Exhibit 4.6
DEPOSIT AGREEMENT
BETWEEN
COLONIAL PROPERTIES TRUST
AND
[DEPOSITARY]
, 1997
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TABLE OF CONTENTS
Page
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 Shares; Execution and Delivery of Receipts in Respect Thereof........4
2.3. Optional Redemption of Preferred Shares 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 Shares..................................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 Shares into Excess Preferred Shares..............................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 Shares.....................................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........................14
4.5. Voting Rights.............................................................................14
4.6. Changes Affecting Preferred Shares and Reclassifications, Recapitalization, etc...........15
4.7. Inspection of Reports.....................................................................16
4.8. Lists of Receipt Holders..................................................................16
4.9. Tax and Regulatory Compliance.............................................................16
4.10. Withholding..............................................................................16
5. THE DEPOSITARY AND THE COMPANY....................................................................17
5.1. Maintenance of Offices, Agencies and Transfer Books by the Depositary and the
Registrar.............................................................................17
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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.....18
5.4. Resignation and Removal of the Depositary; Appointment of Successor Depositary............20
5.5. Notices, Reports and Documents............................................................20
5.6. Indemnification by the Company............................................................21
5.7. Fees, Charges and Expenses................................................................21
6. AMENDMENT AND TERMINATION.........................................................................22
6.1. Amendment.................................................................................22
6.2. Termination...............................................................................22
7. MISCELLANEOUS.....................................................................................23
7.1. Counterparts..............................................................................23
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...........................................................25
7.7. Governing Law.............................................................................25
7.8. Inspection of Deposit Agreement and Articles Supplementary................................25
7.9. Headings..................................................................................25
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DEPOSIT AGREEMENT
THIS DEPOSIT AGREEMENT, dated as of ____________, 1997 among COLONIAL
PROPERTIES TRUST, an Alabama real estate investment trust (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 the Company's 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 Preferred Shares deposited; and
WHEREAS, the Receipts are to be substantially in the form of Exhibit A
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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 Office of the Judge of Probate of Jefferson County, Alabama establishing the
Preferred Shares as a series of Preferred Shares of the Company.
"COMMON SHARES" shall mean the Company's common shares of beneficial
interest, $.01 par value per share.
"COMPANY" shall mean Colonial Properties Trust, an Alabama real estate
investment trust, 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 _____________________________.
"DECLARATION OF TRUST" shall mean the Declaration of Trust, as amended from
time to time, of the Company.
"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 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 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 Preferred Share 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 SHARES" shall mean shares of the Company's Series A
Excess Preferred Shares to be issued pursuant to Section 2.10.
"PREFERRED SHARES" shall mean the Company's Series A Cumulative Redeemable
Preferred Shares of Beneficial Interest, $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.
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"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 Shares or Excess Preferred Shares, as the case may be, as herein
provided.
"SECURITIES ACT" shall mean the Securities Act of 1933, as amended.
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"TRANSFER AGENT" shall mean ________________ or any bank or trust company
appointed to transfer the Receipts, the deposited Preferred Shares or Excess
Preferred Shares, as the case may be, as herein provided.
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
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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 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.
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Except as the Depositary may otherwise determine, Receipts shall be in
denominations of any number of whole Depositary Shares. All Receipts shall be
dated the date of their issuance.
Receipts may be endorsed with or have incorporated in the text thereof such
legends or recitals or changes not inconsistent with the provisions of this
Deposit Agreement as may be required by the Depositary or required to comply
with any applicable law or regulation or with the rules and emulations of any
securities exchange upon which the 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.
2.2. DEPOSIT OF 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 [ l 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 Preferred Shares. The
Depositary acknowledges receipt of the deposited Preferred Shares and related
documentation and agrees to hold such deposited 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 Preferred Shares deposited
hereunder and any Excess Preferred Shares 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 Shares held by it by notation, book-entry or other appropriate method.
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If required by the Depositary, 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 Preferred Shares or to receive other property that any
person in whose name the Preferred Shares are or have been registered may
thereafter receive upon or in respect of such deposited Preferred Shares, 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 Shares deposited hereunder, together with the other documents
specified above, and upon registering such 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 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 Preferred Shares, or in the case of dividends or other
distributions of Preferred Shares, if any, there shall be deposited hereunder
not more than the number of shares constituting the Preferred Shares 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 SHARES FOR CASH.
Whenever the Company shall elect to redeem deposited Preferred Shares 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 Preferred Shares 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 Shares and the proposed simultaneous redemption
of the Depositary Shares representing the Preferred Shares to be redeemed, not
less than
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30 and not more than 60 days prior to the date fixed for redemption of such
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 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 Preferred 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 that will not result in the issuance of any Excess Preferred Shares.
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 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
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
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
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 such Preferred Shares. The
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foregoing shall be further subject to the terms and conditions of the Articles
Supplementary.
If fewer than all of the Depositary Shares evidenced by a Receipt are
called for redemption, the Depositary will deliver to the holder of such Receipt
upon its surrender to the Depositary, 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 SHARES.
Any holder of a Receipt or Receipts may withdraw any or all of the
deposited 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 other office as the Depositary may designate for
such withdrawals; provided that a holder of a Receipt or Receipts may not
withdraw such Preferred Shares (or money and other property, if any, represented
thereby) which has previously been called for redemption or which has been
converted to Excess Preferred Shares in accordance with Section 2.10. After
such surrender, without unreasonable delay, the Depositary shall deliver to such
holder, or to the person or
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persons designated by such holder as hereinafter provided, the number of whole
or fractional shares of such 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 Preferred Shares will not thereafter be entitled to deposit such
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 Preferred Shares to be withdrawn, the Depositary shall at
the same time, in addition to such number of whole or fractional 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
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 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 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 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 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 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 Shares being deposited or
withdrawn);
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(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 Preferred Shares,
the Depositary Shares or the Receipts may be included for quotation or listed.
The deposit of Preferred Shares may be refused, the delivery of Receipts
against 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 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 SHARES INTO EXCESS PREFERRED SHARES
As provided in the Articles Supplementary, upon the happening of certain
events, Preferred Shares (in whole or fractional parts) shall be automatically
converted into Excess Preferred Shares. In the event of such a conversion, the
Receipt representing the deposited Preferred Shares so converted shall no longer
represent, to the extent of the shares so converted, such deposited Preferred
Shares. Promptly upon its knowledge of the conversion of such deposited
Preferred Shares into Excess Preferred Shares, the Company shall notify the
Depositary of such conversion, the number of deposited Preferred Shares so
converted, and the identity
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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 number of Depositary Shares evidenced thereby equal to the
converted deposited Preferred Shares represented thereby.
If fewer than all of the Depositary Shares evidenced by a Receipt are
required to be surrendered for cancellation, the Depositary will deliver to the
holder of such Receipt upon its surrender to the Depositary a new Receipt
evidencing the Depositary Shares evidenced by such prior Receipt and not
required to be surrendered for cancellation. Upon the conversion of the
deposited Preferred Shares 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 Shares
and the issuance of any Excess Preferred Shares).
3. CERTAIN OBLIGATIONS OF HOLDERS OF RECEIPTS AND THE COMPANY
3.1. FILING PROOFS, CERTIFICATES AND OTHER INFORMATION.
Any person presenting 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 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.
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 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 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
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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.
3.3. REPRESENTATIONS AND WARRANTIES AS TO PREFERRED SHARES.
In the case of the initial deposit of the Preferred Shares hereunder, the
Company and, in the case of subsequent deposits thereof, each person so
depositing Preferred Shares under this Deposit Agreement shall be deemed thereby
to represent and warrant that such 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 Preferred
Shares, when issued, will be validly issued, fully paid and nonassessable. Such
representations and warranties shall survive the deposit of the Preferred Shares
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 Preferred Share. Such representation and warranty shall survive the
deposit of the Preferred Shares 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 Shares, including any cash received upon
redemption of any 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
(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 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 and (ii) no cash dividends will be
paid in respect of any Depositary Share to the extent that it
-11-
represents any Preferred Shares converted into Excess Preferred Shares. 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.
4.2. DISTRIBUTIONS OTHER THAN CASH.
Whenever the Depositary shall receive any distribution other than cash on
the deposited 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, except that no distribution will be made in respect of any
Depositary Share to the extent that it represents any Preferred Shares converted
into Excess Preferred Shares. 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 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
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instruct (including by the issue to such record holders of warrants representing
such rights, preferences or privileges); provided, however, that (a) if at the
time of issue or offer of any such rights, preferences or privileges the Company
determines upon advice of its legal counsel that it is not lawful or feasible to
make such rights, preferences or privileges available to the holders of Receipts
(by the issue of warrants or otherwise) or (b) if and to the extent instructed
by holders of Receipts who do not desire to exercise such rights, preferences or
privileges, the Depositary shall then, if 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.
-13-
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
Shares, or whenever the Depositary shall receive notice of (i) any meeting at
which holders of such Preferred Shares are entitled to vote or of which holders
of such Preferred Shares are entitled to notice or (ii) any election on the part
of the Company to redeem any such 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 to the 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.
4.5. VOTING RIGHTS.
Upon receipt of notice of any meeting at which the holders of deposited
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 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 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
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 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 Preferred Shares or cause such 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 Preferred Shares
represented by the Depositary Shares evidenced by such Receipt. The Depositary
shall not be required
- 14 -
to exercise discretion in voting any Preferred Shares represented by the
Depositary Shares evidenced by such Receipt.
4.6. CHANGES AFFECTING PREFERRED SHARES AND RECLASSIFICATIONS,
RECAPITALIZATION, ETC.
Upon any change in par or stated value, split-up, combination or any other
reclassification of 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 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
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 Shares 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 Shares. 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 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 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 Preferred Shares
evidenced by such Receipts might have been converted or for which such 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 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.
- 15 -
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 Shares and made generally available to the holders of the
Preferred Shares. In addition, the Depositary shall transmit certain notices
and reports to the holders of Receipts as provided in Section 5.5.
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.
- 16 -
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 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 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 Preferred
Shares 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 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 Preferred Shares 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
- 17 -
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 any action or inaction with respect to the voting of the deposited 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 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 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.
- 18 -
The Depositary shall not be responsible for any failure to carry out any
instruction to vote any of the deposited 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 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 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.
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 Shares,
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 Shares and
the Depositary Shares in accordance with the applicable securities laws.
- 19 -
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 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 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.
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
- 20 -
notices and reports (including financial statements) required by law, by the
rules of any national securities exchange upon which the Preferred Shares, 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 Shares 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 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 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 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 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, 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 Shares and the initial issuance of the
Depositary Shares evidenced by the Receipts, any redemption of the Preferred
Shares at the option of the Company and all withdrawals of the Preferred Shares
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
- 21 -
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 Shares 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 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.
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 Shares consent
to such termination, whereupon the Depositary shall deliver or make available to
each holder of a Receipt, upon surrender of the Receipt held by such holder,
such number of whole or fractional shares of deposited Preferred Shares 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 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
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been redeemed pursuant to Section 2.3 or (ii) there shall have been made a final
distribution in respect of the deposited 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.
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 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
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personally delivered or sent by mail, or by telegram or facsimile transmission
confirmed by letter, addressed to the Company at:
COLONIAL PROPERTIES TRUST
0000 Xxxxx Xxxxxx Xxxxx
Xxxxx 000
Xxxxxxxxxx, Xxxxxxx 00000
Attention: Xxxxxx X. Xxxxxx
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 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.
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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.
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.
COLONIAL PROPERTIES TRUST
By:
-----------------------------------
Attest: Authorized Officer
---------------------
[DEPOSITARY]
By:
-----------------------------------
Attest: Authorized Signatory
----------------------
- 26 -
Exhibit A
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 Series A Cumulative Redeemable
Preferred Shares in excess of 9.8% of the outstanding Series A Cumulative
Redeemable Preferred Shares and any Series A Excess Preferred Shares of the
Company with certain further restrictions and exceptions set forth in the
Company's Articles Supplementary for the Series A Cumulative Redeemable
Preferred Shares. Any Person who attempts to own, Beneficially Own or
Constructively Own Depositary Shares representing Series A Cumulative Redeemable
Preferred Shares 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 Shares. Transfers in violation of the restrictions described above
shall be void ab initio.
-- ------
In addition, if the restrictions on ownership are violated, the Series
A Cumulative Redeemable Preferred Shares represented by the Depositary Shares
evidenced by this Depositary Receipt will be automatically exchanged for Series
A Excess Preferred Shares which will be held in trust by the Company. As
specified in the Articles Supplementary for the Series A Cumulative Redeemable
Preferred Shares, the Company has an option to acquire Series A Excess Preferred
Shares under certain circumstances and an obligation to acquire Series A Excess
Preferred Shares 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 Shares
and the Series A Excess Preferred Shares. 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
COLONIAL PROPERTIES TRUST
(an Alabama real estate investment trust)
__________________________, as Depositary (the "Depositary"), hereby
certificates that _________________________ is the registered owner of
_______________ DEPOSITARY SHARES ("Depositary Shares"), each Depositary Share
representing 1/10 of one Series A Cumulative Redeemable Preferred Share 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]
COLONIAL PROPERTIES TRUST
COLONIAL PROPERTIES TRUST 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 SHARES OF BENEFICIAL INTEREST OF COLONIAL PROPERTIES TRUST. 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 Minors Act
entireties
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.
