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EXHIBIT 4.03
[FORM OF]
DEPOSIT AGREEMENT
DEPOSIT AGREEMENT, dated as of ________ __, 199_, among NEW PLAN EXCEL REALTY
TRUST, INC., a Maryland corporation, ________________________, a national
banking association, as Depositary, and all holders from time to time of
Receipts (as hereinafter defined) issued hereunder.
WITNESSETH:
WHEREAS, it is desired to provide, as hereinafter set forth in this Deposit
Agreement, for the deposit of shares of the Company's Preferred Stock (as
hereinafter defined) with the Depositary for the purposes set forth in this
Deposit Agreement and for the issuance hereunder of the Receipts evidencing
Depositary Shares representing a fractional interest in the Preferred Stock
deposited; and
WHEREAS, the Receipts are to be substantially in the form of Exhibit A annexed
to this Deposit Agreement, with appropriate insertions, modifications and
omissions, as hereinafter provided in this Deposit Agreement;
NOW, THEREFORE, in consideration of the premises contained herein, it is agreed
by and among the parties hereto as follows:
ARTICLE I
DEFINITIONS
The following definitions shall apply to the respective terms (in the singular
and plural forms of such terms) used in this Deposit Agreement and the
Receipts:
SECTION 1.01. "Articles of Incorporation" shall mean the Amended and Restated
Articles of Incorporation, as amended from time to time, of the Company.
SECTION 1.02. "Articles Supplementary" shall mean the Articles Supplementary
Classifying _________ Shares of Preferred Stock as _% Series _ ______________
Preferred Stock filed with the Department of Assessments and Taxation of the
State of Maryland establishing the Preferred Stock as a series of Preferred
Stock of the Company.
SECTION 1.03. "Common Stock" shall mean shares of the Company's common stock,
$.01 par value per share.
SECTION 1.04. "Company" shall mean New Plan Excel Realty Trust, Inc., a
Maryland corporation, and its successors.
SECTION 1.05. "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 ___________________________________.
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SECTION 1.06. "Deposit Agreement" shall mean this agreement, as the same may be
amended, modified or supplemented from time to time.
SECTION 1.07. "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.
SECTION 1.08. "Depositary Share" shall mean a fractional interest of _____ of a
share of Preferred Stock deposited with the Depositary hereunder and the same
proportionate interest in any and all other property received by the Depositary
in respect of such share of Preferred Stock and held under this Deposit
Agreement, all as evidenced by the Receipts issued hereunder. Subject to the
terms of this Deposit Agreement, each owner of a Depositary Share is entitled,
proportionately, to all the rights, preferences and privileges of the Preferred
Stock represented by such Depositary Share, including the distribution, voting,
redemption, conversion and liquidation rights contained in the Articles
Supplementary.
SECTION 1.09. "Depositary's Agent" shall mean an agent appointed by the
Depositary as provided, and for the purposes specified, in Section 7.05.
SECTION 1.10. "Preferred Stock" shall mean shares of the Company's _% Series _
______________ Preferred Stock, $.01 par value per share, heretofore validly
issued, fully paid and nonassessable.
SECTION 1.11. "Receipt" shall mean a Depositary Receipt issued hereunder to
evidence one or more Depositary Shares, whether in definitive or temporary
form, substantially in the form set forth as Exhibit A hereto.
SECTION 1.12. "record date" shall mean the date fixed pursuant to Section 4.04.
SECTION 1.13. "record holder" or "holder" as applied to a Receipt shall mean
the person in whose name a Receipt is registered on the books maintained by the
Depositary for such purpose.
SECTION 1.14. "Registrar" shall mean ________________, or any bank or trust
company appointed to register ownership and transfers of Receipts, the
deposited Preferred Stock, as the case may be, as herein provided.
SECTION 1.15. "Securities Act" shall mean the Securities Act of 1933, as
amended.
SECTION 1.16. "Transfer Agent" shall mean ________________, or any bank or
trust company appointed to transfer the Receipts, the deposited Preferred
Stock, as herein provided.
ARTICLE II
FORM OF RECEIPTS, DEPOSIT OF PREFERRED STOCK, EXECUTION AND
DELIVERY, TRANSFER, SURRENDER AND REDEMPTION OF RECEIPTS
SECTION 2.01. Form and Transferability of Receipts. Definitive Receipts shall
be engraved or printed or lithographed with steel-engraved borders and
underlying tint and shall be substantially in the form set forth in Exhibit A
annexed to this Deposit Agreement, with appropriate insertions, modifications
and omissions, as hereinafter provided. Pending the preparation of definitive
Receipts, the Depositary, upon the written order of the Company, delivered in
compliance with section 2.02, shall execute and deliver temporary
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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
Stock deposited, as definitive Receipts.
Receipts shall be executed by the Depositary by the manual or facsimile
signature of a duly authorized signatory of the Depositary, provided that if a
Registrar (other than the Depositary) shall have been appointed then such
Receipts shall also be countersigned by manual signature of a duly authorized
signatory of the Registrar. No Receipt shall be entitled to any benefits under
this Deposit Agreement or be valid or obligatory for any purpose unless it
shall have been executed as provided in the preceding sentence. The Depositary
shall record on its books each Receipt executed as provided above and delivered
as hereinafter provided.
Except as the Depositary may otherwise determine, Receipts shall be in
denominations of any number of whole Depositary shares. All Receipts shall be
dated the date of their issuance.
Receipts may be endorsed with or have incorporated in the text thereof such
legends or recitals or changes not inconsistent with the provisions of this
Deposit Agreement as may be required by the Depositary or required to comply
with any applicable law or regulation or with the rules and regulations of any
securities exchange upon which the Preferred Stock, the Depositary Shares or
the Receipts may be listed or to conform with any usage with respect thereto,
or to indicate any special limitations or restrictions to which any particular
Receipts are subject.
Title to any Receipt (and to the Depositary Shares evidenced by such Receipt)
that is properly endorsed or accompanied by a properly executed instrument of
transfer or endorsement shall be transferable by delivery with the same effect
as in the case of a negotiable instrument; provided, however, that until a
Receipt shall be transferred on the books of the Depositary as provided in
Section 2.04, the Depositary may, notwithstanding any notice to the contrary,
treat the record holder thereof at such time as the absolute owner thereof for
the purpose of determining the person entitled to distribution of dividends or
other distributions, the exercise of any conversion rights or to any notice
provided for in this Deposit Agreement and for all other purposes.
SECTION 2.02. Deposit of Preferred Stock; Execution and Delivery of Receipts in
Respect Thereof. Concurrently with the execution of this Deposit Agreement, the
Company is delivering to the Depositary a certificate or certificates,
registered in the name of the Depositary and evidencing _____________ shares of
Preferred Stock, properly endorsed or accompanied, if required by the
Depositary, by a duly executed instrument of transfer or endorsement, in form
satisfactory to the Depositary, together with (i) all such certifications as
may be required by the Depositary in accordance with the provisions of this
Deposit Agreement and (ii) a written order of the Company directing the
Depositary to execute and deliver to, or upon the written order of, the person
or persons stated in such order a Receipt or Receipts for the Depositary Shares
representing such deposited Preferred Stock. The Depositary acknowledges
receipt of the deposited Preferred Stock and related documentation and agrees
to hold such deposited Preferred Stock in an account to be established by the
Depositary at the Corporate Office or at such other office as the Depositary
shall determine. The Company hereby appoints the Depositary as the
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Registrar and Transfer Agent for the Preferred Stock deposited hereunder and
the Depositary hereby accepts such appointment and, as such, will reflect
changes in the number of shares (including any fractional shares) of deposited
Preferred Stock held by it by notation, book-entry or other appropriate method.
If required by the Depositary, Preferred Stock presented for deposit by the
Company at any time, whether or not the register of stockholders 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 distribution or right to
subscribe for additional Preferred Stock or to receive other property that any
person in whose name the Preferred Stock is or has been registered may
thereafter receive upon or in respect of such deposited Preferred Stock, or in
lieu thereof such agreement of indemnity or other agreement as shall be
satisfactory to the Depositary.
Upon receipt by the Depositary of a certificate or certificates for Preferred
Stock deposited hereunder, together with the other documents specified above,
and upon registering such Preferred Stock in the name of the Depositary, the
Depositary, subject to the terms and conditions of this Deposit Agreement,
shall execute and deliver to, or upon the order of, the person or persons named
in the written order delivered to the Depositary referred to in the first
paragraph of this Section 2.02, a Receipt or Receipts for the number of whole
Depositary Shares representing the Preferred Stock so deposited and registered
in such name or names as may be requested by such person or persons. The
Depositary shall execute and deliver such Receipt or Receipts at the Corporate
Office, except that, at the request, risk and expense of any person requesting
such delivery, such delivery may be made at such other place as may be
designated by such person.
Other than in the case of splits, combinations or other reclassifications
affecting the Preferred Stock, or in the case of distributions of Preferred
Stock, if any, there shall be deposited hereunder not more than the number of
shares constituting the Preferred Stock as set forth in the Articles
Supplementary, as such may be amended.
The Company shall deliver to the Depositary from time to time such quantities
of Receipts as the Depositary may request to enable the Depositary to perform
its obligations under this Deposit Agreement.
SECTION 2.03. Optional Redemption of Preferred Stock for Cash. Whenever the
Company shall elect to redeem shares of deposited Preferred Stock for cash in
accordance with the provisions of the Articles Supplementary, it shall (unless
otherwise agreed in writing with the Depositary) give the Depositary not less
than 60 days' prior written notice of the date of such proposed redemption and
of the number of such shares of Preferred Stock held by the Depositary to be
redeemed and the applicable redemption price, as set forth in the Articles
Supplementary, including the amount, if any, of accrued and unpaid
distributions to the date of such redemption. The Depositary shall mail,
first-class postage prepaid, notice of the redemption of Preferred Stock and
the proposed simultaneous redemption of the Depositary Shares representing the
Preferred Stock to be redeemed, not less than 30 and not more than 60 days
prior to the date fixed for redemption of such Preferred Stock and Depositary
Shares (the "cash redemption date"), to the holders of record on the record
date fixed for such redemption pursuant to Section 4.04 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 shares of deposited Preferred Stock and Depositary Shares
to be redeemed; if fewer than all the Depositary shares held by any holder are
to be redeemed, the number of such Depositary Shares held by such holder to be
so redeemed; the place or places where Receipts evidencing Depositary Shares to
be redeemed are to be surrendered for payment of the cash redemption price; and
that from and after the cash redemption date distributions in respect of the
Preferred Stock represented by the Depositary Shares to be redeemed will cease
to accrue. If fewer than
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all the outstanding Depositary Shares are to be redeemed, the Depositary Shares
to be redeemed shall be selected by lot or pro rata (as nearly as may be
practicable without creating fractional Depositary Shares) or by any other
equitable method determined by the Company. The Company shall also cause notice
of redemption to be published in The Wall Street Journal or The New York Times,
or if neither such newspaper is then being published, any other daily newspaper
of general circulation in The City of New York, at least once a week for two
successive weeks commencing not less than 30 nor more than 60 days prior to the
cash redemption date.
In the event that notice of redemption has been made as described in the
immediately preceding paragraph and the Company shall then have paid in full to
the Depositary the cash redemption price (determined pursuant to the Articles
Supplementary) of the Preferred Stock deposited with the Depositary to be
redeemed (including any accrued and unpaid distributions to the date of
redemption), the Depositary shall redeem the number of Depositary Shares
representing such Preferred Stock so called for redemption by the Company and
from and after the cash redemption date (unless the Company shall have failed
to redeem the shares of Preferred Stock to be redeemed by it as set forth in
the Company's notice provided for in the preceding paragraph), all
distributions in respect of the shares of Preferred Stock called for redemption
shall cease to accrue, the Depositary Shares called for redemption shall be
deemed no longer to be outstanding and all rights of the holders of Receipts
evidencing such Depositary Shares (except the right to receive the cash
redemption price and any money or other property to which holders of such
Receipts were entitled upon such redemption) shall, to the extent of such
Depositary Shares, cease and terminate. Upon surrender in accordance with said
notice of the Receipts evidencing such Depositary Shares (properly endorsed or
assigned for transfer, it the Depositary shall so require), such Depositary
Shares shall be redeemed at a cash redemption price of $____ per Depositary
Share plus any other money and other property payable in respect of such
Preferred Stock. The foregoing shall be further subject to the terms and
conditions of the Articles Supplementary.
If fewer than all of the Depositary Shares evidenced by a Receipt are called
for redemption, the Depositary will deliver to the holder of such Receipt upon
its surrender to the Depositary, together with payment of the cash redemption
price for and all other amounts payable in respect of the Depositary Shares
called for redemption, a new Receipt evidencing the Depositary Shares evidenced
by such prior Receipt and not called for redemption.
SECTION 2.04. Registration of Transfers of Receipts. The Company hereby
appoints the Depositary as the Registrar and Transfer Agent for the Receipts
and the Depositary hereby accepts such appointment and, as such, shall register
on its books from time to time transfers of Receipts upon any surrender thereof
by the holder in person or by a duly authorized attorney, properly endorsed or
accompanied by a properly executed instrument of transfer or endorsement,
together with evidence of the payment of any transfer taxes as may be required
by law. Upon such surrender, the Depositary shall execute a new Receipt or
Receipts and deliver the same to or upon the order of the person entitled
thereto evidencing the same aggregate number of Depositary Shares evidenced by
the Receipt or Receipts surrendered.
SECTION 2.05. Combinations and Split-ups of Receipts. Upon surrender of a
Receipt or Receipts at the Corporate Office or such other office as the
Depositary may designate for the purpose of effecting a split-up or combination
of Receipts, subject to the terms and conditions of this Deposit Agreement, the
Depositary shall execute and deliver a new Receipt or Receipts in the
authorized denominations requested evidencing the same aggregate number of
Depositary Shares evidenced by the Receipt or Receipts surrendered.
SECTION 2.06. Surrender of Receipts and Withdrawal of Preferred Stock. Any
holder of a Receipt or Receipts may withdraw any or all of the deposited
Preferred Stock represented by the Depositary Shares evidenced by such Receipt
or Receipts and all money and other property, if any, represented by such
Depositary Shares by surrendering such Receipt or Receipts at the Corporate
Office or at such other office as the Depositary may designate for such
withdrawals. After such surrender, without unreasonable delay, the
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Depositary shall deliver to such holder, or to the person or persons designated
by such holder as hereinafter provided, the number of whole or fractional
shares of such Preferred Stock and all such money and other property, if any,
represented by the Depositary shares evidenced by the Receipt or Receipts so
surrendered for withdrawal, but holders of such whole or fractional shares of
Preferred Stock will not thereafter be entitled to deposit such Preferred Stock
hereunder or to receive Depositary Shares therefor. If the Receipt or Receipts
delivered by the holder to the Depositary in connection with such withdrawal
shall evidence a number of Depositary Shares in excess of the number of
Depositary Shares representing the number of whole or fractional shares of
deposited Preferred Stock to be withdrawn, the Depositary shall at the same
time, in addition to such number of whole or fractional shares of Preferred
Stock and such money and other property, if any, to be withdrawn, deliver to
such holder, or (subject to Section 2.04) upon his order, a new Receipt or
Receipts evidencing such excess number of Depositary Shares. Delivery of such
Preferred Stock and such money and other property being withdrawn may be made
by the delivery of such certificates, documents of title and other instruments
as the Depositary may deem appropriate, which, if required by the Depositary,
shall be properly endorsed or accompanied by proper instruments of transfer.
If the deposited Preferred Stock and the money and other property being
withdrawn are to be delivered to a person or persons other than the record
holder of the Receipt or Receipts being surrendered for withdrawal of Preferred
Stock, such holder shall execute and deliver to the Depositary a written order
so directing the Depositary and the Depositary may require that the Receipt or
Receipts surrendered by such holder for withdrawal of such shares of Preferred
Stock be properly endorsed in blank or accompanied by a properly executed
instrument of transfer or endorsement in blank.
The Depositary shall deliver the deposited Preferred Stock and the money and
other property, if any, represented by the Depositary Shares evidenced by
Receipts surrendered for withdrawal at the Corporate Office, except that, at
the request, risk and expense of the holder surrendering such Receipt or
Receipts and for the account of the holder thereof, such delivery may be made
at such other place as may be designated by such holder.
SECTION 2.07. Limitations on Execution and Delivery, Transfer, Split-up,
Combination. Surrender and Exchange of Receipts. As a condition precedent to
the execution and delivery, transfer, split-up, combination, surrender or
exchange of any Receipt, the Depositary, any of the Depositary's Agents or the
Company may require any or all of the following: (i) payment to it of a sum
sufficient for the payment (or, in the event that the Depositary or the Company
shall have made such payment, the reimbursement to it) of any tax or other
governmental charge with respect thereto (including any such tax or charge with
respect to the Preferred Stock being deposited or withdrawn); (ii) the
production of proof satisfactory to it as to the identity and genuineness of
any signature (or the authority of any signature); and (iii) compliance with
such regulations, if any, as the Depositary or the Company may establish
consistent with the provisions of this Deposit Agreement as may be required by
any securities exchange upon which the deposited Preferred Stock, the
Depositary Shares or the Receipts may be included for quotation or listed.
The deposit of Preferred Stock may be refused, the delivery of Receipts against
Preferred Stock may be suspended, the transfer of Receipts may be refused, and
the transfer, split-up, combination, surrender, exchange or redemption of
outstanding Receipts may be suspended (i) during any period when the register
of stockholders 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.
SECTION 2.08. 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
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and substitution for such mutilated Receipt or in lieu of and in substitution
for such destroyed, lost or stolen Receipt, provided that the holder thereof
provides the Depositary with (i) evidence reasonably satisfactory to the
Depositary of such destruction, loss or theft of such Receipt, of the
authenticity thereof and of his ownership thereof and (ii) reasonable
indemnification satisfactory to the Depositary and the Company.
SECTION 2.09. Cancellation and Destruction of Surrendered Receipts. All
Receipts surrendered to the Depositary or any Depositary's Agent shall be
cancelled by the Depositary. Except as prohibited by applicable law or
regulation, the Depositary is authorized to destroy such Receipts so cancelled.
ARTICLE III
CERTAIN OBLIGATIONS OF HOLDERS OF RECEIPTS AND THE COMPANY
SECTION 3.01. Filing Proofs, Certificates and Other Information. Any person
presenting Preferred Stock for deposit or any holder of a Receipt may be
required from time to time to file such proof of residence or other
information, to execute such certificates and to make such representations and
warranties as the Depositary or the Company may reasonably deem necessary or
proper. The Depositary or the Company may withhold or delay the delivery of any
Receipt, the transfer, redemption or exchange of any Receipt, the withdrawal of
the deposited Preferred Stock represented by the Depositary Shares evidenced by
any Receipt, the distribution of any distribution or the sale of any rights or
of the proceeds thereof, until such proof or other information is filed, such
certificates are executed or such representations and warranties are made.
SECTION 3.02. 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 5.07, or provide evidence reasonably satisfactory to the
Depositary that such fees and expenses have been paid. Until such payment is
made, transfer of any Receipt or any withdrawal of the Preferred Stock or money
or other property, if any, represented by the Depositary Shares evidenced by
such Receipt may be refused, any distribution may be withheld, and any part or
all of the Preferred Stock or other property represented by the Depositary
Shares evidenced by such Receipt may be sold for the account of the holder
thereof (after attempting by reasonable means to notify such holder a
reasonable number of days prior to such sale). Any distribution so withheld and
the proceeds of any such sale may be applied to any payment of such fees or
expenses, the bolder of such Receipt remaining liable for any deficiency.
SECTION 3.03. Representations and Warranties as to Preferred Stock. In the case
of the initial deposit of the Preferred Stock hereunder, the Company and, in
the case of subsequent deposits thereof, each person so depositing Preferred
Stock under this Deposit Agreement, shall be deemed thereby to represent and
warrant that such Preferred Stock and each certificate therefor are valid and
that the person making such deposit is duly authorized to do so. The Company
hereby further represents and warrants that such Preferred Stock, when issued,
will be validly issued, fully paid and nonassessable. Such representations and
warranties shall survive the deposit of the Preferred Stock and the issuance of
Receipts.
SECTION 3.04. 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 ___ fractional interest in a share of
deposited Preferred Stock. Such representation and warranty shall survive the
deposit of the Preferred Stock and the issuance of Receipts evidencing the
Depositary Shares.
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ARTICLE IV
THE PREFERRED STOCK; NOTICES
SECTION 4.01. Cash Distributions. Whenever the Depositary shall receive any
cash distribution on the deposited Preferred Stock, including any cash received
upon redemption of any shares of Preferred Stock pursuant to Section 2.03, the
Depositary shall, subject to Section 3.02, distribute to record holders of
Receipts on the record date fixed pursuant to Section 4.04 such amounts of such
sum as are, as nearly as practicable, in proportion to the respective numbers
of Depositary Shares evidenced by the Receipts held by such holders; provided,
however, that, in case the Company or the Depositary shall be required to and
shall withhold from any cash distribution in respect of the Preferred Stock
represented by the Receipts held by any holder an amount on account of taxes,
the amount made available for distribution or distributed in respect of
Depositary Shares represented by such Receipts subject to such withholding
shall be reduced accordingly. The Depositary shall distribute or make available
for distribution, as the case may be, only such amount, however, as can be
distributed without attributing to any holder of Receipts a fraction of one
cent, and any balance not so distributable shall be held by the Depositary
(without liability for interest thereon) and shall be added to and be treated
as part of the next sum received by the Depositary for distribution to record
holders of Receipts then outstanding.
SECTION 4.02. Distributions Other Than Cash. Whenever the Depositary shall
receive any distribution other than cash on the deposited Preferred Stock, the
Depositary shall, subject to Section 3.02, distribute to record holders of
Receipts on the record date fixed pursuant to Section 4.04 such amounts of the
securities or property received by it as are, as nearly as practicable, in
proportion to the respective numbers of Depositary Shares evidenced by the
Receipts held by such holders, in any manner that the Depositary and the
Company may deem equitable and practicable for accomplishing such distribution.
If in the opinion of the Depositary after consultation with the Company, such
distribution cannot be made proportionately among such record holders, or if
for any other reason (including any requirement that the Company or the
Depositary withhold an amount on account of taxes), the Depositary deems, after
consultation with the Company, such distribution not to be feasible, the
Depositary may, with the approval of the Company, adopt such method as it deems
equitable and practicable for the purpose of effecting such distribution,
including the sale (at public or private sale) of the securities or property
thus received, or any part thereof, at such place or places and upon such terms
as it may deem proper. The net proceeds of any such sale shall, subject to
Section 3.02, be distributed or made available for distribution, as the case
may be, by the Depositary to record holders of Receipts as provided by Section
4.01 in the case of a distribution received in cash. The Company shall not make
any distribution of such securities or property to the holders of Receipts
unless the Company shall have provided to the Depositary an opinion of counsel
stating that such securities or property have been registered under the
Securities Act or do not need to be registered.
SECTION 4.03. Subscription Rights, Preferences or Privileges. If the Company
shall at any time offer or cause to be offered to the persons in whose names
deposited Preferred Stock is registered on the books of the Company any rights,
preferences or privileges to subscribe for or to purchase any securities or any
rights, preferences or privileges of any other nature, such rights, preferences
or privileges shall in each such instance be made available by the Depositary
to the record holders of Receipts in such manner as the Company shall instruct
(including by the issue to such record holders of warrants representing such
rights, preferences or privileges); provided, however, that (a) if at the time
of issue or offer of any such rights, preferences or privileges the Company
determines upon advice of its legal counsel that it is not lawful or feasible
to make such rights, preferences or privileges available to the holders of
Receipts (by the issue of warrants or otherwise) or (b) if and to the extent
instructed by holders of Receipts who do not desire to exercise such rights,
preferences or privileges, the Depositary shall then, if so instructed by the
Company, and if applicable laws or the terms of such rights, preferences or
privileges so permit, sell such rights, preferences or privileges of such
holders at public or private
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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 3.01 and Section 3.02,
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 Company shall not make any distribution of such rights, preferences
or privileges, unless the Company shall have provided to the Depositary an
opinion of counsel stating that such rights, preferences or privileges have
been registered under the Securities Act or do not need to be registered.
If registration under the Securities Act of the securities to which any rights,
preferences or privileges relate is required in order for holders of Receipts
to be offered or sold the securities to which such rights, preferences or
privileges relate, the Company agrees that it will promptly file a registration
statement pursuant to the Securities Act with respect to such rights,
preferences or privileges and securities and use its best efforts and take all
steps available to it to cause such registration statement to become effective
sufficiently in advance of the expiration of such rights, preferences or
privileges to enable such holders to exercise such rights, preferences or
privileges. In no event shall the Depositary make available to the holders of
Receipts any right, preference or privilege to subscribe for or to purchase any
securities unless and until such a registration statement shall have become
effective or unless the offering and sale of such securities to such holders
are exempt from registration under the provisions of the Securities Act and the
Company shall have provided to the Depositary an opinion of counsel to such
effect.
If any other action under the law of any jurisdiction or any governmental or
administrative authorization, consent or permit is required in order for such
rights, preferences or privileges to be made available to holders of Receipts,
the Company agrees to use its best efforts to take such action or obtain such
authorization, consent or permit sufficiently in advance of the expiration of
such rights, preferences or privileges to enable such holders to exercise such
rights, preferences or privileges.
SECTION 4.04. Notice of Distributions; Fixing of Record Date for Holders of
Receipts. Whenever any cash distribution shall become payable, any distribution
other than cash shall be made, or any rights, preferences or privileges shall
at any time be offered, with respect to the deposited Preferred Stock, or
whenever the Depositary shall receive notice of (i) any meeting at which
holders of such Preferred Stock are entitled to vote or of which holders of
such Preferred Stock are entitled to notice or (ii) any election on the part of
the Company to redeem any shares of such Preferred Stock, the Depositary shall
in each such instance fix a record date (which shall be the same date as the
record date fixed by the Company with respect to the Preferred Stock) for the
determination of the holders of Receipts who shall be entitled to receive such
distribution, rights, preferences or privileges or the net proceeds of the sale
thereof, to give instructions for the exercise of voting rights at any such
meeting or to receive notice of such meeting or whose Depositary Shares are to
be so redeemed.
SECTION 4.05. Voting Rights. Upon receipt of notice of any meeting at which the
holders of deposited Preferred Stock are entitled to vote, the Depositary
shall, as soon as practicable thereafter, mail to the record holders of
Receipts a notice, which shall be provided by the Company and which shall
contain (i) such information as is contained in such notice of meeting, (ii) a
statement that the holders of Receipts at the close of business on a specified
record date fixed pursuant to Section 4.04 will be entitled, subject to any
applicable provision of law, to instruct the Depositary as to the exercise of
the voting rights pertaining to the amount of Preferred Stock represented by
their respective Depositary Shares and (iii) a brief statement as to the manner
in which such instructions way be given. Upon the written request of a holder
of a Receipt on such record date, the Depositary shall vote or cause to be
voted the amount of Preferred Stock represented by the Depositary Shares
evidenced by such Receipt in accordance with the instructions set forth in such
request. To the extent any such instructions request the voting of a fractional
interest of a share of deposited Preferred Stock, the Depositary shall
aggregate such interest with all other fractional interests resulting from
requests with the same voting instructions and shall vote the number of whole
votes resulting from such aggregation in accordance with the instructions
received in such requests. Each share of Preferred Stock is entitled to 10
votes and, accordingly, each Depositary
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Share is entitled to one vote. The Company hereby agrees to take all reasonable
action that may be deemed necessary by the Depositary in order to enable the
Depositary to vote such Preferred stock or cause such Preferred Stock to be
voted. In the absence of specific instructions from the holder of a Receipt,
the Depositary will abstain from voting to the extent of the Preferred Stock
represented by the Depositary Shares evidenced by such Receipt. The Depositary
shall not be required to exercise discretion in voting any Preferred Stock
represented by the Depositary Shares evidenced by such Receipt.
SECTION 4.06. Changes Affecting Preferred Stock and Reclassifications,
Recapitalizations, etc. Upon any change in par or stated value, split-up,
combination or any other reclassification of Preferred Stock, or upon any
recapitalization, reorganization, merger, amalgamation or consolidation
affecting the Company or to which it is a party or sale of all or substantially
all of the Company's assets, the Depositary shall, upon the instructions of the
Company, (i) make such adjustments in (a) the fraction of an interest
represented by one Depositary Share in one share of Preferred Stock and (b) the
ratio of the redemption price per Depositary Share to the redemption price of a
share of Preferred Stock, in each case as may be required by or as is
consistent with the provisions of the Articles Supplementary to fully reflect
the effects of such change in liquidation value, split-up, combination or other
reclassification of stock, or of such recapitalization, reorganization, merger,
consolidation or sale and (ii) treat any shares of stock or other securities or
property (including cash) that shall be received by the Depositary in exchange
for or upon conversion of or in respect of the Preferred Stock as new deposited
property under this Deposit Agreement, and Receipts then outstanding shall
thenceforth represent the proportionate interests of holders thereof in the new
deposited property so received in exchange for or upon conversion or in respect
of such Preferred Stock. In any such case the Depositary may, in its
discretion, with the approval of the Company, execute and deliver additional
Receipts, or may call for the surrender of all outstanding Receipts to be
exchanged for new Receipts specifically describing such new deposited property.
Anything to the contrary herein notwithstanding, holders of Receipts shall have
the right from and after the effective date of any such change in par or stated
value, split-up, combination or other reclassification of the Preferred Stock
or any such recapitalization, reorganization, merger, amalgamation or
consolidation or sale of substantially all the assets of the Company to
surrender such Receipts to the Depositary with instructions to convert,
exchange or surrender the Preferred Stock represented thereby only into or for,
as the case may be, the kind and amount of shares of stock and other securities
and property and cash into which the deposited Preferred Stock evidenced by
such Receipts might have been converted or for which such Preferred Stock might
have been exchanged or surrendered immediately prior to the effective date of
such transaction. The Company shall cause effective provision to be made in the
charter of the resulting or surviving corporation (if other than the Company)
for protection of such rights as may be applicable upon exchange of the
deposited Preferred Stock for securities or property or cash of the surviving
corporation in connection with the transactions set forth above. The Company
shall cause any such surviving corporation (if other than the Company)
expressly to assume the obligations of the Company hereunder.
SECTION 4.07. Inspection of Reports. The Depositary shall make available for
inspection by holders of Receipts at the Corporate Office and at such other
places as it may from time to time deem advisable during normal business hours
any reports and communications received from the Company that are both received
by the Depositary as the holder of deposited Preferred Stock and made generally
available to the holders of the Preferred Stock. In addition, the Depositary
shall transmit certain notices and reports to the holders of Receipts as
provided in Section 5.05.
SECTION 4.08. Lists of Receipt Holders. Promptly upon request from time to time
by the Company, the Depositary shall furnish to the Company a list, as of a
recent date specified by the Company, of the names, addresses and holdings of
Depositary Shares of all persons in whose names Receipts are registered on the
books of the Depositary.
SECTION 4.09. 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)
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withholding 31% (or any withholding as may be required at the then applicable
rate) of distributions 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.
SECTION 4.10. Withholding. Notwithstanding any other provision of this Deposit
Agreement, in the event that the Depositary determines that any distribution in
property is subject to any tax which the Depositary is obligated by law to
withhold, the Depositary may dispose of all or a portion of such property in
such amounts and in such manner as the Depositary deems necessary and
practicable to pay such taxes, by public or private sale, and the Depositary
shall distribute the net proceeds of any such sale or the balance of any such
property after deduction of such taxes to the holders of Receipts entitled
thereto in proportion to the number of Depositary Shares held by them
respectively.
ARTICLE V
THE DEPOSITARY AND THE COMPANY
SECTION 5.01. Maintenance of Offices, Agencies and Transfer Books by the
Depositary and the Registrar. The Depositary shall maintain at the Corporate
Office facilities for the execution and delivery, transfer, surrender and
exchange, split-up, combination and redemption of Receipts and deposit and
withdrawal of Preferred Stock and at the offices of the Depositary's Agents, if
any, facilities for the delivery, transfer, surrender and exchange, split-up,
combination and redemption of Receipts and deposit and withdrawal of Preferred
Stock, all in accordance with the provisions of this Deposit Agreement.
The Depositary shall keep books at the Corporate Office for the registration
and transfer of Receipts, which books at all reasonable times shall be open for
inspection by the record holders of Receipts as provided by applicable law. The
Depositary may close such books, at any time or from time to time, when deemed
expedient by it in connection with the performance of its duties hereunder.
If the Receipts or the Depositary Shares evidenced thereby or the Preferred
Stock represented by such Depositary Shares shall be listed on the New York
Stock Exchange, Inc. or any other stock exchange, the Depositary may, with the
approval of the Company, appoint a Registrar (acceptable to the Company) for
registration of such Receipts or Depositary shares in accordance with the
requirements of such Exchange. Such Registrar (which may be the Depositary if
so permitted by the requirements of such Exchange) may be removed and a
substitute registrar appointed by the Depositary upon the request or with the
approval of the Company. If the Receipts, such Depositary Shares or such
Preferred Stock are listed on one or more other stock exchanges, the Depositary
will, at the request and expense of the Company, arrange such facilities for
the delivery, transfer, surrender, redemption and exchange of such Receipts,
such Depositary Shares or such Preferred Stock as may be required by law or
applicable stock exchange regulations.
SECTION 5.02. Prevention or Delay in Performance by the Depositary, the
Depositary's Agents, the Registrar or the Company. Neither the Depositary, any
Depositary's Agent, any Registrar nor the Company shall incur any liability to
any holder of any Receipt, if by reason of any provision of any present or
future law or regulation thereunder of the United States of America or of any
other governmental authority or, in the case of the Depositary, the
Depositary's Agent or the Registrar, by reason of any provision, present or
future, of the Articles of Incorporation or the Articles Supplementary or, in
the case of the Company, the Depositary, the Depositary's Agent or the
Registrar, by reason of any act of God or war or other circumstance beyond the
control of the relevant party, the Depositary, any Depositary's Agent, the
Registrar or the Company shall be prevented or forbidden from doing or
performing any act or thing that the terms of this Deposit Agreement provide
shall be done or performed; nor shall the Depositary, any Depositary's Agent,
any ▇▇▇▇▇▇▇▇▇
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or the Company incur any liability to any holder of a Receipt by reason of any
nonperformance or delay, caused as aforesaid, in the performance of any act or
thing that the terms of this Deposit Agreement provide shall or may be done or
performed, or by reason of any exercise of, or failure to exercise, any
discretion provided for in this Deposit Agreement.
SECTION 5.03. 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, gross negligence or willful misconduct in the performance of
such duties as are specifically set forth in this Deposit Agreement.
Neither the Depositary, any Depositary's Agent, any Registrar nor the Company
shall be under any obligation to appear in, prosecute or defend any action,
suit or other proceeding with respect to the deposited Preferred Stock,
Depositary Shares or Receipts that in its reasonable opinion may involve it in
expense or liability, unless indemnity reasonably satisfactory to it against
all expense and liability be furnished as often as may be required.
Neither the Depositary, any Depositary's Agent, any Registrar nor the Company
shall be liable for any action or any failure to act by it in reliance upon the
written advice of legal counsel or accountants, or information provided by any
person presenting Preferred Stock for deposit, any holder of a Receipt or any
other person believed by it in good faith to be competent to give such
information. The Depositary, any Depositary's Agent, any Registrar and the
Company may each rely and shall each be protected in acting upon any written
notice, request, direction or other document believed by it in good faith to be
genuine and to have been signed or presented by the proper party or parties.
In the event the Depositary shall receive conflicting claims, requests or
instructions from any holders of Receipts, on the one hand, and the Company, on
the other hand, the Depositary shall be entitled to act on such claims,
requests or instructions received from the Company, and shall be entitled to
the full indemnification set forth in Section 5.06 hereof in connection with
any action so taken.
The Depositary shall not be responsible for any failure to carry out any
instruction to vote any of the deposited Preferred Stock or for the manner or
effect of any such vote made, as long as any such action or non-action is in
good faith and does not result from negligence or willful misconduct of the
Depositary. The Depositary undertakes, and any Registrar shall be required to
undertake, to perform such duties and only such duties as are specifically set
forth in this Deposit Agreement, and no implied covenants or obligations shall
be read into this Agreement against the Depositary or any Registrar.
The Depositary, its parent, affiliate, or subsidiaries, any Depositary's Agent,
and any Registrar may own, buy, sell or deal in any class of securities of the
Company and its affiliates and in Receipts or Depositary Shares or become
pecuniarily interested in any transaction in which the Company or its
affiliates may be interested or contract with or lend money to or otherwise act
as fully or as freely as if it were not the Depositary or the Depositary's
Agent hereunder. The Depositary may also act as transfer agent or registrar of
any of the securities of the Company and its affiliates or act in any other
capacity for the Company or its affiliates.
It is intended that neither the Depositary nor any Depositary's Agent shall be
deemed to be an "issuer" of the securities under the federal securities laws or
applicable state securities laws, it being expressly understood and agreed that
the Depositary and any Depositary's Agent are acting only in a ministerial
capacity as Depositary for the deposited Preferred Stock; provided, however,
that the Depositary agrees to comply with all information reporting and
withholding requirements applicable to it under law or this Deposit Agreement
in its capacity as Depositary.
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Neither the Depositary (or its officers, directors, employees or agents) nor
any Depositary's Agent makes any representation or has any responsibility as to
the validity of the registration statement pursuant to which the Depositary
Shares are registered under the Securities Act, the deposited Preferred Stock,
the Depositary Shares, the Receipts (except its countersignature thereon) or
any instruments referred to therein or herein, or as to the correctness of any
statement made therein or herein; provided, however, that the Depositary is
responsible for its representations in this Deposit Agreement and for the
validity of any action taken or required to be taken by the Depositary in
connection with this Deposit Agreement.
The Company agrees that it will register the deposited Preferred Stock and the
Depositary Shares in accordance with the applicable securities laws.
SECTION 5.04. 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 Stock and any moneys
or property held hereunder to such successor and shall deliver to such
successor a list of the record holders of all outstanding Receipts. Any
successor depositary shall promptly mail notice of its appointment to the
record holders of Receipts.
Any corporation into or with which the Depositary may be merged, consolidated
or converted shall be the successor of such Depositary without the execution or
filing of any document or any further act. Such successor depositary may
execute the Receipts either in the name of the predecessor depositary or in the
name of the successor depositary.
SECTION 5.05. Notices, Reports and Documents. The Company agrees that it will
deliver to the Depositary, and the Depositary will, promptly after receipt
thereof, transmit to the record holders of Receipts, in each case at the
address recorded in the Depositary's books, copies of all notices and reports
(including financial statements) required by law, by the rules of any national
securities exchange upon which the Preferred Stock, the Depositary Shares or
the Receipts are included for quotation or listed or by the Articles of
Incorporation and the Articles Supplementary to be furnished by the Company to
holders of the deposited Preferred Stock and, if requested by the holder of any
Receipt, a copy of this Deposit Agreement, the form of
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Receipt, the Articles Supplementary and the form of Preferred Stock. Such
transmission will be at the Company's expense and the Company will provide the
Depositary with such number of copies of such documents as the Depositary may
reasonably request. In addition, the Depositary will transmit to the record
holders of Receipts at the Company's expense such other documents as may be
requested by the Company.
SECTION 5.06. 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 an action or inaction
with respect to the voting of the deposited Preferred Stock) or bad faith on
the part of any such person or persons. The obligations of the Company met
forth in this Section 5.06 shall survive any succession of any Depositary,
Registrar or Depositary's Agent or termination of this Deposit Agreement.
SECTION 5.07. 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 5.07. The Company shall pay all transfer and
other taxes and governmental charges arising solely from the existence of this
Deposit Agreement. The Company shall also pay all fees and expenses of the
Depositary in connection with the initial deposit of the Preferred Stock and
the initial issuance of the Depositary Shares evidenced by the Receipts, any
redemption of the Preferred Stock at the option of the Company and all
withdrawals of the Preferred Stock by holders of Depositary Shares. If a holder
of Receipts requests the Depositary to perform duties not required under this
Deposit Agreement, the Depositary shall notify the holder of the cost of the
performance of such duties prior to the performance thereof. Such holder will
be liable for the charges and expenses related to such performance. All other
fees and expenses of the Depositary and any Depositary's Agent hereunder and of
any Registrar (including, in each case, fees and expenses of counsel) incident
to the performance of their respective obligations hereunder will be promptly
paid as previously agreed between the Depositary and the Company. The
Depositary shall present its statement for fees and expenses to the Company
every month or at such other intervals as the Company and the Depositary may
agree.
ARTICLE VI
AMENDMENT AND TERMINATION
SECTION 6.01. Amendment. The form of the Receipts and any provision of this
Deposit Agreement may at any time and from time to time be amended by agreement
between the Company and the Depositary in any respect that they may deem
necessary or desirable; provided, however, that no such amendment (other than
any change in the fees of any Depositary, Registrar or Transfer Agent) which
(i) shall materially and adversely alter the rights of the holders of Receipts
or (ii) would be materially and adversely inconsistent with the rights granted
to the holders of the Preferred Stock pursuant to the Articles Supplementary
shall be effective unless such amendment shall have been approved by the
holders of at least a majority of the Depositary Shares then outstanding. In no
event shall any amendment impair the right, subject to the provisions of
Section 2.06 and Section 2.07 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
Stock and all money and other property if any, represented thereby, except in
order to comply with mandatory provisions of applicable law. Every holder of an
outstanding Receipt at the time any such amendment becomes effective shall be
deemed, by continuing to hold such Receipt, to consent and agree to such
amendment and to be bound by this Deposit Agreement as amended thereby.
SECTION 6.02. 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
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the Company's status as a real estate investment trust under the Internal
Revenue Code of 1986, as amended (or any successor provision) or (ii) the
holders of a majority of the Preferred Stock consent to such termination,
whereupon the Depositary shall deliver or make available to each holder of a
Receipt, upon surrender of the Receipt held by such holder, such number of
whole or fractional shares of deposited Preferred Stock as are represented by
the Depositary Shares evidenced by such Depositary Receipt, together with any
other property held by the Depositary in respect of such Receipt. In the event
that this Deposit Agreement is terminated pursuant to clause (i) of the
immediately preceding sentence, the Company hereby agrees to use its best
efforts to list the Preferred Stock issued upon surrender of the Receipt
evidencing the Depositary Shares represented thereby on a national securities
exchange. This Deposit Agreement will automatically terminate if (i) all
outstanding Depositary Shares shall have been redeemed pursuant to Section 2.03
or (ii) there shall have been made a final distribution in respect of the
deposited Preferred Stock in connection with any liquidation, dissolution or
winding up of the Company and such distribution shall have been distributed to
the holders of Receipts entitled thereto.
Upon the termination of this Deposit Agreement, the Company shall be discharged
from all obligations under this Deposit Agreement except for its obligations to
the Depositary, any Depositary's Agent and any Registrar under Section 5.06 and
Section 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. Delivery of an executed counterpart of
a signature page to this Deposit Agreement by telecopier shall be effective as
delivery of a manually executed counterpart of this Deposit Agreement. Copies
of this Deposit Agreement shall be filed with the Depositary and the
Depositary's Agents and shall be open to inspection during business hours at
the Corporate Office and the respective offices of the Depositary's Agents, if
any, by any holder of a Receipt.
SECTION 7.02. 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.
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 disturbed 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 by telegram or facsimile
transmission confirmed by letter, addressed to the Company at:
NEW PLAN EXCEL REALTY TRUST, INC.
▇▇▇▇ ▇▇▇▇▇▇ ▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: General Counsel
Telephone No.: (▇▇▇) ▇▇▇-▇▇▇▇
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or at any other address of which the Company shall have notified the Depositary
in writing.
Any notices to be given to the Depositary hereunder or under the Receipts shall
be in writing and shall be deemed to have been duly given if personally
delivered or sent by mail, or by telegram or telex or telecopier confirmed by
letter, addressed to the Depositary at the Corporate Office.
Any notices given to any record holder or a Receipt hereunder or under the
Receipts shall be in writing and shall be deemed to have been duly given if
personally delivered or sent by mail, or by telegram or telex or telecopier
confirmed by letter, addressed to such record holder at the address of such
record holder as it appears on the books of the Depositary or, if such holder
shall have filed with the Depositary in a timely manner a written request that
notices intended for such holder be mailed to some other address, at the
address designated in such request.
Delivery of a notice sent by mail, or by telegram or telex or telecopier shall
be deemed to be effected at the time when a duly addressed letter containing
the same (or a confirmation thereof in the case of a telegram or telex or
telecopier message) is deposited, postage prepaid, in a post office letter box.
The Depositary or the Company may, however, act upon any telegram or telex or
telecopier message received by it from the other or from any holder of a
Receipt, notwithstanding that such telegram or telex or telecopier message
shall not subsequently be confirmed by letter as aforesaid.
SECTION 7.05. Depositary's Agents. The Depositary may from time to time appoint
Depositary's Agents to act in any respect for the Depositary for the purposes
of this Deposit Agreement and may at any time appoint additional Depositary's
Agents and vary or terminate the appointment of such Depositary's Agents. The
Depositary will notify the Company of any such action.
SECTION 7.06. Holders of Receipts Are Parties. The holders of Receipts from
time to time shall be deemed to be parties to this Deposit Agreement and shall
be bound by all of the terms and conditions hereof and of the Receipts by
acceptance of delivery thereof.
SECTION 7.07. 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 law of the State of New York
applicable to agreements made and to be performed in said State.
SECTION 7.08. 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.
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 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, New Plan Excel Realty Trust, Inc. and ____________ 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.
NEW PLAN EXCEL REALTY TRUST, INC.
By:
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[Name]
[Title]
[NAME OF DEPOSITARY]
By:
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[Name]
Authorized Signatory
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EXHIBIT A
Form of Receipt
A-1
19
[GRAPHIC]
Temporary Receipt Exchangeable for Definitive Engraved Receipt When Ready for
Delivery
IMPORTANT NOTICE - RESTRICTIONS ON TRANSFER AND OWNERSHIP
The Depositary Shares represented by this Depositary Receipt are subject to
restrictions on ownership and transfer for the Corporation's maintenance of its
status as a "real estate investment trust" under the Internal Revenue Code of
1986, as amended. Except as otherwise provided pursuant to the Charter of the
Corporation, no Person may Beneficially Own or Constructively Own shares of
Common Stock and/or Preferred Stock (and, accordingly, Depositary Shares or
Depositary Receipts representing such shares) of the Corporation in excess of
9.8% (or such greater percentage as may be determined by the Board of Directors
of the Corporation) of the value of the outstanding Common Stock and Preferred
Stock of the Corporation. Any Person who attempts or proposes to Beneficially
Own or Constructively Own shares of Common Stock and/or Preferred Stock (and,
accordingly, Depositary Shares or Depositary Receipts representing such shares)
in excess of the above limitation must notify the Corporation in writing at
least 15 days prior to such proposed or attempted Transfer. All capitalized
terms used in this legend have the meanings defined in the Charter of the
Corporation, a copy of which, including the restrictions on transfer and
ownership, will be sent without charge to each holder hereof who so requests.
If the restrictions on transfer or ownership are violated, the Preferred Stock
represented by the Depositary Shares may be automatically transferred to a
trust for the benefit of one or more charitable organizations to be designated
by the Corporation. In addition, attempted transfers in violation of the
limitations described above may be void ab initio.
DEPOSITARY RECEIPT FOR DEPOSITARY SHARES EACH REPRESENTING ___th OF A
SHARE OF _% SERIES _ _______________ PREFERRED STOCK
OF
NEW PLAN EXCEL REALTY TRUST, INC.
INCORPORATED UNDER THE LAWS OF THE STATE OF MARYLAND
DEPOSITARY SHARES
THIS DEPOSITARY RECEIPT IS TRANSFERABLE IN _________, __ OR NEW YORK, NY
SEE REVERSE FOR CERTAIN DEFINITIONS
CUSIP ________________
_____________________, as Depositary (the "Depositary"), hereby certifies that
is the registered owner of Depositary Shares
("Depositary Shares"), each Depositary Share representing _____th of one share
of _% Series _ ___________________ Preferred Stock (the "Stock"), of New Plan
Excel Realty Trust, Inc., a Maryland corporation (the "Corporation"), on
deposit with the Depositary, subject to the terms and entitled to the benefits
of the Deposit Agreement dated as of ____________ __, 1998 (the "Deposit
Agreement"), between the Corporation, the Depositary and all holders from time
to time of Depositary Receipts. 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
and/or facsimile signature of a duly authorized officer.
20
The Corporation is authorized to issue Common Stock and one or more series or
classes of Preferred Stock. The Corporation will furnish without charge to each
receiptholder, who so requests in writing, a statement of the rights,
preferences, privileges and restrictions granted to or imposed upon the
respective classes of shares and upon the holders thereof, a copy of the
Corporation's Charter and Bylaws, and a copy of the Deposit Agreement. Any such
request shall be made to the Corporation at the principal office of the
Corporation at 1120 Avenue of the ▇▇▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇
▇▇▇▇▇, Attention: General Counsel.
This Depositary Receipt is continued on the reverse hereof and the additional
provisions therein set forth (including, without limitation, those relating to
redemption) for all purposes have the same effect as if set forth at this
place.
Dated:
Countersigned . Depositary, Transfer Agent and Registrar
------------------
By:
-----------------------------------
AUTHORIZED OFFICER
21
NEW PLAN EXCEL REALTY TRUST, INC.
THE DEPOSITARY SHARES REPRESENTED BY THIS DEPOSITARY RECEIPT ARE SUBJECT TO THE
PROVISIONS OF THE CHARTER AND BYLAWS OF THE CORPORATION, INCLUDING, BUT NOT
LIMITED TO, (1) SECTION 5 OF THE ARTICLES SUPPLEMENTARY RELATING TO THE STOCK,
WHICH CONFERS UPON THE CORPORATION THE RIGHT, ON OR AFTER JANUARY 13, 2003, TO
CALL FOR REDEMPTION THE STOCK, (2) SECTION 9 OF THE ARTICLES SUPPLEMENTARY AND
ARTICLE VII OF THE CHARTER OF THE CORPORATION WHICH IMPOSE CERTAIN RESTRICTIONS
ON TRANSFER OR OWNERSHIP OF THE COMMON STOCK AND THE PREFERRED STOCK (INCLUDING
THE STOCK AND, ACCORDINGLY, THE DEPOSITARY SHARES REPRESENTING THE STOCK, AND
THE DEPOSITARY RECEIPTS) OF THE CORPORATION FOR THE PURPOSE OF THE
CORPORATION'S MAINTENANCE OF ITS STATUS OF A "REAL ESTATE INVESTMENT TRUST"
UNDER THE INTERNAL REVENUE CODE OF 1986, AS AMENDED, INCLUDING PROVISIONS
THEREOF WHICH PROVIDE (A) THAT NO PERSON MAY BENEFICIALLY OWN OR CONSTRUCTIVELY
OWN SHARES OF COMMON STOCK AND/OR PREFERRED STOCK (INCLUDING THE STOCK) IN
EXCESS OF 9.8% (OR SUCH GREATER PERCENTAGES AS MAY BE DETERMINED BY THE BOARD
OF DIRECTORS OF THE CORPORATION) OF THE VALUE OF THE OUTSTANDING COMMON STOCK
AND PREFERRED STOCK OF THE CORPORATION; (B) THAT ANY PERSON WHO ATTEMPTS OR
PROPOSES TO BENEFICIALLY OWN OR CONSTRUCTIVELY OWN SHARES OF COMMON STOCK OR
PREFERRED STOCK IN EXCESS OF THE ABOVE LIMITATION MUST NOTIFY THE CORPORATION;
(C) THAT, IF THE RESTRICTIONS ON TRANSFER OR OWNERSHIP ARE VIOLATED, THE
SUBJECT SECURITIES MAY BE AUTOMATICALLY TRANSFERRED TO A TRUST FOR THE BENEFIT
OF ONE OR MORE CHARITABLE ORGANIZATIONS TO BE DESIGNATED BY THE CORPORATION;
AND (D) THAT ANY TRANSFER IN VIOLATION OF THE LIMITATIONS DESCRIBED ABOVE MAY
BE VOID AB INITIO. THE TERMS "PERSON", "BENEFICIALLY OWN" AND "CONSTRUCTIVELY
OWN", AS USED ABOVE SHALL HAVE THE MEANINGS ASCRIBED IN THE CHARTER OF THE
CORPORATION, A COPY OF WHICH WILL BE SENT WITHOUT CHARGE TO EACH HOLDER HEREOF
WHO SO REQUESTS.
1. THE DEPOSIT AGREEMENT. Depositary Receipts, of which this Depositary Receipt
is one, are made available upon the terms and conditions set forth in the
Deposit Agreement, dated as of _________ __, 199_ (the "Deposit Agreement"),
among the Company, the Depositary and all holders from time to time of
Depositary Receipts. The Deposit Agreement (copies of which are on file at the
principal office maintained by the Depositary which at the time of the
execution of the Deposit Agreement is located at ____________________________
(the "Depositary's Office") and at the office of any agent of the Depositary)
sets forth the rights of holders of Depositary Receipts and the rights and
duties of the Depositary. The statements made on the face and the reverse of
this Depositary Receipt are summaries of certain provisions of the Deposit
Agreement and are subject to the detailed provisions thereof, to which
reference is hereby made. In the event of any conflict between the provisions
of this Depositary Receipt and the provisions of the Deposit Agreement, the
provisions of the Deposit Agreement will govern.
2. DEFINITIONS. Unless otherwise expressly herein provided, all defined terms
used in this summary of the Deposit Agreement shall have the meanings ascribed
thereto in the Deposit Agreement.
3. REDEMPTION OF STOCK. Whenever the Company shall elect to redeem shares of
Stock, it shall (unless otherwise agreed in writing with the Depositary) give
the Depositary not less than 60 days' notice of the date of such proposed
redemption and of the number of such shares of Stock held by the Depositary to
be so redeemed and the applicable redemption price. The Depositary shall mail,
first-class postage prepaid, notice of the redemption of Stock and the proposed
simultaneous redemption of Depositary Shares representing the Stock to be
redeemed, not less than 30 and not more than 60 days prior to the date fixed
for redemption of such Stock and Depositary Shares, to the record holders of
the Depositary 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. Any such notice shall also be published in the same manner as
22
notices of redemption of the Stock are required to be published by the Company.
On the date of such redemption, the Depositary shall redeem the number of
Depositary Shares representing such redeemed Stock; provided, that the Company
shall then have paid or caused to be paid in full to the Depositary the
redemption price of the Stock to be redeemed, plus any accrued and unpaid
dividends payable with respect thereto to the date of any such redemption. In
case fewer than all the outstanding Depositary Shares are to be redeemed, the
Depositary Shares to be redeemed shall be determined pro rata or by lot in a
manner determined by the Board of Directors. Notice having been mailed as
aforesaid, from and after the Redemption Date (unless the Company shall have
failed to provide the funds necessary to redeem the shares of Stock evidenced
by the Depositary Shares called for redemption), dividends on the shares of
Stock so 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 Depositary Receipts evidencing such Depositary Shares
(except the right to receive the redemption price) shall, to the extent of such
Depositary Shares, cease and terminate. Upon surrender in accordance with said
notice of the Depositary Receipts evidencing such Depositary Shares (properly
endorsed or assigned for transfer, if the Depositary or applicable law shall so
require), such Depositary Shares shall be redeemed at a redemption price per
Depositary Share equal to the same fraction of the redemption price per share
paid with respect to the shares of Stock as the fraction each Depositary Share
represents of a share of Stock plus the same fraction of all money and other
property, if any, represented by such Depositary Shares, including all amounts
paid by the Company in respect of dividends which on the Redemption Date have
accumulated on the shares of Stock to be so redeemed and have not theretofore
been paid. The foregoing is subject further to the terms and conditions of the
Certificate of Determination. If fewer than all of the Depositary Shares
evidenced by this Depositary Receipt are called for redemption, the Depositary
will deliver to the holder of this Depositary Receipt upon its surrender to the
Depositary, together with the redemption payment, a new Depositary Receipt
evidencing the Depositary Shares evidenced by such prior Depositary Receipt and
not called for redemption.
4. SURRENDER OF DEPOSITARY RECEIPTS AND WITHDRAWAL OF STOCK. Upon surrender of
this Depositary Receipt to the Depositary at the Depositary's Office or at such
other offices as the Depositary may designate, and subject to the provisions of
the Deposit Agreement, the holder hereof is entitled to withdraw, and to obtain
delivery, without unreasonable delay, to or upon the order of such holder, any
or all of the Stock (but only in whole shares of Stock) and all money and other
property, if any, at the time represented by the Depositary Shares evidenced by
this Depositary Receipt; provided, however, that, in the event this Depositary
Receipt shall evidence a number of Depositary Shares in excess of the number of
Depositary Shares representing the whole number of shares of Stock to be
withdrawn, the Depositary shall, in addition to such whole number of shares of
Stock and such money and other property, if any, to be withdrawn, deliver, to
or upon the order of such holder, a new Depositary Receipt or Depositary
Receipts evidencing such excess number of whole Depositary Shares.
5. TRANSFERS, SPLIT-UPS, COMBINATIONS. Subject to the Deposit Agreement, this
Depositary Receipt is transferable on the books of the Depositary upon
surrender of this Depositary Receipt to the Depositary, properly endorsed or
accompanied by a properly executed instrument of transfer, and upon such
transfer the Depositary shall sign and deliver a Depositary Receipt or
Depositary Receipts to or upon the order of the person entitled thereto, all as
provided in and subject to the Deposit Agreement. This Depositary Receipt may
be split into other Depositary Receipts or combined with other Depositary
Receipts into one Depositary Receipt evidencing the same aggregate number of
Depositary Shares evidenced by the Depositary Receipt or Depositary Receipts
surrendered; provided, however, that the Depositary shall not issue any
Depositary Receipt evidencing a fractional Depositary Share.
6. CONDITIONS TO SIGNING AND DELIVERY, TRANSFER, ETC., OF DEPOSITARY RECEIPTS.
Prior to the execution and delivery, registration of transfer, split-up,
combination, surrender or exchange of this Depositary 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; (ii) production of proof satisfactory to it as to the identity and
genuineness of any signature; and (iii) compliance with such reasonable
regulations, if any, as the Depositary or the Company may establish not
inconsistent with the Deposit Agreement.
7. SUSPENSION OF DELIVERY, TRANSFER, ETC. The deposit of Stock may be refused,
the delivery of this Depositary Receipt against Stock may be suspended, the
registration of transfer of Depositary Receipts may be refused
23
and the registration of transfer, surrender or exchange of this Depositary
Receipt 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 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
the Deposit Agreement.
8. AMENDMENT. The form of the Depositary Receipts and any provision of the
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 changes in the fees of any Depositary or Registrar which shall go into
effect not sooner than three months after Notice thereof to the holders of the
Depositary Receipts) which shall materially adversely alter the rights of
holders of Depositary Receipts shall be effective unless such amendment shall
have been approved by at least a majority of the Depositary Shares then
outstanding. The holder of this Depositary Receipt at the time any such
amendment becomes effective shall be deemed, by continuing to hold this
Depositary Receipt, to be bound by the Deposit Agreement as amended thereby. In
no event shall any amendment impair the right of the owner of the Depositary
Shares evidenced by this Depositary Receipt to surrender this Depositary
Receipt with instructions to the Depositary to deliver to the holder the Stock
and all money and other property, if any, represented thereby, except in order
to comply with mandatory provisions of applicable law.
9. CHARGES AND EXPENSES. The Company will pay all transfer and other taxes and
governmental charges arising solely from the existence of the depositary
arrangement, except such charges as are expressly provided in the Deposit
Agreement to be at the expense of holders of Depositary Receipts.
10. TITLE TO DEPOSITARY RECEIPTS. Title to this Depositary Receipt, when
properly endorsed or accompanied by a properly executed instrument of transfer,
is transferable by delivery with the same effect as in the case of a negotiable
instrument; provided, however, that the Depositary may, notwithstanding any
notice to the contrary, treat the record holder hereof at such time as the
absolute owner hereof for the purpose of determining the person entitled to
distribution of dividends or other distributions or to any notice provided for
in the Deposit Agreement and for all other purposes.
11. DIVIDENDS AND DISTRIBUTIONS. Whenever the Depositary shall receive any cash
distribution on the Stock, the Depositary shall, subject to the provisions of
the Deposit Agreement, distribute to record holders of Depositary Receipts such
amounts of such sums as are, as nearly as practicable, in proportion to the
respective numbers of Depositary Shares evidenced by the Depositary Receipts
held by such holders; provided, however, that in case the Company or the
Depositary shall be required by law to withhold and does withhold from any cash
distribution in respect of the Stock an amount on account of taxes or as
otherwise required by law, regulation or court process, the amount made
available for distribution or distributed 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 Depositary 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 Depositary Receipts then outstanding.
12. SUBSCRIPTION RIGHTS, PREFERENCES OR PRIVILEGES. If the Company shall at any
time offer or cause to be offered to the persons in whose name Stock is
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, subject to the provisions of the Deposit Agreement, be made
available by the Depositary to the record holders of Depositary Receipts in
such manner as the Company shall instruct.
13. NOTICE OF DISTRIBUTIONS, FIXING OF RECORD DATE. Whenever (i) any cash
distribution shall become payable, or any distribution other than cash shall be
made, or any rights, preferences or privileges shall at any time be offered,
with respect to the Stock, (ii) the Depositary shall receive notice of any
meeting at which holders of Stock are entitled to vote or of which holders of
Stock are entitled to notice or (iii) the Depositary shall receive notice of
any election on the part of the Company to redeem any shares of Stock, the
Depositary shall in each such instance fix a re-
24
cord 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 Depositary
Receipts (x) who shall be entitled to receive such dividend, distribution,
rights, preferences or privileges or the net proceeds of the sale thereof, or
(y) who shall be entitled 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.
14. VOTING RIGHTS. Upon receipt of notice of any meeting at which the holders
of Stock are entitled to vote, the Depositary shall, as soon as practicable
thereafter, mail to the record holders of Depositary Receipts a notice, which
shall contain (i) such information as is contained in such notice of meeting,
(ii) a statement that the holders may, subject to any applicable restrictions,
instruct the Depositary as to the exercise of the voting rights pertaining to
the Stock represented by their respective Depositary Shares, and (iii) a brief
statement as to the manner in which such instructions may be given. Upon the
written request of a holder of this Depositary Receipt on such record date the
Depositary shall vote or cause to be voted the Stock represented by the
Depositary Shares evidenced by this Depositary Receipt in accordance with the
instructions set forth in such request. The Company hereby agrees to take all
action that may be deemed necessary by the Depositary in order to enable the
Depositary to vote such Stock or cause such Stock to be voted. In the absence
of specific instructions from the holder of this Depositary Receipt, the
Depositary will abstain from voting to the extent of the Stock represented by
the Depositary Shares evidenced by this Depositary Receipt.
15. REPORTS, INSPECTION OF TRANSFER BOOKS. The Depositary shall transmit to the
record holders of Depositary Receipts copies of all reports and communications
received from the Company that are received by the Depositary as the holder of
Stock. The Depositary shall keep books at the Corporate Office for the
registration and transfer of Depositary Receipts, which books at all reasonable
times will be open for inspection by the record holders of Depositary Receipts;
provided that any such holder requesting to exercise such right shall certify
to the Depositary that such inspection shall be for a proper purpose reasonably
related to such person's interest as an owner of Depositary Shares.
16. LIABILITY OF THE DEPOSITARY, THE DEPOSITARY'S AGENTS, THE REGISTRAR AND THE
COMPANY. Neither the Depositary nor any Depositary's Agent nor the Registrar
nor the Company shall incur any liability to any holder of this Depositary
Receipt, if by reason of any provision of any present or future law or
regulation thereunder of any governmental authority or, in the case of the
Depositary, the Registrar or any Depositary's Agent, by reason of any provision
present or future, of the Articles of Incorporation or the Articles
Supplementary by reason of any act of God or war or other circumstances beyond
the control of the relevant party, the Depositary, any Depositary's Agent, the
Registrar or the Company shall be prevented or forbidden from doing or
performing any act or thing that the terms of the Deposit Agreement provide
shall be done or performed; nor shall the Depositary, any Depositary's Agent,
the Registrar or the Company incur any liability to any holder of this
Depositary Receipt (i) by reason of any nonperformance or delay, caused as
aforesaid, in the performance of any act or thing that the terms of the 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 the Deposit
Agreement.
17. OBLIGATIONS OF THE DEPOSITARY, THE DEPOSITARY'S AGENTS, THE REGISTRAR AND
THE COMPANY. Neither the Depositary nor any Depositary's Agent nor the
Registrar nor the Company assumes any obligation or shall be subject to any
liability under the Deposit Agreement or this Depositary Receipt to the holder
hereof or other persons, other than for its negligence, gross negligence,
willful misconduct or bad faith. Neither the Depositary nor any Depositary's
Agent nor the Registrar nor the Company shall be under any obligation to appear
in, prosecute or defend any action, suit or other proceeding with respect to
Stock, Depositary Shares or Depositary Receipts that in its reasonable opinion
may involve it in expense or liability, unless indemnity satisfactory to it
against all expense and liability be furnished as often as may be required.
Neither the Depositary nor any Depositary's Agent nor the Registrar nor the
Company will be liable for any action or failure to act by it in reliance upon
the written advice of or information from legal counsel or accountants or
information provided by any person presenting Stock for deposit, any holder of
this Depositary Receipt or any other person believed by it in good faith to be
competent to give such advice or information.
18. TERMINATION OF DEPOSIT AGREEMENT. The 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 Com-
25
pany's status as a real estate investment trust under the Internal Revenue Code
of 1986, as amended (or any successor provision) or (ii) the holders of a
majority of the Stock consent to such termination, whereupon the Depositary
shall deliver or make available to each holder of a Depositary Receipt, upon
surrender of the Depositary Receipt held by such holder, such number of whole
or fractional shares of deposited Stock as are represented by the Depositary
Shares evidenced by such Depositary Receipt, together with any other property
held by the Depositary in respect of such Depositary Receipt. Upon the
termination of the Deposit Agreement, the Company shall be discharged to all
obligations thereunder except for its obligations to the Depositary, any
Depositary's Agent and any Registrar under Sections 5.6 and 5.7 of the Deposit
Agreement.
19. GOVERNING LAW. The Deposit Agreement and this Depositary Receipt and all
rights thereunder and hereunder and provisions thereof and hereof shall be
governed by, and construed in accordance with, the law of the State of New York
without giving effect to principles of conflict of laws.
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
(Minor)
to Minors Act
(State)
Additional abbreviations may also be used though not in the above list.
For Value Received, ____________________ hereby sell, assign and transfer 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 Depositary Receipt, and do hereby
irrevocably constitute and appoint
-----------------------------------------------------------------------Attorney
to transfer the said Depositary Shares on the books of the within named
Depositary with full power of substitution
Dated Signed
26
NOTICE: THE SIGNATURE TO THIS ASSIGNMENT MUST CORRESPOND WITH THE NAME AS
WRITTEN UPON THE FACE OF THIS DEPOSITARY RECEIPT IN EVERY PARTICULAR, WITHOUT
ALTERATION OR ENLARGEMENT OR ANY CHANGE WHATEVER.
Signature(s) Guaranteed:
THE SIGNATURE(S) SHOULD BE GUARANTEED BY AN ELIGIBLE GUARANTOR INSTITUTION
(BANKS, STOCKBROKERS, SAVINGS AND LOAN ASSOCIATIONS AND CREDIT UNIONS WITH
MEMBERSHIP IN AN APPROVED SIGNATURE GUARANTEE MEDALLION PROGRAM), PURSUANT TO
S.E.C. RULE 17Ad-16.