EXHIBIT 3.19
DEPOSIT AGREEMENT
This DEPOSIT AGREEMENT, dated as of June 19, 2003, is by and among
EQUITY RESIDENTIAL, a Maryland real estate investment trust (the "Company"),
EquiServe Trust Company, N.A., a national banking association, and EquiServe,
Inc., a Delaware corporation (collectively EquiServe Trust Company, N.A. and
EquiServe, Inc. shall be referenced herein as "Depositary" or individually as
the "Trust Company" and "EQI", respectively), and 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 the Company's Preferred Shares (as
hereinafter defined) with the Depositary for the purposes set forth in this
Deposit Agreement and for the issuance hereunder of the Receipts evidencing
Depositary Shares representing a fractional interest in the Preferred Shares
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
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:
SECTION 1.1 "Articles Supplementary" shall mean the Articles
Supplementary filed with the Department of Assessments and Taxation of the State
of Maryland establishing the Preferred Shares as a series of Preferred Shares of
the Company.
SECTION 1.2 "Charitable Trust" shall mean the Charitable Trust, as
defined in Article VII of the Company's Declaration of Trust.
SECTION 1.3 "Common Shares" shall mean common shares of the beneficial
interest of the Company, $.01 par value per share.
SECTION 1.4 "Company" shall mean Equity Residential, a Maryland
statutory real estate investment trust, and its successors.
SECTION 1.5 "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 000 Xxxxxx Xxxxxx, Xxxxxx, Xxxxxxxxxxxxx
00000.
SECTION 1.6 "Declaration of Trust" shall mean the Second Amended and
Restated Declaration of Trust, as amended from time to time, of the Company.
SECTION 1.7 "Deposit Agreement" shall mean this agreement, as the same
may be amended, modified or supplemented from time to time.
SECTION 1.8 "Depositary" shall mean the Trust Company and EQI, in each
case a company or corporation having its principal office in the United States,
and any successor as depositary hereunder.
SECTION 1.9 "Depositary Share" shall mean a 1/10 fractional interest of
a Preferred Share deposited with the Depositary hereunder and the same
proportionate interest in any and all other property received by the Depositary
in respect of such Preferred Share and held under this Deposit Agreement, all as
evidenced by the Receipts issued hereunder. Subject to the terms of this Deposit
Agreement, each owner of a Depositary Share is entitled, proportionately, to all
the rights, preferences and privileges of the Preferred Share represented by
such Depositary Share, including the dividend, distribution, voting, redemption,
conversion and liquidation rights contained in the Articles Supplementary, if
and to the extent provided therein.
SECTION 1.10 "Depositary's Agent" shall mean one or more agents
appointed by the Depositary as provided, and for the purposes specified, in
Section 7.5.
SECTION 1.11 "Preferred Shares" shall mean the Company's 6.48% Series N
Cumulative Redeemable Preferred Shares of Beneficial Interest, $0.01 par value
per share, heretofore validly issued, fully paid and nonassessable.
SECTION 1.12 "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 set forth as Exhibit A hereto.
SECTION 1.13 "record date" shall mean the date fixed pursuant to
Section 4.4.
SECTION 1.14 "record holder" or "holder" as applied to a Receipt shall
mean the person in whose name a Receipt is registered on the books maintained by
the Depositary for such purpose.
SECTION 1.15 "Registrar" shall mean the Depositary or any bank or trust
company appointed to register ownership and transfers of Receipts or the
deposited Preferred Shares, as the case may be, as herein provided.
SECTION 1.16 "Securities Act" shall mean the Securities Act of 1933, as
amended.
SECTION 1.17 "Transfer Agent" shall mean the Depositary (or
Depositary's Agent) or any bank or trust company appointed to transfer the
Receipts or the deposited Preferred Shares, as the case may be, as herein
provided.
ARTICLE II
FORM OF RECEIPTS, DEPOSIT OF PREFERRED SHARES,
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
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and omissions, as hereinafter provided. 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, mimeographed or otherwise
substantially of the tenor of the definitive Receipts in lieu of which they are
issued and with such appropriate insertions, omissions, substitutions and other
variations as the persons executing such Receipts may determine, as evidenced by
their execution of such Receipts. If temporary Receipts are issued, the Company
and the Depositary will cause definitive Receipts to be prepared without
unreasonable delay. After the preparation of definitive Receipts, the temporary
Receipts shall be exchangeable for definitive Receipts upon surrender of the
temporary Receipts at the Corporate Office or such other 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 Shares deposited, as definitive Receipts.
Receipts shall be executed by the Depositary by the manual or facsimile
signature of a duly authorized signatory of the Depositary, provided that if a
Registrar (other than the Depositary) shall have been appointed then such
Receipts shall also be 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 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 Company or required to comply with
any applicable law or regulation or with the rules and regulations of any
securities exchange upon which the Preferred Shares, the Depositary Shares or
the Receipts may be listed or to conform with any usage with respect thereto, or
to indicate any special limitations or restrictions to which any particular
Receipts are subject, all as directed by the Company.
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, the exercise of any conversion rights or to any notice
provided for in this Deposit Agreement and for all other purposes.
SECTION 2.2 Deposit of Preferred Shares; Execution and Delivery of
Receipts in Respect Thereof. Upon consummation of the public offering, pursuant
to which the Depositary Shares are expected to be sold, the Company shall
deliver to the Depositary a certificate or certificates, registered in the name
of the Depositary and evidencing up to 600,000 Preferred Shares, properly
endorsed or accompanied, if required by the Depositary, by a duly executed
instrument of transfer or endorsement, in form satisfactory to the Depositary,
together with (i) all such certifications as may be required by the Depositary
in accordance with the provisions of this Deposit Agreement, including the
resolutions of the
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Board of Trustees of the Company, as certified by the Secretary or any Assistant
Secretary of the Company on the date thereof as being as being complete,
accurate and in effect, relating to issuance and sale of the Preferred Stock,
(ii) an opinion letter of counsel to the Company containing customary opinions
relating to (A) the existence and good standing of the Company, (B) the due
authorization of the Depositary Shares and the status of the Depositary Shares
as validly issued, fully paid and non-assessable, and (C) the effectiveness of
the registration statement under the Securities Act relating to the Depositary
Shares, and (iii) a written letter of instruction of the Company directing the
Depositary to execute and deliver to, or upon the written order of, the person
or persons stated in such order a Receipt or Receipts for the Depositary Shares
representing such deposited Preferred Shares. At such time, the Depositary shall
acknowledge receipt of the deposited Preferred Shares and related documentation
and agrees to hold such deposited Preferred Shares 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 and Transfer Agent for Preferred Shares deposited hereunder 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 Shares held by it by notation, book-entry or other appropriate method.
If required by the Depositary, Preferred Shares presented for deposit
by the Company at any time, whether or not the register of shareholders 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 Shares or to receive other property that any
person in whose name the Preferred Shares is or has been registered may
thereafter receive upon or in respect of such deposited Preferred Shares, or in
lieu thereof such agreement of indemnity or other agreement as shall be
satisfactory to the Depositary.
Upon receipt by the Depositary of a certificate or certificates for
Preferred Shares deposited hereunder, together with the other documents
specified above, and upon registering such Preferred Shares 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 written 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 Shares so deposited and
registered in such name or names as may be requested by such person or persons.
The Depositary shall execute and deliver such Receipt or Receipts at the
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.
Other than in the case of splits, combinations or other
reclassifications affecting the Preferred Shares, or in the case of dividends or
other distributions of Preferred Shares, if any, there shall be deposited
hereunder not more than the number of shares constituting the Preferred Shares
as set forth in the Articles Supplementary, as such may be amended.
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.
SECTION 2.3 Optional Redemption of Preferred Shares for Cash. Whenever
the Company shall elect to redeem deposited Preferred Shares for cash in
accordance with the provisions of the Articles Supplementary, it shall (unless
otherwise agreed in writing with the Depositary) give the Depositary not less
than 35 days prior written notice of the date of such proposed redemption and of
the number of such Preferred Shares held by the Depositary to be redeemed and
the applicable redemption price, as set forth in the Articles Supplementary,
including the amount, if any, of accrued and unpaid distributions to the date of
such redemption. The Depositary shall mail, first-class postage prepaid, notice
of the redemption
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of Preferred Shares and the proposed simultaneous redemption of the Depositary
Shares representing the Preferred Shares to be redeemed, not less than 30 and
not more than 60 days prior to the date fixed for redemption of such Preferred
Shares and Depositary Shares (the "cash redemption date"), to the holders of
record (on the record date fixed for such redemption pursuant to Section 4.4
hereof, if applicable), 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 sufficiency of
the proceedings for redemption as to other holders. The Company shall provide
the Depositary with such notice, and each such notice shall state: the cash
redemption date; the cash redemption consideration; the number of deposited
Preferred Shares and Depositary Shares to be redeemed; if fewer than all the
Depositary Shares held by any holder are to be redeemed, the number of such
Depositary Shares held by such holder to be so redeemed; the place or places
where Receipts evidencing Depositary Shares to be redeemed are to be surrendered
for payment of the cash redemption consideration; and that from and after the
cash redemption date distributions in respect of the Preferred Shares
represented by the Depositary Shares to be redeemed will cease to accrue. 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 any other
equitable method determined by the Company that will not result in the issuance
of any Excess Shares.
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 EQI the cash redemption price (determined pursuant to the Articles
Supplementary) of the Preferred Shares deposited with EQI to be redeemed
(including any accrued and unpaid distributions to the date of redemption), the
Depositary shall redeem the number of Depositary Shares representing such
Preferred Shares so called for redemption by the Company and from and after the
cash redemption date (unless the Company shall have failed to redeem the
Preferred Shares to be redeemed by it as set forth in the Company's notice
provided for in the preceding paragraph), all distributions in respect of the
Preferred Shares 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 consideration 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
consideration of $25.00 per Depositary Share plus any other money and other
property payable in respect of such Preferred Shares. The foregoing shall be
further subject to the terms and conditions of the Articles Supplementary and in
such event the Company will instruct the Depositary accordingly.
If fewer than all of the Depositary Shares evidenced by a Receipt are
called for redemption, EQI will deliver to the holder of such Receipt upon its
surrender to the Depositary, together with payment of the cash redemption
consideration 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.
The Company acknowledges that the bank accounts maintained by
EquiServe,Inc. in connection with its performance of the services provided
herein will be in the name of EquiServe, Inc. and that EquiServe, Inc. may
receive investment earnings in connection with the investment at EquiServe,
Inc.'s risk and for the benefit of funds held in those accounts from time to
time.
SECTION 2.4 Registration of Transfers of Receipts. The Company hereby
appoints the Depositary as the Registrar and Transfer Agent for the Receipts and
the Depositary hereby accepts such appointment and, as such, shall register on
its books from time to time transfers of Receipts upon any
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surrender thereof by the holder in person or by a duly authorized attorney,
agent or representative properly endorsed or accompanied by a properly executed
instrument of transfer or endorsement, including a guarantee of the signature
thereon by a participant in a signature guarantee medallion program approved by
the Securities Transfer Association ("Signature Guarantee"), together with
evidence of the payment of any transfer taxes as may be required by law. 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 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 the same aggregate number of Depositary
Shares evidenced by the Receipt or Receipts surrendered.
SECTION 2.6 Surrender of Receipts and Withdrawal of Preferred Shares.
Any holder of a Receipt or Receipts may withdraw any or all of the deposited
Preferred Shares 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 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 Shares (or money and other property, if any, represented thereby)
which have previously been called for redemption or which have been deemed
transferred to the Charitable Trust in accordance with Section 2.10. 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 shares of such Preferred Shares 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 holders of such whole
Preferred Shares will not thereafter be entitled to deposit such Preferred
Shares 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 shares of deposited
Preferred Shares to be withdrawn, the Depositary shall at the same time, in
addition to such number of whole Preferred Shares 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 Shares 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 or endorsement.
If the deposited Preferred Shares and the money and other property
being withdrawn are to be delivered to a person or persons other than the record
holder of the Receipt or Receipts being surrendered for withdrawal of Preferred
Shares, such holder shall execute and deliver to the Depositary a written order
so directing the Depositary and the Depositary may require that the Receipt or
Receipts surrendered by such holder for withdrawal of such Preferred Shares be
properly endorsed in blank or accompanied by a properly executed instrument of
transfer or endorsement in blank with a Signature Guarantee.
The Depositary shall deliver the deposited Preferred Shares and EQI
shall deliver the money and other property, if any, represented by the
Depositary Shares evidenced by Receipts surrendered for withdrawal 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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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 tax or other governmental
charge with respect thereto (including any such tax or charge with respect to
the Preferred Shares being deposited or withdrawn); (ii) the production of proof
satisfactory to it as to the identity and genuineness of any signature (or the
authority of any signature) including a Signature Guarantee; and (iii)
compliance with such regulations, if any, as the Depositary or the Company may
establish consistent with the provisions of this Deposit Agreement as may be
required by any securities exchange upon which the deposited Preferred Shares,
the Depositary Shares or the Receipts may be included for quotation or listed.
The deposit of Preferred Shares may be refused, the delivery of
Receipts against Preferred Shares may be suspended, the transfer of Receipts may
be refused, and the transfer, split-up, combination, surrender, exchange or
redemption of outstanding Receipts may be suspended (i) during any period when
the register of shareholders of the Company is closed or (ii) if any such action
is deemed 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 and the provision of an open penalty
surety bond satisfactory to the Depositary and holding it and the Company
harmless.
SECTION 2.9 Cancellation and Destruction of Surrendered Receipts. All
Receipts surrendered to the Depositary or any Depositary's Agent shall be
canceled by the Depositary. Except as prohibited by applicable law or
regulation, the Depositary is authorized to destroy such Receipts so canceled.
SECTION 2.10 Preferred Shares Deemed Transferred to Charitable Trust.
As provided in the Articles Supplementary and Article VII of the Company's
Declaration of Trust, upon the happening of certain events, Preferred Shares
shall be deemed to have been automatically transferred to the Charitable Trust.
In the event of such a deemed transfer, the Receipt representing the deposited
Preferred Shares so transferred shall no longer represent, to the extent of the
shares so transferred, such deposited Preferred Shares. Promptly upon its
knowledge of the deemed transfer of such deposited Preferred Shares into the
Charitable Trust, the Company shall notify the Depositary of such transfer, the
number of deposited Preferred Shares so transferred, and the identity of the
holder of the Receipt so affected, whereupon the Depositary shall promptly
notify the holder of such Receipt as to the foregoing information and the
requirement for the holder to surrender such Receipt to the Depositary for
transfer of the number of Depositary Shares evidenced thereby equal to the
deposited Preferred Shares deemed transferred to the Charitable Trust and
represented thereby.
If fewer than all of the Depositary Shares evidenced by a Receipt are
required to be surrendered in connection with a deemed transfer to the
Charitable Trust, the Depositary will deliver to the holder of such Receipt upon
its surrender to the Depositary a new Receipt evidencing the Depositary Shares
evidenced by such prior Receipt and not required to be surrendered. Upon the
deemed transfer of the
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deposited Preferred Shares and transfer of the Depositary Shares represented
thereby, the Depositary will make appropriate adjustments in its records (as
contemplated in Section 2.2) to reflect such deemed transfer.
ARTICLE III
CERTAIN OBLIGATIONS OF HOLDERS OF RECEIPTS AND THE COMPANY
SECTION 3.1 Filing Proofs, Certificates and Other Information. Any
person presenting Preferred Shares 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 Shares 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 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 Shares or money
or other property, if any, represented by the Depositary Shares evidenced by
such Receipt may be refused, any dividend or other distribution may be withheld,
and any part or all of the Preferred Shares 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). 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 Shares. In
the case of the initial deposit of the Preferred Shares hereunder, the Company
and, in the case of subsequent deposits thereof, each person so depositing
Preferred Shares under this Deposit Agreement shall be deemed thereby to
represent and warrant that such Preferred Shares 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 Shares,
when issued, will be validly issued, fully paid and nonassessable. Such
representations and warranties shall survive the deposit of the Preferred Shares
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 1/10 fractional interest
in a deposited Preferred Share. Such representation and warranty shall survive
the deposit of the Preferred Shares and the issuance of Receipts evidencing the
Depositary Shares.
ARTICLE IV
THE PREFERRED SHARES; NOTICES
SECTION 4.1 Cash Distributions. Whenever EQI shall receive any cash
dividend or other cash distribution on the deposited Preferred Shares, including
any cash received upon redemption of any
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Preferred Shares pursuant to Section 2.3, EQI shall, subject to Section 3.2,
distribute on the date fixed for distribution to record holders of Receipts on
the record date fixed pursuant to Section 4.4 such amounts of such sum as are,
as nearly as practicable, in proportion to the respective numbers of Depositary
Shares evidenced by the Receipts held by such holders; provided, however, that
in case the Company or EQI shall be required to and shall withhold from any cash
dividend or other cash distribution in respect of the Preferred Shares
represented 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 represented by such Receipts subject to such withholding shall
be reduced accordingly. EQI 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 EquiServe, Inc. (without liability for
interest thereon) and shall be added to and be treated as part of the next sum
received by the EQI for distribution to record holders of Receipts then
outstanding.
SECTION 4.2 Distributions Other Than Cash. Whenever the Depositary
shall receive any distribution other than cash on the deposited Preferred
Shares, the Depositary shall, subject to Section 3.2, distribute on the date
fixed for distribution to record holders of Receipts on the record date fixed
pursuant to Section 4.4 such amounts of the securities or property received by
it as are, as nearly as practicable, in proportion to the respective numbers of
Depositary Shares evidenced by the Receipts held by such holders, 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, 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 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 to the holders of
Receipts 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 Shares are 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, the offering of
such rights, preferences or privileges shall in each such instance be
communicated to the Depositary and thereafter made available by the Depositary
to the record holders of Receipts in such manner as the 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 so instructed to the Company, and 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 3.1 and Section 3.2,
be distributed by EQI 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 rights, preferences or
privileges, unless the Company shall have provided to the Depositary an
9
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 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 sufficiently in advance of the expiration of such rights, preferences
or privileges to enable such holders to exercise such rights, preferences or
privileges. In no event shall the Depositary make available to the holders of
Receipts any right, preference or privilege to subscribe for or to purchase any
securities unless and until such a registration statement shall have become
effective or unless the offering and sale of such securities to such holders are
exempt from registration under the provisions of 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 to be made available to holders
of Receipts, the Company agrees to use its best efforts to take such action or
obtain such authorization, consent or permit sufficiently in advance of the
expiration of such rights, preferences or privileges to enable such holders to
exercise such rights, preferences or privileges.
SECTION 4.4 Notice of Distributions; 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 Shares, or whenever the Depositary shall receive notice of
(i) any meeting at which holders of such Preferred Shares are entitled to vote
or of which holders of such Preferred Shares are entitled to notice or (ii) any
election on the part of the Company to redeem any such Preferred Shares, 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
Shares) (a) for the determination of the holders of Receipts who shall be
entitled to receive such dividend, distribution, rights, preferences or
privileges or the net proceeds of the sale thereof, (b) to give instructions for
the exercise of voting rights at any such meeting or to receive notice of such
meeting or (c) if such a record date is fixed for the redemption of Preferred
Shares (at the option of the Company) whose Depositary Shares are to be so
redeemed.
SECTION 4.5 Voting Rights. Upon receipt of notice of any meeting at
which the holders of deposited Preferred Shares are entitled to vote, the
Depositary shall, as soon as practicable thereafter, 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 amount of Preferred Shares 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, the Depositary shall vote or cause to be voted
the amount of Preferred Shares represented by the Depositary Shares evidenced by
such Receipt in accordance with the instructions set forth in such request. To
the extent such instructions request the voting of a fractional interest of a
share of deposited Preferred Shares, the Depositary shall aggregate such
interest with all other fractional interests resulting from requests with the
same voting instructions and shall vote the number of whole votes resulting from
such aggregation in accordance with the instructions received in such requests.
Each Preferred Share is entitled to 10 votes and, accordingly, each Depositary
Share is entitled to one vote. The Company hereby agrees to take all reasonable
action that may be deemed
10
necessary by the Depositary in order to enable the Depositary to vote such
Preferred Shares or cause such Preferred Shares 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 Shares represented by the Depositary
Shares evidenced by such Receipt. The Depositary shall not be required to
exercise discretion in voting any Preferred Shares represented by the Depositary
Shares evidenced by such Receipt.
SECTION 4.6 Changes Affecting Preferred Shares and Reclassifications,
Recapitalization, etc. Upon any change in par or stated value, split-up,
combination or any other reclassification of Preferred Shares, or upon any
recapitalization, reorganization, merger, amalgamation 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 Preferred Share and (b) the ratio of
the redemption consideration per Depositary Share to the redemption
consideration of a Preferred Share, in each case as may be required by or as is
consistent with the provisions of the Articles Supplementary to fully reflect
the effects of such change in liquidation value, split-up, combination or other
reclassification of Shares, or of such recapitalization, reorganization, merger,
consolidation or sale and (ii) treat any shares 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 Shares as new deposited
property under this Deposit Agreement, and Receipts then outstanding shall
thenceforth represent the proportionate interests of holders thereof of the new
deposited property so received in exchange for or upon conversion or in respect
of such Preferred Shares. In any such case the Depositary may, in its
discretion, with the approval of the Company, execute and deliver additional
Receipts, or may call for the surrender of all outstanding Receipts to be
exchanged for new Receipts specifically describing such new deposited 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 par or stated
value, split-up, combination or other reclassification of the Preferred Shares
or any such recapitalization, reorganization, merger, amalgamation or
consolidation or sale of substantially all the, assets of the Company to
surrender such Receipts to the Depositary with instructions to convert, exchange
or surrender the Preferred Shares represented thereby only into or for, as the
case may be, the kind and amount of shares and other securities and property and
cash into which the deposited Preferred Shares evidenced by such Receipts might
have been converted or for which such Preferred Shares 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 of the
resulting or surviving corporation (if other than the Company) for protection of
such rights as may be applicable upon exchange of the deposited Preferred Shares
for securities or property or cash of the surviving corporation in connection
with the transactions set forth above. The Company shall cause any such
surviving corporation (if other than the Company) expressly to assume the
obligations of the Company hereunder. Services performed by the Depositary
hereunder shall be subject to the fee, charges and expenses provision of Section
5.7 of this Deposit Agreement.
SECTION 4.7 Inspection of Reports. The Depositary shall make available
for inspection by holders of Receipts at the Corporate 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 Shares and made generally
available to the holders of the Preferred Shares. In addition, the Depositary
shall transmit certain notices and reports to the holders of Receipts as
provided in Section 5.5.
SECTION 4.8 Lists of Receipt Holders. 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.
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SECTION 4.9 Tax and Regulatory Compliance. EQI shall be responsible for
(i) preparation and mailing of form 1099s for all open and closed accounts, (ii)
all applicable withholding related to payments made with respect to the
Receipts, including withholding required pursuant to Sections 1441, 1442, 1445
and 3406 of the Internal Revenue Code of 1986, as amended, (iii) mailing W-9 or
W-8 forms, as the case may be, to new holders of Receipts without a certified
taxpayer identification number, (iv) processing certified W-9 or W-8 forms, as
the case may be, (v) preparation and filing of state information returns and
(vi) 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 EQI 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 EQI 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 at the Corporate
Office facilities for the execution and delivery, transfer, surrender and
exchange, split-up, combination and redemption of Receipts and deposit and
withdrawal of Preferred Shares and at the offices of the Depositary's Agents, if
any, facilities for the delivery, transfer, surrender and exchange, split-up,
combination and redemption of Receipts and deposit and withdrawal of Preferred
Shares, all in accordance with the provisions of this Deposit Agreement.
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 as provided by
applicable law. 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. Books kept hereunder by the Depositary may be maintained in
electronic form.
If the Receipts or the Depositary Shares evidenced thereby or the
Preferred Shares represented by such Depositary Shares shall be listed on the
New York Stock Exchange, Inc. or any other stock exchange, the Depositary may,
with the approval of the Company, appoint a Registrar (acceptable to the
Company) for registration, delivery, transfer, surrender, redemption and
exchange of such Receipts or Depositary Shares in accordance with the
requirements of such Exchange. Such Registrar (which may be the Depositary or
the Depositary's Agent 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 Shares 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 and exchange of
such Receipts, such Depositary Shares or such Preferred Shares 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, the Depositary's
Agent or the Registrar, by reason of any provision, present or future, of the
Declaration of Trust or the Articles Supplementary or, in
12
the case of the Company, the Depositary, the Depositary's Agent or the
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, the
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.
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 any holder of a Receipt
other than from acts or omissions arising out of conduct constituting bad faith,
negligence (in the case of any action or inaction with respect to the voting of
the deposited Preferred Shares), gross 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 Shares,
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 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 Shares 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, 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 Shares 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, affiliate, 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 any of the securities of the Company and its affiliates or act in
any other capacity for the Company or its affiliates.
13
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 Shares; 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 Shares, the Depositary Shares, the Receipts (except its
countersignature thereon) or any instruments referred to therein or herein, or
as to the correctness of any statement made therein or herein; 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 Shares
and the Depositary Shares in accordance with the applicable securities laws.
The Depositary shall not be liable for any incidental, indirect,
special or consequential damages of any nature whatsoever, including, but not
limited to, loss of anticpated profits, occasioned by breach of any provisions
of this Agreement even if apprised of the possibility of such damages.
SECTION 5.4. Resignation and Removal of the Depositary; Appointment of
Successor Depositary. The Depositary may at any time resign as Depositary
hereunder by 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 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 Shares and any moneys
or property held hereunder to such successor and shall deliver to such successor
a list of the record holders of all outstanding Receipts. Any successor
depositary shall promptly mail notice of its appointment to the record holders
of Receipts.
Any corporation into or with which the Depositary may be merged,
consolidated or converted shall be the successor of such Depositary without the
execution or filing of any document or any further
14
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 address
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 Shares, the Depositary Shares or the Receipts
are included for quotation or listed or by the Declaration of Trust and the
Articles Supplementary to be furnished by the Company to holders of the
deposited Preferred Shares and, if requested by the holder of any Receipt, a
copy of this Deposit Agreement, the form of Receipt, the Articles Supplementary
and the form of Preferred Shares. Such transmission will be at the Company's
expense and the Company will provide the Depositary with such number of copies
of such documents as the Depositary may reasonably request. In addition, the
Depositary will transmit to the record holders of Receipts 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, and 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, gross negligence, negligence (in the case of any action or
inaction with respect to the voting of the deposited Preferred Shares) or bad
faith on the part of any such 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 and 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 initial deposit of the Preferred Shares and
the initial issuance of the Depositary Shares evidenced by the Receipts, any
redemption of the Preferred Shares at the option of the Company and all
withdrawals of the Preferred Shares by holders of Depositary Shares in the
amount and manner set forth in the existing Transfer Agency and Service
Agreement, including the Fee and Service Schedule attachment thereto, dated as
of May 1, 2002, between the Depositary and the Company (as the same may be
amended, modified, supplemented, or replaced from time to time by the parties,
the "Transfer Agency and Service 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 pursuant to the terms of
the Transfer Agency and Service Agreement (or if such agreement is no longer in
effect, pursuant to such terms as the Depositary and Company shall agree in good
faith, which terms shall be at least as favorable to the Depositary as those
contained in such agreement as last in effect).. The Company shall also pay any
fees and expenses of the Depositary and any Depositary's agent for services
performed under Section 4.6 of this Deposit Agreement in accordance with the
provision captioned "Additional Services" contained on page 5 of the
aforementioned May 1, 2002 Fee and Service Schedule, or such replacement thereof
or may be in effect in accordance with the Transfer Agency and Service
Agreement. 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.
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ARTICLE VI
AMENDMENT AND TERMINATION
SECTION 6.1. Amendment. The form of the Receipts and any provision of
this Deposit Agreement may at any time and from time to time be amended by
agreement between the Company and the Depositary in any respect that they may
deem necessary or desirable; provided, however, that no such amendment (other
than any change in the fees of any Depositary, Registrar or Transfer Agent)
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 Shares pursuant to the Articles
Supplementary shall be effective unless such amendment shall have been approved
by the holders of at least a majority of the Depositary Shares then outstanding.
In no event shall any amendment impair the right, subject to the provisions of
Section 2.6 and Section 2.7 and Article III, 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 of the deposited
Preferred Shares the Preferred Shares and 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 provisions) or (ii) the holders of a majority of the 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 Preferred
Shares represented by the Depositary Shares evidenced by such Receipt, together
with any 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 Shares issued upon surrender of the Receipt
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 Shares in connection with any liquidation, dissolution or
winding up of the Company and such distribution shall have been distributed to
the holders of Receipts 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.
In the event that the transfer agency relationship in effect between
the Company and the Depositary terminates, the Depositary will be deemed to
resign automatically with acceptance of such resignation by the Company on the
effective date of such termination and any required notice will be sent by the
Company.
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
16
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. Copies of this Deposit Agreement shall be
filed with the Depositary and the Depositary's Agents and shall be open to
inspection during business hours at the Corporate Office and the respective
offices of the Depositary's Agents, if any, by any holder of a Receipt.
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 should be or
become invalid, illegal or unenforceable in any respect, the validity, legality
and enforceability of the remaining provisions contained herein or therein shall
in no way be affected, prejudiced or disturbed thereby.
SECTION 7.4. Notices. Any and all notices to be given to the Company
hereunder or under the Receipts shall be in writing and shall be deemed to have
been duly given if personally delivered or sent by mail, or by telegram or
facsimile transmission confirmed by letter, addressed to the Company at:
Equity Residential
Two Xxxxx Xxxxxxxxx Xxxxx
Xxxxx 000
Xxxxxxx, Xxxxxxxx 00000
Attention: Xxxxx X. Xxxxxx
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, or by telegram or telex or telecopier
confirmed by letter, addressed to the Depositary at the Corporate Office to the
attention of the General Counsel.
Any notices given to any record holder of a Receipt hereunder or under
the Receipts shall be in writing and shall be deemed to have been duly given if
personally delivered or sent by mail, or by telegram or telex or telecopier
confirmed by letter, addressed to such record holder at the address of such
record holder as it appears on the books of the Depositary or, if such holder
shall have filed with the Depositary in a timely manner a written request that
notices intended for such holder be mailed to some other address, at the address
designated in such request.
Delivery of a notice sent by mail, or by telegram or telex 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, 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
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time appoint additional Depositary's Agents and vary or terminate the
appointment of such Depositary's Agents. The Depositary will notify the Company
of any such action.
SECTION 7.6. 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.
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 Articles
Supplementary. Copies of this Deposit Agreement and the Articles Supplementary
shall be filed with the Depositary and the Depositary's Agents and shall be open
to inspection during business hours at the Corporate 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 and in the form of the Receipt set forth in Exhibit A hereto
have been inserted for convenience only and are not to be regarded as a part of
this Deposit Agreement or to have any bearing upon the meaning or interpretation
of any provision contained herein or in the Receipts.
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IN WITNESS WHEREOF, Equity Residential and EquiServe Trust Company,
N.A. and EquiServe, Inc. 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.
EQUITY RESIDENTIAL
By: /s/ XXXXX X. XXXXXX
----------------------------------
Name: Xxxxx X. Xxxxxx
----------------------------------
Its: Executive Vice President
----------------------------------
EQUISERVE TRUST COMPANY, N.A.
By: /s/ XXXXXXXX XXXXXXXX
----------------------------------
Name: Xxxxxxxx Xxxxxxxx
----------------------------------
Its: Managing Director
----------------------------------
EQUISERVE, INC.
By: /s/ XXXXXX XXXXXX
----------------------------------------------------
Name: Xxxxxx Xxxxxx
----------------------------------------------------
Title: Managing Director, Contract Administration
----------------------------------------------------
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EXHIBIT A
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