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EXHIBIT 4.3
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FOREST CITY ENTERPRISES, INC.,
____________________________, As Depositary,
AND
THE HOLDERS FROM TIME TO TIME OF
THE DEPOSITARY RECEIPTS DESCRIBED HEREIN
______________________
Deposit Agreement
______________________
Dated as of ____________, 1997
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TABLE OF CONTENTS
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PARTIES .................................................................... 1
RECITALS ................................................................... 1
ARTICLE I
Definitions
Certificate ................................................................ 1
Certificate of Incorporation ............................................... 2
Corporation ................................................................ 2
Deposit Agreement .......................................................... 2
Depositary ................................................................. 2
Depositary Shares .......................................................... 2
Depositary's Agent ......................................................... 2
Depositary's Office ........................................................ 2
Paying Agent ............................................................... 2
Receipt .................................................................... 3
record holder .............................................................. 3
Redemption Date ............................................................ 3
Registrar .................................................................. 3
Securities Act ............................................................. 3
Series ___ Preferred Stock ................................................. 3
Stock ...................................................................... 3
ARTICLE II
Form of Receipts, Deposit of Stock,
Execution and Delivery, Transfer,
Surrender and Redemption of Receipts
SECTION 2.01 Form and Transfer of Receipts ........................... 3
SECTION 2.02 Deposit of Stock; Execution and
Delivery of Receipts in Respect
Thereof ............................................... 6
SECTION 2.03 Redemption of Stock ..................................... 8
SECTION 2.04 Registration of Transfer of Receipts .................... 12
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SECTION 2.05 Split-Ups and Combinations of Receipts;
Surrender of Receipts and Withdrawal
of Stock .............................................. 12
SECTION 2.06 Limitations on Execution and Delivery,
Transfer, Surrender and Exchange
of Receipts ........................................... 15
SECTION 2.07 Lost Receipts, Etc ...................................... 16
SECTION 2.08 Cancellation and Destruction of
Surrendered Receipts .................................. 16
ARTICLE III
Certain Obligations of Holders
of Receipts and the Corporation
SECTION 3.01 Filing Proofs, Certificates and
Other Information ..................................... 16
SECTION 3.02 Payment of Taxes or Other
Governmental Charges .................................. 17
SECTION 3.03 Warranty as to Stock .................................... 16
ARTICLE IV
The Deposited Securities; Notices
SECTION 4.01 Cash Distributions ...................................... 18
SECTION 4.02 Distributions Other than Cash, Rights,
Preferences or Privileges ............................. 19
SECTION 4.03 Subscription Rights, Preferences
or Privileges ......................................... 20
SECTION 4.04 Notice of Dividends, Etc.; Fixing of
Record Date for Holders of
Receipts .............................................. 23
SECTION 4.05 Voting Rights ........................................... 24
SECTION 4.06 Changes Affecting Deposited Securities
and Reclassifications,
Recapitalizations, Etc ................................ 25
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SECTION 4.07 Inspection of Reports ................................... 26
SECTION 4.08 Lists of Receipt Holders ................................ 27
ARTICLE V
The Depositary, the Depositary's Agents,
the Registrar and the Corporation
SECTION 5.01 Maintenance of Offices, Agencies and
Transfer Books by the Depositary;
Registrar ............................................ 27
SECTION 5.02 Prevention of or Delay in Performance
by the Depositary, the Depositary's
Agents, the Registrar or the
Corporation ........................................... 29
SECTION 5.03 Obligations of the Depositary, the
Depositary's Agents, the Registrar
and the Corporation ................................... 30
SECTION 5.04 Resignation and Removal of the
Depositary; Appointment of
Successor Depositary .................................. 32
SECTION 5.05 Corporate Notices and Reports ........................... 33
SECTION 5.06 Indemnification by the Corporation ...................... 34
SECTION 5.07 Charges and Expenses .................................... 34
SECTION 5.08 Tax Compliance .......................................... 35
ARTICLE VI
Amendment and Termination
SECTION 6.01 Amendment ............................................... 36
SECTION 6.02 Termination ............................................. 37
ARTICLE VII
Miscellaneous
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SECTION 7.01 Counterparts ............................................ 38
SECTION 7.02 Exclusive Benefit of Parties ............................ 38
SECTION 7.03 Invalidity of Provisions ................................ 38
SECTION 7.04 Notices ................................................. 38
SECTION 7.05 Depositary's Agents ..................................... 40
SECTION 7.06 Holders of Receipts Are Parties ......................... 40
SECTION 7.07 Governing Law ........................................... 41
SECTION 7.08 Inspection of Deposit Agreement ......................... 41
SECTION 7.09 Headings ................................................ 41
TESTIMONIUM ............................................................... 42
SIGNATURES ................................................................ 42
EXHIBIT A: Form of Depositary Receipt
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DEPOSIT AGREEMENT dated as of ___________, 1997, among FOREST CITY
ENTERPRISES, INC., an Ohio corporation (the "Corporation"),
____________________, a ____________________ corporation, as depositary (the
"Depositary") and the holders from time to time of the Receipts described
herein.
WHEREAS, it is desired to provide, as hereinafter set forth in this
Deposit Agreement, for the deposit of shares of [Insert designation of shares to
be deposited] of the Corporation 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;
NOW, THEREFORE, in consideration of the premises, the parties hereto
agree as follows:
ARTICLE I
Definitions
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The following definitions shall for all purposes, unless otherwise
indicated, apply to the respective terms used in this Deposit Agreement:
"Certificate" shall mean the certificate of amendment to the Articles
of Incorporation filed with the
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Secretary of State of Ohio establishing the Stock as a series of series
preferred stock, without par value, of the Corporation.
"Certificate of Incorporation" shall mean the Articles of
Incorporation of the Corporation (including the Certificate), as amended or
supplemented from time to time.
"Corporation" shall mean Forest City Enterprises, Inc., an Ohio
corporation, and its successors.
"Deposit Agreement" shall mean this Deposit Agreement, as amended or
supplemented from time to time.
"Depositary" shall mean _________________________,a _______________
corporation, and any successor as Depositary hereunder.
"Depositary Shares" shall mean Depositary Shares, each representing
one-________ (1/___) of a share of Stock and evidenced by a Receipt.
"Depositary's Agent" shall mean an agent appointed by the Depositary
pursuant to Section 7.05 hereof.
"Depositary's Office" shall mean the principal office of the Depositary
in New York City, at which at any particular time its depositary receipt
business shall be administered.
"Paying Agent" shall have the meaning specified in the Certificate.
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"Receipt" shall mean one of the Depositary Receipts issued hereunder,
whether in definitive or temporary form.
"record holder" as applied to a Receipt shall mean the person in whose
name a Receipt is registered on the books of the Depositary maintained for such
purpose.
"Redemption Date" shall have the meaning specified in Section 2.03
hereof.
"Registrar" shall mean any bank or trust company that shall be appointed
to register ownership and transfers of Receipts as herein provided.
"Securities Act" shall mean the Securities Act of 1933 and the rules and
regulations promulgated thereunder, in each case as amended or supplemented from
time to time.
"Series ___ Preferred Stock" shall mean shares of the Corporation's
[Insert designation of shares to be deposited].
"Stock" shall mean shares of the Corporation's Series ___ Preferred
Stock.
ARTICLE II
Form of Receipts, Deposit of Stock, Execution and Delivery,
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Transfer, Surrender and Redemption of Receipts
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SECTION 2.01. FORM AND TRANSFER OF RECEIPTS. Definitive Receipts shall
be engraved or printed or lithographed on steel-engraved borders and shall be
substantially in the form set forth in Exhibit A annexed to
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this Deposit Agreement, with appropriate insertions, modifications and
omissions, as hereinafter provided. Pending the preparation of definitive
Receipts, the Depositary, upon the written order of the Corporation delivered in
compliance with Section 2.02 hereof, shall execute and deliver temporary
Receipts, which shall be 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 such persons' execution of such Receipts. If temporary Receipts
are issued, the Corporation and the Depositary shall 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 last
paragraph of Section 2.02 hereof, 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 Corporation's expense
and without any charge therefor. Until so exchanged, the temporary Receipts
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shall in all respects be entitled to the same benefits under this Agreement, and
with respect to the Stock, 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 counter-signed 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 manual or facsimile signature of a duly authorized
officer of the Depositary and countersigned manually by a duly authorized
officer of such Registrar. The Depositary 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 up to but not in excess of __________ Depositary Shares for any
particular Receipt.]
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 Depositary or required to comply
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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.
Title to Depositary Shares evidenced by a Receipt that is properly
endorsed, or accompanied by a properly executed instrument of transfer, shall be
transferable by delivery with the same effect as in the case of a negotiable
instrument; PROVIDED, HOWEVER, that until transfer of a Receipt shall be
registered on the books of the Depositary as provided in Section 2.04 hereof,
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 2.02. DEPOSIT OF STOCK; EXECUTION AND DELIVERY OF RECEIPTS IN
RESPECT THEREOF. Subject to the terms and conditions of this Deposit Agreement,
the Corporation may from time to time deposit shares of the 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
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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 Corporation
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 and registered in
the name of the person or persons stated in such order.
Upon receipt by the Depositary of a certificate or certificates for
shares of 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 Corporation 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 A RECEIPT or Receipts for
the number of Depositary Shares representing the Stock so deposited registered
in the name or names of the person or persons specified in the written order
delivered to the Depositary referred to in the first paragraph of this Section.
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 to the person or
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persons specified in such order. 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 Stock, or in the case of dividends or other
distributions of Stock, if any, or unless the Corporation provides written
notice to the Depositary as to a different number of shares of Stock, there
shall be deposited hereunder not more than ___________ shares of 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. The
Depositary shall not lend any Stock deposited hereunder.
SECTION 2.03. REDEMPTION OF STOCK. Whenever the Corporation shall
elect to redeem shares of Stock in accordance with the provisions of the
Certificate, it shall (unless otherwise agreed to in writing with the
Depositary) give the Depositary not less than 40 nor more than 70 days' notice
of the date of such proposed redemption of Stock, which notice shall be
accompanied by a certificate from the Corporation stating that such redemption
of Stock is in accordance with the provisions of the Certificate. Such notice,
if given more than 60 days prior to the redemption date, shall be in addition to
the notice required to be given for redemption pursuant to the Certificate. On
the
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date of such redemption, provided that the Corporation shall then have paid in
full to the Depositary the redemption price of the Stock to be redeemed,
including any accrued and unpaid dividends thereon, the Depositary shall redeem
the number of Depositary Shares representing such Stock. The Depositary shall
mail notice of such redemption and the proposed simultaneous redemption of the
number of Depositary Shares representing the Stock to be redeemed, first-class
postage prepaid, not less than 30 nor 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 addresses of such holders as they appear on the records of the
Depositary; PROVIDED that neither any 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 any other
holders. Each such notice shall state: (i) the Redemption Date; (ii) the
number of Depositary Shares to be redeemed and, if less than all the Depositary
Shares held by any such holder are to be redeemed, the number of such Depositary
Shares held by such holder to be so redeemed; (iii) the redemption price; (iv)
the place or places where Receipts evidencing Depositary Shares are to be
surrendered for payment of the redemption price; and (v) that dividends in
respect of the
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Stock represented by the Depositary Shares to be redeemed will cease to
accumulate on such Redemption Date. In case less than all the outstanding
Depositary Shares are to be redeemed, the Depositary Shares to be so redeemed
shall be selected by lot or pro rata as may be determined by the Depositary or
by any other method that may be determined by the Depositary to be equitable.
Notice having been mailed by the Depositary as aforesaid, from and after
the earlier of (i) the time of deposit of funds, pursuant to Paragraph 5 of the
Certificate, necessary for such redemption with the Paying Agent in trust for
the pro rata benefit of the holders of Stock represented by the Depositary
Shares called for redemption or (ii) the Redemption Date (unless the Corporation
shall have failed to redeem the shares of Stock to be redeemed by it as set
forth in the Corporation's notice provided for in the preceding paragraph), all
dividends in respect of each share of Stock so called for redemption shall cease
to accumulate, the Depositary Shares being redeemed from such proceeds shall be
deemed no longer to be outstanding, all rights of the 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
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for transfer, if the Depositary shall so require), such Depositary Shares shall
be redeemed by the Depositary at a redemption price per Depositary Share equal
to one-_______ (1/__) of the redemption price per share paid in respect of each
share of Stock plus all money and other property, if any, represented by such
Depositary Shares, including all amounts paid by the Corporation in respect of
dividends that on the Redemption Date have accumulated on the shares of Stock to
be so redeemed and have not theretofore been paid.
If fewer 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. Notwithstanding anything to the contrary herein, the
Corporation may purchase or acquire shares of Stock represented by the
Depositary Shares pursuant to a tender or exchange offer as set forth in
Paragraph ____ of the Certificate; PROVIDED, HOWEVER, that if some, but less
than all, of the shares of Stock represented by the Depositary Shares are to be
purchased or otherwise acquired pursuant to such tender or exchange offer and
the number of shares of Stock represented by the Depositary Shares so tendered
exceeds the number of shares of Stock represented by the Depositary Shares so to
be purchased or otherwise acquired
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by the Corporation, the Depositary Shares representing Stock so tendered shall
be purchased or otherwise acquired by the Depositary, on behalf and upon the
instructions of the Corporation, on a pro rata basis (with adjustments to
eliminate fractions) according to the number of such Depositary Shares duly
tendered by each holder so tendering Depositary Shares for such purchase or
exchange.
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 time to time transfers of Receipts upon any surrender thereof by
the holder in person or by duly authorized attorney, properly endorsed or
accompanied by a properly executed instrument of transfer. Thereupon the
Depositary shall execute a new Receipt or Receipts, in any authorized
denomination or denominations requested, evidencing the same aggregate number of
Depositary Shares as those evidenced by the Receipt or Receipts surrendered and
deliver such new Receipt or Receipts to or upon the order of the person entitled
thereto.
SECTION 2.05. SPLIT-UPS AND COMBINATIONS OF RECEIPTS; SURRENDER OF
RECEIPTS AND WITHDRAWAL OF 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
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of this Deposit Agreement, the Depositary shall execute and deliver a new
Receipt or Receipts, in any authorized denomination or denominations requested,
evidencing the aggregate number of Depositary Shares evidenced by the Receipt or
Receipts surrendered.
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 by such Receipt or Receipts by surrendering such Receipt or
Receipts at the Depositary's Office or at such other offices as the Depositary
may designate for such withdrawals. Thereafter, without unreasonable delay, the
Depositary shall deliver to such 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
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number of whole shares of Stock and such money and other property, if any, to be
so withdrawn, deliver to such holder, or (subject to Section 2.03 hereof) upon
such holder's order, a new Receipt evidencing such excess number of Depositary
Shares. 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.
If the Stock and the money and other property being withdrawn are to be
delivered to a person or persons other than the record holder of the Receipt or
Receipts being surrendered for withdrawal of Stock, such holder shall execute
and deliver to the Depositary a written order so directing the Depositary and
the Depositary may require that the Receipt or Receipts surrendered by such
holder for withdrawal of such shares of Stock be properly endorsed in blank or
accompanied by a properly executed instrument of transfer in blank.
Delivery of the Stock and the money and other property, if any,
represented by Receipts surrendered for withdrawal shall be made by the
Depositary at the Depositary's Office, except that, at the request, risk and
expense of the holder surrendering such Receipt or Receipts and for the account
of such holder, such delivery may be made at such other place as may be
designated by such holder.
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SECTION 2.06. LIMITATIONS ON EXECUTION AND DELIVERY, TRANSFER,
SURRENDER AND EXCHANGE OF RECEIPTS. As a condition precedent to the execution
and delivery, registration or registration of transfer, split-up, combination,
redemption, surrender or exchange of any Receipt, the Depositary, any of the
Depositary's Agents or the Corporation may require payment to it of a sum
sufficient for the payment (or, in the event that the Depositary or the
Corporation 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
hereof, may require the production of evidence satisfactory to it as to the
identity and genuineness of any signature and may also require compliance with
such regulations, if any, as the Depositary or the Corporation 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 Receipts may be refused and the
registration of transfer, split-up, combination, redemption, surrender or
exchange of outstanding Receipts may be suspended (i) during any period when the
register of stockholders of the Corporation is closed or (ii) if any such action
is deemed necessary or advisable by the Depositary, any of the Depositary's
Agents or the Corporation at any time or from time to time because of any
requirement of law or of any government or
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governmental body or commission or under any provision of this Deposit
Agreement.
SECTION 2.07. LOST RECEIPTS, ETC. In case any Receipt shall be
mutilated, destroyed, lost or stolen, the Depositary in its discretion may
execute and deliver a Receipt of like form and tenor in exchange and
substitution for such mutilated Receipt, or in lieu of and in substitution for
such destroyed, lost or stolen Receipt, upon (i) the filing by the holder
thereof with the Depositary of evidence satisfactory to the Depositary of such
destruction or loss or theft of such Receipt, of the authenticity thereof and of
his or her ownership thereof and (ii) the furnishing of the Depositary with
reasonable indemnification satisfactory to it.
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.
ARTICLE III
Certain Obligations of Holders
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of Receipts and the Corporation
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SECTION 3.01. 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
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matters or information, to execute such certificates and to make such
representations and warranties as the Depositary or the Corporation may
reasonably deem necessary or proper. The Depositary or the Corporation may
withhold the delivery, or delay the registration or registration of transfer,
split-up, combination, redemption, surrender or exchange of any Receipt or the
withdrawal of the Stock and all money and other property, if any, 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, such certificates are
executed and such representations and warranties are made.
SECTION 3.02. 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 5.07 hereof. Any registration or
registration of transfer, split-up, combination, redemption, surrender or
exchange of any Receipt or any withdrawal of the Stock and all money and other
property, if any, represented by the Depositary Shares evidenced by any Receipt
may be refused until any such payment due is made, and the distribution of any
dividend, interest payment or other distribution may be delayed or withheld or
any part of or all the Stock or money or other property represented by the
Depositary Shares evidenced by
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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 any such dividend, interest payment or other distribution or the
proceeds of any such sale may be applied to any payment of such charges or
expenses, PROVIDED that the holder of such Receipt shall remain liable for any
deficiency.
SECTION 3.03. WARRANTY AS TO STOCK. The Corporation hereby represents
and warrants that the Stock, when issued, will be 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
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SECTION 4.01. CASH DISTRIBUTIONS. Whenever the Depositary shall
receive any cash dividend or other cash distribution on Stock, the Depositary
shall, subject to Sections 3.01 and 3.02 hereof, distribute to record holders of
Receipts on the record date fixed pursuant to Section 4.04 hereof such dividend
or distribution in such amounts 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 Corporation or the Depositary
shall be required to
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withhold and shall withhold from any cash dividend or other cash distribution in
respect of the Stock an amount on account of taxes, the amount made available
for distribution or distributed in respect of Depositary Shares shall be reduced
accordingly; and PROVIDED FURTHER, HOWEVER, that the Depositary shall distribute
or make available for distribution, as the case may be, only such amount 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 sum received by the Depositary for distribution to
record holders of Receipts then outstanding.
SECTION 4.02. DISTRIBUTIONS OTHER THAN CASH, RIGHTS, PREFERENCES OR
PRIVILEGES. Whenever the Depositary shall receive any distribution other than
cash, rights, preferences or privileges upon Stock, the Depositary shall,
subject to Sections 3.01 and 3.02 hereof, distribute to record holders of
Receipts on the record date fixed pursuant to Section 4.04 hereof such
securities or property received by it in such amounts as are, as nearly as
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
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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 Corporation or the Depositary withhold an amount on account of taxes) the
Depositary, after consultation with the Corporation, deems such distribution not
to be feasible, the Depositary may, with the approval of the Corporation, adopt
such method as it deems equitable and practicable for the purpose of effecting
such distribution, including the sale (at public or private sale) of the
securities or property thus received, or any part thereof, at such place or
places and upon such terms as it may deem proper. The net proceeds of any such
sale shall, subject to Sections 3.01 and 3.02 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 4.01 hereof in the case of a
distribution received in cash. The Corporation shall not make any distribution
of such securities unless the Corporation shall have provided an opinion of
counsel stating that such securities have been registered under the Securities
Act or are not required to be so registered.
SECTION 4.03. SUBSCRIPTION RIGHTS, PREFERENCES OR PRIVILEGES. If the
Corporation shall at any time offer or cause to be offered to the persons in
whose names Stock is recorded on the books of the Corporation any rights,
preferences or privileges to subscribe for or to purchase
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any securities or any rights, preferences or privileges of any other nature,
such rights, preferences or privileges shall in each such instance be made
available by the Depositary to the record holders of Receipts in such manner as
the Depositary may determine, either by the 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 Corporation; 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 Corporation) 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 exercise such rights, preferences or
privileges, then the Depositary, in its discretion (with the approval of the
Corporation, 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 hereof,
be distributed by
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the Depositary to the record holders of Receipts entitled thereto as provided by
Section 4.01 hereof in the case of a distribution received in cash. The
Corporation shall not make any distribution of any such rights, preferences or
privileges unless the Corporation shall have provided an opinion of counsel
stating that such rights, preferences or privileges have been registered under
the Securities Act or are not required 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
Receipts to be offered or sold the securities to which such rights, preferences
or privileges relate, the Corporation shall promptly file 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 such registration statement shall have become
effective, or unless the offering and sale of such
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securities to such holders are exempt from registration under the provisions of
the Securities 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 holders
of Receipts, the Corporation shall 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 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 Depository and the Corporation 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 Corporation with respect
to the Stock) for the determination of the holders of Receipts who shall be
entitled to receive such dividend, distribution, rights, preferences or
privileges or
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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 reason.
SECTION 4.05. 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 of the Receipts 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
Corporation) 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 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 of Stock represented by the
Depositary Shares evidenced by all Receipts as to which any particular voting
instructions are received. The Corporation shall take all reasonable action
that the Depositary may
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deem necessary 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 shall abstain from voting (but, at its discretion,
not from appearing at any meeting with respect to such Stock unless directed to
the contrary by the holders of all the Receipts) to the extent of the Stock
represented by the Depositary Shares evidenced by such Receipt.
SECTION 4.06. CHANGES AFFECTING DEPOSITED SECURITIES AND
RECLASSIFICATIONS, RECAPITALIZATIONS, ETC. Upon any change in par or stated
value or liquidation preference, split-up, combination or any other
reclassification of the Stock, or upon any recapitalization, reorganization,
merger, amalgamation or consolidation affecting the Corporation or to which it
is a party, the Depositary may in its discretion with the approval of, and shall
upon the instructions of, the Corporation, and (in either case) in such manner
as the Depositary may deem equitable, (i) make such adjustments as are certified
by the Corporation in (x) the fraction of an interest represented by one
Depositary Share in one share of Stock and (y) the ratio of the redemption price
per Depositary Share to the redemption price of a share of Stock, in each case
as may be necessary fully to reflect the effects of such change in par or stated
value or liquidation preference, split-up, combination or other reclassification
of Stock, or of such
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recapitalization, reorganization, merger, amalgamation or consolidation and (ii)
treat any securities that 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
Corporation, execute and deliver additional Receipts, or may call for the
surrender of all outstanding Receipts to be exchanged for new Receipts
specifically describing such new deposited securities. Anything to the contrary
herein notwithstanding, holders of Receipts shall have the right from and after
the effective date of any such change in par or stated value or liquidation
preference, split-up, combination or other reclassification of the Stock or any
such recapitalization, reorganization, merger, amalgamation or consolidation to
surrender such Receipts to the Depositary with instructions to convert, exchange
or surrender the 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 might have been converted
or for which such Stock might have been exchanged or surrendered immediately
prior to the effective date of such transaction.
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SECTION 4.07. INSPECTION OF REPORTS. The Depositary shall transmit to
the record holders of Receipts, at the addresses of such record holders as set
forth on the books of the Depositary, and shall make available for inspection by
holders of Receipts at the Depositary's Office, and at such other places as it
may from time to time deem advisable, any reports and communications received
from the Corporation which are received by the Depositary as the holder of
Stock.
SECTION 4.08. LISTS OF RECEIPT HOLDERS. Promptly upon request from
time to time by the Corporation, the Depositary shall furnish to it a list, as
of a recent date, of the names, addresses and holdings of Depositary Shares of
all persons in whose names Receipts are registered on the books of the
Depositary .
ARTICLE V
The Depositary, the Depositary's Agents,
----------------------------------------
the Registrar and the Corporation
---------------------------------
SECTION 5.01. MAINTENANCE OF OFFICES, AGENCIES AND TRANSFER BOOKS BY
THE DEPOSITARY; REGISTRAR. Upon execution of this Deposit Agreement, the
Depositary shall establish, and thereafter it shall maintain, at the
Depositary's Office, facilities for the execution and delivery, registration or
registration of transfer, split-up, combination, redemption, surrender or
exchange of Receipts, and at the offices of the Depositary's Agents, if
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any, facilities for the delivery, registration or registration of transfer,
split-up, combination, redemption, surrender or exchange of Receipts, all in
accordance with the provisions of this Deposit Agreement.
The Depositary shall keep books at the Depositary's Office for the
registration or registration of transfer, split-up, combination, redemption,
surrender or exchange of Receipts, which books at all reasonable times 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.
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 Corporation, 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 the New York
Stock Exchange, the Depositary will appoint a Registrar (acceptable to the
Corporation) for registration of such receipts or Depositary Shares in
accordance with any requirements of such Exchange. Such Registrar (which may be
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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 Corporation. If the Receipts, such Depositary
Shares or such Stock are listed on one or more other stock exchanges, the
Depositary will, at the request of the Corporation, arrange such facilities for
the delivery, registration or registration of transfer, split-up, combination,
redemption, surrender or exchange of such Receipts, such Depositary Shares or
such Stock as may be required by law or applicable stock exchange regulation.
SECTION 5.02. PREVENTION OF OR DELAY IN PERFORMANCE BY THE DEPOSITARY,
THE DEPOSITARY'S AGENTS, THE REGISTRAR OR THE CORPORATION. Neither the
Depositary nor any Depositary's Agent nor any Registrar nor the Corporation
shall incur any liability to any holder of any Receipt if by reason of any
provision of any present or future law, or any present or future 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 Certificate 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 Corporation shall be prevented or forbidden from, or subjected
to any penalty on account of, doing or
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performing any act or thing that the terms of this Deposit Agreement provide
shall be done or performed; nor shall the Depositary, any Depositary's Agent,
any Registrar or the Corporation incur any 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 that 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 case of any such exercise or failure to exercise discretion not
caused as aforesaid, if caused by the negligence or willful misconduct of the
party charged with such exercise or failure to exercise.
SECTION 5.03. OBLIGATIONS OF THE DEPOSITARY, THE DEPOSITARY'S AGENTS,
THE REGISTRAR AND THE CORPORATION. Neither the Depositary nor any Depositary's
Agent nor any Registrar nor the Corporation assumes any obligation or shall be
subject to any liability under this Deposit Agreement to holders of Receipts
other than for its negligence or willful misconduct.
Neither the Depositary nor any Depositary's Agent nor any Registrar nor
the Corporation 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 opinion may involve it in expense or
liability unless indemnity
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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 Corporation shall be liable for any action or any failure to act by it in
reliance upon the written advice of legal counsel or accountants, 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, any Registrar
and the Corporation 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 of Stock or for the manner or effect of
any such vote made, as long as any such action or non-action is in good faith.
The Depositary undertakes, and any Registrar shall be required to undertake, to
perform such duties and only such duties as are specifically set forth in this
Deposit Agreement, and no implied covenants or obligations shall be read into
this Deposit Agreement against the Depositary or any Registrar. The Depositary
will be liable to the Corporation for any liability that may arise out of acts
performed or omitted by the Depositary or any Depositary's Agent due to its or
their gross negligence or wilful
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misconduct. The Depositary, the Depositary's Agents, and any Registrar may own
and deal in any class of securities of the Corporation and its affiliates and in
Receipts. The Depositary may also act as transfer agent or registrar of any of
the securities of the Corporation 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 Corporation. Such
resignation shall be effective 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 Corporation by notice
of such removal delivered to the Depositary. Such removal shall be effective
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 Corporation shall, within 60 days after the delivery of the notice
of resignation or removal, as the case may be, appoint a successor Depositary,
which shall be a bank or trust company having its principal office in the United
States of America and having a combined capital and surplus of at least
$50,000,000. If no successor Depositary shall have been so appointed and have
accepted appointment within 60 days after
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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 Corporation 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 Corporation, 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. 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
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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 Corporation agrees
that it will transmit to the record holders of Receipts, in each case at the
addresses furnished to it pursuant to Section 4.08 hereof, all notices and
reports (including without limitation financial statements) required by law, by
the rules of any national securities exchange upon which the Stock, the
Depositary Shares or the Receipts are listed or by the Certificate of
Incorporation to be furnished by the Corporation to holders of Stock. Such
transmission will be at the Corporation's expense.
SECTION 5.06. INDEMNIFICATION BY THE CORPORATION. The Corporation shall
indemnify the Depositary, any Depositary's Agent and any, Registrat against,
and hold each of them harmless from, any loss, liability or expense (including
the costs and expenses of defending itself and reasonable counsel fees) which
may arise out of acts performed or omitted in connection with this Deposit
Agreement and the Receipts (a) by the Depositary, any Registrar or any of
their respective agents (including any Depositary's Agent), except for any
liability or expense arising out of negligence or bad faith on the respective
parts of any such person or persons, or (b) by the Corporation or any of its
agents. The obligations of the
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Corporation 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 Corporation shall pay all
transfer and other taxes and governmental charges arising solely from the
existence of the depositary arrangements hereunder. The Corporation shall pay
all charges of the Depositary in connection with the initial deposit of the
Stock and the initial issuance of the Depositary Shares, redemption of the Stock
at the option of the Corporation and all withdrawals of shares of the Stock by
owners of Depositary Shares. 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 and of any Registrar (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 Corporation as to the
amount and nature of such charges and expenses. The Depositary shall present
its statement for charges and expenses to the Corporation once every three
months or at
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such other intervals as the Corporation and the Depositary may agree.
SECTION 5.08. TAX COMPLIANCE. (a) The Depositary, on its own behalf
and on behalf of the Corporation 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.
(b) The Depositary shall comply with any direction received from the
Corporation with respect to the application of such requirements to particular
payments or holders or in other particular circumstances, and may for purposes
of this Agreement rely on any such direction in accordance with the provisions
of Section 5.03 hereof.
(c) The Depositary shall maintain all appropriate records documenting
compliance with such requirements, and shall make such records available on
request to the Corporation or to its authorized representatives.
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ARTICLE VI
Amendment and Termination
-------------------------
SECTION 6.01. AMENDMENT. The form of the Receipts and any provision of
this Deposit Agreement may at any time and from time to time be amended by
agreement between the Corporation 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 holders of Receipts shall
be effective unless such amendment shall have been approved by the holders of
Receipts evidencing at least a majority of the Depositary Shares then
outstanding. Every holder of an outstanding Receipt at the time any such
amendment becomes effective, or any transferee of such holder, shall be deemed,
by continuing to hold such Receipt or by reason of the acquisition thereof, to
consent and agree to such amendment and to be bound by the Deposit Agreement as
amended thereby.
SECTION 6.02. TERMINATION. This Agreement may be terminated by the
Corporation or the Depositary only after (i) all outstanding Depositary Shares
shall have been redeemed pursuant to Section 2.03 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 Corporation and such
distribution shall have been distributed to the holders of Receipts evidencing
the
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Depositary Shares pursuant to Section 4.01 or 4.02 hereof, as applicable.
Upon the termination of this Deposit Agreement, the Corporation shall be
discharged from all obligations under this Deposit Agreement except for its
obligations to the Depositary, any Depositary's Agent and any Registrar under
Sections 5.06 and 5.07 hereof.
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
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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
Corporation 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, telex or telecopier confirmed by letter, addressed to the Forest City
Enterprises, Inc., 00000 Xxxxxxxxx Xxxx, Xxxxxxxxx, Xxxx 00000-0000, to the
attention of the Office of the Secretary, or at any other address of which the
Corporation 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, telex or telecopier
confirmed by letter, addressed to the Depositary at the Depositary's Office, at
________________________, or at any other address of which the Depositary shall
have notified the Corporation and the record holders of the Receipts 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, telex or
telecopier confirmed by letter, addressed to such record holder at the address
of such record holder as it appears on
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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, telex or telecopier
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, telex
or telecopier message) is deposited, postage prepaid, in a post office letter
box. The Depositary or the Corporation may, however, act upon any telegram,
telex or telecopier message received by it from the other or from any holder of
a Receipt, notwithstanding that such telegram, telex or telecopier message shall
not subsequently be confirmed by letter or as aforesaid.
SECTION 7.05. DEPOSITARY'S AGENTS. The Depositary may from time to
time appoint Depositary's Agents to act in any respect for the Depositary for
the purposes of this 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 shall notify the Corporation of any such action.
SECTION 7.06. 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 and upon
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acceptance by them of delivery of Receipts issued in accordance with the terms
of this Deposit Agreement.
SECTION 7.07. 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 OF THE STATE OF NEW
YORK.
SECTION 7.08. INSPECTION OF DEPOSIT AGREEMENT. Copies of this Deposit
Agreement shall be filed with the Depositary and the Depositary's Agents, if
any, 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 Receipt.
SECTION 7.09. HEADINGS. The headings of articles and sections in this
Deposit Agreement and in the form of the Receipt set forth in Exhibit A hereto
have been inserted for convenience only and are not to be regarded as a part of
this Deposit Agreement or the Receipts or to have any
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bearing upon the meaning or interpretation of any provision contained herein or
in the Receipts.
IN WITNESS WHEREOF, the Corporation and the Depositary have duly
executed this Deposit 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.
Forest City Enterprises, Inc.
Attested by by
___________________________ ________________________________
Name :
Title:
[SEAL]
________________________________
as Depositary,
Attested by by
___________________________ ________________________________
Name:
Title:
[SEAL]
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Exhibit A
[FORM OF FACE OF RECEIPT]
TEMPORARY RECEIPT - Exchangeable for Definitive Engraved Receipt When Ready for
Delivery
NUMBER DEPOSITARY SHARES
CERTIFICATE FOR NOT MORE THAN ____________ DEPOSITARY SHARES
TDR
DEPOSITARY RECEIPT FOR DEPOSITARY SHARES, REPRESENTING
[INSERT DESIGNATION OF SHARES TO BE DEPOSITED] OF
Forest City Enterprises, Inc.
CUSIP ______
INCORPORATED UNDER THE LAWS OF THE STATE OF OHIO
SEE REVERSE FOR CERTAIN DEFINITIONS
___________________, as Depositary (the "Depositary"), hereby certifies that
is the registered owner of
DEPOSITARY SHARES
("Depositary Shares"), each Depositary Share representing one-_____ (1/___) of
one share of [insert designation of shares to be deposited] (the "Stock"), of
Forest City Enterprises, Inc., an Ohio corporation (the "Corporation"),
on deposit with the Depositary, subject to the terms and entitled to the
benefits of the Deposit Agreement dated as of ________,__ 199__ (the "Deposit
Agreement"), among the Corporation, the Depositary and the holders from time to
time of the Depositary Receipts described therein. 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 : Countersigned:
--------------------- ------------------- -------------------
Depositary Registrar Transfer Agent
By By By
Authorized Officer Authorized Officer Authorized Officer
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[FORM OF REVERSE OF RECEIPT]
Forest City Enterprises, Inc.
FOREST CITY ENTERPRISES, INC. WILL FURNISH WITHOUT CHARGE TO EACH RECEIPTHOLDER
WHO SO REQUESTS A COPY OF THE DEPOSIT AGREEMENT AND A STATEMENT OR SUMMARY OF
THE POWERS, DESIGNATIONS, PREFERENCES AND RELATIVE, PARTICIPATING, OPTIONAL OR
OTHER SPECIAL RIGHTS OF EACH CLASS OF STOCK OR SERIES THEREOF WHICH THE
CORPORATION IS AUTHORIZED TO ISSUE AND OF THE QUALIFICATIONS, LIMITATIONS OR
RESTRICTIONS OF SUCH PREFERENCES AND/OR RIGHTS. ANY SUCH REQUEST IS TO BE
ADDRESSED TO THE TRANSFER AGENT NAMED ON THE FACE OF THIS RECEIPT.
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The following abbreviations when used in the inscription on the face of
this 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_______
(Cust) (Minor)
TEN ENT - as tenants by Under Uniform Gifts to Minors Act
the entireties
JT TEN - as joint tenants with
right of survivorship and
not as tenants in common -----------------------
(State)
Additional abbreviations may also be used though not in the above list
For value received, ________________________ hereby sells, assigns and
transfers unto
PLEASE INSERT SOCIAL SECURITY OR OTHER
IDENTIFYING NUMBER OF ASSIGNEE
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PLEASE PRINT OR TYPEWRITE NAME AND ADDRESS INCLUDING POSTAL ZIP CODE OF
ASSIGNEE
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Depositary Shares
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represented by the within Receipt, and do hereby irrevocably constitute and
appoint
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Attorney
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to transfer the said Depositary Shares on the books of the within-named
Depositary with full power of substitution
in the premises
Dated _____________________________
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NOTICE The signature to the assignment must correspond
with the name as written upon the face of this Receipt
in every particular, without alteration or enlargement
or any change whatever.
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