Exhibit 4.3
DEPOSIT AGREEMENT
DEPOSIT AGREEMENT, dated as of April 23, 1998, among HIGHWOODS
PROPERTIES, INC., a Maryland corporation (the "Company"), and First Union
National Bank, a North Carolina banking corporation, as Depositary, and all
holders from time to time of Receipts (as hereinafter defined) issued hereunder.
W I T N E S S E T H:
WHEREAS, it is desired to provide, as hereinafter set forth in
this Deposit Agreement, for the deposit of the Company's Series D Preferred
Shares (as hereinafter defined) with the Depositary for the purposes set forth
in this Deposit Agreement and for the issuance hereunder of the Receipts
evidencing Depositary Shares representing a fractional interest in the Series D
Preferred Shares deposited; and
WHEREAS, the Receipts are to be substantially in the form of
Exhibit A annexed to this Deposit Agreement, with appropriate insertions,
modifications and omissions, as hereinafter provided in this Deposit Agreement;
NOW, THEREFORE, in consideration of the premises contained herein,
it is agreed by and among the parties hereto as follows:
ARTICLE I
DEFINITIONS
The following definitions shall apply to the respective terms (in
the singular and plural forms of such terms) used in this Deposit Agreement and
the Receipts:
Section 1.1 "Articles of Incorporation" shall mean the Amended and
Restated Articles of Incorporation, as amended from time to time, of the
Company.
Section 1.2 "Company" shall mean Highwoods Properties, Inc., a
Maryland corporation, and its successors.
Section 1.3 "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 0000 Xxxx X. X.
Xxxxxx Xxxx., 0X0, Xxxxxxxxx, Xxxxx Xxxxxxxx 00000-0000.
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Section 1.4 "Deposit Agreement" shall mean this agreement, as the
same may be amended, modified or supplemented from time to time.
Section 1.5 "Depositary" shall mean First Union National Bank, 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.
Section 1.6 "Depositary Share" shall mean a fractional interest of
1/10 of a Series D Preferred Share deposited with the Depositary hereunder and
the same proportionate interest in any and all other property received by the
Depositary in respect of such Series D Preferred Share and held under this
Deposit Agreement, all as evidenced by the Receipts issued hereunder. Subject to
the terms of this Deposit Agreement, each owner of a Depositary Share is
entitled, proportionately, to all the rights, preferences and privileges of the
Series D Preferred Share represented by such Depositary Share, including the
dividend, voting, redemption, conversion and liquidation rights contained in the
Designating Amendment.
Section 1.7 "Depositary's Agent" shall mean an agent appointed by
the Depositary as provided, and for the purposes specified, in Section 7.5.
Section 1.8 "Designating Amendment" shall mean the Articles
Supplementary to the Articles of Incorporation filed with the Secretary of State
of the State of Maryland establishing the Series D Preferred Shares as a series
of preferred stock of the Company.
Section 1.9 "Series D Preferred Shares" shall mean the Company's
8% Series D Cumulative Redeemable Preferred Shares, par value $0.01 per share,
heretofore validly issued, fully paid and nonassessable.
Section 1.10 "Receipt" shall mean a Depositary Receipt issued
hereunder to evidence one or more Depositary Shares, whether in definitive or
temporary form, substantially in the form set forth as Exhibit A hereto.
Section 1.11 "Record Date" shall mean the date fixed pursuant to
Section 4.4.
Section 1.12 "Record Holder" or "Holder" as applied to a Receipt
shall mean the person in whose name a Receipt is registered on the books
maintained by the Depositary for such purpose.
Section 1.13 "Registrar" shall mean First Union National Bank or
any bank or trust company appointed to register ownership and transfers of
Receipts or the deposited Series D Preferred Shares, as the case may be, as
herein provided.
Section 1.14 "Securities Act" shall mean the Securities Act of
1933, as amended.
Section 1.15 "Transfer Agent" shall mean First Union National Bank
or any bank or
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trust company appointed to transfer the Receipts or the deposited Series D
Preferred Shares, as the case may be, as herein provided.
ARTICLE II
FORM OF RECEIPTS, DEPOSIT OF SERIES D PREFERRED SHARES, EXECUTION
AND DELIVERY, TRANSFER, SURRENDER AND REDEMPTION OF RECEIPTS
Section 2.1 Form and Transferability of Receipts. Definitive
Receipts shall be engraved or printed or lithographed with steel-engraved
borders and underlying tint and shall be substantially in the form set forth in
Exhibit A annexed to this Deposit Agreement, with appropriate insertions,
modifications and omissions, as hereinafter provided. Pending the preparation of
definitive Receipts, the Depositary, upon the written order of the Company,
delivered in compliance with Section 2.2, shall execute and deliver temporary
Receipts, which may be printed, lithographed, typewritten, mimeographed or
otherwise substantially of the tenor of the definitive Receipts in lieu of which
they are issued and with such appropriate insertions, omissions, substitutions
and other variations as the persons executing such Receipts may determine, as
evidenced by their execution of such Receipts. If temporary Receipts are issued,
the Company and the Depositary will cause definitive Receipts to be prepared
without unreasonable delay. After the preparation of definitive Receipts, the
temporary Receipts shall be exchangeable for definitive Receipts upon surrender
of the temporary Receipts at the Corporate Office or such other offices, if any,
as the Depositary may designate, without charge to the holder. Upon surrender
for cancellation of any one or more temporary Receipts, the Depositary shall
execute and deliver in exchange therefor definitive Receipts representing the
same number of Depositary Shares as represented by the surrendered temporary
Receipt or Receipts. Such exchange shall be made at the Company's expense and
without any charge therefor. Until so exchanged, the temporary Receipts shall in
all respects be entitled to the same benefits under this Deposit Agreement, and
with respect to the Series D Preferred Shares deposited, as definitive Receipts.
Receipts shall be executed by the Depositary by the manual or
facsimile signature of a duly authorized signatory of the Depositary, provided
that if a Registrar (other than the Depositary) shall have been appointed then
such Receipts shall also be countersigned by manual signature of a duly
authorized signatory of the Registrar. No Receipt shall be entitled to any
benefits under this Deposit Agreement or be valid or obligatory for any purpose
unless it shall have been executed as provided in the preceding sentence. The
Depositary shall record on its books each Receipt executed as provided above and
delivered as hereinafter provided.
Except as the Depositary may otherwise determine, Receipts shall
be in denominations of any number of whole Depositary Shares. All Receipts shall
be dated the date of their issuance.
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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 Series D Preferred Shares, the
Depositary Shares or the Receipts may be listed or to conform with any usage
with respect thereto, or to indicate any special limitations or restrictions to
which any particular Receipts are subject.
Title to any Receipt (and to the Depositary Shares evidenced by
such Receipt), that is properly endorsed or accompanied by a properly executed
instrument of transfer or endorsement shall be transferable by delivery with the
same effect as in the case of a negotiable instrument; provided, however, that
until a Receipt shall be transferred on the books of the Depositary as provided
in Section 2.4, the Depositary may, notwithstanding any notice to the contrary,
treat the record holder thereof at such time as the absolute owner thereof for
the purpose of determining the person entitled to distribution of dividends or
other distributions, the exercise of any conversion rights or to any notice
provided for in this Deposit Agreement and for all other purposes.
Section 2.2 Deposit of Series D Preferred Shares; 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 400,000
Series D Preferred Shares, properly endorsed or accompanied, if required by the
Depositary, by a duly executed instrument of transfer or endorsement, in form
satisfactory to the Depositary, together with (i) all such certifications as may
be required by the Depositary in accordance with the provisions of this Deposit
Agreement 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 Series D Preferred Shares. The Depositary
acknowledges receipt of the deposited Series D Preferred Shares and related
documentation and agrees to hold such deposited Series D Preferred Shares in an
account to be established by the Depositary at the Corporate Office or at such
other office as the Depositary shall determine. The Company hereby appoints the
Depositary as the Registrar and Transfer Agent for Series D Preferred Shares
deposited hereunder and the Depositary hereby accepts such appointment and, as
such, will reflect changes in the number of shares (including any fractional
shares) of deposited Series D Preferred Shares held by it by notation,
book-entry or other appropriate method.
If required by the Depositary, Series D Preferred Shares presented
for deposit by the Company at any time, whether or not the register of
shareholders of the Company is closed, shall also be accompanied by an agreement
or assignment, or other instrument satisfactory to the Depositary, that will
provide for the prompt transfer to the Depositary or its nominee of any dividend
or right to subscribe for additional Series D Preferred Shares or to receive
other property that any person in whose name the Series D Preferred Shares is or
has been registered may thereafter receive upon or in respect of such deposited
Series D Preferred Shares, or in lieu thereof such agreement of indemnity or
other agreement as shall be satisfactory to the Depositary.
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Upon receipt by the Depositary of a certificate or certificates
for Series D Preferred Shares deposited hereunder, together with the other
documents specified above, and upon registering such Series D Preferred Shares
in the name of the Depositary, the Depositary, subject to the terms and
conditions of this Deposit Agreement, shall execute and deliver to, or upon the
order of, the person or persons named in the written order delivered to the
Depositary referred to in the first paragraph of this Section 2.2, a Receipt or
Receipts for the number of whole Depositary Shares representing the Series D
Preferred Shares so deposited and registered in such name or names as may be
requested by such person or persons. The Depositary shall execute and deliver
such Receipt or Receipts at the Corporate Office, except that, at the request,
risk and expense of any person requesting such delivery, such delivery may be
made at such other place as may be designated by such person.
Other than in the case of splits, combinations or other
reclassifications affecting the Series D Preferred Shares, or in the case of
dividends or other distributions of Series D Preferred Shares, if any, there
shall be deposited hereunder not more than the number of shares constituting the
Series D Preferred Shares as set forth in the Designating Amendment, as such may
be amended.
The Company shall deliver to the Depositary from time to time such
quantities of Receipts as the Depositary may request to enable the Depositary to
perform its obligations under this Deposit Agreement.
Section 2.3 Optional Redemption of Series D Preferred Shares for
Cash. Whenever the Company shall elect to redeem deposited Series D Preferred
Shares for cash in accordance with the provisions of the Designating Amendment,
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 Series D Preferred Shares held by
the Depositary to be redeemed and the applicable redemption price, as set forth
in the Designating Amendment, 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 Series D Preferred
Shares and the proposed simultaneous redemption of the Depositary Shares
representing the Series D Preferred Shares to be redeemed, not less than 30 and
not more than 60 days prior to the date fixed for redemption of such Series D
Preferred Shares and Depositary Shares (the "cash redemption date"), to the
holders of record on the record date fixed for such redemption pursuant to
Section 4.4 hereof of the Receipts evidencing the Depositary Shares to be so
redeemed, at the addresses of such holders as the same appear on the records of
the Depositary; but neither failure to mail any such notice to one or more such
holders nor any defect in any such notice shall affect the sufficiency of the
proceedings for redemption as to other holders. The Company shall provide the
Depositary with such notice, and each such notice shall state: the cash
redemption date; the cash redemption price; the number of deposited Series D
Preferred Shares and Depositary Shares to be redeemed; if fewer than all the
Depositary Shares held by any holder are to be redeemed, the number of such
Depositary Shares held by such holder to be so redeemed; the place or places
where Receipts evidencing Depositary Shares to be redeemed are to be surrendered
for payment of the cash redemption price; and that from and after the cash
redemption date dividends in respect of the Series D Preferred
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Shares represented by the Depositary Shares to be redeemed will cease to accrue.
If fewer than all the outstanding Depositary Shares are to be redeemed, the
Depositary Shares to be redeemed shall be selected pro rata (as nearly as may be
practicable without creating fractional Depositary Shares) or by any other
equitable method determined by the Company. 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 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
Designating Amendment) of the Series D Preferred Shares deposited with the
Depositary to be redeemed (including any accrued and unpaid dividends to the
date of redemption), the Depositary shall redeem the number of Depositary Shares
representing such Series D Preferred Shares so called for redemption by the
Company and from and after the cash redemption date (unless the Company shall
have failed to redeem the Series D Preferred Shares to be redeemed by it as set
forth in the Company's notice provided for in the preceding paragraph), all
dividends in respect of the Series D Preferred Shares called for redemption
shall cease to accrue, the Depositary Shares called for redemption shall be
deemed no longer to be outstanding and all rights of the holders of Receipts
evidencing such Depositary Shares (except the right to receive the cash
redemption price 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 of $25.00 per Depositary
Share plus any other money and other property payable in respect of the related
Series D Preferred Shares. The foregoing shall be further subject to the terms
and conditions of the Designating Amendment.
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 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.
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Section 2.5 Combinations and Split-ups of Receipts. Upon surrender
of a Receipt or Receipts at the Corporate Office or such other office as the
Depositary may designate for the purpose of effecting a split-up or combination
of Receipts, subject to the terms and conditions of this Deposit Agreement, the
Depositary shall execute and deliver a new Receipt or Receipts in the authorized
denominations requested evidencing the same aggregate number of Depositary
Shares evidenced by the Receipt or Receipts surrendered.
Section 2.6 Surrender of Receipts and Withdrawal of Series D
Preferred Shares. Any holder of a Receipt or Receipts may withdraw any or all of
the deposited Series D Preferred Shares represented by the Depositary Shares
evidenced by such Receipt or Receipts and all money and other property, if any,
represented by such Depositary Shares by surrendering such Receipt or Receipts
at the Corporate Office or at such office as the Depositary may designate for
such withdrawals, provided that a holder of a Receipt or Receipts may not
withdraw such Series D Preferred Shares (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 Series D Preferred
Shares and all such money and other property, if any, represented by the
Depositary Shares evidenced by the Receipt or Receipts so surrendered for
withdrawal, but holders of such whole or fractional Series D Preferred Shares
will not thereafter be entitled to deposit such Series D Preferred Shares
hereunder or to receive Depositary Shares therefor. If the Receipt or Receipts
delivered by the holder to the Depositary in connection with such withdrawal
shall evidence a number of Depositary Shares in excess of the number of
Depositary Shares representing the number of whole or fractional shares of
deposited Series D Preferred Shares to be withdrawn, the Depositary shall at the
same time, in addition to such number of whole or fractional Series D Preferred
Shares and such money and other property, if any, to be withdrawn, deliver to
such holder, or (subject to Section 2.4) upon his order, a new Receipt or
Receipts evidencing such excess number of Depositary Shares. Delivery of such
Series D Preferred Shares and such money and other property being withdrawn may
be made by the delivery of such certificates, documents of title and other
instruments as the Depositary may deem appropriate, which, if required by the
Depositary, shall be properly endorsed or accompanied by proper instruments of
transfer.
If the deposited Series D Preferred Shares and the money and other
property being withdrawn are to be delivered to a person or persons other than
the record holder of the Receipt or Receipts being surrendered for withdrawal of
Series D Preferred Shares, such holder shall execute and deliver to the
Depositary a written order so directing the Depositary and the Depositary may
require that the Receipt or Receipts surrendered by such holder for withdrawal
of such Series D Preferred Shares be properly endorsed in blank or accompanied
by a properly executed instrument of transfer or endorsement in blank.
The Depositary shall deliver the deposited Series D Preferred
Shares 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
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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 Series D Preferred Shares being deposited or withdrawn);
(ii) the production of proof satisfactory to it as to the identity and
genuineness of any signature (or the authority of any signature); 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 Series D Preferred
Shares, the Depositary Shares or the Receipts may be included for quotation or
listed.
The deposit of Series D Preferred Shares may be refused, the
delivery of Receipts against Series D Preferred Shares may be suspended, the
transfer of Receipts may be refused, and the transfer, split-up, combination,
surrender, exchange or redemption of outstanding Receipts may be suspended (i)
during any period when the register of shareholders of the Company is closed or
(ii) if any such action is deemed reasonably necessary or advisable by the
Depositary, any of the Depositary's Agents or the Company at any time or from
time to time because of any requirement of law or of any government or
governmental body or commission, or under Article VI of the Articles of
Incorporation or under any provision of this Deposit Agreement.
Section 2.8 Lost Receipts, etc. In case any Receipt shall be
mutilated or destroyed or lost or stolen, the Depositary, in its discretion, may
execute and deliver a Receipt of like form and tenor in exchange and
substitution for such mutilated Receipt or in lieu of and in substitution for
such destroyed, lost or stolen Receipt, provided that the holder thereof
provides the Depositary with (i) evidence reasonably satisfactory to the
Depositary of such destruction, loss or theft of such Receipt, of the
authenticity thereof and of his ownership thereof and (ii) reasonable
indemnification satisfactory to the Depositary and the Company.
Section 2.9 Cancellation And Destruction of Surrendered Receipts.
All Receipts surrendered to the Depositary or any Depositary's Agent shall be
cancelled by the Depositary. Except as prohibited by applicable law or
regulation, the Depositary is authorized to destroy such Receipts so cancelled.
ARTICLE III
CERTAIN OBLIGATIONS OF HOLDERS OF RECEIPTS AND THE COMPANY
Section 3.1 Filing Proofs, Certificates and Other Information. Any
person presenting
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Series D Preferred Shares for deposit or any holder of a Receipt may be required
from time to time to file such proof of residence or other information, to
execute such certificates and to make such representations and warranties as the
Depositary or the Company may reasonably deem necessary or proper. The
Depositary or the Company may withhold or delay the delivery of any Receipt, the
transfer, redemption or exchange of any Receipt, the withdrawal of the deposited
Series D Preferred Shares represented by the Depositary Shares evidenced by any
Receipt, the distribution of any dividend or other distribution or the sale of
any rights or of the proceeds thereof, until such proof or other information is
filed, such certificates are executed or such representations and warranties are
made.
Section 3.2 Payment of Fees and Expenses. Holders of Receipts
shall be obligated to make payments to the Depositary of certain fees and
expenses, as provided in Section 5.7, or provide evidence reasonably
satisfactory to the Depositary that such fees and expenses have been paid. Until
such payment is made, transfer of any Receipt or any withdrawal of the Series D
Preferred Shares or money or other property, if any, represented by the
Depositary Shares evidenced by such Receipt may be refused, any dividend or
other distribution may be withheld, and any part or all of the Series D
Preferred Shares or other property represented by the Depositary Shares
evidenced by such Receipt may be sold for the account of the holder thereof
(after attempting by reasonable means to notify such holder a reasonable number
of days prior to such sale). Any dividend or other distribution so withheld and
the proceeds of any such sale may be applied to any payment of such fees or
expenses, the holder of such Receipt remaining liable for any deficiency.
Section 3.3 Representations and Warranties as to Series D
Preferred Shares. In the case of the initial deposit of the Series D Preferred
Shares hereunder, the Company and, in the case of subsequent deposits thereof,
each person so depositing Series D Preferred Shares under this Deposit Agreement
shall be deemed thereby to represent and warrant that such Series D Preferred
Shares and each certificate therefor are valid and that the person making such
deposit is duly authorized to do so. The Company hereby further represents and
warrants that such Series D Preferred Shares, when issued, will be validly
issued, fully paid and nonassessable. Such representations and warranties shall
survive the deposit of the Series D Preferred Shares and the issuance of
Receipts.
Section 3.4 Representation and Warranty as to Receipts and
Depositary Shares. The Company hereby represents and warrants that the Receipts,
when issued, will evidence legal and valid interests in the Depositary Shares
and each Depositary Share will represent a legal and valid 1/10 fractional
interest in a deposited Series D Preferred Share. Such representation and
warranty shall survive the deposit of the Series D Preferred Shares and the
issuance of Receipts evidencing the Depositary Shares.
ARTICLE IV
THE SERIES D PREFERRED SHARES; NOTICES
Section 4.1 Cash Distributions. Whenever the Depositary shall
receive any cash
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dividend or other cash distribution on the deposited Series D Preferred Shares,
including any cash received upon redemption of any Series D Preferred Shares
pursuant to Section 2.3, 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 sum as are, as nearly as practicable, in
proportion to the respective numbers of Depositary Shares evidenced by the
Receipts held by such holders; provided, however, that in case the Company or
the Depositary shall be required to and shall withhold from any cash dividend or
other cash distribution in respect of the Series D Preferred Shares represented
by the Receipts held by any holder an amount on account of taxes, the amount
made available for distribution or distributed in respect of Depositary Shares
represented by such Receipts subject to such withholding shall be reduced
accordingly. 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.
Section 4.2 Distributions Other Than Cash. Whenever the Depositary
shall receive any distribution other than cash on the deposited Series D
Preferred Shares, 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, the
Depositary may, with the approval of the Company, adopt such method as it deems
equitable and practicable for the purpose of effecting such distribution,
including the sale (at public or private sale) of the securities or property
thus received or any part thereof, at such place or places and upon such terms
as it may deem proper. The net proceeds of any such sale shall, subject to
Section 3.2, be distributed or made available for distribution, as the case may
be, by the Depositary to record holders of Receipts as provided by Section 4.1
in the case of a distribution received in cash. The Company shall not make any
distribution of such securities or property to the holders of Receipts unless
the Company shall have provided to the Depositary an opinion of counsel stating
that such securities or property have been registered under the Securities Act
or do not need to be registered.
Section 4.3 Subscription Rights, Preferences or Privileges. If the
Company shall at any time offer or cause to be offered to the persons in whose
names deposited Series D Preferred Shares are registered on the books of the
Company any rights, preferences or privileges to subscribe for or to purchase
any securities or any rights, preferences or privileges of any other nature,
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
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such record holders of warrants representing such rights, preferences or
privileges); provided, however, that (a) if at the time of issue or offer of any
such rights, preferences or privileges the Company determines upon advice of its
legal counsel that it is not lawful or feasible to make such rights, preferences
or privileges available to the holders of Receipts (by the issue of warrants or
otherwise) or (b) if and to the extent instructed by holders of Receipts who do
not desire to exercise such rights, preferences or privileges, the Depositary
shall then, if so instructed 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 and 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 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 Series D Preferred Shares, or whenever the Depositary shall receive
notice of (i) any meeting at which holders of such Series D Preferred Shares are
entitled to vote or of which holders of such Series D Preferred Shares are
entitled to notice or (ii) any election on the part of the Company to redeem any
such Series D Preferred Shares, the Depositary shall in each such instance fix a
record date (which shall be the same date as the record date fixed by the
Company with respect
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to the Series D Preferred Shares) 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 Series D Preferred Shares are entitled to
vote, the Depositary shall, as soon as practicable thereafter, mail to the
record holders of Receipts a notice, which shall be provided by the Company and
which shall contain (i) such information as is contained in such notice of
meeting, (ii) a statement that the holders of Receipts at the close of business
on a specified record date fixed pursuant to Section 4.4 will be entitled,
subject to any applicable provision of law, to instruct the Depositary as to the
exercise of the voting rights pertaining to the amount of Series D Preferred
Shares represented by their respective Depositary Shares and (iii) a brief
statement as to the manner in which such instructions may be given. Upon the
written request of a holder of a Receipt on such record date, the Depositary
shall vote or cause to be voted the amount of Series D Preferred Shares
represented by the Depositary Shares evidenced by such Receipt in accordance
with the instructions set forth in such request. To the extent such instructions
request the voting of a fractional interest of a share of deposited Series D
Preferred Shares, the Depositary shall aggregate such interest with all other
fractional interests resulting from requests with the same voting instructions
and shall vote the number of whole votes resulting from such aggregation in
accordance with the instructions received in such requests. Each Series D
Preferred Share is entitled to 10 votes and, accordingly, each Depositary Share
is entitled to one vote. The Company hereby agrees to take all reasonable action
that may be deemed necessary by the Depositary in order to enable the Depositary
to vote such Series D Preferred Shares or cause such Series D Preferred Shares
to be voted. In the absence of specific instructions from the holder of a
Receipt, the Depositary will abstain from voting to the extent of the Series D
Preferred Shares represented by the Depositary Shares evidenced by such Receipt.
The Depositary shall not be required to exercise discretion in voting any Series
D Preferred Shares represented by the Depositary Shares evidenced by such
Receipt.
Section 4.6 Changes Affecting Series D Preferred Shares and
Reclassifications, Recapitalization, etc. Upon any change in par or stated
value, split-up, combination or any other reclassification of Series D Preferred
Shares, or upon any recapitalization, reorganization, merger, amalgamation or
consolidation affecting the Company or to which it is a party or sale of all or
substantially all of the Company's assets, the Depositary shall, upon the
instructions of the Company: (i) make such adjustments in (a) the fraction of an
interest represented by one Depositary Share in one Series D Preferred Share and
(b) the ratio of the redemption price per Depositary Share to the redemption
price of a Preferred Share, in each case as may be required by or as is
consistent with the provisions of the Designating Amendment to reflect fully the
effects of such change in liquidation value, split-up, combination or other
reclassification of Shares, or of such recapitalization, reorganization, merger,
consolidation or sale and (ii) treat any shares or other securities or property
(including cash) that shall be received by the Depositary in exchange for or
upon conversion of or in respect of the Series D Preferred Shares as new
deposited property under this Deposit Agreement, and Receipts then outstanding
shall thenceforth represent the proportionate
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interests of holders thereof or the new deposited property so received in
exchange for or upon conversion or in respect of such Series D Preferred Shares.
In any such case the Depositary may, in its discretion, with approval of the
Company, execute and deliver additional Receipts, or may call for the surrender
of all outstanding Receipts to be exchanged for new Receipts specifically
describing such new deposited property. Anything to the contrary herein
notwithstanding, holders of Receipts shall have the right from and after the
effective date of any such change in par or stated value, split-up, combination
or other reclassification of the Series D Preferred Shares or any such
recapitalization, reorganization, merger, amalgamation or consolidation or sale
of substantially all the assets of the Company to surrender such Receipts to the
Depositary with instructions to convert, exchange or surrender the Series D
Preferred Shares represented thereby only into or for, as the case may be, the
kind and amount of shares and other securities and property and cash into which
the deposited Series D Preferred Shares evidenced by such Receipts might have
been converted or for which such Series D Preferred Shares might have been
exchanged or surrendered immediately prior to the effective date of such
transaction. The Company shall cause effective provision to be made in the
charter of the resulting or surviving corporation (if other than the Company)
for protection of such rights as may be applicable upon exchange of the
deposited Series D Preferred Shares for securities or property or cash of the
surviving corporation in connection with the transactions set forth above. The
Company shall cause any such surviving corporation (if other than the Company)
expressly to assume the obligations of the Company hereunder.
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 Series D Preferred
Shares and made generally available to the holders of the Series D Preferred
Shares. In addition, the Depositary shall transmit certain notices and reports
to the holders of Receipts as provided in Section 5.5.
Section 4.8 Lists of Receipt Holders. Promptly upon request from
time to time by the Company, the Depositary shall furnish to the Company a list,
as of a recent date specified by the Company, of the names, addresses and
holdings of Depositary Shares of all persons in whose names Receipts are
registered on the books of the Depositary.
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
eligible holders of Receipts if directed to do so by the Company or required to
do so by applicable law, (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
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to any tax that 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 at the Corporate
Office facilities for the execution and delivery, transfer, surrender and
exchange, split-up, combination and redemption of Receipts and deposit and
withdrawal of Series D Preferred Shares and at the offices of the Depositary's
Agents, if any, facilities for the delivery, transfer, surrender and exchange,
split-up, combination and redemption of Receipts and deposit and withdrawal of
Series D Preferred Shares, all in accordance with the provisions of this Deposit
Agreement.
The Depositary shall keep books at the Corporate Office for the
registration and transfer of Receipts, which books at all reasonable times shall
be open for inspection by the record holders of Receipts as provided by
applicable law. The Depositary may close such books, at any time or from time to
time, when deemed expedient by it in connection with the performance of its
duties hereunder.
If the Receipts or the Depositary Shares evidenced thereby or the
Series D Preferred Shares represented by such Depositary Shares shall be listed
on the New York Stock Exchange, Inc. or any other stock exchange, the Depositary
may, with the approval of the Company, appoint a Registrar (acceptable to the
Company) for registration 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
Series D Preferred Shares are listed on one or more other stock exchanges, the
Depositary will, at the request and expense of the Company, arrange such
facilities for the delivery, transfer, surrender, redemption and exchange of
such Receipts, such Depositary Shares or such Series D Preferred Shares as may
be required by law or applicable stock exchange regulations.
Section 5.2 Prevention or Delay in Performance by the Depositary,
the Depositary's Agents, the Registrar or the Company. Neither the Depositary,
any Depositary's Agent, any Registrar nor the Company shall incur any liability
to any holder of any Receipt, if by reason of any provision of any present or
future law or regulation thereunder of the United States of America or of any
other governmental authority or, in the case of the Depositary, the Depositary's
Agent or the Registrar, by
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reason of any provision, present or future, of the Articles of Incorporation or
the Designating Amendment 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, the
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 Series D Preferred Shares), gross negligence or willful
misconduct in the performance of such duties as are specifically set forth in
this Deposit Agreement.
Neither the Depositary, any Depositary's Agent, any Registrar nor
the Company shall be under any obligation to appear in, prosecute or defend any
action, suit or other proceeding with respect to the deposited Series D
Preferred Shares, Depositary Shares or Receipts that in its reasonable opinion
may involve it in expense or liability unless indemnity reasonably satisfactory
to it against all expense and liability be furnished as often as may be
required.
Neither the Depositary, any Depositary's Agent, any Registrar nor
the Company shall be liable for any action or any failure to act by it in
reliance upon the written advice of legal counsel or accountants, or information
provided by any person presenting Series D Preferred Shares for deposit, any
holder of a Receipt or any other person believed by it in good faith to be
competent to give such information. The Depositary, any Depositary's Agent, any
Registrar and the Company may each rely and shall each be protected in acting
upon any written notice, request, direction or other document believed by it in
good faith to be genuine and to have been signed or presented by the proper
party or parties.
In the event the Depositary shall receive conflicting claims,
requests or instructions from any holders of Receipts, on the one hand, and the
Company, on the other hand, the Depositary shall be entitled to act on such
claims, requests or instructions received from the Company, and shall be
entitled to the full indemnification set forth in Section 5.6 hereof in
connection with any action so taken.
The Depositary shall not be responsible for any failure to carry
out any instruction to vote any of the deposited Series D Preferred Shares or
for the manner or effect of any such vote made, as long as any such action or
non-action is in good faith and does not result from negligence or
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willful misconduct of the Depositary. The Depositary undertakes, and any
Registrar shall be required to undertake, to perform such duties and only such
duties as are specifically set forth in this Deposit Agreement, and no implied
covenants or obligations shall be read into this Agreement against the
Depositary or any Registrar.
The Depositary, its parent, affiliate, or subsidiaries, any
Depositary's Agent, and any Registrar may own, buy, sell or deal in any class of
securities of the Company and its affiliates and in Receipts or Depositary
Shares or become pecuniarily interested in any transaction in which the Company
or its affiliates may be interested or contract with or lend money to or
otherwise act as fully or as freely as if it were not the Depositary or the
Depositary's Agent hereunder. The Depositary may also act as transfer agent or
registrar of any of the securities of the Company and its affiliates or act in
any other capacity for the Company or its affiliates.
It is intended that neither the Depositary nor any Depositary's
Agent shall be deemed to be an "issuer" of the securities under the federal
securities laws or applicable state securities laws, it being expressly
understood and agreed that the Depositary and any Depositary's Agent are acting
only in a ministerial capacity as Depositary for the deposited Series D
Preferred Shares; provided, however, that the Depositary agrees to comply with
all information reporting and withholding requirements applicable to it under
law or this Deposit Agreement in its capacity as Depositary.
The Company agrees that it will register the deposited Series D
Preferred Shares and the Depositary Shares if required by 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 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
-16-
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 Series D Preferred
Shares and any moneys or property held hereunder to such successor and shall
deliver to such successor a list of the record holders of all outstanding
Receipts. Any successor depositary shall promptly mail notice of its appointment
to the record holders of Receipts.
Any corporation into or with which the Depositary may be merged,
consolidated or converted shall be the successor of such Depositary without the
execution or filing of any document or any further act. Such successor
depositary may execute the Receipts either in the name of the predecessor
depositary or in the name of the successor depositary.
Section 5.5 Notices, Reports and Documents. The Company agrees
that it will deliver to the Depositary, and the Depositary will, promptly after
receipt thereof, transmit to the record holders of Receipts, in each case at the
address recorded in the Depositary's books, copies of all notices and reports
(including financial statements) required by law, by the rules of any national
securities exchange upon which the Series D Preferred Shares, the Depositary
Shares or the Receipts are included for quotation or listed or by the Articles
of Incorporation and the Designating Amendment to be furnished by the Company to
holders of the deposited Series D Preferred Shares and, if requested by the
holder of any Receipt, a copy of this Deposit Agreement, the form of Receipt,
the Designating Amendment and the form of Series D Preferred Shares. Such
transmission will be at the Company's expense and the Company will provide the
Depositary with such number of copies of such documents as the Depositary may
reasonably request. In addition, the Depositary will transmit to the record
holders of Receipts at the Company's expense such other documents as may be
requested by the Company.
Section 5.6 Indemnification by the Company. The Company agrees to
indemnify the Depositary, 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, gross negligence, negligence (in the case of any action or
inaction with respect to the voting of the deposited Series D Preferred Shares)
or bad faith on the part of any such person or persons. The obligations of the
Company set forth in this Section 5.6 shall survive any succession of any
Depositary, Registrar or Depositary's Agent or termination of this Deposit
Agreement.
Section 5.7 Fees, Charges and Expenses. No charges and expenses of
the Depositary or any Depositary's Agent hereunder shall be payable by any
person, except as provided in this Section 5.7. The Company shall pay all
transfer and other taxes and governmental charges arising solely from the
existence of this Deposit Agreement. The Company shall also pay all fees and
expenses of the Depositary in connection with the initial deposit of the Series
D Preferred Shares and the initial issuance of the Depositary Shares evidenced
by the Receipts, any redemption of the Series D Preferred Shares at the option
of the Company and all withdrawals of the Series D Preferred Shares by holders
of Depositary Shares. If a holder of Receipts requests the Depositary to perform
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duties not required under this Deposit Agreement, the Depositary shall notify
the holder of the cost of the performance of such duties prior to the
performance thereof. Such holder will be liable for the charges and expenses
related to such performance. All other fees and expenses of the Depositary and
any Depositary's Agent hereunder and of any Registrar (including, in each case,
fees and expenses of counsel) incident to the performance of their respective
obligations hereunder will be promptly paid as 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 VI
AMENDMENT AND TERMINATION
Section 6.1 Amendment. The form of the Receipts and any provision
of this Deposit Agreement may at any time and from time to time be amended by
agreement between the Company and the Depositary in any respect that they may
deem necessary or desirable; provided, however, that no such amendment (other
than any change in the fees of any Depositary, Registrar or Transfer Agent)
which (i) shall materially and adversely alter the rights of the holders of
Receipts or (ii) would be materially and adversely inconsistent with the rights
granted to the holders of the Series D Preferred Shares pursuant to the
Designating Amendment shall be effective unless such amendment shall have been
approved by the holders of 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 and Section 2.7 and Article III, of any holder of any
Depositary Shares to surrender the Receipt evidencing such Depositary Shares
with instructions to the Depositary to deliver to the holder the deposited
Series D Preferred Shares and all money and other property, if any, represented
thereby, except in order to comply with mandatory provisions of applicable law.
Every holder of an outstanding Receipt at the time any such amendment becomes
effective shall be deemed, by continuing to hold such Receipt, to consent and
agree to such amendment and to be bound by this Deposit Agreement as amended
thereby.
Section 6.2 Termination. This Deposit Agreement may be terminated
by the Company upon not less than 30 days' prior written notice to the
Depositary if (i) such termination is necessary to preserve the Company's status
as a real estate investment trust under the Internal Revenue Code of 1986, as
amended (or any successor provisions) or (ii) the holders of a majority of the
Series D Preferred 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 Series D Preferred Shares that are represented by the Depositary
Shares evidenced by such Receipt, together with any other property held by the
Depositary in respect of such Receipt. In the event that this Deposit Agreement
is terminated pursuant to clause (i) of the immediately preceding sentence, the
Company hereby agrees to use its best efforts to list the Series D Preferred
Shares issued upon surrender of the Receipt evidencing the Depositary Shares
represented thereby on a national securities exchange. This Deposit Agreement
will automatically terminate if (i) all outstanding Depositary Shares shall have
been redeemed
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pursuant to Section 2.3 or (ii) there shall have been made a final distribution
in respect of the deposited Series D Preferred Shares in connection with any
liquidation, dissolution or winding up of the Company and such distribution
shall have been distributed to the holders of Receipts entitled thereto.
Upon the termination of this Deposit Agreement, the Company shall
be discharged from all obligations under this Deposit Agreement except for its
obligations to the Depositary, any Depositary's Agent and any Registrar under
Section 5.6 and Section 5.7.
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 and
the respective offices of the Depositary's Agents, if any, by any holder of a
Receipt.
Section 7.2 Exclusive Benefit of Parties. This Deposit Agreement
is for the exclusive benefit of the parties hereto, and their respective
successors hereunder, and shall not be deemed to give any legal or equitable
right, remedy or claim to any other person whatsoever.
Section 7.3 Invalidity of Provisions. In case any one or more of
the provisions contained in this Deposit Agreement or in the Receipts should be
or become invalid, illegal or unenforceable in any respect, the validity,
legality or 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:
Highwoods Properties, Inc.
0000 Xxxxxxxxx Xxxxx
Xxxxx 000
Xxxxxxx, Xxxxx Xxxxxxxx 00000
Attention: Xxxx X. Xxxxxxx, III
Telephone No.: (000) 000-0000
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or at any other address of which the Company shall have notified the Depositary
in writing.
Any notices to be given to the Depositary hereunder or under the
Receipts shall be in writing and shall be deemed to have been duly given if
personally delivered or sent by mail, or by telegram or telex or telecopier
confirmed by letter, addressed to the Depositary at the Corporate Office.
Any notices given to any record holder of a Receipt hereunder or
under the Receipts shall be in writing and shall be deemed to have been duly
given if personally delivered or sent by mail, or by telegram or telex or
telecopier confirmed by letter, addressed to such record holder at the address
of such record holder as it appears on the books of the Depositary or, if such
holder shall have filed with the Depositary in a timely manner a written request
that notices intended for such holder be mailed to some other address, at the
address designated in such request.
Delivery of a notice sent by mail, or by telegram or telex or
telecopier shall be deemed to be effected at the time when a duly addressed
letter containing the same (or a confirmation thereof in the case of a telegram
or telex or telecopier message) is deposited, postage prepaid, in a post office
letter box. The Depositary or the Company may, however, act upon any telegram or
telex or telecopier message received by it from the other or from any holder of
a Receipt, notwithstanding that such telegram or telex or telecopier message
shall not subsequently be confirmed by letter as aforesaid.
Section 7.5 Depositary's Agents. The Depositary may from time to
time appoint Depositary's Agents to act in any respect for the Depositary for
the purposes of this Deposit Agreement and may at any 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 North
Carolina applicable to agreements made and to be performed in said State.
Section 7.8 Inspection of Deposit Agreement and Designating
Amendment. Copies of this Deposit Agreement and the Designating Amendment 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
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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.
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IN WITNESS WHEREOF, Highwoods Properties, Inc. and First Union
National Bank 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.
HIGHWOODS PROPERTIES, INC.
By: _____________________________
Name:
Title:
FIRST UNION NATIONAL BANK
By: _____________________________
Name:
Title:
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EXHIBIT A
[FORM OF FACE OF RECEIPT]
DEPOSITARY RECEIPT FOR DEPOSITARY SHARES
EACH REPRESENTING A 1/10 INTEREST IN ONE
8% SERIES D CUMULATIVE REDEEMABLE PREFERRED SHARE
OF
DR-____ DEPOSITARY SHARES
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THIS CERTIFICATES IS TRANSFERABLE
IN CHARLOTTE, NORTH CAROLINA
OR IN NEW YORK CITY
SEE REVERSE FOR CERTAIN DEFINITIONS
CUSIP 431284 50 4
[LOGO] HIGHWOODS PROPERTIES, INC.
(a Maryland corporation)
First Union National Bank, as Depositary (the "Depositary"), hereby
certifies that ____________________ is the registered owner of _________
DEPOSITARY SHARES ("Depositary Shares"), each Depositary Share representing 1/10
of one 8% Series D Cumulative Redeemable Preferred Share, $0.01 par value per
share, of Highwoods Properties, Inc., a Maryland corporation (the
"Corporation"), on deposit with the Depositary, subject to the terms and
entitled to the benefits of the Deposit Agreement, dated as of April 23, 1998
(the "Deposit Agreement"), among the Corporation, the Depositary and the holders
from time to time of Receipts for Depositary Shares. By accepting this Receipt,
the holder hereof becomes a party to and agrees to be bound by all the terms and
conditions of the Deposit Agreement. This Receipt shall not be valid or
obligatory for any purpose or entitled to any benefits under the Deposit
Agreement unless it shall have been executed by the Depositary by the manual or
facsimile signature of a duly authorized officer or, if a Registrar in respect
of the Receipts (other than the Depositary) shall have been appointed, by the
manual signature of a duly authorized officer of such Registrar.
Dated: FIRST UNION NATIONAL BANK,
Depositary, Registrar & Transfer Agent
By: ________________________
Authorized Signatory
FURTHER CONDITIONS AND AGREEMENTS FORMING PART OF THIS DEPOSITARY RECEIPT APPEAR
ON THE REVERSE SIDE.
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[FORM OF REVERSE RECEIPT]
HIGHWOODS PROPERTIES, INC.
THE SHARES OF CAPITAL STOCK REPRESENTED BY THIS CERTIFICATE ARE SUBJECT
TO RESTRICTIONS ON TRANSFER FOR THE PURPOSE OF THE CORPORATION'S MAINTENANCE OF
ITS STATUS AS A REAL ESTATE INVESTMENT TRUST UNDER THE INTERNAL REVENUE CODE OF
1986, AS AMENDED. NO PERSON MAY BENEFICIALLY OWN SHARES OF CAPITAL STOCK IN
EXCESS OF 9.8%OF THE OUTSTANDING CAPITAL STOCK OF THE CORPORATION. ANY PERSON
WHO ATTEMPTS TO BENEFICIALLY OWN SHARES OF CAPITAL STOCK IN EXCESS OF THE ABOVE
LIMITATION MUST IMMEDIATELY NOTIFY THE CORPORATION; ANY SHARES OF CAPITAL STOCK
SO HELD MAY BE SUBJECT TO MANDATORY REDEMPTION OR SALE IN CERTAIN EVENTS, AND
ACQUISITIONS OF SHARES OF CAPITAL STOCK IN EXCESS OF SUCH LIMITATION SHALL BE
VOID AB INITIO. A PERSON WHO ATTEMPTS TO BENEFICIALLY OWN SHARES OF THE
CORPORATION'S CAPITAL STOCK IN VIOLATION OF THE OWNERSHIP LIMITATIONS SET FORTH
IN SECTION 6.2 OF THE AMENDED AND RESTATED ARTICLES OF INCORPORATION SHALL HAVE
NO CLAIM, CAUSE OF ACTION, OR ANY OTHER RECOURSE WHATSOEVER AGAINST A TRANSFEROR
OF SUCH SHARES. ALL CAPITALIZED TERMS IN THIS LEGEND HAVE THE MEANINGS DEFINED
IN THE CORPORATION'S AMENDED AND RESTATED ARTICLES OF INCORPORATION, A COPY OF
WHICH, INCLUDING THE RESTRICTIONS ON TRANSFER, WILL BE SENT WITHOUT CHARGE TO
EACH STOCKHOLDER WHO SO REQUESTS.
THE CORPORATION WILL FURNISH TO THE REGISTERED HOLDER OF THIS
DEPOSITARY RECEIPT, UPON REQUEST AND WITHOUT CHARGE, A STATEMENT OF ALL THE
POWERS, DESIGNATIONS, PARTICIPATING, OPTIONAL OR OTHER SPECIAL RIGHTS OF EACH
CLASS OF STOCK ISSUED BY THE CORPORATION AND THE QUALIFICATIONS, LIMITATIONS OR
RESTRICTIONS OF SUCH PREFERENCES AND/OR OTHER SPECIAL RIGHTS, AND A COPY OF THE
DEPOSIT AGREEMENT AND THE DESIGNATING AMENDMENT WITH RESPECT TO THE 8% SERIES D
REDEEMABLE PREFERRED SHARES. REQUESTS FOR SUCH COPIES MAY BE DIRECTED TO THE
SECRETARY OF THE CORPORATION OR TO THE DEPOSITARY NAMED ON THE FACE OF THIS
RECEIPT.
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The following abbreviations, when used in the inscription on the face
of this certificate, shall be construed as though they were written out in full
according to applicable laws or regulations:
TEN COM - as tenant in common UNIF GIFT MIN ACT - ________ Custodian ________
(Cust) (Minor)
TEN ENT - as tenants by the entireties Under Uniform Gifts to Minors
Act _________________
(State)
JT TEN - as joint tenants with right of
survivorship and not as tenants
in common
Additional abbreviations may also be used though not in the above list.
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 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.
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Dated__________________
NOTICE: THE SIGNATURE TO THIS ASSIGNMENT MUST CORRESPOND WITH THE
NAME AS WRITTEN UPON THE FACE OF THIS CERTIFICATE IN EVERY
PARTICULAR, WITHOUT ALTERATION OR ENLARGEMENT OR ANY
CHANGE WHATEVER.
SIGNATURE(S) GUARANTEED: ---------------------------------------------------------
THE SIGNATURE(S) SHOULD BE GUARANTEED BY AN
ELIGIBLE GUARANTOR INSTITUTION (BANKS,
STOCKBROKERS, SAVINGS AND LOAN ASSOCIATIONS
AND CREDIT UNIONS WITH MEMBERSHIP IN AN
APPROVED SIGNATURE GUARANTEE MEDALLION
PROGRAM), PURSUANT TO S.E.C. RULE 17Ad-15.
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