EXHIBIT 4.3
DEPOSIT AGREEMENT
between
Xxxxxxx X. Xxxxx Residential Realty, Inc.
and
[Depositary]
, 1997
TABLE OF CONTENTS
PAGE
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1. DEFINITIONS............................................................. 1
2. FORM OF RECEIPTS, DEPOSIT OF PREFERRED SHARES, EXECUTION AND
DELIVERY, TRANSFER, SURRENDER AND REDEMPTION OF RECEIPTS............... 3
2.1. Form and Transferability of Receipts.............................. 3
2.2. Deposit of Preferred Stock; Execution and Delivery of Receipts
in Respect Thereof............................................... 4
2.3. Optional Redemption of Preferred Stock for Cash................... 5
2.4. Registration of Transfers of Receipts............................. 7
2.5. Combinations and Split-ups of Receipts............................ 7
2.6. Surrender of Receipts and Withdrawal of Preferred Stock........... 7
2.7. Limitations on Execution and Delivery, Transfer, Split-up,
Combination, Surrender and Exchange of Receipts.................. 8
2.8. Lost Receipts, etc................................................ 9
2.9. Cancellation and Destruction of Surrendered Receipts.............. 9
2.10. Conversion of Preferred Stock into Excess Preferred Stock........ 9
3. CERTAIN OBLIGATIONS OF HOLDERS OF RECEIPTS AND THE COMPANY.............. 10
3.1. Filing Proofs, Certificates and Other Information................. 10
3.2. Payment of Fees and Expenses...................................... 10
3.3. Representations and Warranties as to Preferred Stock.............. 11
3.4. Representation and Warranty as to Receipts and Depositary Shares.. 11
4. THE PREFERRED SHARES; NOTICES........................................... 11
4.1. Cash Distributions................................................ 11
4.2. Distributions Other Than Cash..................................... 12
4.3. Subscription Rights, Preferences or Privileges.................... 12
4.4. Notice of Dividends; Fixing of Record Date for Holders of
Receipts......................................................... 13
4.5. Voting Rights..................................................... 14
4.6. Changes Affecting Preferred Stock and Reclassifications,
Recapitalization, etc............................................ 14
4.7. Inspection of Reports............................................. 15
4.8. Lists of Receipt Holders.......................................... 16
4.9. Tax and Regulatory Compliance..................................... 16
4.10. Withholding...................................................... 16
5. THE DEPOSITARY AND THE COMPANY.......................................... 16
5.1. Maintenance of Offices, Agencies and Transfer Books by the
Depositary and the Registrar..................................... 16
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5.2. Prevention or Delay in Performance by the Depositary, the
Depositary's Agents, the Registrar or the Company................ 17
5.3. Obligations of the Depositary, the Depositary's Agents, the
Registrar and the Company........................................ 17
5.4. Resignation and Removal of the Depositary; Appointment of
Successor Depositary............................................. 19
5.5. Notices, Reports and Documents.................................... 20
5.6. Indemnification by the Company.................................... 20
5.7. Fees, Charges and Expenses........................................ 21
6. AMENDMENT AND TERMINATION............................................... 21
6.1. Amendment......................................................... 21
6.2. Termination....................................................... 22
7. MISCELLANEOUS........................................................... 22
7.1. Counterparts...................................................... 22
7.2. Exclusive Benefits of Parties..................................... 23
7.3. Invalidity of Provisions.......................................... 23
7.4. Notices........................................................... 23
7.5. Depositary's Agents............................................... 24
7.6. Holders of Receipts Are Parties................................... 24
7.7. Governing Law..................................................... 24
7.8. Inspection of Deposit Agreement and Articles Supplementary........ 24
7.9. Headings.......................................................... 25
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DEPOSIT AGREEMENT
THIS DEPOSIT AGREEMENT, dated as of , 1997 among XXXXXXX X. XXXXX
RESIDENTIAL REALTY, INC., a Maryland corporation (the "Company"), and ,
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 of shares of the Company's 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 representing a fractional interest in the shares
of Preferred Stock deposited; and
WHEREAS, the Receipts are to be substantially in the form of Exhibit A
annexed to this Deposit Agreement, with appropriate insertions, modifications
and omissions, as hereinafter provided in this Deposit Agreement;
NOW, THEREFORE, in consideration of the premises contained herein, it is
agreed by and among the parties hereto as follows:
ARTICLES
1. 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:
"Articles Supplementary" shall mean the Articles Supplementary filed with
the Maryland State Department of Assessments and Taxation establishing the
Preferred Stock as a series of Preferred Stock of the Company.
"Common Stock" shall mean the Company's common stock, $.01 par value per
share.
"Company" shall mean Xxxxxxx X. Xxxxx Residential Realty, Inc., and its
successors.
"Corporate Office" shall mean the corporate office of the Depositary at
which at any particular time its business in respect of matters governed by
this Deposit Agreement shall be administered, which at the date of this
Deposit Agreement is located at .
"Deposit Agreement" shall mean this agreement, as the same may be
amended, modified or supplemented from time to time.
"Depositary" shall mean , a company having its principal office in
the United States and having a combined capital and surplus of at least
$50,000,000, and any successor as depositary hereunder.
"Depositary Share" shall mean a fractional interest of 1/10 of a share of
Preferred Stock deposited with the Depositary hereunder and the same
proportionate interest in any and all other property received by the
Depositary in respect of such share of Preferred Stock and held under this
Deposit Agreement, all as evidenced by the Receipts issued hereunder. Subject
to the terms of this Deposit Agreement, each owner of a Depositary Share is
entitled, proportionately, to all the rights, preferences and privileges of
the share of Preferred Stock represented by such Depositary Share, including
the dividend, voting, redemption, conversion and liquidation rights contained
in the Articles Supplementary.
"Depositary's Agent" shall mean an agent appointed by the Depositary as
provided, and for the purposes specified, in Section 7.5.
"Excess Preferred Stock" shall mean shares of the Company's Series A
Excess Preferred Stock to be issued pursuant to Section 2.10.
"Preferred Stock" shall mean the Company's Series A Cumulative Redeemable
Preferred Stock, $0.01 par value per share, heretofore validly issued, fully
paid and nonassessable.
"Receipt" shall mean a Depositary Receipt issued hereunder to evidence
one or more Depositary Shares, whether in definitive or temporary form,
substantially in the form set forth as Exhibit A hereto.
"Record Date" shall mean the date fixed pursuant to Section 4.4.
"Record Holder" or "Holder" as applied to a Receipt shall mean the person
in whose name a Receipt is registered on the books maintained by the
Depositary for such purpose.
"Registrar" shall mean or any bank or trust company appointed to
register ownership and transfers of Receipts, the deposited Preferred Stock
or Excess Preferred Stock, as the case may be, as herein provided.
"Securities Act" shall mean the Securities Act of 1933, as amended.
"Transfer Agent" shall mean or any bank or trust company appointed
to transfer the Receipts, the deposited Preferred Stock or Excess Preferred
Stock, as the case may be, as herein provided.
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2. FORM OF RECEIPTS, DEPOSIT OF PREFERRED SHARES, EXECUTION AND DELIVERY,
TRANSFER, SURRENDER AND REDEMPTION OF RECEIPTS
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 shares of
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.
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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 emulations
of any securities exchange upon which the shares of Preferred Stock, the
Depositary Shares or the Receipts may be listed or to conform with any usage
with respect thereto, or to indicate any special limitations or restrictions
to which any particular Receipts are subject.
Title to any Receipt (and to the Depositary Shares evidenced by such
Receipt), that is properly endorsed or accompanied by a properly executed
instrument of transfer or endorsement shall be transferable by delivery with
the same effect as in the case of a negotiable instrument; provided, however,
that until a Receipt shall be transferred on the books of the Depositary as
provided in Section 2.4, the Depositary may, notwithstanding any notice to
the contrary, treat the record holder thereof at such time as the absolute
owner thereof for the purpose of determining the person entitled to
distribution of dividends or other distributions, the exercise of any
conversion rights or to any notice provided for in this Deposit Agreement and
for all other purposes.
2.2. Deposit of Preferred Stock; Execution and Delivery of Receipts in
Respect Thereof.
Concurrently with the execution of this Deposit Agreement, the Company is
delivering to the Depositary a certificate or certificates, registered in the
name of the Depositary and evidencing [ ] 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 Preferred Stock. The Depositary acknowledges receipt of
the deposited shares of Preferred Stock and related documentation and agrees
to hold such deposited shares of 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 Preferred Stock deposited hereunder
and any Excess Preferred Stock issued pursuant to Section 2.10 and the
Depositary hereby accepts such appointment and, as such, will reflect changes
in the number of shares (including any fractional shares) of deposited
Preferred Stock held by it by notation, book-entry or other appropriate
method.
If required by the Depositary, Preferred Stock presented for deposit by
the Company at any time, whether or not the register of shareholders of the
Company
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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 Preferred Stock or to receive other
property that any person in whose name the Preferred Stock are or have been
registered may thereafter receive upon or in respect of such deposited
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
Preferred Stock deposited hereunder, together with the other documents
specified above, and upon registering such Preferred Stock in the name of the
Depositary, the Depositary, subject to the terms and conditions of this
Deposit Agreement, shall execute and deliver to, or upon the order of, the
person or persons named in the written order delivered to the Depositary
referred to in the first paragraph of this Section 2.2, a Receipt or Receipts
for the number of whole Depositary Shares representing the shares of
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 Preferred Stock, or in the case of dividends or other
distributions of Preferred Stock, if any, there shall be deposited hereunder
not more than the number of shares constituting the Preferred Stock as set
forth in the 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.
2.3. Optional Redemption of Preferred Stock for Cash.
Whenever the Company shall elect to redeem deposited Preferred Stock for
cash in accordance with the provisions of the Articles Supplementary, it
shall (unless otherwise agreed in writing with the Depositary) give the
Depositary not less than 60 days' prior written notice of the date of such
proposed redemption and of the number of such shares of Preferred Stock held
by the Depositary to be redeemed and the applicable redemption price, as set
forth in the 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 Preferred
Stock and the proposed simultaneous redemption of the Depositary Shares
representing the Preferred Stock to be redeemed, not less than 30 and not
more than 60 days prior to the date fixed for redemption of such Preferred
Stock and Depositary Shares (the "cash redemption
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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 shares of 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 for payment of the cash redemption price;
and that from and after the cash redemption date dividends in respect of the
Preferred Stock represented by the Depositary Shares to be redeemed will
cease to accrue. If fewer than all the outstanding Depositary Shares are to
be redeemed, the Depositary Shares to be redeemed shall be selected pro rata
(as nearly as may be practicable without creating fractional Depositary
Shares) or by any other equitable method determined by the Company that will
not result in the issuance of any Excess Preferred Stock. 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
Articles Supplementary) of the Preferred Stock 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 shares of Preferred Stock so called for redemption by the
Company and from and after the cash redemption date (unless the Company shall
have failed to redeem the Preferred Stock 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 Preferred Stock called for redemption shall cease
to accrue, the Depositary Shares called for redemption shall be deemed no
longer to be outstanding and all rights of the holders of Receipts evidencing
such Depositary Shares (except the right to receive the cash redemption price
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 such Preferred
Stock. The foregoing shall be further subject to the terms and conditions of
the Articles Supplementary.
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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.
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.
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.
2.6. Surrender of Receipts and Withdrawal of Preferred Stock.
Any holder of a Receipt or Receipts may withdraw any or all of the
deposited Preferred Stock represented by the Depositary Shares evidenced by
such Receipt or Receipts and all money and other property, if any,
represented by such Depositary Shares by surrendering such Receipt or
Receipts at the Corporate Office or at such other office as the Depositary
may designate for such withdrawals; provided that a holder of a Receipt or
Receipts may not withdraw such Preferred Stock (or money and other property,
if any, represented thereby) which has previously been called for redemption
or which has been converted to Excess Preferred Stock in accordance with
Section 2.10. After such surrender, without unreasonable delay, the
Depositary shall deliver to such holder, or to the person or persons
designated by such holder as hereinafter provided, the number of whole or
fractional shares of such Preferred Stock and all such money and other
property, if any, represented by the Depositary Shares evidenced by the
Receipt or Receipts so surrendered for
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withdrawal, but holders of such whole or fractional Preferred Stock will not
thereafter be entitled to deposit such Preferred Stock hereunder or to
receive Depositary Shares therefor. If the Receipt or Receipts delivered by
the holder to the Depositary in connection with such withdrawal shall
evidence a number of Depositary Shares in excess of the number of Depositary
Shares representing the number of whole or fractional shares of deposited
Preferred Stock to be withdrawn, the Depositary shall at the same time, in
addition to such number of whole or fractional Preferred Stock and such money
and other property, if any, to be withdrawn, deliver to such holder, or
(subject to Section 2.4) upon his order, a new Receipt or Receipts evidencing
such excess number of Depositary Shares. Delivery of such Preferred Stock and
such money and other property being withdrawn may be made by the delivery of
such certificates, documents of title and other instruments as the Depositary
may deem appropriate, which, if required by the Depositary, shall be properly
endorsed or accompanied by proper instruments of transfer.
If the deposited Preferred Stock and the money and other property being
withdrawn are to be delivered to a person or persons other than the record
holder of the Receipt or Receipts being surrendered for withdrawal of
Preferred Stock, such holder shall execute and deliver to the Depositary a
written order so directing the Depositary and the Depositary may require that
the Receipt or Receipts surrendered by such holder for withdrawal of such
Preferred Stock be properly endorsed in blank or accompanied by a properly
executed instrument of transfer or endorsement in blank.
The Depositary shall deliver the deposited Preferred Stock and the money
and other property, if any, represented by the Depositary Shares evidenced by
Receipts surrendered for withdrawal at the 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.
2.7. Limitations on Execution and Delivery, Transfer, Split-up,
Combination, Surrender and Exchange of Receipts.
As a condition precedent to the execution and delivery, transfer,
split-up, combination, surrender or exchange of any Receipt, the Depositary,
any of the Depositary's Agents or the Company may require any or all of the
following: (i) payment to it of a sum sufficient for the payment (or, in the
event that the Depositary or the Company shall have made such payment, the
reimbursement to it) of any tax or other governmental charge with respect
thereto (including any such tax or charge with respect to the Preferred Stock
being deposited or withdrawn); (ii) 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
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the provisions of this Deposit Agreement as may be required by any securities
exchange upon which the deposited Preferred Stock, the Depositary Shares or
the Receipts may be included for quotation or listed.
The deposit of Preferred Stock may be refused, the delivery of Receipts
against Preferred Stock may be suspended, the transfer of Receipts may be
refused, and the transfer, split-up, combination, surrender, exchange or
redemption of outstanding Receipts may be suspended (i) during any period
when the register of shareholders of the Company is closed or (ii) if any
such action is deemed reasonably necessary or advisable by the Depositary,
any of the Depositary's Agents or the Company at any time or from time to
time because of any requirement of law or of any government or governmental
body or commission, or under any provision of this Deposit Agreement.
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.
2.9. Cancellation and Destruction of Surrendered Receipts.
All Receipts surrendered to the Depositary or any Depositary's Agent
shall be canceled by the Depositary. Except as prohibited by applicable law
or regulation, the Depositary is authorized to destroy such Receipts so
canceled.
2.10. Conversion of Preferred Stock into Excess Preferred Stock
As provided in the Articles Supplementary, upon the happening of certain
events, Preferred Stock (in whole or fractional parts) shall be automatically
converted into Excess Preferred Stock. In the event of such a conversion, the
Receipt representing the deposited Preferred Stock so converted shall no
longer represent, to the extent of the shares so converted, such deposited
Preferred Stock. Promptly upon its knowledge of the conversion of such
deposited Preferred Stock into Excess Preferred Stock, the Company shall
notify the Depositary of such conversion, the number of deposited Preferred
Stock so converted, and the identity of the holder of the Receipt so
affected, whereupon the Depositary shall promptly notify the holder of such
Receipt of the foregoing information and the requirement for the holder to
surrender such Receipt to the Depositary for cancellation of the
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number of Depositary Shares evidenced thereby equal to the converted
deposited Preferred Stock represented thereby.
If fewer than all of the Depositary Shares evidenced by a Receipt are
required to be surrendered for cancellation, the Depositary will deliver to
the holder of such Receipt upon its surrender to the Depositary a new Receipt
evidencing the Depositary Shares evidenced by such prior Receipt and not
required to be surrendered for cancellation. Upon the conversion of the
deposited Preferred Stock and cancellation of the Depositary Shares
represented thereby, the Depositary will make appropriate adjustments in its
records (as contemplated in Section 2.2) to reflect such conversion and
cancellation (including the reduction of any fractional share of deposited
Preferred Stock and the issuance of any Excess Preferred Stock).
3. CERTAIN OBLIGATIONS OF HOLDERS OF RECEIPTS AND THE COMPANY
3.1. Filing Proofs, Certificates and Other Information.
Any person presenting Preferred Stock for deposit or any holder of a
Receipt may be required from time to time to file such proof of residence or
other information, to execute such certificates and to make such
representations and warranties as the Depositary or the Company may
reasonably deem necessary or proper. The Depositary or the Company may
withhold or delay the delivery of any Receipt, the transfer, redemption or
exchange of any Receipt, the withdrawal of the deposited Preferred Stock
represented by the Depositary Shares evidenced by any Receipt, the
distribution of any dividend or other distribution or the sale of any rights
or of the proceeds thereof, until such proof or other information is filed,
such certificates are executed or such representations and warranties are
made.
3.2. Payment of Fees and Expenses.
Holders of Receipts shall be obligated to make payments to the Depositary
of certain fees and expenses, as provided in Section 5.7, or provide evidence
reasonably satisfactory to the Depositary that such fees and expenses have
been paid. Until such payment is made, transfer of any Receipt or any
withdrawal of the Preferred Stock or money or other property, if any,
represented by the Depositary Shares evidenced by such Receipt may be
refused, any dividend or other distribution may be withheld, and any part or
all of the Preferred Stock or other property represented by the Depositary
Shares evidenced by such Receipt may be sold for the account of the holder
thereof (after attempting by reasonable means to notify such holder a
reasonable number of days prior to such sale). Any dividend or other
distribution so withheld and the proceeds of any such sale may be applied to
any payment of such fees or expenses, the holder of such Receipt remaining
liable for any deficiency.
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3.3. Representations and Warranties as to Preferred Stock.
In the case of the initial deposit of the Preferred Stock hereunder, the
Company and, in the case of subsequent deposits thereof, each person so
depositing Preferred Stock under this Deposit Agreement shall be deemed
thereby to represent and warrant that such Preferred Stock and each
certificate therefor are valid and that the person making such deposit is
duly authorized to do so. The Company hereby further represents and warrants
that such Preferred Stock, when issued, will be validly issued, fully paid
and nonassessable. Such representations and warranties shall survive the
deposit of the Preferred Stock and the issuance of Receipts.
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 share of Preferred Stock. Such representation and
warranty shall survive the deposit of the Preferred Stock and the issuance of
Receipts evidencing the Depositary Shares.
4. THE PREFERRED SHARES; NOTICES
4.1. Cash Distributions.
Whenever the Depositary shall receive any cash dividend or other cash
distribution on the deposited Preferred Stock, including any cash received
upon redemption of any Preferred Stock 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 (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 Preferred Stock represented by the Receipts
held by any holder an amount on account of taxes, the amount made available
for distribution or distributed in respect of Depositary Shares represented
by such Receipts subject to such withholding shall be reduced accordingly and
(ii) no cash dividends will be paid in respect of any Depositary Share to the
extent that it represents any Preferred Stock converted into 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
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be treated as part of the next sum received by the Depositary for
distribution to record holders of Receipts then outstanding.
4.2. Distributions Other Than Cash.
Whenever the Depositary shall receive any distribution other than cash on
the deposited Preferred Stock, the Depositary shall, subject to Section 3.2,
distribute to record holders of Receipts on the record date fixed pursuant to
Section 4.4 such amounts of the securities or property received by it as are,
as nearly as practicable, in proportion to the respective numbers of
Depositary Shares evidenced by the Receipts held by such holders, in any
manner, that the Depositary and the Company may deem equitable and
practicable for accomplishing such distribution, except that no distribution
will be made in respect of any Depositary Share to the extent that it
represents any Preferred Stock converted into Excess Preferred Stock. 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.
4.3. Subscription Rights, Preferences or Privileges.
If the Company shall at any time offer or cause to be offered to the
persons in whose names deposited Preferred Stock 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 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
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otherwise) or (b) if and to the extent instructed by holders of Receipts who
do not desire to exercise such rights, preferences or privileges, the
Depositary shall then, if so instructed to the Company, and if applicable
laws or the terms of such rights, preferences or privileges so permit, sell
such rights, preferences or privileges of such holders at public or private
sale, at such place or places and upon such terms as it may deem proper. The
net proceeds of any such sale shall, subject to Section 3.1 and Section 3.2,
be distributed by 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.
4.4. Notice of Dividends; Fixing of Record Date for Holders of Receipts.
Whenever any cash dividend or other cash distribution shall become
payable, any distribution other than cash shall be made, or any rights,
preferences or privileges shall at any time be offered, with respect to the
deposited Preferred Stock, or whenever the Depositary shall receive notice of
(i) any meeting at which holders of such Preferred Stock are entitled to vote
or of which holders of such Preferred Stock are entitled to notice or (ii)
any election on the part of the Company
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to redeem any such Preferred Stock, the Depositary shall in each such
instance fix a record date (which shall be the same date as the record date
fixed by the Company with respect to the Preferred Stock) for the
determination of the holders of Receipts who shall be entitled 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.
4.5. Voting Rights.
Upon receipt of notice of any meeting at which the holders of deposited
Preferred Stock are entitled to vote, the Depositary shall, as soon as
practicable thereafter, mail to the record holders of Receipts a notice,
which shall be provided by the Company and which shall contain (i) such
information as is contained in such notice of meeting, (ii) a statement that
the holders of Receipts at the close of business on a specified record date
fixed pursuant to Section 4.4 will be entitled, subject to any applicable
provision of law, to instruct the Depositary as to the exercise of the voting
rights pertaining to the amount of Preferred 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 Preferred Stock represented by the Depositary Shares evidenced
by such Receipt in accordance with the instructions set forth in such
request. To the extent such instructions request the voting of a fractional
interest of a share of deposited Preferred Stock, the Depositary shall
aggregate such interest with all other fractional interests resulting from
requests with the same voting instructions and shall vote the number of whole
votes resulting from such aggregation in accordance with the instructions
received in such requests. Each share of Preferred Stock is entitled to 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
Preferred Stock or cause such Preferred Stock to be voted. In the absence of
specific instructions from the holder of a Receipt, the Depositary will
abstain from voting to the extent of the Preferred Stock represented by the
Depositary Shares evidenced by such Receipt. The Depositary shall not be
required to exercise discretion in voting any Preferred Stock represented by
the Depositary Shares evidenced by such Receipt.
4.6. Changes Affecting Preferred Stock and Reclassifications,
Recapitalization, etc.
Upon any change in par or stated value, split-up, combination or any
other reclassification of Preferred Stock, or upon any recapitalization,
reorganization, merger, amalgamation or consolidation affecting the Company
or to which it is a
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party or sale of all or substantially all of the Company's assets, the
Depositary shall, upon the instructions of the Company: (i) make such
adjustments in (a) the fraction of an interest represented by one Depositary
Share in one share of Preferred Stock and (b) the ratio of the redemption
price per Depositary Share to the redemption price of a share of 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 in liquidation value, split-up, combination or other reclassification
of Shares, or of such recapitalization, reorganization, merger, consolidation
or sale and (ii) treat any shares or other securities or property (including
cash) that shall be received by the Depositary in exchange for or upon
conversion of or in respect of the Preferred Stock as new deposited property
under this Deposit Agreement, and Receipts then outstanding shall thenceforth
represent the proportionate interests of holders thereof in the new deposited
property so received in exchange for or upon conversion or in respect of such
Preferred Stock. In any such case the Depositary may, in its discretion, with
the approval of the Company, execute and deliver additional Receipts, or may
call for the surrender of all outstanding Receipts to be exchanged for new
Receipts specifically describing such new deposited property. Anything to the
contrary herein notwithstanding, holders of Receipts shall have the right
from and after the effective date of any such change in par or stated value,
split-up, combination or other reclassification of the Preferred Stock or any
such recapitalization, reorganization, merger, amalgamation or consolidation
or sale of substantially all the assets of the Company to surrender such
Receipts to the Depositary with instructions to convert, exchange or
surrender the Preferred Stock represented thereby only into or for, as the
case may be, the kind and amount of shares and other securities and property
and cash into which the deposited Preferred Stock evidenced by such Receipts
might have been converted or for which such Preferred Stock might have been
exchanged or surrendered immediately prior to the effective date of such
transaction. The Company shall cause effective provision to be made in the
charter of the resulting or surviving corporation (if other than the Company)
for protection of such rights as may be applicable upon exchange of the
deposited Preferred Stock 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.
4.7. Inspection of Reports.
The Depositary shall make available for inspection by holders of Receipts
at the Corporate Office and at such other places as it may from time to time
deem advisable during normal business hours any reports and communications
received from the Company that are both received by the Depositary as the
holder of deposited Preferred Stock and made generally available to the
holders of the Preferred Stock. In addition, the Depositary shall transmit
certain notices and reports to the holders of Receipts as provided in Section
5.5.
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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.
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, (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.
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.
5. THE DEPOSITARY AND THE COMPANY
5.1. Maintenance of Offices, Agencies and Transfer Books by the Depositary
and the Registrar.
The Depositary shall maintain at the Corporate Office facilities for the
execution and delivery, transfer, surrender and exchange, split-up,
combination and redemption of Receipts and deposit and withdrawal of
Preferred Stock and at the offices of the Depositary's Agents, if any,
facilities for the delivery, transfer, surrender and exchange, split-up,
combination and redemption of Receipts and deposit and withdrawal of
Preferred 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 at all reasonable times shall be open for
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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
Preferred Stock represented by such Depositary Shares shall be listed in 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 Preferred Stock are listed on one or more other stock
exchanges, the Depositary will, at the request and expense of the Company,
arrange such facilities for the delivery, transfer, surrender, redemption and
exchange of such Receipts, such Depositary Shares or such Preferred Stock as
may be required by law or applicable stock exchange regulations.
5.2. Prevention or Delay in Performance by the Depositary, the Depositary's
Agents, the Registrar or the Company.
Neither the Depositary, any Depositary's Agent, any Registrar nor the
Company shall incur any liability to any holder of any Receipt, if by reason
of any provision of any present or future law or regulation thereunder of the
United States of America or of any other governmental authority or, in the
case of the Depositary, the Depositary's Agent or the Registrar, by reason of
any provision, present or future, of the Declaration of Trust or the Articles
Supplementary or, in 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.
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
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any action or inaction with respect to the voting of the deposited 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 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 person presenting Preferred Stock for deposit,
any holder of a Receipt or any other person believed by it in good faith to
be competent to give such information. The Depositary, any Depositary's
Agent, any Registrar and the Company may each rely and shall each be
protected in acting upon any written notice, request, direction or other
document believed by it in good faith to be genuine and to have been signed
or presented by the proper party or parties.
In the event the Depositary shall receive conflicting claims, requests or
instructions from any holders of Receipts, on the one hand, and the Company,
on the other hand, the Depositary shall be entitled to act on such claims,
requests or instructions received from the Company, and shall be entitled to
the full indemnification set forth in Section 5.6 hereof in connection with
any action so taken.
The Depositary shall not be responsible for any failure to carry out any
instruction to vote any of the deposited Preferred Stock or for the manner or
effect of any such vote made, as long as any such action or non-action is in
good faith and does not result from negligence or willful misconduct of the
Depositary. The Depositary undertakes, and any Registrar shall be required to
undertake, to perform such duties and only such duties as are specifically
set forth in this Deposit Agreement, and no implied covenants or obligations
shall be read into this Agreement against the Depositary or any Registrar.
The Depositary, its parent, 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
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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
Preferred Stock; provided, however, that the Depositary agrees to comply with
all information reporting and withholding requirements applicable to it under
law or this Deposit Agreement in its capacity as Depositary.
Neither the Depositary (or its officers, directors, employees or agents)
nor any Depositary's Agent makes any representation or has any responsibility
as to the validity of the registration statement pursuant to which the
Depositary Shares are registered under the Securities Act, the deposited
Preferred Stock, the Depositary Shares, the Receipts (except its
countersignature thereon) or any instruments referred to therein or herein,
or as to the correctness of any statement made therein or herein; provided,
however, that the Depositary is responsible for its representations in this
Deposit Agreement and for the validity of any action taken or required to be
taken by the Depositary in connection with this Deposit Agreement.
The Company agrees that it will register the deposited Preferred Stock
and the Depositary Shares in accordance with the applicable securities laws.
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
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Depositary may petition a court of competent jurisdiction to appoint a
successor depositary. Every successor depositary shall execute and deliver to
its predecessor and to the Company an instrument in writing accepting its
appointment hereunder, and thereupon such successor depositary, without any
further act or deed, shall become fully vested with all the rights, powers,
duties and obligations of its predecessor and for all purposes shall be the
Depositary under this Deposit Agreement, and such predecessor, upon payment
of all sums due it and on the written request of the Company, shall promptly
execute and deliver an instrument transferring to such successor all rights
and powers of such predecessor hereunder, shall duly assign, transfer and
deliver all rights, title and interest in the deposited Preferred Stock and
any moneys or property held hereunder to such successor and shall deliver to
such successor a list of the record holders of all outstanding Receipts. Any
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.
5.5. Notices, Reports and Documents.
The Company agrees that it will deliver to the Depositary, and the
Depositary will, promptly after receipt thereof, transmit to the record
holders of Receipts, in each case at the address recorded in the Depositary's
books, copies of all notices and reports (including financial statements)
required by law, by the rules of any national securities exchange upon which
the Preferred Stock, the Depositary Shares or the Receipts are included for
quotation or listed or by the Declaration of Trust and the Articles
Supplementary to be furnished by the Company to holders of the deposited
Preferred 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 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 reasonable 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.
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
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arising out of the willful misconduct, gross negligence, negligence (in the
case of any action or inaction with respect to the voting of the deposited
Preferred 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, Depositary's Agent of Registrar or termination
of this Deposit Agreement.
5.7. Fees, Charges and Expenses.
No charges and expenses of the Depositary or any Depositary's Agent
hereunder shall be payable by any person, except as provided in this Section
5.7. The Company shall pay all transfer and other taxes and governmental
charges arising solely from the existence of this Deposit Agreement. The
Company shall also pay all fees and expenses of the Depositary in connection
with the initial deposit of the Preferred Stock and the initial issuance of
the Depositary Shares evidenced by the Receipts, any redemption of the
Preferred Stock at the option of the Company and all withdrawals of the
Preferred Stock by holders of Depositary Shares. If a holder of Receipts
requests the Depositary to perform duties not required under this Deposit
Agreement, the Depositary shall notify the holder of the cost of the
performance of such duties prior to the 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.
6. AMENDMENT AND TERMINATION
6.1. Amendment.
The form of the Receipts and any provision of this Deposit Agreement may
at any time and from time to time be amended by agreement between the Company
and the Depositary in any respect that they may deem necessary or desirable;
provided, however, that no such amendment (other than any change in the fees
of any Depositary, Registrar or Transfer Agent) which (i) shall materially
and adversely alter the rights of the holders of Receipts or (ii) would be
materially and adversely inconsistent with the rights granted to the holders
of the Preferred Stock pursuant to the Articles Supplementary shall be
effective unless such amendment shall have been approved by the holders of at
least a majority of the Depositary Shares then outstanding. In no event shall
any amendment impair the right, subject to the provisions of Section 2.6 and
Section 2.7 and Article III, of any holder of any Depositary Shares to
surrender the Receipt evidencing such Depositary Shares with instructions to
the Depositary to deliver to the holder the deposited
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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.
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 Preferred Stock consent
to such termination, whereupon the Depositary shall deliver or make available
to each holder of a Receipt, upon surrender of the Receipt held by such
holder, such number of whole or fractional shares of deposited Preferred
Stock as are represented by the Depositary Shares evidenced by such Receipt,
together with any other property held by the Depositary in respect of such
Receipt. In the event that this Deposit Agreement is terminated pursuant to
clause (i) of the immediately preceding sentence, the Company hereby agrees
to use its best efforts to list the Preferred Stock issued upon surrender of
the Receipt evidencing the Depositary Shares represented thereby on a
national securities exchange. This Deposit Agreement will automatically
terminate if (i) all outstanding Depositary Shares shall have been redeemed
pursuant to Section 2.3 or (ii) there shall have been made a final
distribution in respect of the deposited Preferred 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.
7. MISCELLANEOUS
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
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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.
7.2. Exclusive Benefits of Parties.
This Deposit Agreement is for the exclusive benefit of the parties
hereto, and their respective successors hereunder, and shall not be deemed to
give any legal or equitable right, remedy or claim to any other person
whatsoever.
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.
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:
XXXXXXX X. XXXXX RESIDENTIAL REALTY, INC.
0000 Xxxxxxx Xxxxx
Xxxxxxx Xxxx, Xxxxxxxxx, Xxxxxxxx 00000
Attention: [ ]
Telephone No.: (000) 000-0000
or at any other address of which the Company shall have notified the
Depositary in writing.
Any notices to be given to the Depositary hereunder or under the Receipts
shall be in writing and shall be deemed to have been duly given if personally
delivered or sent by mail, or by telegram or telex or telecopier confirmed by
letter, addressed to the Depositary at the Corporate Office.
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
-23-
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.
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.
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.
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, without giving effect to
the conflict of law provisions thereof.
7.8. Inspection of Deposit Agreement and Articles Supplementary.
Copies of this Deposit Agreement and the Articles Supplementary shall be
filed with the Depositary and the Depositary's Agents and shall be open to
inspection during business hours at the Corporate Office and the respective
offices of the Depositary's Agents, if any, by any holder of any Receipt.
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7.9. Headings.
The headings of articles and sections in this Deposit Agreement and in
the form of the Receipt set forth in Exhibit A hereto have been inserted for
convenience only and are not to be regarded as a part of this Deposit
Agreement or to have any bearing upon the meaning or interpretation of any
provision contained herein or in the Receipts.
* * * * *
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IN WITNESS WHEREOF, the parties hereto 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.
XXXXXXX X. XXXXX RESIDENTIAL
REALTY, INC.
By:
Attest: --------------------------
---------------------- Authorized Officer
[DEPOSITARY]
By:
Attest:: --------------------------
---------------------- Authorized Signatory
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The Depositary Shares evidenced by this Depositary 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. No person may own, Beneficially
Own, or Constructively Own Depositary Shares representing Shares of Series A
Cumulative Redeemable Preferred Stock in excess of 9.8% of the outstanding
Series A Cumulative Redeemable Preferred Stock and any Series A Excess
Preferred Stock of the Company with certain further restrictions and
exceptions set forth in the Company's Articles Supplementary for the Series A
Cumulative Redeemable Preferred Stock. Any Person who attempts to own,
Beneficially Own or Constructively Own Depositary Shares representing Series
A Cumulative Redeemable Preferred Stock in excess of the above limitations
must immediately notify the Company. All capitalized terms in this legend
have the meanings defined in the Company's Articles Supplementary for the
Series A Cumulative Redeemable Preferred Stock. Transfers in violation of the
restrictions described above shall be void ab initio.
In addition, if the restrictions on ownership are violated, the shares of
Series A Cumulative Redeemable Preferred Stock represented by the Depositary
Shares evidenced by this Depositary Receipt will be automatically exchanged
for shares of Series A Excess Preferred Stock which will be held in trust by
the Company. As specified in the Articles Supplementary for the Series A
Cumulative Redeemable Preferred Stock, the Company has an option to acquire
Series A Excess Preferred Stock under certain circumstances and an obligation
to acquire Series A Excess Preferred Stock in certain other circumstances.
The Company will furnish to the holder hereof upon request and without charge
a complete written statement of the terms and conditions of the Series A
Cumulative Redeemable Preferred Stock and the Series A Excess Preferred
Stock. Requests for such statement may be directed to the Secretary of the
Company.
[FORM OF FACE OF RECEIPT]
DR-
CERTIFICATE FOR NOT MORE THAN DEPOSITARY SHARES
CUSIP -----
RECEIPT FOR DEPOSITARY SHARES,
EACH REPRESENTING 1/10 OF A SERIES A CUMULATIVE
REDEEMABLE PREFERRED SHARE OF BENEFICIAL INTEREST OF
XXXXXXX X. XXXXX RESIDENTIAL REALTY, INC.
(a Maryland corporation)
-----------------------, as Depositary (the "Depositary"), hereby
certificates that --------------- is the registered owner of --------------
DEPOSITARY SHARES ("Depositary Shares"), each Depositary Share representing
1/10 of one shares of Series A Cumulative Redeemable Preferred Stock of
Beneficial Interest, $0.01 par value per share (the "Shares"), of Colonial
Properties Trust, an Alabama real estate investment trust (the "Company"), on
deposit with the Depositary, subject to the terms and entitled to the
benefits of the Deposit Agreement dated as of October --, 1997 (the "Deposit
Agreement"), among the Company, the Depositary and the holders from time to
time of Receipts for Depositary Shares. By accepting this Receipt, the holder
hereof becomes a party to and agrees to be bound by all the terms and
conditions of the Deposit Agreement. This Receipt shall not be valid or
obligatory for any purpose or entitled to any benefits under the Deposit
Agreement unless it shall have been executed by the Depositary by the manual
or facsimile signature of a duly authorized officer or, if a Registrar in
respect of the Receipts (other than the Depositary) shall have been
appointed, by the manual signature of a duly authorized officer of such
Registrar.
Dated:
[Countersigned: ------------------------
By: ----------------------------] By: --------------------------
Authorized Signatory
[FORM OF REVERSE RECEIPT]
XXXXXXX X. XXXXX RESIDENTIAL REALTY, INC.
XXXXXXX X. XXXXX RESIDENTIAL REALTY, INC. WILL FURNISH WITHOUT CHARGE TO
EACH REGISTERED HOLDER OF RECEIPTS WHO SO REQUESTS A COPY OF THE DEPOSIT
AGREEMENT AND A COPY OF THE ARTICLES SUPPLEMENTARY WITH RESPECT TO THE SERIES
A CUMULATIVE REDEEMABLE PREFERRED STOCK OF XXXXXXX X. XXXXX RESIDENTIAL
REALTY, INC.. ANY SUCH REQUEST SHALL 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 tenant in common UNIF GIFT MIN ACT- Custodian
----- -----
(Cust) (Minor)
TEN ENT- as tenants by the Under Uniform Gifts to
entireties Minors Act
JT TEN- as joint tenants with
right of survivorship
and not as tenants in
common (State)
Additional abbreviations may also be used though not in the above list.
ASSIGNMENT
For value received, hereby sells(s), assigns(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(es)
----------
hereby irrevocably constitute and appoint Attorney to transfer the said
--------
Depositary Shares on the books of the within named Depositary with full power of
substitution in the premises.
Dated ----------------------- ------------------------------------------
NOTICE: The signature to the assignment
must correspond with the name as
written upon the face of this
Receipt in every particular,
without alteration or enlargement
or any change whatever.
