Exhibit 4.3
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DEPOSIT AGREEMENT
dated as of ________ __, ____
between
PRIME GROUP REALTY TRUST
[NAME OF DEPOSITARY]
and
THE HOLDERS FROM TIME TO TIME OF THE DEPOSITARY SHARES
DESCRIBED HEREIN
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DEPOSIT AGREEMENT
WHEREAS it is desired to provide, as hereinafter set forth in this
Deposit Agreement, for the deposit of _____% Series ___ Preferred Shares of
Beneficial Interest, par value $.01 per share, of PRIME GROUP REALTY TRUST with
the Depositary (as hereinafter defined) for the purposes set forth in this
Deposit Agreement and for the issuance hereunder of Receipts (as hereinafter
defined) evidencing Depositary Shares (as hereinafter defined) in respect of the
Shares (as hereinafter defined) so deposited;
NOW, THEREFORE, in consideration of the premises contained herein and
such other good and valuable consideration, receipt of which is hereby
acknowledged, the parties hereto agree as follows:
ARTICLE I
DEFINITIONS
The following definitions shall for all purposes, unless otherwise
indicated, apply to the respective terms used in this Deposit Agreement and the
Receipts:
"ARTICLES SUPPLEMENTARY" shall mean the articles supplementary filed
with the State Department of Assessments and Taxation of the State of Maryland
classifying and designating the Shares as a series of preferred shares of
beneficial interest of the Company.
"COMPANY" shall mean Prime Group Realty Trust, a Maryland real estate
investment trust, and its successors.
"DEPOSIT AGREEMENT" shall mean this Deposit Agreement, as amended or
supplemented from time to time.
"DEPOSITARY" shall mean __________, a _____________ , and any
successor as Depositary hereunder.
"DEPOSITARY SHARES" shall mean Depositary Shares, each representing a
______ interest in a Share and evidenced by a Receipt.
"DEPOSITARY'S AGENT" shall mean an agent appointed by the Depositary
pursuant to SECTION 7.05.
"DEPOSITARY'S OFFICE" shall mean the office of the Depositary at
____________________, ____________________, ____________________, at which at
any particular time its depositary receipt business shall be administered.
"RECEIPT" shall mean one of the depositary receipts issued hereunder,
whether in definitive or temporary form.
"RECORD HOLDER" as applied with respect to a Depositary Share shall
mean the person in whose name a Receipt evidencing such Depositary Share is
registered on the books of the Depositary maintained for such purpose.
"REGISTRAR" shall mean any 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.
"SHARES" shall mean the Company's _____% Series ___ Preferred Shares
of Beneficial Interest, $0.01 par value per share.
ARTICLE II
FORM OF RECEIPTS; DEPOSIT OF SHARES;
EXECUTION AND DELIVERY, TRANSFER,
SURRENDER AND REDEMPTION OF RECEIPTS
SECTION 2.01. FORM AND TRANSFER OF RECEIPTS. Definitive Receipts
shall be printed, lithographed, typewritten, mimeographed or engraved or
otherwise reproduced in any manner and shall be substantially in the form set
forth in EXHIBIT A, with appropriate insertions, omissions, substitutions and
other variations as are required or permitted by this Agreement. As set forth
in SECTION 2.09, all or a portion of the Definitive Receipts may be represented
by one or more book-entry receipts (each, a "BOOK-ENTRY RECEIPT"). Pending the
preparation of definitive Receipts, the Depositary, upon the written order of
the Company delivered in compliance with SECTION 2.02, shall execute and deliver
temporary Receipts which are printed, lithographed, typewritten, mimeographed or
otherwise substantially of the tenor of the definitive Receipts in lieu of which
they are issued and with such appropriate insertions, omissions, substitutions
and other variations as the persons executing such Receipts may determine, as
evidenced by their execution of such Receipts. If temporary Receipts are
issued, the Company and the Depositary will cause definitive Receipts to be
prepared without unreasonable delay. After the preparation of definitive
Receipts, the temporary Receipts shall be exchangeable for definitive Receipts
upon surrender of the temporary Receipts at an office described in the third
paragraph of SECTION 2.02, without
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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 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 Shares, as
definitive Receipts.
Receipts shall be executed by the Depositary by the manual signature
of a duly authorized officer of the Depositary; PROVIDED, that such signature
may be a facsimile if a Registrar for the Receipts (other than the Depositary)
shall have been appointed and such Receipts are countersigned by manual
signature of a duly authorized officer of the Registrar. No Receipt shall be
entitled to any benefits under this Deposit Agreement or be valid or obligatory
for any purpose unless it shall have been executed manually by a duly authorized
officer of the Depositary or, if a Registrar for the Receipts (other than the
Depositary) shall have been appointed, by facsimile signature of a duly
authorized officer of the Depositary and countersigned manually by a duly
authorized officer of such Registrar. The Depositary shall record on its books
each Receipt so signed and delivered as hereinafter provided.
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 the Depositary or
required to comply with any applicable law or any regulation thereunder or with
the rules and regulations of any securities exchange upon which the Shares, 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.
Subject to any limitations set forth in a Receipt or in this Deposit
Agreement 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 Depositary Share shall
be registered on the books of the Depositary as provided in SECTION 2.04, the
Depositary may, notwithstanding any notice to the contrary, treat the Record
Holder thereof at such time as the absolute owner thereof for the purpose of
determining the person entitled to distributions of dividends or other
distributions with respect to the Shares or to any notice provided for in this
Deposit Agreement and for all other purposes.
The Depositary shall not lend any Shares deposited hereunder.
SECTION 2.02. DEPOSIT OF SHARES; 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 under this Deposit
Agreement by delivery
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to the Depositary of a certificate or certificates representing the Shares to be
deposited. Such certificate or certificates representing the Shares shall be
properly endorsed or accompanied, if required by the Depositary, by a duly
executed instrument of transfer or endorsement, in form satisfactory to the
Depositary, together with all such certifications as may be required by the
Depositary in accordance with the provisions of this Deposit Agreement, and
together with a written order of the Company 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 relating to
such deposited Shares.
All Shares deposited by the Company with the Depositary shall be held
by the Depositary at the Depositary's Office or at such other place or places as
the Depositary shall determine.
Upon receipt by the Depositary of a certificate or certificates
representing the Shares deposited in accordance with the provisions of this
Section, together with the other documents required as above specified, and upon
recordation of the Shares so deposited 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, a Receipt or
Receipts for the number of Depositary Shares relating to the Shares 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.
Other than in the case of splits, combinations or other
reclassifications affecting the Shares, or in the case of dividends or other
distributions of Shares, if any, there shall be deposited hereunder not more
than ______ Shares.
SECTION 2.03. REDEMPTION OF SHARES. Whenever the Company shall elect
to redeem Shares in accordance with the provisions of the Articles
Supplementary, it shall (unless otherwise agreed in writing with the Depositary)
mail notice to the Depositary of such proposed redemption, by first class mail,
postage prepaid, not less than 40 or more than 70 days prior to the date fixed
for redemption of Shares in accordance with Section ___ of the Articles
Supplementary. On the date of such redemption, provided that the Company shall
then have paid in full to the Depositary the redemption price of the Shares to
be redeemed, plus any accrued and unpaid dividends thereon, the Depositary shall
redeem the Depositary Shares relating to such Shares. The Depositary shall mail
notice of such redemption and the proposed simultaneous redemption of the number
of Depositary Shares relating to the Shares 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 Shares and
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Depositary Shares (the "REDEMPTION DATE"), to the Record Holders of the
Depositary Shares to be so redeemed, at the addresses of such holders as they
appear on the records of the Depositary; PROVIDED, HOWEVER, neither failure to
mail any such notice to one or more such holders nor any defect in any notice to
one or more such holders shall affect the sufficiency of the proceedings for
redemption as to other holders. Each such notice shall state: (i) the
Redemption Date; (ii) the place or places where Receipts evidencing Depositary
Shares are to be surrendered for payment of the redemption price; (iii) the
redemption price; (iv) that dividends in respect of the Shares underlying the
Depositary Shares to be redeemed will cease to accrue and accumulate at the
close of business on such Redemption Date; (v) the number of Depositary Shares
to be redeemed and, if less than all the Depositary Shares held by any such
holder are to be redeemed, the number of such Depositary Shares held by such
holder to be so redeemed; and (vi) if a date other than the Redemption Date, the
date from and after which the Shares and Depositary Shares shall no longer be
deemed to be outstanding. In case less than all the outstanding Depositary
Shares are to be redeemed, the Depositary Shares to be so redeemed shall be
selected by lot, pro rata or such other method as may be determined by the
Depositary to be equitable.
Notice having been mailed by the Depositary as aforesaid, from and
after the Redemption Date (unless the Company shall have failed to redeem the
Shares to be redeemed by it as set forth in the Company's notice provided for in
the preceding paragraph) all dividends in respect of the Depositary Shares so
called for redemption shall cease to accrue and accumulate, the Depositary
Shares being redeemed from such proceeds shall be deemed to be no longer
outstanding, 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, upon surrender in accordance
with such notice of the Receipts evidencing any such Depositary Shares (properly
endorsed or assigned for transfer, if the Depositary shall so require), such
Depositary Shares shall be redeemed by the Depositary at a redemption price per
Depositary Share equal to the proportionate part of the redemption price per
share paid in respect of the Shares plus all money and other property, if any,
paid with respect to such Depositary Shares, including all amounts paid by the
Company in respect of dividends which on the Redemption Date have accumulated on
the Shares to be so redeemed and have not theretofore been paid.
If less than all the Depositary Shares evidenced by a Receipt are
called for redemption, the Depositary will deliver to the holder of such Receipt
upon its surrender to the Depositary, together with the redemption payment, a
new Receipt evidencing the Depositary Shares evidenced by such prior Receipt and
not called for redemption; PROVIDED, HOWEVER, that such Replacement Receipt
shall be issued only in denominations of whole Depositary Shares and cash will
be payable in respect of fractional interests.
SECTION 2.04. REGISTRATION OF TRANSFER OF RECEIPTS. Subject to the
terms and conditions of this Deposit Agreement, the Depositary shall register on
its books from
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time to time transfers of Depositary Shares upon any surrender of the Receipt or
Receipts evidencing such Depositary Shares by the holder in person or by duly
authorized attorney, properly endorsed or accompanied by a properly executed
instrument of transfer; provided, however, that except as otherwise provided
herein or in any Book-Entry Receipt, each Book-Entry Receipt may be transferred
only in whole and only to the Depositary, to another nominee of the Depositary,
to a successor depository, or to a nominee of a successor depository. Thereupon
the Depositary shall execute a new Receipt or Receipts evidencing the same
aggregate number of Depositary Shares as those evidenced by the Receipt or
Receipts surrendered and deliver such new Receipt or Receipts to or upon the
order of the person entitled thereto.
SECTION 2.05. SPLIT-UPS AND COMBINATIONS OF RECEIPTS; SURRENDER OF
DEPOSITARY SHARES AND WITHDRAWAL OF SHARES. 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
denominations requested, evidencing the aggregate number of Depositary Shares
evidenced by the Receipt or Receipts surrendered. The Depositary shall give
prompt notice of such action and the certificate numbers to the Registrar for
the purposes of recording such split-up or consolidation.
Unless the Depositary Shares have previously been called for
redemption, any holder of Depositary Shares may withdraw the number of whole
Shares underlying such Depositary Shares and all money and other property, if
any, underlying such Depositary Shares by surrendering Receipts evidencing such
Depositary Shares at the Depositary's Office or at such other offices as the
Depositary may designate for such withdrawals. Thereafter, without unreasonable
delay, the Depositary shall deliver to such holder, or to the person or persons
designated by such holder as hereinafter provided, the number of whole Shares
and all money and other property, if any, underlying the Depositary Shares so
surrendered for withdrawal, but holders of such whole Shares will not thereafter
be entitled to deposit such Shares hereunder or to receive Receipts evidencing
Depositary Shares therefor. If a Receipt or Receipts delivered by a holder to
the Depositary in connection with such withdrawal shall evidence in the
aggregate a number of Depositary Shares in excess of the number of Depositary
Shares representing the number of whole Shares to be so withdrawn, the
Depositary shall at the same time, in addition to such number of whole Shares
and such money and other property, if any, to be so withdrawn, deliver to such
holder, or (subject to SECTIONS 2.04 and 3.02) upon his order, a new Receipt
evidencing such excess number of Depositary Shares. Delivery of the Shares and
money and other property being withdrawn may be made by delivery of such
certificates, documents of title and other instruments as the Depositary may
deem appropriate.
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Shares delivered pursuant to the preceding paragraph may be endorsed
with or have incorporated in the text thereof such legend or recitals or changes
not inconsistent with the provisions of this Deposit Agreement as may be
required by the Depositary or required to comply with any applicable law or any
regulation thereunder or with the rules and regulations of any securities
exchange upon which the Shares may be listed or to conform with any usage with
respect thereto, or to indicate any special limitations or restrictions to which
any particular Shares are subject.
If the Shares and the money and other property being withdrawn are to
be delivered to a person or persons other than the Record Holder of the
Depositary Shares evidenced by the Receipts being surrendered for withdrawal of
Shares, 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 be properly
endorsed in blank or accompanied by a properly executed instrument of transfer
in blank.
Delivery of the Shares and money and other property, if any,
underlying the Depositary Shares 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 Depositary Shares and for the account of
such holder, such delivery may be made at such other place as may be designated
by such holder.
SECTION 2.06. LIMITATIONS ON EXECUTION AND DELIVERY, TRANSFER,
SURRENDER AND EXCHANGE OF RECEIPTS. As a condition precedent to the execution
and delivery, registration of transfer, split-up, combination, surrender or
exchange of any Receipt, the Depositary, any of the Depositary's Agents or the
Company may require payment to it of a sum sufficient for the payment (or, in
the event that the Depositary or the Company shall have made such payment, the
reimbursement to it) of any charges or expenses payable by the holder of a
Receipt pursuant to SECTION 5.07, may require the production of evidence
satisfactory to it as to the identity and genuineness of any signature and may
also require compliance with the rules and regulations of any governmental body,
the New York Stock Exchange, any applicable self regulatory body or such
regulations, if any, as the Depositary or the Company may establish consistent
with the provisions of this Deposit Agreement.
The delivery of Receipts against Shares may be suspended, the
registration of transfer of Depositary Shares may be refused and the
registration of transfer, surrender or exchange of outstanding Depositary Shares
may be suspended (i) during any period when the register of shareholders 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, New York Stock Exchange or under any provision
of this Deposit Agreement.
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SECTION 2.07. LOST RECEIPTS, ETC. In case any Receipt shall be
mutilated, destroyed, lost or stolen, the Depositary in its discretion may
execute and deliver a Receipt of like form and tenor in exchange and
substitution for such mutilated Receipt or in lieu of and in substitution for
such destroyed, lost or stolen Receipt, upon (i) the filing by the holder
thereof with the Depositary of evidence satisfactory to the Depositary of such
destruction or loss or theft of such Receipt, of the authenticity thereof and of
his or her ownership thereof and (ii) the holder's furnishing of the Depositary
with reasonable indemnification satisfactory to such Depositary and the Company.
SECTION 2.08. CANCELLATION AND DESTRUCTION OF SURRENDERED RECEIPTS.
All Receipts surrendered to the Depositary or any Depositary's Agent shall be
canceled by the Depositary. Except as prohibited by applicable law or
regulation, the Depositary is authorized to destroy all Receipts so canceled.
SECTION 2.09. BOOK-ENTRY RECEIPTS. (a) All or a portion of the
Receipts may be represented by one or more Book-Entry Receipts deposited with
[the Depository Trust Company] (the "DEPOSITORY") and registered in the name of
[Cede & Co.], a nominee of the Depository. Each Book-Entry Receipt shall bear
such legend or legends as may be required by the Depository in order for it to
accept the Depositary Shares for its book-entry settlement system. Except as
provided for in SECTION 2.09(b), no person acquiring Receipts with book-entry
settlement through the Depository shall receive or be entitled to receive
definitive Receipts. Ownership of beneficial interests in the Depositary Shares
shall be shown on, and the transfer of such ownership shall be affected through,
records maintained by (i) the Depository or its nominee for each Book-Entry
Receipt, or (ii) institutions that have accounts with the Depository (such
institution, with respect to a Depositary Share in its account, a
"PARTICIPANT").
(b) If subsequently (i)(1) the Depository notifies the Company in
accordance with SECTION 7.04 that it is unwilling or unable to continue as a
depository for such Depositary Shares or (2) at any time the Depository ceases
to be a clearing agency registered under the Securities Exchange Act of 1934, as
amended, at a time when the Depository is required to be so registered in order
to act as such depository and (ii) the Company does not appoint a successor
within 90 days, the Depositary shall provide written instructions to the
Depository to deliver to the Depositary for cancellation each Book-Entry
Receipt, and the Company shall instruct the Depository to deliver to the
Depositary definitive Receipts in physical form evidencing such Depositary
Shares. Such definitive Receipts shall be in the form amended hereto as EXHIBIT
A with appropriate insertions, modification and omissions, as provided above.
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ARTICLE III
CERTAIN OBLIGATIONS OF THE HOLDERS
OF RECEIPTS AND THE COMPANY
SECTION 3.01. FILING PROOFS, CERTIFICATES AND OTHER INFORMATION. Any
holder of a Depositary Share may be required from time to time to file such
proof of residence, or other matters or other information, to obtain such
guarantees of signature, to execute such certificates and to make such
representations and warranties as the Depositary or the Company may deem
reasonably necessary or proper. The Depositary or the Company may withhold the
delivery, or delay the registration of transfer, redemption or exchange, of any
Depositary Share or the withdrawal of any Shares underlying Depositary Shares or
the distribution of any dividend or other distribution or the sale of any rights
or of the proceeds thereof until such proof or other information is filed or
such certificates are executed or such representations and warranties are made.
SECTION 3.02. PAYMENT OF TAXES OR OTHER GOVERNMENTAL CHARGES.
Holders of Depositary Shares shall be obligated to make payments to the
Depositary of certain charges and expenses as provided in SECTION 5.07.
Registration of transfer of any Depositary Share or any withdrawal of Shares and
delivery of all money or other property, if any, underlying such Depositary
Share may be refused until any such payment due is made, and any dividends or
other distributions may be withheld or all or any part of the Shares or other
property relating to such Depositary Shares 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 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 Depositary Share remaining liable
for any deficiency.
SECTION 3.03. WARRANTY AS TO SHARES. The Company hereby represents
and warrants to the Depositary that the Shares, when issued, will be validly
issued, fully paid and nonassessable. Such representation and warranty shall
survive the deposit of the Shares and the issuance of the Receipts.
SECTION 3.04. WARRANTY AS TO RECEIPTS. The Depositary hereby
represents and warrants that the Receipts, when issued, will be legal, valid and
binding obligations of the Depositary, enforceable against the Depositary in
accordance with their terms, subject to bankruptcy, insolvency, fraudulent
transfer, reorganization, moratorium and similar laws of general applicability
relating to or affecting creditors' rights and to general equity principles.
Such representation and warranty shall survive the deposit of the Shares and the
issuance of the Receipts.
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ARTICLE IV
THE DEPOSITED SECURITIES; NOTICES
SECTION 4.01. CASH DISTRIBUTIONS. Whenever the Depositary shall
receive any cash dividend or other cash distribution on the Shares, the
Depositary shall, subject to SECTIONS 3.01 and 3.02, distribute to the Record
Holders of Depositary Shares on the record date fixed pursuant to SECTION 4.04
such amounts of such dividend or distribution as are, as nearly as practicable,
in proportion to the respective numbers of Depositary Shares 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 Shares an amount on account of taxes, the amount
made available for distribution or distributed in respect of Depositary Shares
shall be reduced accordingly. The Depositary shall distribute or make available
for distribution, as the case may be, only such amount, however, as can be
distributed without attributing to any holder of Depositary Shares a fraction of
one cent, and any balance not so distributable shall be held by the Depositary
(without liability for interest thereon) and shall be added to and be treated as
part of the next succeeding distribution to record holders of Receipts.
SECTION 4.02. DISTRIBUTIONS OTHER THAN CASH. Whenever the Depositary
shall receive any distribution other than cash with respect to the Shares, the
Depositary shall, subject to SECTIONS 3.01 and 3.02, distribute to the Record
Holders of Depositary Shares on the record date fixed pursuant to SECTION 4.04
such amounts of the securities or property received by it as are, as nearly as
practicable, in proportion to the respective numbers of Depositary Shares 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 or governmental
charges) 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) of the
securities or property thus received, or any part thereof, at such place or
places and upon such terms as it may deem proper. The net proceeds of any such
sale shall, subject to SECTIONS 3.01 and 3.02, be distributed or made available
for distribution, as the case may be, by the Depositary to the Record Holders of
Depositary Shares entitled thereto as provided by SECTION 4.01 in the case of a
distribution received in cash. The Company shall not make any distribution of
such securities unless the Company shall have provided an opinion of counsel to
the effect that such securities have been registered under the Securities Act or
do not need to be registered.
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SECTION 4.03. SUBSCRIPTION RIGHTS, PREFERENCES OR PRIVILEGES. If the
Company shall at any time offer or cause to be offered to the persons in whose
names Shares are recorded on the books of the Company any rights, preferences or
privileges to subscribe for or to purchase any securities or any rights,
preferences or privileges of any other nature, such rights, preferences or
privileges shall in each such instance be made available by the Depositary to
the Record Holders of Depositary Shares 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 Depositary Shares by the issue
of warrants or otherwise, or (ii) if and to the extent so instructed by holders
of Depositary Shares who do not desire to exercise such rights, preferences or
privileges, then the Depositary, in its discretion (with the approval of the
Company, in any case where the Depositary has determined that it is not feasible
to make such rights, preferences or privileges available), may, if applicable
laws or the terms of such rights, preferences or privileges permit such
transfer, sell such rights, preferences or privileges at public or private sale,
at such place or places and upon such terms as it may deem proper. The net
proceeds of any such sale shall, subject to SECTIONS 3.01 and 3.02, be
distributed by the Depositary to the Record Holders of Depositary Shares
entitled thereto as provided by SECTION 4.01 in the case of a distribution
received in cash. The Company shall not make any distribution of such rights,
preferences or privileges unless the Company shall have provided an opinion of
counsel to the effect that such rights, preferences or privileges have been
registered under the Securities Act or do not need to be registered.
If registration under the Securities Act of the securities to which
any rights, preferences or privileges relate is required in order for holders of
Depositary Shares to be offered or sold the securities to which such rights,
preferences or privileges relate, the Company agrees with the Depositary that it
will file promptly a registration statement pursuant to such 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 Depositary Shares any right, preference or privilege to subscribe
for or to purchase any securities unless and until such a registration statement
shall have become effective, or unless the offering and sale of such securities
to such holders are exempt from registration under the provisions of such Act.
If any other action under the laws of any jurisdiction or any
governmental or administrative authorization, consent or permit is required in
order for such rights, preferences or privileges to be made available to the
holders of Depositary Shares, the
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Company agrees with the Depositary that the Company will use its best efforts to
take such action or obtain such authorization, consent or permit sufficiently in
advance of the expiration of such rights, preferences or privileges to enable
such holders to exercise such rights, preferences or privileges.
SECTION 4.04. NOTICE OF DIVIDENDS, ETC.; FIXING OF RECORD DATE FOR
HOLDERS OF DEPOSITARY SHARES. (i) Whenever any cash dividend or other cash
distribution shall become payable or any distribution other than cash shall be
made, (ii) if rights, preferences or privileges shall at any time be offered,
with respect to the Shares, (iii) whenever the Depositary shall receive notice
of (a) any meeting at which holders of Shares are entitled to vote or of which
holders of Shares are entitled to notice, or (b) any election by the Company to
redeem any Shares, or (iv) whenever the Depositary and the Company shall decide
it is appropriate, the Depositary shall in each such instance fix a record date
(which shall be the same date as the record date fixed by the Company with
respect to the Shares) for the determination of the holders of Depositary Shares
who shall be entitled to receive a distribution in respect of 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 receive notice of such meeting.
SECTION 4.05. VOTING RIGHTS. Upon receipt of notice of any meeting
at which the holders of the Shares are entitled to vote, the Depositary shall,
as soon as practicable thereafter, mail to the Record Holders of Depositary
Shares a notice which shall contain (i) such information as is contained in such
notice of meeting and (ii) a statement informing holders of Depositary Shares
that they may instruct the Depositary as to the exercise of the voting rights
pertaining to the amount of Shares underlying their respective Depositary Shares
and a brief statement as to the manner in which such instructions may be given.
Upon the written request of the holders of Depositary Shares on the record date
established in accordance with SECTION 4.04, the Depositary shall endeavor
insofar as practicable to vote or cause to be voted, in accordance with the
instructions set forth in such requests, the maximum number of whole Shares
underlying the Depositary Shares as to which any particular voting or consent
instructions are received. The Company hereby agrees to take all action which
may be deemed necessary by the Depositary in order to enable the Depositary to
vote such Shares or cause such Shares to be voted. In the absence of specific
instructions from the holder of a Depositary Share, the Depositary will abstain
from voting (but, at its discretion, not from appearing at any meeting held with
respect to such Shares unless directed to the contrary by the holders of all the
Depositary Shares) to the extent of the Shares underlying the Depositary Shares
evidenced by such Receipt.
SECTION 4.06. CHANGES AFFECTING DEPOSITED SECURITIES AND
RECLASSIFICATIONS, RECAPITALIZATIONS, ETC. Upon any change in par or
liquidation value, split-up, combination or any other reclassification of the
Shares, or upon any recapitalization, reorganization, merger, amalgamation or
consolidation affecting the Company or to which
12
it is a party, the Depositary may in its discretion, with the approval of, and
shall upon the instructions of, the Company, and (in either case) in such manner
as the Depositary may deem equitable, (i) make such adjustments in (a) the
fraction of an interest in one Share underlying one Depositary Share and (b) the
ratio of the redemption price per Depositary Share to the redemption price of a
Share, in each case as may be necessary to reflect fully the effects of such
change in par or liquidation value, split-up, combination or other
reclassification of the Shares, or of such recapitalization, reorganization,
merger, amalgamation or consolidation and (ii) treat any securities which shall
be received by the Depositary in exchange for or upon conversion of or in
respect of the Shares as new deposited securities so received in exchange for or
upon conversion of or in respect of such Shares. 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 or in the Receipt notwithstanding,
holders of Receipts shall have the right from and after the effective date or
any such change in par or stated value, split-up, combination or other
reclassification of the Shares or any such recapitalization, reorganization,
merger, amalgamation, consolidation or sale, to the extent that holders of
Shares had the right, prior to or on the applicable effective date, to convert,
exchange or surrender Shares into or for other shares, securities, property or
cash, to surrender such Receipts to the Depositary with instructions to convert,
exchange or surrender the Shares represented thereby only into or for, as the
case may be, the kind and amount of shares and other securities and property and
cash into which the Shares represented by such Receipts has been converted or
for which such Shares might have been exchanged or surrendered immediately prior
to the effective date of such transaction.
SECTION 4.07. DELIVERY OF REPORTS. The Depositary will forward to
Record Holders of Receipts, at their respective addresses appearing in the
Depositary's books, all notices, reports and communications received from the
Company which are delivered to the Depositary and which the Company is required
to furnish to the holders of Shares or Receipts.
SECTION 4.08. LIST OF HOLDERS. Promptly upon request from time to
time by the Company, the Depositary shall furnish to it a list, as of a recent
date, of the names, addresses and holdings of Depositary Shares of all persons
in whose names Depositary Shares are registered on the books of the Depositary
or Registrar, as the case may be.
ARTICLE V
THE DEPOSITARY, THE DEPOSITARY'S AGENTS,
13
THE REGISTRAR AND THE COMPANY
SECTION 5.01. MAINTENANCE OF OFFICES, AGENCIES AND TRANSFER BOOKS BY
THE DEPOSITARY; REGISTRAR. Upon execution of this Deposit Agreement, the
Depositary shall maintain at the Depositary's Offices or at any Registrar's
Office, facilities for the execution and delivery, surrender and exchange of
Receipts and the registration and registration of transfer of Depositary Shares
and at the offices of the Depositary's Agents, if any, facilities for the
delivery, surrender and exchange of Receipts and the registration of transfer of
Depositary Shares, all in accordance with the provisions of this Deposit
Agreement. The Depositary shall have complete access to all books and records
maintained on the Company's behalf at such Depositary's Offices or at such
Registrar's Offices.
The Depositary shall keep books at the Depositary's Office for the
registration and registration of transfer of Depositary Shares, which books at
all reasonable times shall be open for inspection by the Record Holders of
Depositary Shares; 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.
The Depositary may close such books, at any time or from time to time,
when deemed expedient by it in connection with the performance of its duties
hereunder.
If the Receipts or the Depositary Shares evidenced thereby or the
Shares underlying such Depositary Shares shall be listed on the New York Stock
Exchange, the Depositary may, with the approval of the Company, appoint a
Registrar for registration of such Receipts or Depositary Shares in accordance
with any requirements of such Exchange. Such Registrar (which may be the
Depositary if so permitted by the requirements of such Exchange) may be removed
and a substitute registrar appointed by the Depositary upon the request or with
the approval of the Company. If such Receipts, such Depositary Shares or such
Shares are listed on one or more other stock exchanges, the Depositary will, at
the request of the Company, arrange such facilities for the delivery,
registration, registration of transfer, surrender and exchange of such Receipts,
such Depositary Shares or such Shares as may be required by law or applicable
stock exchange regulation.
SECTION 5.02. PREVENTION OF OR DELAY IN PERFORMANCE BY THE
DEPOSITARY, THE DEPOSITARY'S AGENTS, ANY REGISTRAR OR THE COMPANY. Neither the
Depositary nor any Depositary's Agent nor any Registrar nor the Company shall
incur any liability to any holder Depositary Share 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, any Depositary's Agent or any Registrar, by reason of any provision,
present or future, of the Company's Amended and Restated Declaration of Trust
(including the Articles Supplementary) or by reason of any act of God or war or
other circumstance
14
beyond the control of the relevant party, the Depositary, any Depositary's
Agent, any Registrar or the Company shall be prevented or forbidden from 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,
any Registrar or the Company incur any liability to any holder of a Depositary
Share (i) by reason of any nonperformance or delay, caused as aforesaid, in the
performance of any act or thing which the terms of this Deposit Agreement
provide shall or may be done or performed, or (ii) by reason of any exercise of,
or failure to exercise, any discretion provided for in this 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 5.03. OBLIGATIONS OF THE DEPOSITARY, THE DEPOSITARY'S AGENTS,
ANY REGISTRAR AND THE COMPANY. Neither the Depositary nor any Depositary's
Agent nor any Registrar nor the Company assumes any obligation or shall be
subject to any liability under this Deposit Agreement to holders of Depositary
Shares other than for its negligence or willful misconduct.
Neither the Depositary nor any Depositary's Agent nor any 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 Shares, the Depositary
Shares or the Receipts which in its opinion may involve it in expense or
liability unless indemnity satisfactory to it against all expense and liability
be furnished as often as may be required.
Neither the Depositary nor any Depositary's Agent nor any Registrar
nor the Company shall be liable for any action or any failure to act by it in
reliance upon the written advice of legal counsel or accountants, or information
from any person presenting Shares for deposit, any holder of a Depositary Share
or any other person believed by it in good faith to be competent to give such
information. The Depositary, any Depositary's Agent, any Registrar and the
Company may each rely and shall each be protected in acting upon any written
notice, request, direction or other document believed by it to be genuine and to
have been signed or presented by the proper party or parties.
The Depositary shall not be responsible for any failure to carry out
any instruction to vote any of the Shares or for the manner or effect of any
such vote, as long as any such action or non-action is in good faith. The
Depositary undertakes and shall cause any Registrar to undertake, to perform
such duties and only such duties as are specifically set forth in this Deposit
Agreement using its reasonable best efforts and in good faith. The parties
hereto acknowledge that no implied covenants or obligations shall be read into
this Deposit Agreement against the Depositary or any Registrar. The Depositary
will indemnify the Company against any liability which may arise out of acts
performed or omitted by the Depositary or its agents due to its or their gross
negligence or bad faith. The Depositary, any
15
Depositary's Agents, any Registrar and the Company may own and deal in any class
of securities of the Company and its affiliates and in Depositary Shares. The
Depositary may also act as transfer agent or registrar of any of the securities
of the Company and its affiliates.
SECTION 5.04. RESIGNATION AND REMOVAL OF THE DEPOSITARY; APPOINTMENT
OF SUCCESSOR DEPOSITARY. The Depositary may at any time resign as Depositary
hereunder by notice of its election so to do delivered to the Company, such
resignation to take effect upon the appointment of a successor Depositary and
its acceptance of such appointment as hereinafter provided.
The Depositary may at any time be removed by the Company by notice of
such removal delivered to the Depositary, such removal to take effect upon the
appointment of a successor Depositary and its acceptance of such appointment as
hereinafter provided.
In case the Depositary acting hereunder shall at any time resign or be
removed, the Company shall, within 60 days after the delivery of the notice of
resignation or removal, as the case may be, appoint a successor Depositary,
which shall be a bank or trust company having its principal office in the United
States of America and having a combined capital and surplus of at least
$50,000,000. If no successor Depositary shall have been so appointed 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 Shares 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 Depositary Shares. Any successor Depositary shall promptly
mail notice of its appointment to the Record Holders of Depositary Shares.
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. Such successor
Depositary may authenticate the Receipts in the name of the predecessor
Depositary or in the name of the successor Depositary.
SECTION 5.05. CORPORATE NOTICES AND REPORTS. The Company agrees that
it will deliver to the Depositary and the Depositary will, promptly after
receipt thereof,
16
transmit to the Record Holder of Depositary Shares, in each case at the address
furnished to it pursuant to SECTION 4.08, all notices, reports and
communications (including without limitation financial statements) required by
law, the rules of any national securities exchange upon which the Shares, the
Depositary Shares or the Receipts are listed or by the Company's Amended and
Restated Declaration of Trust (including the Articles Supplementary) to be
furnished by the Company to holders of the Shares. 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 5.06. INDEMNIFICATION BY THE COMPANY. The Company shall
indemnify the Depositary, any Depositary's Agent and any Registrar against, and
hold each of them harmless from, any loss, liability or expense (including the
costs and expenses of defending itself) which may arise out of (i) acts
performed or omitted in connection with this Deposit Agreement and the
Depositary Shares (a) 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, or (b) by the Company or any of its agents,
or (ii) the offer, sale or registration of the Depositary Shares or the Shares
pursuant to the provisions hereof. The obligations of the Company set forth in
this SECTION 5.06 shall survive any succession of any Depositary, Registrar or
Depositary's Agent.
SECTION 5.07. CHARGES AND EXPENSES. The Company shall pay all
transfer and other taxes and governmental charges arising solely from the
existence of the depositary arrangements. The Company shall pay all charges of
the Depositary in connection with the initial deposit of the Shares and the
initial issuance of the Receipts, any redemption of the Shares at the option of
the Company and any withdrawals of Shares by holders of Depositary Shares. All
other transfer and other taxes and governmental charges shall be at the expense
of holders of Depositary Shares. The Depositary may refuse to effect any
transfer of a Receipt or any withdrawal of Shares evidenced hereby until all
such taxes and charges with respect to such receipt or shares are paid by the
holders thereof. If, at the request of a holder of a Depositary Share, 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, any Depositary's Agent hereunder and any
Registrar (including, in each case, 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 once every three months or
at such other intervals as the Company and the Depositary may agree.
17
ARTICLE VI
AMENDMENT AND TERMINATION
SECTION 6.01. AMENDMENT. The form of the Receipts and any provisions
of this Deposit Agreement may at any time and from time to time be amended by
agreement between the Company and the Depositary in any respect which they may
deem necessary or desirable; PROVIDED, HOWEVER, that no such amendment which
shall materially and adversely alter the rights of the existing holders of
Depositary Shares 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 Depositary Share at the time any
such amendment becomes effective shall be deemed, by continuing to hold such
Depositary Share, to consent and agree to such amendment and to be bound by this
Deposit Agreement as amended thereby. In no event shall any amendment impair
the right, subject to the provisions of SECTIONS 2.05 and 2.06, of any owner of
any Depositary Shares to surrender any Receipt evidencing such Depositary Shares
to the Depositary with instructions to deliver to the holder the Shares and all
money and other property, if any, represented thereby, except in order to comply
with mandatory provisions of applicable law or the rules and regulations of any
governmental body, agency or commission, the depository for any Book-Entry
Receipts, the New York Stock Exchange or any applicable stock exchange.
SECTION 6.02. TERMINATION. This Deposit Agreement may be terminated
by the Company or the Depositary only after (i) all outstanding Depositary
Shares shall have been redeemed and any accumulated and unpaid dividends on the
Shares represented by the Depositary Shares, together with all other moneys and
property, if any, to which holders of the related Receipts are entitled under
the terms of such Receipts or this Deposit Agreement, have been paid or
distributed as provided in this Deposit Agreement or provision therefor has been
duly made pursuant to SECTION 2.03, (ii) all the Shares have been withdrawn
pursuant to SECTION 2.05 or (iii) there shall have been made a final
distribution in respect of the Shares in connection with any liquidation,
dissolution or winding up of the Company and such distribution shall have been
distributed to the holders of Receipts pursuant to SECTION 4.01 or 4.02, as
applicable. Whenever the Deposit Agreement has been terminated pursuant to
(iii) above, the Depositary will mail notice of such termination to the record
holders of all Depositary Shares then outstanding at least 30 days prior to the
date fixed in that notice for termination of the Deposit Agreement. If any
Depositary Shares remain outstanding after the date of termination, the
Depositary thereafter will discontinue the transfer of Depositary Shares, will
suspend the distribution of dividends to the owners thereof, and will not give
any further notices (other than notice of such termination) or perform any
further acts under this Deposit Agreement, except that the Depositary will
continue (i) to collect dividends on the Shares and any other distributions with
respect thereto and (ii) to deliver or cause to be delivered Shares, together
with such dividends and distributions, or principal and interest, and the net
proceeds of any sales of rights, preferences, privileges or other property
(other
18
than real property) in exchange for Depositary Shares surrendered. At any time
after the expiration of three years from the date of termination, the Depositary
may sell the Shares then held by it at a public or private sale, at such place
or places and upon such terms as it deems proper and may thereafter hold the net
proceeds of such sale, without liability for interest, for the pro rata benefit
of the owners of the Depositary Shares which have not theretofore been
surrendered. Subject to applicable escheat laws, any monies set aside by the
Company in respect of any payment with respect to the Shares represented by the
Depositary Shares, or dividends thereon, and unclaimed at the end of three years
from the date upon which such payment is due and payable shall revert to the
general funds of the Company, after which reversion the holders of such
Depositary Shares shall look only to the general funds of the Company for
payment thereof.
Upon the termination of this Deposit Agreement, the parties hereto
shall be discharged from all obligations under this Deposit Agreement except for
their respective obligations under SECTIONS 5.03, 5.06 and 5.07.
ARTICLE VII
MISCELLANEOUS
SECTION 7.01. COUNTERPARTS. This Deposit Agreement may be executed
in any number of counterparts and by each of the parties hereto on separate
counterparts, each of which counterparts, when so executed and delivered, shall
be deemed an original, but all such counterparts taken together shall constitute
one and the same instrument.
SECTION 7.02. EXCLUSIVE BENEFIT OF PARTIES. This Deposit Agreement
is for the exclusive benefit of the parties hereto and their respective
successors hereunder and shall not be deemed to give any legal or equitable
right, remedy or claim to any other person whatsoever.
SECTION 7.03. INVALIDITY OF PROVISIONS. 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 7.04. NOTICES. Any and all notices to be given to the
Company hereunder or under the Receipts shall be in writing and shall be deemed
to have been duly given if personally delivered or sent by mail or telegram or
telex confirmed by letter, addressed to the Company at 00 Xxxx Xxxxxx Xxxxx,
Xxxxx 0000, Xxxxxxx, Xxxxxxxx 00000,
19
telephone (312) __________, facsimile (312) __________, Attention:
____________, 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, telecopy or telex confirmed
by letter, addressed to the Depositary at the Depositary's Office,
at________________________________, telephone (___) _____-_________, facsimile
(___) _____-_________, Attention: ___________, or at any other address and to
the attention of any other person of which the Depositary shall have notified
the Company in writing.
Any and all notices to be given to any Record Holder of a Receipt
hereunder or under the Receipts shall be in writing and shall be deemed to have
been duly given if personally delivered or sent by mail, telegram or telex (and
confirmed by letter in the case of a telegram or telex), to such Record Holder
at the address of such Record Holder as such address 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 telex shall be
deemed to be effected at the time when a duly addressed letter containing the
same (or a confirmation thereof in the case of a telegram or telex message) is
deposited, postage prepaid, in a post office letter box. The Depositary or the
Company may, however, act upon any telegram or telex message received by it from
the other or from any holder of a Depositary Share, notwithstanding that such
telegram or telex message shall not subsequently be confirmed by letter or as
aforesaid.
SECTION 7.05. DEPOSITARY'S AGENTS. The Depositary may from time to
time, with the prior approval of the Company, 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 7.06. HOLDERS OF RECEIPTS ARE PARTIES. The holders of
Depositary Shares 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
evidencing such Depositary Shares by acceptance of delivery thereof.
SECTION 7.07. GOVERNING LAW. THIS DEPOSIT AGREEMENT AND EACH RECEIPT
AND ALL RIGHTS HEREUNDER AND THEREUNDER AND PROVISIONS HEREOF AND THEREOF SHALL
BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF [NEW
20
YORK] (WITHOUT REFERENCE TO APPLICABLE CONFLICTS OF LAW PROVISIONS).
SECTION 7.08. INSPECTION OF DEPOSIT AGREEMENT. Copies of this
Deposit Agreement shall be filed with the Depositary and the Depositary's Agents
and shall be open to inspection during business hours at the Depositary's Office
and the respective offices of the Depositary's Agents, if any, by any holder of
a Depository Share.
SECTION 7.09. HEADINGS. The headings of articles and sections in
this Deposit Agreement and in the form of Receipt set forth in Exhibit A hereto
have been inserted for convenience only and are not to be regarded as part of
this Deposit Agreement or the Receipts or as having any bearing upon the meaning
or interpretation of any provision contained herein or in the Receipts.
IN WITNESS WHEREOF, the Company and the Depositary have duly executed
this Deposit Agreement as of the day and year first above set forth, and all
holders of Depositary Shares shall become parties hereto by and upon acceptance
by them of delivery of Receipts evidencing such Depositary Shares and issued in
accordance with the terms hereof.
PRIME GROUP REALTY TRUST, a
Maryland real estate investment trust
By
-------------------------------------------
[Name and Title]
---------------------------------------------
As Depositary
By
-------------------------------------------
Authorized Officer
21
EXHIBIT A
FORM OF DEPOSITARY RECEIPT
FOR DEPOSITARY SHARES
[GENERAL FORM OF FACE OF RECEIPT]
NUMBER DEPOSITARY SHARES
DEPOSITARY RECEIPT FOR DEPOSITARY SHARES,
REPRESENTING __% SERIES ____ PREFERRED SHARES
OF BENEFICIAL INTEREST
PRIME GROUP REALTY TRUST
Organized under the laws of the State of Maryland
This Depositary Receipt is transferable
in [New York, New York]
______________________________, as Depositary, (the "DEPOSITARY"),
hereby certifies that ______________________________ is the registered owner of
____________________ Depositary Shares ("DEPOSITARY SHARES"), each Depositary
Share representing an interest in one of the ____% Series ____ Preferred Shares
of Beneficial Interest, $0.01 par value per share (the "SHARES"), of Prime Group
Realty Trust, a Maryland real estate investment trust (the "COMPANY"), on
deposit with the Depositary, subject to the terms and entitled to the benefits
of the Deposit Agreement dated as of ____________________, _____ (the "DEPOSIT
AGREEMENT"), between the Company, the Depositary and all holders from time to
time of Depositary Receipts. By accepting this Depositary Receipt the holder
hereof becomes a party to and agrees to be bound by all the terms and conditions
of the Deposit Agreement. This Depositary Receipt shall not be valid or
obligatory for any purpose or entitled to any benefits under the Deposit
Agreement unless it shall have been executed by the Depositary by the
manual signature of a duly authorized officer or, if executed in facsimile by
the Depositary, countersigned by a Registrar in respect of the Depositary
Receipts by the manual signature of a duly authorized officer thereof.
Dated: Depositary
--------------
By:
------------------------------------------
Authorized Officer
Registrar
By:
------------------------------------------
Authorized Officer
[GENERAL FORM OF REVERSE OF RECEIPT]
PRIME GROUP REALTY TRUST
PRIME GROUP REALTY TRUST WILL FURNISH WITHOUT CHARGE TO EACH RECEIPT HOLDER WHO
SO REQUESTS A COPY OF THE DEPOSIT AGREEMENT AND A COPY OR SUMMARY OF THE
PORTIONS OF THE AMENDED AND RESTATED DECLARATION OF TRUST AND/OR ARTICLES
SUPPLEMENTARY ESTABLISHING THE POWERS, DESIGNATIONS, PREFERENCES AND RELATIVE,
PARTICIPATING, OPTIONAL OR OTHER SPECIAL RIGHTS OF EACH CLASS OF SHARES OR
SERIES THEREOF WHICH PRIME GROUP REALTY TRUST IS AUTHORIZED TO ISSUE AND THE
QUALIFICATIONS, LIMITATIONS OR RESTRICTIONS OF SUCH PREFERENCES AND/OR RIGHTS OF
SUCH CLASS. ANY SUCH REQUEST IS TO BE ADDRESSED TO PRIME GROUP REALTY TRUST, 00
XXXX XXXXXX XXXXX, XXXXX 0000, XXXXXXX, XXXXXXXX 00000, ATTENTION:
______________.
The following abbreviations, when used in the inscription on the face
of this certificate, shall be construed as though they were written out in full
according to applicable laws or regulations:
TEN COM - as tenants in common
TEN ENT - as tenants by the entireties
JT TEN - as joint tenants with right of survivorship and not as tenants in
common
UNIF GIFT MIN ACT - _______________ Custodian _____________________
(Cust) (Minor)
under the Uniform Gifts to Minors Act ___________________
(State)
Additional abbreviations may also be used though not in the above
list.
For value received, ____________________ hereby sell(s), assign(s) and
transfer(s) 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 receipt and
all rights thereunder, and do hereby irrevocably constitute and appoint
_________________ Attorney to transfer said Depositary Shares on the books of
the within-named Depositary with full power of substitution in the premises.
Dated:
----------------------
-------------------------------------
NOTICE. The signature(s) to this
assignment must correspond with the
name(s) as written upon the face of
this instrument in every
particular, without alteration or
enlargement or any change whatever.
