FIRST INDUSTRIAL REALTY TRUST, INC., COMPUTERSHARE SHAREHOLDER SERVICES, INC. AND COMPUTERSHARE TRUST COMPANY, N.A., AS DEPOSITARY, AND THE HOLDERS FROM TIME TO TIME OF THE DEPOSITARY RECEIPTS DESCRIBED HEREIN RELATING TO SERIES J CUMULATIVE...
Exhibit 1.7
FIRST INDUSTRIAL REALTY TRUST, INC.,
COMPUTERSHARE SHAREHOLDER SERVICES, INC. AND COMPUTERSHARE TRUST
COMPANY, N.A.,
AS DEPOSITARY,
COMPUTERSHARE SHAREHOLDER SERVICES, INC. AND COMPUTERSHARE TRUST
COMPANY, N.A.,
AS DEPOSITARY,
AND
THE HOLDERS FROM TIME TO TIME OF
THE DEPOSITARY RECEIPTS DESCRIBED HEREIN
RELATING TO SERIES J CUMULATIVE REDEEMABLE PREFERRED STOCK
THE DEPOSITARY RECEIPTS DESCRIBED HEREIN
RELATING TO SERIES J CUMULATIVE REDEEMABLE PREFERRED STOCK
Dated as of January 13, 2006
TABLE OF CONTENTS
| Page | ||||||
| ARTICLE I |
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| DEFINITIONS |
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| ARTICLE II |
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| FORM OF RECEIPTS, DEPOSIT OF STOCK, EXECUTION AND DELIVERY, TRANSFER, SURRENDER AND REDEMPTION OF RECEIPTS |
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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 | 4 | ||||
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. | 6 | ||||
SECTION 2.7. |
Cancellation and Destruction of Surrendered Receipts | 6 | ||||
SECTION 2.8. |
Redemption of Stock | 6 | ||||
SECTION 2.9. |
Stock Constituting Excess Stock | 8 | ||||
| ARTICLE III |
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| CERTAIN OBLIGATIONS OF HOLDERS OF RECEIPTS AND THE COMPANY |
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SECTION 3.1. |
Filing Proofs, Certificates and Other Information | 8 | ||||
SECTION 3.2. |
Payment of Taxes or Other Governmental Charges | 8 | ||||
SECTION 3.3. |
Warranty as to Stock | 9 | ||||
| ARTICLE IV |
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| THE DEPOSITED SECURITIES; NOTICES |
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SECTION 4.1. |
Cash Distributions | 9 | ||||
SECTION 4.2. |
Distributions Other than Cash, Rights, Preferences or Privileges | 9 | ||||
SECTION 4.3. |
Subscription Rights, Preferences or Privileges | 10 | ||||
SECTION 4.4. |
Notice of Dividends, etc.; Fixing Record Date for Holders of Receipts | 11 | ||||
SECTION 4.5. |
Voting Rights | 11 | ||||
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| Page | ||||||
SECTION 4.6. |
Changes Affecting Deposited Securities and Reclassifications, Recapitalizations, etc. | 11 | ||||
SECTION 4.7. |
Delivery of Reports | 12 | ||||
SECTION 4.8. |
List of Receipt Holders | 12 | ||||
| ARTICLE V |
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| THE DEPOSITARY, THE DEPOSITARY’S AGENTS, THE REGISTRAR AND THE COMPANY |
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SECTION 5.1. |
Maintenance of Offices, Agencies and Transfer Books by the Depositary; Xxxxxxxxx | 00 | ||||
SECTION 5.2. |
Prevention of or Delay in Performance by the Depositary, the Depositary's Agents, the Registrar or the Company | 13 | ||||
SECTION 5.3. |
Obligation of the Depositary, the Depositary's Agents, the Registrar and the Company | 13 | ||||
SECTION 5.4. |
Resignation and Removal of the Depositary; Appointment of Successor Depositary | 15 | ||||
SECTION 5.5. |
Corporate Notices and Reports | 15 | ||||
SECTION 5.6. |
Indemnification by the Company | 16 | ||||
SECTION 5.7. |
Charges and Expenses | 16 | ||||
SECTION 5.8. |
Tax Compliance | 16 | ||||
| ARTICLE VI |
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| AMENDMENT AND TERMINATION |
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SECTION 6.1. |
Amendment | 17 | ||||
SECTION 6.2. |
Termination | 17 | ||||
| ARTICLE VII |
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| MISCELLANEOUS |
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SECTION 7.1. |
Counterparts | 17 | ||||
SECTION 7.2. |
Exclusive Benefit of Parties | 18 | ||||
SECTION 7.3. |
Invalidity of Provisions | 18 | ||||
SECTION 7.4. |
Notices | 18 | ||||
SECTION 7.5. |
Appointment of Xxxxxxxxx | 00 | ||||
SECTION 7.6. |
Holders of Receipts Are Parties | 19 | ||||
SECTION 7.7. |
Governing Law | 19 | ||||
SECTION 7.8. |
Inspection of Deposit Agreement | 19 | ||||
SECTION 7.9. |
Headings | 19 | ||||
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DEPOSIT AGREEMENT, dated as of January 13, 2006, among FIRST INDUSTRIAL REALTY TRUST, INC., a
Maryland corporation (the “Company”), COMPUTERSHARE TRUST COMPANY, N.A., a national banking
association, and COMPUTERSHARE SHAREHOLDER SERVICES, INC., a Delaware corporation (collectively
Computershare Trust Company, N.A. and Computershare Inc. shall be referenced herein as “Depositary”
or individually as the “Trust Company” and “CI”, 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 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 have the meaning set forth in the preamble hereto.
“Depositary Shares” shall mean Depositary Shares, each representing 1/10,000 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 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(c) 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 7.25% Series J 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
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 to be traded on the New York Stock Exchange with book-entry settlement through
DTC shall be represented by a single receipt (the “DTC Receipt”), which shall be deposited with DTC
(or its designee) evidencing all such Depositary Shares and registered in the name of the nominee
of DTC (initially expected to be Cede & Co.). The Depositary or such other entity as is agreed to
by DTC may hold the DTC 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 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 Exhibit A, with appropriate insertions, modifications and omissions, as hereafter
provided.
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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
Depositary 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.
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.
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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 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
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(“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 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.
-5-
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
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.
SECTION 2.7. 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 2.8. 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
-6-
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 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 required by any exchange upon
which the Depositary Shares are listed or as otherwise 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.
-7-
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 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 2.9. 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
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 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
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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 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
-9-
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 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 CI, 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 CI 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. 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.
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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 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
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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.
ARTICLE V
THE DEPOSITARY, THE DEPOSITARY’S
AGENTS, THE REGISTRAR AND THE COMPANY
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
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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.
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
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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 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
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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 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.
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
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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. CI 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, 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.
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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
(provided (i) the consent of holders of a majority of the Depositary Shares has been obtained (such
consent not to be unreasonably withheld, delayed or conditioned) or (ii) termination is necessary
to preserve the Company’s status as a real estate investment trust), 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 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
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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
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:
Computershare Trust Company, N.A.
c/o Computershare Shareholder Services, Inc.
000 Xxxxxx Xxxxxx
Xxxxxx, Xxxxxxxxxxxxx 00000
Attn: General Counsel
Facsimile No.: 000-000-0000
c/o Computershare Shareholder Services, 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
-18-
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 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.
[Signature Page Follows]
-19-
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. |
||||
| By: | ||||
| Name: | ||||
| Title: | ||||
| COMPUTERSHARE TRUST COMPANY, N.A. | ||||
| By: |
||||
| Name: | ||||
| Title: | ||||
| COMPUTERSHARE SHAREHOLDER SERVICES, INC.. |
||||
| By: |
||||
| Name: | ||||
| Title: | ||||
-20-
EXHIBIT A
[FORM OF FACE OF RECEIPT]
NUMBER
|
SHARES | |
DR-[ ]
|
(CUSIP ____________) | |
| see reverse for certain definitions |
THIS CERTIFICATE IS TRANSFERABLE
IN NEW YORK, NY
IN NEW YORK, NY
[Logo]
RECEIPT FOR DEPOSITARY SHARES,
EACH REPRESENTING 1/10,000 OF A SHARE OF
SERIES J CUMULATIVE REDEEMABLE PREFERRED STOCK
EACH REPRESENTING 1/10,000 OF A SHARE OF
SERIES J CUMULATIVE REDEEMABLE PREFERRED STOCK
FIRST INDUSTRIAL REALTY TRUST, INC.
(INCORPORATED UNDER THE LAWS OF THE STATE OF MARYLAND)
(INCORPORATED UNDER THE LAWS OF THE STATE OF MARYLAND)
Computershare Trust Company, N.A., a national banking association duly organized and existing
under the laws of the United States of America, and Computershare Shareholder Services, 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 1/10,000 of one fully paid and
non-assessable share of Series J 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 January 13, 2006 (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: |
||||||
| COMPUTERSHARE TRUST COMPANY, N.A. | ||||||
| Depositary and Registrar | ||||||
By:
|
||||||
| By: | ||||||
| SECRETARY | ||||||
| By: | ||||||
| PRESIDENT | ||||||
A-1
[FORM OF REVERSE OF RECEIPT]
FIRST INDUSTRIAL REALTY TRUST, INC.
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 survivorship and not as tenants in common |
Minor under Uniform Gifts to Minors Act . . . . . (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 |
A-2
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.
A-3
