DEPOSIT AGREEMENT
DEPOSIT AGREEMENT dated as of *,1998 among MEDITRUST CORPORATION, a
Delaware corporation (the "Company"), and *, a *, as Depositary, and all holders
from time to time of Receipts (as hereinafter defined) issued hereunder.
WITNESSETH:
WHEREAS, it is desired to provide, as hereinafter set forth in this Deposit
Agreement, for the deposit of shares of the Company's Preferred Stock (as
hereinafter defined) with the Depositary (as hereinafter defined) for the
purposes set forth in this Deposit Agreement and for the issuance hereunder of
the Receipts evidencing Depositary Shares (as hereinafter defined) representing
fractional interests in the shares of Preferred Stock deposited; and
WHEREAS, the Receipts are to be substantially in the form of Exhibit A
annexed to this Deposit Agreement, with appropriate insertions, modifications
and omissions, as hereinafter provided in this Deposit Agreement;
NOW, THEREFORE, in consideration of the premises contained herein, it is
agreed by and among the parties hereto as follows:
ARTICLE I
DEFINITIONS
SECTION 1.1. The following definitions shall apply to the respective terms
(in the singular and plural forms of such terms) used in this Deposit Agreement
and the Receipts:
"Certificate of Designation" shall mean the Certificate of Designation of
*% ______________________________ Preferred Stock of the Company, setting forth
the terms of the Preferred Stock, filed Secretary of State of the State of
Delaware.
"Certificate of Incorporation" shall mean the amended and restated
certificate of incorporation, as the same may be further amended or restated
from time to time, of the Company.
"Company" shall mean Meditrust Corporation, a Delaware corporation, and its
successors.
"Corporate Office" shall mean the corporate office of the Depositary at
which at any particular time its business in respect of matters governed by this
Deposit Agreement shall be administered, which at the date of this Deposit
Agreement is located at *, New York, New York*.
"Deposit Agreement" shall mean this agreement, as the same may be amended,
modified or supplemented from time to time.
"Depositary" shall mean *, a company having its principal office in the
United States and having a combined capital and surplus of at least $50,000,000,
and any successor as depositary hereunder, which successor shall also have its
principal office in the United States and a combined capital and surplus of at
least $50,000,000.
"Depositary Share" shall mean a fractional interest of 1/10 of a share of
Preferred Stock deposited with the Depositary hereunder and the same
proportionate interest in any and all other property received by the Depositary
in respect of such share of Preferred Stock and held under this Deposit
Agreement, all as evidenced by the Receipts issued hereunder. 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
Stock represented by such Depositary Share, including the dividend, voting,
distribution, redemption and liquidation rights contained in the Certificate of
Designation.
"Depositary's Agent" shall mean an agent appointed by the Depositary as
provided, and for the purposes specified, in Section 7.5.
"New York Office" shall mean the office maintained by the Depositary in the
Borough of Manhattan, The City of New York for the execution and delivery,
transfer, surrender and exchange, split-up, combination and redemption of
Receipts (and payment of amounts due upon such redemption), purchase of Receipts
as contemplated by Section 2.10 hereof (and payment of amounts due upon such
purchase) and deposit and withdrawal of Preferred Stock, which facility at the
date of this Deposit Agreement is located at *, New York, New York *. [Delete if
the Depositary's main office is in New York City.]
"Preferred Stock" shall mean the Company's *% ___________________
___________ Preferred Stock, $.10 par value per share, heretofore validly
issued, fully paid and nonassessable.
"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.
"record date" shall mean the date fixed pursuant to Section 4.4.
"record holder" or "holder" as applied to a Receipt shall mean the person
in whose name a Receipt is registered on the books maintained by the Depositary
for such purpose.
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"Registrar" shall mean * or any bank or trust company appointed to register
ownership and transfers of Receipts or the deposited Preferred Stock, as the
case may be, as herein provided.
"Securities Act" shall mean the Securities Act of 1933, as amended.
"Transfer Agent" shall mean * or any bank or trust company appointed to
transfer the Receipts or the deposited Preferred Stock, as the case may be, as
herein provided.
ARTICLE II
FORM OF RECEIPTS, DEPOSIT OF PREFERRED STOCK,
EXECUTION AND DELIVERY, TRANSFER,
SURRENDER AND REDEMPTION OF RECEIPTS
Section 2.1. Form and Transferability of Receipts. Definitive Receipts
shall be engraved or printed or lithographed with steel-engraved borders and
underlying tint and shall be substantially in the form set forth in Exhibit A
annexed to this Deposit Agreement, with appropriate insertions, modifications
and omissions, as hereinafter provided. Pending the preparation of definitive
Receipts, the Depositary, upon the written order of the Company delivered in
compliance with Section 2.2, shall execute and deliver temporary Receipts which
may be printed, lithographed, typewritten, word-processed, mimeographed or
otherwise reproduced, substantially of the tenor of the definitive Receipts in
lieu of which they are issued and with such appropriate insertions, omissions,
substitutions and other variations as the persons executing such Receipts may
determine, as evidenced by their execution of such Receipts. If temporary
Receipts are issued, the Company and the Depositary will cause definitive
Receipts to be prepared without unreasonable delay. After the preparation of
definitive Receipts, the temporary Receipts shall be exchangeable for definitive
Receipts upon surrender of the temporary Receipts at the Corporate Office[, the
New York Office] and such 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 Stock deposited, as definitive Receipts.
Receipts shall be executed by the Depositary by the manual signature of a
duly authorized signatory of the Depositary, provided that such signature may be
a facsimile if a Registrar (other than the Depositary) shall have been appointed
and such Receipts are countersigned by manual signature of a duly authorized
signatory of the Registrar. No Receipt shall be entitled to any benefits under
this Deposit Agreement or be valid or obligatory for any purpose unless it shall
have been executed as provided in the preceding
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sentence. The Depositary shall record on its books each Receipt executed as
provided above and delivered as hereinafter provided.
Except as the Depositary may otherwise determine, Receipts shall be in
denominations of any number of whole Depositary Shares. All Receipts shall be
dated the date of their issuance.
Receipts may be endorsed with or have incorporated in the text thereof such
legends or recitals or changes not inconsistent with the provisions of this
Deposit Agreement as may be required by the Depositary or required to comply
with any applicable law or regulation or with the rules and regulations of any
securities exchange upon which the Preferred Stock, the Depositary Shares or the
Receipts may be listed or to conform with any usage with respect thereto, or to
indicate any special limitations or restrictions to which any particular
Receipts are subject.
Title to any Receipt (and to the Depositary Shares evidenced by such
Receipt) that is properly endorsed or accompanied by a properly executed
instrument of transfer or endorsement shall be transferable by delivery with the
same effect as in the case of a negotiable instrument; provided, however, that
until a Receipt shall be transferred on the books of the Depositary as provided
in Section 2.4, the Depositary may, notwithstanding any notice to the contrary,
treat the record holder thereof at such time as the absolute owner thereof for
the purpose of determining the person entitled to distribution of dividends or
other distributions or to any notice provided for in this Deposit Agreement and
for all other purposes.
SECTION 2.2. Deposit of Preferred Stock; Execution and Delivery of Receipts
in Respect Thereof. Concurrently with the execution of this Deposit Agreement,
the Company is delivering to the Depositary a certificate or certificates,
registered in the name of the Depositary and evidencing * shares of Preferred
Stock, properly endorsed or accompanied, if required by the Depositary, by a
duly executed instrument of transfer or endorsement, in form satisfactory to the
Depositary, together with (i) all such certifications as may be required by the
Depositary in accordance with the provisions of this Deposit Agreement and (ii)
a written order of the Company directing the Depositary to execute and deliver
to, or upon the written order of, the person or persons stated in such order a
Receipt or Receipts for the Depositary Shares representing such deposited
Preferred Stock. The Depositary acknowledges receipt of the deposited Preferred
Stock and related documentation and agrees to hold such deposited Preferred
Stock in an account to be established by the Depositary at the Corporate Office
or at such other office as the Depositary shall determine. The Company hereby
appoints the Depositary as the Registrar and Transfer Agent for the Preferred
Stock and the Depositary hereby accepts such appointment and, as such, will
reflect changes in the number of shares (including any fractional shares) of
deposited Preferred Stock held by it by notation, bookentry or other appropriate
method.
If required by the Depositary, Preferred Stock presented for deposit by the
Company at any time, whether or not the register of stockholders of the Company
is closed, shall also be
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accompanied by an agreement or assignment, or other instrument satisfactory to
the Depositary, that will provide for the prompt transfer to the Depositary or
its nominee of any dividend or right to subscribe for additional Preferred Stock
or to receive other property that any person in whose name the Preferred Stock
is or has been registered may thereafter receive upon or in respect of such
deposited Preferred Stock, or in lieu thereof such agreement of indemnity or
other agreements as shall be satisfactory to the Depositary.
Upon receipt by the Depositary of a certificate or certificates for
Preferred Stock deposited hereunder, together with the other documents specified
above, and upon registering such Preferred Stock in the name of the Depositary,
the Depositary, subject to the terms and conditions of this Deposit Agreement,
shall execute and deliver to, or upon the order of, the person or persons named
in the 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 Stock so deposited and registered
in such name or names as may be requested by such person or persons. The
Depositary shall execute and deliver such Receipt or Receipts at the [New York
Office/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 Stock, or in the case of dividends or other
distributions of Preferred Stock, if any, there shall be deposited hereunder not
more than the number of shares constituting the Preferred Stock as set forth in
the Certificate of Designation, as such may be amended from time to time.
The Company shall deliver to the Depositary from time to time such
quantities of Receipts as the Depositary may request to enable the Depositary to
perform its obligations under this Deposit Agreement.
SECTION 2.3. Optional Redemption of Preferred Stock for Cash. Whenever the
Company shall elect to redeem deposited shares of Preferred Stock for cash in
accordance with the provisions of the Certificate of Designation, it shall
(unless otherwise agreed in writing with the Depositary) give the Depositary not
less than 60 days' prior written notice of the date of such proposed redemption
and of the number of such shares of Preferred Stock held by the Depositary to be
redeemed and the applicable redemption price, as set forth in the Certificate of
Designation, including the amount, if any, of accrued and unpaid dividends
(including, without limitation, accumulated dividends, if any, for prior
dividend periods) to the date of such redemption. The Depositary shall mail,
first-class postage prepaid, notice furnished by the Company of the redemption
of the Preferred Stock and the proposed simultaneous redemption of the
Depositary Shares representing the Preferred Stock to be redeemed, not less than
30 and not more than 60 days prior to the date fixed for redemption of such
Preferred Stock and Depositary Shares (the "cash redemption date"), to the
holders of record on the record date fixed for such redemption pursuant to
Section 4.4 hereof of the Receipts evidencing the Depositary Shares to be so
redeemed, at the addresses of such holders as the same appear on the records of
the Depositary, but neither failure to mail any such
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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: (i) the cash redemption date; (ii) the cash redemption price; (iii)
the number of shares of deposited Preferred Stock and Depositary Shares to be
redeemed; (iv) the place or places where Receipts evidencing Depositary Shares
to be redeemed are to be surrendered for payment of the cash redemption price;
(v) that from and after the cash redemption date dividends in respect of the
Preferred Stock represented by the Depositary Shares to be redeemed will cease
to accrue; and (vi) if fewer than all the Depositary Shares evidenced by
Receipts held by any holder are to be redeemed, the number of such Depositary
Shares held by such holder to be so redeemed. If fewer than all the outstanding
Depositary Shares are to be redeemed, the Depositary Shares to be redeemed shall
be selected pro rata (as nearly as may be practicable without creating
fractional Depositary Shares) or by lot or by any other equitable method
determined by the Company that will not give the Company the right to purchase
Receipts, Depositary Shares or shares of Preferred Stock represented by such
Depositary Shares pursuant to the provisions of Section 7.5 of the Company's
by-laws or any other provisions of the Company's by-laws or Certificate of
Incorporation allowing the purchase or redemption of its capital stock to
preserve the status of the Company as a real estate investment trust for federal
income tax purposes. The Company shall also cause notice of redemption to be
published in the Wall Street Journal or, if such newspaper is not then being
published, any other daily newspaper of general circulation in The City of New
York at least once a week for two successive weeks commencing not less than 30
nor more than 60 days prior to the cash redemption date.
In the event that notice of redemption has been made as described in the
immediately preceding paragraph and the Company shall then have paid in full to
the Depositary the cash redemption price (determined pursuant to the Certificate
of Designation) of the Preferred Stock deposited with the Depositary to be
redeemed (including any accrued and unpaid dividends (including, without
limitation, accumulated dividends, if any, for prior dividend periods) to the
date of redemption), the Depositary shall redeem the number of Depositary Shares
representing such Preferred Stock so called for redemption by the Company and
from and after the cash redemption date (unless the Company shall have failed to
redeem the shares of Preferred Stock to be redeemed by it as set forth in the
Company's notice provided for in the preceding paragraph and to pay all amounts
due upon such redemption) all dividends in respect of the shares of Preferred
Stock called for redemption shall cease to accrue, the Depositary Shares called
for redemption shall be deemed no longer to be outstanding and all rights of the
holders of Receipts evidencing such Depositary Shares (except the right to
receive the cash redemption price together with accrued and unpaid dividends
thereon (including, without limitation, accumulated dividends, if any, for prior
dividend periods) and any money or other property to which holders of such
Receipts were entitled upon such redemption) shall, to the extent of such
Depositary Shares, cease and terminate. Upon surrender in accordance with said
notice of the Receipts evidencing such Depositary Shares (properly endorsed or
assigned for transfer, if the Depositary shall so require), such Depositary
Shares shall be redeemed at a cash redemption price per Depositary Share of $25,
plus 1/*th of the accrued and unpaid dividends (including, without limitation,
accumulated dividends, if any, for prior dividend periods) on one share of
Preferred Stock to the date fixed
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for redemption, plus 1/*th of any other money and other property payable in
respect of one such share of Preferred Stock. The foregoing shall be further
subject to the terms and conditions of the Certificate of Designation.
If fewer than all of the Depositary Shares evidenced by a Receipt are
called for redemption, the Depositary will deliver to the holder of such Receipt
upon its surrender to the Depositary, together with payment of the cash
redemption price for and all other amounts payable in respect of the Depositary
Shares called for redemption, a new Receipt evidencing the Depositary Shares
evidenced by such prior Receipt and not called for redemption.
SECTION 2.4. Registration of Transfer 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 surrender thereof by
the holder in person or by a duly authorized attorney, properly endorsed or
accompanied by a properly executed instrument of transfer or endorsement,
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[, the New York Office] or such other
office as the Depositary may designate for the purpose of effecting a split-up
or combination of Receipts, subject to the terms and conditions of this Deposit
Agreement, the Depositary shall execute and deliver a new Receipt or Receipts in
the authorized denominations requested evidencing the same aggregate number of
Depositary Shares evidenced by the Receipt or Receipts surrendered.
SECTION 2.6. Surrender of Receipts and Withdrawal of Preferred Stock. Any
holder of a Receipt or Receipts may withdraw any or all of the deposited
Preferred Stock represented by the Depositary Shares evidenced by such Receipt
or Receipts and all money and other property, if any, represented by such
Depositary Shares by surrendering such Receipt or Receipts at the Corporate
Office[, the New York Office] or at such other office as the Depositary may
designate for such withdrawals, provided that a holder of a Receipt or Receipts
may not withdraw such Preferred Stock (or money and other property, if any,
represented thereby) which has previously been called for redemption. After such
surrender, without unreasonable delay, the Depositary shall deliver to such
holder, or to the person or persons designated by such holder as hereinafter
provided, the number of whole or fractional shares of such Preferred Stock and
all such money and other property, if any, represented by the Depositary Shares
evidenced by the Receipt or Receipts so surrendered for withdrawal, but holders
of such whole or fractional shares of Preferred Stock will not thereafter be
entitled to deposit such Preferred Stock hereunder or to receive Depositary
Shares therefor. If the Receipt or Receipts delivered by the holder to the
Depositary in connection with such withdrawal shall evidence a number of
Depositary Shares in excess of the number of Depositary Shares representing the
number of whole or fractional shares of deposited
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Preferred Stock to be withdrawn, the Depositary shall at the same time, in
addition to such number of whole or fractional shares of Preferred Stock and
such money and other property, if any, to be withdrawn, deliver to such holder
or (subject to Section 2.4) upon his order, a new Receipt or Receipts evidencing
such excess number of Depositary Shares. Delivery of such Preferred Stock and
such money and other property being withdrawn may be made by the delivery of
such certificates, documents of title and other instruments as the Depositary
may deem appropriate, which, if required by the Depositary, shall be properly
endorsed or accompanied by proper instruments of transfer.
If the deposited Preferred Stock and the money and other property being
withdrawn are to be delivered to a person or persons other than the record
holder of the Receipt or Receipts being surrendered for withdrawal of Preferred
Stock, such holder shall execute and deliver to the Depositary a written order
so directing the Depositary and the Depositary may require that the Receipt or
Receipts surrendered by such holder for withdrawal of such shares of Preferred
Stock be properly endorsed in blank or accompanied by a properly executed
instrument of transfer or endorsement in blank.
The Depositary shall deliver the deposited Preferred Stock and the money
and other property, if any, represented by the Depositary Shares evidenced by
Receipts surrendered for withdrawal at the [New York Office/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.
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 Stock being deposited or withdrawn); (ii) production of proof
satisfactory to it as to the identity and genuineness of any signature (or the
authority of any signature); and (iii) compliance with such reasonable
regulations, if any, as the Depositary or the Company may establish consistent
with the provisions of this Deposit Agreement or as may be required by any
securities exchange upon which the deposited Preferred Stock, the Depositary
Shares or the Receipts may be included for quotation or listed.
The deposit of Preferred Stock may be refused, the delivery of Receipts
against Preferred Stock may be suspended, the transfer of Receipts may be
refused, and the transfer, split-up, combination, surrender or exchange of
outstanding Receipts may be suspended (i) during any period when the register of
stockholders of the Company is closed or (ii) if any such action is deemed
reasonably necessary or advisable by the Depositary, any of the Depositary's
Agents or the Company at any time or from time to time because of any
requirement of law or of any government or governmental body or commission, or
under any provision of this Deposit Agreement.
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SECTION 2.8. Lost Receipts, etc. In case any Receipt shall be mutilated or
destroyed or lost or stolen, the Depositary in its discretion may execute and
deliver a Receipt of like form and tenor in exchange and substitution for such
mutilated Receipt or in lieu of and in substitution for such destroyed, lost or
stolen Receipt, provided that the holder thereof provides the Depositary with
(i) evidence reasonably satisfactory to the Depositary of such destruction, loss
or theft of such Receipt, of the authenticity thereof and of his ownership
thereof and (ii) reasonable indemnification satisfactory to the Depositary and
the Company.
SECTION 2.9. Cancellation and Destruction of Surrendered Receipts. All
Receipts surrendered to the Depositary or any Depositary's Agent shall be
cancelled by the Depositary. Except as prohibited by applicable law or
regulation, the Depositary is authorized to destroy such Receipts so cancelled.
SECTION 2.10. Purchase of Preferred Stock and Depositary Shares Pursuant to
the By-Laws. The Receipts and the Depositary Shares represented thereby are
subject to the provisions of Section 7.5 of the Company's by-laws and (i) for
purposes of applying Section 7.5 of the Company's by-laws, each holder of any
Receipts will be deemed to be the owner of the number of shares (including
fractional shares) of Preferred Stock represented by the Depositary Shares
evidenced by such Receipts and (ii) Section 7.5 of the Company's by-laws shall
apply to such holder and such Receipts and Depositary Shares as if (A) such
holder owned the shares (including fractional shares) of Preferred Stock
represented by such Depositary Shares directly, (ii) such Receipts evidenced
such shares (including fractional shares) of Preferred Stock and (iii) each such
Depositary Share was a fractional share of Preferred Stock, mutatis mutandis.
If, pursuant to Section 7.5 of its by-laws, the Company purchases any shares of
Preferred Stock represented by Depositary Shares, the Company will, prior to
such purchase, provide the Depositary with the names of the specific holders of
the Receipts evidencing such Depositary Shares and, on or prior to the day of
purchase, the Company will pay to the Depositary an amount equal to the purchase
price of such shares of Preferred Stock, together with accrued and unpaid
dividends thereon (including, without limitation, accumulated dividends, if any,
for prior dividend periods) to the date of purchase, and the Depositary will
apply such monies to purchase such Depositary Shares from the holders identified
by the Company as aforesaid against surrender of such Depositary Receipts.
Anything in the Company's by-laws to the contrary notwithstanding, the purchase
price for each Depositary Share purchased by the Company pursuant to this
Section 2.10 shall be payable in cash and shall be equal to 1/* of the purchase
price payable under Section 7.5 of the Company's by-laws per share of Preferred
Stock to be purchased as aforesaid, plus 1/* of the accrued and unpaid dividends
(including, without limitation, accumulated dividends, if any, for prior
dividend periods) on one share of such Preferred Stock to the date of purchase,
plus 1/* of any other money or other property payable in respect of one share of
such Preferred Stock.
If fewer than all of the Depositary Shares evidenced by a Receipt are
purchased as contemplated by this Section 2.10, the Depositary will deliver to
the holder of such Receipt upon its surrender to the Depositary, together with
payment of the purchase price for and all other amounts payable in respect of
the Depositary Shares so purchased, a new Receipt
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evidencing the Depositary Shares evidenced by such prior Receipt and not so
purchased by the Company. The Depositary and the Company will cooperate in good
faith to carry out the terms of this Section 2.10, subject to the other terms
and provisions of this Deposit Agreement.
ARTICLE III
CERTAIN OBLIGATIONS OF HOLDERS OF RECEIPTS AND THE COMPANY
SECTION 3.1. Filing Proofs Certificates and Other Information. Any person
presenting Preferred Stock for deposit or any holder of a Receipt may be
required from time to time to file such proof of residence or other information,
to execute such certificates and to make such representations and warranties as
the Depositary or the Company may reasonably deem necessary or proper. The
Depositary or the Company may withhold or delay the delivery of any Receipt, the
transfer, redemption or exchange of any Receipt, the withdrawal of the deposited
Preferred Stock represented by the Depositary Shares evidenced by any Receipt,
the distribution of any dividend or other distribution or the sale of any rights
or of the proceeds thereof, until such proof or other information is filed, such
certificates are executed or such representations and warranties are made.
SECTION 3.2. Payment of Fees and Expenses. Holders of Receipts shall be
obligated to make payments to the Depositary of certain fees and expenses, as
provided in Section 5.7, or to provide evidence reasonably satisfactory to the
Depositary that such fees and expenses have been paid. Until such payment is
made, transfer of any Receipt or any withdrawal of the Preferred Stock or money
or other property, if any, represented by the Depositary Shares evidenced by
such Receipt may be refused, any dividend or other distribution on such
Preferred Stock may be withheld, and any part or all of the Preferred Stock or
other property represented by the Depositary Shares evidenced by such Receipt
may be sold for the account of the holder thereof (after attempting by
reasonable means to notify such holder a reasonable number of days prior to such
sale). Any dividend or other distribution so withheld and the proceeds of any
such sale may be applied to any payment of such fees or expenses, the holder of
such Receipt remaining liable for any deficiency.
SECTION 3.3. Representations and Warranties as to Preferred Stock. In the
case of the initial deposit of the Preferred Stock hereunder, the Company and,
in the case of subsequent deposits thereof, each person so depositing Preferred
Stock under this Deposit Agreement shall be deemed thereby to represent and
warrant that such Preferred Stock and each certificate therefor are valid and
that the person making such deposit is duly authorized to do so. The Company
hereby further represents and warrants that such Preferred Stock, when issued,
will be validly issued, fully paid and nonassessable. Such representations and
warranties shall survive the deposit of the Preferred Stock and the issuance of
Receipts.
SECTION 3.4. Representation and Warranty as to Receipts and Depositary
Shares. The Company hereby represents and warrants that the Receipts, when
issued, will evidence
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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 share
of Preferred Stock. Such representation and warranty shall survive the deposit
of the Preferred Stock and the issuance of Receipts.
ARTICLE IV
THE PREFERRED STOCK; NOTICES
SECTION 4.1. Cash Distributions. Whenever the Depositary shall receive any
cash dividend or other cash distribution on the deposited Preferred Stock, the
Depositary shall, subject to Section 3.2, distribute to record holders of
Receipts on the record date fixed pursuant to Section 4.4 such amounts of such
sums as are, as nearly as practicable, in proportion to the respective numbers
of Depositary Shares evidenced by the Receipts held by such holders; provided,
however, that in case the Company or the Depositary shall be required by law to
withhold and shall withhold from any cash dividend or other cash distribution in
respect of the Preferred Stock 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. The Depositary shall
distribute or make available for distribution, as the case may be, only such
amount, however, as can be distributed without attributing to any holder of
Receipts a fraction of one cent, and any balance not so distributable shall be
held by the Depositary (without liability for interest thereon) and shall be
added to and be treated as part of the next sum received by the Depositary for
distribution to record holders of Receipts then outstanding. Notwithstanding the
foregoing, (i) if less than all of the outstanding Depositary Shares are to be
redeemed and the Depositary Shares to be so redeemed are not selected pro rata,
then only the holders of the Receipts evidencing the Depositary Shares selected
for redemption will be entitled to receive the cash redemption price therefor or
any other amounts payable upon such redemption; and (ii) if any Depositary
Shares are purchased pursuant to Section 2.10 hereof, then only the holders of
the Receipts evidencing such Depositary Shares shall be entitled to receive the
purchase price therefor or any other amounts payable upon such purchase.
SECTION 4.2. Distributions Other Than Cash. Whenever the Depositary shall
receive any distribution other than cash on the deposited Preferred Stock, the
Depositary shall, subject to Section 3.2, distribute 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,
11
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 unless the Company shall have
provided to the Depositary an opinion of counsel stating that such securities or
property have been registered under the Securities Act or do not need to be
registered.
SECTION 4.3. Subscription Rights, Preferences or Privileges. If the Company
shall at any time offer or cause to be offered to the persons in whose names
deposited Preferred Stock is registered on the books of the Company any rights,
preferences or privileges to subscribe for or to purchase any securities or any
rights, preferences or privileges of any other nature, such rights, preferences
or privileges shall in each such instance be made available by the Depositary 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 applicable laws or the terms of such
rights, preferences or privileges so permit, sell such rights, preferences or
privileges of such holders at public or private sale, at such place or places
and upon such terms as it may deem proper. The net proceeds of any such sale
shall, subject to Section 3.2, be distributed by the Depositary to the record
holders of Receipts entitled thereto as provided by Section 4.1 in the case of a
distribution received in cash. The Company shall not make any distribution of
such rights, preferences or privileges unless the Company shall have provided to
the Depositary an opinion of counsel stating that such rights, preferences or
privileges have been registered under the Securities Act or do not need to be
registered.
If registration under the Securities Act of the securities to which any
rights, preferences or privileges relate is required in order for holders of
Receipts 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
12
provisions of the Securities Act and the Company shall have provided to the
Depositary an opinion of counsel to such effect.
If any other action under the law of any jurisdiction or any governmental
or administrative authorization, consent or permit is required in order for such
rights, preferences or privileges or related securities to be made available to
holders of Receipts, the Company agrees to take such action or obtain such
authorization, consent or permit prior to the distribution of such rights,
preferences or privileges and further agrees, in the case of any such related
securities, to use its best efforts to take such action or obtain such
authorization, consent or permit sufficiently in advance of the expiration of
such rights, preferences or privileges to enable such holders to exercise such
rights, preferences or privileges.
SECTION 4.4. Notice of Dividends; Fixing of Record Date for Holders of
Receipts. Whenever any cash dividend or other cash distribution shall become
payable, any distribution other than cash shall be made, or any rights,
preferences or privileges shall at any time be offered with respect to the
deposited Preferred Stock, or whenever the Depositary shall receive notice of
(i) any meeting at which holders of such Preferred Stock are entitled to vote or
of which holders of such Preferred Stock are entitled to notice or (ii) any
election on the part of the Company to redeem any such shares of Preferred
Stock, the Depositary shall in each such instance fix a record date (which shall
be the same date as the record date fixed by the Company with respect to the
Preferred Stock) for the determination of the holders of Receipts who shall be
entitled (x) to receive such dividend, distribution, rights, preferences or
privileges or the net proceeds of the sale thereof, or (y) to give instructions
for the exercise of voting rights at any such meeting or to receive notice of
such meeting or whose Depositary Shares are to be so redeemed.
SECTION 4.5. Voting Rights. Upon receipt of notice of any meeting at which
the holders of deposited Preferred Stock are entitled to vote, the Depositary,
as soon as practicable thereafter, shall mail to the record holders of Receipts
a notice, which shall be provided by the Company and which shall contain (i)
such information as is contained in such notice of meeting, (ii) a statement
that the holders of Receipts at the close of business on a specified record date
fixed pursuant to Section 4.4 will be entitled, subject to any applicable
provision of law, to instruct the Depositary as to the exercise of the voting
rights pertaining to the Preferred Stock 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 Preferred
Stock represented by the Depositary Shares evidenced by such Receipt in
accordance with the instructions set forth in such request. To the extent any
such instructions request the voting of a fractional interest of a share of
deposited Preferred Stock, 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
share of Preferred Stock is entitled to [ten] votes and, accordingly, each
Depositary Share is entitled to one vote. The Company hereby agrees to take all
reasonable action that may be deemed necessary by the Depositary in order to
enable the Depositary to vote such Preferred
13
Stock or cause such Preferred Stock to be voted. In the absence of specific
instructions from the holder of a Receipt, the Depositary will abstain from
voting to the extent of the Preferred Stock represented by the Depositary Shares
evidenced by such Receipt. The Depositary shall not be required to exercise
discretion in voting any Preferred Stock represented by the Depositary Shares
evidenced by such Receipt.
SECTION 4.6. Changes Affecting Preferred Stock and Reclassifications,
Recapitalization, etc. Upon any change in the liquidation preference, or upon
any split-up, combination or any other reclassification of Preferred Stock, or
upon any recapitalization, reorganization, merger or consolidation affecting the
Company or to which it is a party or sale of all or substantially all of the
Company's assets, the Depositary shall, upon the instructions of the Company,
(i) make such adjustments in (a) the fraction of an interest represented by one
Depositary Share in one share of Preferred Stock and (b) the ratio of the
redemption price or, for purposes of Section 2.10 hereof, purchase price per
Depositary Share to the redemption price or purchase price, as the case may be,
of a share of Preferred Stock, in each case as may be required to fully reflect
the effects of such change in liquidation preference, split-up, combination or
other reclassification of Preferred Stock, or of such recapitalization,
reorganization, merger, consolidation or sale and (ii) treat any shares of stock
or other securities or property (including cash) that shall be received by the
Depositary in exchange for or upon conversion of or in respect of the Preferred
Stock as new deposited property under this Deposit Agreement, and Receipts then
outstanding shall thenceforth represent the proportionate interests of holders
thereof in the new deposited property so received in exchange for or upon
conversion or in respect of such Preferred Stock. In any such case the
Depositary may, in its discretion, with the approval of the Company, execute and
deliver additional Receipts, or may call for the surrender of all outstanding
Receipts to be exchanged for new Receipts specifically describing such new
deposited property. Anything to the contrary herein notwithstanding, holders of
Receipts shall have the right from and after the effective date of any such
change in liquidation preference, split-up, combination or other
reclassification of the Preferred Stock or any such recapitalization,
reorganization, merger or consolidation or sale of all or substantially all the
assets of the Company, to surrender such Receipts to the Depositary with
instructions to convert, exchange or surrender the Preferred Stock represented
thereby only into or for, as the case may be, the kind and amount of shares of
stock and other securities and property and cash into which the deposited
Preferred Stock evidenced by such Receipts might have been converted or for
which such Preferred Stock might have been exchanged or surrendered immediately
prior to the effective date of such transaction. The Company shall cause
effective provision to be made in the charter or other governing instruments of
the resulting, surviving or transferee entity (if other than the Company) for
protection of such rights as may be applicable upon exchange of the deposited
Preferred Stock for securities or property or cash of the surviving entity in
connection with the transactions set forth above. The Company shall cause any
such surviving entity (if other than the Company) expressly to assume the
obligations of the Company hereunder, by written instrument or agreement
executed and delivered on or prior to the effective date of such transaction.
14
SECTION 4.7. Inspection of Reports. The Depositary shall make available for
inspection by holders of Receipts at the Corporate Office[, the New York Office]
and at such other places as it may from time to time deem advisable during
normal business hours any reports and communications received from the Company
that are both received by the Depositary as the holder of deposited Preferred
Stock and made generally available to the holders of the Preferred Stock. In
addition, the Depositary shall transmit certain notices and reports to the
holders of Receipts as provided in Section 5.5.
SECTION 4.8. List of Holders of Receipts. Promptly upon request from time
to time by the Company, the Depositary shall furnish to the Company a list, as
of a recent date specified by the Company, of the names, addresses and holdings
of Depositary Shares of all persons in whose names Receipts are registered on
the books of the Depositary.
SECTION 4.9. Tax and Regulatory Compliance. The Depositary shall be
responsible for (i) preparation and mailing of Internal Revenue Service Forms
1099 for all open and closed accounts, (ii) foreign tax withholding, (iii)
back-up withholding (or any withholding as may be required at the then
applicable rate) on dividends paid and other distributions made to eligible
holders of Receipts, (iv) mailing Internal Revenue Service Forms W-9 to new
holders of Receipts without a certified taxpayer identification number, (v)
processing certified Internal Revenue Service Forms W-9, (vi) preparation and
filing of state information returns and (vii) escheatment services.
SECTION 4.10. Withholding. Notwithstanding any other provision of this
Deposit Agreement, in the event that the Depositary determines that any
distribution in property is subject to any tax which the Depositary is obligated
by law to withhold, the Depositary may dispose of all or a portion of such
property in such amounts and in such manner as the Depositary deems necessary
and practicable to pay such taxes, by public or private sale, and the Depositary
shall distribute the net proceeds of any such sale or the balance of any such
property after deduction of such taxes to the holders of Receipts entitled
thereto in proportion to the number of Depositary Shares held by them
respectively.
ARTICLE V
THE DEPOSITARY AND THE COMPANY
SECTION 5.1. Maintenance of Offices. Agencies and Transfer Books by the
Depositary and the Registrar. The Depositary shall maintain [Delete clause (i)
if the Corporate Office is in New York] (i) at the New York Office facilities
for the execution and delivery, transfer, surrender and exchange, split-up,
combination and redemption of Receipts (and payment of amounts due upon such
redemption) and purchase of Receipts as contemplated by Section 2.10 hereof (and
payment of amounts due upon such purchase), and deposit and withdrawal of
Preferred Stock and (ii) at the Corporate Office and at the offices of the
Depositary's Agents, if any, facilities for the execution and delivery,
transfer, surrender and exchange, split-up, combination and redemption of
Receipts (and payment of amounts due
15
upon such redemption) and purchase of Receipts as contemplated by Section 2.10
hereof (and payment of amounts due upon such purchase) and deposit and
withdrawal of Preferred Stock, all in accordance with the provisions of this
Deposit Agreement.
The Depositary shall keep books at the [New York Office/Corporate Office]
for the registration and transfer of Receipts, which books at all reasonable
times shall be open for inspection by the record holders of Receipts. The
Depositary may close such books, at any time or from time to time, when deemed
expedient by it in connection with the performance of its duties hereunder.
If the Receipts or the Depositary Shares evidenced thereby or the Preferred
Stock represented by such Depositary Shares shall be listed on the New York
Stock Exchange, Inc. or any other stock exchange, the Depositary shall, with the
approval of the Company, appoint a Registrar (acceptable to the Company) for
registration of such Receipts or Depositary Shares in accordance with the
requirements of such exchange. Such Registrar (which may be the Depositary if so
permitted by the requirements of such exchange) may be removed and a substitute
Registrar appointed by the Depositary upon the request or with the approval of
the Company. If the Receipts, such Depositary Shares or such Preferred Stock are
listed on one or more other stock exchanges, the Depositary will,- at the
request and expense of the Company, arrange such facilities for the delivery,
transfer, surrender, redemption, purchase and exchange of such Receipts, such
Depositary Shares or such Preferred Stock as may be required by law or
applicable stock exchange regulations.
SECTION 5.2. Prevention or Delay in Performance by the Depositary, the
Depositary's Agents, the Registrar or the Company. Neither the Depositary, any
Depositary's Agent, any Registrar nor the Company shall incur any liability to
any holder of any Receipt, if by reason of any provision of any present or
future law or regulation thereunder of the United States of America or of any
other governmental authority or, in the case of the Depositary, any Depositary's
Agent or any Registrar, by reason of any provision, present or future, of the
Certificate of Incorporation or the Certificate of Designation or, in the case
of the Company, the Depositary, the Depositary's Agent or any Registrar, by
reason of any act of God or war or other circumstance beyond the control of the
relevant party, the Depositary, any Depositary's Agent, any Registrar or the
Company shall be prevented or forbidden from doing or performing any act or
thing that the terms of this Deposit Agreement provide shall be done or
performed; nor shall the Depositary, any Depositary's Agent, any Registrar or
the Company incur any liability to any holder of a Receipt by reason of any
nonperformance or delay, caused as aforesaid, in the performance of any act or
thing that the terms of this Deposit Agreement provide shall or may be done or
performed, or by reason of any exercise of, or failure to exercise, any
discretion provided for in this Deposit Agreement.
SECTION 5.3. Obligations of the Depositary, the Depositary's Agents' the
Registrar and the Company. Neither the Depositary, any Depositary's Agent, any
Registrar nor the Company assumes any obligation or shall be subject to any
liability under this Deposit Agreement or any Receipt to holders of Receipts
other than from acts or omissions arising out
16
of conduct constituting bad faith, negligence or willful misconduct in the
performance of such duties as are specifically set forth in this Deposit
Agreement.
Neither the Depositary, any Depositary's Agent, any Registrar nor the
Company shall be under any obligation to appear in, prosecute or defend any
action, suit or other proceeding with respect to the deposited Preferred Stock,
Depositary Shares or Receipts that in its reasonable opinion may involve it in
expense or liability, unless indemnity reasonably satisfactory to it against all
expense and liability be furnished as often as may be reasonably required.
Neither the Depositary, any Depositary's Agent, any Registrar nor the
Company shall be liable for any action or any failure to act by it in reliance
upon the written advice of legal counsel or accountants, or information provided
by any person presenting Preferred Stock for deposit, any holder of a Receipt or
any other person believed by it in good faith to be competent to give such
information. The Depositary, any Depositary's Agent, any Registrar and the
Company may each rely and shall each be protected in acting upon any written
notice, request, direction or other document believed by it in good faith to be
genuine and to have been signed or presented by the proper party or parties.
In the event the Depositary shall receive conflicting claims, requests or
instructions from any holders of Receipts, on the one hand, and the Company, on
the other hand, the Depositary shall be entitled to act on such claims, requests
or instructions received from the Company and shall be entitled to the full
indemnification set forth in Section 5.6 hereof in connection with any action so
taken.
The Depositary shall not be responsible for any failure to carry out any
instruction to vote any of the deposited Preferred Stock or for the manner or
effect of any such vote made, as long as any such action or non-action is in
good faith and does not result from negligence or willful misconduct of the
Depositary. The Depositary undertakes, and any Registrar shall be required to
undertake, to perform such duties and only such duties as are specifically set
forth in this Deposit Agreement, and no implied covenants or obligations shall
be read into this Agreement against the Depositary or any Registrar.
The Depositary, its parent, affiliates, or subsidiaries, any Depositary's
Agent, and any Registrar may own, buy, sell or deal in any class of securities
of the Company and its affiliates and in Receipts or Depositary Shares or become
pecuniarily interested in any transaction in which the Company or its affiliates
may be interested or contract with or lend money to or otherwise act as fully or
as freely as if it were not the Depositary or the Depositary's Agent hereunder.
The Depositary may also act as transfer agent or registrar of any of the
securities of the Company and its affiliates or act in any other capacity for
the Company or its affiliates.
It is intended that neither the Depositary nor any Depositary's Agent shall
be deemed to be an "issuer" of the securities under the federal securities laws
or applicable state securities laws, it being expressly understood and agreed
that the Depositary and any
17
Depositary's Agent are acting only in a ministerial capacity as Depositary for
the deposited Preferred Stock; provided, however, that the Depositary agrees to
comply with all information reporting and withholding requirements applicable to
it under law or this Deposit Agreement in its capacity as Depositary.
Neither the Depositary (or its officers, directors, employees or agents)
nor any Depositary's Agent makes any representation or has any responsibility as
to the validity of the registration statement pursuant to which the Depositary
Shares are registered under the Securities Act, the deposited Preferred Stock,
the Depositary Shares, the Receipts (except its signature or countersignature
thereon) or any instruments referred to herein or therein, or as to the
correctness of any statement made herein or therein; provided, however, that the
Depositary is responsible for its representations in this Deposit Agreement and
for the validity of any action taken or required to be taken by the Depositary
in connection with this Deposit Agreement.
The Company agrees that it will register the deposited Preferred Stock and
the Depositary Shares in accordance with the applicable securities laws.
SECTION 5.4. Resignation and Removal of the Depositary; Appointment of
Successor Depositary. The Depositary may at any time resign as Depositary
hereunder by notice of its election to do so delivered to the Company, such
resignation to take effect upon the appointment of a successor depositary and
its acceptance of such appointment as hereinafter provided.
The Depositary may at any time be removed by the Company by notice of such
removal delivered to the Depositary, such removal to take effect upon the
appointment of a successor depositary and its acceptance of such appointment as
hereinafter provided.
In case at any time the Depositary acting hereunder shall resign or be
removed, the Company shall, within 60 days after the delivery of the notice of
resignation or removal, as the case may be, appoint a successor depositary,
which shall be a bank or trust company having its principal office in the United
States of America and having a combined capital and surplus of at least
$50,000,000. If a successor depositary shall not have been appointed in 60 days,
the resigning Depositary may petition a court of competent jurisdiction to
appoint a successor depositary. Every successor depositary shall execute and
deliver to its predecessor and to the Company an instrument in writing accepting
its appointment hereunder and pursuant to which it shall agree to become the
depositary under this Agreement, and thereupon such successor depositary,
without any further act or deed, shall become fully vested with all the rights,
powers, duties and obligations of its predecessor and for all purposes shall be
the Depositary under this Deposit Agreement, and such predecessor, upon payment
of all sums due it and on the written request of the Company, shall promptly
execute and deliver an instrument transferring to such successor all rights and
powers of such predecessor hereunder, shall duly assign, transfer and deliver
all rights, title and interest in the deposited Preferred Stock 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
18
successor depositary shall promptly mail notice of its appointment to the record
holders of Receipts.
Any corporation, association or other entity into or with which the
Depositary may be merged, consolidated or converted shall be the successor of
such Depositary without the execution or filing of any document or any further
act. Such successor depositary may execute the Receipts either in the name of
the predecessor depositary or in the name of the successor depositary.
SECTION 5.5. Notices, Reports and Documents. The Company agrees that it
will deliver to the Depositary, and the Depositary will, promptly after receipt
thereof, transmit to the record holders of Receipts, in each case at the
addresses recorded in the Depositary's books, copies of all notices and reports
(including financial statements) required by law, by the rules of any national
securities exchange upon which the Preferred Stock, the Depositary Shares or the
Receipts are included for quotation or listed or by the Certificate of
Incorporation, the Company's by-laws or the Certificate of Designation to be
furnished by the Company to holders of the deposited Preferred Stock and, if
requested by the holder of any Receipt, a copy of this Deposit Agreement, the
form of Receipt, the Certificate of Designation and the form of Preferred Stock
certificate. Such transmission will be at the Company's expense and the Company
will provide the Depositary with such number of copies of such documents as the
Depositary may reasonably request. In addition, the Depositary will transmit to
the record holders of Receipts at the Company's expense such other documents as
may be requested by the Company.
SECTION 5.6. Indemnification by the Company. The Company agrees to
indemnify the Depositary, any Depositary's Agent and any Registrar against, and
hold each of them harmless from, any liability, costs and expenses (including
reasonable attorneys' fees) that may arise out of, or in connection with, its
acting as Depositary, Depositary's Agent or Registrar, respectively, under this
Deposit Agreement and the Receipts, except for any liability arising out of the
willful misconduct, negligence or bad faith on the part of any such person or
persons. The obligations of the Company set forth in this Section 5.6 shall
survive any succession of any Depositary, Registrar or Depositary's Agent or
termination of this Deposit Agreement.
SECTION 5.7. Fees, Charges and Expenses. No charges or expenses of the
Depositary or any Depositary's Agent hereunder shall be payable by any person,
except as provided in this Section 5.7. The Company shall pay all transfer and
other taxes and governmental charges arising solely from the existence of this
Deposit Agreement. The Company shall also pay all fees and expenses of the
Depositary in connection with the initial deposit of the Preferred Stock and the
initial issuance of the Depositary Shares evidenced by the Receipts, any
redemption of the Preferred Stock at the option of the Company, any purchase of
Preferred Stock by the Company as contemplated by Section 2.10 hereof, and all
withdrawals of the Preferred Stock by holders of Depositary Shares. 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
19
performance thereof. Such holder will be liable for the charges and expenses
related to such performance. All other fees and expenses of the Depositary and
any Depositary's Agent hereunder and of any Registrar (including, in each case,
fees and expenses of counsel) incident to the performance of their respective
obligations hereunder will be promptly paid as agreed between the Depositary and
the Company from time to time. The Depositary shall present its statement for
fees and expenses to the Company every month or at such other intervals as the
Company and the Depositary may agree.
ARTICLE VI
AMENDMENT AND TERMINATION
SECTION 6.1. Amendment. The Receipts and any provision of this Deposit
Agreement (including any provision of the form of Receipt attached as Exhibit A
hereto) may at any time and from time to time be amended by agreement between
the Company and the Depositary in any respect that they may deem necessary or
desirable; provided, however, that no such amendment which (i) shall materially
and adversely alter the rights of the holders of Receipts or (ii) would be
materially and adversely inconsistent with the rights granted to the holders of
the Preferred Stock pursuant to the Certificate of Designation shall be
effective unless such amendment shall have been approved by the holders of
Receipts evidencing at least two-thirds of the Depositary Shares then
outstanding. In no event shall any amendment impair the right, subject to the
provisions of Section 2.6, Section 2.7 and Article III hereof, of any holder of
any Depositary Shares to surrender the Receipt evidencing such Depositary Shares
with instructions to the Depositary to deliver to the holder the deposited
Preferred Stock 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 thereto) or (ii) the holders of Receipts evidencing at least a
majority of the outstanding Depositary Shares consent to such termination,
whereupon the Depositary shall deliver or make available to each holder of a
Receipt, upon surrender of the Receipt held by such holder, such number of whole
or fractional shares of deposited Preferred Stock as are represented by the
Depositary Shares evidenced by such Receipt, together with any cash or other
property held by the Depositary in respect of such Receipt. In the event that
this Deposit Agreement is terminated pursuant to clause (i) of the immediately
preceding sentence, the Company hereby agrees to use its best efforts to list
the Preferred Stock issued upon surrender of the Receipts evidencing the
Depositary Shares represented thereby on a national securities exchange. This
Deposit Agreement will automatically terminate if (i) all outstanding Depositary
Shares shall have
20
been redeemed pursuant to Section 2.3 or (ii) there shall have been made a final
distribution in respect of the deposited Preferred Stock in connection with any
liquidation, dissolution or winding up of the Company and such distribution
shall have been distributed to the holders of Receipts entitled thereto.
Upon the termination of this Deposit Agreement, the Company shall be
discharged from all obligations under this Deposit Agreement except for its
obligations to the Depositary, any Depositary's Agent and any Registrar under
Section 5.6 and Section 5.7.
ARTICLE VII
MISCELLANEOUS
SECTION 7.1. Counterparts. This Deposit Agreement may be executed in any
number of counterparts, and by each of the parties hereto on separate
counterparts, each of which counterparts, when so executed and delivered, shall
be deemed an original, but all such counterparts taken together shall constitute
one and the same instrument. Delivery of an executed counterpart of a signature
page to this Deposit Agreement by telecopier shall be effective as delivery of a
manually executed counterpart of this Deposit Agreement. 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[, the
New York 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 shall be or
become invalid, illegal or unenforceable in any respect, the validity, legality
and enforceability of the remaining provisions contained herein or therein shall
in no way be affected, prejudiced or disturbed thereby.
SECTION 7.4. Notices. Any and all notices to be given to the Company
hereunder or under the Receipts shall be in writing and shall be deemed to have
been duly given personally delivered or sent by mail, by overnight courier, or
by telegram or facsimile transmission confirmed by letter, addressed to the
Company at:
21
Meditrust Corporation
000 Xxxxx Xxxxxx
Xxxxxxx Xxxxxxx, Xxxxxxxxxxxxx 00000-0000
Attention: Xxxxxxx X. Xxxxxxxx
Telephone No.: (000) 000-0000
or at any other address of which the Company shall have notified the Depositary
in writing.
Any notices to be given to the Depositary hereunder or under the Receipts
shall be in writing and shall be deemed to have been duly given if personally
delivered or sent by mail, by overnight courier, or by telegram or telex or
telecopier confirmed by letter, addressed to the Depositary at the Corporate
Office.
Any notices given to any record holder of a Receipt hereunder or under the
Receipts shall be in writing and shall be deemed to have been duly given if
personally delivered or sent by mail, by overnight courier, or by telegram or
telex or telecopier confirmed by letter, addressed to such record 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 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.
22
SECTION 7.8. Inspection of Deposit Agreement and Certificate of
Designation. Copies of this Deposit Agreement and the Certificate of Designation
shall be filed with the Depositary and the Depositary's Agents and shall be open
to inspection during business hours at the Corporate Office[, the New York
Office] and the respective offices of the Depositary's Agents, if any, by any
holder of any Receipt.
SECTION 7.9. Headings. The headings of articles and sections in this
Deposit Agreement (including Exhibit A hereto) and in the Receipts have been
inserted for convenience only and are not to be regarded as a part of this
Deposit Agreement or to have any bearing upon the meaning or interpretation of
any provision contained herein or in the Receipts.
23
IN WITNESS WHEREOF, Meditrust Corporation and * have duly executed this
Deposit Agreement as of the day and year first above set forth and all holders
of Receipts shall become parties hereto by and upon acceptance by them of
delivery of Receipts issued in accordance with the terms hereof.
MEDITRUST CORPORATION
By: ________________________________
Name:
Title:
*
By: ________________________________
Name:
Title:
24
EXHIBIT A
Form of Receipt
Exhibit A
[FORM OF FACE OF RECEIPT]
[Point for company counsel: The following legend should also appear on the
Preferred Stock Certificate.] The Company will furnish to any holder hereof who
so requests and any other stockholder who so requests, without charge, the
powers, designations, preferences and relative, participating, optional or other
special rights of each class of stock or series thereof and the qualifications,
limitations or restrictions of such preferences and/or rights. The Company will
also furnish without charge to each holder hereof who so requests, without
charge, a copy of the Deposit Agreement (as defined below) and a copy of the
Certificate of Designation with respect to the Stock (as defined below) of the
Company. Any such request be made to the Secretary of the Company at its
principal office or to the Depositary (as defined below).
The shares of Stock represented by the Depositary Shares (as defined below)
evidenced by this Receipt (as defined below) are subject to restrictions in the
by-laws of the Company which prohibit any person from acquiring or maintaining
any ownership interest in the stock of the Company which is inconsistent with
the requirements of the Internal Revenue Code of 1986, as amended (the "Code"),
pertaining to real estate investment trusts and which permit the Company to
purchase from any stockholder such number of shares sufficient to maintain or
bring the ownership of stock of the Company into conformity with such
requirements of the Code. The Deposit Agreement provides that this Receipt and
the Depositary Shares evidenced by this Depositary Receipt are subject to the
foregoing provisions of the Company's by-laws as if the holder hereof owned the
shares (including fractional shares) of Stock represented by such Depositary
Shares directly, and this Receipt and the Depositary Shares evidenced hereby are
therefore subject to the restrictions on ownership and transfer set forth in,
and may be purchased by the Company in accordance with, the provisions and
restrictions in its by-laws referred to above. The holder of this Receipt by his
or her acceptance hereof consents to be bound by such provisions and
restrictions.
DRC- This Depositary Receipt is transferable in [ ] or
New York, New York.
CUSIP See reverse for certain definitions.
DEPOSITARY RECEIPT FOR DEPOSITARY SHARES
EACH REPRESENTING 1/[ ]TH OF A SHARE OF
[ ]% SERIES A CUMULATIVE REDEEMABLE PREFERRED STOCK
OF
MEDITRUST CORPORATION
(a Delaware corporation)
[ ], as Depositary (the "Depositary", which term includes any successor
depositary under the Deposit Agreement referred to below), hereby certifies that
____________________________________ is the registered owner of ____________
DEPOSITARY SHARES ("Depositary Shares"), each Depositary Share representing 1/[
] of one share of [ ]% Series A Cumulative Redeemable Preferred Stock, par value
$0.10 per share (the "Stock"), of Meditrust Corporation, a Delaware corporation
(the "Company", which term, as used herein, includes it successors), on deposit
with the Depositary, subject to the terms and entitled to the benefits of the
Deposit Agreement dated as of [ ], 1998 (as the same may be amended or
supplemented from time to time, the "Deposit Agreement") among the Company, the
Depositary and the holders from time to time of depositary receipts ("Receipts")
issued thereunder. By accepting this Receipt, the holder hereof becomes a party
to and agrees to be bound by all the terms and conditions of the Deposit
Agreement. This Receipt shall not be valid or obligatory for any purpose or
entitled to any benefits under the Deposit Agreement unless it shall have been
executed by the Depositary by the manual signature of a duly authorized
signatory of the Depositary, provided that, if a Registrar in respect of the
Receipts (other than the Depositary) shall have been appointed, then this
Receipt may be signed by the facsimile signature of a duly authorized signatory
of the Depository so long as it is countersigned by the manual signature of a
duly authorized signatory of such Registrar. [Point for the Depositary: note
that the Receipts must be manually executed by the Depositary.]
This Receipt is continued on the reverse hereof and the additional
provisions therein set forth (including, without limitation, those relating to
redemption) for all purposes have the same effect as if set forth at this place.
Dated:
[ ],
as Depositary, Transfer Agent and Registrar
By:
------------------------------------------
Authorized Signatory
10351\00071\79585.4
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[FORM OF REVERSE OF RECEIPT]
MEDITRUST CORPORATION
1. The Deposit Agreement. Receipts, of which this Receipt is one, are made
available upon the terms and conditions set forth in the Deposit Agreement (as
defined on the face hereof). The Deposit Agreement (copies of which are on file
at the Corporate Office of the Depositary and at the office of any agent of the
Depositary) sets forth the rights of holders of Receipts and the rights and
duties of the Depositary. The statements made on the face and the reverse of
this Receipt are summaries of certain provisions of the Deposit Agreement and
are subject to the detailed provisions thereof, to which reference is hereby
made. In the event of any conflict between the provisions of this Receipt and
the provisions of the Deposit Agreement, the provisions of the Deposit Agreement
will govern.
2. Definitions. Unless otherwise expressly herein provided, all defined
terms used in this summary of the Deposit Agreement shall have the meanings
ascribed thereto in the Deposit Agreement.
3. Redemption of Stock. Whenever the Company shall elect to redeem shares
of Stock, it shall (unless otherwise agreed in writing with the Depositary) give
the Depositary not less than 60 days' notice of the date of such proposed
redemption and of the number of such shares of Stock held by the Depositary to
be redeemed and the applicable redemption price. The Depositary shall mail,
first-class postage prepaid, notice furnished by the Company of the redemption
of Stock and the proposed simultaneous redemption of Depositary Shares
representing the Stock to be redeemed, not less than 30 and not more than 60
days prior to the date fixed for redemption of such Stock and Depositary Shares,
to the holders of record on the record date fixed for such redemption pursuant
to the Deposit Agreement of the Receipts evidencing the Depositary Shares to be
so redeemed, at the addresses of such holders as the same appear on the records
of the Depositary. Any such notice shall also be published in the manner
specified in the Deposit Agreement. On the date of such redemption, the
Depositary shall redeem the number of Depositary Shares representing such Stock
so called for redemption; provided, that the Company shall then have paid in
full to the Depositary the cash redemption price of the Stock to be redeemed
(including any accrued and unpaid dividends (including, without limitation
accumulated dividends, if any, for prior dividend periods) to the date of
redemption). If fewer than all the outstanding Depositary Shares are to be
redeemed, the Depositary Shares to be redeemed shall be selected pro rata or by
lot or by any other equitable method determined by the Company that will not
give the Company the right to purchase Receipts, Depositary Shares or shares of
Stock represented by such Depositary Shares pursuant to any provisions in its
by-laws or Certificate of Incorporation allowing the purchase or redemption of
its capital stock to preserve the status of the Company as a real estate
investment trust for federal income tax purposes. Notice having been mailed as
aforesaid, from and after the redemption date (unless the Company shall have
failed to redeem the shares of Stock to be redeemed by it as set forth in the
notice of redemption and to pay in full the redemption price therefor (including
accrued and unpaid dividends (including accumulated dividends, if any, for prior
dividend periods)), all dividends in respect of the shares of Stock
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called for redemption shall cease to accrue, the Depositary Shares called for
redemption shall be deemed no longer to be outstanding and all rights of the
holders of Receipts evidencing such Depositary Shares (except the right to
receive the redemption price together with accrued and unpaid dividends, if any,
thereon (including, without limitation, accumulated dividends, if any, for prior
dividend periods) and any other moneys or property to which holders of such
Receipts were entitled upon such redemption) shall, to the extent of such
Depositary Shares, cease and terminate. Upon surrender in accordance with said
notice of the Receipts evidencing such Depositary Shares (properly endorsed or
assigned for transfer, if the Depositary shall so require), such Depositary
Shares shall be redeemed at a cash redemption price per Depositary Share of $25,
plus 1/[ ]th of the accrued and unpaid dividends (including, without limitation,
accumulated dividends, if any, for prior dividend periods) on one share of Stock
to the date fixed for redemption, plus 1/[ ]th of any other money and other
property payable in respect of one such share of Stock. The foregoing is subject
to the further terms and conditions of the Certificate of Designation. If fewer
than all of the Depositary Shares evidenced by this Receipt are called for
redemption, the Depositary will deliver to the holder of this Receipt upon its
surrender to the Depositary, together with the redemption payment, a new Receipt
evidencing the Depositary Shares evidenced by such prior Receipt and not called
for redemption.
4. Surrender of Receipts and Withdrawal of Stock. Upon surrender of this
Receipt to the Depositary at the Corporate Office[, the New York Office] or at
such other office as the Depositary may designate, and subject to the provisions
of the Deposit Agreement, the holder hereof is entitled to withdraw, and to
obtain delivery, without unreasonable delay, to or upon the order of such
holder, any or all of the Stock (in whole or fractional shares of Stock) and all
money and other property, if any, represented by the Depositary Shares evidenced
by this Receipt; provided, however, that, in the event this Receipt shall
evidence a number of Depositary Shares in excess of the number of Depositary
Shares representing the number of whole or fractional shares of deposited Stock
to be withdrawn, the Depositary shall at the same time, in addition to such
number of whole or fractional shares of Stock and such money and other property,
if any, to be withdrawn, deliver to or upon the order of such holder, a new
Receipt or Receipts evidencing such excess number of Depositary Shares.
5. Transfers, Split-Ups, Combinations. Subject to the Deposit Agreement,
this Receipt is transferable on the books of the Depositary upon surrender of
this Receipt by the holder hereof in person or by a duly authorized attorney to
the Depositary, properly endorsed or accompanied by a properly executed
instrument of transfer or endorsement, together with evidence of the payment of
any transfer taxes as may be required by law. Upon such surrender the Depositary
shall sign and deliver a Receipt or Receipts to or upon the order of the person
entitled thereto, all as provided in and subject to the Deposit Agreement.
Subject to the terms of the Deposit Agreement, this Receipt may be split into
other Receipts or combined with other Receipts into one Receipt evidencing the
same aggregate number of Depositary Shares evidenced by the Receipt or Receipts
surrendered; provided, however, that the Depositary shall not issue any Receipt
evidencing a fractional Depositary Share.
6. Conditions to Signing and Delivery, Transfer, etc. of Receipts. As a
condition precedent to the execution and delivery, transfer, split-up,
combination, surrender or exchange of this Receipt, the Depositary, any of the
Depositary's Agents or the Company may
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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 Stock being deposited or withdrawn); (ii) production of proof
satisfactory to it as to the identity and genuineness of any signature (or the
authority of any signature); and (iii) compliance with such reasonable
regulations, if any, as the Depositary or the Company may establish consistent
with the provisions of the Deposit Agreement or as may be required by any
securities exchange upon which the deposited Stock, the Depositary Shares or the
Receipts may be included for quotation or listed.
7. Suspension of Delivery, Transfer, etc. The deposit of Stock may be
refused, the delivery of this Receipt against Stock may be suspended, the
transfer of Receipts may be refused, and the transfer, split-up, combination,
surrender or exchange of this Receipt may be suspended (i) during any period
when the register of stockholders of the Company is closed or (ii) if any such
action is deemed reasonably necessary or advisable by the Depositary, any of the
Depositary's Agents or the Company at any time or from time to time because of
any requirement of law or of any government or governmental body or commission,
or under any provision of the Deposit Agreement.
8. Amendment. The Receipts and any provision of the Deposit Agreement
(including any provision of the form of Receipt attached as an exhibit thereto)
may at any time and from time to time be amended by agreement between the
Company and the Depositary in any respect that they may deem necessary or
desirable; provided, however, that no such amendment which (i) shall materially
and adversely alter the rights of holders of Receipts or (ii) would be
materially and adversely inconsistent with the rights granted to the holders of
the Stock pursuant to the Certificate of Designation shall be effective unless
such amendment shall have been approved by the holders of at least two-thirds of
the Depositary Shares evidenced by Receipts then outstanding. The holder of this
Receipt at the time any such amendment becomes effective shall be deemed, by
continuing to hold this Receipt, to consent and agree to such amendment and to
be bound by the Deposit Agreement as amended thereby. In no event shall any
amendment impair the right, as provided in the Deposit Agreement, of the owner
of the Depositary Shares evidenced by this Receipt to surrender this Receipt
with instructions to the Depositary to deliver to the holder the deposited Stock
and all money and other property, if any, represented thereby, except in order
to comply with mandatory provisions of applicable law.
9. Charges and Expenses. The Company will pay all transfer and other taxes
and governmental charges arising solely form the existence of the depositary
arrangement, except such charges as are expressly provided in the Deposit
Agreement to be at the expense of holders of Receipts.
10. Title to Receipts. Title to this Receipt (and to the Depositary Shares
evidenced hereby), when properly endorsed or accompanied by a properly executed
instrument of transfer or endorsement, is transferable by delivery with the same
effect as in the case of a negotiable instrument; provided, however, that until
this Receipt is transferred on the books of the Depositary as provided in the
Deposit Agreement, the Depositary may, notwithstanding any notice to the
contrary, treat the record holder hereof at such time as the absolute owner
hereof
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for the purpose of determining the person entitled to distribution of dividends
or other distributions or to any notice provided for in the Deposit Agreement
and for all other purposes.
11. Dividends and Distributions. Whenever the Depositary shall receive any
cash dividend or other cash distribution on the deposited Stock, the Depositary
shall, subject to the provisions of the Deposit Agreement, distribute to record
holders of Receipts on the record date fixed pursuant to the Deposit Agreement
such amounts of such sums as are, as nearly as practicable, in proportion to the
respective numbers of Depositary Shares evidenced by the Receipts held by such
holders; provided, however, that in case the Company or the Depositary shall be
required by law to withhold and shall withhold from any cash dividend or other
cash distribution in respect of the Stock represented by the 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. The
Depositary shall distribute or make available for distribution, as the case may
be, only such amount, however, as can be distributed without attributing to any
holder of Receipts a fraction of one cent, and any balance not so distributable
shall be held by the Depositary (without liability for interest thereon) and
shall be added to and be treated as part of the next sum received by the
Depositary for distribution to record holders of Receipts then outstanding.
Notwithstanding the foregoing, (i) if less than all of the outstanding
Depositary Shares are to be redeemed and the Depositary Shares to be so redeemed
are not selected pro rata, then only the record holders of the Receipts
evidencing the Depositary Shares selected for redemption will be entitled to
receive the cash redemption price therefor or any other amounts payable upon
such redemption; and (ii) if any Depositary Shares are purchased pursuant to
Section 2.10 of the Deposit Agreement, then only the record holders of the
Receipts evidencing such Depositary Shares shall be entitled to receive the
purchase price therefor or any other amounts payable upon such purchase.
12. Subscription Rights, Preferences or Privileges. If the Company shall at
any time offer or cause to be offered to the persons in whose names deposited
Stock is registered on the books of the Company any rights, preferences or
privileges to subscribe for or to purchase any securities or any rights,
preferences or privileges of any other nature, such rights, preferences or
privileges shall in each such instance, subject to the provisions of the Deposit
Agreement, be made available by the Depositary to the record holders of Receipts
in such manner as the Company shall instruct (including by the issue to such
record holders of warrants representing such rights, preferences and
privileges).
13. Notice of Distributions, Fixing of Record Date. Whenever any cash
dividend or other cash distribution shall become payable, any distribution other
than cash shall be made, or any rights, preferences or privileges shall at any
time be offered with respect to the deposited Stock, or whenever the Depositary
shall receive notice of (i) any meeting at which holders of such Stock are
entitled to vote or of which holders of such Stock are entitled to notice or
(ii) any election on the part of the Company to redeem any such shares of Stock,
the Depositary shall in each such instance fix a record date (which shall be the
same date as the record date fixed by the Company with respect to the Stock) for
the determination of the holders of Receipts who shall be entitled (x) to
receive such dividend, distribution, rights, preferences or privileges or the
net proceeds of the sale thereof, or (y) to give instructions for the exercise
A-5
of voting rights at any such meeting or to receive notice of such meeting or
whose Depositary Shares are to be so redeemed.
14. Voting Rights. Upon receipt of notice of any meeting at which the
holders of deposited Stock are entitled to vote, the Depositary, as soon as
practicable thereafter, shall mail to the record holders of Receipts a notice,
which shall be provided by the Company and which shall contain (i) such
information as is contained in such notice of meeting, (ii) a statement that the
holders of Receipts at the close of business on a specified date fixed as
provided in the Deposit Agreement will be entitled, subject to any applicable
provisions of law, to instruct the Depositary as to the exercise of the voting
rights pertaining to the Stock represented by their respective Depositary Shares
and (iii) a brief statement as to the manner in which such instructions may be
given. Upon the written request of a holder of this Receipt on such record date,
the Depositary shall vote or cause to be voted the Stock represented by the
Depositary Shares evidenced by this Receipt in accordance with the instructions
set forth in such request. The Company hereby agrees to take all reasonable
action that may be deemed necessary by the Depositary in order to enable the
Depositary to vote such Stock or cause such Stock to be voted. In the absence of
specific instructions from the holder of this Receipt, the Depositary will
abstain from voting to the extent of the Stock represented by the Depositary
Shares evidenced by this Receipt. The Depositary shall not be required to
exercise discretion in voting the Stock represented by the Depositary Shares
evidenced by this Receipt.
15. Reports, Inspection of Transfer Books. The Depositary shall transmit to
the record holders of Receipts at the addresses recorded in the Depositary's
books copies of all notices and reports (including financial statements)
required by law, by the rules of any national securities exchange upon which the
Stock, the Depositary Shares or the Receipts are included for quotation or
listed or by the Certificate of Incorporation, the Company's by-laws or the
Certificate of Designation to be furnished by the Company to holders of the
deposited Stock that are received by the Depositary from the Company. The
Depositary shall keep books at the [New York Office/Corporate Office] for the
registration and transfer of Receipts, which books at all reasonable times will
be open for inspection by the record holders of Receipts.
16. Liability of the Depositary, the Depositary's Agents, the Registrar and
the Company. Neither the Depositary, any Depositary's Agent, any Registrar nor
the Company shall incur any liability to any holder of this Receipt, if by
reason of any provision of any present or future law or regulation thereunder of
the United States of America or of any other governmental authority or, in the
case of the Depositary, any Depositary's Agent or any Registrar, by reason of
any provision, present or future, of the Certificate of Incorporation or the
Certificate of Designation or, in the case of the Company, the Depositary, any
Depositary's Agent or any Registrar, by reason of any act of God or war or other
circumstances beyond the control of the relevant party, the Depositary, any
Depositary's Agent, any Registrar or the Company shall be prevented or forbidden
from doing or performing any act or thing that the terms of the Deposit
Agreement provide shall be done or performed; nor shall the Depositary, any
Depositary's Agent, any Registrar or the Company incur any liability to any
holder of this Receipt by reason of any nonperformance or delay, caused as
aforesaid, in the performance of any act or thing that the terms of the Deposit
Agreement provide shall or may be done or
A-6
performed, or by reason of any exercise of, or failure to exercise, any
discretion provided for in the Deposit Agreement.
17. Obligations of the Depositary's Agents, the Registrar and the Company.
Neither the Depositary, any Depositary's Agent, any Registrar nor the Company
assumes any obligation or shall be subject to any liability under the Deposit
Agreement or this Receipt to the holder hereof other than from acts or omissions
arising out of conduct constituting bad faith, negligence or wilful misconduct
in the performance of such duties as are specifically set forth in the Deposit
Agreement.
Neither the Depositary, any Depositary's Agent, any Registrar nor the
Company shall be under any obligation to appear in, prosecute or defend any
action, suit or other proceeding with respect to the deposited Stock, Depositary
Shares or Receipts that in its reasonable opinion may involve it in expense or
liability, unless indemnity reasonably satisfactory to it against all expense
and liability be furnished as often as may be reasonably required.
Neither the Depositary, any Depositary's Agent, any Registrar nor the
Company shall be liable for any action or any failure to act by it in reliance
upon the written advice of legal counsel or accountants, or information provided
by any person presenting Stock for deposit, any holder of this Receipt or any
other person believed by it in good faith to be competent to give such
information. The Depositary, any Depositary's Agent, any Registrar and the
Company may each rely and shall each be protected in acting upon any written
notice, request, direction or other document believed by it in good faith to be
genuine and to have been signed or presented by the proper party or parties.
18. Termination of Deposit Agreement. The Deposit Agreement may be
terminated by the Company upon not less than 30 days' prior written notice to
the Depositary if (i) such termination is necessary to preserve the Company's
status as a real estate investment trust under the Internal Revenue Code of
1986, as amended (or any successor thereto) or (ii) the holders of Receipts
evidencing a majority of the outstanding Depositary Shares consent to such
termination, whereupon the Depositary shall deliver or make available to each
holder of a Receipt, upon surrender of the Receipt held by such holder, such
number of whole or fractional shares of deposited Stock as are represented by
the Depositary Shares evidenced by such Receipt, together with any cash or other
property held by the Depositary in respect of such Receipt. In the event that
the Deposit Agreement is terminated pursuant to clause (i) of the immediately
preceding sentence, the Company has agreed in the Deposit Agreement to use its
best efforts to list the Stock issued upon surrender of the Receipts evidencing
the Depositary Shares represented thereby on a national securities exchange.
Upon the termination of the Deposit Agreement, the Company shall be discharged
of all obligations thereunder except for its obligations to the Depositary, any
Depositary's Agent and any Registrar under Sections 5.6 and 5.7 of the Deposit
Agreement.
19. Governing Law. The Deposit Agreement and this Receipt and all rights
thereunder and hereunder and provisions thereof and hereof shall be governed by,
and construed in accordance with, the law of the State of New York applicable to
agreements made and to be performed in said State.
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The following abbreviations when used in the instructions on
the face of this Receipt shall be construed as though they were written out in
full according to applicable laws or regulations.
TEN COM - as tenant in common
TEN ENT - as tenants by the entireties
JT TEN - as joint tenants with right of
survivorship and not as
tenants in common
UNIF GIFT MIN ACT - ____________ Custodian ____________
(Cust)
Under Uniform Gifts to Minors Act
(State)
Additional abbreviations may also be used though not in the above list.
ASSIGNMENT
For value received,
---------------------------------------------------
hereby sell(s), assign(s) and transfers) unto
----------------------------------
PLEASE INSERT SOCIAL SECURITY OR OTHER IDENTIFYING NUMBER OF ASSIGNEE
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
PLEASE PRINT OR TYPEWRITE NAME AND ADDRESS
INCLUDING POSTAL ZIP CODE OF ASSIGNEE
Depositary Shares represented by the
------------------------------------
within Receipt, and do(es) hereby irrevocably constitute and appoint
----------------------------------------------------------------Attorney to
transfer the said Depositary Shares on the books of the within named
Depositary with full power of substitution in the premises.
Dated:
----------------------- Notice: The signature to the assignment
must correspond with the name
as written upon the face of
this Receipt in every
particular, without alteration
or enlargement or any change
whatever.
Signature(s) Guaranteed:
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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-8
