-----BEGIN PRIVACY-ENHANCED MESSAGE----- Proc-Type: 2001,MIC-CLEAR Originator-Name: keymaster@town.hall.org Originator-Key-Asymmetric: MFkwCgYEVQgBAQICAgADSwAwSAJBALeWW4xDV4i7+b6+UyPn5RtObb1cJ7VkACDq pKb9/DClgTKIm08lCfoilvi9Wl4SODbR1+1waHhiGmeZO8OdgLUCAwEAAQ== MIC-Info: RSA-MD5,RSA, eobbyso4dKAGykuXA8Kr3KNxPxjTUFTsijmTtDf7s3+s2l/+XxzeohyuE5Su9Rde htFDVqVHMHtVuYbp56LUhA== 0000028887-94-000016.txt : 19940324 0000028887-94-000016.hdr.sgml : 19940324 ACCESSION NUMBER: 0000028887-94-000016 CONFORMED SUBMISSION TYPE: 8-K PUBLIC DOCUMENT COUNT: 4 CONFORMED PERIOD OF REPORT: 19940321 ITEM INFORMATION: 2 FILED AS OF DATE: 19940323 FILER: COMPANY DATA: COMPANY CONFORMED NAME: DIGITAL EQUIPMENT CORP CENTRAL INDEX KEY: 0000028887 STANDARD INDUSTRIAL CLASSIFICATION: 3570 IRS NUMBER: 042226590 STATE OF INCORPORATION: MA FISCAL YEAR END: 0630 FILING VALUES: FORM TYPE: 8-K SEC ACT: 34 SEC FILE NUMBER: 001-05296 FILM NUMBER: 94517306 BUSINESS ADDRESS: STREET 1: 146 MAIN ST CITY: MAYNARD STATE: MA ZIP: 01754 BUSINESS PHONE: 6178975111 8-K 1 FORM 8-K SECURITIES AND EXCHANGE COMMISSION Washington, D.C. 20549 -------- FORM 8-K CURRENT REPORT Pursuant to Section 13 or 15(d) of the Securities Exchange Act of 1934 Date of Report: (Date of earliest event reported): March 21, 1994 Digital Equipment Corporation ________________________________________________________________ (Exact name of registrant as specified in its charter) Massachusetts 0-5296 04-2226590 _______________________________________________________________________ (State or other jurisdiction of (Commission (I.R.S. Employer incorporation or organization) File Number) Identification No.) 146 Main Street, Maynard, Massachusetts 01754 _______________________________________________________________ (Address of principal executive offices) (Zip Code) Registrant's telephone number, including area code: (508) 493-5111 ----------------------------------------------------------------------- (Former name or former address, if changed since last report) -1- Item 5. Other Information. On March 22, 1994, the registrant filed with the Securities and Exchange Commission pursuant to Rule 424(b)(2) a Prospectus Supplement dated March 21, 1994 relating to the issuance of 16,000,000 Depositary Shares representing 4,000,000 shares of Series A 8 7/8% Cumulative Preferred Stock. Item 7. Financial Statements and Exhibits. Exhibit No. 4.1 Certificate of Designation filed with the Secretary of State of the Commonwealth of Massachusetts on March 22, 1994. 4.2 Specimen Certificate of Series A 8 7/8% Cumulative Preferred Stock of Digital Equipment Corporation. 4.3 Deposit Agreement relating to the Series A 8 7/8% Cumulative Preferred Stock of Digital Equipment Corporation. -2- SIGNATURE Pursuant to the requirements of Section 12 of the Securities Exchange Act of 1934, the registrant has duly caused this report to be signed on its behalf by the undersigned, hereunto duly authorized. DIGITAL EQUIPMENT CORPORATION (Registrant) By /s/ Gail S. Mann Gail S. Mann Assistant General Counsel, Clerk and Secretary Date: March 22, 1994 -3- EX-4 2 EXHIBIT 4.1 Exhibit 4.1 THE COMMONWEALTH OF MASSACHUSETTS OFFICE OF THE MASSACHUSETTS SECRETARY OF STATE MICHAEL JOSEPH CONNOLLY, Secretary FEDERAL IDENTIFICATION NO. 042226590 ONE ASHBURTON PLACE, BOSTON, MASS. 02108 CERTIFICATE OF VOTE OF DIRECTORS ESTABLISHING A SERIES OF A CLASS OF STOCK General Laws, Chapter 156B, Section 26 We, Robert B. Palmer, President and Gail S. Mann, Clerk of DIGITAL EQUIPMENT CORPORATION located at 146 Main Street, Maynard, Massachusetts 01754-1499 do hereby certify that at a meeting of the directors of the corporation held on January 20, 1994, the following vote establishing and designating a series of a class of stock and determining the relative rights and preferences thereof was duly adopted and that pursuant to the unanimous written consent of a duly authorized committee of the directors of the corporation on March 21, 1994, the following votes establishing and designating a series of a class of stock and determining the relative rights and preferences thereof were duly adopted: VOTED: That, subject to the limitations set forth in these votes, the Board of Directors deems it advisable and in the best interests of the Corporation for the Corporation to be able to issue and sell from time to time securities (the "Securities") consisting of debt securities (the "Debt Securities"), which may be either senior debt securities (the "Senior Debt Securities") or subordinated debt securities (the "Subordinated Debt Securities"), preferred stock of the Corporation, par value $1.00 per share (the "Preferred Stock), depositary shares (the "Depositary Shares") and warrants to purchase Debt Securities or equity securities of or owned by the Corporation (the "Warrants") pursuant to a Registration Statement on Form S-3 under Rule 415 of the Securities Act of 1933, as amended (the "Act"), covering the registration of Securities at an aggregate offering price of $1,000,000,000 (One Billion Dollars); and further VOTED: That the Board of Directors hereby authorizes the Corporation to issue and sell up to an aggregate of $1,000,000,000 (One Billion Dollars) of the Securities on such terms and conditions as shall be determined by the Committee (as defined in and established in the immediately succeeding vote); and further VOTED: That the Board of Directors hereby designates and appoints a committee, of which Robert B. Palmer, the President and Chief Executive Officer and a director of the Corporation, shall be the sole member (the "Committee"), which shall have the full power of the Board of Directors in all matters relating to the Securities, subject to the limitations set forth in these votes; and further VOTED: That, subject to the limitations set forth in these votes, the Committee may at any time cause the Corporation to effect one or more issues and sales of Preferred Stock and Depositary Shares (collectively, the "Equity Securities") and, in connection with any such issue, determine, approve or appoint, as the case may be: (a) the designations, preferences and limitations, if any, of the Equity Securities; (b) the dividend rights, if any, relating to any such Equity Securities; (c) the redemption rights, if any, of the Corporation and of the holders of such Equity Securities and related redemption prices and any limitations on such redemption; (d) the rights upon liquidation, dissolution or winding up of the Corporation; (e) the conversion rights, if any, relating to any Equity Securities, related conversion rates and formulae which may be used to adjust such conversion rates and the reservation of any shares of common stock of the Corporation to be reserved for issuance upon exercise of such conversion rights; (f) the sinking fund, if any, to be established with respect to any Equity Securities, and related redemption prices; (g) the voting rights, if any, provided that the holders of shares of Equity Securities will not be entitled to more than one vote per share when voting as a class with the holders of shares of Common Stock of the Corporation; (h) certificates of designation for filing with the Secretary of State of the Commonwealth of Massachusetts setting forth the designations, preferences and limitations of any series of Preferred Stock; (i) the price and other terms and conditions on which the Equity Securities may be sold; (j) the option to offer Depositary Shares rather than shares of Preferred Stock and the applicable fraction of a share of a specified series of Preferred Stock represented by a Depositary Share and related dividend, voting, redemption, conversion and liquidation rights; (k) the form of stock certificate to be used to represent the shares of Preferred Stock; (l) the form of depositary receipt to be used to represent the Depositary Shares; (m) the appointment of a transfer agent and registrar with respect to the Equity Securities, including the adoption of any prescribed form of resolution or resolutions required by any such transfer agent or registrar; (n) such other terms, conditions and provisions as the Committee authorizing the same shall deem necessary or desirable; and that the President, Vice President - Finance or Treasurer be, and each of them hereby is, authorized, in the name and on behalf of the Corporation, to take any and all such actions and to do, or authorize to be done, all such things as such officer may approve as being necessary or desirable to effectuate the purpose of these votes, in each such case, the taking of such action or doing of such thing to be conclusive evidence of such approval and of the authority therefor hereunder; and further VOTED: That, as and when necessary to effect the issuance of one or more series of Preferred Stock under the proposed Registration Statement on Form S-3 in the form presented at this Meeting, an amendment of the Restated Articles of Organization of the Corporation (including any such amendment effected through the filing of a certificate of designation or similar document with respect to any such series of Preferred Stock) setting forth the voting powers attached to the Preferred Stock with respect to the election of directors of the Corporation, the following provision is hereby adopted and approved in substantially the following form: In the event that the Corporation shall have failed to declare and pay or set apart for payment in full the dividends accumulated on the outstanding shares of the Preferred Stock for any number of periodic dividend payment periods as may be specified by the Board of Directors or duly constituted Committee thereof, whether or not consecutive, and all such preferred dividends remain unpaid (a "Preferred Dividend Default"), the Board of Directors shall take such action as may be necessary, including, without limitation, amending the Corporation's By-laws, to increase the number of directors of the Corporation by two and the holders of outstanding shares of the Preferred Stock, voting together as a class with all other series of preferred stock then entitled to vote on the election of such directors (each hereinafter referred to as a "Preferred Stock Director" and together the "Preferred Stock Directors"), shall be entitled to elect such two Preferred Stock Directors until the full dividends accumulated on all outstanding shares of the Preferred Stock have been declared and paid in full. Upon the occurrence of a Preferred Dividend Default, the Board of Directors shall within 20 business days (any day other than a day which is a Saturday, Sunday or legal holiday on which banks are open for business in Boston, Massachusetts) of such default amend the Corporation's By-laws to make provision for the election of such directors consistent with the terms herein specified and call a special meeting of the holders of shares of the Preferred Stock and all other holders of a series of preferred stock who are then entitled to participate in the election of such directors for the purpose of electing the additional directors provided by the foregoing provisions; provided that, in lieu of ________ holding such meeting, the holders of record of all of the outstanding shares of the Preferred Stock and all other series of preferred stock who are then entitled to participate in the election of such directors may by action taken by written consent as permitted by law and these Restated Articles of Organization and the By-Laws of the Corporation, elect such Preferred Stock Directors. If and when all accumulated dividends on the shares of the Preferred Stock have been declared and paid or set aside for payment in full, the holders of shares of the Preferred Stock shall be divested of the special voting rights provided by this paragraph, subject to revesting in the event of each and every subsequent Preferred Dividend Default. Upon termination of such special voting rights attributable to all holders of shares of the Preferred Stock and any other series of preferred stock, the term of office of each Preferred Stock Director pursuant to such special voting rights shall forthwith terminate and the Board of Directors shall take such action as may be necessary, including without limitation, amending the Corporation's By-Laws, to reduce the number of directors by two, subject always to its obligation to increase the number of directors pursuant to the foregoing provisions in case of a future Preferred Dividend Default. Any Preferred Stock Director may be removed at any time with or without cause by, and shall not be removed otherwise than by, the vote of the holders of record of a majority of the outstanding shares of the Preferred Stock and all other series of preferred stock who were entitled to participate in such Preferred Stock Director's election, voting as a separate class, at a meeting called for such purpose or by unanimous written consent as permitted by law and these Restated Articles of Organization and the By-laws of the Corporation. So long as a Preferred Dividend Default shall continue, any vacancy in the office of a Preferred Stock Director may be filled by written consent of the Preferred Stock Director remaining in office or, if none remains in office, by vote of the holders of record of a majority of the outstanding shares of the Preferred Stock and all other series of preferred stock who are then entitled to participate in the election of such Preferred Stock Directors as provided above. The Preferred Stock Directors shall each be entitled to one vote per director on any matter. VOTED: That pursuant to the authority expressly granted to and vested in this Committee of the Board of Directors of the Corporation, the Committee hereby creates a series of the Corporation's capital stock consisting of 4,000,000 shares of the Corporation's Preferred Stock, par value $1.00 per share, which is hereby designated as the Series A 8 7/8% Cumulative Preferred Stock (the "Series A Preferred Stock"), and hereby determines that the preferences, voting powers, qualifications and special and relative rights and privileges of such Series A Preferred Stock shall be as set forth in Exhibit A attached to this _________ consent. VOTED: That pursuant to the preceding votes the President and the Secretary and Clerk are hereby authorized to execute and file with the Secretary of State of The Commonwealth of Massachusetts the Certificate of Designation substantially in the form attached to this consent. EXHIBIT A SERIES A 8 7/8% CUMULATIVE PREFERRED STOCK 1. Designation, Number and Liquidation Preference. A series of preferred stock is hereby designated "Series A 8 7/8% Cumulative Preferred Stock". The number of Shares constituting the Series A 8 7/8% Cumulative Preferred Stock is 4,000,000. Shares of the Series A 8 7/8% Cumulative Preferred Stock shall have a par value of $1.00 and a liquidation preference of $100 per share. 2. Dividend Rate. (a) Shares of the Series A 8 7/8% Cumulative Preferred Stock shall be entitled to receive dividends at a fixed annual rate of $8.875 per share. Such dividends shall be cumulative from the date of original issue of such shares and shall be payable, out of funds legally available therefor, when and as declared by the Board of Directors, quarterly in arrears on January 15, April 15, July 15 and October 15 of each year, commencing on April 15, 1994. If a dividend payment date is not a business day, dividends on the Series A 8 7/8 % Preferred Stock will be paid on the immediately succeeding business day, without interest. Each such dividend shall be paid to the holders of record of shares of the Series A 8 7/8% Cumulative Preferred Stock as they appear on the stock register on the applicable record date, which shall be the 15th day prior to the payment date thereof or such other date designated by the Board of Directors of the Corporation (or an authorized committee thereof) for the payment of dividends that is not more than thirty (30) nor less than ten (10) days prior to such dividend payment date. Dividends on account of arrears for any past dividend periods may be declared and paid at any time, without reference to any regular dividend payment date, to holders of record on such date as may be fixed by the Board of Directors which shall not exceed 30 days preceding such dividend payment date thereof. (b) No dividends shall be declared or paid or set apart for payment on any shares of any class or classes of stock of the Corporation or any series thereof ranking, as to dividends, on a parity with or junior to the Series A 8 7/8% Cumulative Preferred Stock for any period unless full cumulative dividends have been or contemporaneously are declared and paid, or declared and a sum sufficient for the payment thereof set apart for such payment, on the Series A 8 7/8% Cumulative Preferred Stock for all dividend payment periods terminating on or prior to the date of payment of such full cumulative dividends. When dividends are not paid in full, as aforesaid, upon the shares of the Series A 8 7/8% Cumulative Preferred Stock and any other shares of any class or classes of stock or series thereof ranking on a parity as to dividends with the Series A 8 7/8% Cumulative Preferred Stock, all dividends declared upon shares of the Series A 8 7/8% Cumulative Preferred Stock and any other shares of such class or classes or series thereof ranking on a parity as to dividends with the Series A 8 7/8% Cumulative Preferred Stock shall be declared pro rata so that the amount of dividends declared per share on the Series A 8 7/8% Cumulative Preferred Stock and such other shares shall in all cases bear to each other the same ratio that accrued dividends per share on the shares of the Series A 8 7/8% Cumulative Preferred Stock and such other shares bear to each other. The Corporation's 8 7/8% Cumulative Convertible Preferred Stock, Series A, ranks, as to dividends, on a parity with the Series A 8 7/8% Cumulative Preferred Stock. Holders of shares of the Series A 8 7/8% Cumulative Preferred Stock shall not be entitled to any dividend, whether payable in cash, property or stock, in excess of full cumulative dividends, as herein provided, on the Series A 8 7/8% Cumulative Preferred Stock. No interest, or sum of money in lieu of interest, shall be payable in respect of any dividend payment or payments on the Series A 8 7/8% Cumulative Preferred Stock which may be in arrears. (c) So long as any shares of the Series A 8 7/8% Cumulative Preferred Stock are outstanding, no dividend (other than a dividend in capital stock or in any other shares ranking junior to the Series A 8 7/8% Cumulative Preferred Stock as to dividends and upon Liquidation, as defined in section 6(a), and other than as provided in paragraph (b) of this section 2) shall be declared or paid or set aside for payment or other distribution declared or made upon the shares of capital stock or upon any other shares ranking junior to or on a parity with the Series A 8 7/8% Cumulative Preferred Stock as to dividends or upon Liquidation, nor shall any of the shares of capital stock or any other shares of the Corporation ranking junior to or on a parity with the Series A 8 7/8% Cumulative Preferred Stock as to dividends or upon Liquidation be redeemed, purchased or otherwise acquired for any consideration (or any moneys be paid to or made available for a sinking fund for the redemption of any such shares) by the Corporation (except by conversion into or exchange for shares of the Corporation ranking junior to the Series A 8 7/8% Cumulative Preferred Stock as to dividends and upon Liquidation and except for repurchases of shares of Common Stock at cost by the Corporation under employee stock plans and programs approved by the Board of Directors) unless, in each case, the full cumulative dividends on all outstanding shares of the Series A 8 7/8% Cumulative Preferred Stock shall have been or contemporaneously are declared and paid, or declared and a sum sufficient for payment thereof is set apart for payment, for all past dividend payment periods. (d) Dividends payable on the Series A 8 7/8% Cumulative Preferred Stock for any period less than a full quarterly dividend period, and for the dividend period beginning on the date of issuance of the shares of the Series A 8 7/8% Cumulative Preferred Stock, shall be computed on the basis of a 360-day year consisting of twelve 30-day months. The amount of dividends payable on shares of the Series A 8 7/8% Cumulative Preferred Stock for each full quarterly dividend period shall be computed by dividing by four the annual rate per share set forth above in section 2(a). 3. Redemption. (a) The shares of the Series A 8 7/8% Cumulative Preferred Stock shall not be redeemable prior to April 1, 1999. On and after April 1, 1999, the Corporation, at its option, may redeem shares of the Series A 8 7/8% Cumulative Preferred Stock, out of funds legally available therefor, as a whole or in part, at any time or from time to time, at a redemption price per share of $100 plus, in each case, accrued and unpaid dividends thereon to the date fixed for redemption. (b) In the event that fewer than all the outstanding shares of the Series A 8 7/8% Cumulative Preferred Stock are to be redeemed, the number of shares to be redeemed shall be determined by the Board of Directors and the shares to be redeemed shall be determined by lot or pro rata as may be determined by the Board of Directors or by any other method as may be determined by the Board of Directors in its sole discretion to be equitable. (c) In the event the Corporation shall redeem shares of the Series A 8 7/8% Cumulative Preferred Stock, notice of such redemption shall be given by first class mail, postage prepaid, mailed not less than 35 nor more than 60 days prior to the redemption date, to each holder of record of the shares to be redeemed, at such holder's address as the same appears on the stock register of the Depositary (as provided in section 10(c) below). Each such mailed notice shall state: (1) the redemption date; (2) the number of shares of the Series A 8 7/8% Cumulative Preferred Stock to be redeemed and, if fewer than all the shares held by such holder are to be redeemed, the number of such shares to be redeemed from such holder; (3) the redemption price; (4) the place or places where certificates for such shares are to be surrendered for payment of the redemption price; and (5) that dividends on the shares to be redeemed will cease to accrue on such redemption date. No defect in the notice of redemption or in the mailing thereof shall affect the validity of the redemption proceedings, and the failure to give notice to any holders of shares of the Series A 8 7/8% Cumulative Preferred Stock to be so redeemed shall not affect the validity of the notice given to the other holders of shares of the Series A 8 7/8% Cumulative Preferred Stock to be so redeemed. (d) Notice having been mailed as aforesaid, and the redemption price (including any accrued and unpaid dividends to the date fixed for redemption) having been paid or set aside for payment, then, notwithstanding that the certificates evidencing the shares of the Series A 8 7/8% Cumulative Preferred Stock shall not have been surrendered, from and after the redemption date dividends on the shares of the Series A 8 7/8% Cumulative Preferred Stock so called for redemption shall cease to accrue, and said shares shall no longer be deemed to be outstanding, and all rights of the holders thereof as stockholders (including dividend and voting rights) of the Corporation (except the right to receive from the Corporation the redemption price) shall cease. Upon surrender in accordance with said notice of the certificates for any shares so redeemed (properly endorsed or assigned for transfer, if the Board of Directors shall so require and the notice shall so state), such shares shall be redeemed by the Corporation at the redemption price aforesaid. In case fewer than all the shares represented by any such certificate are redeemed, a new certificate shall be issued representing the unredeemed shares without cost to the holder thereof. (e) Any shares of the Series A 8 7/8% Cumulative Preferred Stock which shall at any time have been redeemed shall, after such redemption, have the status of authorized but unissued shares of Preferred Stock, without designation as to series until such shares are once more designated as part of a particular series by the Board of Directors (or an authorized committee thereof). (f) Notwithstanding the foregoing provisions of this section 3, if any dividends on the Series A 8 7/8% Cumulative Preferred Stock are in arrears, no shares of the Series A 8 7/8% Cumulative Preferred Stock shall be redeemed unless all outstanding shares of the Series A 8 7/8% Cumulative Preferred Stock are simultaneously redeemed, and the Corporation shall not purchase or otherwise acquire any shares of the Series A 8 7/8% Cumulative Preferred Stock; provided, however, that the foregoing shall not prevent the purchase or acquisition of shares of the Series A 8 7/8% Cumulative Preferred Stock pursuant to a purchase or exchange offer made on the same terms to holders of all outstanding shares of the Series A 8 7/8% Cumulative Preferred Stock. 4. Conversion. The holders of shares of the Series A 8 7/8% Cumulative Preferred Stock shall not have any rights herein to convert such shares into or exchange such shares for shares of any other class or classes or of any other series of any class or classes of stock of the Corporation. 5. Voting. The shares of the Series A 8 7/8% Cumulative Preferred Stock shall not have any voting powers either general or special, except as required by law and except that: (a) So long as any of the shares of the Series A 8 7/8% Cumulative Preferred Stock are outstanding, the consent of the holders of at least two-thirds of all the shares of the Series A 8 7/8% Cumulative Preferred Stock at the time outstanding, voting together as a class with all other Preferred Stock then outstanding and affected in the same manner, given in person or by proxy, by a vote at a meeting called for such purpose shall be necessary for authorizing, effecting or validating the amendment, alteration or repeal of any of the provisions of the Restated Articles of Organization or of any certificate amendatory thereof or supplemental thereto (including any certificate of designation or any similar document relating to any series of preferred stock) which would adversely affect the voting powers, qualifications and preferences or special or relative rights of the Series A 8 7/8% Cumulative Preferred Stock, including the creation or authorization of any class of stock that ranks senior to the Series A 8 7/8% Cumulative Preferred Stock with respect to dividends or upon Liquidation. Any amendment or any vote or action of the Board of Directors which would create or issue any series of preferred stock out of the authorized shares of preferred stock, or which would authorize, create or issue any shares or class of stock (whether or not already authorized), ranking junior to or on a parity with the Series A 8 7/8% Cumulative Preferred Stock with respect to the payment of dividends and upon any Liquidation, shall not be considered to affect adversely the voting powers, qualifications and preferences or special or relative rights of the outstanding shares of the Series A 8 7/8% Cumulative Preferred Stock. (b) In the event that the Corporation shall have failed to declare and pay or set apart for payment in full the dividends accumulated on the outstanding shares of the Series A 8 7/8% Cumulative Preferred Stock for any six quarterly dividend payment periods, whether or not consecutive, and all such preferred dividends remain unpaid (a "Preferred Dividend Default"), the Board of Directors shall take such action as may be necessary, including, without limitation, amending the Corporation's By-laws, to increase the number of directors of the Corporation by two and the holders of outstanding shares of the Series A 8 7/8% Cumulative Preferred Stock, voting together as a class with all other series of preferred stock then entitled to vote on the election of such directors (each hereinafter referred to as a "Preferred Stock Director" and together the "Preferred Stock Directors"), shall be entitled to elect such two Preferred Stock Directors until the full dividends accumulated on all outstanding shares of the Series A 8 7/8% Cumulative Preferred Stock have been declared and paid in full. Upon the occurrence of a Preferred Dividend Default, the Board of Directors shall within twenty (20) business days (any day, other than a day which is a Saturday, Sunday or legal holiday, on which banks are open for business in Boston, Massachusetts) after such default amend the Corporation's By-laws to make provision for the election of such directors consistent with the terms herein specified and call a special meeting of the holders of shares of the Series A 8 7/8% Cumulative Preferred Stock and all other holders of a series of preferred stock who are then entitled to participate in the election of such directors for the purpose of electing the additional directors provided by the foregoing provisions; provided that, in lieu of holding such meeting, the holders of record of all of the outstanding shares of the Series A 8 7/8% Cumulative Preferred Stock and all other series of preferred stock who are then entitled to participate in the election of such directors may by action taken by written consent as permitted by law and these Restated Articles of Organization and the By-laws of the Corporation, elect such Preferred Stock Directors. If and when all accumulated dividends on the shares of the Series A 8 7/8% Cumulative Preferred Stock have been declared and paid or set aside for payment in full, the holders of shares of the Series A 8 7/8% Cumulative Preferred Stock shall be divested of the special voting rights provided by this paragraph, subject to revesting in the event of each and every subsequent Preferred Dividend Default. Upon termination of such special voting rights attributable to all holders of shares of the Series A 8 7/8% Cumulative Preferred Stock and any other series of preferred stock, the term of office of each Preferred Stock Director pursuant to such special voting rights shall forthwith terminate and the Board of Directors shall take such action as may be necessary, including, without limitation, amending the Corporation's By-laws, to reduce the number of directors by two, subject always to its obligation to increase the number of directors pursuant to the foregoing provisions in case of a future Preferred Dividend Default. Any Preferred Stock Director may be removed at any time with or without cause by, and shall not be removed otherwise than by, the vote of the holders of record of a majority of the outstanding shares of the Series A 8 7/8% Cumulative Preferred Stock and all other series of preferred stock who were entitled to participate in such Preferred Stock Director's election, voting as a separate class, at a meeting called for such purpose or by unanimous written consent as permitted by law and these Restated Articles of Organization and the By-laws of the Corporation. So long as a Preferred Dividend Default shall continue, any vacancy in the office of a Preferred Stock Director may be filled by written consent of the Preferred Stock Director remaining in office or, if none remains in office, by vote of the holders of record of a majority of the outstanding shares of the Series A 8 7/8% Cumulative Preferred Stock and all other series of preferred stock who are then entitled to participate in the election of such Preferred Stock Directors as provided above. The Preferred Stock Directors shall each be entitled to one vote per director on any matter. 6. Liquidation Rights. (a) Upon the dissolution, liquidation or winding up of the affairs of the Corporation, whether voluntary or involuntary (collectively, a "Liquidation"), after payment or provision for payment has been made of the debts and other liabilities of the Corporation and payment or provision for payment has been made on all amounts required to be paid in respect of all outstanding shares of any class or classes of stock of the Corporation or series thereof ranking senior to the shares of the Series A 8 7/8% Cumulative Preferred Stock, the holders of the shares of the Series A 8 7/8% Cumulative Preferred Stock shall be entitled, subject to paragraph (d) of this section 6, to receive out of the assets of the Corporation, before any payment or distribution shall be made on Common Stock or on any other class of stock ranking junior to the Series A 8 7/8% Cumulative Preferred Stock upon Liquidation, the amount of $100 per share, plus a sum equal to all dividends (whether or not earned or declared) on such shares accrued and unpaid thereon to the date of final distribution. (b) Neither the sale, transfer or lease of all or any part of the property or business of the Corporation, nor the merger or consolidation of the Corporation into or with any other corporation or the merger or consolidation of any other corporation into or with the Corporation, shall be deemed to be a Liquidation for the purposes of this section 6. (c) After the payment to the holders of the shares of the Series A 8 7/8% Cumulative Preferred Stock of the full preferential amounts provided for in this section 6, the holders of the Series A 8 7/8% Cumulative Preferred Stock as such shall have no right or claim to any of the remaining assets of the Corporation and the shares of the Series A 8 7/8% Cumulative Preferred Stock shall no longer be deemed to be outstanding or be entitled to any other powers, preferences, qualifications or special rights or privileges, including, without limitation, voting rights, and such shares shall be surrendered for cancellation to the Corporation. (d) In the event the assets of the Corporation available for distribution to the holders of shares of the Series A 8 7/8% Cumulative Preferred Stock upon any Liquidation shall be insufficient to pay in full all amounts to which such holders are entitled pursuant to paragraph (a) of this section 6, no such distribution shall be made on account of any shares of any series of preferred stock ranking on a parity with the shares of the Series A 8 7/8% Cumulative Preferred Stock upon such Liquidation unless proportionate distributive amounts shall be paid on account of the shares of the Series A 8 7/8% Cumulative Preferred Stock, ratably, in proportion to the full distributable amounts for which holders of all such parity shares are respectively entitled upon such Liquidation. 7. Priority. Any shares of any class or classes of the Corporation or series thereof shall be deemed to rank: (a) prior or senior to the shares of the Series A 8 7/8% Cumulative Preferred Stock, either as to dividends or upon Liquidation, if the holders of such class or classes shall be entitled to the receipt of dividends or of amounts distributable upon Liquidation of the Corporation, in preference or priority to the holders of shares of the Series A 8 7/8% Cumulative Preferred Stock; (b) on a parity with shares of the Series A 8 7/8% Cumulative Preferred Stock, either as to dividends or upon Liquidation, whether or not the dividend rates, dividend payment dates or redemption or Liquidation prices per share or sinking fund provisions, if any, are different from those of the Series A 8 7/8% Cumulative Preferred Stock, if the holders of such shares shall be entitled to the receipt of dividends or of amounts distributable upon Liquidation of the Corporation, in proportion to their respective dividend rates or Liquidation prices, without preference or priority, one over the other, as between the holders of such shares and the holders of shares of the Series A 8 7/8% Cumulative Preferred Stock; and (c) junior to shares of the Series A 8 7/8% Cumulative Preferred Stock, either as to dividends or upon Liquidation, if such class is Common Stock or if the holders of shares of the Series A 8 7/8% Cumulative Preferred Stock shall be entitled to receipt of dividends or of amounts distributable upon Liquidation of the Corporation in preference or priority to the holders of shares of such class or classes. 8. Sinking or Retirement Fund. The shares of the Series A 8 7/8% Cumulative Preferred Stock shall not be entitled to the benefit of a sinking or retirement fund to be applied to the purchase or redemption of such shares. 9. Distribution to Common Stock Holders. Distribution of any of the Series A 8 7/8% Cumulative Preferred Stock or any other series of preferred stock may, in the discretion of the Board of Directors, be made to the holders of shares of Common Stock. 10. Miscellaneous. (a) Subject to paragraph (c) of section 3 above, all notices referred to herein shall be in writing, and all notices hereunder shall be deemed to have been given upon the earlier of receipt thereof or three business days after the mailing thereof if sent by registered mail (unless first-class mail shall be specifically permitted for such notice under the terms of these Restated Articles of Organization) with postage prepaid, addressed: if to the Corporation, to its offices at 111 Powdermill Road, Maynard, Massachusetts 01754 (Attention: Office of the Corporate Secretary and Clerk), if to the Depositary (as defined in paragraph (c) below), to such holder at the address of such holder as listed in the stock book (which may include the records of the Depositary if appropriate); or to such other address as the Corporation or holder, as the case may be, shall have designated by notice similarly given. (b) In the event a holder of shares of the Series A 8 7/8% Cumulative Preferred Stock shall not by written notice designate the name to whom payment upon redemption of any shares of the Series A 8 7/8% Cumulative Preferred Stock should be made or the address to which the certificate or certificates representing such shares, or such payment, should be sent, the Corporation shall be entitled to register such shares, and make such payment, in the name of the holder of such shares as shown on the records of the Corporation and to send the certificate or certificates representing such shares, or such payment, to the address of such holder shown on the records of the Corporation. (c) Citibank, N.A. of New York, New York initially shall be appointed the initial depositary (the "Depositary") for the shares of the Series A 8 7/8% Cumulative Preferred Stock. The Depositary shall act as transfer agent, registrar and dividend disbursing agent for the shares of the Series A 8 7/8% Cumulative Preferred Stock. IN WITNESS WHEREOF AND UNDER THE PENALTIES OF PERJURY, we have hereunto signed our names this 22nd day of March in the year 1994. /s/ Robert B. Palmer - ------------------------------------------------------------, President /s/ Gail S. Mann - ------------------------------------------------------------, Clerk THE COMMONWEALTH OF MASSACHUSETTS Certificate of Vote of Directors Establishing A Series of a Class of Stock (General Laws, Chapter 156B, Section 26) I hereby approve the within certificate and, the filing fee in the amount of $100.00 having been paid, said certificate is hereby filed this 22nd day of March, 1994. MICHAEL JOSEPH CONNOLLY Secretary of State TO BE FILLED IN BY CORPORATION Photo Copy of Certificate To Be Sent TO: Gail S. Mann, Esq. Digital Equipment Corporation 111 Powdermill Road - MSO2-3/F13 Maynard, Massachusetts 01754-1499 Telephone (508) 493-2206 EX-4 3 EXHIBIT 4.2 Exhibit 4.2 [FRONT OF CERTIFICATE] Organized under the Laws of Massachusetts No. XXX XXX Shares Digital Equipment Corporation 8 7/8% Cumulative Convertible Preferred Stock, Series A THIS CERTIFIES THAT XXX is the owner of XXX Shares of the Capital Stock of DIGITAL EQUIPMENT CORPORATION transferable only on the books of the Corporation by the holder hereof in person or by Attorney upon surrender of the Certificate properly endorsed. IN WITNESS WHEREOF, the said Corporation has caused this Certificate to be signed by its duly authorized officers and its Corporate Seal to be hereunto affixed this day of A.D. 19 . - ------------------------- -------------------------- Vice President Treasurer Par Value SHARES $1.00 per share EACH [SEAL] [BACK OF CERTIFICATE] CERTIFICATE FOR XXX SHARES OF THE CAPITAL STOCK DIGITAL EQUIPMENT CORPORATION 8 7/8% CUMULATIVE CONVERTIBLE PREFERRED STOCK, SERIES A ISSUED TO xxx ---------------------- date xxx ---------------------- For Value Received xxx hereby sell, assign and transfer xxx unto ----------------------------------------------- - -------------------------------------------------- Shares of the Capital Stock represented by the within Certificate, and do hereby irrevocably constitute and appoint xxx - -------------------------------------------------- Attorney to transfer the said Stock on the books of the within named Corporation with full power of substitution in the premises. Dated xxxxxxxxx 19xx In presence of xxx -------------------------- xxx - ----------------------------- EX-4 4 EXHIBIT 4.3 Exhibit 4.3 DIGITAL EQUIPMENT CORPORATION CITIBANK, N.A., as Depository and THE HOLDERS FROM TIME TO TIME OF THE DEPOSITARY RECEIPTS DESCRIBED HEREIN. Deposit Agreement relating to Series A 8 7/8% Cumulative Preferred Stock of Digital Equipment Corporation Dated as of March 1, 1994 TABLE OF CONTENTS Page PARTIES. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .1 RECITALS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .1 ARTICLE I Definitions "Business Day" . . . . . . . . . . . . . . . . . . . . . . . . . 1 "Certificate of Designation" . . . . . . . . . . . . . . . . . . 1 "Depositary Shares" . . . . . . . . . . . . . . . . . . . . . . 1 "Depositary's Agent" . . . . . . . . . . . . . . . . . . . . . . 1 "Depositary's Office". . . . . . . . . . . . . . . . . . . . . . 2 "Receipt". . . . . . . . . . . . . . . . . . . . . . . . . . . . 2 "Record Holder". . . . . . . . . . . . . . . . . . . . . . . . . 2 "Registrar". . . . . . . . . . . . . . . . . . . . . . . . . . . 2 ARTICLE II Form of Receipts, Deposit of Preferred Stock, Execution and Delivery, Transfer, Surrender and Redemption of Receipts SECTION 2.01. Form and Transfer of Receipts . . . . . . . . . . 2 SECTION 2.02. Deposit of Preferred Stock; Execution and Delivery of Receipts in Respect Thereof. . . . . . . . . . . . 3 SECTION 2.03. Redemption of Preferred Stock . . . . . . . . . . 4 SECTION 2.04. Registration of Transfer of Receipts. . . . . . . 5 SECTION 2.05. Split-ups and Combinations of Receipts; Surrender of Receipts and Withdrawal of Preferred Stock. . . . 5 SECTION 2.06. Limitations on Execution and Delivery, Transfer, Surrender and Exchange of Receipts . . . . . . . . . 6 SECTION 2.07. Lost Receipts, etc. . . . . . . . . . . . . . . . 7 SECTION 2.08. Cancellation and Destruction of Surrendered Receipts. . . . . . . . . . . . . . . . . . . . . . 7 SECTION 2.09. Prohibition Against Preferred Stock, Depositary Shares or Receipt Lending. . . . . . . . . . . . . . 7 ARTICLE III Certain Obligations of Holders of Receipts and the Company SECTION 3.01. Filing Proofs, Certificates, and Other Information . . . . . . . . . . . . . . . . . . . . . . . . . . 7 SECTION 3.02. Payment of Taxes or Other Governmental Charges. . 8 SECTION 3.03. Representation and Warranty as to Preferred Stock 8 SECTION 3.04. Covenant as to Receipts . . . . . . . . . . . . . 8 SECTION 3.5. Covenant as to Holidays . . . . . . . . . . . . . 8 ARTICLE IV The Deposited Securities; Notices SECTION 4.01. Cash Distributions. . . . . . . . . . . . . . . . 9 SECTION 4.02. Distributions Other than Cash, Rights, Preferences or Privileges. . . . . . . . . . . . . . . . . . . 9 SECTION 4.03. Subscription Rights, Preferences or Privileges. . 10 SECTION 4.04. Notice of Dividends, etc.; Fixing of Record Date for Record Holders of Receipts. . . . . . . . . . . . . . 11 SECTION 4.05. Voting Rights . . . . . . . . . . . . . . . . . . 11 SECTION 4.06. Changes Affecting Deposited Preferred Stock and Reclassifications, Recapitalizations, etc. . . . . . . . . . . 11 SECTION 4.07. Inspection of Reports . . . . . . . . . . . . . . 12 SECTION 4.08. Lists of Receipt Holders. . . . . . . . . . . . . 12 SECTION 4.09. Tax and Regulatory Compliance . . . . . . . . . . 12 SECTION 4.10. Withholding . . . . . . . . . . . . . . . . . . . 13 ARTICLE V The Depositary, the Depositary's Agents, the Registrar and the Company SECTION 5.01. Maintenance of Offices, Agencies and Transfer Books by the Depositary; Registrar. . . . . . . . . . . . . . . . . . 13 SECTION 5.02. Prevention of or Delay in Performance by the Depositary, the Depositary's Agents, the Registrar or the Company . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13 SECTION 5.03. Obligations of the Depositary, the Depositary's Agents, the Registrar and the Company . . . . . . . . . . . . . 14 SECTION 5.04. Resignation and Removal of the Depositary; Appointment of Successor Depositary . . . . . . . . . . . . . . 16 SECTION 5.06. Indemnification . . . . . . . . . . . . . . . . . 17 SECTION 5.07. Charges and Expenses. . . . . . . . . . . . . . . 17 ARTICLE VI Amendment and Termination SECTION 6.01. Amendment . . . . . . . . . . . . . . . . . . . . 17 SECTION 6.02. Termination . . . . . . . . . . . . . . . . . . . 18 ARTICLE VII Miscellaneous SECTION 7.01. Counterparts. . . . . . . . . . . . . . . . . . . 19 SECTION 7.02. Record Holders of Receipts are Parties; Exclusive Benefit of Parties. . . . . . . . . . . . . . . . . . 19 SECTION 7.03. Invalidity of Provisions. . . . . . . . . . . . . 19 SECTION 7.04. Notices . . . . . . . . . . . . . . . . . . . . . 19 SECTION 7.05. Depositary's Agents . . . . . . . . . . . . . . . 20 SECTION 7.06. Governing Law . . . . . . . . . . . . . . . . . . 20 SECTION 7.07. Inspection of Agreement . . . . . . . . . . . . . 20 SECTION 7.08. Headings. . . . . . . . . . . . . . . . . . . . . 20 SECTION 7.09. Board of Directors. . . . . . . . . . . . . . . . 20 TESTIMONIUM. . . . . . . . . . . . . . . . . . . . . . . . . . SIGNATURES . . . . . . . . . . . . . . . . . . . . . . . . . . EXHIBIT A: Form of Depositary Receipt . . . . . . . . . . . . DEPOSIT AGREEMENT dated as of March 1, 1994 among DIGITAL EQUIPMENT CORPORATION, a Massachusetts corporation (the "Company"), CITIBANK, N.A., a national banking association, as depositary (the "Depositary") and the holders from time to time of the Receipts described herein. WHEREAS, it is desired to provide, as hereinafter set forth in this Agreement, for the deposit of Series A 8 7/8% Cumulative Convertible Preferred Stock, $1.00 par value, $100 liquidation preference per share (the "Preferred Stock"), of the Company with the Depositary for the purposes set forth in this Agreement and for the issuance hereunder of Receipts (as defined in Article I) evidencing Depositary Shares (as defined in Article I) representing an interest in the Preferred Stock so deposited; and WHEREAS, the Receipts are to be substantially in the form of Exhibit A hereto, with appropriate insertions, modifications and omissions, as hereinafter provided in this Agreement; NOW, THEREFORE, the parties hereto agree as follows: ARTICLE I Definitions The following definitions shall for all purposes, unless otherwise indicated or the context otherwise requires, apply to the respective terms used in this Agreement: "Business Day" means each Monday, Tuesday, Wednesday, Thursday and Friday which is not a day on which banking institutions in the State of New York or the Commonwealth of Massachusetts are authorized or obligated by law or executive order to close. "Certificate of Designation" means the Company's Certificate of Vote of Directors Establishing a Series of a Class of Stock, setting forth the voting powers, designation, preferences and other rights of the Preferred Stock dated March 22, 1994, as filed with the Secretary of State of the Commonwealth of Massachusetts pursuant to M.G.L. Chapter 156B, Section 26. "Depositary Shares" shall mean Depositary Shares of the Company, each representing one-fourth of a share of Preferred Stock and evidenced by a Receipt. "Depositary's Agent" shall mean an agent appointed by the Depositary pursuant to Section 7.05. "Depositary's Office" shall mean the office of the Depositary in the Borough of Manhattan, New York, New York, at which at any particular time its depositary receipt business shall be administered. "Receipt" shall mean one of the depositary receipts issued hereunder, whether in definitive or temporary form. "Record Holder" as applied to a Receipt shall mean the person in whose name a Receipt is registered on the books of the Depositary maintained for such purpose. "Registrar" shall mean any bank or trust company that shall be appointed to register ownership and transfers of Receipts as herein provided. ARTICLE II Form of Receipts, Deposit of Preferred Stock, Execution and Delivery, Transfer, Surrender and Redemption of Receipts SECTION 2.01. Form and Transfer of Receipts. Definitive Receipts shall be engraved or printed or lithographed on steel-engraved borders and shall be substantially in the form set forth in Exhibit A hereto, with appropriate insertions, modifications and omissions, as hereinafter provided. Pending the preparation of definitive Receipts, the Depositary, upon the written order of the Company or any Record Holder of Preferred Stock, as the case may be, delivered for deposit in compliance with Section 2.02, shall execute and deliver temporary Receipts which are printed, lithographed, typewritten, mimeographed or otherwise substantially of the tenor of the definitive Receipts in lieu of which they are issued and with such appropriate insertions, omissions, substitutions and other variations as the persons executing such Receipts may determine, as evidenced by their execution of such Receipts. If temporary Receipts are issued, the Company and the Depositary will cause definitive Receipts to be prepared without unreasonable delay. After the preparation of definitive Receipts, the temporary Receipts shall be exchangeable for definitive Receipts upon surrender of the temporary Receipts at an office described in the second last paragraph of Section 2.02, without charge to the Record Holder. Upon surrender for cancellation of any one or more temporary Receipts, the Depositary shall execute and deliver in exchange therefor definitive Receipts representing the same number of Depositary Shares as represented by the surrendered temporary Receipt or Receipts. Such exchange shall be made at the Company's expense and without any charge to the Record Holder thereof. Until so exchanged, the temporary Receipts shall in all respects be entitled to the same benefits under this Agreement, and with respect to the Preferred Stock deposited hereunder, as definitive Receipts. Receipts shall be executed by the Company and authenticated by the Depositary by the manual signature of a duly authorized officer of the Depositary; provided, however, that such signature may be a facsimile if a Registrar for the Receipts (other than the Depositary) shall have been appointed and such Receipts are countersigned by manual signature of a duly authorized officer of the Registrar. No Receipt shall be entitled to any benefits under this Agreement or be valid or obligatory for any purpose unless it shall have been executed manually by a duly authorized officer of the Depositary or, if a Registrar for the Receipts (other than the Depositary) shall have been appointed, by manual or facsimile signature of a duly authorized officer of the Depositary and countersigned manually by a duly authorized officer of such Registrar. The Depositary or, if a Registrar (other than the Depositary) shall have been appointed, the Registrar shall record on its books each Receipt so signed and delivered as hereinafter provided. Except as the Depositary may otherwise determine, Receipts shall be in denominations of any number of whole Depositary Shares. All Receipts shall be dated the date of their issuance. Receipts may be endorsed with or have incorporated in the text thereof such legends or recitals or changes not inconsistent with the provisions of this Agreement as may be required by the Depositary or required to comply with any applicable law or any regulation thereunder or with the rules and regulations of any securities exchange upon which the Preferred Stock, the Depositary Shares or the Receipts may be listed or to conform with any usage with respect thereto, or to indicate any special limitations or restrictions to which any particular Receipts are subject. Title to Depositary Shares evidenced by a Receipt that is properly endorsed, or accompanied by a properly executed instrument of transfer, shall be transferable by delivery with the same effect as in the case of a negotiable instrument; provided, however, that until transfer of a Receipt shall be registered on the books of the Depositary as provided in Section 2.04, the Depositary may, notwithstanding any notice to the contrary, treat the Record Holder thereof at such time as the absolute owner thereof for the purpose of determining the person entitled to distributions of dividends or other distributions or to any notice provided for in this Agreement and for all other purposes. SECTION 2.02. Deposit of Preferred Stock; Execution and Delivery of Receipts in Respect Thereof. Subject to the terms and conditions of this Agreement, the Company or any holder of Preferred Stock may from time to time deposit shares of Preferred Stock under this Agreement by delivery to the Depositary of (i) a certificate or certificates for the shares of Preferred Stock to be deposited, properly endorsed or accompanied, if required by the Depositary, by a duly executed instrument of transfer or endorsement, in form satisfactory to the Depositary, together with (ii) all certifications as may be required by the Depositary in accordance with the provisions of this Agreement, and (iii) a written order of the Company or such Record Holder, as the case may be, directing the Depositary to execute and deliver to, or upon the written order of, the person or persons stated in such order a Receipt or Receipts for the number of Depositary Shares representing such deposited shares of Preferred Stock. Upon receipt by the Depositary of a certificate or certificates for the shares of Preferred Stock deposited in accordance with the provisions of this Section 2.02, together with the other documents required, and upon registration of such shares of Preferred Stock on the books of the Company in the name of the Depositary or its nominee, the Depositary, subject to the terms and conditions of this Agreement, shall execute and deliver, to or upon the order of the person or persons named in the written order delivered to the Depositary referred to in the first paragraph of this Section 2.02, a Receipt or Receipts for the number of whole Depositary Shares representing such shares of Preferred Stock and registered in such name or names as may be requested by such person or persons. Certificates in the name of the Depositary for the deposited shares of Preferred Stock shall be held by the Depositary at the Depositary's Office or at such other place or places as the Depositary shall determine. The Depositary shall execute and deliver such Receipt or Receipts at the Depositary's Office or such other offices, if any, as the Depositary may designate. Delivery at other offices shall be at the risk and expense of the person requesting such delivery. In each case, delivery will be made only upon payment by such person to the Depositary of all taxes and other governmental charges and any fees payable in connection with such deposit and the transfer of the deposited Preferred Stock. The Company shall deliver to the Depositary from time to time such quantities of receipts as the Depositary may request to enable the Depositary to perform its obligations under this Agreement. SECTION 2.03. Redemption of Preferred Stock. Whenever the Company shall elect to redeem shares of Preferred Stock deposited hereunder in accordance with the provisions of the Certificate of Designation, the Company shall (unless otherwise agreed in writing with the Depositary) give the Depositary not less than 35 nor more than 60 days notice of (a) the date of such proposed redemption of the Preferred Stock, which notice shall be accompanied by a certificate from the Company stating that such redemption of the Preferred Stock is in accordance with the provisions of the Certificate of Designation and (b) the number of such shares of Preferred Stock held by the Depositary to be redeemed as hereinafter provided. On the date of such redemption, provided that the Company shall then have paid in full to the Depositary the redemption price of any deposited shares of Preferred Stock to be redeemed, plus any accrued and unpaid dividends thereon in accordance with the Certificate of Designation, the Depositary shall redeem the number of Depositary Shares representing such shares of Preferred Stock. The Depositary shall mail notice of such redemption of the Preferred Stock and the proposed simultaneous redemption of the number of Depositary Shares representing the deposited shares of Preferred Stock to be redeemed, first-class postage prepaid, as promptly as practicable upon receipt of such notice from the Company and not less than 30 and not more than 60 days prior to the date fixed for redemption of such Preferred Stock and Depositary Shares (the "Redemption Date"), to the Record Holders of the Receipts evidencing the Depositary Shares to be so redeemed, at the addresses of such Record Holders as they appear on the records of the Depositary; but neither failure to mail any such notice to one or more such Record Holders nor any defect in any notice to one or more such Record Holders shall affect the sufficiency of the proceedings for redemption as to other Record Holders. Each such notice shall state: (i) the Redemption Date; (ii) the number of Depositary Shares to be redeemed and, if less than all the Depositary Shares held by any such Record Holder are to be redeemed, the number of such Depositary Shares held by such Record Holder to be so redeemed; (iii) the redemption price; (iv) the place or places where Receipts evidencing Depositary Shares are to be surrendered for payment of the redemption price; and (v) that dividends in respect of the shares of Preferred Stock represented by the Depositary Shares to be redeemed will cease to accumulate on such Redemption Date. In case less than all the outstanding Depositary Shares are to be redeemed, the Depositary Shares to be so redeemed shall be selected by lot or pro rata as may be determined by the Depositary to be equitable. Notice having been mailed by the Depositary as aforesaid, from and after the Redemption Date (unless the Company shall have failed to redeem the deposited shares of Preferred Stock to be redeemed by it as set forth in the Company's notice provided for in the preceding paragraph) all dividends in respect of the deposited shares of Preferred Stock so called for redemption shall cease to accumulate, the Depositary Shares being redeemed from such proceeds shall be deemed no longer to be outstanding, all rights of the Record Holders of Receipts evidencing such Depositary Shares (except the right to receive the redemption price) shall, to the extent of such Depositary Shares cease and terminate and, upon surrender in accordance with such notice of the Receipts evidencing any such Depositary Shares (properly endorsed or assigned for transfer, if the Depositary shall so require), such Depositary Shares shall be redeemed by the Depositary at a redemption price per Depositary Share equal to one-fourth of the redemption price per share paid in respect of the redeemed deposited shares of Preferred Stock plus all money and other property, if any, represented by such Depositary Shares, including all amounts paid by the Company in respect of dividends which on the Redemption Date have accumulated on the shares of Preferred Stock to be so redeemed and have not theretofore been paid. If less than all the Depositary Shares evidenced by a single Receipt are called for redemption, the Depositary will deliver to the Record Holder of such Receipt upon its surrender to the Depositary a new Receipt evidencing the Depositary Shares evidenced by such prior Receipt and not called for redemption, together with the redemption payment. SECTION 2.04. Registration of Transfer of Receipts. Subject to the terms and conditions of this Agreement, the Depositary shall register on its books from time to time transfers of Receipts upon any surrender thereof by the Record Holder in person or by duly authorized attorney, properly endorsed or accompanied by a properly executed instrument of transfer or endorsement together with evidence of the payment of any transfer taxes as may be required by law. Thereupon the Depositary shall execute a new Receipt or Receipts evidencing the same aggregate number of Depositary Shares as those evidenced by the Receipt or Receipts surrendered and deliver such new Receipt or Receipts to or upon the order of the person entitled thereto. SECTION 2.05. Split-ups and Combinations of Receipts; Surrender of Receipts and Withdrawal of Preferred Stock. Upon surrender of a Receipt or Receipts at the Depositary's Office or at such other offices as it may designate for the purpose of effecting a split-up or combination of such Receipt or Receipts, and subject to the terms and conditions of this Agreement, the Depositary shall execute and deliver a new Receipt or Receipts in the authorized denomination or denominations requested, evidencing the aggregate number of Depositary Shares evidenced by the Receipt or Receipts surrendered. Any Record Holder of a Receipt or Receipts representing any whole number of deposited shares of Preferred Stock may withdraw such shares of Preferred Stock and all money and other property, if any, represented thereby by surrendering such Receipt or Receipts at the Depositary's Office or at such other offices as the Depositary may designate for such withdrawals. Thereafter, without unreasonable delay, the Depositary shall deliver to such Record Holder, or to the person or persons designated by such Record Holder as hereinafter provided, the whole number of shares of Preferred Stock and all money and other property, if any, represented by the Receipt or Receipts so surrendered for withdrawal, but holders of such shares of Preferred Stock will not thereafter be entitled to deposit such shares of Preferred Stock hereunder or to receive Depositary Shares therefor. If a Receipt delivered by the Record Holder to the Depositary in connection with such withdrawal shall evidence a number of Depositary Shares in excess of the number of deposited Depositary Shares representing the number of shares of Preferred Stock to be so withdrawn, the Depositary shall at the same time, in addition to such number of shares of Preferred Stock and such money and other property, if any, to be so withdrawn, deliver to such Record Holder, or (subject to Section 2.02) upon his order, a new Receipt evidencing such excess number of Depositary Shares. Delivery of the shares of Preferred Stock and money and other property being withdrawn may be made by the delivery of such certificates, documents of title and other instruments as the Depositary may deem appropriate. If the shares of Preferred Stock and the money and other property being withdrawn are to be delivered to a person or persons other than the Record Holder of the Receipt or Receipts being surrendered for withdrawal of the Preferred Stock, such Record Holder shall execute and deliver to the Depositary a written order so directing the Depositary and the Depositary may require that the Receipt or Receipts surrendered by such Record Holder for withdrawal of such shares of Preferred Stock be appropriately endorsed or accompanied by a properly executed instrument of transfer or endorsement. Delivery of the shares of Preferred Stock and the money and other property, if any, represented by Receipts surrendered for withdrawal shall be made by the Depositary at the Depositary's Office, except that, at the request, risk and expense of the Record Holder surrendering such Receipt or Receipts and for the account of the Record Holder thereof, such delivery may be made at such other place as may be designated by such Record Holder. SECTION 2.06. Limitations on Execution and Delivery, Transfer, Surrender and Exchange of Receipts. As a condition precedent to the execution and delivery, registration of transfer, split-up, combination, surrender or exchange of any Receipt, the Depositary, any of the Depositary's Agents or the Company may require payment to it of a sum sufficient for the payment (or, in the event that the Depositary or the Company shall have made such payment, the reimbursement to it) of any charges or expenses payable by the Record Holder of a Receipt pursuant to Section 5.07 (including any tax or charge with respect to the Preferred Stock being deposited or withdrawn; provided, that the Company shall pay any documentary, stamp or similar issue or transfer tax due on the issue of Common Stock upon conversion; and provided further that the Record Holder of such Receipt shall pay the amount of any tax which is due if the shares are to be issued in a name other than the name of such Record Holder), may require the production of evidence satisfactory to it as to the identity and genuineness of any signature and may also require compliance with such regulations, if any, as the Depositary or the Company may establish consistent with the provisions of this Agreement. The deposit of shares of Preferred Stock may be refused, the delivery of Receipts against Preferred Stock may be suspended, the registration of transfer of Receipts may be refused and the registration of transfer, surrender or exchange of outstanding Receipts may be suspended (i) during any period when the register of holders of Preferred Stock of the Company is closed or (ii) if any such action is deemed necessary or advisable by the Depositary, any agent of the Depositary or the Company at any time or from time to time because of any requirement of law or of any government or governmental body or commission or under any provision of this Agreement. SECTION 2.07. Lost Receipts, etc. In case any Receipt shall be mutilated, destroyed, lost or stolen, the Depositary in its discretion may execute and deliver a Receipt of like form and tenor in exchange and substitution for such mutilated Receipt, or in lieu of and in substitution for such destroyed, lost or stolen Receipt, upon (i) the filing by the Record Holder thereof with the Depositary of evidence satisfactory to the Depositary of such destruction or loss or theft of such Receipt, of the authenticity thereof and of his or her ownership thereof, and (ii) the furnishing of the Depositary with reasonable indemnification satisfactory to it and payment of any expenses (including fees, charges and expenses of the Depositary) in connection with such execution and delivery. SECTION 2.08. Cancellation and Destruction of Surrendered Receipts. All Receipts surrendered to the Depositary or any Depositary's Agent shall be cancelled by the Depositary. Except as prohibited by applicable law or regulation, the Company is authorized to destroy all Receipts so cancelled. SECTION 2.09. Prohibition Against Preferred Stock, Depositary Shares or Receipt Lending. The Depositary shall not lend any Preferred Stock, Depositary Shares or Receipts at any time held hereunder. ARTICLE III Certain Obligations of Holders of Receipts and the Company SECTION 3.01. Filing Proofs, Certificates, and Other Information. Any Record Holder of a Receipt may be required from time to time to file such proof of residence, or other matters or other information, to execute such certificates and to make such representations and warranties as the Depositary or the Company may reasonably deem necessary or proper. The Depositary or the Company may withhold the delivery, or delay the registration of transfer, redemption or exchange, of any Receipt or the withdrawal of the shares of Preferred Stock represented by the Depositary Shares evidenced by any Receipt or the distribution of any dividend or other distribution or the sale of any rights or of the proceeds thereof until such proof or other information is filed or such certificates are executed or such representations and warranties are made. SECTION 3.02. Payment of Taxes or Other Governmental Charges. Record Holders of Receipts shall be obligated to make payments to the Depositary of certain charges and expenses, as provided in Sections 2.06 and 5.07. Registration of transfer of any Receipt or any withdrawal of shares of Preferred Stock and all money or other property, if any, represented by the Depositary Shares evidenced by such Receipt may be refused until any such payment due is made, and any dividends, interest payments or other distributions may be withheld or any part of or all the shares of Preferred Stock or other property represented by the Depositary Shares evidenced by such Receipt and not theretofore sold may be sold for the account of the Record Holder thereof (after attempting by reasonable means to notify such Record Holder prior to such sale), and such dividends, interest payments or other distributions or the proceeds of any such sale may be applied to any payment of such charges or expenses, the Record Holder of such Receipt remaining liable for any deficiency. SECTION 3.03. Representation and Warranty as to Preferred Stock. In the case of the initial deposit of the Preferred Stock and payment therefor, the Company and, in the case of subsequent deposits thereof, each person so depositing Preferred Stock under this Agreement, shall be deemed thereby to represent and warrant that the shares of Preferred Stock and each certificate therefor are validly issued, fully paid and nonassessable and that the person making such deposit is duly authorized to do so. Such representations and warranties shall survive the deposit of any shares of Preferred Stock and the issuance of Receipts. SECTION 3.04. Covenant as to Receipts. The Company will take any necessary action to ensure that the Receipts, when issued, will represent legal and valid interests in the Preferred Stock. Such covenant shall survive the deposit of the Preferred Stock and the issuance of Receipts. SECTION 3.05. Covenant as to Holidays. The Company agrees to deliver to the Depositary on the date of execution of this Agreement, and subsequently on December 1 of each year, a list of bank holidays in the Commonwealth of Massachusetts. ARTICLE IV The Deposited Securities; Notices SECTION 4.01. Cash Distributions. The Company hereby authorizes the Depositary to debit the Company's DDA checking account with the Depositary, if any, for the funds necessary to make a payment of any dividends, cash or any other distributions to be paid by the Depositary in connection with the Preferred Stock; provided, however, that the parties may elect to have the Company transfer the necessary funds to a specified Depositary account for any such payment. Whenever the Depositary shall receive any cash dividend or other cash distribution on deposited shares of Preferred Stock, the Depositary shall, subject to Sections 3.01 and 3.02, distribute to Record Holders of Receipts on the record date fixed pursuant to Section 4.04 such amounts of such dividend or distribution as are, as nearly as practicable, in proportion to the respective numbers of Depositary Shares evidenced by the Receipts held by such Record Holders; provided, however, that in case the Company or the Depositary shall be required to withhold and shall withhold from any cash dividend or other cash distribution in respect of the Preferred Stock an amount on account of taxes or as otherwise required by law or court process, the amount made available for distribution or distributed in respect of Depositary Shares shall be reduced accordingly. In the event that the calculation of any such cash dividend or other such cash distribution to be paid to any Record Holder on the aggregate number of Receipts held by such Record Holder results in an amount which is a fraction of a cent, the amount the Depositary shall distribute to such Record Holder shall be rounded to the next highest whole cent; and upon request of the Depositary, the Company shall pay the additional amount to the Depositary for distribution. SECTION 4.02. Distributions Other than Cash, Rights, Preferences or Privileges. Whenever the Depositary shall receive any distribution other than cash, rights, preferences or privileges upon deposited shares of Preferred Stock, the Depositary shall, subject to Sections 3.01 and 3.02, distribute to Record Holders of Receipts on the record date fixed pursuant to Section 4.04 such amounts of the securities or property received by it as are, as nearly as practicable, in proportion to the respective numbers of Depositary Shares evidenced by the Receipts held by such Record Holders, in any manner that the Depositary may deem equitable and practicable for accomplishing such distribution. If in the opinion of the Depositary such distribution cannot be made proportionately among such Record Holders, or if for any other reason (including any requirement that the Company or the Depositary withhold an amount on account of taxes or as otherwise required by law or court process) the Depositary deems, after consultation with the Company, such distribution not to be feasible, the Company shall adopt such method as it deems equitable and practicable for the purpose of effecting such distribution, including the sale (at public or private sale) of the securities or property thus received, or any part thereof, at such place or places and upon such terms as it may deem proper. The net proceeds of any such sale shall, subject to Sections 3.01 and 3.02, be distributed or made available for distribution, as the case may be, by the Depositary to Record Holders of Receipts as provided by Section 4.01 in the case of a distribution received in cash. The Depositary shall not make any distribution of such securities unless the Company shall have provided an opinion of counsel stating that such securities have been registered under the Securities Act of 1933, as amended (the Act ) or do not need to be registered. SECTION 4.03. Subscription Rights, Preferences or Privileges. If the Company shall at any time offer or cause to be offered to the persons in whose names the shares of Preferred Stock are recorded on the books of the Company any rights, preferences or privileges to subscribe for or to purchase any securities or any rights, preferences or privileges of any other nature, such rights, preferences or privileges shall in each such instance be made available by the Depositary to the Record Holders of Receipts in such manner as the Depositary may determine, either by the issuance to such Record Holders of warrants representing such rights, preferences or privileges or by such other method as may be approved by the Depositary in its discretion with the approval of the Company; provided, however, that (i) if at the time of issuance or offer of any such rights, preferences or privileges the Depositary determines that it is not lawful or (after consultation with the Company) not feasible to make such rights, preferences or privileges available to Record Holders of Receipts by the issuance of warrants or otherwise, or (ii) if and to the extent so instructed by Record Holders of Receipts who do not desire to exercise such rights, preferences or privileges, then the Depositary, in its discretion (with the approval of the Company, in any case where the Depositary has determined that it is not feasible to make such rights, preferences or privileges available), may, if applicable laws and the terms of such rights, preferences or privileges permit such transfer, sell such rights, preferences or privileges at public or private sale, at such place or places and upon such terms as it may deem proper. The net proceeds of any such sale shall, subject to Sections 3.01 and 3.02, be distributed by the Depositary to the Record Holders of Receipts entitled thereto as provided by Section 4.01 in the case of a distribution received in cash. The Company shall not make any distribution of any such rights, preferences or privileges unless the Company shall have provided an opinion of counsel stating that such rights, preferences or privileges have been registered under the Act or do not need to be registered. If registration under the Act of the securities to which any rights, preferences or privileges relate is required in order for Record Holders of Receipts to be offered or sold the securities to which such rights, preferences or privileges relate, the Company will file promptly a registration statement pursuant to the Act with respect to such rights, preferences or privileges and securities and use its best efforts and take all steps available to it to cause such registration statement to become effective sufficiently in advance of the expiration of such rights, preferences or privileges to enable such Record Holders to exercise such rights, preferences or privileges. In no event shall the Depositary make available to the Record Holders of Receipts any right, preference or privilege to subscribe for or to purchase any securities unless and until the Company delivers to the Depositary an opinion of counsel stating either that (i) such a registration statement shall have become effective, or (ii) the offering and sale of such securities to such Record Holders are exempt from registration under the provisions of the Act. If any other action under the laws of any jurisdiction or any governmental or administrative authorization, consent or permit is required in order for such rights, preferences or privileges to be made available to Record Holders of Receipts, the Company will use its best efforts to take such action or obtain such authorization, consent or permit sufficiently in advance of the expiration of such rights, preferences or privileges to enable such Record Holders to exercise such rights, preferences or privileges. SECTION 4.04. Notice of Dividends, etc.; Fixing of Record Date for Record Holders of Receipts. Whenever any cash dividend or other cash distribution shall become payable or any distribution other than cash shall be made, or if rights, preferences or privileges shall at any time be offered, with respect to the Preferred Stock, or whenever the Depositary shall receive notice of any meeting at which holders of shares of Preferred Stock are entitled to vote or of which holders of shares of Preferred Stock are entitled to notice, or whenever the Depositary and the Company shall decide it is appropriate, the Depositary shall in each such instance fix a record date (which shall be the same date as the record date fixed by the Company with respect to the Preferred Stock) for the determination of the Record Holders of Receipts who shall be entitled to receive such dividend, distribution, rights, preferences or privileges or the net proceeds of the sale thereof, or to give instructions for the exercise of voting rights at any such meeting, or who shall be entitled to notice of such meeting or for any other appropriate reasons. SECTION 4.05. Voting Rights. Upon receipt of notice of any meeting at which the holders of shares of Preferred Stock are entitled to vote, the Depositary shall, as soon as practicable thereafter, mail to the Record Holders of Receipts a notice which shall be provided by the Company and which shall contain (i) such information as is contained in such notice of meeting and (ii) a statement that the Record Holders of Receipts may, subject to any applicable restrictions, instruct the Depositary as to the exercise of the voting rights pertaining to the number of shares of Preferred Stock represented by their respective Depositary Shares (including an express indication that instructions may be given to the Depositary to give a discretionary proxy to a person designated by the Company) and (iii) a brief statement as to the manner in which such instructions may be given. Upon the written request of the Record Holders of Receipts on the relevant record date, the Depositary shall endeavor insofar as practicable to vote or cause to be voted, in accordance with the instructions set forth in such requests, the maximum whole number of shares of Preferred Stock represented by the Depositary Shares evidenced by all Receipts as to which any particular voting instructions are received. The Company hereby agrees to take all action which may be deemed necessary by the Depositary in order to enable the Depositary to vote such shares of Preferred Stock or cause such shares of Preferred Stock to be voted. In the absence of specific instructions from the Record Holder of a Receipt, the Depositary will abstain from voting (but, at its discretion, not from appearing at any meeting with respect to such shares of Preferred Stock unless directed to the contrary by the Record Holders of all the Receipts) to the extent of the number of shares of Preferred Stock represented by the Depositary Shares evidenced by such Receipt. SECTION 4.06. Changes Affecting Deposited Preferred Stock and Reclassifications, Recapitalizations, etc. Upon any change in par value or liquidation preference, split-up, combination or any other reclassification of the Preferred Stock, or upon any recapitalization, reorganization, merger, amalgamation or consolidation affecting the Company or to which it is a party, the Depositary may in its discretion with the approval of, and shall upon the instructions of, the Company, and (in either case) in such manner as the Depositary may deem equitable, (i) make such adjustments as are certified by the Company in (x) the fraction of an interest represented by one Depositary Share in one share ofPreferred Stock, and (y) the ratio of the redemption price per Depositary Share to the redemption price per share of Preferred Stock, in each case as may be necessary fully to reflect the effects of such changes in par value or liquidation preference, split-up, combination or other reclassification of the Preferred Stock, or of such recapitalization, reorganization, merger, amalgamation or consolidation, and (ii) treat any securities which shall be received by the Depositary in exchange for or upon conversion of or in respect of deposited shares of Preferred Stock as new deposited securities so received in exchange for or upon conversion or in respect of such shares of Preferred Stock. In any such case the Depositary may in its discretion, with the approval of the Company, execute and deliver additional Receipts, or may call for the surrender of all outstanding Receipts to be exchanged for new Receipts specifically describing such new deposited securities. Anything to the contrary herein notwithstanding, Record Holders of Receipts shall have the right from and after the effective date of any such change in par value or liquidation preference, split-up, combination or other reclassification of the Preferred Stock or any such recapitalization, reorganization, merger, amalgamation or consolidation to surrender such Receipts to the Depositary with instructions to convert, exchange or surrender the shares of Preferred Stock represented thereby only into or for, as the case may be, the kind and amount of shares of Preferred Stock and other securities and property and cash into which the Preferred Stock represented by such Receipts might have been converted or for which such Preferred Stock might have been exchanged or surrendered immediately prior to the effective date of such transaction. SECTION 4.07. Inspection of Reports. The Depositary shall make available for inspection by Record Holders of Receipts at the Depositary's Office during normal business hours, and at such other places as it may from time to time deem advisable, any reports and communications received from the Company which are received by the Depositary as theholder of Preferred Stock and are generally available to holders of Preferred Stock. SECTION 4.08. Lists of Receipt Holders. Promptly upon request from time to time by the Company, the Depositary shall furnish to it a list, as of a recent date, of the names, addresses and holdings of Depositary Shares of all persons in whose names Receipts are registered on the books of the Depositary. SECTION 4.09. Tax and Regulatory Compliance. The Depositary shall be responsible for (i) preparation and mailing of all applicable tax forms for all open and closed accounts and (ii) all applicable foreign and domestic tax withholding, including without limitation the mailing of W-9 forms to new Record Holders of Receipts without a certified taxpayer identification number, the processing of certified W-9 forms, the preparation and filing of state information returns and the provision of escheatment services. SECTION 4.10. Withholding. Notwithstanding any other provision of this Deposit Agreement, in the event that the Depositary determines that any distribution in property is subject to any tax which the Depositary is obligated to withhold, the Depositary may dispose of all or a portion of such property in such amounts and in such manner as the Depositary deems necessary and practicable to pay such taxes, by public or private sale, and the Depositary shall distribute the net proceeds of any such sale or the balance of any such property after deduction of such taxes to the Record Holders of Receipts entitled thereto in proportion to the number of Depositary Shares held by them respectively. ARTICLE V The Depositary, the Depositary's Agents, the Registrar and the Company SECTION 5.01. Maintenance of Offices, Agencies and Transfer Books by the Depositary; Registrar. Upon execution of this Agreement, the Depositary shall maintain at the Depositary's Office, facilities for the execution and delivery, registration and registration of transfer, surrender and exchange of Receipts, and at the offices of the Depositary's Agents, if any, facilities for the delivery, registration of transfer, surrender and exchange of Receipts, all in accordance with the provisions of this Agreement. The Depositary shall keep books at the Depositary's Office for the registration and registration of transfer of Receipts, which books at all reasonable times during normal business hours shall be open for inspection by the Record Holders of Receipts to the extent provided by applicable law; provided, however, that any such Record Holder requesting to exercise such right shall certify to the Depositary that such inspection shall be for a proper purpose reasonably related to such person's interest as an owner of Depositary Shares evidenced by Receipts. The Depositary may close such books, at any time or from time to time, when deemed expedient by it in connection with the performance of its duties hereunder. If the Receipts or the Depositary Shares evidenced thereby or the Preferred Stock represented by such Depositary Shares shall be listed on the New York Stock Exchange, the Depositary may, with the approval of the Company, appoint a Registrar for registration of such Receipts or Depositary Shares in accordance with any requirements of such Exchange. Such Registrar (which may be the Depositary if so permitted by the requirements of such Exchange) may be removed and a substituted registrar appointed by the Depositary upon the request or with the approval of the Company. If the Receipts, the Depositary Shares or the Preferred Stock shall be listed on one or more other stock exchanges, the Depositary will, at the request and expense of the Company, arrange such facilities for the delivery, registration, registration of transfer, surrender and exchange of the Receipts, the Depositary Shares or the Preferred Stock as may be required by law or applicable stock exchange regulation. SECTION 5.02. Prevention of or Delay in Performance by the Depositary, the Depositary's Agents, the Registrar or the Company. Neither the Depositary nor any Depositary's Agent nor any Registrar nor the Company shall incur any liability to any Record Holder of any Receipt if by reason of any provision of any present or future law, or regulation thereunder, of the United States of America or of any other governmental authority or, in the case of the Depositary, the Depositary's Agent or the Registrar, by reason of any provision, present or future, of the Company's Restated Articles of Organization, as amended (including the Certificate of Designation) or by reason of any act of God or war or other circumstance beyond the control of the relevant party, the Depositary, the Depositary's Agent, the Registrar or the Company shall be prevented or forbidden from, or subjected to any penalty on account of, doing or performing any act or thing which the terms of this Agreement provide shall be done or performed; nor shall the Depositary, any Depositary's Agent, any Registrar or the Company incur any liability to any Record Holder of a Receipt (i) by reason of any nonperformance or delay, caused as aforesaid, in the performance of any act or thing which the terms of this Deposit Agreement provide shall or may be done or performed or (ii) by reason of any exercise of, or failure to exercise, any discretion provided for in this Agreement except, in case of any such exercise or failure to exercise discretion not caused as aforesaid, if caused by the gross negligence or willful misconduct of the party charged with such exercise or failure to exercise. SECTION 5.03. Obligations of the Depositary, the Depositary's Agents, the Registrar and the Company. Neither the Depositary nor any Depositary's Agent nor any Registrar nor the Company assumes any obligation or shall be subject to any liability under this Agreement or any Receipt to Record Holders of Receipts other than for its gross negligence or willful misconduct. Neither the Depositary nor any Depositary's Agent nor any Registrar nor the Company shall be under any obligation under this Agreement to appear in, prosecute or defend any action, suit or other proceeding in respect of deposited shares of Preferred Stock, the Depositary Shares or the Receipts that in its opinion may involve it in expense or liability unless indemnity satisfactory to it against all expense and liability be furnished as often as may be required. Neither the Depositary nor any Depositary's Agent nor any Registrar nor the Company shall be liable for any action or any failure to act by it in reliance upon the advice of legal counsel or written advice of accountants, or information from any person presenting shares of Preferred Stock for deposit, any Record Holder of a Receipt or any other person believed by it in good faith to be competent to give such advice or information. The Depositary, any Depositary's Agent, any Registrar and the Company may each rely and shall each be protected in acting upon any written notice, request, direction or other document believed by it to be genuine and to have been signed or presented by the proper party or parties. In the event the Depositary shall receive conflicting claims, requests or instructions from any Record Holders of Receipts, on the one hand, and the Company, on the other hand, the Depositary shall notify the Company and thereafter, absent instructions to the contrary from the Company, shall be entitled to act on such claims, requests or instructions received from the Company, and shall be entitled to the full indemnification set forth in Section 5.06 hereof in connection with any action so taken. Notwithstanding the first paragraph of this Section 5.03, the Depositary shall not be responsible for any failure to carry out any instruction to vote any of the deposited shares of Preferred Stock or for the manner or effect of any such vote made, as long as any such action or non-action is in good faith or in accordance with this Agreement. The Depositary undertakes, and any Registrar shall be required to undertake, to perform such duties and only such duties as are specifically set forth in this Deposit Agreement, and no implied covenants or obligations shall be read into this Deposit Agreement against the Depositary or any Registrar. The Depositary and its affiliates, the Depositary's Agents and any Registrar may own, buy, sell, and deal in any class of securities of the Company and its affiliates and in Receipts or Depositary Shares or become pecuniarily interested in any transaction in which the Company or its affiliates are interested or contract with or lend money to or otherwise act as fully and as freely as if it were not the Depositary or the Depositary's Agent or Registrar hereunder. The Depositary may also act as transfer agent or registrar of any of the securities of the Company and its affiliates. It is intended that neither the Depositary nor any Depositary's Agent, acting as the Depositary Agent, shall be deemed to be an "issuer" of the Receipts under the Federal securities laws or applicable state securities laws, it being expressly understood and agreed that the Depositary and any Depositary's Agent are acting only in a ministerial capacity as Depositary for the Preferred Stock. Neither the Depositary (or its officers, directors, employees or agents) nor any Depositary's Agent makes any representation or has any responsibility as to the validity of the Registration Statement pursuant to which the Depositary Shares are registered under the Act, the Preferred Stock, the Depositary Shares or the Receipts (except for its counter- signatures thereon) or any instruments referred to therein or herein, or as to the correctness of any statement made therein or herein. The Depositary assumes no responsibility for the correctness of the description that appears in the Receipts, which can be taken as a statement of the Company summarizing certain provisions of this Agreement. Notwithstanding any other provision herein or in the Receipts, the Depositary makes no warranties or representations as to the validity, genuineness or sufficiency of any Preferred Stock at any time deposited with the Depositary hereunder or of the Depositary Shares, as to the validity or sufficiency of this Agreement, as to the value of the Depositary Shares or as to any right, title or interest of the Record Holders of Receipts in and to the Depositary Shares. The Depositary shall not be accountable for the use or application by the Company of the Depositary Shares or the Receipts or the proceeds thereof. The Depositary shall have no duty to make advances, or payments of any kind, from its own funds. Payments hereunder shall be made by the Depositary only after, and conditioned upon, receipt of available funds in accordance with Section 4.01 hereof. SECTION 5.04. Resignation and Removal of the Depositary; Appointment of Successor Depositary. The Depositary may at any time resign as Depositary hereunder by notice of its election to do so delivered to the Company, such resignation to take effect upon the appointment of a successor Depositary and its acceptance of such appointment as herein after provided. The Depositary may at any time be removed by the Company by notice of such removal delivered to the Depositary, such removal to take effect upon the appointment of a successor Depositary and its acceptance of such appointment as herein after provided. In case at any time the Depositary acting hereunder shall resign or be removed, the Company shall, within 60 days after the delivery of the notice of resignation or removal, as the case may be, appoint a successor Depositary, which shall be a bank or trust company having its principal office in the United States of America and having a combined capital and surplus of at least $50,000,000. If no successor Depositary shall have been so appointed and have accepted appointment within 60 days after delivery of such notice, the resigning or removed Depositary may petition any court of competent jurisdiction for the appointment of a successor Depositary. Every successor Depositary shall execute and deliver to its predecessor and to the Company an instrument in writing accepting its appointment hereunder, and thereupon such successor Depositary, without any further act or deed, shall become fully vested with all the rights, powers, duties and obligations of its predecessor and for all purposes shall be the Depositary under this Agreement, and such predecessor, upon payment of all sums due it and on the written request of the Company, shall execute and deliver an instrument transferring to such successor all rights and powers of such predecessor hereunder, shall duly assign, transfer and deliver all right, title and interest in the Preferred Stock and any moneys or property held hereunder to such successor, and shall deliver to such successor a list of the Record Holders of all outstanding Receipts. Any successor Depositary shall promptly mail notice of its appointment to the Record Holders of Receipts. Any corporation into or with which the Depositary may be merged, consolidated or converted shall be the successor of such Depositary without the execution or filing of any document or any further act, and notice thereof shall not be required hereunder. Such successor Depositary may authenticate the Receipts in the name of the predecessor Depositary or in the name of the successor Depositary. SECTION 5.05. Corporate Notices and Reports. The Company agrees that it shall deliver to the Depositary and the Depositary shall, in reliance upon the Company's written instructions, promptly after receipt thereof, forward to the Record Holders of Receipts all notices and reports and other communications from the Company (including without limitation financial statements) which are delivered to the Depositary, and which in the judgment of the Company are required by law, by the rules of any national securities exchange upon which the Preferred Stock, the Depositary Shares or the Receipts are listed or by the Company's Restated Articles of Organization, as amended (including the Certificate of Designation), to be furnished by the Company to holders of shares of Preferred Stock. Such transmission will be to the addresses for Record Holders in the Depositary's books and will be at the Company's expense and the Company will provide the Depositary with such number of copies as the Depositary may reasonably request. SECTION 5.06. Indemnification. The Company shall indemnify the Depositary (including its directors, officers, employees and agents), any Depositary's Agent and any Registrar against, and hold each of them harmless from, any loss, liability or expense (including fees and expenses of counsel and the costs and expenses of defending itself) that may arise out of (i) acts performed or omitted in connection with this Deposit Agreement and the Receipts (a) by the Depositary, any Registrar or any of their respective agents (including any Depositary's Agent), except for any liability arising out of gross negligence or bad faith on the respective parts of any such person or persons, or (b) by the Company or any of its agents, or (ii) the offer, sale or registration of the Receipts, the Depositary Shares or the Preferred Stock pursuant to the provisions hereof. This indemnification shall survive the termination of this Agreement and, as to the Depositary, the appointment of a successor thereto in any function. SECTION 5.07. Charges and Expenses. The Company shall pay all transfer and other taxes and governmental charges arising solely from the existence of the depositary arrangements. The Company shall pay all charges of the Depositary in connection with the initial deposit of the Preferred Stock and the initial issuance of the Depositary Shares, redemption of the Preferred Stock at the option of the Company and all withdrawals of shares of the Preferred Stock by owners of Depositary Shares. All other transfer and other taxes and governmental charges shall be at the expense of Record Holders of Depositary Shares. If, at the request of a Record Holder of Receipts, the Depositary incurs charges or expenses for which it is not otherwise liable hereunder, such Record Holder will be liable for such charges and expenses. The Company agrees to pay all other reasonable and customary charges and expenses of the Depositary and any Depositary's Agent hereunder and of any Registrar (including, in each case, fees and expenses of counsel) incident to the performance of their respective obligations hereunder, including any other reasonable and customary charges and expenses incurred by the Depositary under the second paragraph of Section 6.02. ARTICLE VI Amendment and Termination SECTION 6.01. Amendment. The form of the Receipts and any provisions of this Agreement may at any time and from time to time be amended by agreement between the Company and the Depositary in any respect which they may deem necessary or desirable; provided, however, that no such amendment (other than any change in the fees of any Depositary, Registrar or Depositary's Agent, which shall go into effect not sooner than three months after notice thereof to the Record Holders of the Receipts) that shall materially and adversely alter the rights of the Record holders of Receipts shall be effective unless such amendment shall have been approved by the Record Holders of at least a majority of the Depositary Shares then outstanding. Any amendment that shall impose any fees, taxes or charges (other than fees and charges provided for herein or in the Receipts), or that shall otherwise prejudice any substantial existing right of Record Holders of Receipts, shall not become effective as to outstanding Receipts until the expiration of 30 days after notice of such amendment shall have been given to the Record Holders of outstanding Receipts. Every Record Holder of an outstanding Receipt at the time any such amendment becomes effective shall be deemed, by continuing to hold such Receipt, to consent and agree to such amendment and to be bound by this Agreement as amended thereby. SECTION 6.02. Termination. This Agreement may be terminated by the Company or the Depositary only after (a) (i) all outstanding Depositary Shares shall have been redeemed pursuant to Section 2.03 or surrendered pursuant to Section 2.05 or (ii) there shall have been made a final distribution in respect of the Preferred Stock in connection with any liquidation, dissolution or winding up of the Company and such distribution shall have been distributed to the Record Holders of Depositary Shares pursuant to Section 4.01 or 4.02, as applicable and (b) reasonable notice has been given to any remaining Record Holders of Receipts. If any Receipts shall remain outstanding after the date of termination of this Agreement, the Depositary thereafter shall discontinue the transfer of Receipts, shall suspend the distribution of dividends to the Record Holders thereof and shall not give any further notices (other than notice of such termination) or perform any future acts under this Agreement, except that the Depositary shall continue to collect dividends and other distributions pertaining to Preferred Stock, shall sell rights, preferences or privileges as provided in this Agreement and shall continue to deliver the Preferred Stock and any money and other property represented by Receipts upon surrender thereof by the Record Holders thereof. After the expiration of two years from the date of termination, the Depositary shall remit to the Company the remaining Preferred Stock and any money and other property represented by Receipts that have not therefore been surrendered (including any interest earned on such amounts during such two year period), along with all registers and records relating thereto; provided, however, that the Depositary shall be entitled to deduct from such amounts (or, if such amounts are insufficient, shall be entitled to liquidate Preferred Stock) to reimburse itself for any amounts still due and owing to the Depositary. After such remittance, the Depositary shall be discharged from all obligations under this Deposit Agreement. Upon the termination of this Agreement, the Company shall be discharged from all obligations under this Deposit Agreement except for its obligations to the Depositary, any Depositary's Agent and any Registrar under Sections 5.06 and 5.07. ARTICLE VII Miscellaneous SECTION 7.01. Counterparts. This Agreement may be executed in any number of counterparts, and by each of the parties hereto on separate counterparts, each of which counterparts, when so executed and delivered, shall be deemed an original, but all such counterparts taken together shall constitute one and the same instrument. Delivery of an executed counterpart of a signature page to this Deposit Agreement by telecopier shall be effective as delivery of a manually executed counterpart of this Deposit Agreement. Copies of this Deposit Agreement shall be filed with the Depositary and the Depositary's Agents and shall be open to inspection during business hours at the Depositary's Office and the respective offices of the Depositary's Agents, if any, by any Record Holder of a Receipt. SECTION 7.02. Record Holders of Receipts are Parties; Exclusive Benefit of Parties. The Record Holders of Receipts from time to time shall be parties to this Agreement and shall be bound by all of the terms and conditions hereof and of the Receipts by acceptance of delivery thereof. This Agreement is for the exclusive benefit of the parties hereto, and their respective successors hereunder, and shall not be deemed to give any legal or equitable right, remedy or claim to any other person whatsoever. SECTION 7.03. Invalidity of Provisions. In case any one or more of the provisions contained in this Agreement or in the Receipts should be or become invalid, illegal or unenforceable in any respect, the validity, legality and enforceability of the remaining provisions contained herein or therein shall in no way be affected, prejudiced or disturbed thereby. SECTION 7.04. Notices. Any and all notices to be given to the Company hereunder or under the Receipts shall be in writing and shall be deemed to have been duly given if personally delivered or sent by mail or by telegram or telex confirmed by letter, addressed to the Company at 111 Powdermill Road, Maynard, MA 01754-1418, attention of Ilene B. Jacobs, Vice President and Treasurer (MS02-2/F23), with a copy to Gail S. Mann, Esq., Secretary and Clerk (MS02-3/F13), or at any other address of which the Company shall have notified the Depositary in writing. Any and all notices to be given to the Depositary hereunder (i) by the Company shall be in writing and shall be deemed to have been duly given if personally delivered or sent by mail or by telegram or telex confirmed by letter or by telephone, addressed to the Depositary, at 120 Wall Street, 13th Floor, New York, New York 10043, Attn: John Reasor; or (ii) by a Record Holder shall be in writing and shall be deemed to have been duly given if personally delivered or sent by mail or by telegram or telex confirmed by letter at (212) 480-1614, or by telecopy at (201) 262-2541, addressed to the Depositary, at 111 Wall Street, 5th Floor, New York, New York 10043, or at any other address of which the Depositary shall have notified the Company in writing. Any and all notices to be given to any Record Holder of a Receipt hereunder or under the Receipts shall be in writing and shall be deemed to have been duly given if personally delivered or sent by mail or by telegram or telex confirmed by letter, addressed to such Record Holder at the address of such Record Holder as it appears on the books of the Depositary, or if such Record Holder shall have filed with the Depositary a written request that notices intended for such Record Holder be mailed to some other address, at the address designated in such request. Delivery of a notice sent by mail or by telegram or telex shall be deemed to be effected at the time when a duly addressed letter containing the same (or a confirmation thereof in the case of a telegram or telex message) is deposited, postage prepaid, in a post office letter box. The Depositary or the Company may, however, act upon any telegram or telex message received by it from the other or from any Record Holder of a Receipt, notwithstanding that such telegram or telex message shall not subsequently be confirmed by letter or as aforesaid. SECTION 7.05. Depositary's Agents. The Depositary may from time to time appoint Depositary's Agents to act in any respect for the Depositary for the purposes of this Agreement and may at any time appoint additional Depositary's Agents and vary or terminate the appointment of such Depositary's Agents. The Depositary will notify the Company of any such action. The Company hereby also appoints the Depositary as Registrar and Transfer Agent in respect of the Receipts and the Depositary hereby accepts such appointments. SECTION 7.06. Governing Law. This Agreement and the Receipts and all rights hereunder and thereunder and provisions hereof and thereof shall be governed by, and construed in accordance with, the laws of the Commonwealth of Massachusetts; provided, however, that the rights and duties of the Depositary shall be governed by, and construed in accordance with, the laws of the State of New York. SECTION 7.07. Inspection of Agreement. Copies of this Agreement shall be filed with the Depositary and shall be open to inspection during business hours at the Depositary's office by any Record Holder of a Receipt. SECTION 7.08. Headings. The headings of articles and sections in this Agreement and in the form of the Receipt set forth in Exhibit A hereto have been inserted for convenience only and are not to be regarded as a part of this Agreement or the Receipts or have any bearing upon the meaning or interpretation of any provision contained herein or in the Receipts. SECTION 7.09. Board of Directors. All references to any actions to be taken by the Company's Board of Directors shall be deemed to include actions taken by either the Company's Board of Directors or an authorized committee thereof. IN WITNESS WHEREOF, the Company and the Depositary have duly executed this Agreement as of the day and year first above set forth, and all holders of Receipts shall become parties hereto by and upon acceptance by them of delivery of Receipt issued in accordance with the terms hereof. DIGITAL EQUIPMENT CORPORATION /s/ Ilene B. Jacobs By_____________________________________ Vice President and Treasurer Attested by /s/ Gail S. Mann _____________________________ [SEAL] Secretary and Clerk CITIBANK, N.A., as Depositary /s/ John Reasor By_____________________________________ Attested by _____________________________ [SEAL] -----END PRIVACY-ENHANCED MESSAGE-----