EXECUTION COPY
EXECUTION COPY
FIRST INDUSTRIAL REALTY TRUST, INC.,
EQUISERVE INC. AND EQUISERVE TRUST COMPANY, N.A.
AS DEPOSITARY,
AND
THE HOLDERS FROM TIME TO TIME OF
THE DEPOSITARY RECEIPTS DESCRIBED HEREIN
RELATING TO SERIES F FLEXIBLE CUMULATIVE REDEEMABLE PREFERRED STOCK
DEPOSIT AGREEMENT
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Dated as of May 27, 2004
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TABLE OF CONTENTS
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ARTICLE I
DEFINITIONS
ARTICLE II
FORM OF RECEIPTS, DEPOSIT OF STOCK, EXECUTION AND DELIVERY,
TRANSFER, SURRENDER AND REDEMPTION OF RECEIPTS
SECTION 2.1. Form and Transfer of Receipts...................................2
SECTION 2.2. Deposit of Stock; Execution and Delivery of Receipts in
Respect Thereof...............................................4
SECTION 2.3. Registration of Transfer of Receipts............................5
SECTION 2.4. Split-ups and Combinations of Receipts; Surrender of Receipts
and Withdrawal of Stock.......................................5
SECTION 2.5. Limitations on Execution and Delivery, Transfer, Surrender
and Exchange of Receipts......................................6
SECTION 2.6. Lost Receipts, etc..............................................7
SECTION 2.7. Cancellation and Destruction of Surrendered Receipts............7
SECTION 2.8. Redemption of Stock.............................................7
SECTION 2.9. Stock Constituting Excess Stock.................................9
ARTICLE III
CERTAIN OBLIGATIONS OF HOLDERS OF RECEIPTS AND THE COMPANY
SECTION 3.1. Filing Proofs, Certificates and Other Information...............9
SECTION 3.2. Payment of Taxes or Other Governmental Charges..................9
SECTION 3.3. Warranty as to Stock...........................................10
ARTICLE IV
THE DEPOSITED SECURITIES; NOTICES
SECTION 4.1. Cash Distributions.............................................10
SECTION 4.2. Distributions Other than Cash, Rights, Preferences or
Privileges...................................................10
SECTION 4.3. Subscription Rights, Preferences or Privileges.................11
SECTION 4.4. Notice of Dividends, etc.; Fixing Record Date for Holders
of Receipts..................................................12
SECTION 4.5. Voting Rights..................................................12
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SECTION 4.6. Changes Affecting Deposited Securities and Reclassifications,
Recapitalizations, etc.......................................13
SECTION 4.7. Delivery of Reports............................................13
SECTION 4.8. List of Receipt Holders........................................13
ARTICLE V
THE DEPOSITARY, THE DEPOSITARY'S
AGENTS, THE REGISTRAR AND THE COMPANY
SECTION 5.1. Maintenance of Offices, Agencies and Transfer Books by the
Depositary; Registrar........................................14
SECTION 5.2. Prevention of or Delay in Performance by the Depositary, the
Depositary's Agents, the Registrar or the Company ...........15
SECTION 5.3. Obligation of the Depositary, the Depositary's Agents, the
Registrar and the Company....................................15
SECTION 5.4. Resignation and Removal of the Depositary; Appointment of
Successor Depositary.........................................17
SECTION 5.5. Corporate Notices and Reports..................................18
SECTION 5.6. Indemnification by the Company.................................18
SECTION 5.7. Charges and Expenses...........................................18
SECTION 5.8. Tax Compliance.................................................18
ARTICLE VI
AMENDMENT AND TERMINATION
SECTION 6.1. Amendment......................................................19
SECTION 6.2. Termination....................................................19
ARTICLE VII
MISCELLANEOUS
SECTION 7.1. Counterparts...................................................20
SECTION 7.2. Exclusive Benefit of Parties...................................20
SECTION 7.3. Invalidity of Provisions.......................................20
SECTION 7.4. Notices........................................................20
SECTION 7.5. Appointment of Registrar.......................................21
SECTION 7.6. Holders of Receipts Are Parties................................21
SECTION 7.7. Governing Law..................................................21
SECTION 7.8. Inspection of Deposit Agreement................................21
SECTION 7.9. Headings.......................................................22
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DEPOSIT AGREEMENT, dated as of May 27, 2004, among FIRST INDUSTRIAL REALTY
TRUST, INC., a Maryland corporation (the "Company"), EquiServe Trust Company,
N.A., a national banking association and EquiServe, Inc., a Delaware
corporation, (collectively EquiServe Trust Company, N.A. and EquiServe, Inc.
shall be referenced herein as "Depositary" or individually as the "Trust
Company" and "EQI", respectively), and the holders from time to time of the
Receipts described herein.
WHEREAS, it is desired to provide, as hereinafter set forth in this Deposit
Agreement, for the deposit of shares of Series F Flexible Cumulative Redeemable
Preferred Stock of the Company with the Depositary for the purposes set forth in
this Deposit Agreement and for the issuance hereunder of Receipts evidencing
Depositary Shares in respect of the Stock so deposited; and
WHEREAS, the Receipts are to be substantially in the form of Exhibit A
annexed hereto, with appropriate insertions, modifications and omissions, as
hereinafter provided in this Deposit Agreement;
NOW, THEREFORE, in consideration of the promises contained herein, the
receipt and sufficiency of which is hereby acknowledged, the parties hereto
hereby agree as follows:
ARTICLE I
DEFINITIONS
The following definitions shall, for all purposes, unless otherwise
indicated, apply to the respective terms used in this Deposit Agreement:
"Articles Supplementary" shall mean the Articles Supplementary filed with
the Secretary of State of the State of Maryland establishing the Stock as a
series of preferred stock of the Company.
"Deposit Agreement" shall mean this Deposit Agreement, as amended or
supplemented from time to time.
"Depositary" shall mean EquiServe Inc. and its fully owned subsidiary,
EquiServe Trust Company, N.A. and any successor as Depositary hereunder.
"Depositary Shares" shall mean Depositary Shares, each representing 1/100
of a share of Stock and evidenced by a Receipt.
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"Depositary's Agent" shall mean one or more agents appointed by the
Depositary pursuant to Section 5.1 hereof and shall include the Registrar if
such Registrar is not the Depositary.
"Depositary's Office" shall mean any office of the Depositary at which at
any particular time its depositary receipt business shall be administered.
"Excess Stock" shall mean Excess Stock as defined in Section 7.4 of the
Company's Amended and Restated Articles of Incorporation.
"Receipt" shall mean one of the Depositary Receipts, substantially in the
form set forth as Exhibit A hereto, issued hereunder, whether in definitive or
temporary form and evidencing the number of Depositary Shares held of record by
the record holder of such Depositary Shares. If the context so requires, the
term "Receipt" shall be deemed to include the DTC Receipt (as defined in Section
2.1 hereof).
"record holder" or "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 the Depositary or such other bank or trust company
which shall be appointed to register ownership and transfers of Receipts as
herein provided.-
"Securities Act" shall mean the Securities Act of 1933, as amended.
"Stock" shall mean shares of the Company's Series F Flexible Cumulative
Redeemable Preferred Stock, $.0l par value per share.
ARTICLE II
FORM OF RECEIPTS, DEPOSIT OF STOCK, EXECUTION AND DELIVERY,
TRANSFER, SURRENDER AND REDEMPTION OF RECEIPTS
SECTION 2.1. Form and Transfer of Receipts. The Company and the Depositary
shall make application to The Depository Trust Company ("DTC") for acceptance of
all or a portion of the Receipts for its book-entry settlement system. The
Company hereby appoints the Depositary acting through any authorized officer
thereof as its attorney-in-fact, with full power to delegate, for purposes of
executing any agreements, certifications or other instruments or documents
necessary or desirable in order to effect the acceptance of such Receipts for
DTC eligibility. So long as the Receipts are eligible for book-entry settlement
with DTC, unless otherwise required by law, all Depositary Shares shall be
represented by a single receipt (the "DTC Receipt"), which shall be deposited
with DTC (or its designee) evidencing all such Depositary Shares and registered
in the name of the nominee of DTC (initially expected to be Cede & Co.).
EquiServe Trust Company, N.A. or such other entity as is agreed to by DTC may
hold the DTC
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Receipt as custodian for DTC. Ownership of beneficial interests in the DTC
Receipt shall be shown on, and the transfer of such ownership shall be effected
through, records maintained by (i) DTC or its nominee for such DTC Receipt or
(ii) institutions that have accounts with DTC.
If DTC subsequently ceases to make its book-entry settlement system
available for the Receipts, the Company may instruct the Depositary regarding
making other arrangements for book-entry settlement. In the event that the
Receipts are not eligible for, or it is no longer desirable to have the Receipts
available in, book-entry form, the Depositary shall provide written instructions
to DTC to deliver to the Depositary for cancellation the DTC Receipt, and the
Company shall instruct the Depositary to deliver to the beneficial owners of the
Depositary Shares previously evidenced by the DTC definitive Receipts in
physical form evidencing such Depositary Shares. Such definitive receipts shall
be in substantially the form annexed hereto as Annex A, with appropriate
insertions, modifications and omissions, as hereafter provided.
The beneficial owners of Depositary Shares shall, except as stated above
with respect to Depositary Shares in book-entry form represented by the DTC
Receipt, be entitled to receive Receipts in physical, certificated form as
herein provided.
The definitive Receipts shall be engraved or printed or lithographed on
steel-engraved borders, with appropriate insertions, modifications and
omissions, as hereinafter provided, if and to the extent required by any
securities exchange on which the Receipts are listed. The DTC Receipt shall bear
such legend or legends as may be required by DTC in order for it to accept the
Depository Shares for its book-entry settlement system. Pending the preparation
of definitive Receipts or if definitive Receipts are not required by any
securities exchange on which the Receipts are listed, the Depositary, upon the
written order of the Company, delivered in compliance with Section 2.2 hereof,
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 the
Depositary's Office or at such other place or places as the Depositary shall
determine, without charge to the holder. Upon surrender for cancellation of any
one or more temporary Receipts, the Depositary shall execute and deliver in
exchange therefor definitive Receipts representing the same number of Depositary
Shares as represented by the surrendered temporary Receipt or Receipts. Such
exchange shall be made at the Company's expense and without any charge to the
holder therefor. Until so exchanged, the temporary Receipts shall in all
respects be entitled to the same benefits under this Deposit Agreement, and with
respect to the Stock, as definitive Receipts.
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Receipts shall be executed by the Depositary by the manual and/or facsimile
signature of a duly authorized officer of the Depositary. No Receipt shall be
entitled to any benefits under this Deposit Agreement or be valid or obligatory
for any purpose unless it shall have been executed in accordance with the
foregoing sentence. The Depositary shall record on its books each Receipt so
signed and delivered as hereinafter provided.
Receipts shall be in denominations of any number of whole Depositary
Shares. 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 Deposit Agreement.
Receipts may be endorsed with or have incorporated in the text thereof such
legends or recitals or changes not inconsistent with the provisions of this
Deposit Agreement as may be required by the Company or required to comply with
any applicable law or any regulation thereunder or with the rules and
regulations of any securities exchange upon which the Stock, the Depositary
Shares or the Receipts may be listed or to conform with any usage with respect
thereto, or to indicate any special limitations or restrictions to which any
particular Receipts are subject, all as directed by the Company.
Title to Depositary Shares evidenced by a Receipt which 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 2.3, 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 Deposit Agreement and for
all other purposes.
SECTION 2.2. Deposit of Stock; Execution and Delivery of Receipts in
Respect Thereof. Subject to the terms and conditions of this Deposit Agreement,
the Company may from time to time deposit shares of Stock under this Deposit
Agreement by delivery to the Depositary of a certificate or certificates for the
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 (i) all such certifications as may
be required by the Depositary in accordance with the provisions of this Deposit
Agreement, including the resolutions of the Board of Directors of the Company,
as certified by the Secretary or any Assistant Secretary of the Company on the
date thereof as being as being complete, accurate and in effect, relating to
issuance and sale of the Preferred Stock, (ii) a letter of counsel to the
Company authorizing reliance on such counsel's opinions delivered to the
underwriters named therein relating to (A) the existence and good standing of
the Company, (B) the due authorization of the Depositary Shares and the status
of the Depositary Shares as validly issued, fully paid and non-assessable, and
(C) the effectiveness of any registration statement under the Securities Act
relat-
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ing to the Depositary Shares, and (iii) a written letter of instruction of the
Company or such holder, as the case may be, directing the Depositary to execute
and deliver to, or upon the written order of, the person or persons stated in
such order a Receipt or Receipts for the number of Depositary Shares
representing such deposited Stock.
Deposited Stock shall be held by the Depositary at the Depositary's Office
or at such other place or places as the Depositary shall determine.
Upon receipt by the Depositary of a certificate or certificates for Stock
deposited in accordance with the provisions of this Section, together with the
other documents required as above specified, and upon recordation of the Stock
on the books of the Company in the name of the Depositary or its nominee, the
Depositary, subject to the terms and conditions of this Deposit Agreement, shall
execute and deliver, to or upon the order of the person or persons named in the
written order delivered to the Depositary referred to in the first paragraph of
this Section 2.2, a Receipt or Receipts for the whole number of Depositary
Shares representing, in the aggregate, the Stock so deposited and registered in
such name or names as may be requested by such person or persons. The Depositary
shall execute and deliver such Receipt or Receipts at the Depositary's Office or
such other offices, if any, as the Depositary may designate. Delivery at other
offices shall be at the risk and expense of the person requesting such delivery.
SECTION 2.3. Registration of Transfer of Receipts. Subject to the terms and
conditions of applicable law and of this Deposit Agreement, the Depositary shall
register on its books from time to time transfers of Receipts upon any surrender
thereof by the holder in person or by a duly authorized attorney, agent or
representative, properly endorsed or accompanied by a properly executed
instrument of transfer including a guarantee of the signature thereon by a
participant in a signature guarantee medallion program approved by the
Securities Transfer Association ("Signature Guarantee"). 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 2.4. Split-ups and Combinations of Receipts; Surrender of Receipts
and Withdrawal of Stock. Upon surrender of a Receipt or Receipts at the
Depositary's Office or at such other offices as it may designate for the purpose
of effecting a split-up or combination of such Receipt or Receipts, and subject
to the terms and conditions of this Deposit Agreement, the Depositary shall
execute and deliver a new Receipt or Receipts in the authorized denomination or
denominations requested, evidencing the aggregate number of Depositary Shares
evidenced by the Receipt or Receipts surrendered; provided, however, that the
Depositary shall not issue any Receipt evidencing a fractional Depositary Share.
Any holder of a Receipt or Receipts representing any number of whole shares
of Stock may (unless the related Depositary Shares have previously been called
for redemption) withdraw the Stock and all money and other property, if any,
represented thereby by surrender-
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ing such Receipt or Receipts at the Depositary's Office or at such other offices
as the Depositary may designate for such withdrawals and paying any unpaid
amount due the Depositary. If such holder's Depositary Shares are being held by
DTC or its nominee pursuant to Section 2.1 hereof, such holder shall request
withdrawal from the book-entry system of Receipts representing any number of
whole shares. Thereafter, without unreasonable delay, the Depositary shall
deliver to such holder or to the person or persons designated by such holder as
hereinafter provided the number of whole shares of Stock and all money and other
property, if any, represented by the Receipt or Receipts so surrendered for
withdrawal, but holders of such whole shares of Stock will not thereafter be
entitled to deposit such Stock hereunder or to receive Depositary Shares
therefor. If a Receipt delivered by the holder to the Depositary in connection
with such withdrawal shall evidence a number of Depositary Shares in excess of
the number of Depositary Shares representing the number of whole shares of Stock
to be so withdrawn, the Depositary shall at the same time, in addition to such
number of whole shares of Stock and such money and other property, if any, to be
so withdrawn, deliver to such holder, or upon his order, a new Receipt
evidencing such excess number of Depositary Shares; provided, however, that the
Depositary shall not issue any Receipt evidencing a fractional Depositary Share.
Delivery of the 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, which, if required by the
Depositary, shall be properly endorsed or accompanied by proper instruments of
transfer.
If the Stock and the money and other property being withdrawn are to be
delivered to a person or persons other than the record holder of the Receipt or
Receipts being surrendered for withdrawal of Stock, such holder shall execute
and deliver to the Depositary a written order so directing the Depositary and
the Depositary may require that the Receipt or Receipts surrendered by such
holder for withdrawal of such shares of Stock be properly endorsed in blank or
accompanied by a properly executed instrument of transfer in blank.
Delivery of the Stock and the money and other property, if any, represented
by Receipts surrendered for withdrawal shall be made by the Depositary at the
Depositary's Office, except that, at the request, risk and expense of the holder
surrendering such Receipt or Receipts and for the account of the holder thereof,
such delivery may be made at such other place as may be designated by such
holder.
SECTION 2.5. 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 holder of a Receipt pursuant to
Sections 3.2 and 5.7 hereof, may require the production of evidence satisfactory
to it as to the
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identity and genuineness of any signature including a Signature Guarantee, and
may also require compliance with such regulations, if any, as the Depositary or
the Company may establish consistent with the provisions of this Deposit
Agreement.
The deposit of Stock may be refused, the delivery of Receipts against Stock
may be suspended, the registration of transfer of Receipts may be refused and
the registration of transfer, surrender or exchange of outstanding Receipts may
be suspended (i) during any period when the register of stockholders of the
Company is closed, or (ii) if any such action is deemed necessary or advisable
by the Depositary, any of the Depositary's Agents or the Company at any time or
from time to time because of any requirement of law or of any government or
governmental body or commission or under any provision of this Deposit
Agreement.
SECTION 2.6. Lost Receipts, etc. In case any Receipt shall be mutilated,
destroyed, lost or stolen, the Depositary in its reasonable discretion may
execute and deliver a Receipt of like form and tenor in exchange and
substitution for such mutilated Receipt, or in lieu of and in substitution for
such destroyed, lost or stolen Receipt, upon (i) the filing by the holder
thereof with the Depositary of evidence reasonably 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, (ii) the furnishing of
the Depositary with reasonable indemnification and the provision of an open
penalty surety bond satisfactory to the Depositary and holding it and the
Company harmless, and (iii) the payment of any reasonable expense (including
reasonable fees, charges and expenses of the Depositary) in connection with such
execution and delivery.
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 2.7. Redemption of Stock. Whenever the Company shall be permitted
and shall elect to redeem shares of Stock in accordance with the provisions of
the Company's Articles of Incorporation or Articles Supplementary, it shall
(unless otherwise agreed to in writing with the Depositary) give or cause to be
given to the Depositary not less than 45 days notice of the date of such
proposed redemption or exchange of Stock and of the number of such shares held
by the Depositary to be so redeemed and the applicable redemption price, as set
forth in the Articles Supplementary, which notice shall be accompanied by a
certificate from the Company stating that such redemption of Stock is in
accordance with the provisions of the Company's Articles of Incorporation or
Articles Supplementary. On the date of such redemption, provided that the
Company shall then have paid or caused to be paid in full to the Depositary the
redemption price of the Stock to be redeemed, plus an amount equal to any
accrued and unpaid dividends thereon to the date fixed for redemption, in
accordance with the provisions of the Articles Supplementary, the Depositary
shall redeem the number of Depositary Shares representing such Stock. The
Depositary shall mail notice of
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the Company's redemption of Stock and the proposed simultaneous redemption of
the number of Depositary Shares representing the Stock to be redeemed by
first-class mail, postage prepaid, not less than 30 and not more than 60 days
prior to the date fixed for redemption of such Stock and Depositary Shares (the
"Redemption Date") to the record holders of the Receipts evidencing the
Depositary Shares to be so redeemed, at the address of such holders as they
appear on the records of the Depositary; but neither failure to mail any such
notice of redemption of Depositary Shares to one or more such holders nor any
defect in any notice of redemption of Depositary Shares to one or more such
holders shall affect the sufficiency of the proceedings for redemption as to the
other holders. The Company will provide the Depositary with the information
necessary for the Depositary to prepare such notice and each such notice shall
state: (i) the Redemption Date; (ii) the number of Depositary Shares to be
redeemed and, if fewer than all the Depositary Shares held by any such holder
are to be redeemed, the number of such Depositary Shares held by such holder to
be so redeemed; (iii) the redemption price per Depositary Share; (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 Stock
represented by the Depositary Shares to be redeemed will cease to accrue on such
Redemption Date and will bear no interest. In case fewer than all the
outstanding Depositary Shares are to be redeemed, the Depositary Shares to be so
redeemed shall be determined pro rata or by lot in a manner determined by the
Board of Directors.
Notice having been mailed by the Depositary as aforesaid, from and after
the Redemption Date (unless the Company shall have failed to provide the funds
necessary to redeem the Stock evidenced by the Depositary Shares called for
redemption) (i) dividends on the shares of Stock so called for redemption shall
cease to accrue from and after such date, (ii) the Depositary Shares being
redeemed from such proceeds shall be deemed no longer to be outstanding, (iii)
all rights of the 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 (iv) upon surrender in accordance
with such redemption; notice of the Receipts evidencing any such Depositary
Shares called for redemption (properly endorsed or assigned for transfer, if the
Depositary or applicable law shall so require), such Depositary Shares shall be
redeemed by the Depositary at a redemption price per Depositary Share equal to
the same fraction of the redemption price per share paid with respect to the
shares of Stock as the fraction each Depositary Share represents of a share of
Stock plus the same fraction of 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 Stock to be so redeemed and have not theretofore been paid. Any funds
deposited by the Company with the Depositary for any Depositary Shares that the
holders thereof fail to redeem will, upon the written request of the Company, be
returned to the Company after a period of five years from the date such funds
are so deposited.
If fewer than all of the Depositary Shares evidenced by a Receipt are
called for redemption, the Depositary will deliver to the holder of such Receipt
upon its surrender to the
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Depositary, together with the redemption payment, a new Receipt evidencing the
Depositary Shares evidenced by such prior Receipt and not called for redemption;
provided, however, that the Depositary shall not issue any Receipt evidencing a
fractional Depositary Share.
SECTION 2.8. Stock Constituting Excess Stock. As provided in the Articles
of Incorporation or Articles Supplementary, upon the happening of certain
events, shares of Stock shall be deemed to automatically constitute Excess
Stock. In the event of such a conversion, the Receipt representing the deposited
Stock so converted shall no longer represent, to the extent of the shares so
converted, such deposited Stock. Promptly upon its knowledge of the conversion
of such deposited Stock into Excess Shares, the Company shall notify the
Depositary of such conversion, the number of shares of deposited Stock so
converted, and the identity of the holder of the Receipt so affected, whereupon
the Depositary shall promptly notify the holder of such Receipt as to the
foregoing information and the requirement for the holder to surrender such
Receipt to the Depositary for cancellation of the number of Depositary Shares
evidenced thereby equal to the deposited Stock constituting Excess Shares
represented thereby.
If fewer than all of the Depositary Shares evidenced by a Receipt are
required to be surrendered for cancellation, the Depositary will deliver to the
holder of such Receipt upon its surrender to the Depositary a new Receipt
evidencing the Depositary Shares evidenced by such prior Receipt and not
required to be surrendered for cancellation. Upon the conversion of the
deposited Stock and cancellation of the Depositary Shares represented thereby,
the Depositary will make appropriate adjustments in its records to reflect such
conversion and cancellation (including the reduction of any fractional share of
deposited Stock and the issuance of any Excess Shares).
ARTICLE III
CERTAIN OBLIGATIONS OF HOLDERS OF RECEIPTS AND THE COMPANY
SECTION 3.1. Filing Proofs, Certificates and Other Information. Any holder
of a Receipt may be required from time to time to file such proof of residence,
or other matters or other information, to execute such certificates and to make
such representations and warranties as the Depositary or the Company may
reasonably deem necessary or proper or otherwise reasonably request. Subject to
applicable law, the Depositary or the Company may withhold the delivery, or
delay the registration of transfer, redemption or exchange, of any Receipt or
the withdrawal or conversion of the 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 3.2. Payment of Taxes or Other Governmental Charges. Holders of
Receipts shall be obligated to make payments to the Depositary of certain
charges and ex-
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penses, as provided in Section 5.7 hereof. Subject to applicable law,
registration of transfer of any Receipt or any withdrawal of 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 Stock or other property represented by the Depositary Shares
evidenced by such Receipt and not theretofore sold may be sold for the account
of the holder thereof (after attempting by reasonable means to notify such
holder prior to such sale), and such dividends, interest payments or other
distributions or the proceeds of any such sale may be applied to any payment of
such charges or expenses, the holder of such Receipt remaining liable for any
deficiency.
SECTION 3.3. Warranty as to Stock. The Company hereby represents and
warrants that the Stock, when issued, will be duly authorized, validly issued,
fully paid and nonassessable. Such representation and warranty shall survive the
deposit of the Stock and the issuance of Receipts.
ARTICLE IV
THE DEPOSITED SECURITIES; NOTICES
SECTION 4.1. Cash Distributions. Whenever the Depositary shall receive any
cash dividend or other cash distribution on Stock, the Depositary shall, subject
to Sections 3.1 and 3.2 hereof, distribute to record holders of Receipts on the
record date fixed pursuant to Section 4.4 hereof such amounts of such dividend
or distribution as are, as nearly as practicable, in proportion to the
respective numbers of Depositary Shares evidenced by the Receipts held by such
holders; provided, however, that in case the Company or the Depositary shall be
required to withhold and shall withhold from any cash dividend or other cash
distribution in respect of the Stock an amount on account of taxes or as
otherwise required by law, regulation 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 cash distribution to be paid to any record holder on the
aggregate number of Depositary Receipts held by such 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 if such
fraction of a cent is equal to or greater than $.005; otherwise such fractional
interest shall be disregarded; and upon request of the Depositary, the Company
shall pay the additional amount to the Depositary for distribution.
SECTION 4.2. Distributions Other than Cash, Rights, Preferences or
Privileges. Whenever the Depositary shall receive any distribution other than
cash, rights, preferences or privileges upon Stock, the Depositary shall,
subject to Sections 3.1 and 3.2 hereof, distribute to record holders of Receipts
on the record date fixed pursuant to Section 4.4 hereof such amounts of the
securities or property received by it as are, as nearly as may be practicable,
in proportion to the respective numbers of Depositary Shares evidenced by the
Receipts
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held by such holders, in any manner that the Depositary may deem equitable and
practicable for accomplishing such distribution. If in the opinion of the
Depositary such distribution cannot be made proportionately among such record
holders, or if for any other reason (including any requirement that the Company
or the Depositary withhold an amount on account of taxes) the Depositary deems
(after consultation with the Company) such distribution not to be feasible, the
Depositary may, with the approval of the Company, adopt such method as it deems
equitable and practicable for the purpose of effecting such distribution,
including the sale (at public or private sale) of the securities or property
thus received, or any part thereof, at such place or places and upon such terms
as it may deem equitable and appropriate. The net proceeds of any such sale
shall, subject to Sections 3.1 and 3.2 hereof, be distributed or made available
for distribution, as the case may be, by the Depositary to record holders of
Receipts as provided by Section 4.1 hereof in the case of a distribution
received in cash.
SECTION 4.3. Subscription Rights, Preferences or Privileges. If the Company
shall at any time offer or cause to be offered to the persons in whose names
Stock is recorded on the books of the Company any rights, preferences or
privileges to subscribe for or to purchase any securities or any rights,
preferences or privileges of any other nature, the offering of such rights,
preferences or privileges shall in each such instance be communicated to the
Depositary and thereafter made available by the Depositary to the record holders
of Receipts in such manner as the Depositary may determine, either by the issue
to such record holders of warrants representing such rights, preferences or
privileges or by such other method as may be approved by the Depositary in its
discretion with the approval of the Company; provided, however, that (i) if at
the time of issue or offer of any such rights, preferences or privileges the
Depositary determines that it is not lawful or (after consultation with the
Company) not feasible to make such rights, preferences or privileges available
to holders of Receipts by the issue of warrants or otherwise, or (ii) if and to
the extent so instructed by holders of Receipts who do not desire to execute
such rights, preferences or privileges, then EQI, in its discretion (with
approval of the Company, in any case where the Depositary has determined that it
is not feasible to make such rights, preferences or privileges available), may,
if applicable laws or the terms of such rights, preferences or privileges permit
such transfer, sell such rights, preferences or privileges at public or private
sale, at such place or places and upon such terms as it may deem proper. The net
proceeds of any such sale shall, subject to Sections 3.1 and 3.2 hereof, be
distributed by EQI to the record holders of Receipts entitled thereto as
provided by Section 4.1 hereof in the case of a distribution received in cash.
If registration under the Securities Act of the securities to which any
rights, preferences or privileges relate is required in order for holders of
Receipts to be offered or sold the securities to which such rights, preferences
or privileges relate, the Company will file promptly a registration statement
pursuant to the Securities Act with respect to such rights, preferences or
privileges and securities and use its best efforts and take all steps available
to it to cause such registration statement to become effective sufficiently in
advance of the expiration of such rights, preferences or privileges to enable
such holders to exercise such rights, preferences or privileges.
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In no event shall the Depositary make available to the holders of Receipts any
right, preference or privilege to subscribe for or to purchase any securities
unless and until it has received written notice from the Company that such
registration statement shall have become effective, or that the offering and
sale of such securities to such holders are exempt from registration under the
provisions of the Securities Act and the Company shall have provided to the
Depositary an opinion of counsel reasonably satisfactory to the Depositary to
such effect.
If any other action under the laws of any jurisdiction or any governmental
or administrative authorization, consent or permit is required in order for such
rights, preferences or privileges to be made available to holders of Receipts,
the Company will use its reasonable best efforts to take such action or obtain
such authorization, consent or permit sufficiently in advance of the expiration
of such rights, preferences or privileges to enable such holders to exercise
such rights, preferences or privileges.
SECTION 4.4. Notice of Dividends, etc.; Fixing Record Date for Holders of
Receipts. Whenever any cash dividend or other cash distribution shall become
payable or any distribution other than cash shall be made, or if rights,
preferences or privileges shall at any time be offered, with respect to Stock,
or whenever the Depositary shall receive notice of any meeting at which holders
of Stock are entitled to vote or of which holders of Stock are entitled to
notice, 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
or otherwise in accordance with the terms of the Stock) for the determination of
the holders of Receipts who shall be entitled to receive such dividend,
distribution, rights, preferences or privileges or the net proceeds of the sale
thereof, or to give instructions for the exercise of voting rights at any such
meeting, or who shall be entitled to notice of such meeting or for any other
appropriate reasons.
SECTION 4.5. Voting Rights. Upon receipt of notice of any meeting at which
the holders of Stock are entitled to vote, the Depositary shall, as soon as
practicable thereafter, mail to the record holders of Receipts a notice which
shall contain (i) such information as is contained in such notice of meeting and
(ii) a statement that the holders may, subject to any applicable restrictions,
instruct the Depositary as to the exercise of the voting rights pertaining to
the amount of Stock represented by their respective Depositary Shares (including
an express indication that instructions may be given to the Depositary to give a
discretionary proxy to a person designated by the Company) and a brief statement
as to the manner in which such instructions may be given. Upon the written
request of the holders of Receipts on the relevant record date, the Depositary
shall use its best efforts to vote or cause to be voted, in accordance with the
instructions set forth in such requests, the maximum number of whole shares of
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 Stock or cause such Stock to be voted. In the
absence of specific instructions from
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the holder of a Receipt, the Depositary will not vote to the extent of the Stock
represented by the Depositary Shares evidenced by such Receipt.
SECTION 4.6. Changes Affecting Deposited Securities and Reclassifications,
Recapitalizations, etc. Upon any change in par value or liquidation preference,
split-up, combination or any other reclassification of the Stock, or upon any
recapitalization, reorganization, merger or consolidation affecting the Company
or to which it is a party, the Depositary may in its discretion with the
approval (not to be unreasonably withheld) 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 in the fraction of an interest in one share
of Stock represented by one Depositary Share as may be necessary (as certified
by the Company) fully to reflect the effects of such change in par value or
liquidation preference, split-up, combination or other reclassification of
Stock, or of such recapitalization, reorganization, merger or consolidation and
(ii) treat any securities which shall be received by the Depositary in exchange
for or upon conversion of or in respect of the Stock as new deposited securities
so received in exchange for or upon conversion or in respect of such Stock. In
any such case, the Depositary may in its discretion, with the approval of the
Company, execute and deliver additional Receipts or may call for the surrender
of all outstanding Receipts to be exchanged for new Receipts specifically
describing such new deposited securities. Anything to the contrary herein
notwithstanding, holders of Receipts shall have the right from and after the
effective date of any such change in par value or liquidation preference,
split-up, combination or other reclassification of the Stock or any such
recapitalization, reorganization, merger or consolidation to surrender such
Receipts to the Depositary with instructions to convert, exchange or surrender
the Stock represented thereby only into or for, as the case may be, the kind and
amount of shares of stock and other securities and property and cash into which
the Stock represented by such Receipts would have been converted or for which
such Stock would have been exchanged or surrendered had such Receipt been
surrendered immediately prior to the effective date of such transaction.
SECTION 4.7. Delivery of Reports. The Depositary shall furnish to holders
of Receipts any reports and communications received from the Company which are
received by the Depositary as the holder of Stock.
SECTION 4.8. List of Receipt Holders. Promptly upon request from time to
time by the Company, the Depositary shall furnish to it a list, as of the most
recent practicable date, of the names, addresses and holdings of Depositary
Shares of all record holders of Receipts. The Company shall be entitled to
receive such list four times annually.
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ARTICLE V
THE DEPOSITARY, THE DEPOSITARY'S
AGENTS, THE REGISTRAR AND THE COMPANY
SECTION 5.1. Maintenance of Offices, Agencies and Transfer Books by the
Depositary; Registrar. Upon execution of this Deposit Agreement, the Depositary
shall maintain at the Depositary's Office facilities for the execution and
delivery, registration and registration of transfer, surrender and exchange of
Receipts, and at the offices of the Depositary's Agents, if any, facilities for
the delivery, registration of transfer, surrender and exchange of Receipts, all
in accordance with the provisions of this Deposit Agreement, provided that, to
the extent provisions of this Deposit Agreement regarding transfer or registrar
functions of the Depositary conflict with the terms of any transfer agency
agreement into which the Company and the Depositary may enter, the transfer
agency agreement shall control.
The Depositary shall keep books at the Depositary's Office for the
registration and registration of transfer of Receipts, which books during normal
business hours shall be open for inspection by the record holders of Receipts;
provided that any such holder requesting to exercise such right shall certify to
the Depositary that such inspection shall be for a proper purpose reasonably
related to such person's interest as an owner of Depositary Shares evidenced by
the Receipts. Books kept hereunder by the Depositary may be maintained in
electronic form.
The Depositary may close such books, at any time or from time to time, when
deemed expedient by it in connection with the performance of its duties
hereunder.
The Depositary may, with the approval of the Company, appoint a Registrar
for registration of the Receipts or the Depositary Shares evidenced thereby. If
the Receipts or the Depositary Shares evidenced thereby or the Stock represented
by such Depositary Shares shall be listed on one or more national securities
exchanges, the Depositary will appoint a Registrar (acceptable to the Company)
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 any such exchange) may be removed and a
substitute registrar appointed by the Depositary upon the request or with the
approval of the Company. If the Receipts, such Depositary Shares or such Stock
is listed on one or more other stock exchanges, the Depositary will, at the
request and at the expense of the Company, arrange such facilities for the
delivery, registration, registration of transfer, surrender and exchange of such
Receipts, such Depositary Shares or such Stock as may be required by law or
applicable securities exchange regulation.
The Depositary may from time to time appoint Depositary's Agents to act in
any respect for the Depositary for the purposes of this Deposit Agreement and
may at any time appoint additional Depositary's Agents and vary or terminate the
appointment of such Depositary's Agents. The Depositary will notify the Company
of any such action.
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SECTION 5.2. 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 the Registrar nor the Company shall incur any
liability to any holder of any Receipt if by reason of any provision of any
present or future law, or regulation thereunder, 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 Amended and Restated Articles of Incorporation 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, delayed or forbidden from, or subjected to any
penalty on account of, doing or performing any act or thing which the terms of
this Deposit Agreement provide shall be done or performed; nor shall the
Depositary, any Depositary's Agent, the Registrar or the Company incur liability
to any holder of a Receipt (i) by reason of any nonperformance or delay, caused
as aforesaid, in the performance of any act or thing which the terms of this
Deposit Agreement shall provide shall or may be done or performed, or (ii) by
reason of any exercise of, or failure to exercise, any discretion provided for
in this Deposit Agreement except, in the 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 5.3. Obligation of the Depositary, the Depositary's Agents, the
Registrar and the Company. Neither the Depositary nor any Depositary's Agent nor
the Registrar nor the Company assumes any obligation or shall be subject to any
liability under this Deposit Agreement or any Receipt to holders of Receipts
other than for its gross negligence, willful misconduct or bad faith.
Neither the Depositary nor any Depositary's Agent nor the Registrar nor the
Company shall be under any obligation to appear in, prosecute or defend any
action, suit or other proceeding in respect of the Stock, the Depositary Shares
or the Receipts which in its reasonable opinion may involve it in expense or
liability unless indemnity reasonably satisfactory to it against expense and
liability be furnished as often as may be reasonably required.
Neither the Depositary nor any Depositary's Agent nor the Registrar nor the
Company shall be liable for any action or any failure to act by it in reliance
upon the written advice of legal counsel or accountants, or information from any
person presenting Stock for deposit, any holder of a Receipt or any other person
believed by it in good faith to be competent to give such information. The
Depositary, any Depositary's Agent, the Registrar and the Company may each rely
and shall each be protected in acting upon any written notice, request,
direction or other document reasonably believed by it to be genuine and to have
been signed or presented by the proper party or parties.
The Depositary shall not be responsible for any failure to carry out any
instruction to vote any of the shares of Stock or for the manner or effect of
any such vote made, as long as
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any such action or inaction is in good faith. The Depositary will indemnify the
Company and hold it harmless from any loss, liability or expense (including the
reasonable costs and expenses of defending itself) which arises from its
negligence, wilful misconduct or bad faith. The Depositary undertakes and any
Registrar shall be required to undertake only such duties as specifically set
forth herein and no implied covenants or obligations shall be read into this
Deposit Agreement against the Depositary or Registrar. In no event shall the
Depositary's aggregate liability during the term of this Deposit Agreement with
respect to, arising from, or arising in connection with this Deposit Agreement,
or from all services provided or omitted to be provided under this Deposit
Agreement, whether in contract, or in tort, or otherwise, exceed an amount equal
to three (3) times the amounts paid by the Company to Depositary as fees and
charges, but not including reimbursable expenses. The indemnification
obligations of the Depositary set forth in this Section 5.3 hereof shall survive
any termination of this Deposit Agreement and any succession of any Depositary.
The Depositary, its parent, affiliates or subsidiaries, the Depositary's
Agents and the 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
may be interested or contract with or lend money to any such person or otherwise
act as fully or as freely as if it were not the Depositary, parent, affiliate or
subsidiary or Depositary's Agent or Registrar hereunder. The Depositary may also
act as trustee, 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 nor
the Registrar, acting as the Depositary's Agent or Registrar, as the case may
be, shall be deemed to be an "issuer" of the securities under the federal
securities laws or applicable state securities laws, it being expressly
understood and agreed that the Depositary, any Depositary's Agent and the
Registrar are acting only in a ministerial capacity as Depositary or Registrar
for the Stock.
Neither the Depositary (or its officers, directors, employees or agents)
nor any Depositary's Agent nor the Registrar makes any representation or has any
responsibility as to the validity of the registration statement pursuant to
which the Depositary Shares are registered under the Securities Act, the Stock,
the Depositary Shares 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. Notwithstanding any other provision
herein or in the Receipts, the Depositary makes no warranties or representations
as to the validity or genuineness of any Stock at any time deposited with the
Depositary hereunder or of the Depositary Shares, as to the validity or
sufficiency of this Deposit 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 De-
-17-
positary 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 not be liable for any incidental, indirect, special or
consequential damages of any nature whatsoever, including, but not limited to,
loss of anticipated profits, occasioned by breach of any provisions of this
Agreement even if apprised of the possibility of such damages.
SECTION 5.4. Resignation and Removal of the Depositary; Appointment of
Successor Depositary. The Depositary may at any time resign as Depositary
hereunder by delivering notice of its election to do so to the Company, such
resignation to take effect upon the appointment of a successor Depositary and
its acceptance of such appointment as hereinafter provided.
The Depositary may at any time be removed by the Company by notice of such
removal delivered to the Depositary, such removal to take effect upon the
appointment of a successor Depositary and its acceptance of such appointment as
hereinafter provided.
In case at any time the Depositary acting hereunder shall resign or be
removed, the Company shall, within 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
$150,000,000. 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 Deposit Agreement, and such predecessor, upon payment
of all sums due it and on the written request of the Company, shall execute and
deliver an instrument transferring to such successor all rights and powers of
such predecessor hereunder, shall duly assign, transfer and deliver all right,
title and interest in the Stock and any moneys or property held hereunder to
such successor, and shall deliver to such successor a list of the record holders
of all outstanding Receipts and such records, books and other information in its
possession relating thereto. 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.
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SECTION 5.5. Corporate Notices and Reports. The Company agrees that it will
deliver to the Depositary, and the Depositary will, promptly after receipt
thereof, transmit to the record holders of Receipts, in each case at the
addresses recorded in the Depositary's books, copies of all notices and reports
(including without limitation financial statements) required by law or by the
rules of any national securities exchange upon which the Stock, the Depositary
Shares or the Receipts are listed, to be furnished to the record holders of
Receipts. Such transmission will be at the Company's expense and the Company
will provide the Depositary with such number of copies of such documents as the
Depositary may reasonably request.
SECTION 5.6. Indemnification by the Company. The Company shall indemnify
the Depositary, any Depositary's Agent and the Registrar against, and hold each
of them harmless from, any loss, liability or expense (including the reasonable
costs and expenses of defending itself) which may arise out of acts performed or
omitted in connection with this Deposit Agreement and the Receipts by the
Depositary, any Registrar or any of their respective agents (including any
Depositary's Agent), except for any liability arising out of negligence, willful
misconduct or bad faith on the respective parts of any such person or persons,
subject to the provisions of Section 5.3, above. The obligations of the Company
set forth in this Section 5.6 hereof shall survive any termination of this
Deposit Agreement or any succession of any Depositary or Depositary's Agent.
SECTION 5.7. 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 charges of the Depositary in
connection with the initial deposit of the Stock and the initial issuance of the
Depositary Shares, all withdrawals of shares of the Stock by owners of
Depositary Shares, and any redemption of the Stock at the option of the Company.
All other transfer and other taxes and governmental charges shall be at the
expense of holders of Depositary Shares. If, at the request of a holder of
Receipts, the Depositary incurs charges or expenses for which it is not
otherwise liable hereunder, such holder will be liable for such charges and
expenses. All other charges and expenses of the Depositary and any Depositary's
Agent hereunder (including, in each case, reasonable fees and expenses of
counsel) incident to the performance of their respective obligations hereunder
will be paid upon consultation and agreement between the Depositary and the
Company as to the amount and nature of such charges and expenses. The Depositary
shall present its statement for charges and expenses to the Company at such
intervals as the Company and the Depositary may agree.
SECTION 5.8. Tax Compliance. EQI and, where applicable, the Depositary, on
its own behalf and on behalf of the Company, will comply with all applicable
certification, information reporting and withholding (including "backup"
withholding) requirements imposed by applicable tax laws, regulations or
administrative practice with respect to (i) any payments made with respect to
the Depositary Shares or (ii) the issuance, delivery, holding,
-19-
transfer, redemption or exercise of rights under the Depositary Receipts or the
Depositary Shares. Such compliance shall include, without limitation, the
preparation and timely filing of required returns and the timely payment of all
amounts required to be withheld to the appropriate taxing authority or its
designated agent.
The Depositary shall comply with any direction received from the Company
with respect to the application of such requirements to particular payments or
holders or in other particular circumstances, and may for purposes of this
Deposit Agreement rely on any such direction in accordance with the provisions
of Section 5.3 hereof.
The Depositary shall maintain all appropriate records documenting
compliance with such requirements, and shall make such records available on
request to the Company or to its authorized representatives.
ARTICLE VI
AMENDMENT AND TERMINATION
SECTION 6.1. Amendment. The form of the Receipts and any provisions of this
Deposit Agreement may at any time and from time to time be amended by agreement
between the Company and the Depositary in any respect which they may deem
necessary or desirable; provided, however, that no such amendment (other than
any change in the fees) which shall materially adversely alter the rights of the
holders of Receipts shall be effective unless such amendment shall have been
approved by the holders of at least a majority of the Depositary Shares then
outstanding. Every holder of an outstanding Receipt at the time any such
amendment becomes effective shall be deemed, by continuing to hold such Receipt,
to be bound by the Deposit Agreement as amended thereby. Subject to Section 2.9
hereof, notwithstanding the foregoing, in no event may any amendment impair the
right of any holder of any Depositary Shares, upon surrender of the Receipts
evidencing such Depositary Shares and subject to any conditions specified in
this Deposit Agreement, to receive shares of Stock and any money or other
property, if any, represented thereby, except in order to comply with mandatory
provisions of applicable law.
SECTION 6.2. Termination. This Deposit Agreement may be terminated by the
Company at any time upon not less than 30 days' prior written notice to the
Depositary, in which case, on a date that is not later than 30 days after the
date of such notice, the Depositary shall deliver or make available for delivery
to holders of Depositary Shares, upon surrender of the Receipts evidencing such
Depositary Shares, such number of whole or fractional shares of Stock as are
represented by such Depositary Shares. This Deposit Agreement will automatically
terminate after (i) all outstanding Depositary Shares have been redeemed
pursuant to Section 2.8 hereof or (ii) there shall have been made a final
distribution in respect of the Stock in connection with any liquidation,
dissolution or winding up of the Company and such distribution shall have
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been distributed to the holders of Depositary Receipts pursuant to Section 4.1
or 4.2 hereof, as applicable.
Upon the termination of this Deposit Agreement, the Company shall be
discharged from all obligations under this Deposit Agreement except for its
obligations to the Depositary, the Registrar and any Depositary's Agent under
Sections 5.6 and 5.7 hereof.
ARTICLE VII
MISCELLANEOUS
SECTION 7.1. Counterparts. This Deposit Agreement may be executed in any
number of counterparts, and by each of the parties hereto on separate
counterparts, each of which counterparts, when so executed and delivered, shall
be deemed an original, but all such counterparts taken together shall constitute
one and the same instrument.
SECTION 7.2. Exclusive Benefit of Parties. This Deposit Agreement is for
the exclusive benefit of the parties hereto, and their respective successors
hereunder, and shall not be deemed to give any legal or equitable right, remedy
or claim to any other person whatsoever.
SECTION 7.3. Invalidity of Provisions. In case any one or more of the
provisions contained in this Deposit Agreement or in the Receipts should be or
become invalid, illegal or unenforceable in any respect, the validity, legality
and enforceability of the remaining provisions contained herein or therein shall
in no way be affected, prejudiced or disturbed thereby.
SECTION 7.4. 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
facsimile transmission confirmed by letter, addressed to the Company at:
First Industrial Realty Trust, Inc.
000 X. Xxxxxx Xxxxx, Xxxxx 0000
Xxxxxxx, Xxxxxxxx 00000
Attn: Xxxx Xxxxxxx, Esq.
Facsimile No.: (000) 000-0000
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 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 facsimile transmission
confirmed by letter, addressed to the Depositary at the Depositary's Office, at:
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EquiServe Trust Company, N.A.
c/o EquiServe Inc.
000 Xxxxxx Xxxxxx
Xxxxxx, Xxxxxxxxxxxxx 00000
Attn: General Counsel
Facsimile No.: 000-000-0000
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 facsimile
transmission confirmed by letter, addressed to such record holder at the address
of such record holder as it appears on the books of the Depositary, or if such
holder shall have filed with the Depositary a written request that notices
intended for such holder be mailed to some other address, at the address
designated in such request.
Delivery of a notice sent by mail or by telegram or facsimile transmission
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
facsimile transmission) is deposited for mailing by first class mail, postage
prepaid. The Depositary or the Company may, however, act upon any telegram or
facsimile transmission received by it from the other or from any holder of a
Receipt, notwithstanding that such telegram or facsimile transmission shall not
subsequently be confirmed by letter or as aforesaid.
SECTION 7.5. Appointment of Registrar. The Company hereby also appoints the
Depositary as Registrar in respect of the Receipts and the Depositary hereby
accepts such appointments.
SECTION 7.6. Holders of Receipts Are Parties. The holders of Receipts from
time to time shall be parties to this Deposit Agreement and shall be bound by
all of the terms and conditions hereof and of the Receipts by acceptance of
delivery thereof.
SECTION 7.7. Governing Law. THIS DEPOSIT AGREEMENT AND THE RECEIPTS AND ALL
RIGHTS HEREUNDER AND THEREUNDER AND PROVISIONS HEREOF AND THEREOF SHALL BE
GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS APPLICABLE TO CONTRACTS
MADE IN AND TO BE PERFORMED IN THE STATE OF NEW YORK WITHOUT REGARD TO THE
CONFLICTS OF LAWS PRINCIPLES THEREOF.
SECTION 7.8. Inspection of Deposit Agreement. Copies of this Deposit
Agreement shall be filed with the Depositary and the Depositary's Agent and
shall be open to
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inspection during business hours at the Depositary's office or respective
offices of the Depositary's Agent, if any, by any holder of a Receipt.
SECTION 7.9. Headings. The headings of articles and sections in this
Deposit Agreement have been inserted for convenience only and are not to be
regarded as a part of this Deposit Agreement or the Receipts or to have any
bearing upon the meaning or interpretation of any provision contained herein or
in the Receipts.
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IN WITNESS WHEREOF, the Company and the Depositary have duly executed this
Agreement as of the day and year first above set forth, and all holders of
Receipts shall become parties hereto by and upon acceptance by them of delivery
of Receipts issued in accordance with the terms hereof.
FIRST INDUSTRIAL REALTY TRUST, INC.
/s/ Xxxx Xxxxxxx
--------------------------------------------
Name: Xxxx Xxxxxxx
Title: Vice President -- Corporate Legal,
Secretary
EQUISERVE, INC.
/s/ Xxxxxx Xxxxxxx
--------------------------------------------
Name: Xxxxxx Xxxxxxx
Title: Senior Managing Director
EQUISERVE TRUST COMPANY, N.A.
/s/ Xxxx Xxxxxx
--------------------------------------------
Name: Xxxx Xxxxxx
Title: Senior Account Manager
ANNEX A
[FORM OF FACE OF RECEIPT]
NUMBER SHARES
DR- (CUSIP 00000X000)
see reverse for certain definitions
THIS CERTIFICATE IS TRANSFERABLE
IN NEW YORK, NY
[Logo]
RECEIPT FOR DEPOSITARY SHARES,
EACH REPRESENTING 1/100 OF A SHARE OF
SERIES F FLEXIBLE CUMULATIVE REDEEMABLE PREFERRED STOCK
FIRST INDUSTRIAL REALTY TRUST, INC.
(INCORPORATED UNDER THE LAWS OF THE STATE OF MARYLAND)
EquiServe Trust Company, N.A., a national banking association duly
organized and existing under the laws of the United States of America, and
EquiServe, Inc., a Delaware corporation, with an office at the time of execution
of the Deposit Agreement (as defined below) at 000 Xxxxxx Xxxxxx, Xxxxxx,
Xxxxxxxxxxxxx 00000, as Depositary (the "Depositary"), hereby certifies that
_____________is a registered owner of ___________________ DEPOSITARY SHARES
("Depositary Shares"), each Depositary Share representing 1/100 of one fully
paid and non-assessable share of Series F Flexible Cumulative Redeemable
Preferred Stock, $.01 par value per share (the "Shares"), of First Industrial
Realty Trust, Inc., a Maryland corporation (the "Company"), on deposit with the
Depositary, subject to the terms and entitled to the benefits of the Deposit
Agreement dated as of May 27, 2004 (the "Deposit Agreement"), among the Company,
the Depositary and the holders from time to time of Receipts for Depositary
Shares. By accepting this Receipt, the holder hereof becomes a party to and
agrees to be bound by all the terms and conditions of the Deposit Agreement.
This Receipt shall not be valid or obligatory for any purpose or be entitled to
any benefits under the Deposit Agreement unless it shall have been executed by
the Depositary by the manual or facsimile signature of a duly authorized officer
or, if a Registrar in respect of the Receipts (other than the Depositary) shall
have been appointed, by the manual signature of a duly authorized officer of
such Registrar.
Dated:
Countersigned and Registered:
EQUISERVE TRUST COMPANY, N.A.
Depositary and Registrar
By: ____________________________________
By: ___________________________________
SECRETARY AND TREASURER
By: ___________________________________
PRESIDENT
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[FORM OF REVERSE OF RECEIPT]
FIRST INDUSTRIAL REALTY TRUST, INC.
THE SHARES OF STOCK REPRESENTED BY THIS DEPOSITARY RECEIPT ARE SUBJECT TO
RESTRICTIONS ON TRANSFER FOR THE PURPOSE OF THE CORPORATION'S MAINTENANCE OF ITS
QUALIFICATION AS A REAL ESTATE INVESTMENT TRUST UNDER THE INTERNAL REVENUE CODE
OF 1986, AS AMENDED. NO PERSON MAY BENEFICIALLY OWN SHARES OF STOCK IN EXCESS OF
9.9% (OR SUCH GREATER PERCENTAGE AS MAY BE DETERMINED BY THE BOARD OF DIRECTORS
OF THE CORPORATION) OF THE OUTSTANDING STOCK OF THE CORPORATION. ANY PERSON WHO
ATTEMPTS TO BENEFICIALLY OWN SHARES OF STOCK IN EXCESS OF THE ABOVE LIMITATION
MUST IMMEDIATELY NOTIFY THE CORPORATION. ALL CAPITALIZED TERMS IN THIS LEGEND
HAVE THE MEANINGS DEFINED IN THE CORPORATION'S ARTICLES OF INCORPORATION, A COPY
OF WHICH, INCLUDING THE RESTRICTIONS ON TRANSFER, WILL BE SENT WITHOUT CHARGE TO
EACH STOCKHOLDER WHO SO REQUESTS. IF THE RESTRICTIONS ON TRANSFER ARE VIOLATED,
THE SHARES OF STOCK REPRESENTED HEREBY MAY BE AUTOMATICALLY EXCHANGED FOR SHARES
OF EXCESS STOCK WHICH WILL BE HELD IN TRUST BY THE CORPORATION.
THE CORPORATION WILL FURNISH TO ANY STOCKHOLDER ON REQUEST AND WITHOUT
CHARGE A FULL STATEMENT OF THE DESIGNATIONS AND ANY PREFERENCES, CONVERSIONS AND
OTHER RIGHTS, VOTING POWERS, RESTRICTIONS, LIMITATIONS AS TO DIVIDENDS,
QUALIFICATIONS, AND TERMS AND CONDITIONS OF REDEMPTION OF THE STOCK OF EACH
CLASS WHICH THE CORPORATION IS AUTHORIZED TO ISSUE AND, WITH RESPECT TO ANY
PREFERRED OR SPECIAL CLASS IN A SERIES, THE DIFFERENCES IN THE RELATIVE RIGHTS
AND PREFERENCES BETWEEN THE SHARES OF EACH SERIES TO THE EXTENT THEY HAVE BEEN
SET AND THE AUTHORITY OF THE BOARD OF DIRECTORS TO SET THE RELATIVE RIGHTS AND
PREFERENCES OF SUBSEQUENT SERIES.
The following abbreviations, when used in the inscription on the face of
this Depositary Receipt, shall be construed as though they were written out in
full according to applicable laws or regulations:
TEN COM-- as tenants in common UNIF GIFT MIN ACT -. . . Custodian . . . .
TEN ENT-- tenants by the entireties (Cust)
JT TEN-- as joint tenants with right of Minor under Uniform Gifts to Minors Act . . . . .
survivorship and not as tenants in common (State)
Additional abbreviations may also be used though not in the above list.
For Value Received, _____________________ hereby sells, assigns and transfers
unto
PLEASE INSERT SOCIAL SECURITY OR OTHER IDENTIFYING NUMBER OF ASSIGNEE
PLEASE PRINT OR TYPEWRITE NAME AND ADDRESS INCLUDING POSTAL ZIP CODE OF ASSIGNEE
Depositary Shares represented by the within Depositary Receipt, and do hereby
irrevocably constitute and appoint ________________ Attorney to transfer the
said Depositary Shares on the books of the within named Depositary with full
power of substitution in the premises.
Dated Signed
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NOTICE: THE SIGNATURE TO THIS ASSIGNMENT MUST CORRESPOND WITH THE NAME AS
WRITTEN UPON THE FACE OF THIS DEPOSITARY RECEIPT IN EVERY PARTICULAR, WITHOUT
ALTERATION OR ENLARGEMENT OR ANY CHANGE WHATEVER.
SIGNATURE(S) GUARANTEED
By: ___________________
THE SIGNATURE(S) SHOULD BE GUARANTEED BY AN ELIGIBLE GUARANTOR INSTITUTION
(BANKS, STOCKBROKERS, SAVINGS AND LOAN ASSOCIATIONS AND CREDIT UNIONS WITH
MEMBERSHIP IN AN APPROVED SIGNATURE GUARANTEE MEDALLION PROGRAM), PURSUANT TO
S.E.C. RULE 17Ad-15.
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