FIRST INDUSTRIAL REALTY TRUST, INC., COMPUTERSHARE SHAREHOLDER SERVICES, INC. AND COMPUTERSHARE TRUST COMPANY, N.A., AS DEPOSITARY, AND THE HOLDERS FROM TIME TO TIME OF THE DEPOSITARY RECEIPTS DESCRIBED HEREIN RELATING TO SERIES J CUMULATIVE...
FIRST
INDUSTRIAL REALTY TRUST, INC.,
COMPUTERSHARE
SHAREHOLDER SERVICES, INC. AND COMPUTERSHARE TRUST COMPANY, N.A.,
AS
DEPOSITARY,
AND
THE
HOLDERS FROM TIME TO TIME OF
THE
DEPOSITARY RECEIPTS DESCRIBED HEREIN
RELATING
TO SERIES J CUMULATIVE REDEEMABLE PREFERRED STOCK
Dated
as
of January 13, 2006
TABLE
OF
CONTENTS
Page
ARTICLE
I
DEFINITIONS
ARTICLE
II
FORM
OF
RECEIPTS, DEPOSIT OF STOCK,
EXECUTION
AND DELIVERY, TRANSFER,
SURRENDER
AND REDEMPTION OF RECEIPTS
SECTION
2.1. Form
and
Transfer of
Receipts 2
SECTION
2.2. Deposit
of Stock; Execution and Delivery of Receipts in Respect
Thereof
4
SECTION
2.3. Registration
of Transfer of
Receipts
4
SECTION
2.4. Split-ups
and Combinations of Receipts; Surrender of Receipts and Withdrawal of
Stock
5
SECTION
2.5. Limitations
on Execution and Delivery, Transfer, Surrender and Exchange of
Receipts
6
SECTION
2.6. Lost
Receipts,
etc. 6
SECTION
2.7. Cancellation
and Destruction of Surrendered
Receipts
6
SECTION
2.8. Redemption
of
Stock
6
SECTION
2.9. Stock
Constituting Excess
Stock
8
ARTICLE
III
CERTAIN
OBLIGATIONS OF HOLDERS
OF
RECEIPTS AND THE COMPANY
SECTION
3.1. Filing
Proofs, Certificates and Other
Information 8
SECTION
3.2. Payment
of Taxes or Other Governmental
Charges
8
SECTION
3.3. Warranty
as to
Stock
9
ARTICLE
IV
THE
DEPOSITED SECURITIES; NOTICES
SECTION
4.1. Cash
Distributions
9
SECTION
4.2. Distributions
Other than Cash, Rights, Preferences or
Privileges
10
SECTION
4.3. Subscription
Rights, Preferences or
Privileges
10
SECTION
4.4. Notice
of
Dividends, etc.; Fixing Record Date for Holders of
Receipts
11
SECTION
4.5. Voting
Rights
11
SECTION
4.6. Changes
Affecting Deposited Securities and Reclassifications, Recapitalizations,
etc.
11
SECTION
4.7. Delivery
of
Reports
12
SECTION
4.8. List
of
Receipt
Holders
12
ARTICLE
V
THE
DEPOSITARY, THE DEPOSITARY’S
AGENTS,
THE REGISTRAR AND THE COMPANY
SECTION
5.1. Maintenance
of Offices, Agencies and Transfer Books by the Depositary;
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00
SECTION
5.2. Prevention
of or Delay in Performance by the Depositary, the Depositary’s Agents, the
Registrar or the
Company
13
SECTION
5.3. Obligation
of the Depositary, the Depositary’s Agents, the Registrar and the
Company 15
SECTION
5.4. Resignation
and Removal of the Depositary; Appointment of Successor
Depositary
16
SECTION
5.5. Corporate
Notices and
Reports
16
SECTION
5.6. Indemnification
by the
Company
16
SECTION
5.7. Charges
and
Expenses
16
SECTION
5.8. Tax
Compliance
16
ARTICLE
VI
AMENDMENT
AND TERMINATION
SECTION
6.1. Amendment
17
SECTION
6.2. Termination
17
ARTICLE
VII
MISCELLANEOUS
SECTION
7.1. Counterparts
18
SECTION
7.2. Exclusive
Benefit of
Parties
18
SECTION
7.3. Invalidity
of
Provisions
18
SECTION
7.4. Notices
18
SECTION
7.5. Appointment
of
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00
SECTION
7.6. Holders
of Receipts Are
Parties
19
SECTION
7.7. Governing
Law
19
SECTION
7.8. Inspection
of Deposit
Agreement 19
SECTION
7.9. Headings
19
-ii-
DEPOSIT
AGREEMENT, dated as of January 13, 2006, among FIRST INDUSTRIAL REALTY
TRUST, INC., a Maryland corporation (the “Company”), COMPUTERSHARE
SHAREHOLDER SERVICES, INC., a Delaware corporation and its wholly-owned
subsidiary COMPUTERSHARE
TRUST COMPANY, N.A. (individually
“CSS” and the “Trust Company” respectively, or collectively
the “Depositary”),
and the
holders from time to time of the Receipts described herein.
WHEREAS,
it is desired to provide, as hereinafter set forth in this Deposit Agreement,
for the deposit of shares of Stock of the Company with the Depositary for the
purposes set forth in this Deposit Agreement and for the issuance hereunder
of
Receipts evidencing Depositary Shares in respect of the Stock so deposited;
and
WHEREAS,
the Receipts are to be substantially in the form of Exhibit A annexed hereto,
with appropriate insertions, modifications and omissions, as hereinafter
provided in this Deposit Agreement;
NOW,
THEREFORE, in consideration of the promises contained herein, the receipt and
sufficiency of which is hereby acknowledged, the parties hereto hereby agree
as
follows:
ARTICLE
I
DEFINITIONS
The
following definitions shall, for all purposes, unless otherwise indicated,
apply
to the respective terms used in this Deposit Agreement:
“Articles
Supplementary” shall mean the Articles Supplementary filed with the Secretary of
State of the State of Maryland establishing the Stock as a series of preferred
stock of the Company.
“Deposit
Agreement” shall mean this Deposit Agreement, as amended or supplemented from
time to time.
“Depositary”
shall have the meaning set forth in the preamble hereto.
“Depositary
Shares” shall mean Depositary Shares, each representing 1/10,000 of a share of
Stock and evidenced by a Receipt.
“Depositary’s
Agent” shall mean one
or
more agents
appointed by the Depositary pursuant to Section 5.1 and shall include the
Registrar if such Registrar is not the Depositary.
“Depositary’s
Office” shall mean any office of the Depositary at which at any particular time
its depositary receipt business shall be administered.
“Excess
Stock” shall mean Excess Stock as defined in Section 7.4 of the Company’s
Amended and Restated Articles of Incorporation.
“Receipt”
shall mean one of the Depositary Receipts, substantially in the form set forth
as Exhibit A hereto, issued hereunder, whether in definitive or temporary form
and evidencing the number of Depositary Shares held of record by the record
holder of such Depositary Shares. If the context so requires, the term “Receipt”
shall be deemed to include the DTC Receipt (as defined in Section 2.1(c)
hereof).
“record
holder” or “holder” as applied to a Receipt shall mean the person in whose name
a Receipt is registered on the books of the Depositary maintained for such
purpose.
“Registrar”
shall mean the Depositary or such other bank or trust company which shall be
appointed to register ownership and transfers of Receipts as herein
provided.
“Securities
Act” shall mean the Securities Act of 1933, as amended.
“Stock”
shall mean shares of the Company’s 7.25% Series J Cumulative Redeemable
Preferred Stock, $.0l par value per share.
ARTICLE
II
FORM
OF
RECEIPTS, DEPOSIT OF STOCK,
EXECUTION
AND DELIVERY, TRANSFER,
SURRENDER
AND REDEMPTION OF RECEIPTS
SECTION
2.1. Form
and Transfer of Receipts.
The
Company and the Depositary shall make application to The Depository Trust
Company (“DTC”) for acceptance of all or a portion of the Receipts for its
book-entry settlement system. The Company hereby appoints the Depositary acting
through any authorized officer thereof as its attorney-in-fact, with full power
to delegate, for purposes of executing any agreements, certifications or other
instruments or documents necessary or desirable in order to effect the
acceptance of such Receipts for DTC eligibility. So long as the Receipts are
eligible for book-entry settlement with DTC, unless otherwise required by law,
all Depositary Shares to be traded on the New York Stock Exchange with
book-entry settlement through DTC shall be represented by a single receipt
(the
“DTC Receipt”), which shall be deposited with DTC (or its designee) evidencing
all such Depositary Shares and registered in the name of the nominee of DTC
(initially expected to be Cede & Co.). The Depositary or such other entity
as is agreed to by DTC may hold the DTC Receipt as custodian for DTC. Ownership
of beneficial interests in the DTC Receipt shall be shown on, and the transfer
of such ownership shall be effected through, records maintained by (i) DTC
or
its nominee for such DTC Receipt or (ii) institutions that have accounts with
DTC.
If
DTC
subsequently ceases to make its book-entry settlement system available for
the
Receipts, the Company may instruct the Depositary regarding making other
arrangements for book-entry settlement. In the event that the Receipts are
not
eligible for book-entry form, the Depositary shall provide written instructions
to DTC to deliver to the Depositary for cancellation the DTC Receipt, and the
Company shall instruct the Depositary to deliver to the beneficial owners of
the
Depositary Shares previously evidenced by the DTC definitive Receipts in
physical form evidencing such Depositary Shares. Such definitive receipts shall
be in substantially the form annexed hereto as Exhibit A, with appropriate
insertions, modifications and omissions, as hereafter provided.
-2-
The
beneficial owners of Depositary Shares shall, except as stated above with
respect to Depositary Shares in book-entry form represented by the DTC Receipt,
be entitled to receive Receipts in physical, certificated form as herein
provided.
The
definitive Receipts shall be engraved or printed or lithographed on
steel-engraved borders, with appropriate insertions, modifications and
omissions, as hereinafter provided, if and to the extent required by any
securities exchange on which the Receipts are listed. The DTC Receipt shall
bear
such legend or legends as may be required by DTC in order for it to accept
the
Depositary Shares for its book-entry settlement system. Pending the preparation
of definitive Receipts or if definitive Receipts are not required by any
securities exchange on which the Receipts are listed, the Depositary, upon
the
written order of the Company, delivered in compliance with Section 2.2 hereof,
shall execute and deliver temporary Receipts which are printed, lithographed,
typewritten, mimeographed or otherwise substantially of the tenor of the
definitive Receipts in lieu of which they are issued and with such appropriate
insertions, omissions, substitutions and other variations as the persons
executing such Receipts may determine, as evidenced by their execution of such
Receipts. If temporary Receipts are issued, the Company and the Depositary
will
cause definitive Receipts to be prepared without unreasonable delay. After
the
preparation of definitive Receipts, the temporary Receipts shall be exchangeable
for definitive Receipts upon surrender of the temporary Receipts at the
Depositary’s Office or at such other place or places as the Depositary shall
determine, without charge to the holder. Upon surrender for cancellation of
any
one or more temporary Receipts, the Depositary shall execute and deliver in
exchange therefor definitive Receipts representing the same number of Depositary
Shares as represented by the surrendered temporary Receipt or Receipts. Such
exchange shall be made at the Company’s expense and without any charge to the
holder therefor. Until so exchanged, the temporary Receipts shall in all
respects be entitled to the same benefits under this Deposit Agreement, and
with
respect to the Stock, as definitive Receipts.
Receipts
shall be executed by the Depositary by the manual and/or facsimile signature
of
a duly authorized officer of the Depositary. No Receipt shall be entitled to
any
benefits under this Deposit Agreement or be valid or obligatory for any purpose
unless it shall have been executed in accordance with the foregoing sentence.
The Depositary shall record on its books each Receipt so signed and delivered
as
hereinafter provided.
Receipts
shall be in denominations of any number of whole Depositary Shares. The Company
shall deliver to the Depositary from time to time such quantities of Receipts
as
the Depositary may request to enable the Depositary to perform its obligations
under this Deposit Agreement.
Receipts
may be endorsed with or have incorporated in the text thereof such legends
or
recitals or changes not inconsistent with the provisions of this Deposit
Agreement as may be required by the Company
or
required to comply with any applicable law or any regulation thereunder or
with
the rules and regulations of any securities exchange upon which the Stock,
the
Depositary Shares or the Receipts may be listed or to conform with any usage
with respect thereto, or to indicate any special limitations or restrictions
to
which any particular Receipts are subject, all
as
directed by the Company.
-3-
Title
to
Depositary Shares evidenced by a Receipt which is properly endorsed or
accompanied by a properly executed instrument of transfer shall be transferable
by delivery with the same effect as in the case of a negotiable instrument;
provided, however, that until transfer of a Receipt shall be registered on
the
books of the Depositary as provided in Section 2.3, the Depositary may,
notwithstanding any notice to the contrary, treat the record holder thereof
at
such time as the absolute owner thereof for the purpose of determining the
person entitled to distributions of dividends or other distributions or to
any
notice provided for in this Deposit Agreement and for all other
purposes.
SECTION
2.2. Deposit
of Stock; Execution and Delivery of Receipts in Respect Thereof. Subject
to the terms and conditions of this Deposit Agreement, the Company may from
time
to time deposit shares of Stock under this Deposit Agreement by delivery to
the
Depositary of a certificate or certificates for the Stock to be deposited,
properly endorsed or accompanied, if required by the Depositary, by a duly
executed instrument of transfer or endorsement, in form satisfactory to the
Depositary, together with (i) all such certifications as may be required by
the Depositary in accordance with the provisions of this Deposit
Agreement,
including the resolutions of the Board of Directors of the Company, as certified
by the Secretary or any Assistant Secretary of the Company on the date thereof
as being as being complete, accurate and in effect, relating to issuance and
sale of the Preferred Stock, (ii) a letter of counsel to the Company authorizing
reliance on such counsel’s opinions delivered to the underwriters named therein
relating to (A) the existence and good standing of the Company, (B) the due
authorization of the Depositary Shares and the status of the Depositary Shares
as validly issued, fully paid and non-assessable, and (C) the effectiveness
of
any registration statement under the Securities Act relating to the Depositary
Shares, and (iii) a written letter of instruction
of the
Company or such holder, as the case may be, directing the Depositary to execute
and deliver to, or upon the written order of, the person or persons stated
in
such order a Receipt or Receipts for the number of Depositary Shares
representing such deposited Stock. Deposited Stock shall be held by the
Depositary at the Depositary’s Office or at such other place or places as the
Depositary shall determine.
Upon
receipt by the Depositary of a certificate or certificates for Stock deposited
in accordance with the provisions of this Section, together with the other
documents required as above specified, and upon recordation of the Stock on
the
books of the Company in the name of the Depositary or its nominee, the
Depositary, subject to the terms and conditions of this Deposit Agreement,
shall
execute and deliver, to or upon the order of the person or persons named in
the
written order delivered to the Depositary referred to in the first paragraph
of
this Section 2.2, a Receipt or Receipts for the whole number of Depositary
Shares representing, in the aggregate, the Stock so deposited and registered
in
such name or names as may be requested by such person or persons. The Depositary
shall execute and deliver such Receipt or Receipts at the Depositary’s Office or
such other offices, if any, as the Depositary may designate. Delivery at other
offices shall be at the risk and expense of the person requesting such
delivery.
SECTION
2.3. Registration
of Transfer of Receipts.
Subject
to the terms and conditions of applicable law and of this Deposit Agreement,
the
Depositary shall register on its books from time to time transfers of Receipts
upon any surrender thereof by the holder in person or by a duly authorized
attorney,
agent or
representative,
properly endorsed or accompanied by a properly executed instrument of
transfer
including a guarantee of the signature thereon by a participant in a signature
guarantee medallion program approved by the Securities Transfer
Associa-
-4-
tion
(“Signature Guarantee”).
Thereupon, the Depositary shall execute a new Receipt or Receipts evidencing
the
same aggregate number of Depositary Shares as those evidenced by the Receipt
or
Receipts surrendered and deliver such new Receipt or Receipts to or upon the
order of the person entitled thereto.
SECTION
2.4. Split-ups
and Combinations of Receipts; Surrender of Receipts and Withdrawal of
Stock.
Upon
surrender of a Receipt or Receipts at the Depositary’s Office or at such other
offices as it may designate for the purpose of effecting a split-up or
combination of such Receipt or Receipts, and subject to the terms and conditions
of this Deposit Agreement, the Depositary shall execute and deliver a new
Receipt or Receipts in the authorized denomination or denominations requested,
evidencing the aggregate number of Depositary Shares evidenced by the Receipt
or
Receipts surrendered; provided, however, that the Depositary shall not issue
any
Receipt evidencing a fractional Depositary Share.
Any
holder of a Receipt or Receipts representing any number of whole shares of
Stock
may (unless the related Depositary Shares have previously been called for
redemption) withdraw the Stock and all money and other property, if any,
represented thereby by surrendering such Receipt or Receipts at the Depositary’s
Office or at such other offices as the Depositary may designate for such
withdrawals and paying any unpaid amount due the Depositary. If such holder’s
Depositary Shares are being held by DTC or its nominee pursuant to Section
2.1
hereof, such holder shall request withdrawal from the book-entry system of
Receipts representing any number of whole shares. Thereafter, without
unreasonable delay, the Depositary shall deliver to such holder or to the person
or persons designated by such holder as hereinafter provided the number of
whole
shares of Stock and all money and other property, if any, represented by the
Receipt or Receipts so surrendered for withdrawal, but holders of such whole
shares of Stock will not thereafter be entitled to deposit such Stock hereunder
or to receive Depositary Shares therefor. If a Receipt delivered by the holder
to the Depositary in connection with such withdrawal shall evidence a number
of
Depositary Shares in excess of the number of Depositary Shares representing
the
number of whole shares of Stock to be so withdrawn, the Depositary shall at
the
same time, in addition to such number of whole shares of Stock and such money
and other property, if any, to be so withdrawn, deliver to such holder, or
upon
his order, a new Receipt evidencing such excess number of Depositary Shares;
provided, however, that the Depositary shall not issue any Receipt evidencing
a
fractional Depositary Share.
Delivery
of the Stock and money and other property being withdrawn may be made by the
delivery of such certificates, documents of title and other instruments as
the
Depositary may deem appropriate, which, if required by the Depositary, shall
be
properly endorsed or accompanied by proper instruments of transfer.
If
the
Stock and the money and other property being withdrawn are to be delivered
to a
person or persons other than the record holder of the Receipt or Receipts being
surrendered for withdrawal of Stock, such holder shall execute and deliver
to
the Depositary a written order so directing the Depositary and the Depositary
may require that the Receipt or Receipts surrendered by such holder for
withdrawal of such shares of Stock be properly endorsed in blank or accompanied
by a properly executed instrument of transfer in blank.
-5-
Delivery
of the Stock and the money and other property, if any, represented by Receipts
surrendered for withdrawal shall be made by the Depositary at the Depositary’s
Office, except that, at the request, risk and expense of the holder surrendering
such Receipt or Receipts and for the account of the holder thereof, such
delivery may be made at such other place as may be designated by such
holder.
SECTION
2.5. Limitations
on Execution and Delivery, Transfer, Surrender and Exchange of
Receipts.
As a
condition precedent to the execution and delivery, registration of transfer,
split-up, combination, surrender or exchange of any Receipt, the Depositary,
any
of the Depositary’s Agents or the Company may require payment to it of a sum
sufficient for the payment (or, in the event that the Depositary or the Company
shall have made such payment, the reimbursement to it) of any charges or
expenses payable by the holder of a Receipt pursuant to Sections 3.2 and 5.7
hereof, may require the production of evidence satisfactory to it as to the
identity and genuineness of any signature
including a Signature Guarantee,
and may
also require compliance with such regulations, if any, as the Depositary or
the
Company may establish consistent with the provisions of this Deposit
Agreement.
The
deposit of Stock may be refused, the delivery of Receipts against Stock may
be
suspended, the registration of transfer of Receipts may be refused and the
registration of transfer, surrender or exchange of outstanding Receipts may
be
suspended (i) during any period when the register of stockholders of the Company
is closed, or (ii) if any such action is deemed necessary or advisable by the
Depositary, any of the Depositary’s Agents or the Company at any time or from
time to time because of any requirement of law or of any government or
governmental body or commission or under any provision of this Deposit
Agreement.
SECTION
2.6. Lost
Receipts, etc.
In
case
any Receipt shall be mutilated, destroyed, lost or stolen, the Depositary in
its
reasonable discretion may execute and deliver a Receipt of like form and tenor
in exchange and substitution for such mutilated Receipt, or in lieu of and
in
substitution for such destroyed, lost or stolen Receipt, upon (i) the filing
by
the holder thereof with the Depositary of evidence reasonably satisfactory
to
the Depositary of such destruction or loss or theft of such Receipt, of the
authenticity thereof and of his or her ownership thereof, (ii) the
furnishing of the Depositary with reasonable indemnification and
the
provision of an open penalty surety bond satisfactory
to the Depositary and holding
it and the
Company
harmless,
and
(iii)
the payment of any reasonable expense (including reasonable fees, charges and
expenses of the Depositary) in connection with such execution and
delivery.
SECTION
2.7. Cancellation
and Destruction of Surrendered Receipts.
All
Receipts surrendered to the Depositary or any Depositary’s Agent shall be
cancelled by the Depositary. Except as prohibited by applicable law or
regulation, the Company is authorized to destroy all Receipts so
cancelled.
SECTION
2.8. Redemption
of Stock.
Whenever the Company shall be permitted and shall elect to redeem shares of
Stock in accordance with the provisions of the Company’s Articles of
Incorporation or Articles Supplementary, it shall (unless otherwise agreed
to in
writing with the Depositary) give or cause to be given to the Depositary not
less than 45 days notice of the date of such proposed redemption or exchange
of
Stock and of the number of such shares held by the Depositary to be so redeemed
and the applicable redemption price, as set forth
-6-
in
the
Articles Supplementary, which notice shall be accompanied by a certificate
from
the Company stating that such redemption of Stock is in accordance with the
provisions of the Company’s Articles of Incorporation or Articles Supplementary.
On the date of such redemption, provided that the Company shall then have paid
or caused to be paid in full to the Depositary the redemption price of the
Stock
to be redeemed, plus an amount equal to any accrued and unpaid dividends thereon
to the date fixed for redemption, in accordance with the provisions of the
Articles Supplementary, the Depositary shall redeem the number of Depositary
Shares representing such Stock. The Depositary shall mail notice of the
Company’s redemption of Stock and the proposed simultaneous redemption of the
number of Depositary Shares representing the Stock to be redeemed by first-class
mail, postage prepaid, not less than 30 and not more than 60 days prior to
the
date fixed for redemption of such Stock and Depositary Shares (the “Redemption
Date”) to the record holders of the Receipts evidencing the Depositary Shares to
be so redeemed, at the address of such holders as they appear on the records
of
the Depositary; but neither failure to mail any such notice of redemption of
Depositary Shares to one or more such holders nor any defect in any notice
of
redemption of Depositary Shares to one or more such holders shall affect the
sufficiency of the proceedings for redemption as to the other holders. The
Company will provide the Depositary with the information necessary for the
Depositary to prepare such notice and each such notice shall state: (i) the
Redemption Date; (ii) the number of Depositary Shares to be redeemed and, if
fewer than all the Depositary Shares held by any such holder are to be redeemed,
the number of such Depositary Shares held by such holder to be so redeemed;
(iii) the redemption price per Depositary Share; (iv) the place or places where
Receipts evidencing Depositary Shares are to be surrendered for payment of
the
redemption price; and (v) that dividends in respect of the Stock represented
by
the Depositary Shares to be redeemed will cease to accrue on such Redemption
Date and will bear no interest. In case fewer than all the outstanding
Depositary Shares are to be redeemed, the Depositary Shares to be so redeemed
shall be determined pro rata or by lot in a manner required by any exchange
upon
which the Depositary Shares are listed or as otherwise determined by the Board
of Directors.
Notice
having been mailed by the Depositary as aforesaid, from and after the Redemption
Date (unless the Company shall have failed to provide the funds necessary to
redeem the Stock evidenced by the Depositary Shares called for redemption)
(i) dividends on the shares of Stock so called for redemption shall cease
to accrue from and after such date, (ii) the Depositary Shares being redeemed
from such proceeds shall be deemed no longer to be outstanding, (iii) all rights
of the holders of Receipts evidencing such Depositary Shares (except the right
to receive the redemption price) shall, to the extent of such Depositary Shares,
cease and terminate and (iv) upon surrender in accordance with such
redemption; notice of the Receipts evidencing any such Depositary Shares called
for redemption (properly endorsed or assigned for transfer, if the Depositary
or
applicable law shall so require), such Depositary Shares shall be redeemed
by
the Depositary at a redemption price per Depositary Share equal to the same
fraction of the redemption price per share paid with respect to the shares
of
Stock as the fraction each Depositary Share represents of a share of Stock
plus
the same fraction of all money and other property, if any, represented by such
Depositary Shares, including all amounts paid by the Company in respect of
dividends which on the Redemption Date have accumulated on the shares of Stock
to be so redeemed and have not theretofore been paid. Any funds deposited by
the
Company with the Depositary for any Depositary Shares that the holders thereof
fail to redeem will, upon the written request of the Company, be returned to
the
Company after a period of five years from the date such funds are so
deposited.
-7-
If
fewer
than all of the Depositary Shares evidenced by a Receipt are called for
redemption, the Depositary will deliver to the holder of such Receipt upon
its
surrender to the Depositary, together with the redemption payment, a new Receipt
evidencing the Depositary Shares evidenced by such prior Receipt and not called
for redemption; provided, however, that the Depositary shall not issue any
Receipt evidencing a fractional Depositary Share.
SECTION
2.9. Stock
Constituting Excess Stock.
As
provided in the Articles of Incorporation or Articles Supplementary, upon the
happening of certain events, shares of Stock shall be deemed to automatically
constitute Excess Stock. In the event of such a conversion, the Receipt
representing the deposited Stock so converted shall no longer represent, to
the
extent of the shares so converted, such deposited Stock. Promptly upon its
knowledge of the conversion of such deposited Stock into Excess Shares, the
Company shall notify the Depositary of such conversion, the number of shares
of
deposited Stock so converted, and the identity of the holder of the Receipt
so
affected, whereupon the Depositary shall promptly notify the holder of such
Receipt as to the foregoing information and the requirement for the holder
to
surrender such Receipt to the Depositary for cancellation of the number of
Depositary Shares evidenced thereby equal to the deposited Stock constituting
Excess Shares represented thereby.
If
fewer
than all of the Depositary Shares evidenced by a Receipt are required to be
surrendered for cancellation, the Depositary will deliver to the holder of
such
Receipt upon its surrender to the Depositary a new Receipt evidencing the
Depositary Shares evidenced by such prior Receipt and not required to be
surrendered for cancellation. Upon the conversion of the deposited Stock and
cancellation of the Depositary Shares represented thereby, the Depositary will
make appropriate adjustments in its records to reflect such conversion and
cancellation (including the reduction of any fractional share of deposited
Stock
and the issuance of any Excess Shares).
ARTICLE
III
CERTAIN
OBLIGATIONS OF HOLDERS
OF
RECEIPTS AND THE COMPANY
SECTION
3.1. Filing
Proofs, Certificates and Other Information.
Any
holder of a Receipt may be required from time to time to file such proof of
residence, or other matters or other information, to execute such certificates
and to make such representations and warranties as the Depositary or the Company
may reasonably deem necessary or proper or otherwise reasonably request. Subject
to applicable law, the Depositary or the Company may withhold the delivery,
or
delay the registration of transfer, redemption or exchange, of any Receipt
or
the withdrawal or conversion of the Stock represented by the Depositary Shares
evidenced by any Receipt or the distribution of any dividend or other
distribution or the sale of any rights or of the proceeds thereof until such
proof or other information is filed or such certificates are executed or such
representations and warranties are made.
SECTION
3.2. Payment
of Taxes or Other Governmental Charges.
Holders
of Receipts shall be obligated to make payments to the Depositary of certain
charges and expenses, as provided in Section 5.7 hereof. Subject to applicable
law, registration of transfer of any Receipt or any withdrawal of Stock and
all
money or other property, if any, represented by the Depositary Shares evidenced
by such Receipt may be refused until any such payment due is made, and
any
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dividends,
interest payments or other distributions may be withheld or any part of or
all
the Stock or other property represented by the Depositary Shares evidenced
by
such Receipt and not theretofore sold may be sold for the account of the holder
thereof (after attempting by reasonable means to notify such holder prior to
such sale), and such dividends, interest payments or other distributions or
the
proceeds of any such sale may be applied to any payment of such charges or
expenses, the holder of such Receipt remaining liable for any
deficiency.
SECTION
3.3. Warranty
as to Stock.
The
Company hereby represents and warrants that the Stock, when issued, will be
duly
authorized, validly issued, fully paid and nonassessable. Such representation
and warranty shall survive the deposit of the Stock and the issuance of
Receipts.
ARTICLE
IV
THE
DEPOSITED SECURITIES; NOTICES
SECTION
4.1. Cash
Distributions.
Whenever the Depositary shall receive any cash dividend or other cash
distribution on Stock, the Depositary shall, subject to Sections 3.1 and 3.2
hereof, distribute to record holders of Receipts on the record date fixed
pursuant to Section 4.4 hereof such amounts of such dividend or distribution
as
are, as nearly as practicable, in proportion to the respective numbers of
Depositary Shares evidenced by the Receipts held by such holders; provided,
however, that, in case the Company or the Depositary shall be required to
withhold and shall withhold from any cash dividend or other cash distribution
in
respect of the Stock an amount on account of taxes or as otherwise required
by
law, regulation or court process, the amount made available for distribution
or
distributed in respect of Depositary Shares shall be reduced accordingly. In
the
event that the calculation of any such cash dividend or other cash distribution
to be paid to any record holder on the aggregate number of Depositary Receipts
held by such holder results in an amount which is a fraction of a cent, the
amount the Depositary shall distribute to such record holder shall be rounded
to
the next highest whole cent if such fraction of a cent is equal to or greater
than $.005; otherwise such fractional interest shall be disregarded; and, upon
request of the Depositary, the Company shall pay the additional amount to the
Depositary for distribution.
SECTION
4.2. Distributions
Other than Cash, Rights, Preferences or Privileges.
Whenever the Depositary shall receive any distribution other than cash, rights,
preferences or privileges upon Stock, the Depositary shall, subject to Sections
3.1 and 3.2 hereof, distribute to record holders of Receipts on the record
date
fixed pursuant to Section 4.4 hereof such amounts of the securities or property
received by it as are, as nearly as may be practicable, in proportion to the
respective numbers of Depositary Shares evidenced by the Receipts held by such
holders, in any manner that the Depositary may deem equitable and practicable
for accomplishing such distribution. If in the opinion of the Depositary such
distribution cannot be made proportionately among such record holders, or if
for
any other reason (including any requirement that the Company or the Depositary
withhold an amount on account of taxes) the Depositary deems (after consultation
with the Company) such distribution not to be feasible, the Depositary may,
with
the approval of the Company, adopt such method as it deems equitable and
practicable for the purpose of effecting such distribution, including the sale
(at public or private sale) of the securities or property thus received, or
any
part thereof, at such place or places and upon such
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terms
as
it may deem equitable and appropriate. The net proceeds of any such sale shall,
subject to Sections 3.1 and 3.2 hereof, be distributed or made available for
distribution, as the case may be, by the Depositary to record holders of
Receipts as provided by Section 4.1 in the case of a distribution received
in
cash.
SECTION
4.3. Subscription
Rights, Preferences or Privileges.
If the
Company shall at any time offer or cause to be offered to the persons in whose
names Stock is recorded on the books of the Company any rights, preferences
or
privileges to subscribe for or to purchase any securities or any rights,
preferences or privileges of any other nature, the
offering of such
rights, preferences or privileges shall in each such instance be communicated
to the Depositary and thereafter
made
available by the Depositary to the record holders of Receipts in such manner
as
the Depositary may determine, either by the issue to such record holders of
warrants representing such rights, preferences or privileges or by such other
method as may be approved by the Depositary in its discretion with the approval
of the Company; provided, however, that (i) if at the time of issue or offer
of
any such rights, preferences or privileges the Depositary determines that it
is
not lawful or (after consultation with the Company) not feasible to make such
rights, preferences or privileges available to holders of Receipts by the issue
of warrants or otherwise, or (ii) if and to the extent so instructed by holders
of Receipts who do not desire to execute such rights, preferences or privileges,
then CI, in its discretion (with approval of the Company, in any case where
the
Depositary has determined that it is not feasible to make such rights,
preferences or privileges available), may, if applicable laws or the terms
of
such rights, preferences or privileges permit such transfer, sell such rights,
preferences or privileges at public or private sale, at such place or places
and
upon such terms as it may deem proper. The net proceeds of any such sale shall,
subject to Sections 3.1 and 3.2 hereof, be distributed by CI to the record
holders of Receipts entitled thereto as provided by Section 4.1 hereof in the
case of a distribution received in cash.
If
registration under the Securities Act of the securities to which any rights,
preferences or privileges relate is required in order for holders of Receipts
to
be offered or sold the securities to which such rights, preferences or
privileges relate, the Company will file promptly a registration statement
pursuant to the Securities Act with respect to such rights, preferences or
privileges and securities and use its best efforts and take all steps available
to it to cause such registration statement to become effective sufficiently
in
advance of the expiration of such rights, preferences or privileges to enable
such holders to exercise such rights, preferences or privileges. In no event
shall the Depositary make available to the holders of Receipts any right,
preference or privilege to subscribe for or to purchase any securities unless
and until it has received written notice from the Company that such registration
statement shall have become effective, or that the offering and sale of such
securities to such holders are exempt from registration under the provisions
of
the Securities Act and the Company shall have provided to the Depositary an
opinion of counsel reasonably satisfactory to the Depositary to such
effect.
If
any
other action under the laws of any jurisdiction or any governmental or
administrative authorization, consent or permit is required in order for such
rights, preferences or privileges to be made available to holders of Receipts,
the Company will use its reasonable best efforts to take such action or obtain
such authorization, consent or permit sufficiently in advance of the expiration
of such rights, preferences or privileges to enable such holders to exercise
such rights, preferences or privileges.
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SECTION
4.4. Notice
of
Dividends, etc.; Fixing Record Date for Holders of Receipts.
Whenever any cash dividend or other cash distribution shall become payable
or
any distribution other than cash shall be made, or if rights, preferences or
privileges shall at any time be offered, with respect to Stock, or whenever
the
Depositary shall receive notice of any meeting at which holders of Stock are
entitled to vote or of which holders of Stock are entitled to notice, or
whenever the Depositary and the Company shall decide it is appropriate, the
Depositary shall in each such instance fix a record date (which shall be the
same date as the record date fixed by the Company with respect to or otherwise
in accordance with the terms of the Stock) for the determination of the holders
of Receipts who shall be entitled to receive such dividend, distribution,
rights, preferences or privileges or the net proceeds of the sale thereof,
or to
give instructions for the exercise of voting rights at any such meeting, or
who
shall be entitled to notice of such meeting or for any other appropriate
reasons.
SECTION
4.5. Voting
Rights.
Upon
receipt of notice of any meeting at which the holders of Stock are entitled
to
vote, the Depositary shall, as soon as practicable thereafter, mail to the
record holders of Receipts a notice which shall contain (i) such information
as
is contained in such notice of meeting and (ii) a statement that the holders
may, subject to any applicable restrictions, instruct the Depositary as to
the
exercise of the voting rights pertaining to the amount of Stock represented
by
their respective Depositary Shares (including an express indication that
instructions may be given to the Depositary to give a discretionary proxy to
a
person designated by the Company) and a brief statement as to the manner in
which such instructions may be given. Upon the written request of the holders
of
Receipts on the relevant record date, the Depositary shall use its best efforts
to vote or cause to be voted, in accordance with the instructions set forth
in
such requests, the maximum number of whole shares of Stock represented by the
Depositary Shares evidenced by all Receipts as to which any particular voting
instructions are received. The Company hereby agrees to take all action which
may be deemed necessary by the Depositary in order to enable the Depositary
to
vote such Stock or cause such Stock to be voted. In the absence of specific
instructions from the holder of a Receipt, the Depositary will not vote to
the
extent of the Stock represented by the Depositary Shares evidenced by such
Receipt.
SECTION
4.6. Changes
Affecting Deposited Securities and Reclassifications, Recapitalizations,
etc.
Upon
any
change in par value or liquidation preference, split-up, combination or any
other reclassification of the Stock, or upon any recapitalization,
reorganization, merger or consolidation affecting the Company or to which it
is
a party, the Depositary may in its discretion with the approval (not to be
unreasonably withheld) of, and shall upon the instructions of, the Company,
and
(in either case) in such manner as the Depositary may deem equitable, (i) make
such adjustments in the fraction of an interest in one share of Stock
represented by one Depositary Share as may be necessary (as certified by the
Company) fully to reflect the effects of such change in par value or liquidation
preference, split-up, combination or other reclassification of Stock, or of
such
recapitalization, reorganization, merger or consolidation and (ii) treat any
securities which shall be received by the Depositary in exchange for or upon
conversion of or in respect of the Stock as new deposited securities so received
in exchange for or upon conversion or in respect of such Stock. In any such
case, the Depositary may in its discretion, with the approval of the Company,
execute and deliver additional Receipts or may call for the surrender of all
outstanding Receipts to be exchanged for new Receipts specifically describing
such new deposited securities. Anything to the contrary herein notwithstanding,
holders of Receipts
-11-
shall
have the right from and after the effective date of any such change in par
value
or liquidation preference, split-up, combination or other reclassification
of
the Stock or any such recapitalization, reorganization, merger or consolidation
to surrender such Receipts to the Depositary with instructions to convert,
exchange or surrender the Stock represented thereby only into or for, as the
case may be, the kind and amount of shares of stock and other securities and
property and cash into which the Stock represented by such Receipts would have
been converted or for which such Stock would have been exchanged or surrendered
had such Receipt been surrendered immediately prior to the effective date of
such transaction.
SECTION
4.7. Delivery
of Reports.
The
Depositary shall furnish to holders of Receipts any reports and communications
received from the Company which are received by the Depositary as the holder
of
Stock.
SECTION
4.8. List
of Receipt Holders.
Promptly upon request from time to time by the Company, the Depositary shall
furnish to it a list, as of the most recent practicable date, of the names,
addresses and holdings of Depositary Shares of all record holders of Receipts.
The Company shall be entitled to receive such list four times
annually.
ARTICLE
V
THE
DEPOSITARY, THE DEPOSITARY’S
AGENTS,
THE REGISTRAR AND THE COMPANY
SECTION
5.1. Maintenance
of Offices, Agencies and Transfer Books by the Depositary;
Registrar.
Upon
execution of this Deposit Agreement, the Depositary shall maintain at the
Depositary’s Office facilities for the execution and delivery, registration and
registration of transfer, surrender and exchange of Receipts, and at the offices
of the Depositary’s Agents, if any, facilities for the delivery, registration of
transfer, surrender and exchange of Receipts, all in accordance with the
provisions of this Deposit Agreement, provided that, to the extent provisions
of
this Deposit Agreement regarding transfer or registrar functions of the
Depositary conflict with the terms of any transfer agency agreement into which
the Company and the Depositary may enter, the transfer agency agreement shall
control.
The
Depositary shall keep books at the Depositary’s Office for the registration and
registration of transfer of Receipts, which books during normal business hours
shall be open for inspection by the record holders of Receipts subject to
applicable laws; provided that any such holder requesting to exercise such
right
shall certify to the Depositary that such inspection shall be for a proper
purpose reasonably related to such person’s interest as an owner of Depositary
Shares evidenced by the Receipts.
Books
kept hereunder by the Depositary may be maintained in electronic
form.
The
Depositary may close such books, at any time or from time to time, when deemed
expedient by it in connection with the performance of its duties
hereunder.
The
Depositary may, with the approval of the Company, appoint a Registrar for
registration of the Receipts or the Depositary Shares evidenced thereby. If
the
Receipts or the Depositary Shares evidenced thereby or the Stock represented
by
such Depositary Shares shall be listed on
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one
or
more national securities exchanges, the Depositary will appoint a Registrar
(acceptable to the Company) for registration of such Receipts or Depositary
Shares in accordance with any requirements of such exchange. Such Registrar
(which may be the Depositary if so permitted by the requirements of any such
exchange) may be removed and a substitute registrar appointed by the Depositary
upon the request or with the approval of the Company. If the Receipts, such
Depositary Shares or such Stock is listed on one or more other stock exchanges,
the Depositary will, at the request and at the expense of the Company, arrange
such facilities for the delivery, registration, registration of transfer,
surrender and exchange of such Receipts, such Depositary Shares or such Stock
as
may be required by law or applicable securities exchange
regulation.
The
Depositary may from time to time appoint Depositary’s Agents to act in any
respect for the Depositary for the purposes of this Deposit Agreement and may
at
any time appoint additional Depositary’s Agents and vary or terminate the
appointment of such Depositary’s Agents. The Depositary will notify the Company
of any such action.
SECTION
5.2. Prevention
of or Delay in Performance by the Depositary, the Depositary’s Agents, the
Registrar or the Company.
Neither
the Depositary nor any Depositary’s Agent nor the Registrar nor the Company
shall incur any liability to any holder of any Receipt if by reason of any
provision of any present or future law, or regulation thereunder, of the United
States of America or of any other governmental authority or, in the case of
the
Depositary, the Depositary’s Agent or the Registrar, by reason of any provision,
present or future, of the Company’s Amended and Restated Articles of
Incorporation or by reason of any act of God or war or other circumstance beyond
the control of the relevant party, the Depositary, the Depositary’s Agent, the
Registrar or the Company shall be prevented, delayed or forbidden from, or
subjected to any penalty on account of, doing or performing any act or thing
which the terms of this Deposit Agreement provide shall be done or performed;
nor shall the Depositary, any Depositary’s Agent, the Registrar or the Company
incur liability to any holder of a Receipt (i) by reason of any nonperformance
or delay, caused as aforesaid, in the performance of any act or thing which
the
terms of this Deposit Agreement shall provide shall or may be done or performed,
or (ii) by reason of any exercise of, or failure to exercise, any discretion
provided for in this Deposit Agreement except, in the case of any such exercise
or failure to exercise discretion not caused as aforesaid, if caused by the
gross negligence or willful misconduct of the party charged with such exercise
or failure to exercise.
SECTION
5.3. Obligation
of the Depositary, the Depositary’s Agents, the Registrar and the
Company.
Neither
the Depositary nor any Depositary’s Agent nor the Registrar nor the Company
assumes any obligation or shall be subject to any liability under this Deposit
Agreement or any Receipt to holders of Receipts other than for its gross
negligence, willful misconduct or bad faith.
Neither
the Depositary nor any Depositary’s Agent nor the Registrar nor the Company
shall be under any obligation to appear in, prosecute or defend any action,
suit
or other proceeding in respect of the Stock, the Depositary Shares or the
Receipts which in its reasonable opinion may involve it in expense or liability
unless indemnity reasonably satisfactory to it against expense and liability
be
furnished as often as may be reasonably required.
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Neither
the Depositary nor any Depositary’s Agent nor the Registrar nor the Company
shall be liable for any action or any failure to act by it in reliance upon
the
written advice of legal counsel or accountants, or information from any person
presenting Stock for deposit, any holder of a Receipt or any other person
believed by it in good faith to be competent to give such information. The
Depositary, any Depositary’s Agent, the Registrar and the Company may each rely
and shall each be protected in acting upon any written notice, request,
direction or other document reasonably believed by it to be genuine and to
have
been signed or presented by the proper party or parties.
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 fin connection with any action
so take.
The
Depositary shall not be responsible for any failure to carry out any instruction
to vote any of the shares of Stock or for the manner or effect of any such
vote
made, as long as any such action or inaction is in good faith. The Depositary
will indemnify the Company and hold it harmless from any loss, liability or
expense (including the reasonable costs and expenses of defending itself) which
arises from its negligence, wilful misconduct or bad faith. The Depositary
undertakes and any Registrar shall be required to undertake only such duties
as
specifically set forth herein and no implied covenants or obligations shall
be
read into this Deposit Agreement against the Depositary or Registrar. In no
event shall the Depositary’s aggregate liability during the term of this Deposit
Agreement with respect to, arising from, or arising in connection with this
Deposit Agreement, or from all services provided or omitted to be provided
under
this Deposit Agreement, whether in contract, or in tort, or otherwise, exceed
an
amount equal to three (3) times the amounts paid by the Company to Depositary
as
fees and charges, but not including reimbursable expenses. The indemnification
obligations of the Depositary set forth in this Section 5.3 hereof shall
survive any termination of this Deposit Agreement and any succession of any
Depositary.
The
Depositary, its parent, affiliates or subsidiaries, the Depositary’s Agents and
the Registrar may own, buy, sell and deal in any class of securities of the
Company and its affiliates and in Receipts or Depositary Shares or become
pecuniarily interested in any transaction in which the Company or its affiliates
may be interested or contract with or lend money to any such person or otherwise
act as fully or as freely as if it were not the Depositary, parent, affiliate
or
subsidiary or Depositary’s Agent or Registrar hereunder. The Depositary may also
act as trustee, transfer agent or registrar of any of the securities of the
Company and its affiliates.
It
is
intended that neither the Depositary nor any Depositary’s Agent nor the
Registrar, acting as the Depositary’s Agent or Registrar, as the case may be,
shall be deemed to be an “issuer” of the securities under the federal securities
laws or applicable state securities laws, it being expressly understood and
agreed that the Depositary, any Depositary’s Agent and the Registrar are acting
only in a ministerial capacity as Depositary or Registrar for the
Stock.
Neither
the Depositary (or its officers, directors, employees or agents) nor any
Depositary’s Agent nor the Registrar makes any representation or has any
responsibility as to the validity of the registration statement pursuant to
which the Depositary Shares are registered under the
-14-
Securities
Act, the Stock, the Depositary Shares or the Receipts (except for its
counter-signatures thereon) or any instruments referred to therein or herein,
or
as to the correctness of any statement made therein or herein.
The
Depositary assumes no responsibility for the correctness of the description
that
appears in the Receipts. Notwithstanding any other provision herein or in the
Receipts, the Depositary makes no warranties or representations as to the
validity or genuineness of any Stock at any time deposited with the Depositary
hereunder or of the Depositary Shares, as to the validity or sufficiency of
this
Deposit Agreement, as to the value of the Depositary Shares or as to any right,
title or interest of the record holders of Receipts in and to the Depositary
Shares. The Depositary shall not be accountable for the use or application
by
the Company of the Depositary Shares or the Receipts or the proceeds
thereof.
The
Depositary shall not be liable for any incidental, indirect, special or
consequential damages of any nature whatsoever, including, but not limited
to,
loss of anticipated profits, occasioned by breach of any provisions of this
Agreement even if apprised of the possibility of such damages.
SECTION
5.4. Resignation
and Removal of the Depositary; Appointment of Successor
Depositary.
The
Depositary may at any time resign as Depositary hereunder by delivering notice
of its election to do so to the Company, such resignation to take effect upon
the appointment of a successor Depositary and its acceptance of such appointment
as hereinafter provided.
The
Depositary may at any time be removed by the Company by notice of such removal
delivered to the Depositary, such removal to take effect upon the appointment
of
a successor Depositary and its acceptance of such appointment as hereinafter
provided.
In
case
at any time the Depositary acting hereunder shall resign or be removed, the
Company shall, within 60 days after the delivery of the notice of resignation
or
removal, as the case may be, appoint a successor Depositary, which shall be
a
bank or trust company having its principal office in the United States of
America and having a combined capital and surplus of at least $150,000,000.
If
no successor Depositary shall have been so appointed and have accepted
appointment within 60 days after delivery of such notice, the resigning or
removed Depositary may at the expense of the Company petition any court of
competent jurisdiction for the appointment of a successor Depositary. Every
successor Depositary shall execute and deliver to its predecessor and to the
Company an instrument in writing accepting its appointment hereunder, and
thereupon such successor Depositary, without any further act or deed, shall
become fully vested with all the rights, powers, duties and obligations of
its
predecessor and for all purposes shall be the Depositary under this Deposit
Agreement, and such predecessor, upon payment of all sums due it and on the
written request of the Company, shall execute and deliver an instrument
transferring to such successor all rights and powers of such predecessor
hereunder, shall duly assign, transfer and deliver all right, title and interest
in the Stock and any moneys or property held hereunder to such successor, and
shall deliver to such successor a list of the record holders of all outstanding
Receipts and such records, books and other information in its possession
relating thereto. Any successor Depositary shall promptly mail notice of its
appointment to the record holders of Receipts.
-15-
Any
corporation into or with which the Depositary may be merged, consolidated or
converted shall be the successor of such Depositary without the execution or
filing of any document or any further act, and notice thereof shall not be
required hereunder. Such successor Depositary may authenticate the Receipts
in
the name of the predecessor Depositary or in the name of the successor
Depositary.
SECTION
5.5. Corporate
Notices and Reports.
The
Company agrees that it will deliver to the Depositary, and the Depositary will,
promptly after receipt thereof, transmit to the record holders of Receipts,
in
each case at the addresses recorded in the Depositary’s books, copies of all
notices and reports (including without limitation financial statements) required
by law or by the rules of any national securities exchange upon which the Stock,
the Depositary Shares or the Receipts are listed, to be furnished to the record
holders of Receipts. Such transmission will be at the Company’s expense and the
Company will provide the Depositary with such number of copies of such documents
as the Depositary may reasonably request.
SECTION
5.6. Indemnification
by the Company.
The
Company shall indemnify the Depositary, any Depositary’s Agent and the Registrar
against, and hold each of them harmless from, any loss, liability or expense
(including the reasonable costs and expenses of defending itself) which may
arise out of acts performed or omitted in connection with this Deposit Agreement
and the Receipts by the Depositary, any Registrar or any of their respective
agents (including any Depositary’s Agent), except for any liability arising out
of gross negligence, willful misconduct or bad faith on the respective parts
of
any such person or persons, subject to the provisions of Section 5.3, above.
The
obligations of the Company set forth in this Section 5.6 hereof shall survive
any termination of this Deposit Agreement or any succession of any Depositary
or
Depositary’s Agent.
SECTION
5.7. Charges
and Expenses.
The
Company shall pay all transfer and other taxes and governmental charges arising
solely from the existence of the depositary arrangements. The Company shall
pay
charges of the Depositary in connection with the initial deposit of the Stock
and the initial issuance of the Depositary Shares, all withdrawals of shares
of
the Stock by owners of Depositary Shares, and any redemption of the Stock at
the
option of the Company. All other transfer and other taxes and governmental
charges shall be at the expense of holders of Depositary Shares. If, at the
request of a holder of Receipts, the Depositary incurs charges or expenses
for
which it is not otherwise liable hereunder, such holder will be liable for
such
charges and expenses. All other charges and expenses of the Depositary and
any
Depositary’s Agent hereunder (including, in each case, reasonable fees and
expenses of counsel) incident to the performance of their respective obligations
hereunder will be paid upon consultation and agreement between the Depositary
and the Company as to the amount and nature of such charges and expenses. The
Depositary shall present its statement for charges and expenses to the Company
at such intervals as the Company and the Depositary may agree.
SECTION
5.8. Tax
Compliance.
CSS
and, where applicable, the Depositary, on its own behalf and on behalf of the
Company, will comply with all applicable certification, information reporting
and withholding (including “backup” withholding) requirements imposed by
applicable tax laws, regulations or administrative practice with respect to
(i)
any payments made with respect to the Depositary Shares or (ii) the issuance,
delivery, holding, transfer, redemption or exercise of rights under the
Depositary Receipts or the Depositary Shares. Such
-16-
compliance
shall include, without limitation, the preparation and timely filing of required
returns and the timely payment of all amounts required to be withheld to the
appropriate taxing authority or its designated agent.
The
Depositary shall comply with any direction received from the Company with
respect to the application of such requirements to particular payments or
holders or in other particular circumstances, and may for purposes of this
Deposit Agreement rely on any such direction in accordance with the provisions
of Section 5.3 hereof.
The
Depositary shall maintain all appropriate records documenting compliance with
such requirements, and shall make such records available on request to the
Company or to its authorized representatives.
ARTICLE
VI
AMENDMENT
AND TERMINATION
SECTION
6.1. Amendment.
The
form of the Receipts and any provisions of this Deposit Agreement may at any
time and from time to time be amended by agreement between the Company and
the
Depositary in any respect which they may deem necessary or desirable; provided,
however, that no such amendment (other than any change in the fees) which shall
materially adversely alter the rights of the holders of Receipts shall be
effective unless such amendment shall have been approved by the holders of
at
least a majority of the Depositary Shares then outstanding. Every holder of
an
outstanding Receipt at the time any such amendment becomes effective shall
be
deemed, by continuing to hold such Receipt, to be bound by the Deposit Agreement
as amended thereby. Subject to Section 2.9 hereof, notwithstanding the
foregoing, in no event may any amendment impair the right of any holder of
any
Depositary Shares, upon surrender of the Receipts evidencing such Depositary
Shares and subject to any conditions specified in this Deposit Agreement, to
receive shares of Stock and any money or other property, if any, represented
thereby, except in order to comply with mandatory provisions of applicable
law.
SECTION
6.2. Termination.
This
Deposit Agreement may be terminated by the Company (provided (i) the consent
of
holders of a majority of the Depositary Shares has been obtained (such consent
not to be unreasonably withheld, delayed or conditioned) or (ii) termination
is
necessary to preserve the Company’s status as a real estate investment trust),
at any time upon not less than 30 days’ prior written notice to the Depositary,
in which case, on a date that is not later than 30 days after the date of such
notice, the Depositary shall deliver or make available for delivery to holders
of Depositary Shares, upon surrender of the Receipts evidencing such Depositary
Shares, such number of whole or fractional shares of Stock as are represented
by
such Depositary Shares. This Deposit Agreement will automatically terminate
after (i) all outstanding Depositary Shares have been redeemed pursuant to
Section 2.8 hereof or (ii) there shall have been made a final distribution
in respect of the Stock in connection with any liquidation, dissolution or
winding up of the Company and such distribution shall have been distributed
to
the holders of Depositary Receipts pursuant to Section 4.1 or 4.2 hereof, as
applicable.
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
-17-
such
resignation by the Company on the effective date of such termination and any
required notice will be sent by the Company.
Upon
the
termination of this Deposit Agreement, the Company shall be discharged from
all
obligations under this Deposit Agreement except for its obligations to the
Depositary, the Registrar and any Depositary’s Agent under Sections 5.6 and 5.7
hereof.
ARTICLE
VII
MISCELLANEOUS
SECTION
7.1. Counterparts.
This
Deposit Agreement may be executed in any number of counterparts, and by each
of
the parties hereto on separate counterparts, each of which counterparts, when
so
executed and delivered, shall be deemed an original, but all such counterparts
taken together shall constitute one and the same instrument.
SECTION
7.2. Exclusive
Benefit of Parties.
This
Deposit Agreement is for the exclusive benefit of the parties hereto, and their
respective successors hereunder, and shall not be deemed to give any legal
or
equitable right, remedy or claim to any other person whatsoever.
SECTION
7.3. Invalidity
of Provisions.
In case
any one or more of the provisions contained in this Deposit Agreement or in
the
Receipts should be or become invalid, illegal or unenforceable in any respect,
the validity, legality and enforceability of the remaining provisions contained
herein or therein shall in no way be affected, prejudiced or disturbed
thereby.
SECTION
7.4. Notices.
Any and
all notices to be given to the Company hereunder or under the Receipts shall
be
in writing and shall be deemed to have been duly given if personally delivered
or sent by mail, or by telegram or facsimile transmission confirmed by letter,
addressed to the Company at:
First
Industrial Realty Trust, Inc.
000
X.
Xxxxxx Xxxxx, Xxxxx 0000
Xxxxxxx,
Xxxxxxxx 00000
Attn:
Xxxx Xxxxxxx, Esq.
Facsimile
No.: (000) 000-0000
or
at any
other address of which the Company shall have notified the Depositary in
writing.
Any
and
all notices to be given to the Depositary hereunder or under the Receipts shall
be in writing and shall be deemed to have been duly given if personally
delivered or sent by mail or by telegram or facsimile transmission confirmed
by
letter, addressed to the Depositary at the Depositary’s Office, at:
-18-
Computershare
Trust Company, N.A.
c/o
Computershare Shareholder Services, Inc.
000
Xxxxxx Xxxxxx
Xxxxxx,
Xxxxxxxxxxxxx 00000
Attn:
General Counsel
Facsimile
No.: 000-000-0000
or
at any
other address of which the Depositary shall have notified the Company in
writing.
Any
and
all notices to be given to any record holder of a Receipt hereunder or under
the
Receipts shall be in writing and shall be deemed to have been duly given if
personally delivered or sent by mail, or by telegram or facsimile transmission
confirmed by letter, addressed to such record holder at the address of such
record holder as it appears on the books of the Depositary, or if such holder
shall have filed with the Depositary a written request that notices intended
for
such holder be mailed to some other address, at the address designated in such
request.
Delivery
of a notice sent by mail or by telegram or facsimile transmission shall be
deemed to be effected at the time when a duly addressed letter containing the
same (or a confirmation thereof in the case of a telegram or facsimile
transmission) is deposited for mailing by first class mail, postage prepaid.
The
Depositary or the Company may, however, act upon any telegram or facsimile
transmission received by it from the other or from any holder of a Receipt,
notwithstanding that such telegram or facsimile transmission shall not
subsequently be confirmed by letter or as aforesaid.
SECTION
7.5. Appointment
of Registrar.
The
Company hereby also appoints the Depositary as Registrar in respect of the
Receipts and the Depositary hereby accepts such appointments.
SECTION
7.6. Holders
of Receipts Are Parties.
The
holders of Receipts from time to time shall be parties to this Deposit Agreement
and shall be bound by all of the terms and conditions hereof and of the Receipts
by acceptance of delivery thereof.
SECTION
7.7. Governing
Law.
THIS
DEPOSIT AGREEMENT AND THE RECEIPTS AND ALL RIGHTS HEREUNDER AND THEREUNDER
AND
PROVISIONS HEREOF AND THEREOF SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE
WITH, THE LAWS APPLICABLE TO CONTRACTS MADE IN AND TO BE PERFORMED IN THE STATE
OF NEW YORK WITHOUT REGARD TO THE CONFLICTS OF LAWS PRINCIPLES
THEREOF.
SECTION
7.8. Inspection
of Deposit Agreement.
Copies
of this Deposit Agreement shall be filed with the Depositary and the
Depositary’s Agent and shall be open to inspection during business hours at the
Depositary’s office or respective offices of the Depositary’s Agent, if any, by
any holder of a Receipt.
SECTION
7.9. Headings.
The
headings of articles and sections in this Deposit Agreement have been inserted
for convenience only and are not to be regarded as a part of this Deposit
Agreement or the Receipts or to have any bearing upon the meaning or
interpretation of any provision contained herein or in the
Receipts.
-19-
[Signature
Page Follows]
-20-
IN WITNESS
WHEREOF, the Company and the Depositary have duly executed this Agreement as
of
the day and year first above set forth, and all holders of Receipts shall become
parties hereto by and upon acceptance by them of delivery of Receipts issued
in
accordance with the terms hereof.
FIRST
INDUSTRIAL REALTY TRUST, INC.
By: /s/
Xxxx X. Xxxxxxx
Name: Xxxx X. Xxxxxxx
Title: Vice President - Corporate Legal & Secretary
COMPUTERSHARE
TRUST COMPANY, N.A.
By: /s/
Xxxx X. Xxxxxx
Name: Xxxx X. Xxxxxx
Title: Senior Account Manager
COMPUTERSHARE
SHAREHOLDER SERVICES, INC..
By: /s/
Xxxxxx X. Xxxxxxxx
Name: Xxxxxx X. Xxxxxxxx
Title: Senior Managing Director
-21-
EXHIBIT
A
[FORM
OF
FACE OF RECEIPT]
NUMBER
SHARES
DR-[ ] (CUSIP
_____________)
see
reverse for certain definitions
THIS
CERTIFICATE IS TRANSFERABLE
IN
NEW
YORK, NY
[Logo]
RECEIPT
FOR DEPOSITARY SHARES,
EACH
REPRESENTING 1/10,000 OF A SHARE OF
SERIES
J
CUMULATIVE REDEEMABLE PREFERRED STOCK
FIRST
INDUSTRIAL REALTY TRUST, INC.
(INCORPORATED
UNDER THE LAWS OF THE STATE OF MARYLAND)
Computershare
Trust Company, N.A., a national banking association duly organized and existing
under the laws of the United States of America, and Computershare Shareholder
Services, Inc., a Delaware corporation, with an office at the time of execution
of the Deposit Agreement (as defined below) at 000 Xxxxxx Xxxxxx, Xxxxxx,
Xxxxxxxxxxxxx 00000, as Depositary (the “Depositary”), hereby certifies that
_____________is a registered owner of ___________________ DEPOSITARY SHARES
(“Depositary Shares”), each Depositary Share representing 1/10,000 of one fully
paid and non-assessable share of Series J Cumulative Redeemable Preferred Stock,
$.01 par value per share (the “Shares”), of First Industrial Realty Trust, Inc.,
a Maryland corporation (the “Company”), on deposit with the Depositary, subject
to the terms and entitled to the benefits of the Deposit Agreement dated as
of
January 13, 2006 (the “Deposit Agreement”), among the Company, the
Depositary and the holders from time to time of Receipts for Depositary Shares.
By accepting this Receipt, the holder hereof becomes a party to and agrees
to be
bound by all the terms and conditions of the Deposit Agreement. This Receipt
shall not be valid or obligatory for any purpose or be entitled to any benefits
under the Deposit Agreement unless it shall have been executed by the Depositary
by the manual or facsimile signature of a duly authorized officer or, if a
Registrar in respect of the Receipts (other than the Depositary) shall have
been
appointed, by the manual signature of a duly authorized officer of such
Registrar.
Dated:
Countersigned
and Registered:
COMPUTERSHARE
TRUST COMPANY, N.A.
Depositary
and Registrar
By:
____________________________________
By:
___________________________________
SECRETARY
By:
___________________________________
PRESIDENT
A-1
[FORM
OF
REVERSE OF RECEIPT]
FIRST
INDUSTRIAL REALTY TRUST, INC.
THE
SHARES OF STOCK REPRESENTED BY THIS DEPOSITARY RECEIPT ARE SUBJECT TO
RESTRICTIONS ON TRANSFER FOR THE PURPOSE OF THE CORPORATION’S MAINTENANCE OF ITS
QUALIFICATION AS A REAL ESTATE INVESTMENT TRUST UNDER THE INTERNAL REVENUE
CODE
OF 1986, AS AMENDED. NO PERSON MAY BENEFICIALLY OWN SHARES OF STOCK IN EXCESS
OF
9.9% (OR SUCH GREATER PERCENTAGE AS MAY BE DETERMINED BY THE BOARD OF DIRECTORS
OF THE CORPORATION) OF THE OUTSTANDING STOCK OF THE CORPORATION. ANY PERSON
WHO
ATTEMPTS TO BENEFICIALLY OWN SHARES OF STOCK IN EXCESS OF THE ABOVE LIMITATION
MUST IMMEDIATELY NOTIFY THE CORPORATION. ALL CAPITALIZED TERMS IN THIS LEGEND
HAVE THE MEANINGS DEFINED IN THE CORPORATION’S ARTICLES OF INCORPORATION, A COPY
OF WHICH, INCLUDING THE RESTRICTIONS ON TRANSFER, WILL BE SENT WITHOUT CHARGE
TO
EACH STOCKHOLDER WHO SO REQUESTS. IF THE RESTRICTIONS ON TRANSFER ARE VIOLATED,
THE SHARES OF STOCK REPRESENTED HEREBY MAY BE AUTOMATICALLY EXCHANGED FOR SHARES
OF EXCESS STOCK WHICH WILL BE HELD IN TRUST BY THE CORPORATION.
THE
CORPORATION WILL FURNISH TO ANY STOCKHOLDER ON REQUEST AND WITHOUT CHARGE A
FULL
STATEMENT OF THE DESIGNATIONS AND ANY PREFERENCES, CONVERSIONS AND OTHER RIGHTS,
VOTING POWERS, RESTRICTIONS, LIMITATIONS AS TO DIVIDENDS, QUALIFICATIONS, AND
TERMS AND CONDITIONS OF REDEMPTION OF THE STOCK OF EACH CLASS WHICH THE
CORPORATION IS AUTHORIZED TO ISSUE AND, WITH RESPECT TO ANY PREFERRED OR SPECIAL
CLASS IN A SERIES, THE DIFFERENCES IN THE RELATIVE RIGHTS AND PREFERENCES
BETWEEN THE SHARES OF EACH SERIES TO THE EXTENT THEY HAVE BEEN SET AND THE
AUTHORITY OF THE BOARD OF DIRECTORS TO SET THE RELATIVE RIGHTS AND PREFERENCES
OF SUBSEQUENT SERIES.
The
following abbreviations, when used in the inscription on the face of this
Depositary Receipt, shall be construed as though they were written out in full
according to applicable laws or regulations:
|
TEN
COM —
|
as
tenants in common
|
UNIF
GIFT MIN ACT -. . . Custodian . . . .
|
|
TEN
ENT —
|
tenants
by the entireties
|
(Cust)
|
|
JT
TEN —
|
as
joint tenants with right of survivorship and not as tenants in
common
|
Minor
under Uniform Gifts to Minors Act . . . . .
(State)
|
Additional
abbreviations may also be used though not in the above list.
For
Value
Received, _____________________ hereby sells, assigns and transfers
unto
PLEASE
INSERT SOCIAL SECURITY OR OTHER IDENTIFYING NUMBER OF ASSIGNEE
PLEASE
PRINT OR TYPEWRITE NAME AND ADDRESS INCLUDING POSTAL ZIP CODE OF
ASSIGNEE
Depositary
Shares represented by the within Depositary Receipt, and do hereby irrevocably
constitute and appoint ________________ Attorney to transfer the said Depositary
Shares on the books of the within named Depositary with full power of
substitution in the premises.
Dated Signed
A-2
NOTICE:
THE SIGNATURE TO THIS ASSIGNMENT MUST CORRESPOND WITH THE NAME AS WRITTEN UPON
THE FACE OF THIS DEPOSITARY RECEIPT IN EVERY PARTICULAR, WITHOUT ALTERATION
OR
ENLARGEMENT OR ANY CHANGE WHATEVER.
SIGNATURE(S)
GUARANTEED
By:
___________________
THE
SIGNATURE(S) SHOULD BE GUARANTEED BY AN ELIGIBLE GUARANTOR INSTITUTION (BANKS,
STOCKBROKERS, SAVINGS AND LOAN ASSOCIATIONS
AND CREDIT UNIONS WITH MEMBERSHIP IN AN APPROVED SIGNATURE GUARANTEE MEDALLION
PROGRAM), PURSUANT TO S.E.C. RULE 17Ad-15.
A-3
