such rights,
- - -------
preferences or privileges the Depositary determines that it is not lawful or
(after consultation with the Company) not feasible to make such rights,
preferences or privileges available to holders of Receipts by the issue of
warrants or otherwise, or (ii) if and to the extent so instructed by holders of
Receipts who do not desire to 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
-18-
<PAGE>
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 (i) any meeting at which holders of Stock are entitled to vote
or of which holders of Stock are entitled to notice, or (ii) any election on the
part of the Company to redeem, or issue Exchange Debentures in exchange for, any
shares of Stock, 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 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
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<PAGE>
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 of Stock underlying one Depositary Share,
(b) the ratio of the redemption price per Depositary Share to the redemption
price of a share of Stock and (c) the ratio of the conversion price per
Depositary Share to the conversion price per share of Stock, in each case as may
be necessary fully to reflect the effects of such Transaction, and (ii) treat
any securities received by the Depositary in exchange for, or upon conversion or
in respect of, the Stock as new deposited securities so received in exchange
for, or upon conversion or in respect of the Stock. In any such case the
Depositary may, with the approval of the Company, execute and deliver additional
Receipts, or may call for surrender of all outstanding Receipts to be exchanged
for new Receipts specifically describing such new deposited securities.
Anything to the contrary herein or in the Receipt notwithstanding,
holders of Receipts shall have the right from and after the effective date of
any such Transaction, to the extent that holders of Stock had the right, prior
to or on the applicable effective date, to convert, exchange or surrender shares
of Stock into or for other stock, securities, property or cash, to surrender
such Receipts to the Depositary with instructions to convert, exchange or
surrender the Stock represented thereby only into or for, as the case may be,
the kind and amount of shares of stock and other securities and property and
cash into which the Stock represented by such Receipts has been converted or for
which
-20-
<PAGE>
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
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
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<PAGE>
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.
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 Certificate of Incorporation
(including the Certificate) or by reason of any act of God, war or civil
disorder, failure of power, fire or other casualty damage or governmental
requirements or restrictions, the Depositary, the Depositary's Agent, the
Registrar or the Company shall be prevented or forbidden from doing or
performing any act or thing that the terms of this Deposit Agreement provide
shall be done or performed; nor shall the Depositary, any Depositary's Agent,
any Registrar or the Company incur any liability or be subject to any obligation
(i) by reason of any nonperformance or delay, caused as aforesaid, in the
performance of any act or thing that the terms of this Deposit Agreement provide
shall or may be 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.
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<PAGE>
SECTION 5.03. Obligations of the Depositary, the Depositary's Agents,
-------------------------------------------------------
the Registrar and the Company. Neither the Depositary nor any Depositary's
- - -----------------------------
Agent nor any Registrar shall be under any obligation to appear in, prosecute or
defend any action, suit or other proceeding in respect of the Stock, the
Depositary Shares or the Receipts that in its opinion may involve it in expense
or liability unless indemnity satisfactory to such party against all such
expense and liability be furnished as often as required.
Neither the Depositary nor any Depositary's Agent nor the Company
assumes any obligation or shall be subject to any liability under this Deposit
Agreement to holders of Receipts other than to use its best judgment and good
faith in the performance of such duties as are specifically set forth in this
Deposit Agreement. Neither the Depositary nor any Depositary's Agent nor any
Registrar nor the Company shall be liable to any party hereto for any action or
any failure to act by it with respect to this Deposit Agreement in reliance upon
the written advice of legal counsel or accountants, or information from any
person presenting Stock for deposit or any holder of a Receipt. The Depositary,
any Depositary's Agent, any Registrar and the Company may each rely and shall
each be protected in acting upon any written notice, request, direction or other
document believed by it to be genuine and to have been signed or presented by
the proper party or parties.
The Depositary undertakes, and shall cause any Registrar to undertake,
to perform such duties and only such duties as are specifically set forth in
this Deposit Agreement using its best efforts and in good faith. The parties
hereto acknowledge that no implied covenants or obligations shall be read into
this Deposit Agreement against the Depositary or any Registrar or against the
Company with respect to the Depositary and any Registrar.
The Depositary, its parent, affiliates, or subsidiaries, any
Depositary's Agent and the Company (to the extent permitted by law) may own,
buy, sell or deal in any class of securities of the Company and its affiliates
and in Receipts or Depositary Shares. The Depositary, its parent, affiliates, or
subsidiaries, and any Depositary's Agent may become pecuniarily interested in
any transaction in which the Company or its affiliates may be interested or
contract with or lend money to the Company or its affiliates or otherwise act as
fully or as freely as if it were not the Depositary or the Depositary's Agent
hereunder. The Depositary may also act as transfer agent or registrar of any of
the securities of the Company and its affiliates or act in any other capacity
for the Company or its affiliates.
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<PAGE>
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.
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, use its reasonable best efforts to
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,
-24-
<PAGE>
powers, duties and obligations of its predecessor and for all purposes shall be
the Depositary under this Deposit Agreement, and such predecessor, upon payment
of all sums due it and on the written request of the Company, shall execute and
deliver an instrument transferring to such successor all rights and powers of
such predecessor hereunder, shall duly assign, transfer and deliver all right,
title and interest in the Stock and any moneys or property held hereunder to
such successor and shall deliver to such successor a list of the record holders
of all outstanding Receipts. Any successor Depositary shall promptly mail
notice of its appointment to the record holders of Receipts.
Any corporation or other entity into or with which the Depositary may
be merged, consolidated or converted, or to which the Depositary may sell all or
substantially all its assets, shall be the successor of such Depositary without
the execution or filing of any document or any further act. Such successor
Depositary may authenticate the Receipts in the name of the predecessor
Depositary or in the name of the successor Depositary.
SECTION 5.05. Corporate Notices and Reports. The Company agrees that
-----------------------------
it will deliver to the Depositary and the Depositary will, promptly after
receipt thereof, transmit to the record holders of Receipts, in each case at the
address furnished to it pursuant to Section 4.08, all notices and reports
(including, without limitation, financial statements) required by law, the rules
of any national securities exchange upon which the Stock, the Depositary Shares
or the Receipts are listed or by the Company's Certificate of Incorporation
(including the Certificate) or By-laws to be furnished by the Company to holders
of Stock. Such transmission will be at the Company's expense and the Company
will provide the Depositary with such number of copies of such documents as the
Depositary may reasonably request. In addition, the Depositary will transmit to
record holders of Receipts at the Company's expense such other documents as may
be requested by the Company.
SECTION 5.06. Indemnification by the Company. The Company shall
------------------------------
indemnify the Depositary, any Depositary's Agent and any Registrar against, and
hold each of them harmless from, any loss, liability or expense (including the
reasonable costs and expenses of defending itself) that may arise out of (i)
acts performed or omitted in connection with this Deposit Agreement and the
Receipts (a) by the Depositary, any Registrar or any of their respective agents
(including any Depositary's Agent) except for any liability
-25-
<PAGE>
arising out of negligence or willful misconduct or breach of this Deposit
Agreement on the respective parts of any such person or persons, or (b) by the
Company or any of its agents, or (ii) the offer, sale or registration of the
Depositary Shares, Receipts or the Stock pursuant to the provisions hereof.
This indemnification does not extend in favor of holders of Depositary Shares,
Receipts or Stock.
SECTION 5.07. Charges and Expenses. The Company shall pay all
--------------------
transfer and other taxes and governmental charges arising solely from the
existence of the Depositary arrangements. The Company shall pay all charges of
the Depositary in connection with the initial deposit of the Stock, the initial
issuance of the Depositary Shares, the redemption of the Stock and the issuance
of Exchange Debentures. All other transfer and other taxes and governmental
charges shall be at the expense of holders of Depositary Shares. If, at the
request of a holder of Receipts, the Depositary incurs charges or expenses for
which it is not otherwise liable hereunder, such holder will be liable for such
charges and expenses. All other charges and expenses of the Depositary and any
Depositary's Agent hereunder and of any Registrar (including, in each case,
reasonable fees and expenses of counsel) incident to the performance of their
respective obligations hereunder will be payable by the Company only after prior
consultation and agreement between the Depositary and the Company and consent by
the Company to the incurrence of such expenses, which consent shall not be
unreasonably withheld. The Depositary shall present any statement for charges
and expenses to the Company promptly, unless the Company shall agree otherwise.
ARTICLE VI
AMENDMENT AND TERMINATION
SECTION 6.01. Amendment. The form of the Receipts and any provisions
---------
of this Deposit Agreement may at any time and from time to time be amended by
agreement between the Company and the Depositary in any respect which they may
deem necessary or desirable; provided, however, that no such amendment that
-------- -------
shall impose or increase any fees, taxes, or other charges upon holders of
Receipts (other than taxes and other governmental charges, fees, and other
expenses payable by such holders as stated under Section 5.07 hereof), or that
shall otherwise prejudice any substantial existing right of holders of Receipts
shall take effect as to outstanding Receipts until the expiration of 30 days
after notice of such amendment has been mailed to the record holders of
outstanding Receipts. Every holder of an
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<PAGE>
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 this Deposit Agreement,
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 Deposit Agreement may be terminated
-----------
at the direction of the Company or by the Depositary if a period of 45 days
shall have expired after the Depositary has delivered to the Company written
notice of its election to resign and a successor depositary shall not have been
appointed. Upon termination of this Deposit Agreement, the Depositary will
discontinue the transfer of Receipts, will suspend the distribution of dividends
to the holders thereof, and will not give any further notices (other than notice
of such termination) or perform any further acts under this Deposit Agreement
except that the Depositary will continue to collect dividends and other
distributions pertaining to the Stock, will sell rights, preferences or
privileges as provided in this Deposit Agreement and will continue to deliver
Stock certificates together with such dividends and distributions and the net
proceed of any sales of rights, performances, privileges, or other property in
exchange for Receipts surrendered. At any time after the expiration of two
years from the date of termination, the Depositary may sell the Stock and hold
the proceeds of such sale, without interest, for the benefit of the holders of
Receipts who have not then surrendered their Receipts. After making such sale,
the Depositary will be discharged from all obligations under this Deposit
Agreement except to account for such proceeds and except as provided in the
following paragraph. In the event this Deposit Agreement is terminated, the
Company will use its best efforts to list the underlying shares of Preferred
Stock on any stock exchange on which the Depositary Shares were listed.
Upon the termination of this Deposit Agreement, the parties hereto
shall be discharged from all obligations under this Agreement except for their
respective obligations under Sections 5.03, 5.06 and 5.07.
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<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 Cablevision
Systems Corporation, One Media Crossways, Woodbury, New York 11797, telephone
(516) 364-8450, attention: General Counsel, 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, [name,
address, contact, phone and fax information of depositary], or at any other
address and to the attention of any other person of which the Depositary shall
have notified the Company in writing.
Any and all notices to be given to any record holder of a Receipt
hereunder or under the Receipts shall be in writing and shall be deemed to have
been duly given if personally delivered or sent by mail or by telegram, tele-
-28-
<PAGE>
copy 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 or
sent by overnight courier service. The Depositary or the Company may, however,
act upon any telegram or telecopy message received by it from the other or from
any holder of a Receipt, notwithstanding that such telegram or telecopy message
shall not subsequently be confirmed by letter or as aforesaid.
SECTION 7.05. Depositary's Agents. The Depositary may from time to
-------------------
time appoint any Depositary's Agent to act in any respect for the Depositary for
the purposes of this Deposit Agreement and may at any time appoint additional
Depositary's Agents and vary or terminate the appointment of such Depositary's
Agents. The Depositary will promptly notify the Company of any such action.
SECTION 7.06. Holders of Receipts Are Parties. By acceptance of
-------------------------------
delivery of the Receipts, any holder of such Receipt from time to time shall be
deemed to have agreed to become a party to this Deposit Agreement and to be
bound by all of the terms and conditions hereof and of the Receipts to the same
extent as though such person executed this Agreement.
SECTION 7.07. Governing Law. THIS DEPOSIT AGREEMENT AND THE RECEIPTS
-------------
AND ALL RIGHTS HEREUNDER AND THEREUNDER AND PROVISIONS HEREOF AND THEREOF SHALL
BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW
YORK (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.
SECTION 7.9. Headings. The headings of articles and sections in this
--------
Deposit Agreement and in the form of
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<PAGE>
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.
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.
CABLEVISION SYSTEMS CORPORATION
By: _________________________
Authorized Officer
[NAME OF DEPOSITARY]
By: _________________________
____________________
Vice President
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<PAGE>
EXHIBIT 4.5
EXHIBIT A
---------
DEPOSITARY RECEIPT
FOR
DEPOSITARY SHARES,
EACH REPRESENTING AN INTEREST IN ONE-TENTH (1/10)
OF
A SHARE OF SERIES I CUMULATIVE CONVERTIBLE PREFERRED
EXCHANGEABLE STOCK
(PAR VALUE $.01 PER SHARE)
OF
CABLEVISION SYSTEMS CORPORATION
(INCORPORATED UNDER THE LAWS OF THE STATE OF DELAWARE)
...........................................Depositary Shares (each Depositary
Share represents an interest in one-tenth (1/10) of a share of Series I
Cumulative Convertible Exchangeable Preferred Stock (par value $.01 per share)
[Name of Depositary], 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 [address of
depositary], as Depositary (the "Depositary"), hereby certifies that
____________ is the registered owner of Depositary Shares ("Depositary Shares"),
each Depositary Share representing an interest in one-tenth (1/10) of a share of
Series I Cumulative Convertible Exchangeable Preferred Stock, par value $.01 per
share (the "Stock"), of Cablevision Systems Corporation, a corporation duly
organized and existing under the laws of the State of Delaware (the "Company").
Subject to the terms of the Deposit Agreement, each owner of a Depositary Share
is entitled, proportionately, through the Depositary to all the rights and
preferences of the Stock relating thereto, including dividend, voting,
conversion, redemption and liquidation rights and preferences contained in the
Certificate of Designations relating to the Stock, 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
<PAGE>
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:
[NAME OF DEPOSITARY]
By:____________________________
Authorized Officer
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[Form of Reverse Side]
TERMS AND CONDITIONS CONTINUED
1. The Deposit Agreement. Depositary Receipts (the "Receipts"), of
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which this Receipt is one, are made available upon the terms and conditions set
forth in the Deposit Agreement, dated as of November , 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. Redemption; Exchange. Whenever the Company shall elect, under the
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Certificate relating to the Stock, to redeem shares of Stock, it shall (unless
otherwise agreed in writing with the Depositary) mail notice to the Depositary
of such redemption, by first class mail, postage prepaid on the same date on
which the Company first publicly announces such redemption, which date shall not
be less than 35 days prior to the date of such redemption. The Depositary shall
provide notice of such redemption and the simultaneous redemption of the
corresponding Depositary Shares relating to the Stock to be redeemed to the
holders of record of Receipts representing the number of Depositary Shares to be
redeemed by first class mail, postage prepaid, at the addresses of such holders
as they appear on the records of the Depositary, not less than 30 and not more
than 60 days prior to the dated fixed for redemption. Each such notice shall
state, as appropriate: (a) the date of such proposed redemption; (b) the number
of Depositary Shares to be redeemed; (c) the redemption price per Depositary
Share (expressed as an amount of cash) and any other amounts per share payable
with respect to the Depositary Shares; (d) the place or places where Receipts
evidencing Depositary Shares are to be surrendered for redemption; (e) the then
current conversion price, and (f) that dividends in respect of the Stock
underlying the Depositary Shares to be redeemed will cease to accumulate at the
close of business on such redemption date, except as otherwise provided in the
Certificate. If less than all the outstanding Depositary
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Shares are to be redeemed, the Depositary Shares to be so redeemed shall be
selected by lot or pro rata. From and after the date set for redemption, all
dividends in respect of the Depositary Shares so called for redemption shall
cease to accrue (except as otherwise provided in the Certificate), such
Depositary Shares shall no longer be deemed outstanding and all rights of the
holders of Receipts representing such Depositary Shares (except the right to
receive the cash redemption price required to redeem such Depositary Shares and
any other amounts payable with respect to the Depositary Shares) shall cease and
terminate. From and after the redemption date, upon surrender in accordance
with the redemption notice of the Receipts representing any such Depositary
Shares (properly endorsed or assigned for transfer, if the Depositary shall so
require), such Depositary Shares shall be redeemed by the Depositary for an
amount of cash per Depositary Share equal to one-tenth (1/10) of the cash amount
required by the Certificate to be delivered in respect of one share of Stock
plus any money or other property relating thereto.
On the Exchange Date, provided that the Company shall then have
delivered to the Depositary the Exchange Debentures required to be issued and
the aggregate amount of cash required to be paid in respect of the Depositary
Shares, the Depositary shall deliver to each holder the principal amount of
Exchange Debentures and the amount of cash to which such holder is thereby
entitled.
The Depositary shall, as directed by the Company, mail, first class
postage prepaid, notice of such Exchange of Stock and the proposed simultaneous
Exchange of the Depositary Shares, not less than five and not more than 15 days
prior to the Exchange 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 the Exchange. The Company shall provide
the Depositary with such notice, and each such notice shall state: the Exchange
Date; that all outstanding Depositary Shares on the Exchange Date will be
automatically exchanged for Exchange Debentures; the amount of accrued and
unpaid dividends, if any, payable with respect to each Depositary Share to be so
exchanged; the place or places where Receipts to be so exchanged are to be
surrendered for exchange; that dividends in respect of the Stock represented by
the Depositary Shares so exchanged shall cease to accrue on the Exchange Date;
the minimum
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principal amount in which Exchange Debentures shall be issued; and such
additional information as the Company in its discretion deems appropriate.
From and after the Exchange Date, the Depositary Shares automatically
exchanged for Exchange Debentures 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 Exchange Debentures and any cash payable upon
Exchange) 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), each holder of
such Receipts shall receive for each such Depositary Share the principal amount
of Exchange Debentures and the amount of cash to which it is entitled. The
foregoing shall be subject further to the terms and conditions of the
Certificate.
3. 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 ten (10) Depositary Shares which have not been previously called for
redemption [or in respect of which a notice of Exchange has been given] 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.
4. 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 price then in effect for the Stock (and, therefore, for the
Depositary Shares) specified in the Certificate, as such conversion price may be
adjusted by the Company from time to time as
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provided in the Certificate. Subject to the terms and conditions of the Deposit
Agreement and the Certificate, a holder of a Receipt or Receipts evidencing
Depositary Shares representing whole or fractional shares of Stock may surrender
such Receipt or Receipts at the Depositary's Office or to such office or to such
Depositary's Agents as the Depositary may designate for such purpose, together
with a notice of conversion duly completed and executed, thereby directing the
Depositary to instruct the Company to cause the conversion of the number of
shares or fractions thereof of underlying 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
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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.
If any Stock shall be called by the Company for redemption, the
Depositary Shares representing such Stock may be converted into Common Stock as
provided in the Deposit Agreement until and including, but not after, the close
of business on the five business days preceding the Redemption Date unless the
Company shall default in making payment of the cash redemption price, and other
amounts payable upon such redemption, in which case the Depositary Shares
representing such Stock may continue to be converted into Common Stock until and
including, but not after, the close of business on the date on which the Company
makes full payment of the cash redemption price and other amounts payable on
such redemption. Upon receipt by the Depositary of a Receipt or Receipts,
together with a properly completed and executed notice of conversion,
representing any Stock called for redemption, the shares of Stock held by the
Depositary represented by such Depositary Shares for which conversion is
requested shall be deemed to have been received by the Company for conversion as
of the close of business on the date of such receipt.
The holder of Depositary Shares on any dividend payment record date
established by the Depositary shall be entitled to receive the dividend payable
with respect to such Depositary Shares on the corresponding dividend payment
date notwithstanding the subsequent conversion of the shares of Stock to which
such Depositary Shares relate. If a share of Stock is converted between the
record date with respect to any dividend payment on the Stock and the next
succeeding dividend payment date, any holder of Receipts surrendered with
instructions to the Depositary for conversion of the underlying Stock (other
than Receipts representing Depositary Shares converted after the issuance of a
notice of redemption with respect to a redemption date during such period which
shall be entitled to such dividend on the dividend payment date) 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.
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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 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.
5. 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.
6. Warranty by Company. The Company has warranted that the Stock
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when issued, and any shares of Common Stock issuable upon conversion of the
Stock, will be validly issued, fully paid and nonassessable.
7. Amendment. The form of the Receipts and any provisions of the
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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
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impose or increase any fees, taxes, or other changes upon holders of Receipts
(other than taxes and other governmental charges, fees, and other expenses
payable by such holders as stated under "Charges of Depositary"), or which shall
otherwise prejudice any substantial existing right of holders of Receipts, shall
take effect as to outstanding Receipts until the expiration of 30 days after
notice of such amendment has been mailed to the record holders of outstanding
Receipts. 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.
8. Charges of Depositary. The Company will pay all transfer and
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other taxes and governmental charges arising solely from the existence of the
Depositary
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arrangements, all charges of the Depositary in connection with the initial
deposit of the Stock and the initial issuance of the Depositary Shares, the
redemption of the Stock at the option of the Company, and the issuance of
Exchange Debentures. All other transfer and other taxes and other governmental
charges shall be at the expense of holders of Depositary Shares.
9. 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
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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.
10. 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
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will be reduced by any amounts required to be withheld by the Company or the
Depositary on account of taxes or as otherwise required pursuant to law,
regulations or court order. Other distributions received on the Stock may be
distributed to holders of Receipts as provided in the Deposit Agreement.
11. 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.
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12. Voting Rights. Upon receipt of notice of any meeting at which
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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.
13. Changes Affecting Deposited Securities. Upon any change in par
--------------------------------------
or stated value, split-up, combination or any other reclassification of the
Stock or upon any recapitalization, reorganization, merger, amalgamation or
consolidation to which the Company is a party, or upon the sale of all or
substantially all the Company's assets, the Depositary may in its discretion
with the approval of, and shall upon the instructions of, the Company, and (in
either case) in such manner as to retain as nearly as possible the percentage
ownership interest in Stock of holders of Receipts immediately prior to such
event, (i) make such adjustments in (a) the fraction of an interest in one share
of Stock underlying one Depositary Share, (b) the ratio of the redemption price
per Depositary Share to the redemption price of a share of Stock and (c) the
ratio of the conversion price per Depositary Share to the conversion price 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
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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.
14. 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 Certificate of Incorporation or by reason of any act of God, war or
civil disorder, failure of power, fire or other casualty damage or governmental
requirements or restrictions, the Depositary, the Depositary's Agent, the
Registrar or the Company shall be prevented or forbidden from doing or
performing any act or thing that the terms of the Deposit Agreement provide
shall be done or performed; nor shall the Depositary, any Depositary's Agent,
any Registrar or the Company incur any liability or be subject to any obligation
(i) by reason of nonperformance or delay, caused as aforesaid, in performance of
any act or thing that the terms of the Deposit Agreement provide shall or may be
done or performed, or (ii) by reason of any exercise of, or failure to exercise,
any discretion provided for in the Deposit Agreement, except in the event of the
gross negligence or willful misconduct of the party charged with such exercise
or failure to exercise. Neither the Depositary nor any Depositary's Agent nor
the Company assumes any obligation or shall be subject to any liability under
the Deposit Agreement to holders of Receipts other than to use its best judgment
and good faith in the performance of such duties as are specifically set forth
in the Deposit Agreement. Neither the Depositary nor any Depositary's Agent nor
any Registrar shall be under any obligation to appear in, prosecute or defend
any action, suit or other proceeding in
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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.
15. Resignation and Removal of Depositary. The Depositary may at any
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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.
16. Termination of Deposit Agreement. The Deposit Agreement may be
--------------------------------
terminated by the Company or the Depositary if a period of 45 days shall have
expired after the Depositary has delivered to the Company written notice of its
election to resign and a successor depositary shall not have been appointed.
17. Governing Law. THIS RECEIPT AND THE DEPOSIT AGREEMENT AND ALL
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RIGHTS HEREUNDER AND THEREUNDER AND PROVISIONS HEREOF AND THEREOF SHALL BE
GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK
WITHOUT REFERENCE TO APPLICABLE CONFLICTS OF LAW PROVISIONS).
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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
Cablevision Systems 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
- - -----------------------------
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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)
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