REGENCY CENTERS CORPORATION,
WACHOVIA BANK, NATIONAL ASSOCIATION,
AS DEPOSITARY,
AND
THE HOLDERS FROM TIME TO TIME OF
THE RECEIPTS EVIDENCING THE DEPOSITARY SHARES
DESCRIBED HEREIN.
Deposit Agreement
Dated as of April 3, 2003
TABLE OF CONTENTS
Page
PARTIES ......................................................................1
RECITALS......................................................................1
ARTICLE I
DEFINITIONS
ARTICLE II
FORM OF RECEIPTS; DEPOSIT OF STOCK; EXECUTION AND DELIVERY, TRANSFER,
SURRENDER AND REDEMPTION OF RECEIPTS
Section 2.01. Book - Entry Form; Form and Transfer of Receipts..........2
Section 2.02. Deposit of Stock; Execution and Delivery of Receipts
in Respect Thereof........................................4
Section 2.03. Redemption of Stock.......................................5
Section 2.04. Registration of Transfer of Receipts......................6
Section 2.05. Split-Ups and Combinations of Receipts; Surrender
of Receipts...............................................6
Section 2.06. Limitations on Execution and Delivery, Transfer,
Surrender and Exchange of Receipts........................7
Section 2.07. Lost Receipts, Etc........................................7
Section 2.08. Cancellation and Destruction of Surrendered Receipts......7
Section 2.09. Stock Purchase Plans......................................7
ARTICLE III
CERTAIN OBLIGATIONS OF THE HOLDERS OF RECEIPTS AND THE COMPANY
Section 3.01. Filing Proofs, Certificates and Other Information.........8
Section 3.02. Payment of Taxes or Other Governmental Charges............8
Section 3.03. Warranty as to Stock......................................8
Section 3.04. Warranty as to Receipts...................................8
ARTICLE IV
THE DEPOSITED SECURITIES; NOTICES
Section 4.01. Cash Distributions........................................8
Section 4.02. Distributions Other Than Cash.............................9
Section 4.03. Subscription Rights, Preferences or Privileges............9
Section 4.04. Notice of Dividends, Etc.; Fixing of Record Date for
Holders of Receipts......................................10
Section 4.05. Voting Rights............................................10
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Section 4.06. Changes Affecting Deposited Securities and
Reclassifications, Recapitalizations, Etc................11
Section 4.07. Inspection of Reports....................................12
Section 4.08. List of Receipt Holders..................................12
ARTICLE V
THE DEPOSITARY, THE DEPOSITARY'S AGENTS, THE REGISTRAR AND THE COMPANY
Section 5.01. Maintenance of Offices, Agencies and Transfer Books by
the Depositary; Registrar................................12
Section 5.02. Prevention or Delay by the Depositary, the
Depositary's Agents, the Registrar or the Company........13
Section 5.03. Obligations of the Depositary, the Depositary's Agents,
the Registrar and the Company............................13
Section 5.04. Resignation and Removal of the Depositary; Appointment
of Successor Depositary..................................13
Section 5.05. Corporate Notices and Reports............................14
Section 5.06. Indemnification by the Company...........................14
Section 5.07. Charges and Expenses.....................................15
ARTICLE VI
ARTICLE VI AMENDMENT AND TERMINATION
Section 6.01. Amendment................................................15
Section 6.02. Termination..............................................15
ARTICLE VII
MISCELLANEOUS
Section 7.01. Counterparts.............................................16
Section 7.02. Exclusive Benefit of Parties.............................16
Section 7.03. Invalidity of Provisions.................................16
Section 7.04. Notices..................................................16
Section 7.05. Depositary's Agents......................................17
Section 7.06. Holders of Receipts are Parties..........................17
Section 7.07. Governing Law............................................17
Section 7.08. Inspection of Deposit Agreement..........................18
Section 7.09. Headings.................................................18
TESTIMONIUM..................................................................19
SIGNATURES...................................................................19
EXHIBIT A: Depositary Receipt.................................................
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DEPOSIT AGREEMENT
dated as of April 3, 2003
among
REGENCY CENTERS CORPORATION,
a Florida corporation,
WACHOVIA BANK, NATIONAL ASSOCIATION,
a national banking association, as Depositary,
AND THE HOLDERS FROM TIME TO TIME OF
THE RECEIPTS EVIDENCING THE DEPOSITARY SHARES
DESCRIBED HEREIN
WHEREAS, it is desired to provide, as hereinafter set forth in
this Deposit Agreement, for the deposit of shares of 7.45% Series 3 Preferred
Stock, liquidation preference $250.00 per share, of the Company with the
Depositary for the purposes set forth in this Deposit Agreement and for the
issuance hereunder of Receipts by the Depositary evidencing Depositary Shares in
respect of the Stock so deposited (capitalized terms used herein shall have the
meaning assigned to them in Article I below).
NOW, THEREFORE, in consideration of the promises contained
herein and such other good and valuable consideration, receipt of which is
hereby acknowledged, the parties hereto agree as follows:
ARTICLE I
DEFINITIONS
The following definitions shall for all purposes, unless
otherwise indicated, apply to the respective terms used in this Deposit
Agreement and the Receipts:
"Amendment" shall mean the articles of amendment to the
Articles of Incorporation, as amended, of the Company filed with the Secretary
of State of the State of Florida establishing the Stock as a series of preferred
stock of the Company.
"Company" shall mean Regency Centers Corporation, a Florida
corporation, and its successors.
"Deposit Agreement" shall mean this Deposit Agreement, as
amended or supplemented from time to time in accordance with the terms hereof.
"Depositary" shall mean Wachovia Bank, National Association, a
national banking association, and any successor Depositary hereunder.
"Depositary Shares" shall mean the Depositary Shares, each
representing a one-tenth (1/10th) interest in one share of Stock, which shall be
evidenced by Receipts.
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"Depositary's Agent" shall mean an agent appointed by the
Depositary pursuant to Section 7.05 of this Deposit Agreement.
"Depositary's Office" shall mean the principal office of the
Depositary at which at any particular time its depositary business shall be
administered.
"DTC" shall have the meaning assigned to it in Section 2.01 of
this Deposit Agreement.
"DTC Receipt" shall have the meaning assigned to it in Section
2.01 of this Deposit Agreement.
"NASD" shall have the meaning assigned to it in Section 2.06
of this Deposit Agreement.
"Receipt" shall mean one of the depositary receipts, whether
in definitive or temporary form, issued hereunder by the Depositary, each
representing any number of whole Depositary Shares. If the context so requires,
the term "Receipt" shall be deemed to include the DTC Receipt (as defined in
Section 2.01 hereof).
"record holder" with respect to a Receipt shall mean the
individual, entity or person in whose name a Receipt is registered on the books
of the Depositary or any register of any Registrar maintained for such purpose
at a given time.
"Redemption Date" shall have the meaning assigned to it in
Section 2.03 of this Deposit Agreement.
"Registrar" shall mean any bank or trust company that shall be
appointed by the Depositary to register ownership and transfers of Receipts as
herein provided and which may include the Depositary.
"Securities Act" shall mean the Securities Act of 1933, as amended.
"Stock" shall mean the Company's 7.45% Series 3 Cumulative
Redeemable Preferred Stock, $.01 par value and a liquidation preference of
$250.00 per share.
ARTICLE II
FORM OF RECEIPTS; DEPOSIT OF STOCK; EXECUTION AND
DELIVERY,TRANSFER, SURRENDER AND REDEMPTION OF RECEIPTS
Section 2.01. Book - Entry Form; Form and Transfer of Receipts. All the
Depositary Shares shall initially be represented by one or more global receipts
(collectively, the "DTC Receipt") registered in the name of The Depository Trust
Company ("DTC") or its nominee. The Depositary, or such other entity as is
agreed to by DTC, may hold the DTC Receipt as custodian for DTC. The DTC Receipt
shall bear such legend or legends as may be required by DTC in order for it to
accept the Depositary Shares for its book-entry settlement system. So long as
the Receipts are eligible for book-entry settlement with DTC, no person
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acquiring Depositary Shares traded on any securities exchange with book-entry
settlement through DTC shall receive or be entitled to receive physical delivery
of Receipts evidencing such Depositary Shares. Ownership of beneficial interests
in the DTC Receipt shall be shown on, and the transfer of such ownership shall
be effected through, records maintained by (i) DTC or its nominee for such DTC
Receipt, or (ii) institutions that have accounts with DTC.
If DTC subsequently ceases to make its book-entry settlement
system available for the Depositary Shares, the Company may instruct the
Depositary as to other arrangements for book-entry settlement. In the event that
the Depositary Shares are not eligible for, or it is no longer necessary to have
the Depositary Shares available in book-entry form, the Company shall provide
written instructions to DTC to deliver to the Depositary for cancellation, and
the Company shall instruct the Depositary to cancel, the DTC Receipt surrendered
to it and deliver to the beneficial owners of the Depositary Shares previously
evidenced by the DTC Receipt definitive Receipts in physical form evidencing
their beneficial interest in Depositary Shares. The beneficial owners of
Depositary Shares shall not be entitled to receive Receipts in physical,
certificated form except as herein provided.
Definitive Receipts, if applicable, shall be engraved or
printed or lithographed on steel-engraved borders and shall be substantially in
the form annexed hereto as Exhibit A, with appropriate insertions, modifications
and omissions, as hereinafter provided. Pending the preparation of definitive
Receipts, if applicable, the Depositary, upon the written order of the Company
delivered in compliance with Section 2.02, shall execute and deliver temporary
Receipts which shall 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. After the preparation of
definitive Receipts, the temporary Receipts shall be exchangeable for definitive
Receipts upon surrender of the temporary Receipts at the Depositary's Office,
without charge to the holders. 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 registered in
the name (and only the name) of the holder of the temporary Receipt. Such
exchange shall be made at the Company's expense and without any charge therefor
to the holder. 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 Stock, as definitive Receipts.
Receipts shall be executed by the Depositary by the manual
signature of a duly authorized officer of the Depositary; provided that such
signature may be a facsimile if a Registrar for the Receipts (other than the
Depositary) shall have been appointed and such Receipts are countersigned by
manual signature of a duly authorized officer 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 (i) executed manually by a
duly authorized officer of the Depositary or (ii) executed by manual or
facsimile signature of a duly authorized officer of the Depositary and
countersigned manually by a duly authorized officer of a Registrar for the
Receipts (other than the Depositary, if any). The Depositary shall record on its
books each Receipt so signed and delivered as hereinafter provided. The manual
or facsimile signatures on the Receipts of individuals who were at any the time
of execution proper officers of the
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Depositary or the Registrar, as the case may be, shall constitute adequate
signatures hereunder, notwithstanding that such individuals or any of them have
ceased to hold such offices prior to the delivery of such Receipts or did not
hold such offices on the date of delivery of such Receipts.
Receipts shall be in denominations of any number of whole
Depositary Shares.
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 and approved by
the Company or required to comply with any applicable law or regulation or with
the rules and regulations of any securities exchange upon which shares of 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.
Subject to any limitations set forth in a Receipt or in this
Deposit Agreement, title to Depositary Shares evidenced by a Receipt which is
properly endorsed, or accompanied by a properly executed instrument of transfer,
shall be transferable by delivery of such Receipt with the same effect as if
such Receipt were a negotiable instrument; provided, however, that until
transfer of a Receipt shall be registered on the books of the Registrar, on
behalf of the Depositary, as provided in Section 2.04, the Depositary may,
notwithstanding any notice to the contrary, treat the record holder as the
absolute owner thereof for the purpose of determining the person entitled to
distributions of dividends or other distributions with respect to the Stock or
to any notice provided for in this Deposit Agreement and for all other purposes.
The Depositary shall not lend any shares of Stock deposited hereunder.
Section 2.02. Deposit of Stock; Execution and Delivery of Receipts in
Respect Thereof. Subject to the terms and conditions of this Deposit Agreement,
the Company may from time to time deposit shares of Stock with the Depositary
under this Deposit Agreement by delivery to the Depositary of a certificate or
certificates representing the shares of Stock to be deposited. Such certificate
or certificates representing the shares of Stock shall be (i) properly endorsed
or, if required by the Depositary, accompanied by a duly executed instrument of
transfer or endorsement, in form satisfactory to the Depositary, together with
all such certifications as may be required by the Depositary in accordance with
the provisions of this Deposit Agreement, and (ii) accompanied by a written
order of the Company directing the Depositary to execute and deliver to the
person or persons named in such order a Receipt or Receipts evidencing in the
aggregate the number of Depositary Shares representing interests in such
deposited shares of Stock.
All shares of Stock deposited by the Company with the
Depositary shall be held by the Depositary at the Depositary's Office or at such
other place or places as the Depositary shall determine.
Upon receipt by the Depositary of a certificate or
certificates representing shares of Stock deposited with the Depositary by the
Company in accordance with the provisions of this Section 2.02, together with
the other documents required as above specified, and upon recordation of the
shares of Stock so deposited on the books of the Company in the name of the
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Depositary, the Depositary shall execute and deliver, to the person or persons
named in the written order delivered to the Depositary, a Receipt or Receipts,
evidencing in the aggregate the number of Depositary Shares representing
interests in the shares of Stock so deposited. Such Receipt or Receipts shall be
registered by the Depositary or the Registrar in such name or names as may be
requested by the person or persons named in the written order. The Depositary
shall execute and deliver such Receipts at the Depositary's Office or such other
offices, if any, as such person may designate. Delivery at other offices shall
be at the risk and expense of the person requesting such delivery.
The DTC Receipt shall provide that it shall evidence the
aggregate amount of Depositary Shares from time to time indicated in the records
of the Depositary and that the aggregate amount of Depositary Shares evidenced
thereby may from time to time be increased or decreased by making adjustments on
such records of the Depositary.
Other than in the case of splits, combinations or other
reclassifications affecting the Stock, or in the case of dividends or other
distributions in the form of shares of Stock, if any, there shall be deposited
with the Depositary hereunder not more than 300,000 shares of Stock.
Section 2.03. Redemption of Stock. Whenever the Company shall elect to
redeem shares of Stock in accordance with the provisions of the Amendment, it
shall (unless otherwise agreed in writing with the Depositary) mail notice to
the Depositary of such redemption, by first class mail, postage prepaid, not
less than 40 nor more than 70 days prior to the date fixed for the redemption of
the shares of Stock in accordance with the provisions of the Amendment. On the
date of such redemption, provided that the Company shall then have paid in full
to the Depositary the redemption price required pursuant to the Amendment and
sufficient to redeem the shares of Stock to be redeemed, the Depositary shall
redeem the Depositary Shares representing interests in such shares of Stock. The
Depositary shall mail notice of such redemption, and the simultaneous redemption
of the number of Depositary Shares representing interests in the shares of Stock
to be redeemed, by first-class mail, postage prepaid, not less than 30 and not
more than 60 days prior to the date fixed for redemption of such shares of Stock
and Depositary Shares (the "Redemption Date"), to the record holders of the
Receipts evidencing the Depositary Shares to be so redeemed on the record date
fixed pursuant to Section 4.04 hereof, at the addresses of such holders as they
appear on the records of the Depositary; provided, however, that neither failure
to mail any such notice to one or more such holders nor any defect in any notice
or in the mailing thereof to one or more such holders shall affect the validity
of the proceedings for redemption of any Depositary Shares as to other holders.
Each such notice of redemption shall state: (i) the Redemption Date; (ii) the
number of Depositary Shares to be redeemed and, if less than all the Depositary
Shares held by any such holder are to be redeemed, the number of such Depositary
Shares held by such holder to be so redeemed and the method by which the
Depositary Shares will be chosen for redemption; (iii) the redemption price
(including any authorized, declared, but unpaid dividends on the Redemption
Date); (iv) the place or places where Receipts evidencing Depositary Shares are
to be surrendered for payment of the redemption price; (v) that dividends in
respect of the shares of Stock to be redeemed, which are represented by the
Depositary Shares to be redeemed, will cease to accrue at the close of business
on such Redemption Date; and (vi) if the date from and after which the shares of
Stock and Depositary Shares shall no longer be deemed to be outstanding is a
date other than the Redemption Date, such other date. In case less than all the
outstanding Depositary Shares are to
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be redeemed, the Depositary Shares to be so redeemed shall be selected by lot or
pro rata as may be determined by the Company.
Notice having been mailed by the Depositary as aforesaid, from
and after (a) the Redemption Date (unless the Company shall have failed to
redeem the shares of Stock to be redeemed by it as set forth in the Company's
notice provided for in the preceding paragraph), or (b) such earlier date (if
applicable) upon which the Company deposits the redemption price (including any
authorized, declared, but unpaid dividends on the Redemption Date) with the
paying agent for the holders of the shares of Stock (regardless of whether such
shares are actually surrendered for cancellation), all dividends in respect of
the shares of Stock so called for redemption shall cease to accrue, the
Depositary Shares being redeemed from such proceeds shall be deemed no longer to
be outstanding, all rights of the holders of Receipts evidencing such Depositary
Shares (except the right to receive the redemption price) shall, to the extent
of such Depositary Shares, cease and terminate and, upon surrender in accordance
with such notice of the Receipts evidencing any such Depositary Shares called
for redemption (properly endorsed or assigned for transfer, if the Depositary
shall so require), such Depositary Shares shall be redeemed by the Depositary at
a redemption price per Depositary Share equal to 1/10th of the redemption price
per share paid in respect of the shares of Stock plus authorized, declared, but
unpaid dividends on the Redemption Date.
If less than all 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 the payment of the
redemption price, a new Receipt evidencing such number of Depositary Shares as
were evidenced by such prior Receipt and not called for redemption; provided,
however, that such replacement Receipt shall be issued only in denominations of
whole Depositary Shares and cash will be payable in respect of fractional
interests.
Section 2.04. Registration of Transfer of Receipts. Subject to the
terms and conditions of this Deposit Agreement, the Registrar, on behalf of the
Depositary, shall register on its books transfers of Receipts from time to time
upon notice to the Registrar by the Depositary of the surrender of a Receipt for
transfer by the holder in person or by duly authorized attorney, which Receipt
in each case must be properly endorsed or accompanied by a properly executed
instrument of transfer. Upon surrender of a properly endorsed Receipt or Receipt
accompanied by an instrument of transfer, the Depositary shall execute a new
Receipt or Receipts evidencing the same aggregate number of Depositary Shares as
those evidenced by the Receipt or Receipts surrendered and deliver such new
Receipt or Receipts to or upon the order of the transferee named in the
endorsement or instrument of transfer.
Section 2.05. Split-Ups and Combinations of Receipts; Surrender of
Receipts. Upon surrender of a Receipt or Receipts at the Depositary's Office or
at such other offices as it may designate for the purpose of effecting a split-
up or combination of such Receipt or Receipts, the Depositary shall execute and
deliver a new Receipt or Receipts to the holder thereof or to such holder's
order in the denominations requested, evidencing the aggregate number of
Depositary Shares evidenced by the Receipt or Receipts surrendered. The
Depositary shall give prompt notice of such action and the certificate numbers
to the Registrar for the purpose of recording such split-up or consolidation.
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Section 2.06. Limitations on Execution and Delivery, Transfer,
Surrender and Exchange of Receipts. As a condition precedent to the execution
and delivery, registration of transfer, split-up, combination, surrender or
exchange of any Receipt, the Depositary, any of the Depositary's Agents or the
Company may require (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 charges or expenses payable by the holder of a
Receipt pursuant to Section 5.07, (ii) the production of evidence satisfactory
to it as to the identity and genuineness of any signature and/or (iii)
compliance with the rules and regulations of any governmental body, any stock
exchange or any applicable self regulatory body, including without limitation,
the New York Stock Exchange (the "NYSE") or such other regulations, if any, as
the Depositary or the Company may establish consistent with the provisions of
this Deposit Agreement.
The delivery of Receipts against the shares of Stock deposited
with the Depositary may be suspended, the registration of transfer of Receipts
may be refused and the registration of transfer, surrender or exchange of
outstanding Receipts may be suspended (i) during any period when the register of
stockholders of the Company is closed or (ii) if any such action is deemed
necessary 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, governmental body or commission, stock exchange or the NYSE or under
any provision of this Deposit Agreement.
Section 2.07. Lost Receipts, Etc. If any mutilated Receipt is
surrendered to the Depositary, the Depositary shall execute and deliver in
exchange therefor a new Receipt of like form and tenor in exchange and
substitution for such mutilated Receipt. In case any Receipt shall be destroyed,
lost or stolen, then, in the absence of notice to the Depositary that such
Receipt has been acquired by a bona fide purchaser, the Depositary shall execute
and deliver a Receipt to the holder thereof of like form and tenor in exchange
and substitution for such destroyed, lost or stolen Receipt, upon (i) the filing
by the holder thereof with the Depositary of evidence satisfactory to the
Depositary and the Company of such destruction or loss or theft of such Receipt,
of the authenticity thereof and of such holder's ownership thereof and (ii) the
holder's furnishing the Depositary with indemnification satisfactory to such
Depositary and the Company.
Section 2.08. 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 all Receipts so canceled.
Any Receipt evidenced in book-entry form shall be deemed canceled in proportion
to the amount of Depositary Shares evidenced by the DTC Receipt to be reduced.
Section 2.09. Stock Purchase Plans. The Depositary shall take such
action as shall be necessary or appropriate to permit the record holders of
Receipts to participate in any dividend reinvestment or other stock purchase
plan sponsored by the Company that permits the participation by such holders on
such terms and conditions as the Company may determine.
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ARTICLE III
CERTAIN OBLIGATIONS OF THE HOLDERS OF RECEIPTS AND THE COMPANY
Section 3.01. Filing Proofs, Certificates and Other Information. Any
holder of a Receipt may be required from time to time to file such proof of
residence, or other matters or other information, to obtain such guaranties of
signature, to execute such certificates and to make such customary
representations and warranties consistent with the terms of the Stock as the
Depositary or the Company may deem necessary or proper. The Depositary or the
Company may withhold the delivery, or delay the registration of transfer,
redemption or exchange, of any Receipt or 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 or such certificates are executed or
such representations and warranties are made.
Section 3.02. Payment of Taxes or Other Governmental Charges. Holders
of Receipts shall be obligated to make payments to the Depositary of certain
charges and expenses as provided in Section 5.07, or provide evidence
satisfactory to the Depositary that such charges and expenses have been paid.
Registration of transfer of any Receipt and delivery of all money or other
property, if any, represented by the Depositary Shares evidenced by such Receipt
may be refused until any such payment due is made, and any dividends, interest
payments or other distributions may be withheld or all or any part of the shares
of Stock or other property represented by the Depositary Shares evidenced by
such Receipt and not theretofore sold may be sold for the account of the holder
thereof (after attempting by reasonable means to notify such holder prior to
such sale), and such dividends, interest payments or other distributions or the
proceeds of any such sale may be applied to any payment of such charges or
expenses, the holder of such Receipt remaining liable for any deficiency.
Section 3.03. Warranty as to Stock. The Company hereby represents and
warrants to the Depositary that the Stock, when issued, will be validly issued,
fully paid and nonassessable. Such representation and warranty shall survive the
deposit of shares of Stock and the issuance of Receipts.
Section 3.04. Warranty as to Receipts. The Depositary hereby represents
and warrants that the Receipts, when issued, will be legal, valid and binding
obligations of the Depositary, enforceable against the Depositary in accordance
with their terms, except as such enforceability may be limited by applicable
bankruptcy, insolvency, moratorium and other laws affecting creditors' rights
generally and by general equity principles. Such representation and warranty
shall survive the deposit of shares of Stock and the issuance of the Receipts.
ARTICLE IV
THE DEPOSITED SECURITIES; NOTICES
Section 4.01. Cash Distributions. Whenever the Depositary shall receive
any cash dividend or other cash distribution with respect to the Stock, the
Depositary shall, subject to Section 3.02, distribute to record holders of
Receipts on the record date fixed pursuant to Section 4.04 the pro rata portion,
as nearly as practicable, of such dividend or distribution applicable to
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the number of Depositary Shares evidenced by the Receipts held by such holders;
provided, however, that in case the Company or the Depositary shall be required
to withhold and shall withhold any monies from any cash dividend or other cash
distribution in respect of the Stock on account of taxes, the distribution in
respect of Depositary Shares shall be reduced accordingly. The Depositary shall
distribute or make available for distribution, as the case may be, only such
amount, however, as can be distributed without attributing to any holder of a
Receipt 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 succeeding distribution to record
holders of Receipts.
Section 4.02. Distributions Other Than Cash. Whenever the Depositary
shall receive any property (including securities) for distribution in a form
other than cash with respect to the Stock, the Depositary shall, subject to
Section 3.02, distribute to record holders of Receipts on the record date fixed
pursuant to Section 4.04 the pro rata portion, as nearly as practicable, of such
property (including securities) received by it applicable to the number of
Depositary Shares evidenced by the Receipts held by such holders, in any manner
that the Depositary may deem equitable and practicable for accomplishing such
distribution. If in the opinion of the Depositary 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 of the property thus
received, or any part thereof. The net proceeds of any such sale shall, subject
to Section 3.02, be distributed or made available for distribution, as the case
may be, by the Depositary to record holders of Receipts in accordance with the
provisions of Section 4.01 for a distribution received in cash. The Depositary
shall have the right, prior to making any distribution of such securities, to
require the Company to provide an opinion of counsel stating that such
securities have been registered under the Securities Act or do not need to be so
registered.
Section 4.03. Subscription Rights, Preferences or Privileges. If the
Company shall at any time offer or cause to be offered to the persons in whose
names the shares of Stock are recorded 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, pro rata in proportion to the number of the
shares of Stock represented by each such Receipt, in such manner as the
Depositary may determine, either by the issue to such record holders of warrants
representing such rights, preferences or privileges or by such other method as
may be approved by the Depositary in its discretion with the approval of the
Company; provided, however, that (i) if at the time of issue or offer of any
such rights, preferences or privileges the Depositary determines that it is not
lawful or (after consultation with the Company) not feasible to make such
rights, preferences or privileges available to holders of Receipts by the issue
of warrants or otherwise, or (ii) if instructed by holders of Receipts (and to
the extent so instructed by such holders) who do not desire to exercise such
rights, preferences or privileges, then the Depositary, in its discretion (with
the approval of the Company, in any case where the Depositary has determined
that it is not feasible to make such rights, preferences or privileges
available), may, if applicable laws or the terms of such rights,
-9-
preferences or privileges permit such transfer, sell such rights, preferences or
privileges 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 sales shall be
distributed by the Depositary to the record holders of Receipts entitled thereto
as provided by Section 4.01 in the case of a distribution received in cash. The
Depositary shall have the right, prior to making any distribution of such
rights, preferences or privileges, to require the Company to provide an opinion
of counsel stating that such rights, preferences or privileges have been
registered under the Securities Act or do not need to be so 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 with the Depositary that it
will file promptly a registration statement pursuant to the Securities Act with
respect to such rights, preferences or privileges and securities and use its
reasonable 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 security unless and until such
registration statement shall have become effective, or unless the offering and
sale of such securities to holders are exempt from registration under the
Securities Act.
If any other action under the laws 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 with the Depositary that the Company will use
its best efforts to take such action or obtain such authorization, consent or
permit sufficiently in advance of the expiration of such rights, preferences or
privileges to enable such holders to exercise such rights, preferences or
privileges.
Section 4.04. Notice of Dividends, Etc.; Fixing of Record Date for
Holders of Receipts. (i) Whenever any cash dividend or other cash distribution
shall become payable or any distribution of property (including securities)
other than cash shall be made, (ii) if rights, preferences or privileges shall
at any time be offered with respect to Stock, (iii) whenever the Depositary
shall receive notice of (a) any meeting at which holders of shares of Stock are
entitled to vote or of which holders of shares of Stock are entitled to notice,
or (b) any election on the part of the Company to redeem any shares of Stock, or
(iv) whenever the Depositary and the Company shall decide it is appropriate, the
Depositary shall, in each such instance, fix a record date (which shall be the
same date as the record date fixed by the Company with respect to the Stock) for
the determination of the holders of Receipts who shall be entitled hereunder to
receive a distribution in respect of such dividend, distribution, rights,
preferences or privileges or the net proceeds of the sale thereof, or to give
instructions for the exercise of voting rights at any such meeting, or who
should be entitled to receive notice of such meeting or for any other
appropriate reasons.
Section 4.05. Voting Rights. Upon receipt of notice of any meeting at
which the holders of shares of Stock are entitled to vote, the Depositary shall,
within 3 business days, mail to the record holders of Receipts a notice which
shall contain (i) such information as is contained
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in such notice of meeting and (ii) a statement that the holders may, subject to
any applicable restrictions, authorize the Depositary to exercise the voting
rights pertaining to the number of shares of Stock represented by their
respective Depositary Shares (including authority to give a discretionary proxy
to a person designated by the Company) and a brief statement as to the manner in
which such authorization may be given. The Depositary shall vote or cause to be
voted, in accordance with the authorization referred to above, the votes
relating to the shares of Stock (or portion thereof) represented by the
Depositary Shares evidenced by all Receipts as to which such authorization has
been received. The Company hereby agrees to take all such action as it deems
necessary in order to enable the Depositary to vote such shares of Stock or
ause such shares of Stock to be voted. In the absence of authorization from the
holder of a Receipt, the Depositary will abstain from voting (but, at its
discretion, not from appearing at any meeting with respect to the Stock unless
directed to the contrary by the record holders of all the Receipts) to the
extent of the shares of Stock (or portion thereof) represented by the Depositary
Shares evidenced by such Receipt.
Section 4.06. Changes Affecting Deposited Securities and Reclassifica-
tions, Recapitalizations, Etc. Upon any change in par or stated value, split-up,
combination or any other reclassification of the Stock, or upon any
recapitalization, reorganization, merger, amalgamation or consolidation to which
the Company is a party or sale of all or substantially all of the Company's
assets, the Depositary may with the approval of, and shall upon the instructions
of, the Company, and (in either case) in such manner as to retain as nearly as
possible the percentage ownership interest in Stock of holders of the Receipts
immediately prior to such event, (i) make such adjustments in (a) the fraction
of an interest in one share of Stock represented by one Depositary Share and (b)
the ratio of the redemption price per Depositary Share to the redemption price
of a share of Stock, in each case as it may deem necessary to reflect the
effects of such change in par or stated value, split-up, combination or other
reclassification of Stock, or of such recapitalization, reorganization, merger,
amalgamation or consolidation or sale, and (ii) treat any securities which shall
be received by the Depositary in exchange for or upon conversion of or in
respect of the shares of Stock as new deposited securities so received in
exchange for or upon conversion of or in respect of the shares of 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 surrender of
all outstanding Receipts to be exchanged for new Receipts specifically
describing such new deposited securities.
Anything to the contrary herein or in the Receipt
notwithstanding, record holders of Receipts shall have the right from and after
the effective date or any such change in par or stated value, split-up,
combination or other reclassification of the Stock or any such recapitalization,
reorganization, merger, amalgamation, consolidation or sale, to the extent that
holders of shares of Stock had the right, prior to or on the applicable
effective date, to convert, exchange or surrender shares of Stock into or for
other stock, securities, property or cash, to surrender such Receipts to the
Depositary with instructions to convert, exchange or surrender the shares of
Stock represented thereby only into or for, as the case may be, the kind and
amount of shares of stock and other securities and property and cash into which
the shares of Stock represented by such Receipts has been converted or for which
such shares of Stock might have been exchanged or surrendered immediately prior
to the effective date of such transaction.
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Section 4.07. Inspection of Reports. The Depositary shall make
available for inspection by record holders of Receipts at the Depositary's
Office, and at such other places as it may from time to time deem advisable, any
reports and communications received from the Company which are received by the
Depositary as the holder of shares of Stock.
Section 4.08. List of Receipt Holders. Promptly, upon request by the
Company, the Depositary shall furnish to it a list, as of a specified date, of
the names and addresses of all record holders, and the number of shares of Stock
represented by the Receipts held by such holders.
ARTICLE V
THE DEPOSITARY, THE DEPOSITARY'S AGENTS,
THE REGISTRAR AND THE COMPANY
Section 5.01. Maintenance of Offices, Agencies and Transfer Books by
the Depositary; Registrar. Upon execution of this Deposit Agreement, the
Depositary shall maintain, at the Depositary's Office, facilities for the
execution and delivery, registration and registration of transfer, surrender and
exchange of Receipts, and at the offices of the Depositary's Agents, if any,
facilities for the delivery, registration of transfer, surrender and exchange of
Receipts, all in accordance with the provisions of this Deposit Agreement.
The Depositary shall, with the approval of the Company,
appoint a Registrar for registration of such Receipts or Depositary Shares in
accordance with any requirements of any applicable stock exchange in which the
Receipts or the Depositary Shares may be listed. 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, the Depositary Shares or
the shares of Stock are listed on one or more other stock exchanges, the
Depositary will, at the request of the Company, arrange such facilities for the
delivery, registration, registration of transfer, surrender and exchange of such
Receipts, such Depositary Shares or such shares of Stock as may be required by
law or applicable stock exchange regulation. The Depositary shall serve as the
initial Registrar.
The Registrar shall maintain books at the Depositary's Office
(or at such other place as shall be approved by the Company and of which the
holders of Receipts shall have reasonable notice) for the registration of
transfer of Receipts, which books at all reasonable times shall be open for
inspection by the record holders of Receipts; provided that the exercise of such
right shall be governed by the provisions of Section 607.1602 of the Florida
Business Corporation Act, as amended, or any successor provision thereto,
anything herein to the contrary notwithstanding.
The Depositary may cause the Registrar to close the books with
respect to the Receipts, at any time or from time to time, when the register of
stockholders of the Company is closed with respect to the Stock or when such
action is deemed necessary or advisable by the Depositary, any Depositary's
Agent or the Company because of any requirement of law or of any
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government, governmental body or commission, stock exchange or any applicable
self-regulatory body, including, without limitation, the NASD.
Section 5.02. Prevention or Delay by the Depositary, the Depositary's
Agents, the Registrar or the Company. Neither the Depositary nor any
Depositary's Agent nor 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
Company's Articles of Incorporation, as amended (including the Amendment), or by
reason of any act of God or war, the Depositary, the Depositary's Agent, the
Registrar or the Company shall be prevented or forbidden from doing or
performing any act or thing which 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 or be subject to any obligation
(i) by reason of any nonperformance or delay, caused as aforesaid, in the
performance of any act or thing which the terms of this Deposit Agreement
provide shall or may be done or performed, or (ii) by reason of any exercise of,
or failure to exercise, any discretion provided for in this Deposit Agreement,
except in the event of the negligence or misconduct of the party charged with
such exercise or failure to exercise.
Section 5.03. Obligations of the Depositary, the Depositary's Agents,
the Registrar and the Company. Neither the Depositary nor any Depositary's Agent
nor any Registrar nor the Company assumes any obligation or shall be subject to
any liability under this Deposit Agreement to holders of Receipts other than for
its negligence or misconduct.
Neither the Depositary nor any Depositary's Agent nor any
Registrar nor the Company shall be liable to any party hereto for any action or
any failure to act by it in reliance upon the written advice of legal counsel or
accountants, or information from any person presenting shares of Stock for
deposit or any holder of a Receipt. 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 to
be genuine and to have been signed or presented by the party or parties
specified in this Deposit Agreement.
The Depositary undertakes and shall cause any Registrar to
undertake, to perform such duties and only such duties as are specifically set
forth in this Deposit Agreement using its reasonable best efforts and in good
faith. The parties hereto acknowledge that no implied covenants or obligations
shall be read into this Deposit Agreement against the Depositary or any
Registrar or against the Company with respect to the Depositary and any
Registrar. The Depositary will indemnify the Company against any liability that
may arise out of acts performed or omitted by the Depositary or any Depositary's
Agent due to its or their gross negligence or bad faith. The Depositary, any
Depositary's Agent, any Registrar and the Company may own and deal in any class
of securities of the Company and its affiliates and in Receipts subject to the
provisions of applicable law. The Depositary may also act as transfer agent or
registrar of any of the securities of the Company and its affiliates.
Section 5.04. Resignation and Removal of the Depositary; Appointment of
Successor Depositary. The Depositary may at any time resign as Depositary
hereunder by
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notice of its election so to do 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 the Depositary acting hereunder shall at any time
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 $500,000,000. Every successor Depositary shall execute and deliver to its
predecessor and to the Company an instrument in writing accepting its
appointment hereunder and agreeing to become a party to this Deposit Agreement,
and thereupon such successor Depositary, without any further act or deed, shall
become fully vested with all the rights, powers, duties and obligations of its
predecessor and for all purposes shall be the Depositary under this Deposit
Agreement, and such predecessor, upon payment of all sums due it and on the
written request of the Company, shall execute and deliver an instrument
transferring to such successor all rights and powers of such predecessor
hereunder, shall duly assign, transfer and deliver all right, title and interest
in all shares of Stock deposited with such predecessor and any monies 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 or other entity into or with which the
Depositary may be merged, consolidated or converted, or to which the Depositary
may sell all or substantially all its assets, shall be the successor of such
Depositary without the execution or filing of any document or any further act.
Such successor Depositary may authenticate the Receipts in the name of the
predecessor Depositary or in the name of the successor Depositary.
Section 5.05. Corporate Notices and Reports. 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
furnished to it pursuant to Section 4.08, all notices and reports (including
without limitation financial statements) required by law, the rules of any
national securities exchange upon which the shares of Stock, the Depositary
Shares or the Receipts are listed or by the Company's Articles of Incorporation,
as amended (including the Amendment), to be furnished by the Company to holders
of shares of Stock. Such transmission will be at the Company's expense and the
Company will provide the Depositary with such number of copies of such documents
as the Depositary may reasonably request.
Section 5.06. Indemnification by the Company. The Company shall
indemnify the Depositary, any Depositary's Agent and any Registrar against, and
hold each of them harmless from, any loss, liability or expense (including the
reasonable costs and expenses of defending itself) which may arise out of (i)
acts performed or omitted in connection with this Deposit Agreement and the
Receipts (a) by the Depositary, any Registrar or any of their respective agents
(including any Depositary's Agent), except for any liability arising out of
gross
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negligence or willful misconduct on the respective parts of any such
person or persons, or (b) by the Company or any of its agents, or (ii) the
offer, sale or registration of the Receipts or shares of Stock pursuant to the
provisions hereof. The obligations of the Company set forth in this Section 5.06
shall survive any termination of this Agreement and any succession of any
Depositary, Registrar or Depositary's Agent.
Section 5.07. Charges and Expenses. The Company shall pay all charges
of the Depositary in connection with the initial deposit of shares of Stock and
the initial issuance of the Depositary Shares, and redemption of shares of Stock
at the option of the Company. All other transfer and other taxes and
governmental charges shall be at the expense of holders of Receipts. The
Depositary may refuse to effect any transfer of a Receipt or any withdrawal of
shares of Stock evidenced thereby until all such taxes and charges with respect
to such Receipt or shares of Stock are paid by the holder thereof. If, at the
request of a holder of Receipts, the Depositary incurs charges or expenses for
which it is not otherwise liable hereunder, such holder will be liable for such
charges and expenses.
All other charges and expenses of the Depositary and any
Depositary's Agent hereunder and of any Registrar (including, in each case,
reasonable fees and expenses of counsel) incident to the performance of their
respective obligations hereunder will be payable by the Company only after prior
consultation and agreement between the Depositary and the Company and consent by
the Company to the incurrence of such expenses, which consent shall not be
unreasonably withheld. The Depositary shall present any statement for charges
and expenses to the Company promptly, unless the Company shall agree otherwise.
ARTICLE VI
AMENDMENT AND TERMINATION
Section 6.01. Amendment. The form of the Receipts and any provisions 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 which they may
deem necessary or desirable; provided, however, that no such amendment which
shall materially and adversely alter the rights of the holders of Receipts shall
be effective unless such amendment shall have been approved by the record
holders of Receipts representing at least a majority of the Depositary Shares
then outstanding. 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 the Deposit Agreement
as amended thereby.
Section 6.02. Termination. This Deposit Agreement may be terminated by
the Company or the Depositary only if (i) all outstanding Depositary Shares
shall have been redeemed pursuant to Section 2.03, or (ii) there shall have been
made a final distribution in respect of the Stock in connection with any
liquidation, dissolution or winding up of the Company and such distribution
shall have been distributed to the record holders of Receipts pursuant to
Section 4.01 or 4.02, as applicable.
Whenever the Deposit Agreement has been terminated pursuant to
(ii) above, the Depositary will mail notice of such termination to the record
holders of all Receipts then
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outstanding at least 30 days prior to the date fixed in that notice for
termination of the Deposit Agreement. If any Depositary Shares remain
outstanding after the date of termination, the Depositary thereafter will
discontinue the transfer of Depositary Shares, will suspend the distribution of
dividends to the owners thereof, and will not give any further notices (other
than notice of such termination) or perform any further acts under this Deposit
Agreement, except that the Depositary will continue (i) to collect dividends on
the outstanding shares of Stock and any other distributions with respect
thereto, (ii) to deliver or cause to be delivered shares of Stock, together with
such dividends and distributions, or principal and interest, and the net
proceeds of any sales of rights, preferences, privileges or other property
(other than real property) in exchange for Depositary Shares surrendered. At any
time after the expiration of three years from the date of termination, the
Depositary may sell the shares of Stock then held by it at a public or private
sale, at such place or places and upon such terms as it deems proper and may
thereafter hold the net proceeds of such sale, without liability for interest,
for the pro rata benefit of the owners of the Depositary Shares which have not
theretofore been surrendered. Subject to applicable escheat laws, any monies
set aside by the Company in respect of any payment with respect to the shares of
Stock represented by the Depositary Shares, or dividends thereon, and unclaimed
at the end of three years from the date upon which such payment is due and
payable shall revert to the general funds of the Company, after which reversion
the holders of Receipts evidencing such Depositary Shares shall look only to the
general funds of the Company for payment thereof.
Upon the termination of this Deposit Agreement, the parties
hereto shall be discharged from all obligations under this Deposit Agreement
except for their respective obligations under Sections 5.03, 5.06 and 5.07.
ARTICLE VII
MISCELLANEOUS
Section 7.01. 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.
Section 7.02. Exclusive Benefit of Parties. This Deposit Agreement is
for the exclusive benefit of the parties hereto, and their respective successors
hereunder, and shall not be deemed to give any legal or equitable right, remedy
or claim to any other person whatsoever.
Section 7.03. 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 modified thereby.
Section 7.04. 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 telegram, telecopy or
telex confirmed by letter,
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addressed to the Company at 000 X. Xxxxxxx Xxxxxx, Xxxxxxxxxxxx, Xxxxxxx 00000,
telephone: (000) 000-0000, telecopy:______________, Attention: ________________,
or at any other address and to the attention of any other person of which the
Company shall have notified the Depositary in writing.
Any and all 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, telecopy or telex
confirmed by letter, addressed to the Depositary at the Depositary's Office, at
0000 Xxxx X.X. Xxxxxx Xxxxxxxxx, Xxxxxxxxx, Xxxxx Xxxxxxxx 00000-0000, telephone
(000) 000-0000, Attention: Equity Services, or at any other address and to the
attention of any other person of which the Depositary shall have notified the
Company in writing.
Any and all notices to be 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,
telecopy or telex 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 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, telecopy or
telex 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 message) is deposited, postage prepaid, in a post office letter box. The
Depositary or the Company may, however, act upon any telegram or telecopy
message received by it from the other or from any holder of a Receipt,
notwithstanding that such telegram or telecopy message shall not subsequently be
confirmed by letter or as aforesaid.
Section 7.05. Depositary's Agents. The Depositary may from time to time
appoint any Depositary's Agent 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 promptly notify the Company of any such action.
Section 7.06. Holders of Receipts are Parties. By acceptance of
delivery of the Receipts, any holder from time to time of such Receipt shall be
deemed to have agreed to become a party to this Deposit Agreement and to be
bound by all of the terms and conditions hereof and of the Receipts to the same
extent as though such person executed this Deposit Agreement.
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Section 7.07. 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 LAWS OF THE STATE OF
FLORIDA (WITHOUT REFERENCE TO APPLICABLE CONFLICTS OF LAW PROVISIONS).
Section 7.08. Inspection of 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 Depositary's Office and
the respective offices of the Depositary's Agents, if any, by any holder of a
Receipt.
Section 7.09. 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 the Receipts 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 Company and the Depositary have duly
executed this Deposit Agreement as of the day and year first above set forth,
and all holders of Receipts shall become parties hereto by and upon acceptance
by them of delivery of Receipts issued in accordance with the terms hereof.
REGENCY CENTERS CORPORATION
By: ___________________________
Authorized Officer
WACHOVIA BANK, NATIONAL
ASSOCIATION,
as Depositary
By: __________________________
Authorized Officer
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FORM OF RECEIPT
CERTIFICATE FOR
-----------------
DEPOSITARY SHARES
TRANSFERABLE CUSIP _______________
DEPOSITARY RECEIPT
SEE REVERSE FOR
CERTAIN DEFINITIONS
DEPOSITARY RECEIPT FOR DEPOSITARY SHARES, EACH DEPOSITARY SHARE REPRESENTING A
ONE-TENTH (1/10TH) INTEREST IN ONE SHARE OF 7.45% SERIES 3 CUMULATIVE REDEEMABLE
PREFERRED STOCK
REGENCY CENTERS CORPORATION
A Florida Corporation
WACHOVIA BANK, NATIONAL ASSOCIATION, as Depositary (the "Depositary"), hereby
certifies that
is the registered owner of ____________________ DEPOSITARY SHARES ("Depositary
Shares"), each Depositary Share representing a one-tenth (1/10th) interest in
one share of 7.45% Series 3 Cumulative Redeemable Preferred Stock, $0.01 par
value (the "Stock"), of Regency Centers Corporation, a Florida corporation (the
"Corporation"), on deposit with the Depositary, subject to the terms and
entitled to the benefits of the Deposit Agreement dated as of April 3, 2003 (the
"Deposit Agreement"), among the Corporation, the Depositary and the holders from
time to time of Depositary Receipts evidencing the Depositary Shares. By
accepting this Depositary Receipt, the holder hereof becomes a party to and
agrees to be bound by all the terms and conditions of the Deposit Agreement.
This Depositary Receipt shall not be valid or obligatory for any purpose or be
entitled to any benefits under the Deposit Agreement unless it shall have been
executed by the Depositary by the manual signature of a duly authorized officer
or, if executed in facsimile by the Depositary, countersigned by a Registrar in
respect of the Depositary Receipts by a duly authorized officer thereof.
Dated:
WACHOVIA BANK, NATIONAL ASSOCIATION
Depositary and Registrar
By: _______________________________
Authorized Officer
REGENCY CENTERS CORPORATION
REGENCY CENTERS CORPORATION WILL FURNISH WITHOUT CHARGE TO EACH HOLDER OF A
RECEIPT WHO SO REQUESTS A COPY OR SUMMARY OF THE DEPOSIT AGREEMENT AND A COPY OR
SUMMARY OF THE PORTIONS OF THE ARTICLES OF INCORPORATION ESTABLISHING THE
DESIGNATIONS, RELATIVE RIGHTS, PREFERENCES AND LIMITATIONS APPLICABLE TO SHARES
OF EACH CLASS AND THE VARIATIONS IN RIGHTS, PREFERENCES AND LIMITATIONS
DETERMINED FOR EACH SERIES (AND THE AUTHORITY OF THE BOARD OF DIRECTORS TO
DETERMINE VARIATIONS FOR FUTURE SERIES) WHICH THE CORPORATION IS AUTHORIZED TO
ISSUE, INCLUDING THE 7.45% SERIES 3 CUMULATIVE REDEEMALBE PREFERRED STOCK. ANY
SUCH REQUEST SHOULD BE ADDRESSED TO REGENCY CENTERS CORPORATION, 000 X. XXXXXXX
XXXXXX, XXXXXXXXXXXX, XXXXXXX 00000, ATTENTION:________________________.
ABBREVIATIONS
The following abbreviations, when used in the inscription on the face
of this Depositary Receipt, shall be construed as though they were written out
in full according to applicable laws or regulations:
TEN COM - as tenants in common
TEN ENT - as tenants by the entireties
JT TEN - as joint tenants with right of survivorship and not as tenants in
common
UNIF GIFT MIN ACT - __________ Custodian __________
(Cust) (Minor)
under Uniform Gifts to
Minors Act ______________
(State)
UNIF TRF MIN ACT - __________ Custodian ___________ (until age______) (Cust)
_____ under Uniform Transfers to Minors Act(Minor) _______________ (State)
Additional abbreviations may also be
used though not in the above list.
