EXHIBIT 4.1
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
Page
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.
"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, $.01 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
relating
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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 surrendering
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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
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expenses, 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 Depositary
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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,
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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
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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 (State)
in common
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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