DEPOSIT AGREEMENT
DEPOSIT AGREEMENT dated as of June 17, 1998 among MEDITRUST CORPORATION, a
Delaware corporation (the "Company"), and STATE STREET BANK AND TRUST COMPANY, a
Massachusetts trust company, as Depositary, and all holders from time to time of
Receipts (as hereinafter defined) issued hereunder.
WITNESSETH:
WHEREAS, it is desired to provide, as hereinafter set forth in this Deposit
Agreement, for the deposit of shares of the Company's Preferred Stock (as
hereinafter defined) with the Depositary (as hereinafter defined) for the
purposes set forth in this Deposit Agreement and for the issuance hereunder of
the Receipts (as hereinafter defined) evidencing Depositary Shares (as
hereinafter defined) representing fractional interests in the shares of
Preferred Stock deposited; and
WHEREAS, the Receipts are to be substantially in the form of Exhibit A
annexed to this Deposit Agreement, with appropriate insertions, modifications
and omissions, as hereinafter provided in this Deposit Agreement;
NOW, THEREFORE, in consideration of the premises contained herein, it is
agreed by and among the parties hereto as follows:
ARTICLE I
DEFINITIONS
Section 1.1 The following definitions shall apply to the respective terms
(in the singular and plural forms of such terms) used in this Deposit Agreement
and the Receipts:
"Amendments" shall have the meaning set forth in Section 2.10 hereof.
"Article Thirteenth" shall have the meaning set forth in Section 2.10
hereof.
"Certificate of Designation" shall mean the Certificate of Powers,
Designations, Preferences and Rights of the 9% Series A Cumulative Redeemable
Preferred Stock of the Company, setting forth the terms of the Preferred Stock,
filed Secretary of State of the State of Delaware, including any certificate
subsequently filed with the Secretary of State of the State of Delaware in
accordance with the DGCL and setting forth a statement that a specified decrease
in the number of shares of Preferred Stock has been authorized by the Company.
"Certificate of Incorporation" shall mean the restated certificate of
incorporation, as the same may be further amended or restated from time to time,
of the Company, including all certificates of designation filed as part of such
certificate of incorporation.
"Company" shall mean Meditrust Corporation, a Delaware corporation, and its
successors.
"Corporate Office" shall mean the corporate office of the Depositary at
which at any particular time its business in respect of matters governed by this
Deposit Agreement shall be administered, which at the date of this Deposit
Agreement is located at the office of the Depositary's service agent, Boston
EquiServe Limited Partnership, 000 Xxxxxx Xxxxxx, Xxxxxx, Xxxxxxxxxxxxx 00000.
"DGCL" means the General Corporation Law of the State of Delaware, as in
effect from time to time, or any successor thereto.
"Deposit Agreement" shall mean this agreement, as the same may be amended,
modified or supplemented from time to time.
"Depositary" shall mean State Street Bank and Trust Company, a
Massachusetts trust company having its principal office in the United States and
having a combined capital and surplus of at least $50,000,000, and any successor
as depositary hereunder, which successor shall also have its principal office in
the United States and a combined capital and surplus of at least $50,000,000.
"Depositary Share" shall mean a fractional interest of 1/10th of a share of
Preferred Stock deposited with the Depositary hereunder and the same
proportionate interest in any and all other property received by the Depositary
in respect of such share of Preferred Stock and held under this Deposit
Agreement, all as evidenced by the Receipts issued hereunder; provided that if
any deposited Preferred Stock is converted into Excess Stock as contemplated by
Section 2.10 hereof, the term "Depositary Share" shall mean, in the case of the
Depositary Shares representing such Excess Stock, a fractional interest of
1/10th of a share of such Excess Stock and, subject to the provisions of Article
Thirteenth, the same proportionate interest in any and all other property
received by the Depositary in respect of such share of such Excess Stock and
held under this Deposit Agreement. Subject to the terms of this Deposit
Agreement, each owner of a Depositary Share representing deposited Preferred
Stock is entitled, proportionately with all other owners of Depositary Shares
representing deposited Preferred Stock, to all rights, preferences and
privileges of the Preferred Stock represented by such Depositary Shares, and
each owner of a Depositary Share representing Excess Stock issued upon
conversion of deposited Preferred Stock is entitled, proportionately with all
other owners of Depositary Shares representing Excess Stock issued upon
conversion of deposited Preferred Stock, to all rights, preferences and
privileges of the Excess Stock represented by such Depositary Share, in each
case including the dividend, voting, distribution, redemption and liquidation
rights contained in the Certificate of Designation and any other rights,
preferences and privileges contained in the Certificate of Incorporation.
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"Depositary's Agent" shall mean an agent appointed by the Depositary as
provided, and for the purposes specified, in Section 7.5.
"Excess Stock" shall have the meaning set forth in Section 2.10 hereof.
"New York Office" shall mean the office maintained by the Depositary in the
Borough of Manhattan, The City of New York for the execution and delivery,
transfer, surrender and exchange, split-up, combination and redemption of
Receipts (and payment of amounts due upon such redemption), purchase of Receipts
as contemplated by Section 2.10 hereof (and payment of amounts due upon such
purchase), payment and distribution of all other monies and property payable or
distributable in respect of Receipts, and deposit and withdrawal of Preferred
Stock and of Excess Stock issued upon conversion of deposited Preferred Stock,
which office at the date of this Deposit Agreement is located at Securities
Transfer and Reporting Services, 00 Xxxxxxxx, Xxx Xxxx, Xxx Xxxx 00000.
"Preferred Stock" shall mean the Company's 9% Series A Cumulative
Redeemable Preferred Stock, $.10 par value per share.
"Prohibited Owner" shall have the meaning set forth in the definition of
such term in Article Thirteenth as if the reference in such definition to
"Equity Securities" also included a reference to Receipts and Depositary Shares.
"Proxy Statement" shall have the meaning set forth in Section 2.10.
"Receipt" shall mean a depositary receipt issued hereunder to evidence one
or more Depositary Shares, whether in definitive or temporary form,
substantially in the form (subject to Section 2.1) set forth as Exhibit A
hereto.
"record date" shall mean the date fixed pursuant to Section 4.4.
"record holder" or "holder" as applied to a Receipt shall mean the person
in whose name such Receipt is registered on the books maintained by the
Depositary for such purpose.
"Registrar" shall mean State Street Bank and Trust Company or any bank or
trust company appointed to register ownership and transfers of Receipts, the
Preferred Stock or any Excess Stock issued on conversion of Preferred Stock, as
the case may be, as herein provided.
"Securities Act" shall mean the Securities Act of 1933, as amended.
"Transfer Agent" shall mean State Street Bank and Trust Company or any bank
or trust company appointed to transfer the Receipts, the Preferred Stock or any
Excess Stock issued on conversion of Preferred Stock, as the case may be, as
herein provided.
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"Trustee" shall have the meaning set forth in Article Thirteenth.
ARTICLE II
FORM OF RECEIPTS, DEPOSIT OF PREFERRED STOCK,
EXECUTION AND DELIVERY, TRANSFER,
SURRENDER AND REDEMPTION OF RECEIPTS
Section 2.1 Form and Transferability of Receipts. Definitive Receipts shall
be engraved or printed or lithographed with steel-engraved borders and
underlying tint and shall be substantially in the form set forth in Exhibit A
annexed to this Deposit Agreement, with appropriate insertions, modifications
and omissions, as hereinafter provided; provided that, if Receipts are initially
issued in temporary form and, prior to the availability of Receipts in
definitive form, the Certificate of Incorporation is amended by the Amendments,
then the third paragraph of the legend appearing on the face of the form of
Receipt set forth as Exhibit A hereto and Sections 11 and 19 of such form of
Receipt may be appropriately modified to reflect that the Amendments have become
effective. Pending the preparation of definitive Receipts, the Depositary, upon
the written order of the Company delivered in compliance with Section 2.2, shall
execute and deliver temporary Receipts which may be printed, lithographed,
typewritten, word-processed, mimeographed or otherwise reproduced, substantially
of the tenor of the definitive Receipts in lieu of which they are issued and
with such appropriate insertions, omissions, substitutions and other variations
as the persons executing such Receipts may determine, as evidenced by their
execution of such Receipts. If temporary Receipts are issued, the Company and
the Depositary will cause definitive Receipts to be prepared without
unreasonable delay. After the preparation of definitive Receipts, the temporary
Receipts shall be exchangeable for definitive Receipts upon surrender of the
temporary Receipts at the Corporate Office, the New York Office and such
additional offices, if any, as the Depositary may designate, without charge to
the holder. Upon surrender for cancellation of any one or more temporary
Receipts, the Depositary shall execute and deliver in exchange therefor
definitive Receipts representing the same number of Depositary Shares as
represented by the surrendered temporary Receipt or Receipts. Such exchange
shall be made at the Company's expense and without any charge 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 Preferred Stock
deposited or the Excess Stock issued upon conversion of deposited Preferred
Stock, as the case may be, as definitive Receipts.
Receipts shall be executed by the Depositary by the manual signature of a
duly authorized signatory of the Depositary, provided that such signature may be
a facsimile if a Registrar (other than the Depositary) shall have been appointed
and such Receipts are countersigned by manual signature of a duly authorized
signatory 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 as provided in the preceding
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sentence. The Depositary shall record on its books each Receipt executed as
provided above and delivered as hereinafter provided.
Except as the Depositary may otherwise determine, Receipts shall be in
denominations of any number of whole Depositary Shares. All Receipts shall be
dated the date of their issuance.
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
with any applicable law or regulation or with the rules and regulations of any
securities exchange upon which the Preferred 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 or, in the case of Receipts evidencing Depositary Shares
representing Excess Stock, which are contemplated by Section 2.10.
Title to any Receipt (and to the Depositary Shares evidenced by such
Receipt) that is properly endorsed or accompanied by a properly executed
instrument of transfer or endorsement shall be transferable by delivery with the
same effect as in the case of a negotiable instrument; provided, however, that
until a Receipt shall be transferred on the books of the Depositary as provided
in Section 2.4, 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 distribution of dividends or
other distributions or to any notice provided for in this Deposit Agreement and
for all other purposes.
Section 2.2 Deposit of Preferred Stock; Execution and Delivery of Receipts
in Respect Thereof. Concurrently with the execution of this Deposit Agreement,
the Company is delivering to the Depositary a certificate or certificates,
registered in the name of the Depositary and evidencing 700,000 shares of
Preferred Stock, properly endorsed or accompanied, if required by the
Depositary, by a duly executed instrument of transfer or endorsement, in form
satisfactory to the Depositary. In the event that the over-allotment option
granted to the underwriters pursuant to the Underwriting Agreement dated June
10, 1998 between the Corporation, Xxxxxx Xxxxxxx & Co. Incorporated and the
other underwriters named therein is exercised in whole or in part and the
issuance of the Depositary Shares issuable upon exercise of such option occurs
after the date of this Agreement, the Company shall, on or prior to the date of
delivery of such Depositary Shares, deliver to the Depositary a certificate or
certificates, registered in the name of the Depositary and evidencing the shares
of Preferred Stock represented by such Depositary Shares (which shall not exceed
105.000 shares of Preferred Stock in the aggregate), properly endorsed or
accompanied, if required by the Depositary, by a duly executed instrument of
transfer or endorsement, in form satisfactory to the Depositary. Concurrently
with each delivery of certificates, the Company is delivering or shall deliver,
as the case may be, to the Depositary (i) all such certifications as may be
required by the Depositary in accordance with the provisions of this Deposit
Agreement and
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(ii) a written order of the Company directing the Depositary to execute and
deliver to, or upon the written or oral order of, the person or persons stated
in such order a Receipt or Receipts for the Depositary Shares representing such
deposited Preferred Stock. The Depositary acknowledges receipt of the deposited
Preferred Stock delivered on the date of this Deposit Agreement and shall be
deemed to acknowledge receipt of any deposited Preferred Stock delivered after
the date of this Deposit Agreement in connection with any exercise of such
over-allotment option, together in each case with all related documentation, and
agrees to hold such deposited Preferred Stock in an account to be established by
the Depositary at the Corporate Office or at such other office as the Depositary
shall determine. The Company hereby appoints the Depositary as the Registrar,
Transfer Agent and paying agent for the Preferred Stock and any Excess Stock
issued upon conversion of Preferred Stock in Boston, Massachusetts and the
Borough of Manhattan, The City of New York, and the Depositary hereby accepts
such appointment and, as such, will reflect changes in the number of shares
(including any fractional shares) of deposited Preferred Stock held by it and of
deposited Excess Stock issued upon conversion of deposited Preferred Stock and
held by it or any Depositary's Agent (including, following notice from the
Company (which the Company agrees that it will deliver to the Depositary as
promptly as practicable), any such changes resulting from the conversion of
deposited Preferred Stock into Excess Stock or of Excess Stock into Preferred
Stock) by notation, book-entry or other appropriate method.
If required by the Depositary, Preferred Stock or Excess Stock issued on
conversion of Preferred Stock presented for deposit by the Company at any time,
whether or not the register of stockholders of the Company is closed, shall also
be accompanied by an agreement or assignment, or other instrument satisfactory
to the Depositary, that will provide for the prompt transfer to the Depositary
or its nominee of any dividend or right to subscribe for additional Preferred
Stock or Excess Stock, as the case may be, or to receive other property that any
person in whose name the Preferred Stock or Excess Stock, as the case may be, is
or has been registered may thereafter receive upon or in respect of such
deposited Preferred Stock or Excess Stock, as the case may be, or in lieu
thereof such agreement of indemnity or other agreements as shall be satisfactory
to the Depositary.
Upon receipt by the Depositary of a certificate or certificates for
Preferred Stock deposited hereunder, together with the other documents specified
above, and upon registering such Preferred Stock in the name of the Depositary,
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 order delivered to the Depositary referred to in the first paragraph of
this Section 2.2, a Receipt or Receipts for the number of whole Depositary
Shares representing the Preferred Stock so deposited and registered in such name
or names as may be requested by such person or persons. The Depositary shall
execute and deliver such Receipt or Receipts at the New York Office or, if
requested by the person requesting such delivery, at the Corporate Office,
except that, at the request, risk and expense of any person requesting such
delivery, such delivery may be made at such other place as may be designated by
such person.
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Other than in the case of splits, combinations or other reclassifications
affecting the Preferred Stock, or in the case of dividends or other
distributions of Preferred Stock, if any, there shall be deposited hereunder not
more than the number of shares constituting the Preferred Stock as set forth in
the Certificate of Designation, as such may be amended from time to time.
The Company shall deliver to the Depositary from time to time such
quantities of Receipts as the Depositary may request to enable the Depositary to
perform its obligations under this Deposit Agreement.
In the event that, as contemplated by Section 2.10 hereof, any deposited
Preferred Stock is converted into Excess Stock, the Company will, unless
otherwise required by law or Article Thirteenth, designate the Depositary as the
Trustee for such Excess Stock and the certificates evidencing such Excess Stock
shall be deposited with the Depositary hereunder. If the Trustee for such Excess
Stock is not the Depositary, then the Company shall cause such Trustee to
execute and deliver to the Depositary a written instrument wherein such Trustee
shall state that it is holding such Excess Stock for the Depositary as a
Depositary's Agent. Any such Excess Stock, whether held by the Depositary or
another Trustee, shall be deemed to have been deposited under this Deposit
Agreement.
Section 2.3 Optional Redemption of Preferred Stock for Cash. Whenever the
Company shall elect to redeem deposited shares of Preferred Stock for cash in
accordance with the provisions of the Certificate of Designation, it shall
(unless otherwise agreed in writing with the Depositary) give the Depositary not
less than 60 days' prior written notice of the date of such proposed redemption
and of the number of such shares of Preferred Stock held by the Depositary to be
redeemed and the applicable redemption price, as set forth in the Certificate of
Designation, including the amount, if any, of accrued and unpaid dividends
(including, without limitation, accumulated dividends, if any, for prior
dividend periods) to the date of such redemption. The Depositary shall mail,
first-class postage prepaid, notice furnished by the Company of the redemption
of the Preferred Stock and the proposed simultaneous redemption of the
Depositary Shares representing the Preferred Stock to be redeemed, not less than
30 and not more than 60 days prior to the date fixed for redemption of such
Preferred Stock and Depositary Shares (the "cash redemption date"), to the
holders of record at the close of business on the record date fixed for such
notice pursuant to Section 4.4 hereof of the Receipts evidencing the Depositary
Shares to be so redeemed, at the addresses of such holders as the same appear on
the records of the Depositary, but neither failure to mail any such notice to
one or more such holders nor any defect in any such notice shall affect the
validity of the proceedings for redemption except as to any holder to whom
notice was defective or not given. The Company shall provide the Depositary with
such notice, and each such notice shall state: (i) the cash redemption date;
(ii) the cash redemption price; (iii) the number of shares of deposited
Preferred Stock and Depositary Shares to be redeemed; (iv) the place or places
(which shall include the Borough of Manhattan, The City of New York) where
Receipts evidencing Depositary Shares to be redeemed are to be surrendered for
payment of the cash redemption price; (v) that dividends on the shares of
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Preferred Stock represented by the Depositary Shares to be redeemed will cease
to accrue on such cash redemption date, and (vi) if fewer than all the
Depositary Shares evidenced by Receipts held by any holder are to be redeemed,
the number of such Depositary Shares held by such holder to be so redeemed. If
fewer than all the outstanding Depositary Shares are to be redeemed, the
Depositary Shares to be redeemed shall be selected pro rata (as nearly as may be
practicable without creating fractional Depositary Shares) or by lot or by any
other equitable method determined by the Company (a) that will not give the
Company the right to purchase Receipts, Depositary Shares or shares of Preferred
Stock represented by such Depositary Shares pursuant to the provisions of
Section 7.5 of the Company's by-laws and (b) if the Amendments to the
Certificate of Incorporation become effective in accordance with the DGCL, that
will not result in the conversion of any Preferred Stock into Excess Stock. The
Company shall also cause notice of redemption to be published in the Wall Street
Journal or, if such newspaper is not then being published, any other daily
newspaper of general circulation in The City of New York at least once a week
for two successive weeks commencing not less than 30 nor more than 60 days prior
to the cash redemption date.
In the event that notice of redemption has been made as described in the
immediately preceding paragraph and the Company shall then have paid in full to
the Depositary the cash redemption price (determined pursuant to the Certificate
of Designation) of the Preferred Stock deposited with the Depositary to be
redeemed (including any accrued and unpaid dividends (including, without
limitation, accumulated dividends, if any, for prior dividend periods) to the
date of redemption), the Depositary shall redeem, as of the same redemption date
as the Preferred Stock being so redeemed, the number of Depositary Shares
representing such Preferred Stock so called for redemption by the Company and
from and after the cash redemption date (unless the Company shall have failed to
redeem the shares of Preferred Stock to be redeemed by it as set forth in the
Company's notice provided for in the preceding paragraph and to pay all amounts
due upon such redemption) all dividends in respect of the shares of Preferred
Stock called for redemption shall cease to accrue, the Depositary Shares called
for redemption shall be deemed no longer to be outstanding and all rights of the
holders of Receipts evidencing such Depositary Shares (except the right to
receive the cash redemption price together with accrued and unpaid dividends
thereon (including, without limitation, accumulated dividends, if any, for prior
dividend periods) and any money or other property to which holders of such
Receipts were entitled upon such redemption) shall, to the extent of such
Depositary Shares, cease and terminate. Upon surrender in accordance with said
notice of the Receipts evidencing such Depositary Shares representing such
Preferred Stock so called for redemption (properly endorsed or assigned for
transfer, if the Depositary shall so require), such Depositary Shares shall be
redeemed at a cash redemption price per Depositary Share of $25, plus 1/10th of
the accrued and unpaid dividends (including, without limitation, accumulated
dividends, if any, for prior dividend periods), if any, payable on one share of
Preferred Stock upon such redemption, plus 1/10th of any other money and other
property payable in respect of one such share of Preferred Stock upon such
redemption. The foregoing shall be further subject to the terms and conditions
of the Certificate of Designation.
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Anything herein to the contrary notwithstanding, the holders of record of
Receipts evidencing Depositary Shares representing Preferred Stock at the close
of business on a record date for the payment of dividends on the Preferred Stock
will be entitled to receive the dividend payable with respect to the Preferred
Stock represented by the Depositary Shares evidenced by such Receipts on the
corresponding dividend payment date for the Preferred Stock notwithstanding the
redemption of such Preferred Stock or Depositary Shares after such record date
and on or prior to such dividend payment date or the Company's default in the
payment of the dividend due on such dividend payment date, in which case the
amount payable upon redemption of such Depositary Shares will not include any
amount in respect of such dividend (and the full amount of the dividend payable
for the applicable dividend period shall instead be paid on such dividend
payment date to the holders of record of such Receipts on such record date as
aforesaid).
If fewer than all of the Depositary Shares evidenced by a Receipt are
called for redemption, the Depositary will deliver to the holder of such Receipt
upon its surrender to the Depositary, together with payment of the cash
redemption price for and all other amounts payable in respect of the Depositary
Shares called for redemption, a new Receipt evidencing the Depositary Shares
evidenced by such prior Receipt and not called for redemption.
If the Amendments to the Certificate of Incorporation become effective in
accordance with the DGCL and, thereafter, any deposited Preferred Stock is
converted into Excess Stock and any such Excess Stock is to be redeemed in
connection with the redemption of deposited Preferred Stock, then, subject to
the other provisions of this Deposit Agreement, the provisions of this Section
2.3 shall apply, mutatis mutandis, to the redemption of such Excess Stock.
Section 2.4 Registration of Transfer of Receipts. The Company hereby
appoints the Depositary as the Registrar, Transfer Agent and paying agent for
the Receipts in Boston, Massachusetts and the Borough of Manhattan, The City of
New York and the Depositary hereby accepts such appointment and, as such, shall
register on its books from time to time transfers of Receipts upon any surrender
thereof by the holder in person or by a duly authorized attorney, properly
endorsed or accompanied by a properly executed instrument of transfer or
endorsement. No service charge will be made for any registration of transfer or
exchange of Receipts, but the Company or the Depositary may require payment of
any transfer tax or similar governmental charge payable in connection therewith.
Upon such surrender, the Depositary shall execute a new Receipt or Receipts and
deliver the same to or upon the order of the person entitled thereto evidencing
the same aggregate number of Depositary Shares evidenced by the Receipt or
Receipts surrendered.
Section 2.5 Combinations and Split-ups of Receipts. Upon surrender of a
Receipt or Receipts at the Corporate Office, the New York Office or such other
office as the Depositary may designate for the purpose of effecting a split-up
or combination of Receipts, subject to the terms and conditions of this Deposit
Agreement, the Depositary shall execute and deliver a new Receipt or Receipts in
the authorized denominations requested evidencing
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the same aggregate number of Depositary Shares evidenced by the Receipt or
Receipts surrendered.
Section 2.6 Surrender of Receipts and Withdrawal of Preferred Stock. Any
holder of a Receipt or Receipts evidencing Depositary Shares representing
deposited Preferred Stock may withdraw any or all of the deposited Preferred
Stock represented by the Depositary Shares evidenced by such Receipt or Receipts
and all money and other property, if any, represented by such Depositary Shares
by surrendering such Receipt or Receipts at the Corporate Office, the New York
Office or at such other office as the Depositary may designate for such
withdrawals, provided that a holder of a Receipt or Receipts may not withdraw
such Preferred Stock (or money and other property, if any, represented thereby)
which has previously been called for redemption. After such surrender, 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 or fractional shares of such Preferred Stock and all such money and
other property, if any, represented by the Depositary Shares evidenced by the
Receipt or Receipts so surrendered for withdrawal, but, except as provided below
in this Section 2.5, holders of such whole or fractional shares of Preferred
Stock will not thereafter be entitled to deposit such Preferred Stock hereunder
or to receive Depositary Shares therefor. If the Receipt or Receipts 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 or fractional shares of deposited
Preferred Stock to be withdrawn, the Depositary shall at the same time, in
addition to such number of whole or fractional shares of Preferred Stock and
such money and other property, if any, to be withdrawn, deliver to such holder
or (subject to Section 2.4) upon his order, a new Receipt or Receipts evidencing
such excess number of Depositary Shares. Delivery of such Preferred Stock and
such money and other property being withdrawn may be made by the delivery of
such certificates, documents of title and other instruments as the Depositary
may deem appropriate, which, if required by the Depositary, shall be properly
endorsed or accompanied by proper instruments of transfer.
If the deposited Preferred 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 Preferred
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 Preferred
Stock be properly endorsed in blank or accompanied by a properly executed
instrument of transfer or endorsement in blank.
The Depositary shall deliver the deposited Preferred Stock and the money
and other property, if any, represented by the Depositary Shares evidenced by
Receipts surrendered for withdrawal at the New York Office or, if requested by
the holder surrendering such Receipt or Receipts, at the Corporate Office,
except that, at the request, risk and expense of the holder surrendering such
Receipt or Receipts and for the account of the holder thereof, such delivery may
be made at such other place as may be designated by such holder.
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If the Amendments become effective in accordance with the DGCL and,
thereafter, any deposited Preferred Stock is converted into Excess Stock, then,
subject to the other provisions of this Deposit Agreement, the foregoing
provisions of this Section 2.6 shall apply, mutatis mutandis, to the withdrawal
of such Excess Stock. Anything herein to the contrary notwithstanding, in the
event that any Excess Stock is withdrawn and such Excess Stock thereafter is
converted back into Preferred Stock pursuant to Article Thirteenth, then such
Preferred Stock may be subsequently deposited under this Deposit Agreement.
Section 2.7 Limitations on Execution and Delivery, Transfer, Split-up,
Combination, Surrender and Exchange of Receipts. As a condition precedent to the
execution and delivery, transfer, split-up, combination, surrender or exchange
of any Receipt, the Depositary, any of the Depositary's Agents or the Company
may require any or all of the following: (i) 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 transfer tax or similar
governmental charge payable with respect thereto (including any such tax or
charge with respect to the Preferred Stock or Excess Stock being deposited or
withdrawn); (ii) production of proof satisfactory to it as to the identity and
genuineness of any signature (or the authority of any signature); and (iii)
compliance with such reasonable regulations, if any, as the Depositary or the
Company may establish consistent with the provisions of this Deposit Agreement
or as may be required by any securities exchange upon which the deposited
Preferred Stock, the Depositary Shares or the Receipts may be included for
quotation or listed.
The deposit of Preferred Stock or Excess Stock may be refused, the delivery
of Receipts against Preferred Stock or Excess Stock may be suspended, the
transfer of Receipts may be refused, and the transfer, split-up, combination,
surrender or exchange of outstanding Receipts may be suspended (i) during any
period when the register of stockholders of the Company is closed or (ii) if any
such action is deemed reasonably necessary or advisable by the Depositary, any
of the Depositary's Agents or the Company at any time or from time to time
because of any requirement of law or of any government or governmental body or
commission, or under any provision of this Deposit Agreement.
Section 2.8 Lost Receipts, etc. In case any Receipt shall be mutilated or
destroyed or 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, provided that the holder thereof provides the Depositary with
(i) evidence reasonably satisfactory to the Depositary of such destruction, loss
or theft of such Receipt, of the authenticity thereof and of his ownership
thereof and (ii) reasonable indemnification satisfactory to the Depositary and
the Company.
Section 2.9 Cancellation and Destruction of Surrendered Receipts. All
Receipts surrendered to the Depositary or any Depositary's Agent shall be
cancelled by the Depositary. Except as prohibited by applicable law or
regulation, the Depositary is authorized to destroy such Receipts so cancelled.
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Section 2.10 Restrictions on Transfer; Excess Stock. As set forth in the
Joint Proxy Statement/Prospectus dated May 18, 1998 (the "Proxy Statement") of
The Meditrust Companies and La Quinta Inns, Inc., the Company is soliciting the
vote of its stockholders in favor of amendments the (the "Amendments") to its
Certificate of Incorporation which would (i) add a new Article Thirteenth to
such Certificate of Incorporation in the form set forth as Annex E to the Proxy
Statement ("Article Thirteenth") and (ii) authorize a new class of capital stock
of the Company to be known as Excess Stock ("Excess Stock"). The Receipts and
the Depositary Shares represented thereby are subject to the provisions of
Section 7.5 of the Company's by-laws and, if the Amendments are approved and
become effective in accordance with the DGCL, then, from and after the date on
which the Amendments shall have become effective in accordance with the DGCL,
the Receipts and the Depositary Shares represented thereby shall also be subject
to the provisions of Article Thirteenth and (i) for purposes of applying Section
7.5 of the Company's by-laws and, if the Amendments become effective as
aforesaid, Article Thirteenth, each holder of any Receipts will be deemed to be
the owner of the number of shares (including fractional shares) of Preferred
Stock represented by the Depositary Shares evidenced by such Receipts and (ii)
except as otherwise expressly stated in this Deposit Agreement, Section 7.5 of
the Company's by-laws and, if the Amendments become effective as aforesaid,
Article Thirteenth shall apply to such holder and such Receipts and Depositary
Shares as if (A) such holder owned the shares (including fractional shares) of
Preferred Stock represented by such Depositary Shares directly, (B) such
Receipts evidenced such shares (including fractional shares) of Preferred Stock
and (C) each such Depositary Share was a fractional share of Preferred Stock,
mutatis mutandis.
If the Amendments become effective as described in the first paragraph of
this Section 2.10, then the deposited Preferred Stock represented by the
Depositary Shares evidenced by any Receipt may be converted into Excess Stock
upon the terms and conditions set forth in Article Thirteenth and, upon any such
conversion of deposited Preferred Stock into Excess Stock, the Depositary Shares
which previously represented such shares of Preferred Stock shall be deemed to
represent such shares of Excess Stock and the Prohibited Owner of such
Depositary Shares shall submit the Receipts evidencing such Depositary Shares to
the Company for registration in the name of the applicable Trustee; provided
that if fewer than all of the shares of Preferred Stock represented by the
Depositary Shares evidenced by a Receipt are converted into Excess Stock, the
Depositary will deliver to the holder of such Receipt, upon submission of such
Receipt to the Depositary as aforesaid, a new Receipt evidencing the Depositary
Shares representing the shares of Preferred Stock which have not been converted
into Excess Stock. In the event of the conversion of any deposited Preferred
Stock into Excess Stock, the Company and the Depositary shall take such actions
as may be necessary or appropriate so that the Receipts evidencing Depositary
Shares representing such Excess Stock are appropriately and conspicuously marked
to indicate that they evidence Depositary Shares representing Excess Stock and
not Depositary Shares representing Preferred Stock, it being the intention of
the parties hereto that no Receipt shall evidence both Depositary Shares
representing Preferred Stock and Depositary Shares representing Excess Stock,
and that all Receipts evidencing Depositary Shares representing Excess Stock
shall be registered in the name of the applicable Trustee. In the event that any
shares of
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deposited Preferred Stock are converted into Excess Stock as aforesaid, the
Company will promptly provide the Depositary with the names and addresses of the
Prohibited Owners of the Depositary Shares representing such shares of Excess
Stock and the Depositary will make appropriate notations in its stock transfer
books.
If, pursuant to Section 7.5 of its by-laws, the Company purchases any
shares of Preferred Stock represented by Depositary Shares, the Company will,
prior to such purchase, provide the Depositary with the names of the specific
holders of the Receipts evidencing such Depositary Shares and, on or prior to
the day of purchase, the Company will pay to the Depositary an amount equal to
the purchase price of such shares of Preferred Stock, together with accrued and
unpaid dividends thereon (including, without limitation, accumulated dividends,
if any, for prior dividend periods) to the date of purchase, and the Depositary
will apply such monies to purchase such Depositary Shares from the holders
identified by the Company as aforesaid against surrender of such Depositary
Receipts. Anything in the Company's by-laws to the contrary notwithstanding, the
purchase price for each Depositary Share purchased by the Company pursuant to
this Section 2.10 shall be equal to 1/10th of the purchase price payable under
Section 7.5 of the Company's by-laws per share of Preferred Stock to be
purchased as aforesaid, plus 1/10th of the accrued and unpaid dividends
(including, without limitation, accumulated dividends, if any, for prior
dividend periods) on one share of such Preferred Stock to the date of purchase,
plus 1/10th of any other money or other property payable in respect of one share
of such Preferred Stock.
If the Amendments become effective as described in the first paragraph of
this Section 2.10 and, thereafter, any shares of Preferred Stock deposited
hereunder are converted into Excess Stock and any Prohibited Owner shall be
entitled to receive any monies, securities or other property from the applicable
Trustee pursuant to Section 13.2(f) or 13.2(i) of Article Thirteenth, or if any
dividend or other distribution of monies, securities or other property shall be
paid or made upon such Excess Stock then, unless Article Thirteenth provides
that such monies, securities or other property shall be held by the applicable
Trustee for the benefit of, or distributed or paid to, the applicable
Beneficiary (as defined in Article Thirteenth), the Company will cause such
monies, securities or other property to be paid or distributed, as the case may
be, to the Depositary and, prior to the date of payment or distribution of such
monies, securities or other property, the Company will provide the Depositary
with the names of the Prohibited Owners of the Depositary Shares representing
such Excess Stock and the Depositary will pay or distribute, as the case may be,
such monies, securities and property to such Prohibited Owners, with the amount
payable or distributable in respect of each such Depositary Share being equal to
1/10th of the amount payable or distributable per share of Excess Stock.
In the event that any Preferred Stock deposited hereunder is converted into
Excess Stock and, thereafter, such Excess Stock is, pursuant to Article
Thirteenth, converted back into Preferred Stock, then the Depositary Shares
which were previously deemed to represent such Excess Stock shall thereafter
automatically be deemed to represent such Preferred Stock and such Depositary
Shares and the Receipts evidencing such Depositary Shares shall be
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restored to their previous status under this Deposit Agreement. In such case,
the Company and the Depositary shall cause the Trustee to submit the Receipts
evidencing the Depositary Shares representing the Excess Stock which is being
converted back into Preferred Stock to the Depositary and, upon the conversion
of such Excess Stock into Preferred Stock, the Depositary shall issue new
Receipts evidencing Depositary Shares representing such Preferred Stock, such
Receipts to be registered in the name of the persons entitled thereto pursuant
to Article Thirteenth, and shall deliver such Receipts in accordance with the
provisions of Article Thirteenth and as directed by the Company.
If fewer than all of the Depositary Shares evidenced by a Receipt are
purchased by the Company pursuant to Section 7.5 of its by-laws or, if the
Amendments become effective as described in the first paragraph of this Section
2.10, by the Company or a Permitted Transferee (as defined in Article
Thirteenth) pursuant to Article Thirteenth, the Depositary will deliver to the
holder of such Receipt upon its surrender to the Depositary, a new Receipt
evidencing the Depositary Shares evidenced by such prior Receipt and not so
purchased by the Company or such Permitted Transferee, as the case may be. The
Depositary and the Company will cooperate in good faith to carry out the terms
of this Section 2.10, subject to the other terms and provisions of this Deposit
Agreement.
ARTICLE III
CERTAIN OBLIGATIONS OF HOLDERS OF RECEIPTS AND THE COMPANY
Section 3.1 Filing Proofs, Certificates and Other Information. Any person
presenting Preferred Stock for deposit or any holder of a Receipt may be
required from time to time to file such proof of residence or other information,
to execute such certificates and to make such representations and warranties as
the Depositary or the Company may reasonably deem necessary or proper. The
Depositary or the Company may withhold or delay the delivery of any Receipt, the
transfer, redemption or exchange of any Receipt, the withdrawal of the deposited
Preferred Stock or Excess Stock represented by the Depositary Shares evidenced
by any Receipt, 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 or such representations and
warranties are made.
Section 3.2 Payment of Fees and Expenses. Holders of Receipts shall be
obligated to make payments to the Depositary of certain fees and expenses, as
provided in Section 5.7, or to provide evidence reasonably satisfactory to the
Depositary that such fees and expenses have been paid. Until such payment is
made, transfer of any Receipt or any withdrawal of the Preferred Stock or Excess
Stock or money or other property, if any, represented by the Depositary Shares
evidenced by such Receipt may be refused, any dividend or other distribution on
such Preferred Stock or Excess Stock may be withheld, and any part or all of the
Preferred Stock or Excess Stock or other property represented by the Depositary
Shares evidenced by such Receipt may be sold for the account of the holder
thereof (after attempting by reasonable means to notify such holder a reasonable
number of days prior to such sale).
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Any dividend or other distribution so withheld and the proceeds of any such sale
may be applied to any payment of such fees or expenses, the holder of such
Receipt remaining liable for any deficiency.
Section 3.3 Representations and Warranties as to Preferred Stock. In the
case of the initial deposit of the Preferred Stock hereunder, the Company and,
in the case of subsequent deposits thereof, each person so depositing Preferred
Stock under this Deposit Agreement shall be deemed thereby to represent and
warrant that such Preferred Stock and each certificate therefor are valid and
that the person making such deposit is duly authorized to do so. The Company
hereby further represents and warrants that such Preferred Stock, when issued,
will be validly issued, fully paid and nonassessable and any Excess Stock issued
upon conversion of such Preferred Stock, when issued, will be validly issued,
fully paid and non-assessable. Such representations and warranties shall survive
the deposit of the Preferred Stock and the issuance of Receipts.
Section 3.4 Representation and Warranty as to Receipts and Depositary
Shares. The Company hereby represents and warrants that the Receipts, when
issued, will evidence legal and valid interests in the Depositary Shares and
each Depositary Share will represent a legal and valid 1/10th fractional
interest in a deposited share of Preferred Stock or, in the event that the
Amendments shall become effective in accordance with applicable law and any
deposited Preferred Stock is converted into Excess Stock, a legal and valid
1/10th fractional interest in a share of deposited Excess Stock. Such
representation and warranty shall survive the deposit of the Preferred Stock and
the issuance of Receipts and any conversion of deposited Preferred Stock into
Excess Stock.
ARTICLE IV
THE PREFERRED STOCK; NOTICES
Section 4.1 Cash Distributions. Whenever the Depositary shall receive any
cash dividend or other cash distribution on the deposited Preferred Stock or
deposited Excess Stock, the Depositary shall, subject to Section 3.2 and the
last sentence of this Section 4.1, (i) distribute to record holders of Receipts
evidencing Depositary Shares representing deposited Preferred Stock on the
record date fixed pursuant to Section 4.4 such amounts of such sums as are, as
nearly as practicable, in proportion to the respective numbers of such
Depositary Shares evidenced by the Receipts held by such holders and (ii)
distribute to record holders of Receipts evidencing Depositary Shares
representing deposited Excess Stock on the record date fixed pursuant to Section
4.4 such amounts of such sums as are, as nearly as practicable, in proportion to
the respective numbers of such Depositary Shares held by such holders (subject
to the obligation, if any, of the applicable Trustee to distribute certain such
cash dividends or other cash distributions to the applicable Prohibited Owners
as contemplated by Article Thirteenth); provided, however, that in case the
Company or the Depositary shall be required by law to withhold and shall
withhold from any cash dividend or other cash distribution in respect of the
Preferred Stock or Excess Stock represented by the
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Depositary Shares which are evidenced by the Receipts held by any holder or
owned by any Prohibited Owner an amount on account of taxes, the amount made
available for distribution or distributed in respect of Depositary Shares
evidenced by such Receipts 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
Receipts 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 evidencing Depositary Shares
representing Preferred Stock then outstanding or to record holders of Receipts
evidencing Depositary Shares representing Excess Stock then outstanding, as the
case may be. Notwithstanding the foregoing, (i) if less than all of the
outstanding Depositary Shares are to be redeemed as contemplated by Section 2.3
hereof and the Depositary Shares to be so redeemed are not selected pro rata,
then only the holders of the Receipts evidencing the Depositary Shares selected
for redemption will be entitled to receive the cash redemption price therefor or
any other amounts payable upon such redemption; and (ii) if any Depositary
Shares are purchased by the Company pursuant to Section 7.5 of its by-laws as
contemplated by Section 2.10 hereof, then only the holders of the Receipts
evidencing such Depositary Shares shall be entitled to receive the purchase
price therefor or any other amounts payable upon such purchase; and (iii) in the
event that the Amendments shall become effective in accordance with applicable
law and, thereafter, any deposited Preferred Stock is converted into Excess
Stock then (A) any monies payable under Section 13.2(i) of Article Thirteenth
upon a sale or other disposition of such Excess Stock shall be payable only to
the Prohibited Owner of the Depositary Shares representing such Excess Stock and
as otherwise provided by Article Thirteenth, (B) the Depositary Shares
representing Excess Stock shall not represent a fractional interest in or be
entitled to share in or receive any monies, securities or other property
(including any rights, preferences or privileges referred to in Section 4.3)
payable, distributable or offered in respect of the deposited Preferred Stock
and (C) the Depositary Shares representing deposited Preferred Stock shall not
represent a fractional interest in or be entitled to share in or receive any
monies, securities or other property (including any rights, preferences or
privileges referred to in Section 4.3) payable, distributable or offered in
respect of Excess Stock.
Section 4.2 Distributions Other Than Cash. Whenever the Depositary shall
receive any distribution other than cash on the deposited Preferred Stock or
deposited Excess Stock, the Depositary shall, subject to Section 3.2 and the
last sentence of Section 4.1, (i) distribute to record holders of Receipts
evidencing Depositary Shares representing deposited Preferred Stock on the
record date fixed pursuant to Section 4.4 such amounts of the securities or
property received by the Depositary in respect of the deposited Preferred Stock
as are, as nearly as practicable, in proportion to the respective numbers of
such Depositary Shares evidenced by the Receipts
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held by such holders and (ii) distribute to record holders of Receipts
evidencing Depositary Shares representing deposited Excess Stock on the record
date fixed pursuant to Section 4.4 such amounts of the securities or property
received by the Depositary in respect of the deposited Excess Stock as are, as
nearly as practicable, in proportion to the respective number of such Depositary
Shares, evidenced by the Receipts held by such holders (subject to the
obligation, if any, of the applicable Trustee to distribute certain such
securities or property to the applicable Prohibited Owners as contemplated by
Article Thirteenth), in each case in any manner that the Depositary and the
Company may deem equitable and practicable for accomplishing such distribution.
If, in the opinion of the Depositary after consultation with the Company, such
distribution cannot be made proportionately among such record holders of
Receipts evidencing Depositary Shares representing Preferred Stock or among
record holders of Receipts evidencing Depositary Shares representing Excess
Stock, as the case may be, or if for any other reason (including any requirement
that the Company or the Depositary withhold an amount on account of taxes) the
Depositary deems, after consultation with the Company, such distribution not to
be feasible, the Depositary may, with the approval of the Company, adopt such
method as it deems equitable and practicable for the purpose of effecting such
distribution, including the sale (at public or private sale) of the securities
or property thus received or any part thereof, at such place or places and upon
such terms as it may deem proper. The net proceeds of any such sale shall,
subject to Section 3.2, be distributed or made available for distribution, as
the case may be, by the Depositary to record holders of the applicable Receipts
as provided by Section 4.1 in the case of a distribution received in cash. The
Company shall not make any distribution of such securities or property unless
the Company shall have provided to the Depositary an opinion of counsel stating
that such securities or property have been registered under the Securities Act
or do not need to be registered.
Section 4.3 Subscription Rights, Preferences or Privileges. If the Company
shall at any time offer or cause to be offered to the persons in whose names
deposited Preferred Stock or deposited Excess Stock is registered 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, subject to the last sentence of Section 4.1,
(i) to the record holders of Receipts evidencing Depositary Shares representing
such Preferred Stock and (ii) to the record holders of Receipts evidencing
Depositary Shares representing such Excess Stock (subject to the obligation, if
any, of the applicable Trustee to make available certain such rights,
preferences or privileges to the applicable Prohibited Owners as contemplated by
Article Thirteenth), in each case in such manner as the Company shall instruct
(including by the issue to such record holders of warrants representing such
rights, preferences or privileges); provided, however, that (a) if at the time
of issue or offer of any such rights, preferences or privileges the Company
determines upon advice of its legal counsel that it is not lawful or feasible to
make such rights, preferences or privileges available to the holders of Receipts
(by the issue of warrants or otherwise) or (b) if and to the extent instructed
by holders of Receipts who do not desire to exercise such rights, preferences or
privileges, the Depositary shall then, if applicable laws or the terms of such
rights, preferences or privileges so permit, sell such rights, preferences or
privileges of such holders 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 Section 3.2, be distributed by the Depositary to the record
holders of Receipts entitled thereto as provided by Section 4.1 in the case of a
distribution received in cash. The Company shall not make any distribution of
such
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rights, preferences or privileges unless the Company shall have provided to the
Depositary an opinion of counsel stating 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
Receipts or, if applicable, any Prohibited Owners or Beneficiary to be offered
or sold the securities to which such rights, preferences or privileges relate,
the Company agrees that it will 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 as promptly as practicable and,
in any event, sufficiently in advance of the expiration of such rights,
preferences or privileges to enable such persons to exercise such rights,
preferences or privileges. In no event shall the Depositary make available to
the holders of Receipts or, if applicable, any Prohibited Owners or Beneficiary
any right, preference or privilege to subscribe for or to purchase any
securities unless and until such a registration statement shall have become
effective and the Company shall have provided to the Depositary an opinion of
legal counsel to such effect or unless the offering and sale of such securities
to such persons are exempt from registration under the provisions of the
Securities Act and the Company shall have provided to the Depositary an opinion
of counsel to such effect.
If any other action under the law of any jurisdiction or any governmental
or administrative authorization, consent or permit is required in order for such
rights, preferences or privileges or related securities or any securities or
property referred to in Section 4.2 to be made available to holders of Receipts
or, if applicable, any Prohibited Owners or Beneficiary, the Company agrees to
take such action or obtain such authorization, consent or permit prior to the
distribution of such rights, preferences or privileges or such securities or
property referred to in Section 4.2, as the case may be, and further agrees, in
the case of any such related securities, to use its best efforts to take such
action or obtain such authorization, consent or permit as promptly as
practicable and, in any event, sufficiently in advance of the expiration of such
rights, preferences or privileges to enable such holders to exercise such
rights, preferences or privileges.
Section 4.4 Notice of Dividends; Fixing of Record Date for Holders of
Receipts. Whenever any cash dividend or other cash distribution shall become
payable, any distribution other than cash shall be made, or any rights,
preferences or privileges shall at any time be offered with respect to the
deposited Preferred Stock or Excess Stock issued upon conversion of deposited
Preferred Stock, or whenever the Depositary shall receive notice of (i) any
meeting at which holders of such Preferred Stock or such Excess Stock are
entitled to vote or of which holders of such Preferred Stock or such Excess
Stock are entitled to notice or (ii) any election on the part of the Company to
redeem any such shares of Preferred Stock or Excess Stock, 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 Preferred Stock or Excess
Stock, as the case may be) for the determination of the holders of Receipts who
shall
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be entitled (x) to receive such dividend, distribution, rights, preferences or
privileges or the net proceeds of the sale thereof, or (y) to give instructions
for the exercise of voting rights at any such meeting or to receive notice of
such meeting or redemption.
Section 4.5 Voting Rights. Upon receipt of notice of any meeting at which
the holders of deposited Preferred Stock or deposited Excess Stock issued upon
conversion of deposited Preferred Stock are entitled to vote, the Depositary, as
soon as practicable thereafter, shall mail to the record holders of Receipts a
notice, which shall be provided by the Company and which shall contain (i) such
information as is contained in such notice of meeting, (ii) a statement that the
holders of Receipts at the close of business on a specified record date fixed
pursuant to Section 4.4 will be entitled, subject to any applicable provision of
law, to instruct the Depositary as to the exercise of the voting rights
pertaining to the Preferred Stock or such Excess Stock, as the case may be,
represented by their respective Depositary Shares and (iii) a brief statement as
to the manner in which such instructions may be given. Upon the written request
of a holder of a Receipt on such record date (which shall be the same as the
record date for the Preferred Stock and the Excess Stock), the Depositary shall
vote or cause to be voted the Preferred Stock or Excess Stock, as the case may
be, represented by the Depositary Shares evidenced by such Receipt in accordance
with the instructions set forth in such request. Each share of Preferred Stock
and Excess Stock is entitled to ten votes and, accordingly, each Depositary
Share is entitled to one vote. The Company hereby agrees to take all reasonable
action that may be deemed necessary by the Depositary in order to enable the
Depositary to vote such Preferred Stock or such Excess Stock, as the case may
be, or cause such Preferred Stock or such Excess Stock, as the case may be, to
be voted. In the absence of specific instructions from the holder of a Receipt,
the Depositary will abstain from voting to the extent of the Preferred Stock or
Excess Stock, as the case may be, represented by the Depositary Shares evidenced
by such Receipt. The Depositary shall not be required to exercise discretion in
voting any Preferred Stock or Excess Stock represented by the Depositary Shares
evidenced by such Receipt.
Section 4.6 Changes Affecting Preferred Stock and Reclassifications,
Recapitalization, etc. Upon any change in the liquidation preference, or upon
any split-up, combination or any other reclassification of Preferred Stock, or
upon any recapitalization, reorganization, merger or consolidation affecting the
Company or to which it is a party or sale of all or substantially all of the
Company's assets, the Depositary shall, upon the instructions of the Company,
(i) make such adjustments in (a) the fraction of an interest represented by one
Depositary Share in one share of Preferred Stock and (b) the ratio of the
redemption price or, for purposes of Section 2.10 hereof, purchase price per
Depositary Share to the redemption price or purchase price, as the case may be,
of a share of Preferred Stock, in each case as may be required to fully reflect
the effects of such change in liquidation preference, split-up, combination or
other reclassification of Preferred Stock, or of such recapitalization,
reorganization, merger, consolidation or sale and (ii) treat any shares of stock
or other securities or property (including cash) that shall be received by the
Depositary in exchange for or upon conversion of or in respect of the Preferred
Stock as new deposited property under this Deposit Agreement, and Receipts then
outstanding shall
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thenceforth represent the proportionate interests of holders thereof in the new
deposited property so received in exchange for or upon conversion or in respect
of such Preferred Stock. In any such case the Depositary may, in its discretion,
with the approval of the Company, execute and deliver additional Receipts, or
may call for the surrender of all outstanding Receipts to be exchanged for new
Receipts specifically describing such new deposited property. Anything to the
contrary herein notwithstanding, holders of Receipts shall have the right from
and after the effective date of any such change in liquidation preference,
split-up, combination or other reclassification of the Preferred Stock or any
such recapitalization, reorganization, merger or consolidation or sale of all or
substantially all the assets of the Company, to surrender such Receipts to the
Depositary with instructions to convert, exchange or surrender the Preferred
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 deposited Preferred Stock evidenced by such Receipts might have been
converted or for which such Preferred Stock might have been exchanged or
surrendered immediately prior to the effective date of such transaction. The
Company shall cause effective provision to be made in the charter or other
governing instruments of the resulting, surviving or transferee entity (if other
than the Company) for protection of such rights as may be applicable upon
exchange of the deposited Preferred Stock for securities or property or cash of
the surviving entity in connection with the transactions set forth above. The
Company shall cause any such surviving entity (if other than the Company)
expressly to assume the obligations of the Company hereunder, by written
instrument or agreement executed and delivered on or prior to the effective date
of such transaction.
In the event that the Amendments become effective in accordance with
applicable law and, thereafter, any Excess Stock is issued upon conversion of
deposited Preferred Stock, then the terms and provisions of the preceding
paragraph of this Section 4.6 shall also be applicable to such Excess Stock as
if each reference therein to Preferred Stock were a reference to Excess Stock,
mutatis mutandis, and, without limitation to the foregoing, if any adjustment of
the nature referred to in clause (i) of the first sentence of such paragraph is
made in respect of the Preferred Stock or the Depositary Shares representing
Preferred Stock, the same adjustments shall be made in respect of the Excess
Stock and the Depositary Shares representing the Excess Stock.
Section 4.7 Inspection of Reports. The Depositary shall make available for
inspection by holders of Receipts at the Corporate Office, the New York Office
and at such other places as it may from time to time deem advisable during
normal business hours any reports and communications received from the Company
that are both received by the Depositary as the holder of deposited Preferred
Stock and made generally available to the holders of the Preferred Stock or that
are both received by the Depositary (or a Depositary's Agent) as the holder of
deposited Excess Stock issued upon conversion of deposited Preferred Stock and
made generally available to holders of such Excess Stock. In addition, the
Depositary shall transmit certain notices and reports to the holders of Receipts
as provided in Section 5.5.
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Section 4.8 List of Holders of Receipts. Promptly upon request from time to
time by the Company, the Depositary shall furnish to the Company a list, as of a
recent date specified by the Company, of the names, addresses and holdings of
Depositary Shares of all persons in whose names Receipts are registered on the
books of the Depositary. Promptly upon request from time to time by the
Depositary, the Company shall furnish to the Depositary a list, as of a recent
date specified by the Depositary, of the names and addresses of all Prohibited
Owners and their respective ownership interests in Depositary Shares
representing Excess Stock.
Section 4.9 Tax and Regulatory Compliance. The Depositary shall be
responsible for (i) preparation and mailing of Internal Revenue Service Forms
1099 for all open and closed accounts, (ii) foreign tax withholding, (iii)
back-up withholding (or any withholding as may be required at the then
applicable rate) on dividends paid and other distributions made to eligible
holders of Receipts, (iv) mailing Internal Revenue Service Forms W-9 to new
holders of Receipts without a certified taxpayer identification number, (v)
processing certified Internal Revenue Service Forms W-9, (vi) preparation and
filing of state information returns and (vii) escheatment services.
Section 4.10 Withholding. Notwithstanding any other provision of this
Deposit Agreement, in the event that the Depositary determines that any
distribution in property is subject to any tax which the Depositary is obligated
by law to withhold, the Depositary may dispose of all or a portion of such
property in such amounts and in such manner as the Depositary deems necessary
and practicable to pay such taxes, by public or private sale, and the Depositary
shall distribute the net proceeds of any such sale or the balance of any such
property after deduction of such taxes to the holders of Receipts entitled
thereto in proportion to the number of Depositary Shares held by them
respectively.
ARTICLE V
THE DEPOSITARY AND THE COMPANY
Section 5.1 Maintenance of Offices, Agencies and Transfer Books by the
Depositary and the Registrar. The Depositary shall maintain (i) at the New York
Office facilities for the execution and delivery, transfer, surrender and
exchange, split-up, combination and redemption of Receipts (and payment of
amounts due upon such redemption) and purchase of Receipts as contemplated by
Section 2.10 hereof (and payment of amounts due upon such purchase) and for
other payments and distributions in respect of the Depositary Shares and the
Receipts, and deposit and withdrawal of Preferred Stock and Excess Stock issued
upon conversion of deposited Preferred Stock and (ii) at the Corporate Office
and at the offices of the Depositary's Agents, if any, facilities for the
execution and delivery, transfer, surrender and exchange, split-up, combination
and redemption of Receipts (and payment of amounts due upon such redemption) and
purchase of Receipts as contemplated by Section 2.10 hereof (and payment of
amounts due upon such purchase) and for other payments and distributions in
respect of the Depositary Shares and the Receipts and
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deposit and withdrawal of Preferred Stock and Excess Stock issued upon
conversion of deposited Preferred Stock, all in accordance with the provisions
of this Deposit Agreement. Without limitation to the foregoing provisions of
this Section 5.1, the Company shall at all times maintain a paying agent,
Transfer Agent and Registrar for the Receipts and the Preferred Stock and Excess
Stock issued upon conversion of deposited Preferred Stock in the Borough of
Manhattan, The City of New York.
The Depositary shall keep books at the Corporate Office for the
registration and transfer of Receipts, which books at all reasonable times shall
be open for inspection by the record holders of 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.
If the Receipts or the Depositary Shares evidenced thereby or the Preferred
Stock represented by such Depositary Shares shall be listed on the New York
Stock Exchange, Inc. or any other stock exchange, the Depositary shall, with the
approval of the Company, appoint a Registrar (acceptable to the Company) for
registration of such Receipts or Depositary Shares in accordance with the
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 the Receipts, such Depositary Shares or such Preferred Stock are
listed on one or more other stock exchanges, the Depositary will, at the request
and expense of the Company, arrange such facilities for the delivery, transfer,
surrender, redemption, purchase and exchange of such Receipts, such Depositary
Shares or such Preferred Stock as may be required by law or applicable stock
exchange regulations.
Section 5.2 Prevention or Delay in Performance by the Depositary, the
Depositary's Agents, the Registrar or the Company. Neither the Depositary, any
Depositary's Agent, any Registrar nor the Company shall incur any liability to
any holder of any Receipt, if by reason of any provision of any present or
future law or regulation thereunder of the United States of America or of any
other governmental authority or, in the case of the Depositary, any Depositary's
Agent or any Registrar, by reason of any provision, present or future, of the
Certificate of Incorporation (including the Certificate of Designation) or, in
the case of the Company, the Depositary, any Depositary's Agent or any
Registrar, by reason of any act of God or war or other circumstance 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 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 Company incur any liability to any holder of a Receipt 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 by reason of any exercise of, or failure to
exercise, any discretion provided for in this Deposit Agreement.
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Section 5.3 Obligations of the Depositary, the Depositary's Agents, the
Registrar and the Company. Neither the Depositary, any Depositary's Agent, any
Registrar nor the Company assumes any obligation or shall be subject to any
liability under this Deposit Agreement or any Receipt to holders of Receipts
other than from acts or omissions arising out of conduct constituting bad faith,
negligence or willful misconduct in the performance of such duties as are
specifically set forth in this Deposit Agreement.
Neither the Depositary, any Depositary's Agent, any Registrar nor the
Company shall be under any obligation to appear in, prosecute or defend any
action, suit or other proceeding with respect to the deposited Preferred Stock,
deposited Excess Stock, Depositary Shares or Receipts that in its reasonable
opinion may involve it in expense or liability, unless indemnity reasonably
satisfactory to it against all expense and liability be furnished as often as
may be reasonably required.
Neither the Depositary, any Depositary's Agent, 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 provided
by any person presenting Preferred Stock for deposit, any holder of a Receipt or
any other person believed by it in good faith to be competent to give such
information. The Depositary, any Depositary's Agent, 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 in good faith to be
genuine and to have been signed or presented by the proper party or parties.
In the event the Depositary shall receive conflicting claims, requests or
instructions from any holders of Receipts or Prohibited Owners, on the one hand,
and the Company, on the other hand, the Depositary shall be entitled to act on
such claims, requests or instructions received from the Company and shall be
entitled to the full indemnification set forth in Section 5.6 hereof in
connection with any action so taken.
The Depositary shall not be responsible for any failure to carry out any
instruction to vote any of the deposited Preferred Stock or any deposited Excess
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 and does not result from negligence or
willful misconduct of the Depositary. 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 Agreement against the
Depositary or any Registrar.
The Depositary, its parent, affiliates, or subsidiaries, any Depositary's
Agent, and any Registrar may own, buy, sell or deal in any class of securities
of the Company and its affiliates and in Receipts or Depositary Shares or become
pecuniarily interested in any transaction in which the Company or its affiliates
may be interested or contract with or lend money to or otherwise act as fully or
as freely as if it were not the Depositary or the Depositary's Agent hereunder.
The Depositary may also act as transfer agent or registrar of
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any of the securities of the Company and its affiliates or act in any other
capacity for the Company or its affiliates.
It is intended that neither the Depositary nor any Depositary's Agent shall
be deemed to be an "issuer" of the securities under the federal securities laws
or applicable state securities laws, it being expressly understood and agreed
that the Depositary and any Depositary's Agent are acting only in a ministerial
capacity as Depositary for the deposited Preferred Stock and any deposited
Excess Stock; provided, however, that the Depositary agrees to comply with all
information reporting and withholding requirements applicable to it under law or
this Deposit Agreement in its capacity as Depositary.
Neither the Depositary (or its officers, directors, employees or agents)
nor any Depositary's Agent makes any representation or has any responsibility as
to the validity of the registration statement pursuant to which the Depositary
Shares are registered under the Securities Act, the deposited Preferred Stock,
any deposited Excess Stock, the Depositary Shares, the Receipts (except its
signature or countersignature thereon) or any instruments referred to herein or
therein, or as to the correctness of any statement made herein or therein;
provided, however, that the Depositary is responsible for its representations in
this Deposit Agreement and for the validity of any action taken or required to
be taken by the Depositary in connection with this Deposit Agreement.
The Company agrees that it will register the deposited Preferred Stock, any
Excess Stock issued upon conversion of deposited Preferred Stock and the
Depositary Shares in accordance with the applicable securities laws.
Section 5.4 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 to do so 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 at any time the Depositary acting hereunder shall resign or be
removed, the Company shall, within 60 days after the delivery of the notice of
resignation or removal, as the case may be, appoint a successor depositary,
which shall be a bank or trust company having its principal office in the United
States of America and having a combined capital and surplus of at least
$50,000,000. If a successor depositary shall not have been appointed in 60 days,
the resigning Depositary may petition a court of competent jurisdiction to
appoint 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 pursuant to which it shall agree to become the
depositary under this Agreement, and
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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 promptly execute and deliver an instrument
transferring to such successor all rights and powers of such predecessor
hereunder, shall duly assign, transfer and deliver all rights, title and
interest in the deposited Preferred Stock, any deposited Excess Stock issued
upon conversion of deposited Preferred Stock and any moneys or property held
hereunder to such successor and shall deliver to such successor a list of the
record holders of all outstanding Receipts and any list of the names and
addresses of Prohibited Owners of Depositary Shares representing Excess Stock
that may be in the possession of the predecessor. Any successor depositary shall
promptly mail notice of its appointment to the record holders of Receipts and
any Prohibited Owners whose names and addresses have been furnished to such
successor Depositary.
Any corporation, association or other entity 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 execute the Receipts either in the name of
the predecessor depositary or in the name of the successor depositary.
Section 5.5 Notices, Reports and Documents. The Company agrees that it will
deliver to the Depositary, and the Depositary will, promptly after receipt
thereof, transmit to the record holders of Receipts, in each case at the
addresses recorded in the Depositary's books, copies of all notices and reports
(including financial statements) required by law, by the rules of any national
securities exchange upon which the Preferred Stock, the Depositary Shares or the
Receipts are included for quotation or listed or by the Certificate of
Incorporation, the Company's by-laws or the Certificate of Designation to be
furnished by the Company to holders of the deposited Preferred Stock and Excess
Stock issued upon conversion of deposited Preferred Stock and, if requested by
the holder of any Receipt or any Prohibited Owner of Depositary Shares, a copy
of this Deposit Agreement, the form of Receipt, the Certificate of Designation
and the form of Preferred Stock certificate. 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. In
addition, the Depositary will transmit to the record holders of Receipts and the
Prohibited Owners at the Company's expense such other documents as may be
requested by the Company.
Section 5.6 Indemnification by the Company. The Company agrees to indemnify
the Depositary, any Depositary's Agent and any Registrar against, and hold each
of them harmless from, any liability, costs and expenses (including reasonable
attorneys' fees) that may arise out of, or in connection with, its acting as
Depositary, Depositary's Agent or Registrar, respectively, under this Deposit
Agreement and the Receipts, except for any liability arising out of the willful
misconduct, negligence or bad faith on the part of any such
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person or persons. The obligations of the Company set forth in this Section 5.6
shall survive any succession of any Depositary, Registrar or Depositary's Agent
or termination of this Deposit Agreement.
Section 5.7 Fees, Charges and Expenses. No charges or expenses of the
Depositary or any Depositary's Agent hereunder shall be payable by any person,
except as provided in this Section 5.7. The Company shall pay all transfer and
other taxes and governmental charges arising solely from the existence of this
Deposit Agreement. The Company shall also pay all fees and expenses of the
Depositary in connection with the deposit of the Preferred Stock, any Excess
Stock issued upon conversion of Preferred Stock and any Preferred Stock issued
upon conversion of Excess Stock and the initial issuance of the Depositary
Shares evidenced by the Receipts, any redemption of the Preferred Stock or
Excess Stock issued upon conversion of Preferred Stock at the option of the
Company, any purchase of Preferred Stock or Excess Stock issued upon conversion
of Preferred Stock by the Company or a Permitted Transferee as contemplated by
Section 2.10 hereof or Article Thirteenth, all withdrawals of the Preferred
Stock or Excess Stock issued upon conversion of Preferred Stock by holders of
Depositary Shares, and in connection with all other services provided, and all
other duties performed, by the Depositary under this Agreement. If a holder of
Receipts requests the Depositary to perform duties not required under this
Deposit Agreement, the Depositary shall notify the holder of the cost of the
performance of such duties prior to the performance thereof. Such holder will be
liable for the charges and expenses related to such performance. All other fees
and expenses of the Depositary and any Depositary's Agent hereunder and of any
Registrar (including, in each case, fees and expenses of counsel) incident to
the performance of their respective obligations hereunder will be promptly paid
as agreed between the Depositary and the Company from time to time. The amount
of the fees and expenses of the Depositary, any Depositary's Agent and any
Registrar which are payable by the Company pursuant to this Section 5.7 shall be
as agreed upon by the Company and the Depositary, such Depositary's Agent or
such Registrar, as the case may be, from time to time. The Depositary shall
present its statement for fees and expenses to the Company every month or at
such other intervals as the Company and the Depositary may agree.
ARTICLE VI
AMENDMENT AND TERMINATION
Section 6.1 Amendment. The Receipts and any provision of this Deposit
Agreement (including any provision of the form of Receipt attached as Exhibit A
hereto) may at any time and from time to time be amended by agreement between
the Company and the Depositary in any respect that they may deem necessary or
desirable; provided, however, that no such amendment which (i) shall materially
and adversely alter the rights of the holders of Receipts or (ii) would be
materially and adversely inconsistent with the rights granted to the holders of
the Preferred Stock
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pursuant to the Certificate of Designation or to the rights granted to the
holders of Excess Stock issued upon conversion of Preferred Stock pursuant to
the Certificate of Incorporation shall be effective unless such amendment shall
have been approved by the holders of Receipts evidencing at least two-thirds of
the Depositary Shares then outstanding. In no event shall any amendment impair
the right, subject to the provisions of Section 2.6, Section 2.7 and Article III
hereof, of any holder of any Depositary Shares to surrender the Receipt
evidencing such Depositary Shares with instructions to the Depositary to deliver
to the holder the deposited Preferred Stock or any deposited Excess Stock issued
upon conversion of deposited Preferred Stock, as the case may be, together in
each case with all money and other property, if any, represented thereby, except
in order to comply with mandatory provisions of applicable law. Every holder of
an outstanding Receipt at the time any such amendment becomes effective shall be
deemed, by continuing to hold such Receipt, to consent and agree to such
amendment and to be bound by this Deposit Agreement as amended thereby.
Section 6.2 Termination. This Deposit Agreement may be terminated by the
Company upon not less than 30 days' prior written notice to the Depositary if
(i) such termination is necessary to preserve the Company's status as a real
estate investment trust under the Internal Revenue Code of 1986, as amended (or
any successor thereto) or (ii) the holders of Receipts evidencing at least a
majority of the outstanding Depositary Shares consent to such termination,
whereupon the Depositary shall deliver or make available to each holder of a
Receipt, upon surrender of the Receipt held by such holder (but subject to the
provisions, if applicable, of Section 2.10 hereof), such number of whole or
fractional shares of deposited Preferred Stock or, if applicable, Excess Stock
issued upon conversion of deposited Preferred Stock as are represented by the
Depositary Shares evidenced by such Receipt, together with any cash or other
property held by the Depositary in respect of such Receipt. In the event that
this Deposit Agreement is terminated pursuant to clause (i) of the immediately
preceding sentence, the Company hereby agrees to use its best efforts to list
the Preferred Stock issued upon surrender of the Receipts evidencing the
Depositary Shares represented thereby on a national securities exchange. This
Deposit Agreement will automatically terminate if (i) all outstanding Depositary
Shares shall have been redeemed pursuant to Section 2.3 or (ii) there shall have
been made a final distribution in respect of the deposited Preferred Stock and,
if applicable, deposited Excess Stock issued upon conversion of deposited
Preferred Stock in connection with any liquidation, dissolution or winding up of
the Company and such distribution shall have been distributed to the holders of
Receipts entitled thereto.
Upon the termination of this Deposit Agreement, the Company shall be
discharged from all obligations under this Deposit Agreement except for its
obligations to the Depositary, any Depositary's Agent and any Registrar under
Section 5.6 and Section 5.7.
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ARTICLE VII
MISCELLANEOUS
Section 7.1 Counterparts. This Deposit Agreement may be executed in any
number of counterparts, and by each of the parties hereto on separate
counterparts, each of which counterparts, when so executed and delivered, shall
be deemed an original, but all such counterparts taken together shall constitute
one and the same instrument. Delivery of an executed counterpart of a signature
page to this Deposit Agreement by telecopier shall be effective as delivery of a
manually executed counterpart of this Deposit Agreement.
Section 7.2 Exclusive Benefits of Parties. This Deposit Agreement is for
the exclusive benefit of the parties hereto, and their respective successors
hereunder, and shall not be deemed to give any legal or equitable right, remedy
or claim to any other person whatsoever.
Section 7.3 Invalidity of Provisions. In case any one or more of the
provisions contained in this Deposit Agreement or in the Receipts shall be or
become invalid, illegal or unenforceable in any respect, the validity, legality
and enforceability of the remaining provisions contained herein or therein shall
in no way be affected, prejudiced or disturbed thereby.
Section 7.4 Notices. Any and all notices to be given to the Company
hereunder or under the Receipts shall be in writing and shall be deemed to have
been duly given if personally delivered or sent by mail, by overnight courier,
or by telegram or facsimile transmission confirmed by letter, addressed to the
Company at:
Meditrust Corporation
000 Xxxxx Xxxxxx
Xxxxxxx Xxxxxxx, Xxxxxxxxxxxxx 00000-0000
Attention: Xxxxxxx X. Xxxxxxxx
Telephone No.: (000) 000-0000
or at any other address of which the Company shall have notified the Depositary
in writing.
Any 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, by overnight courier, or by telegram or telex or
telecopier confirmed by letter, addressed to the Depositary at the Corporate
Office.
Any notices given to any record holder of a Receipt or, if applicable, any
Prohibited Owner or the Beneficiary 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, by overnight courier, or by telegram or telex or telecopier
confirmed by letter, addressed to such record
-28-
holder at the address of such record holder as it appears on the books of the
Depositary or, in the case of a Prohibited Owner or the Beneficiary, at its
address provided to the Depositary by the Company or, if such holder or
Prohibited Owner or the Beneficiary, as the case may be, shall have filed with
the Depositary in a timely manner a written request that notices intended for
such person be mailed or delivered to some other address, at the address
designated in such request.
Delivery of a notice sent by mail or by telegram or 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 or
telex or telecopier message) is deposited, postage prepaid, in a post office
letter box. The Depositary or the Company may, however, act upon any telegram or
telex or telecopier message received by it from the other or from any holder of
a Receipt or, if applicable, from any Prohibited Owner or the Beneficiary,
notwithstanding that such telegram or telex or telecopier message shall not
subsequently be confirmed by letter as aforesaid.
Section 7.5 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 will notify the Company of any such action, except that
no such notice shall be required if the Depositary's Agent in question is Boston
EquiServe Limited Partnership.
Section 7.6 Holders of Receipts Are Parties. The holders of Receipts from
time to time shall be deemed to be parties to this Deposit Agreement and shall
be bound by all of the terms and conditions hereof and of the Receipts by
acceptance of delivery thereof. In addition, Prohibited Owners of Depositary
Shares representing Excess Stock issued upon conversion of deposited Preferred
Stock shall be entitled to the rights and benefits expressly granted to such
Prohibited Owners under this Agreement.
Section 7.7 Governing Law. This Deposit Agreement and the Receipts and all
rights hereunder and thereunder and provisions hereof and thereof shall be
governed by, and construed in accordance with, the law of the State of New York
applicable to agreements made and to be performed in said State.
Section 7.8 Inspection of Deposit Agreement and Certificate of Designation.
Copies of this Deposit Agreement and the Certificate of Designation shall be
filed with the Depositary and the Depositary's Agents and shall be open to
inspection during business hours at the Corporate Office, the New York Office
and the respective offices of the Depositary's Agents, if any, by any holder of
any Receipt.
Section 7.9 Headings. The headings of articles and sections in this Deposit
Agreement (including Exhibit A hereto) and in the Receipts have been inserted
for convenience only and are not to be regarded as a part of this Deposit
Agreement or the
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Receipts or to have any bearing upon the meaning or interpretation of any
provision contained herein or in the Receipts.
IN WITNESS WHEREOF, Meditrust Corporation and STATE STREET BANK AND TRUST
COMPANY 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.
MEDITRUST CORPORATION
By: ________________________________________________
Name:
Title:
STATE STREET BANK AND TRUST COMPANY
By: ________________________________________________
Name:
Title:
EXHIBIT A
Form of Receipt
[FORM OF FACE OF RECEIPT]
The Company (as defined herein) will furnish to any holder hereof who so
requests and any other stockholder who so requests, without charge, the powers,
designations, preferences and relative, participating, optional or other special
rights of each class of stock or series thereof and the qualifications,
limitations or restrictions of such preferences and/or rights. The Company will
also furnish without charge to each holder hereof who so requests, without
charge, a copy of the Deposit Agreement (as defined below) and a copy of the
Certificate of Designation with respect to the Stock (as defined below) of the
Company. Any such request may be made to the Secretary of the Company at its
principal office or to the Depositary (as defined below).
The shares of Stock represented by the Depositary Shares (as defined below)
evidenced by this Receipt (as defined below) are subject to restrictions in the
by-laws of the Company which prohibit any person from acquiring or maintaining
any ownership interest in the stock of the Company which is inconsistent with
the requirements of the Internal Revenue Code of 1986, as amended (the "Code"),
pertaining to real estate investment trusts and which permit the Company to
purchase from any stockholder such number of shares sufficient to maintain or
bring the ownership of stock of the Company into conformity with such
requirements of the Code. The Deposit Agreement provides that this Receipt and
the Depositary Shares evidenced by this Receipt are subject to the foregoing
provisions of the Company's by-laws as if the holder hereof owned the shares
(including fractional shares) of Stock represented by such Depositary Shares
directly, and this Receipt and the Depositary Shares evidenced hereby are
therefore subject to the restrictions on ownership and transfer set forth in,
and may be purchased by the Company in accordance with, the provisions and
restrictions in its by-laws referred to above. The holder of this Receipt by his
or her acceptance hereof consents to be bound by such provisions and
restrictions.
As set forth in the Joint Proxy Statement/Prospectus dated May 18, 1998
(the "Proxy Statement") of The Meditrust Companies and La Quinta Inns, Inc., the
Company is soliciting the vote of its stockholders in favor of amendments (the
"Amendments") to its certificate of incorporation which would (i) add a new
Article Thirteenth to such certificate of incorporation in the form set forth as
Annex E to the Proxy Statement ("Article Thirteenth") and (ii) authorize a new
class of capital stock of the Corporation to be known as Excess Stock ("Excess
Stock"). The provisions of Article Thirteenth prohibit (a) any Person (as such
term and other capitalized terms used in this paragraph and not defined in this
Receipt are defined in Article Thirteenth) (other than a Look-Through Entity)
from Beneficially Owning or Constructively Owning in excess of 9.25% of the
number of outstanding shares of any class or series of Equity Stock, (b) any
Look-Through Entity from Beneficially Owning or Constructively Owning in excess
of 9.8% of the number of outstanding shares of any class or series of Equity
Stock, (c) any Person from acquiring or maintaining any ownership interest in
the stock in the Company that is inconsistent with (i) the requirements of the
Internal Revenue Code of 1986, as amended, pertaining to real estate investment
trusts or (ii) Article Thirteenth of the certificate of incorporation of the
Company. If the Amendments are approved and become effective in accordance with
the General Corporation Law of the State
of Delaware (the "DGCL"), then, from and after the date on which the Amendments
shall have become effective in accordance with the DGCL, the Stock shall be
subject to all of the terms and provisions of Article Thirteenth and the Deposit
Agreement provides that, from and after such effective date (1) this Receipt and
the Depositary Shares evidenced by this Receipt will be subject to the
provisions of Article Thirteenth as if the holder hereof owned the shares
(including fractional shares) of Stock represented by such Depositary Shares
directly and (2) the Stock represented by the Depositary Shares evidenced by
this Receipt may be converted into Excess Stock of the Company upon the terms
and conditions set forth in Article Thirteenth and, upon any such conversion
into Excess Stock, the Prohibited Owner shall submit this Receipt to the Company
for registration in the name of the applicable Trustee, all on the terms and
subject to the conditions set forth in the Deposit Agreement. The holder of this
Receipt by his or her acceptance hereof consents to be bound by such provisions
and restrictions in the event the Amendments become effective as aforesaid.
DRC- This Depositary Receipt is transferable in Boston, MA or New York,
New York.
See reverse for certain definitions.
DEPOSITARY RECEIPT FOR DEPOSITARY SHARES CUSIP
EACH REPRESENTING 1/10TH OF A SHARE OF
9% SERIES A CUMULATIVE REDEEMABLE PREFERRED STOCK
OF
MEDITRUST CORPORATION
(a Delaware corporation)
State Street Bank and Trust Company, as Depositary (the "Depositary", which
term includes any successor depositary under the Deposit Agreement referred to
below), hereby certifies that ____________________________________ is the
registered owner of ____________ DEPOSITARY SHARES ("Depositary Shares"), each
Depositary Share representing 1/10th of one share of 9% Series A Cumulative
Redeemable Preferred Stock, par value $0.10 per share (the "Stock"), of
Meditrust Corporation, a Delaware corporation (the "Company", which term, as
used herein, includes it successors), on deposit with the Depositary, subject to
the terms and entitled to the benefits of the Deposit Agreement dated as of June
17, 1998 (as the same may be amended or supplemented from time to time, the
"Deposit Agreement") among the Company, the Depositary and the holders from time
to time of depositary receipts ("Receipts") issued thereunder. By accepting this
Receipt, the holder hereof becomes a party to and agrees to be bound by all the
terms and conditions of the Deposit Agreement. This Receipt shall not be valid
or obligatory for any purpose or 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 signatory of the Depositary, provided that, if a
Registrar in respect of the Receipts (other than the Depositary) shall have been
appointed, then this Receipt may be signed by the facsimile signature of a duly
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authorized signatory of the Depository so long as it is countersigned by the
manual signature of a duly authorized signatory of such Registrar.
This Receipt is continued on the reverse hereof and the additional
provisions therein set forth (including, without limitation, those relating to
redemption) for all purposes have the same effect as if set forth at this place.
Dated:
STATE STREET BANK AND TRUST COMPANY,
as Depositary, Transfer Agent and Registrar
By: _________________________________
Authorized Signatory
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[FORM OF REVERSE OF RECEIPT]
MEDITRUST CORPORATION
1. The Deposit Agreement. Receipts, of which this Receipt is one, are made
available upon the terms and conditions set forth in the Deposit Agreement (as
defined on the face hereof). The Deposit Agreement (copies of which are on file
at the Corporate Office of the Depositary and at the office of any agent of the
Depositary) sets forth the rights of holders of Receipts and the rights and
duties of the Depositary. The statements made on the face and the reverse of
this Receipt are summaries of certain provisions of the Deposit Agreement and
are subject to the detailed provisions thereof, to which reference is hereby
made. In the event of any conflict between the provisions of this Receipt and
the provisions of the Deposit Agreement, the provisions of the Deposit Agreement
will govern.
2. Definitions. Unless otherwise expressly herein provided, all defined
terms used in this summary of the Deposit Agreement shall have the meanings
ascribed thereto in the Deposit Agreement.
3. Redemption of Stock. Whenever the Company shall elect to redeem shares
of Stock, it shall (unless otherwise agreed in writing with the Depositary) give
the Depositary not less than 60 days' notice of the date of such proposed
redemption and of the number of such shares of Stock held by the Depositary to
be redeemed and the applicable redemption price. The Depositary shall mail,
first-class postage prepaid, notice furnished by the Company of the redemption
of Stock and the proposed simultaneous redemption of Depositary Shares
representing the Stock to be redeemed, not less than 30 and not more than 60
days prior to the date fixed for redemption of such Stock and Depositary Shares,
to the holders of record at the close of business on the record date fixed for
such redemption pursuant to the Deposit Agreement of the Receipts evidencing the
Depositary Shares to be so redeemed, at the addresses of such holders as the
same appear on the records of the Depositary. Any such notice shall also be
published in the manner specified in the Deposit Agreement. On the date of such
redemption, the Depositary shall redeem the number of Depositary Shares
representing such Stock so called for redemption; provided, that the Company
shall then have paid in full to the Depositary the cash redemption price of the
Stock to be redeemed (including any accrued and unpaid dividends (including,
without limitation, accumulated dividends, if any, for prior dividend periods)
to the date of redemption). If fewer than all the outstanding Depositary Shares
are to be redeemed, the Depositary Shares to be redeemed shall be selected pro
rata or by lot or by any other equitable method determined by the Company (a)
that will not give the Company the right to purchase Receipts, Depositary Shares
or shares of Stock represented by such Depositary Shares pursuant to any
provisions in its by-laws allowing the purchase of its capital stock to preserve
the status of the Company as a real estate investment trust for federal income
tax purposes and (b) if the Amendments (as defined on the face hereof) become
effective in accordance with the DGCL (as defined on the face hereof), that will
not result in the conversion of any Stock into Excess Stock (as defined on the
face hereof) of the Corporation. Notice having been mailed as aforesaid, from
and after the redemption date (unless the
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Company shall have failed to redeem the shares of Stock to be redeemed by it as
set forth in the notice of redemption and to pay in full the redemption price
therefor (including accrued and unpaid dividends (including accumulated
dividends, if any, for prior dividend periods)), all dividends in respect of the
shares of Stock called for redemption shall cease to accrue, the Depositary
Shares called for redemption shall be deemed no longer to be outstanding and all
rights of the holders of Receipts evidencing such Depositary Shares (except the
right to receive the redemption price together with accrued and unpaid
dividends, if any, thereon (including, without limitation, accumulated
dividends, if any, for prior dividend periods) and any money or other property
to which holders of such Receipts were entitled upon such redemption) shall, to
the extent of such Depositary Shares, cease and terminate. Upon surrender in
accordance with said notice of the Receipts evidencing such Depositary Shares
(properly endorsed or assigned for transfer, if the Depositary shall so
require), such Depositary Shares shall be redeemed at a cash redemption price
per Depositary Share of $25, plus 1/10th of the accrued and unpaid dividends
(including, without limitation, accumulated dividends, if any, for prior
dividend periods), if any, payable on one share of Stock upon such redemption,
plus 1/10th of any other money and other property payable in respect of one such
share of Stock upon such redemption. The foregoing is subject to the further
terms and conditions of the Certificate of Designation and the Deposit
Agreement. If fewer than all of the Depositary Shares evidenced by this Receipt
are called for redemption, the Depositary will deliver to the holder of this
Receipt upon its surrender to the Depositary, together with the cash redemption
price, a new Receipt evidencing the Depositary Shares evidenced by such prior
Receipt and not called for redemption.
4. Surrender of Receipts and Withdrawal of Stock. Upon surrender of this
Receipt to the Depositary at the Corporate Office or the New York Office or at
such other office as the Depositary may designate, and subject to the provisions
of the Deposit Agreement, the holder hereof is entitled to withdraw, and to
obtain delivery, without unreasonable delay, to or upon the order of such
holder, any or all of the Stock (in whole or fractional shares of Stock) and all
money and other property, if any, represented by the Depositary Shares evidenced
by this Receipt; provided, however, that, in the event this Receipt shall
evidence a number of Depositary Shares in excess of the number of Depositary
Shares representing the number of whole or fractional shares of deposited Stock
to be withdrawn, the Depositary shall at the same time, in addition to such
number of whole or fractional shares of Stock and such money and other property,
if any, to be withdrawn, deliver to or upon the order of such holder, a new
Receipt or Receipts evidencing such excess number of Depositary Shares.
5. Transfers, Split-Ups, Combinations. Subject to the Deposit Agreement,
this Receipt is transferable on the books of the Depositary upon surrender of
this Receipt by the holder hereof in person or by a duly authorized attorney to
the Depositary, properly endorsed or accompanied by a properly executed
instrument of transfer or endorsement, together with evidence of the payment of
any transfer taxes as may be required by law. Upon such surrender the Depositary
shall sign and deliver a Receipt or Receipts to or upon the order of the person
entitled thereto, all as provided in and subject to the Deposit Agreement.
Subject
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to the terms of the Deposit Agreement, this Receipt may be split into other
Receipts or combined with other Receipts into one Receipt evidencing the same
aggregate number of Depositary Shares evidenced by the Receipt or Receipts
surrendered; provided, however, that the Depositary shall not issue any Receipt
evidencing a fractional Depositary Share.
6. Conditions to Signing and Delivery, Transfer, etc. of Receipts. As a
condition precedent to the execution and delivery, transfer, split-up,
combination, surrender or exchange of this Receipt, the Depositary, any of the
Depositary's Agents or the Company may require any or all of the following: (i)
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 transfer tax or similar governmental charge with respect thereto
(including any such tax or charge with respect to the Stock being deposited or
withdrawn); (ii) production of proof satisfactory to it as to the identity and
genuineness of any signature (or the authority of any signature); and (iii)
compliance with such reasonable regulations, if any, as the Depositary or the
Company may establish consistent with the provisions of the Deposit Agreement or
as may be required by any securities exchange upon which the deposited Stock,
the Depositary Shares or the Receipts may be included for quotation or listed.
7. Suspension of Delivery, Transfer, etc. The deposit of Stock may be
refused, the delivery of this Receipt against Stock may be suspended, the
transfer of Receipts may be refused, and the transfer, split-up, combination,
surrender or exchange of this Receipt may be suspended (i) during any period
when the register of stockholders of the Company is closed or (ii) if any such
action is deemed reasonably necessary or advisable by the Depositary, any of the
Depositary's Agents or the Company at any time or from time to time because of
any requirement of law or of any government or governmental body or commission,
or under any provision of the Deposit Agreement.
8. Amendment. The Receipts and any provision of the Deposit Agreement
(including any provision of the form of Receipt attached as an exhibit thereto)
may at any time and from time to time be amended by agreement between the
Company and the Depositary in any respect that they may deem necessary or
desirable; provided, however, that no such amendment which (i) shall materially
and adversely alter the rights of holders of Receipts or (ii) would be
materially and adversely inconsistent with the rights granted to the holders of
the Stock pursuant to the Certificate of Designation shall be effective unless
such amendment shall have been approved by the holders of at least two-thirds of
the Depositary Shares evidenced by Receipts then outstanding. The holder of this
Receipt at the time any such amendment becomes effective shall be deemed, by
continuing to hold this Receipt, to consent and agree to such amendment and to
be bound by the Deposit Agreement as amended thereby. In no event shall any
amendment impair the right, as provided in the Deposit Agreement, of the owner
of the Depositary Shares evidenced by this Receipt to surrender this Receipt
with instructions to the Depositary to deliver to the holder the deposited Stock
and all money and other property, if any, represented thereby, except in order
to comply with mandatory provisions of applicable law.
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9. Charges and Expenses. The Company will pay all transfer and other taxes
and governmental charges arising solely from the existence of the depositary
arrangement, except such charges as are expressly provided in the Deposit
Agreement to be at the expense of holders of Receipts.
10. Title to Receipts. Title to this Receipt (and to the Depositary Shares
evidenced hereby), when properly endorsed or accompanied by a properly executed
instrument of transfer or endorsement, is transferable by delivery with the same
effect as in the case of a negotiable instrument; provided, however, that until
this Receipt is transferred on the books of the Depositary as provided in the
Deposit Agreement, the Depositary may, notwithstanding any notice to the
contrary, treat the record holder hereof at such time as the absolute owner
hereof for the purpose of determining the person entitled to distribution of
dividends or other distributions or to any notice provided for in the Deposit
Agreement and for all other purposes.
11. Dividends and Distributions. Whenever the Depositary shall receive any
cash dividend or other cash distribution on the deposited Stock, the Depositary
shall, subject to the provisions of the Deposit Agreement, distribute to record
holders of Receipts evidencing Depositary Shares representing the deposited
Stock on the record date fixed pursuant to the Deposit Agreement such amounts of
such sums as are, as nearly as practicable, in proportion to the respective
numbers of such Depositary Shares evidenced by the Receipts held by such
holders; provided, however, that in case the Company or the Depositary shall be
required by law to withhold and shall withhold from any cash dividend or other
cash distribution in respect of the Stock represented by the Depositary Shares
which are evidenced by the Receipts held by any holder an amount on account of
taxes, the amount made available for distribution or distributed in respect of
Depositary Shares evidenced by such Receipts 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 Receipts 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.
Notwithstanding the foregoing, (i) if less than all of the outstanding
Depositary Shares are to be redeemed and the Depositary Shares to be so redeemed
are not selected pro rata, then only the record holders of the Receipts
evidencing the Depositary Shares selected for redemption will be entitled to
receive the cash redemption price therefor or any other amounts payable upon
such redemption; and (ii) if any Depositary Shares are purchased by the Company
pursuant to Section 7.5 of its by-laws, then only the record holders of the
Receipts evidencing such Depositary Shares shall be entitled to receive the
purchase price therefor or any other amounts payable upon such purchase; and
(iii) in the event that the Amendments become effective in accordance with
applicable law and, thereafter, any Stock is converted into Excess Stock, then,
anything herein to the contrary notwithstanding, any monies, securities or other
property (including any rights, preferences or privileges) payable,
distributable or offered in respect of the Stock or the Excess Stock shall be
paid, distributed or offered, as
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the case may be, to the persons specified, and as otherwise provided, in the
Deposit Agreement.
12. Subscription Rights, Preferences or Privileges. If the Company shall at
any time offer or cause to be offered to the persons in whose names deposited
Stock is registered 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, subject to the provisions of the Deposit
Agreement, be made available by the Depositary to the record holders of Receipts
in such manner as the Company shall instruct (including by the issue to such
record holders of warrants representing such rights, preferences and
privileges).
13. Notice of Distributions, Fixing of Record Date. Whenever any cash
dividend or other cash distribution shall become payable, any distribution other
than cash shall be made, or any rights, preferences or privileges shall at any
time be offered with respect to the deposited Stock, or whenever the Depositary
shall receive notice of (i) any meeting at which holders of such Stock are
entitled to vote or of which holders of such Stock are entitled to notice or
(ii) any election on the part of the Company to redeem any such shares of Stock,
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 Stock) for
the determination of the holders of Receipts who shall be entitled (x) to
receive such dividend, distribution, rights, preferences or privileges or the
net proceeds of the sale thereof, or (y) to give instructions for the exercise
of voting rights at any such meeting or to receive notice of such meeting or
whose Depositary Shares are to be so redeemed.
14. Voting Rights. Upon receipt of notice of any meeting at which the
holders of deposited Stock are entitled to vote, the Depositary, as soon as
practicable thereafter, shall mail to the record holders of Receipts a notice,
which shall be provided by the Company and which shall contain (i) such
information as is contained in such notice of meeting, (ii) a statement that the
holders of Receipts at the close of business on a specified date fixed as
provided in the Deposit Agreement will be entitled, subject to any applicable
provisions of law, to instruct the Depositary as to the exercise of the voting
rights pertaining to the Stock represented by their respective Depositary Shares
and (iii) a brief statement as to the manner in which such instructions may be
given. Upon the written request of a holder of this Receipt on such record date,
the Depositary shall vote or cause to be voted the Stock represented by the
Depositary Shares evidenced by this Receipt in accordance with the instructions
set forth in such request. The Company hereby agrees to take all reasonable
action that may be deemed necessary by the Depositary in order to enable the
Depositary to vote such Stock or cause such Stock to be voted. In the absence of
specific instructions from the holder of this Receipt, the Depositary will
abstain from voting to the extent of the Stock represented by the Depositary
Shares evidenced by this Receipt. The Depositary shall not be required to
exercise discretion in voting the Stock represented by the Depositary Shares
evidenced by this Receipt.
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15. Reports, Inspection of Transfer Books. The Depositary shall transmit to
the record holders of Receipts at the addresses recorded in the Depositary's
books copies of all notices and reports (including financial statements)
required by law, by the rules of any national securities exchange upon which the
Stock, the Depositary Shares or the Receipts are included for quotation or
listed or by the Certificate of Incorporation, the Company's by-laws or the
Certificate of Designation to be furnished by the Company to holders of the
deposited Stock that are received by the Depositary from the Company. The
Depositary shall keep books at the Corporate Office and the New York Office for
the registration and transfer of Receipts, which books at all reasonable times
will be open for inspection by the record holders of Receipts.
16. Liability of the Depositary, the Depositary's Agents, the Registrar and
the Company. Neither the Depositary, any Depositary's Agent, any Registrar nor
the Company shall incur any liability to any holder of this Receipt, if by
reason of any provision of any present or future law or regulation thereunder of
the United States of America or of any other governmental authority or, in the
case of the Depositary, any Depositary's Agent or any Registrar, by reason of
any provision, present or future, of the Certificate of Incorporation or the
Certificate of Designation or, in the case of the Company, the Depositary, any
Depositary's Agent or any Registrar, by reason of any act of God or war or other
circumstances 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 that the terms of the 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 this Receipt by reason of any nonperformance or delay, caused as
aforesaid, in the performance of any act or thing that the terms of the Deposit
Agreement provide shall or may be done or performed, or by reason of any
exercise of, or failure to exercise, any discretion provided for in the Deposit
Agreement.
17. Obligations of the Depositary's Agents, the Registrar and the Company.
Neither the Depositary, any Depositary's Agent, any Registrar nor the Company
assumes any obligation or shall be subject to any liability under the Deposit
Agreement or this Receipt to the holder hereof other than from acts or omissions
arising out of conduct constituting bad faith, negligence or willful misconduct
in the performance of such duties as are specifically set forth in the Deposit
Agreement.
Neither the Depositary, any Depositary's Agent, any Registrar nor the
Company shall be under any obligation to appear in, prosecute or defend any
action, suit or other proceeding with respect to the deposited Stock, Depositary
Shares or Receipts that in its reasonable opinion may involve it in expense or
liability, unless indemnity reasonably satisfactory to it against all expense
and liability be furnished as often as may be reasonably required.
Neither the Depositary, any Depositary's Agent, 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 provided
by any person presenting Stock for deposit,
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any holder of this 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 Company may each rely and shall each be protected in
acting upon any written notice, request, direction or other document believed by
it in good faith to be genuine and to have been signed or presented by the
proper party or parties.
18. Termination of Deposit Agreement. The Deposit Agreement may be
terminated by the Company upon not less than 30 days' prior written notice to
the Depositary if (i) such termination is necessary to preserve the Company's
status as a real estate investment trust under the Internal Revenue Code of
1986, as amended (or any successor thereto) or (ii) the holders of Receipts
evidencing a majority of the outstanding Depositary Shares consent to such
termination, whereupon the Depositary shall deliver or make available to each
holder of a Receipt, upon surrender of the Receipt held by such holder, such
number of whole or fractional shares of deposited Stock as are represented by
the Depositary Shares evidenced by such Receipt, together with any cash or other
property held by the Depositary in respect of such Receipt. In the event that
the Deposit Agreement is terminated pursuant to clause (i) of the immediately
preceding sentence, the Company has agreed in the Deposit Agreement to use its
best efforts to list the Stock issued upon surrender of the Receipts evidencing
the Depositary Shares represented thereby on a national securities exchange.
Upon the termination of the Deposit Agreement, the Company shall be discharged
of all obligations thereunder except for its obligations to the Depositary, any
Depositary's Agent and any Registrar under Sections 5.6 and 5.7 of the Deposit
Agreement.
19. Excess Stock. The Deposit Agreement contains certain provisions which
will affect the Receipts, the Depositary Shares and the rights and obligations
of the owners and holders thereof in the event that the Amendments become
effective in accordance with applicable law and, thereafter, deposited Stock is
converted into Excess Stock or Excess Stock is converted into deposited Stock,
and this Receipt and the rights and obligations of the holder hereof are
expressly qualified by, and made subject to, all such provisions. Without
limitation to the foregoing, in the event that the Amendments become effective
in accordance with applicable law and, thereafter, any Stock is converted into
Excess Stock pursuant to Article Thirteenth then, upon the terms and subject to
the conditions set forth in the Deposit Agreement, (i) the Depositary Shares
which previously represented the shares of Stock so converted shall instead be
deemed to represent such shares of Excess Stock, (ii) such Depositary Shares,
the Receipts evidencing such Depositary Shares and such Excess Stock shall be
subject to the other terms and provisions, and entitled to the rights and
benefits, set forth in the Deposit Agreement, (iii) the Depositary Shares
representing Excess Stock shall not represent a fractional interest in or be
entitled to receive any monies, securities or other property (including any
rights, preferences or privileges) payable, distributable or offered in respect
of deposited Stock and (iv) the Depositary Shares representing deposited Stock
shall not represent a fractional interest in or be entitled to receive any
monies, securities or other property (including any rights, preferences or
privileges) payable, distributable or offered in respect of such Excess Stock,
all on the terms and conditions set forth in the Deposit Agreement.
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20. Governing Law. The Deposit Agreement and this Receipt and all rights
thereunder and hereunder and provisions thereof and hereof shall be governed by,
and construed in accordance with, the law of the State of New York applicable to
agreements made and to be performed in said State.
The following abbreviations when used in the instructions 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 ____________
TEN ENT - as tenants by the (Cust) (Minor)
entireties
Under Uniform Gifts to Minors Act
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.
ASSIGNMENT
For value received, _________________________________ hereby sell(s),
assign(s) and transfers) unto
PLEASE INSERT SOCIAL SECURITY OR OTHER IDENTIFYING
NUMBER OF ASSIGNEE
Please Print Or Typewrite Name And Address Including Postal Zip Code Of
Assignee
Depositary Shares represented by the within Receipt, and do(es) hereby
irrevocably constitute and appoint _____________________________________
Attorney to transfer the said Depositary Shares on the books of the within named
Depositary with full power of substitution in the premises.
Dated: _____________________ Signed: ________________________________
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NOTICE: THE SIGNATURE TO 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
Signature(s) Guaranteed:
THE SIGNATURE(S) SHOULD BE GUARANTEED BY AN ELIGIBLE GUARANTOR INSTITUTION
(BANKS, STOCKBROKERS, SAVINGS AND LOAN ASSOCIATIONS AND CREDIT UNIONS) WITH
MEMBERSHIP IN AN APPROVED SIGNATURE GUARANTEE MEDALLION PROGRAM, PURSUANT TO
S.E.C. RULE 17Ad-15.
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