EXHIBIT 4.16
DEPOSIT AGREEMENT
DEPOSIT AGREEMENT, dated as of May 14, 1998 among Kimco Realty
Corporation, a Maryland corporation, BankBoston, N.A., a national banking
association, 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 by the Company of the Class D
Preferred Stock (as hereinafter defined) with the Depositary for the
purposes set forth in this Deposit Agreement and for the issuance
hereunder of the Receipts evidencing Depositary Shares each representing
a one-tenth fractional interest in a share of Class D Preferred Stock so
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 1. DEFINITIONS
Except as otherwise defined herein, capitalized terms used in
this Agreement shall have the meanings which such terms have in the
Articles Supplementary. The following definitions shall apply to the
respective terms (in the singular and plural forms of such terms) used in
this Deposit Agreement and the Receipts:
SECTION 1.1. "Aggregate Stock Ownership Limit" shall have the meaning
ascribed to such term in the Articles Supplementary.
SECTION 1.2. "Articles Supplementary" shall mean the Articles
Supplementary, as amended from time to time, of the Company, including
the Articles Supplementary establishing the preferences, limitations and
relative rights of the Class D Preferred Stock to be filed with the
State Department of Assessments and Taxation of Maryland.
SECTION 1.3. "Class D Excess Preferred Stock" shall mean the
Class D Excess Preferred Stock of the Company described in paragraph G of
Article First of the Articles Supplementary.
SECTION 1.4. "Class D Preferred Stock" shall mean the Company's
7.5% Class D Cumulative Convertible Preferred Stock, liquidation preference
$250.00 per share (including fractions thereof).
SECTION 1.5. "Common Stock" shall mean the Company's common
stock, par value $.01 per share.
SECTION 1.6. "Company" shall mean Kimco Realty Corporation, a
Maryland corporation, and its successors.
SECTION 1.7. "Corporate Office" shall mean the corporate office
of the Depositary at which at any particular time its business in respect
of matters governed by this Deposit Agreement shall be administered,
which at the date of this Deposit Agreement is located at the office of its
service agent, Boston EquiServ Limited Partnership, 000 Xxxxxx Xxxxxx, Xxxxxx,
XX 00000.
SECTION 1.8. "Deposit Agreement" shall mean this Agreement, as
the same may be amended, modified or supplemented from time to time.
SECTION 1.9. "Depositary" shall mean BankBoston, N.A., a
national banking association 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.
SECTION 1.10. "Depositary Share" shall mean the one-tenth fractional
interest in a share of Class D Preferred Stock deposited with the Depositary and
the same proportionate interest in any and all other property received by the
Depositary in respect of such share of Class D Preferred Stock, subject to the
terms of this Deposit Agreement, all as evidenced by the Receipts issued
hereunder. As provided in this Deposit Agreement, each Holder of a Receipt
evidencing a Depositary Share is granted and shall have the proportionate
rights, preferences and privileges of the Class D Preferred Stock represented by
such Depositary Share, including the dividend, voting, redemption, conversion
and liquidation rights contained in the Articles Supplementary.
SECTION 1.11. "Depositary's Agent" shall mean an agent appointed
by the Depositary as provided, and for the purposes specified, in Section
7.5.
SECTION 1.12. "Ownership Limit" shall have the meaning ascribed
to such term in the Articles Supplementary.
SECTION 1.13. "Receipt" shall mean a Depositary Receipt issued
hereunder to evidence one or more Depositary Shares, whether in
definitive or temporary form, substantially in the form set forth as
Exhibit A hereto.
SECTION 1.14. "Record Holder" or "Holder" shall mean the person
in whose name a Receipt and related Depositary Shares or the deposited
shares of Class D Preferred Stock or Class D Excess Preferred Stock
represented thereby, as the case may be, is registered on the books
maintained by the Depositary for such purpose.
SECTION 1.15. "Registrar" shall mean BankBoston, N.A. or any
bank or trust company appointed to register ownership and transfers of
Receipts or the deposited shares of Class D Preferred Stock or Class D
Excess Preferred Stock, as the case may be, as herein provided.
SECTION 1.16. "Securities Act" shall mean the Securities Act of
1933, as amended.
SECTION 1.17. "Transfer Agent" shall mean the Depositary or any
bank or trust company appointed to transfer the Receipts or the deposited
shares of Class D Preferred Stock or Class D Excess Preferred Stock, as
the case may be, as herein provided.
ARTICLE 2. FORM OF RECEIPTS, DEPOSIT OF CLASS D PREFERRED STOCK,
EXECUTION AND DELIVERY, TRANSFER, CONVERSION, SURRENDER
AND REDEMPTION OF RECEIPTS
SECTION 2.1. Form and Transferability of Receipts. Definitive
Receipts shall be engraved or otherwise prepared so as to comply with the
applicable rules of The New York Stock Exchange, Inc. ("NYSE") or any
other securities exchange upon which the Class D Preferred Stock,
Depositary Shares or Receipts may be listed or included for quotation 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,
mimeographed or otherwise substantially of the tenor of the definitive
Receipts in lieu of which they are issued and with such appropriate
insertions, omissions, substitutions and other variations as the persons
executing such Receipts may determine, as evidenced by their execution of
such Receipts. If temporary Receipts are issued, the Company and the
Depositary will cause definitive Receipts to be prepared without
unreasonable delay. After the preparation of definitive Receipts, the
temporary Receipts shall be exchangeable for definitive Receipts upon
surrender of the temporary Receipts at the Corporate Office or such other
offices, if any, as the Depositary may designate, without charge to the
Holder. Upon surrender for cancellation of any one or more temporary
Receipts, the Depositary shall execute and deliver in exchange therefor
definitive Receipts representing the same number of Depositary Shares as
represented by the surrendered temporary Receipt or Receipts. Such
exchange shall be made at the Company's expense and without any charge to the
Holders 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 Class D Preferred Stock deposited, as definitive
Receipts.
Receipts shall be executed by the Depositary by the manual or
facsimile signature of a duly authorized signatory of the Depositary,
provided that if a Registrar (other than the Depositary) shall have been
appointed then such Receipts shall also be countersigned by manual
signature of a duly authorized signatory of the Registrar. No Receipt
shall be entitled to any benefits under this Deposit Agreement or be
valid or obligatory for any purpose unless it shall have been executed as
provided in the preceding sentence. The Depositary shall record on its
books each Receipt executed as provided above and delivered as
hereinafter provided.
Except as the Depositary may otherwise determine, Receipts shall
be in denominations of any number of whole Depositary Shares. All
Receipts shall be dated the date of their issuance.
Receipts may be endorsed with or have incorporated in the text
thereof such legends or receipts 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 Class D
Preferred Stock, the Depositary Shares or the Receipts may be listed or
included for quotation, or to conform with any usage with respect
thereto, or to indicate any special limitations or restrictions to which
any particular Receipts are subject.
Subject to the Ownership Limitation contained in the Articles
Supplementary and made applicable to the Depositary Shares hereunder,
title to any Receipt (and to the Depositary Shares evidenced by such
Receipt) that is properly endorsed or accompanied by a properly executed
instrument or 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 2.5 the Depositary may, notwithstanding
any notice to the contrary, treat the Record Holder thereof at such time
as the absolute owner thereof for the purpose of determining the person
entitled to distribution of dividends or other distributions, the
exercise of any conversion rights or to any notice provided for in this
Deposit Agreement and for all other purposes.
Ownership and transfer of the Depositary Shares (and the interests in
the deposited shares of Class D Preferred Stock relating to such Depositary
Shares) are limited and restricted to the extent necessary to prevent violation
of the Ownership Limit or Aggregate Stock Ownership Limit. Any purported
ownership or transfer of such Depositary Shares in violation of the Ownership
Limit or Aggregate Stock Ownership Limit shall be void ab initio or shall result
in such other consequences as may be set forth in the Articles Supplementary
with respect to such violations.
SECTION 2.2. Deposit of Class D Preferred Stock; Execution and
Delivery of Receipts in Respect Thereof. The Company shall deliver to the
Depositary a certificate or certificates, registered in the name of the
Depositary and evidencing up to 700,000 shares of Class D 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 shares of Class D Preferred
Stock as provided in this Deposit Agreement. The Depositary shall
acknowledge receipt of the deposited shares of Class D Preferred Stock
and related documentation and agrees to hold such deposited shares of
Class D 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 shares of Class D Preferred Stock deposited
hereunder and any Class D Excess Preferred Stock which may be issued as
described in Section 2.11 of this Agreement, and the Depositary hereby
accepts such appointment and, as such, will reflect changes in the number
of shares (including any fractional shares) of deposited shares of Class
D Preferred Stock held by it by notation, book-entry or other appropriate
method.
If required by the Depositary, shares of Class D Preferred Stock
presented for deposit by the Company at any time, whether or not the
register therefor is closed, shall also be accompanied by an agreement or
assignment, or other instrument satisfactory to the Depositary, that will
provide for the prompt transfer to the Depositary or its nominee of any
dividend or right to subscribe for additional shares of Class D Preferred
Stock or to receive other property that any person in whose name the
shares of Class D Preferred Stock are or have been registered may
thereafter receive upon or in respect
of such deposited shares of Class D Preferred Stock, or in lieu thereof
such agreement of indemnity or other agreement as shall be satisfactory
to the Depositary.
Upon receipt by the Depositary of a certificate or certificates
for shares of Class D Preferred Stock deposited hereunder, together with
the other documents specified above, and upon registering such shares of
Class D 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 shares of Class D 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 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 Class D Preferred Stock, or in the case
of dividends or other distributions of Class D Preferred Stock, if any,
there shall be deposited hereunder not more than the number of shares
constituting the Class D Preferred Stock as set forth in the Articles
Supplementary, as such may be amended.
The Company shall deliver to the Depositary from time to time
such quantities of Receipts as the Depositary may request to enable the
Depositary to perform its obligations under this Deposit Agreement.
SECTION 2.3. Redemption of Class D Preferred Stock. Whenever the
Company shall elect to redeem deposited shares of Class D Preferred Stock for
shares of Common Stock in accordance with paragraph D of the Articles
Supplementary, it shall (unless otherwise agreed in writing with the Depositary)
give the Depositary not less than 30 days' prior written notice of the date of
such proposed redemption and of the number of such deposited shares of Class D
Preferred Stock to be redeemed and the applicable conversion rate, as set forth
in the Articles Supplementary, including the amount, if any, of accrued and
unpaid dividends to the date of such redemption. The Depositary shall mail,
first-class postage prepaid, notice of the redemption of such shares of Class D
Preferred Stock and the simultaneous redemption of the Depositary Shares
representing such shares of Class D Preferred Stock, not less than 30 and not
more than 60 days prior to the date fixed for redemption (the "Redemption
Date"), to the Holders 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; provided, however, neither failure to give or mail any such
notice to one or more such Holders nor any defect in any such notice shall
affect the validity of the proceedings for redemption except as to any Holders
to whom notice was defective or not mailed or given. The Company shall provide
the Depositary with such notice, and each such notice shall state: the
Redemption Date; the applicable conversion rate; the number of deposited shares
of Class D Preferred Stock and Depositary Shares to be redeemed; if fewer than
all the Depositary Shares held by any Holder are to be redeemed, the number of
such Depositary Shares held by such Holder to be so redeemed; the place or
places where Receipts evidencing Depositary Shares to be redeemed are to be
surrendered in exchange for a certificate or certificates representing the
Common Stock; that any conversion rights with respect to the deposited Class D
Preferred Stock and Depositary Shares to be redeemed shall terminate at the
close of business on the Redemption Date; and that from and after the Redemption
Date dividends in respect of the Class D Preferred Stock represented by the
Depositary Shares to be redeemed will cease to accrue. If fewer than all the
outstanding Depositary Shares are to be redeemed, the Depositary Shares to be
redeemed shall be selected pro rata (as nearly as may be practicable without
creating fractional Depositary Shares) or by any other equitable method
determined by the Company that will not result in any violation of the Ownership
Limit or Aggregate Stock Ownership Limit. The Company shall also cause notice of
redemption to be published in a 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 Redemption Date.
In the event that notice of redemption has been properly given as
described in the immediately preceding paragraph and the Company shall have
irrevocably set aside, for the benefit of the Holders, with the Depositary the
shares of the Common Stock and cash (in lieu of fractional shares and without
interest thereon) to be applied to the redemption (determined pursuant to the
Articles Supplementary) of the Class D Preferred Stock deposited with the
Depositary to be redeemed (including any accrued and unpaid dividends to the
Redemption Date), the Depositary shall redeem the number
of Depositary Shares representing such Class D Preferred Stock so called
for redemption by the Company and from and after the Redemption Date, all
dividends in respect of the deposited Class D 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 shares of Common Stock and cash (in lieu of
fractional shares) to which Holders of the Receipts evidencing such
Depositary Shares 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 the
applicable conversion rate set forth in the Articles Supplementary, plus
the corresponding cash in lieu of fractional shares of Class D Preferred
Stock. The foregoing shall be further subject to the terms and conditions
of the Articles Supplementary.
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, (a) the
number of shares of Common Stock into which the Class D Preferred Stock
is convertable at the applicable conversion rate; (b) all amounts payable
in respect of the Depositary Shares called for redemption; and (c) a new
Receipt evidencing the Depositary Shares evidenced by such prior Receipt
which were not called for redemption.
To the extent the Company delivers payment to the Depositary on
account of the redemption of Class D Preferred Stock pursuant to this
Section 2.3 or pursuant to Section 2.4 of this Deposit Agreement, and the
Receipts evidencing the Depositary Shares are not surrendered by the
Holders thereof to the Depositary on or prior to the Redemption Date:
(a) the Depositary shall hold the funds received by the Depositary on
account of such Class D Preferred Stock for the Holders of such Receipts;
(b) the Holders of Receipts shall have no claim to interest or other
earnings on such funds; and
(c) any balance of funds so received by the Depositary and unclaimed by
the Holders of Receipts entitled thereto at the expiration of two years from the
applicable Redemption Date shall be repaid, to the Company, and after such
repayment the Holders of Receipts entitled to the funds so repaid shall look
only to the Company for payment without interest or other earnings.
The provisions of this Section 2.3 shall apply equally to any
redemption to be effected pursuant to paragraph D of the
Articles Supplementary; provided, however, that in the case of such a
redemption, neither the Company nor the Depositary shall be required to
give any notice prior to effecting such redemption.
SECTION 2.4. Conversion of Deposited Shares of Class D Preferred
Stock into Common Stock. Subject to the provisions of the Articles
Supplementary respecting conversion of shares of Class D Preferred Stock
into Common Stock, Holders of Receipts may direct the Depositary to
convert all of the outstanding deposited shares of Class D Preferred
Stock represented by any whole number of Depositary Shares evidenced by
such Receipts into Common Stock. To effect such a conversion, Holders of
Receipts must surrender the applicable Receipt or Receipts to the
Depositary, together with a duly completed and executed Notice of
Conversion in the form included in the Receipt. The Company and the
Depositary will thereafter effect the cancellation of each Receipt so
surrendered for conversion and of the related Class D Preferred Stock,
and the Company will issue to the Holder effecting such conversion the
number of shares of Common Stock into which such related shares of Class
D Preferred Stock are convertible pursuant to the provisions of the
Articles Supplementary. No fractional shares of Common Stock will be
issued upon conversion and, if conversion would otherwise result in the
issuance of fractional share of Common Stock, an amount will be paid in
cash by the Company equal to the value of such fractional interest, as
determined pursuant to the Articles Supplementary. Notwithstanding the
foregoing, the right to convert any deposited shares of Class D Preferred
Stock evidenced by Receipts shall terminate at the close of business on
the Redemption Date, if any, fixed for such Class D Preferred Stock.
In case any shares of Class D Preferred Stock (and any Receipt
evidencing Depositary Shares representing such shares of Class D
Preferred Stock) are converted after the close of business on a record
date with respect to the payment of a dividend on such Class D Preferred
Stock, and prior to the opening of business on the corresponding Dividend
Payment Date, the dividend due on such Dividend Payment Date shall be
payable on such Dividend Payment Date to the Holder of such shares as of
such record date (and an amount equal to such dividend shall be payable
by the Depositary to the Holder of the corresponding Receipt as of such
date) notwithstanding such conversion. However, Receipts surrendered for
conversion during the period from the close of business on any record
date with respect to the payment of a dividend on the Class D Preferred
Stock to the opening of business on the corresponding Dividend Payment
Date (except in the case of Receipts which are surrendered for conversion
after the issuance of a notice of redemption with respect to such
Receipts) shall be accompanied by payment in New York Clearing House
funds or other funds acceptable to the Company of an amount equal to the
dividend payable on such Dividend Payment Date on the Class D Preferred
Stock represented by the Depositary Shares evidenced by such Receipt so
surrendered for conversion.
In all cases the foregoing shall be conditioned upon compliance
in full by the Holder with the applicable terms and conditions for
conversion of Class D Preferred Stock into Common Stock set forth in the
Articles Supplementary, including the restrictions on ownership, transfer
and conversion set forth therein. Any purported conversion in violation
of such terms and conditions shall be void ab initio, to the extent set
forth in the Articles Supplementary, or shall have such other
consequences as set forth therein.
SECTION 2.5. Registration of Transfers of Receipts. The Company
hereby appoints the Depositary as the Registrar and Transfer Agent for
the Receipts and the Depositary hereby accepts such appointment and, as
such, shall register on its books from time to time transfers of Receipts
upon any 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 2.6. Combinations and Split-Ups of Receipts. Upon
surrender of a Receipt or Receipts at the Corporate Office or such other
office as the Depositary may designate for the purpose of effecting a
split-up or combination of Receipts, subject to the terms and conditions
of this Deposit Agreement, the Depositary shall execute and deliver a new
Receipt or Receipts in the authorized denominations requested evidencing
the same aggregate number of Depositary Shares evidenced by the Receipt
or Receipts surrendered.
SECTION 2.7. Surrender of Receipts and Withdrawal of Deposited
Shares of Class D Preferred Stock. Any Holder of a Receipt or Receipts
may withdraw any or all of the deposited shares of Class D 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 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 shares of Class D Preferred Stock (or money and other
property, if any, represented thereby) which have been previously
redeemed or called for redemption or have been converted into Common
Stock or Class D Excess Preferred Stock. 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 such whole or fractional shares of Class D 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. Holders of such whole or fractional shares of Class D
Preferred Stock will not thereafter be entitled to deposit such shares of
Class D 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 deposited shares of Class
D Preferred Stock to be withdrawn, the Depositary shall at the same time,
in addition to such number of whole or fractional shares of Class D
Preferred Stock and such money and other property, if any, to be
withdrawn, deliver to such Holder, or (subject to Section 2.5) upon his
order, a new Receipt or Receipts evidencing such excess number of
Depositary Shares. Delivery of such shares of Class D 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.
HOLDERS ACKNOWLEDGE THAT THERE WILL BE NO MARKET FOR THE
UNDERLYING SHARES OF CLASS D PREFERRED STOCK AND THAT, UPON WITHDRAWAL OF
THE DEPOSITED SHARES OF CLASS D PREFERRED STOCK, HOLDERS THEREOF WILL NOT
BE ENTITLED THEREAFTER TO DEPOSIT SUCH SHARES WITH THE DEPOSITARY UNDER
THIS DEPOSIT AGREEMENT OR RECEIVE RECEIPTS OR DEPOSITARY SHARES IN
EXCHANGE THEREFOR.
If the deposited shares of Class D Preferred Stock and the money
and other property being withdrawn are to be delivered to a person or
persons other than the Holder of the Receipt or Receipts being
surrendered for withdrawal of shares of Class D 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
Class D 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 shares of Class D
Preferred Stock and the money and other property, if any, represented by
the Depositary Shares evidenced by Receipts surrendered for withdrawal at
the Corporate Office, except that, at the request, risk and expense of
the Holder surrendering such Receipt or Receipts and for the account of
the Holder thereof, such delivery may be made at such other place as may
be designated by such Holder.
SECTION 2.8. Limitations on Execution and Delivery, Transfer,
Split-Up, Combination, Surrender, Conversion and Exchange of Receipts. As
a condition precedent to the execution and delivery, transfer, split-up,
combination, surrender or exchange of any Receipt or the exercise of any
conversion right, 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 shares of Class D Preferred Stock being
deposited or withdrawn); (ii) the production of proof satisfactory to it
as to the identity and genuineness of any signature (or the authority of
any signature); and (iii) compliance with such regulations, if any, as
the Depositary or the Company may establish consistent with the
provisions of this Deposit Agreement as may be required by any securities
exchange upon which the deposited shares of Class D Preferred Stock, the
Depositary Shares or the Receipts may be included for quotation or
listed.
The transfer of Receipts may be refused, and the transfer,
split-up, combination, surrender, exchange, redemption or conversion of
outstanding Receipts may be suspended (i) during any period when the
register of holders of the shares of Class D Preferred Stock or the
Common Stock is closed or (ii) if any such action is deemed reasonably
necessary or advisable by the Depositary, any of the Depositary's Agents
or the Company at any time or from time to time because of any
requirement of law or of any government or governmental body or
commission, or under any provision of this Deposit Agreement.
SECTION 2.9. Lost Receipts, etc. In case any Receipt shall be
mutilated, destroyed, lost or stolen, the Depositary in its discretion
may execute and deliver a Receipt of like form and tenor in exchange and
substitution for such mutilated Receipt or in lieu of and in substitution
for such destroyed, lost or stolen Receipt, provided that the Holder
thereof provides the Depositary with (i) evidence reasonably satisfactory
to the Depositary of such mutilation, 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, including payment for a surety bond.
SECTION 2.10. 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 2.11. Conversion of Shares of Class D Preferred Stock
into Class D Excess Preferred Stock. As provided in the Articles
Supplementary, upon the happening of certain events, shares of Class D
Preferred Stock shall be
automatically converted into Class D Excess Preferred Stock. In the event
of such a conversion, Receipts evidencing Depositary Shares representing
the deposited shares of Class D Preferred Stock so converted shall no
longer represent, to the extent of the shares so converted, deposited
shares of Class D Preferred Stock but shall instead represent Class D
Excess Preferred Stock. Receipts evidencing Depositary Shares
representing Class D Excess Preferred Stock shall be entitled to the
proportional rights of such Class D Excess Preferred Stock as set forth
in the Articles Supplementary, and not of the proportional rights of
Class D Preferred Stock. Promptly upon its knowledge of the conversion of
such deposited shares of Class D Preferred Stock into Class D Excess
Preferred Stock, the Company shall notify the Depositary of such
conversion, the number of deposited shares of Class D Preferred Stock so
converted, the identity of the Holder(s) of the Receipt(s) so affected
and the amount of dividends and other distributions, if any, made with
respect to the shares of Class D Preferred Stock so converted since the
date of such conversion, whereupon the Depositary shall promptly notify
the Holders of the Receipts so affected (i) as to the foregoing
information, (ii) that as of the date of such conversion dividends shall
have ceased to accrue with respect to such Receipts, and (iii) that any
such Holder is required to repay to the Depositary an amount equal to the
amount of dividends and other distributions, if any, made since the date
of conversion with respect to the Receipts held by such Holder evidencing
Shares of Class D Preferred Stock so converted. To the extent any shares
of Class D Excess Preferred Stock are purchased by the Company as
provided by the Articles Supplementary, the Holders of Receipts
evidencing Depositary Shares representing such shares of Class D Excess
Preferred Stock shall be deemed to have offered to sell, and the
Depositary shall purchase, such Depositary Shares on proportionally the
same terms as such shares of Class D Excess Preferred Stock were
purchased by the Company. Upon the occurrence of any event causing Class
D Excess Preferred Stock to be converted into Class D Preferred Stock, as
set forth in the Articles Supplementary, the Receipts evidencing
Depositary Shares representing such Class D Excess Preferred Stock so
converted shall, to the extent of the shares so converted, no longer
represent Class D Excess Preferred Stock but shall instead represent
shares of Class D Preferred Stock and Holders thereof shall be entitled
to all of the rights (subject to all of the limitations) of Holders of
Receipts evidencing Depositary Shares representing shares of Class D
Preferred Stock, as set forth herein.
ARTICLE 3. CERTAIN OBLIGATIONS OF HOLDERS OF RECEIPTS AND THE COMPANY
SECTION 3.1. Filing Proofs, Certificates and Other Information.
Any Holder of a Receipt may be required from time to time to file such
proof of residence or other information, to execute such certificates and
to make such representations and warranties as the Depositary or the
Company may reasonably deem necessary or proper, including any
information which the Company or the Depositary may request, in good
faith, in order to determine the Company's status as a real estate
investment trust. 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 shares of Class D Preferred
Stock represented by the Depositary Shares evidenced by any Receipt, the
distribution of any dividend or other distribution, the sale of any
rights or of the proceeds thereof or the exercise of any conversion
right, until such proof or other information is filed, such certificates
are executed or such representations and warranties are made to the satisfaction
of the Company.
SECTION 3.2. Representations and Warranties as to Class D
Preferred Stock. The Company, by depositing shares of Class D Preferred
Stock under this Deposit Agreement, shall be deemed thereby to represent
and warrant that such shares of Class D Preferred Stock and each
certificate therefor are valid and that the person making such deposit on behalf
of the Company is duly authorized to do so. The Company hereby further
represents and warrants that such shares of Class D Preferred
Stock, when issued, will be validly issued, fully paid and nonassessable.
Such representations and warranties shall survive the deposit of the
shares of Class D Preferred Stock and the issuance of Receipts.
SECTION 3.3. Representations and Warranties as to Receipts and
Depositary Shares. The Company hereby represents and warrants that the
Receipts, when issued, will evidence legal and valid interests in the
Depositary Shares and that, as provided in this Deposit Agreement, each
Depositary Share will represent a legal and valid one-tenth fractional
interest in a deposited share of Class D Preferred Stock. Such
representations and warranties shall survive the deposit of the shares of
Class D Preferred Stock and the issuance of Receipts evidencing the
Depositary Shares.
SECTION 3.4. Representations, Warranties and Covenants as to
Common Stock. The Company covenants that it will keep reserved or
otherwise available a sufficient number of authorized and unissued shares
of Common Stock to meet all conversion requirements in respect of the
Class D Preferred Stock and that it will give written notice to the
Depositary of any adjustments to the applicable conversion rate made
pursuant to the Articles Supplementary. The Company represents and
warrants that the Common Stock issued upon conversion of the Class D
Preferred Stock will be validly issued, fully paid and nonassessable.
ARTICLE 4. THE SHARES OF CLASS D PREFERRED STOCK; DISTRIBUTIONS AND NOTICES
SECTION 4.1. Cash Distributions. Whenever the Depositary shall receive
any cash dividend or other cash distribution on the deposited shares of Class D
Preferred Stock, including any cash received upon redemption of any Class D
Preferred Stock pursuant to Section 2.3, the Depositary shall distribute to
Holders of Record of Receipts on the record date fixed pursuant to Section 4.4
such amounts of such sum as are, as nearly as practicable, in proportion to the
respective numbers of Depositary Shares evidenced by the Receipts held by such
Holders; provided, however, that (i) in case the Company or the
Depositary shall be required to and shall withhold from any cash dividend
or other cash distribution in respect of the Class D Preferred Stock
evidenced by the Receipts held by any Holder an amount on account of
taxes, the amount made available for distribution or distributed in
respect of Depositary Shares represented by such Receipts subject to such
withholding shall be reduced accordingly and (ii) no cash dividend or
other distribution (other than distributions upon liquidation,
dissolution or winding up) will be made in respect of any Depositary
Shares representing deposited shares of Class D Preferred Stock which
have been converted into Class D Excess Preferred Stock. 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 Holders of
Receipts then outstanding.
SECTION 4.2. Distributions Other Than Cash. Whenever the Depositary
shall receive any distribution other than cash on the deposited shares of Class
D Preferred Stock, the Depositary shall distribute to 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, except that no distribution
(other than distributions upon liquidation, dissolution or winding up) will be
made in respect of any Depositary Shares representing shares of Class D
Preferred Stock converted into shares of Class D Excess Preferred Stock. If, in
the opinion of the Depositary after consultation with the Company, such
distribution cannot be made proportionately among such Holders, or if for any
other reason (including any requirement that the Company or the Depositary
withhold an amount on account of taxes) the Depositary deems, after consultation
with the Company, such distribution not to be feasible, the Depositary may, with
the approval of the Company, adopt such method as it deems equitable and
practicable for the purpose of effecting such distribution, including the sale
(at public or private sale) of the securities or property thus received, or any
part thereof, at such place or places and upon such terms as it may deem proper.
The net proceeds of any such sale shall be distributed or made available for
distribution, as the case may be, by the Depositary to Holders of Receipts as
provided by Section 4.1 in the case of a distribution received in cash. The
Company shall not make any distribution of such securities or property to the
Holders of Receipts unless the Company shall have provided to the Depositary an
opinion of counsel stating that such securities have been registered under the
Securities Act or are not required 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 shares of Class D Preferred Stock are registered on the
books of the Company any rights, preferences or privileges to subscribe for or
to purchase any securities or any rights, preferences or privileges of any other
nature, such rights, preferences or privileges shall in each such instance be
made available by the Depositary to the Holders of Receipts in such manner as
the Company shall instruct (including by the issue to such Holders of warrants
representing such rights, preferences or privileges); provided, however, that
(a) if at the time of issue or offer of any such rights, preferences or
privileges the Company determines upon advice of its legal counsel that it is
not lawful or feasible to make such rights, preferences or privileges available
to the Holders of Receipts (by the issue of warrants or otherwise) or (b) if and
to the extent instructed by Holders of Receipts who do not desire to exercise
such rights, preferences or privileges, the Depositary shall then, if so
instructed by the Company, and if applicable laws or the terms of such rights,
preferences or privileges so permit, sell such rights, preferences or privileges
of such Holders at public or private sale, at such place or places and upon such
terms as it may deem proper. The net proceeds of any such sale shall, subject to
Section 3.1, be distributed by the Depositary to the 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 the securities to which such rights, preferences or
privileges relate and use its best efforts and take all steps available
to it to cause such registration statement to become effective
sufficiently in advance of the expiration of such rights, preferences or
privileges to enable such Holders to exercise such rights, preferences or
privileges. In no event shall the Depositary make available to the
Holders of Receipts any right, preference or privilege to subscribe for
or to purchase any securities unless and until such registration
statement shall have become effective or unless the offering and sale of
such securities to such Holders are exempt from registration under the
provisions of the Securities Act and the Company shall have provided to
the Depositary an opinion of counsel to such effect.
If any other action under the law of any jurisdiction or any
governmental or administrative authorization, consent or permit is
required in order for such rights, preferences or privileges to be made
available to Holders of Receipts, the Company agrees to use its best
efforts to take such action or obtain such authorization, consent or
permit sufficiently in advance of the expiration of such rights,
preferences or privileges to enable such Holders to exercise such rights,
preferences or privileges.
SECTION 4.4. Notice of 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 shares of Class D Preferred Stock,
or whenever the Depositary shall receive notice of (i) any meeting at
which Holders of such shares of Class D Preferred Stock are entitled to
vote or of which Holders of such shares of Class D Preferred Stock are
entitled to notice or (ii) any election on the part of the Company to
redeem any such shares of Class D 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 shares of Class
D Preferred Stock) for the determination of the Holders of Receipts who
shall be entitled to receive such dividend, distribution, rights,
preferences or privileges or the net proceeds of the sale thereof, 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 shares of Class D Preferred
Stock are entitled to vote, the Depositary shall, as soon as practicable
thereafter, mail to the Holders of Receipts a notice, which shall be
provided by the Company and which shall contain (i) such information as
is contained in such notice of meeting, (ii) a statement that the Holders
of Receipts at the close of business on a specified record date fixed
pursuant to Section 4.4 will be entitled, subject to any applicable
provision of law, to instruct the Depositary as to the exercise of the
voting rights pertaining to the amount of Class D 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 amount of Class D 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 deposited share of Class D 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 and fractional votes
resulting from such aggregation in accordance with the instructions
received in such requests. Each share of Class D Preferred Stock is
entitled to 10 votes and, accordingly, each Depositary Share is entitled
to one vote. The Company hereby agrees to take all reasonable action that
may be deemed necessary by the Depositary in order to enable the
Depositary to vote such shares of Class D Preferred Stock or cause such
shares of Class D 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 shares of Class D Preferred Stock
represented by the Depositary Shares evidenced by such Receipt. The
Depositary shall not be required to exercise discretion in voting any
shares of Class D Preferred Stock represented by the Depositary Shares
evidenced by such Receipt. Holders of Receipts shall have no right to
direct the vote of the shares of Class D Preferred Stock represented by
the Depositary Shares evidenced by such Receipts other than in the manner
provided in this Section 4.5.
SECTION 4.6. Changes Affecting Deposited Shares of Class D Preferred
Stock; Reorganization, Reclassification, Etc. Upon any change in par or
liquidated value, split-up, combination or any other reclassification of the
deposited shares of Class D Preferred Stock, or upon any capital reorganization
or recapitalization or the consolidation, merger, sale, transfer or lease of all
or substantially all of the Company's assets to another corporation, 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 Class D Preferred Stock and (b) the ratio of the
applicable conversion rate per Depositary Share to the applicable conversion
rate of a share of Class D Preferred Stock, in each case as may be required by
or as is consistent with the provisions of the Articles Supplementary to fully
reflect the effects of such change or action 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 Class D
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 shares of Class D
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 occurrence of any such change or action to surrender such Receipts
to the Depositary with instructions to convert, exchange or surrender the
deposited shares of Class D 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 (including cash) into which the deposited shares of
Class D Preferred Stock represented by the Depositary Shares evidenced by such
Receipts might have been converted, exchanged or surrendered immediately prior
to the occurrence of such transaction. The Company shall cause effective
provision to be made in the charter of the resulting or surviving corporation
(if other than the Company) for protection of such rights as may be applicable
upon exchange of the deposited shares of Class D Preferred Stock for shares,
other securities or property (including cash) of the surviving corporation in
connection with the actions referred to above. The Company shall cause any such
surviving corporation (if other than the Company) expressly to assume the
obligations of the Company hereunder.
SECTION 4.7. Inspection of Reports. The Depositary shall make
available for inspection by Holders of Receipts at the Corporate Office
and at such other places as it may from time to time deem advisable
during normal business hours any reports and communications received from
the Company that are both received by the Depositary as the Holder of
deposited shares of Class D Preferred Stock and made generally available
to the Holders of the Class D 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 Receipt Holders. Promptly upon request from
time to time by the Company, the Depositary shall furnish to the Company
a list, as of a recent date specified by the Company, of the names,
addresses and holdings of Depositary Shares of all persons in whose names
Receipts are registered on the books of the Depositary.
SECTION 4.9. Tax and Regulatory Compliance. The Depositary shall
be responsible for (i) preparation and mailing of Form 1099s for all open
and closed accounts, (ii) foreign tax withholding, (iii) withholding 31%
(or any withholding as may be required at the then applicable rate) of
dividends from appropriate Holders of Receipts, (iv) mailing W-9 forms to
new Holders of Receipts without a certified taxpayer identification
number, (v) processing certified W-9 forms, (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 5. THE DEPOSITARY AND THE COMPANY
SECTION 5.1. Maintenance of Offices, Agencies and Transfer Books
by the Depositary and the Registrar. The Depositary shall maintain at the
Corporate Office facilities for the execution and delivery, transfer,
surrender and exchange, split-up, combination, redemption and conversion
of Receipts and withdrawal of shares of Class D Preferred Stock and at
the offices of the Depositary's Agents, if any, facilities for the
delivery, transfer, surrender and exchange, split-up, combination,
redemption and conversion of Receipts and withdrawal of shares of Class D
Preferred Stock, all in accordance with the provisions of this Deposit
Agreement.
The Depositary shall keep books at the Corporate Office for the
registration and transfer of Receipts, which books shall be open for
inspection at all reasonable times by the Holders of Receipts as provided
by applicable law. The Depositary may close such books, at any time or
from time to time, when deemed expedient by it in connection with the
performance of its duties hereunder.
If the Receipts or the Depositary Shares evidenced thereby or
the shares of Class D Preferred Stock represented by such Depositary
Shares shall be listed on the NYSE or any other stock exchange, the
Depositary may, 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 shares of Class
D Preferred Stock are listed on one or more other stock exchanges, the
Depositary will, at the request and expense of the Company, arrange with
such facilities for the delivery, transfer, surrender, redemption,
exchange and conversion of such Receipts, such Depositary Shares or such
shares of Class D 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, the Depositary's Agent or
the Registrar, by reason of any provision, present or future, of the
Articles Supplementary or, in the case of the Company, the Depositary,
the Depositary's Agent or the Registrar, by reason of any act of God or
war or other circumstance beyond the control of the relevant party, the
Depositary, any Depositary's Agent, the Registrar or the Company shall be
prevented or forbidden from doing or performing any act or thing that the
terms of this Deposit Agreement provide shall be done or performed; nor
shall the Depositary, any Depositary's Agent, any Registrar or the
Company incur any liability to any Holder of a Receipt by reason of any
nonperformance or delay, caused as aforesaid, in the performance of any
act or thing that the terms of this Deposit Agreement provide shall or
may be done or performed, or by reason of any exercise of, or failure to
exercise, any discretion provided for in this Deposit Agreement.
SECTION 5.3. Obligations of the Depositary, the Depositary's Agents,
the Registrar and the Company. Neither the Depositary, any Depositary's
Agent, any Registrar nor the Company assumes any obligation or shall be
subject to any
liability under this Deposit Agreement or any Receipt to Holders of
Receipts other than from acts or omissions arising out of conduct
constituting bad faith, negligence (in the case of any action or inaction
with respect to the voting of the deposited shares of Class D Preferred
Stock), gross negligence or willful misconduct in the performance of such
duties as are specifically set forth in this Deposit Agreement.
Neither the Depositary, any Depositary's Agent, any Registrar
nor the Company shall be under any obligation to appear in, prosecute or
defend any action, suit or other proceeding with respect to the deposited
shares of Class D 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 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 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 shares of Class D
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 (including the Common Stock) 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 securities under the federal
securities laws or applicable state securities laws, it being expressly
understood and agreed that the Depositary and any Depositary's Agent are
acting only in a ministerial capacity as Depositary for the deposited
shares of Class D 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 have been registered under the Securities
Act, the deposited shares of Class D Preferred Stock, the Depositary
Shares, the Receipts (except its countersignature thereon) or any
instruments referred to therein or herein (including, without limitation,
the Articles Supplementary), or as to the correctness of any statement
made therein or herein; provided, however, that the Depositary is
responsible for its representations in this Deposit Agreement and for the
validity of any action taken or required to be taken by the Depositary in
connection with this Deposit Agreement.
The Company agrees that it will register the deposited shares of
Class D 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 within 60 days, the resigning Depositary
may petition a court of competent jurisdiction to appoint a successor
depositary. Every successor depositary shall execute and deliver to its
predecessor and to the Company an instrument in writing accepting its
appointment hereunder, and thereupon such successor depositary, without
any further act or deed, shall become fully vested with all the rights,
powers, duties and obligations of its predecessor and for all purposes
shall be the Depositary under this Deposit Agreement, and such
predecessor, upon payment of all sums due it and on the written request
of the Company, shall promptly execute and deliver an instrument
transferring to such successor all rights and powers of such predecessor
hereunder, shall duly assign, transfer and deliver all rights, title and
interest in the deposited shares of Class D Preferred Stock and any
moneys or property held hereunder to such successor and shall deliver to
such successor a list of the Holders of all outstanding Receipts. Any
successor depositary shall promptly mail notice of its appointment to the
Holders of Receipts.
Any corporation into or with which the Depositary may be merged,
consolidated or converted shall be the successor of such Depositary
without the execution or filing of any document or any further act. 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 Holders of Receipts, in each case
at the address recorded in the Depositary's books, copies of all notices
and reports (including financial statements) required by law, by the
rules of any national securities exchange upon which the shares of Class
D Preferred Stock, the Depositary Shares or the Receipts are included for
quotation or listed or by the Articles Supplementary to be furnished by
the Company to Holders of the deposited shares of Class D Preferred Stock
and, if requested by the Holder of any Receipt, a copy of this Deposit
Agreement, the form of Receipt, the Articles Supplementary and the form
of Class D Preferred Stock. 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 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 and expenses) that may
arise out of, or in connection with, its acting as Depositary,
Depositary's Agent or Registrar, respectively, under this Deposit
Agreement and the Receipts, except for any liability arising out of the
willful misconduct, gross negligence, negligence (in the case of any
action or inaction with respect to the voting of the deposited shares of
Class D Preferred Stock) or bad faith on the part of any such person or
persons. The obligations of the Company set forth in this Section 5.6
shall survive any succession of any Depositary, Registrar or Depositary's
Agent or termination of this Deposit Agreement.
SECTION 5.7. Fees, Charges and Expenses. No charges and expenses
of the Depositary or any Depositary's Agent hereunder shall be payable by
any person, except as provided in this Section 5.7. The Company shall pay
all transfer and other taxes and governmental charges arising solely from
the existence of this Deposit Agreement. The Company shall also pay all
fees and expenses of the Depositary in connection with the deposit of the
shares of Class D
Preferred Stock and the initial issuance of the Depositary Shares
evidenced by the Receipts, any conversion of the deposited shares of
Class D Preferred Stock, any redemption of the deposited shares of Class
D Preferred Stock at the option of the Company and all withdrawals of the
deposited shares of Class D Preferred Stock by Holders of Receipts
evidencing the Depositary Shares representing such deposited shares of
Class D Preferred Stock. 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 previously agreed between the Depositary and the Company. 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 6. AMENDMENT AND TERMINATION
SECTION 6.1. Amendment. The form of the Receipts and any
provision of this Deposit Agreement may at any time and from time to time
be amended by agreement between the Company and the Depositary in any
respect that they may deem necessary or desirable; provided, however,
that any such amendment (other than any change in the fees of any
Depositary, Registrar or Transfer Agent) which (i) would 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 Class D Preferred Stock pursuant to the Articles Supplementary
shall not 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. In no event shall any amendment impair the
right, subject to the provisions of Sections 2.7 and 2.8 and Article 3,
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 shares of Class D 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 provision) or (ii) the
Holders of at least two-thirds of the Depositary Shares evidenced by
Receipts then outstanding 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 deposited shares of Class D Preferred Stock as are
represented by the Depositary Shares evidenced by such Depositary
Receipt, together with any other property held by the Depositary in
respect of such Receipt. In the event that this Deposit Agreement is
terminated pursuant to clause (i) of the immediately preceding sentence,
the Company hereby agrees to use its best efforts to list the shares of
Class D Preferred Stock issued upon surrender of the Receipt evidencing
the Depositary Shares representing such shares of Class D Preferred Stock
on a national securities exchange. This Deposit Agreement will
automatically terminate if (i) all Depositary Shares shall have been
redeemed pursuant to Section 2.3 or converted pursuant to Section 2.4 or
(ii) there shall have been made a final distribution in respect of the
deposited shares of Class D 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 7. 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 counterpart, 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 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 (including
the Holders of Receipts from time to time), and their respective
successors hereunder, and shall not be deemed to give any legal or
equitable right, remedy or claim to any other person whatsoever.
SECTION 7.3. Invalidity of Provisions. In case any one or more
of the provisions contained in this Deposit Agreement or in the Receipts
should be or become invalid, illegal or unenforceable in any respect, the
validity, legality and enforceability of the remaining provisions
contained herein or therein shall in no way be affected, prejudiced or
disturbed thereby.
SECTION 7.4. Notices. Any and all notices to be given to the
Company hereunder or under the Receipts shall be in writing and shall be
deemed to have been duly given if personally delivered or sent by mail,
or by telegram or facsimile transmission confirmed by letter, addressed
to the Company at:
Kimco Realty Corporation
0000 Xxx Xxxx Xxxx Xxxx
Xxx Xxxx Xxxx, XX 00000-0000
Attention: Chief Financial Officer
Telephone No.: (000) 000-0000
or at any other address of which the Company shall have notified the
Depositary in writing.
Any notices to be given to the Depositary hereunder or under the
Receipts shall be in writing and shall be deemed to have been duly given
if personally delivered or sent by mail, or by telegram or telex or
telecopier confirmed by letter, addressed to the Depositary at:
BankBoston, N.A.
c/o Boston EquiService Limited Partnership
00 Xxxxxx Xxxxxx
Xxxxxx, XX 00000
Attention: Client Administration
Any notices given to any Holder of a Receipt hereunder or under
the Receipts shall be in writing and shall be deemed to have been duly
given if personally delivered or sent by mail, or by telegram or telex or
telecopier confirmed by letter, addressed to such Holder at the address
of such Holder as it appears on the books of the Depositary or, if such
Holders 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; provided, however, that the Depositary does not need
to notify the Company if it subcontracts to Boston EquiService Limited
Partnership for performance of services hereunder.
SECTION 7.6. Holders of Receipts are Parties. The Holders of
Receipts from time to time shall be deemed to be parties to this Deposit
Agreement and shall be bound by all of the terms and conditions hereof
and of the Receipts by acceptance of delivery thereof.
SECTION 7.7. Governing Law. This Deposit Agreement and the
Receipts and all rights hereunder and thereunder and provisions hereof
and thereof shall be governed by, and construed in accordance with, the
law of the State of New York applicable to agreements
made and to be performed in said State.
SECTION 7.8. Inspection of Deposit Agreement, Form of Receipt,
Form of Certificate for the Class D Preferred Stock and Articles
Supplementary. Copies of this Deposit Agreement, form of Receipt, form of
Certificate for the Class D Preferred Stock and the Articles
Supplementary shall be filed with the Depositary and the Depositary's
Agents and shall be open to inspection during business hours at the
Corporate Office and the respective offices of the Depositary's Agents,
if any, by any Holder of any Receipt.
SECTION 7.9. Headings. The headings of articles and sections in
this Deposit Agreement and in the form of the Receipt set forth in
Exhibit A hereto have been inserted for convenience only and are not to
be regarded as part of this Deposit Agreement or to have any bearing upon
the meaning or interpretation of any provision contained herein or in the
Receipts.
IN WITNESS WHEREOF, the Company and the Depositary have duly
executed this Deposit Agreement as of the day and year first above set
forth and all Holders of Receipts shall become parties hereto by and upon
acceptance by them of delivery of Receipts issued in accordance with the
terms hereof.
KIMCO REALTY CORPORATION
By: /s/ Xxxxxx Xxxxxx
----------------------------------------
ATTEST: Authorized Officer
/s/ Xxxxxxx X. Xxxxxxxxxx
BANKBOSTON, N.A., as Depositary
By: /s/ Xxxxxxx X. Xxxxxxx
----------------------------------------
ATTEST: Authorized Signatory
/s/ Xxxx X. Xxxxxx
EXHIBIT A
[FORM OF FACE OF RECEIPT]
DR-
CERTIFICATE FOR NOT MORE THAN __________ DEPOSITARY SHARES
This Certificate is transferable SEE REVERSE FORM
in ____________________ and CERTAIN DEFINITIONS
New York City, New York
CUSIP ___________
RECEIPT FOR DEPOSITARY SHARES,
EACH REPRESENTING 1/10 OF A SHARE OF THE CLASS D
CUMULATIVE CONVERTIBLE PREFERRED STOCK, PAR VALUE $1.00 PER SHARE, OF
KIMCO REALTY CORPORATION
INCORPORATED UNDER THE LAWS OF
THE STATE OF MARYLAND
BankBoston, N.A., as Depositary (the "Depositary"), hereby certifies that
____________ is the registered owner (the "Holder") of ___________
DEPOSITARY SHARES, each
Depositary Share representing a 1/10 fractional interest in a share of
the Class D Cumulative Convertible Preferred Stock, par value $1.00 per
share (the "Class D Preferred Stock"), of Kimco Realty Corporation, a
corporation duly organized and existing under the laws of the State of
Maryland (the "Company"), on deposit with the Depositary, subject to the
terms and entitled to the benefits of the Deposit Agreement dated as of
___________, 1998 (the "Deposit Agreement"), among the Company, the
Depositary and the Holders from time to time of Receipts evidencing the
Depositary Shares. By accepting this Receipt, the Holder hereof becomes a
party to and agrees to be bound by all the terms and conditions of the
Deposit Agreement. This Receipt shall not be valid or obligatory for any
purpose or entitled to any benefits under the Deposit Agreement unless it
shall have been executed by the Depositary by the manual or facsimile
signature of a duly authorized signatory.
Dated:
KIMCO REALTY CORPORATION BANKBOSTON, N.A.,
as Depositary, Transfer Agent
By: and Registrar
----------------------
By: By:
---------------------- -------------------------------------
[FORM OF REVERSE OF RECEIPT]
KIMCO REALTY CORPORATION
The shares of 7.5% Class D Cumulative Convertible Preferred
Stock (the "Class D Preferred Stock") of Kimco Realty Corporation (the
"Company") represented by the Depositary Shares evidenced by this Receipt
are subject to restrictions on ownership and transfer for the purpose of
the Company's maintenance of its status as a Real Estate Investment Trust
under the Internal Revenue Code of 1986, as amended. With certain further
restrictions and exceptions set forth in the Company's Articles
Supplementary, (i) no Person may own, Beneficially Own or Constructively
Own shares of Class D Preferred Stock in excess of the Ownership Limit
and (ii) no Person may own shares of Common Stock in excess of the
Ownership Limit. Any Person who attempts to own, Beneficially Own or
Constructively Own shares of Class D Preferred Stock or shares of Common
Stock in excess of the above limitations must immediately notify the
Company. Transfers in violation of the restrictions described above may
be void ab initio. The Company may redeem such shares at a price
specified in the Articles Supplementary and upon terms and conditions
specified by the Board of Directors in its sole discretion if the Board
of Directors determines that a Transfer or other event would violate the
restrictions described above. All capitalized terms in this legend have
the meanings defined in the Company's Articles Supplementary.
In addition, upon the occurrence of an event that would
otherwise result in a violation of the Ownership Limit, some or all of
the shares of Class D Preferred Stock represented by the Depository
Shares evidenced hereby may be, under certain circumstances, exchanged
for Class D Excess Preferred Stock which will be held in trust by the
Company. The Company also has an option to acquire Class D Excess
Preferred Stock under certain circumstances.
The Board of Directors is authorized to determine the
preferences, limitations and relative rights of Preferred Stock before
issuance of any such shares of Preferred Stock.
KIMCO REALTY CORPORATION WILL FURNISH WITHOUT CHARGE TO EACH
HOLDER OF A RECEIPT WHO SO REQUESTS A COPY OF THE DEPOSIT AGREEMENT
RELATING TO THE DEPOSITARY SHARES, A FORM OF RECEIPT, A FORM OF THE
CERTIFICATE FOR THE CLASS D PREFERRED STOCK AND A COPY OF THE ARTICLES
SUPPLEMENTARY OF THE COMPANY CONTAINING A STATEMENT OF THE PREFERENCES,
LIMITATIONS AND RELATIVE RIGHTS APPLICABLE TO THE CLASS D PREFERRED STOCK
AND CLASS D EXCESS PREFERRED STOCK OF KIMCO REALTY CORPORATION ANY SUCH
REQUEST IS TO BE ADDRESSED TO THE DEPOSITARY NAMED ON THE FACE OF THIS
RECEIPT.
------------------
The following abbreviations when used in the instructions on the
face of this Receipt shall be construed as though they were written out
in full according to applicable laws or regulations.
TEN COM - as tenants in common UNIF GIFT MIN ACT - _____ Custodian ______
(Cust) (Minor)
TEN ENT - as tenants by the Under Uniform Gifts to Minors Act
entireties
JT TEN - as joint tenants with ----------------------------------
right of survivorship (State)
and not as tenants in
common
Additional abbreviations may also be used though not in the
above list.
ASSIGNMENT
For value received, ____________________ hereby sell(s), assign(s)
and transfer(s) 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 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:
------------- -------------------------------------------
Signature
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.
NOTICE OF CONVERSION
The undersigned Holder of the within Receipt hereby irrevocably
exercises the option to convert that number of shares of Class D
Preferred Stock represented by ____ Depositary Shares evidenced by the
within Receipt into shares of Common Stock, par value $.01 per share, of
Kimco Realty Corporation, in accordance with the Articles Supplementary
and the Deposit Agreement governing such securities, and directs that the
shares of Common Stock issuable and deliverable upon conversion, together
with any check in payment for fractional shares, be issued in the name of
and delivered to the undersigned Holder thereof, unless a different name
is indicated in the Assignment. If the number of shares of Class D
Preferred Stock represented by the number of Depositary Shares set forth
above is less then the number of shares of Class D Preferred Stock
represented by the Depositary Shares evidenced by the within Receipt, the
undersigned Holder directs that the Depositary issue to the undersigned
Holder (unless a different name is indicated) a new Receipt evidencing
Depositary Shares representing the balance of such shares of Class D
Preferred Stock not converted. If shares are to be issued in the name of
a person other than the undersigned Holder, the undersigned Holder will
pay all transfer taxes payable with respect thereto. Any amount required
to be paid by the undersigned Holder on account of dividends accompanies
this Receipt.
Dated:
---------------------
NAME:
-------------------------- -----------------------------------------
ADDRESS: Signature
----------------------
NOTICE: The signature must correspond
with the name as written upon
the face of this Receipt in
every particular, without
alteration or enlargement or
any change whatever
If shares of Common Stock are to be issued and registered otherwise than
to the registered Holder named above upon conversion, please print or
typewrite the name, address (including Zip Code) and social security or
other taxpayer identification number of such person or entity.
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