1
EXHIBIT 4.6
================================================================================
DEPOSIT AGREEMENT
AMONG
FELCOR SUITE HOTELS, INC.
SUNTRUST BANK
AND
THE HOLDERS OF THE DEPOSITARY
RECEIPTS TO BE ISSUED HEREUNDER
DATED AS OF APRIL 30, 1998
================================================================================
2
TABLE OF CONTENTS
Page
----
ARTICLE I DEFINITIONS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
1.1 Articles Supplementary . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
1.2 Charter . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
1.3 Company . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
1.4 Corporate Office . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
1.5 Deposit Agreement . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
1.6 Depositary . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
1.7 Depositary Share . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
1.8 Depositary's Agent . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
1.9 Preferred Shares . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
1.10 Receipt . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
1.11 Record Date . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
1.12 Record holder or Holder . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
1.13 Registrar . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
1.14 Securities Act . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
1.15 Transfer Agent . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
ARTICLE II FORM OF RECEIPTS, DEPOSIT OF PREFERRED SHARES, EXECUTION
AND DELIVERY, TRANSFER, SURRENDER AND REDEMPTION OF
RECEIPTS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
2.1 Form and Transferability of Receipts . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
2.2 Deposit of Preferred Shares; Execution and Delivery of Receipts
in Respect Thereof . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
2.3 Optional Redemption of Preferred Shares for Cash . . . . . . . . . . . . . . . . . . . . . . . . . 5
2.4 Registration of Transfers of Receipts . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
2.5 Combinations and Split-ups of Receipts . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
2.6 Surrender of Receipts and Withdrawal of Preferred Shares . . . . . . . . . . . . . . . . . . . . . 7
2.7 Limitations on Execution and Delivery, Transfer, Split-up,
Combination, Surrender and Exchange of Receipts . . . . . . . . . . . . . . . . . . . . . . . . 8
2.8 Lost Receipts, etc. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
2.9 Cancellation and Destruction of Surrendered Receipts . . . . . . . . . . . . . . . . . . . . . . . 8
ARTICLE III CERTAIN OBLIGATIONS OF HOLDERS OF RECEIPTS
AND THE COMPANY . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
3.1 Filing Proofs, Certificates and Other Information . . . . . . . . . . . . . . . . . . . . . . . . . 9
3.2 Payment of Fees and Expenses . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
3.3 Representations and Warranties as to Preferred Shares . . . . . . . . . . . . . . . . . . . . . . . 9
3.4 Representation and Warranty as to Receipts and Depositary Shares . . . . . . . . . . . . . . . . . 9
-i-
3
ARTICLE IV THE PREFERRED SHARES; NOTICES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
4.1 Cash Distributions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
4.2 Distributions Other Than Cash . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
4.3 Subscription Rights, Preferences or Privileges . . . . . . . . . . . . . . . . . . . . . . . . . 11
4.4 Notice of Dividends; Fixing of Record Date for Holders of Receipts . . . . . . . . . . . . . . . 12
4.5 Voting Rights . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
4.6 Changes Affecting Preferred Shares and Reclassifications,
Recapitalization, etc. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
4.7 Inspection of Reports . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
4.8 Lists of Receipt Holders . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
4.9 Tax and Regulatory Compliance . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
4.10 Withholding . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
ARTICLE V THE DEPOSITARY AND THE COMPANY . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
5.1 Maintenance of Offices, Agencies and Transfer Books
by the Depositary and the Registrar . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
5.2 Prevention or Delay in Performance by the Depositary,
the Depositary's Agents, the Registrar or the Company . . . . . . . . . . . . . . . . . . . . 15
5.3 Obligations of the Depositary, the Depositary's Agents,
the Registrar and the Company . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15
5.4 Resignation and Removal of the Depositary;
Appointment of Successor Depositary . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17
5.5 Notices, Reports and Documents . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17
5.6 Indemnification by the Company . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18
5.7 Fees, Charges and Expenses . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18
ARTICLE VI AMENDMENT AND TERMINATION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18
6.1 Amendment . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18
6.2 Termination . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19
ARTICLE VII MISCELLANEOUS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19
7.1 Counterparts . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19
7.2 Exclusive Benefit of Parties . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20
7.3 Invalidity of Provisions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20
7.4 Notices . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20
7.5 Depositary's Agents . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21
7.6 Holders of Receipts Are Parties . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21
7.7 Governing Law . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21
7.8 Inspection of Deposit Agreement and Articles Supplementary . . . . . . . . . . . . . . . . . . . 21
7.9 Headings . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21
-ii-
4
DEPOSIT AGREEMENT
DEPOSIT AGREEMENT, dated as of April 30, 1998, among FelCor Suite Hotels,
Inc., a Maryland corporation (the "Company") and SunTrust Bank, Atlanta,
Georgia, a Georgia banking corporation, as Depositary, and all holders from
time to time of Receipts (as hereinafter defined) issued hereunder.
W I T N E S S E T H:
WHEREAS, it is desired to provide, as hereinafter set forth in this
Deposit Agreement, for the deposit of the Company's Preferred Shares (as
hereinafter defined) with the Depositary for the purposes set forth in this
Deposit Agreement and for the issuance hereunder of the Receipts evidencing
Depositary Shares representing a fractional interest in the Preferred Shares
deposited; and
WHEREAS, the Receipts are to be substantially in the form of Exhibit A
annexed to this Deposit Agreement, with appropriate insertions, modifications
and omissions, as hereinafter provided in this Deposit Agreement;
NOW, THEREFORE, in consideration of the premises contained herein, it is
agreed by and among the parties hereto as follows:
ARTICLE I
DEFINITIONS
The following definitions shall apply to the respective terms (in the
singular and plural forms of such terms) used in this Deposit Agreement and the
Receipts:
SECTION 1.1 "ARTICLES SUPPLEMENTARY" shall mean the articles
supplementary to the Charter filed with the Department of Assessments and
Taxation of the State of Maryland establishing the Preferred Shares as a series
of preferred shares of the Company.
SECTION 1.2 "CHARTER" shall mean the Articles of Amendment and
Restatement, as supplemented and amended from time to time, of the Company.
SECTION 1.3 "COMPANY" shall mean FelCor Suite Hotels, Inc., a
Maryland corporation, and its successors.
SECTION 1.4 "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 58 Edgewood Avenue, N.E., Atlanta,
Georgia 30303.
-1-
5
SECTION 1.5 "DEPOSIT AGREEMENT" shall mean this agreement, as
the same may be amended, modified or supplemented from time to time.
SECTION 1.6 "DEPOSITARY" shall mean SunTrust Bank, Atlanta,
Georgia, a bank 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 1.7 "DEPOSITARY SHARE" shall mean a fractional interest
of 1/100 of a Preferred Share deposited with the Depositary hereunder and the
same proportionate interest in any and all other property received by the
Depositary in respect of such Preferred Share and held under this Deposit
Agreement, all as evidenced by the Receipts issued hereunder. Subject to the
terms of this Deposit Agreement, each owner of a Depositary Share is entitled,
proportionately, to all the rights, preferences and privileges of the Preferred
Share represented by such Depositary Share, including the dividend, voting,
redemption, conversion and liquidation rights contained in the Articles
Supplementary.
SECTION 1.8 "DEPOSITARY'S AGENT" shall mean an agent appointed
by the Depositary as provided, and for the purposes specified, in Section 7.5.
SECTION 1.9 "PREFERRED SHARES" shall mean the Company's 9%
Series B Cumulative Redeemable Preferred Stock, par value $0.01 per share,
heretofore validly issued, fully paid and nonassessable.
SECTION 1.10 "RECEIPT" shall mean a Depositary Receipt issued
hereunder to evidence one or more Depositary Shares, whether in definitive or
temporary form, substantially in the form set forth as Exhibit A hereto.
SECTION 1.11 "RECORD DATE" shall mean the date fixed pursuant to
Section 4.4.
SECTION 1.12 "RECORD HOLDER" OR "HOLDER" as applied to a Receipt
shall mean the person in whose name a Receipt is registered on the books
maintained by the Depositary for such purpose.
SECTION 1.13 "REGISTRAR" shall mean SunTrust Bank, Atlanta,
Georgia or any bank or trust company appointed to register ownership and
transfers of Receipts or the deposited Preferred Shares, as the case may be, as
herein provided.
SECTION 1.14 "SECURITIES ACT" shall mean the Securities Act of
1933, as amended.
SECTION 1.15 "TRANSFER AGENT" shall mean SunTrust Bank, Atlanta,
Georgia or any bank or trust company appointed to transfer the Receipts or the
deposited Preferred Shares, as the case may be, as herein provided.
-2-
6
ARTICLE II
FORM OF RECEIPTS, DEPOSIT OF PREFERRED SHARES,
EXECUTION AND DELIVERY, TRANSFER,
SURRENDER AND REDEMPTION OF RECEIPTS
SECTION 2.1 FORM AND TRANSFERABILITY OF RECEIPTS. Definitive
Receipts shall be engraved or printed or lithographed with steel-engraved
borders and underlying tint and shall be substantially in the form set forth in
Exhibit A annexed to this Deposit Agreement, with appropriate insertions,
modifications and omissions, as hereinafter provided. Pending the preparation
of definitive Receipts, the Depositary, upon the written order of the Company,
delivered in compliance with Section 2.2, shall execute and deliver temporary
Receipts which may be printed, lithographed, typewritten, mimeographed or
otherwise substantially of the tenor of the definitive Receipts in lieu of
which they are issued and with such appropriate insertions, omissions,
substitutions and other variations as the persons executing such Receipts may
determine, as evidenced by their execution of such Receipts. If temporary
Receipts are issued, the Company and the Depositary will cause definitive
Receipts to be prepared without unreasonable delay. After the preparation of
definitive Receipts, the temporary Receipts shall be exchangeable for
definitive Receipts upon surrender of the temporary Receipts at the Corporate
Office or such other offices, if any, as the Depositary may designate, without
charge to the holder. Upon surrender for cancellation of any one or more
temporary Receipts, the Depositary shall execute and deliver in exchange
therefor definitive Receipts representing the same number of Depositary Shares
as represented by the surrendered temporary Receipt or Receipts. Such exchange
shall be made at the Company's expense and without any charge therefor. Until
so exchanged, the temporary Receipts shall in all respects be entitled to the
same benefits under this Deposit Agreement, and with respect to the Preferred
Shares deposited, as definitive Receipts.
Receipts shall be executed by the Depositary by the manual or
facsimile signature of a duly authorized signatory of the Depositary, PROVIDED
that if a Registrar (other than the Depositary) shall have been appointed then
such Receipts shall also be countersigned by manual signature of a duly
authorized signatory of the Registrar. No Receipt shall be entitled to any
benefits under this Deposit Agreement or be valid or obligatory for any purpose
unless it shall have been executed as provided in the preceding sentence. The
Depositary shall record on its books each Receipt executed as provided above
and delivered as hereinafter provided.
Except as the Depositary may otherwise determine, Receipts shall be in
denominations of any number of whole Depositary Shares. All Receipts shall be
dated the date of their issuance.
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
-3-
7
the rules and regulations of any securities exchange upon which the Preferred
Shares, the Depositary Shares or the Receipts may be listed or to conform with
any usage with respect thereto, or to indicate any special limitations or
restrictions to which any particular Receipts are subject.
Title to any Receipt (and to the Depositary Shares evidenced by such
Receipt), that is properly endorsed or accompanied by a properly executed
instrument of transfer or endorsement shall be transferable by delivery with
the same effect as in the case of a negotiable instrument; PROVIDED, HOWEVER,
that until a Receipt shall be transferred on the books of the Depositary as
provided in Section 2.4, the Depositary may, notwithstanding any notice to the
contrary, treat the record holder thereof at such time as the absolute owner
thereof for the purpose of determining the person entitled to distribution of
dividends or other distributions, the exercise of any conversion rights or to
any notice provided for in this Deposit Agreement and for all other purposes.
SECTION 2.2 DEPOSIT OF PREFERRED SHARES; EXECUTION AND DELIVERY
OF RECEIPTS IN RESPECT THEREOF. Concurrently with the execution of this
Deposit Agreement, the Company is delivering to the Depositary a certificate or
certificates, registered in the name of the Depositary and evidencing 57,500
Preferred Shares, properly endorsed or accompanied, if required by the
Depositary, by a duly executed instrument of transfer or endorsement, in form
satisfactory to the Depositary, together with (i) all such certifications as
may be required by the Depositary in accordance with the provisions of this
Deposit Agreement and (ii) a written order of the Company directing the
Depositary to execute and deliver to, or upon the written order of, the person
or persons stated in such order a Receipt or Receipts for the Depositary Shares
representing such deposited Preferred Shares. The Depositary acknowledges
receipt of the deposited Preferred Shares and related documentation and agrees
to hold such deposited Preferred Shares in an account to be established by the
Depositary at the Corporate Office or at such other office as the Depositary
shall determine. The Company hereby appoints the Depositary as the Registrar
and Transfer Agent for Preferred Shares deposited hereunder and the Depositary
hereby accepts such appointment and, as such, will reflect changes in the
number of shares (including any fractional shares) of deposited Preferred
Shares held by it by notation, book-entry or other appropriate method.
If required by the Depositary, Preferred Shares presented for deposit
by the Company at any time, whether or not the register of shareholders of the
Company is closed, shall also be accompanied by an agreement or assignment, or
other instrument satisfactory to the Depositary, that will provide for the
prompt transfer to the Depositary or its nominee of any dividend or right to
subscribe for additional Preferred Shares or to receive other property that any
person in whose name the Preferred Shares is or has been registered may
thereafter receive upon or in respect of such deposited Preferred Shares, or in
lieu thereof such agreement of indemnity or other agreement as shall be
satisfactory to the Depositary.
-4-
8
Upon receipt by the Depositary of a certificate or certificates for
Preferred Shares deposited hereunder, together with the other documents
specified above, and upon registering such Preferred Shares in the name of the
Depositary, the Depositary, subject to the terms and conditions of this Deposit
Agreement, shall execute and deliver to, or upon the order of, the person or
persons named in the written order delivered to the Depositary referred to in
the first paragraph of this Section 2.2, a Receipt or Receipts for the number
of whole Depositary Shares representing the Preferred Shares so deposited and
registered in such name or names as may be requested by such person or persons.
The Depositary shall execute and deliver such Receipt or Receipts at the
Corporate Office, except that, at the request, risk and expense of any person
requesting such delivery, such delivery may be made at such other place as may
be designated by such person.
Other than in the case of splits, combinations or other
reclassifications affecting the Preferred Shares, or in the case of dividends
or other distributions of Preferred Shares, if any, there shall be deposited
hereunder not more than the number of shares constituting the Preferred Shares
as set forth in the Articles Supplementary, as such may be amended.
The Company shall deliver to the Depositary from time to time such
quantities of Receipts as the Depositary may request to enable the Depositary
to perform its obligations under this Deposit Agreement.
SECTION 2.3 OPTIONAL REDEMPTION OF PREFERRED SHARES FOR CASH.
Whenever the Company shall elect to redeem deposited Preferred Shares for cash
in accordance with the provisions of the Articles Supplementary, it shall
(unless otherwise agreed in writing with the Depositary) give the Depositary
not less than 30 nor more than 60 days prior written notice of the date of such
proposed redemption and of the number of such Preferred Shares held by the
Depositary to be redeemed and the applicable redemption price, as set forth in
the Articles Supplementary, including the amount, if any, of accrued and unpaid
dividends to the date of such redemption. The Depositary shall mail,
first-class postage prepaid, notice of the redemption of Preferred Shares and
the proposed simultaneous redemption of the Depositary Shares representing the
Preferred Shares to be redeemed, not less than 30 nor more than 60 days prior
to the date fixed for redemption of such Preferred Shares and Depositary Shares
(the "cash redemption date"), to the holders of record on the record date fixed
for such redemption pursuant to Section 4.4 hereof of the Receipts evidencing
the Depositary Shares to be so redeemed, at the addresses of such holders as
the same appear on the records of the Depositary; but neither failure to mail
any such notice to one or more such holders nor any defect in any such notice
shall affect the sufficiency of the proceedings for redemption as to other
holders. The Company shall provide the Depositary with such notice, and each
such notice shall state: the cash redemption date; the cash redemption price;
the number of deposited Preferred Shares and Depositary Shares to be redeemed;
if fewer than all the Depositary Shares held by any holder are to be redeemed,
the number of such Depositary Shares held by such holder to be so redeemed; the
place or places where Receipts evidencing Depositary Shares to be redeemed are
to be surrendered for payment of the cash redemption price; and that from and
after the cash redemption date dividends in
-5-
9
respect of the Preferred Shares represented by the Depositary Shares to be
redeemed will cease to accrue. If fewer than all the outstanding Depositary
Shares are to be redeemed, the Depositary Shares to be redeemed shall be
selected pro rata (as nearly as may be practicable without creating fractional
Depositary Shares) or by any other equitable method determined by the Company.
The Company may also cause notice of redemption to be published in the Wall
Street Journal or New York Times or, if neither is being published, in any
other newspaper of national circulation, prior to the cash redemption date.
In the event that notice of redemption has been made as described in
the immediately preceding paragraph and the Company shall then have paid in
full to the Depositary the cash redemption price (determined pursuant to the
Articles Supplementary) of the Preferred Shares deposited with the Depositary
to be redeemed (including any accrued and unpaid dividends to the date of
redemption), the Depositary shall redeem the number of Depositary Shares
representing such Preferred Shares so called for redemption by the Company and
from and after the cash redemption date (unless the Company shall have failed
to redeem the Preferred Shares to be redeemed by it as set forth in the
Company's notice provided for in the preceding paragraph), all dividends in
respect of the Preferred Shares called for redemption shall cease to accrue,
the Depositary Shares called for redemption shall be deemed no longer to be
outstanding and all rights of the holders of Receipts evidencing such
Depositary Shares (except the right to receive the cash redemption price and
any money or other property to which holders of such Receipts were entitled
upon such redemption) shall, to the extent of such Depositary Shares, cease and
terminate. Upon surrender in accordance with said notice of the Receipts
evidencing such Depositary Shares (properly endorsed or assigned for transfer,
if the Depositary shall so require), such Depositary Shares shall be redeemed
at a cash redemption price of $25.00 per Depositary Share plus any other money
and other property payable in respect of such Preferred Shares. The 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 2.4 REGISTRATION OF TRANSFERS OF RECEIPTS. The Company
hereby appoints the Depositary as the Registrar and Transfer Agent for the
Receipts and the Depositary hereby accepts such appointment and, as such, shall
register on its books from time to time transfers of Receipts upon any
surrender thereof by the holder in person or by a duly authorized attorney,
properly endorsed or accompanied by a properly executed instrument of transfer
or endorsement, together with evidence of the payment of any transfer taxes as
may be required by law. Upon such surrender, the Depositary shall execute a
new Receipt or Receipts and deliver the same to or upon the order of the person
entitled thereto evidencing the same aggregate number of Depositary Shares
evidenced by the Receipt or Receipts surrendered.
-6-
10
SECTION 2.5 COMBINATIONS AND SPLIT-UPS OF RECEIPTS. Upon
surrender of a Receipt or Receipts at the Corporate Office or such other office
as the Depositary may designate for the purpose of effecting a split-up or
combination of Receipts, subject to the terms and conditions of this Deposit
Agreement, the Depositary shall execute and deliver a new Receipt or Receipts
in the authorized denominations requested evidencing the same aggregate number
of Depositary Shares evidenced by the Receipt or Receipts surrendered.
SECTION 2.6 SURRENDER OF RECEIPTS AND WITHDRAWAL OF PREFERRED
SHARES. Any holder of a Receipt or Receipts may withdraw any or all of the
deposited Preferred Shares represented by the Depositary Shares evidenced by
such Receipt or Receipts and all money and other property, if any, represented
by such Depositary Shares by surrendering such Receipt or Receipts at the
Corporate Office or at such office as the Depositary may designate for such
withdrawals, PROVIDED that a holder of a Receipt or Receipts may not withdraw
such Preferred Shares (or money and other property, if any, represented
thereby) which has previously been called for redemption. After such
surrender, without unreasonable delay, the Depositary shall deliver to such
holder, or to the person or persons designated by such holder as hereinafter
provided, the number of whole or fractional shares of such Preferred Shares and
all such money and other property, if any, represented by the Depositary Shares
evidenced by the Receipt or Receipts so surrendered for withdrawal, but holders
of such whole or fractional Preferred Shares will not thereafter be entitled to
deposit such Preferred Shares hereunder or to receive Depositary Shares
therefor. If the Receipt or Receipts delivered by the holder to the Depositary
in connection with such withdrawal shall evidence a number of Depositary Shares
in excess of the number of Depositary Shares representing the number of whole
or fractional shares of deposited Preferred Shares to be withdrawn, the
Depositary shall at the same time, in addition to such number of whole or
fractional Preferred Shares and such money and other property, if any, to be
withdrawn, deliver to such holder, or (subject to Section 2.4) upon his order,
a new Receipt or Receipts evidencing such excess number of Depositary Shares.
Delivery of such Preferred Shares and such money and other property being
withdrawn may be made by the delivery of such certificates, documents of title
and other instruments as the Depositary may deem appropriate, which, if
required by the Depositary, shall be properly endorsed or accompanied by proper
instruments of transfer.
If the deposited Preferred Shares and the money and other property
being withdrawn are to be delivered to a person or persons other than the
record holder of the Receipt or Receipts being surrendered for withdrawal of
Preferred Shares, such holder shall execute and deliver to the Depositary a
written order so directing the Depositary and the Depositary may require that
the Receipt or Receipts surrendered by such holder for withdrawal of such
Preferred Shares be properly endorsed in blank or accompanied by a properly
executed instrument of transfer or endorsement in blank.
The Depositary shall deliver the deposited Preferred Shares and the
money and other property, if any, represented by the Depositary Shares
evidenced by Receipts surrendered for withdrawal at the Corporate Office,
except that, at the request, risk and expense of the holder
-7-
11
surrendering such Receipt or Receipts and for the account of the holder
thereof, such delivery may be made at such other place as may be designated by
such holder.
SECTION 2.7 LIMITATIONS ON EXECUTION AND DELIVERY, TRANSFER,
SPLIT-UP, COMBINATION, SURRENDER AND EXCHANGE OF RECEIPTS. As a condition
precedent to the execution and delivery, transfer, split-up, combination,
surrender or exchange of any Receipt, the Depositary, any of the Depositary's
Agents or the Company may require any or all of the following: (i) payment to
it of a sum sufficient for the payment (or, in the event that the Depositary or
the Company shall have made such payment, the reimbursement to it) of any tax
or other governmental charge with respect thereto (including any such tax or
charge with respect to the Preferred Shares being deposited or withdrawn); (ii)
the production of proof satisfactory to it as to the identity and genuineness
of any signature (or the authority of any signature); and (iii) compliance with
such regulations, if any, as the Depositary or the Company may establish
consistent with the provisions of this Deposit Agreement as may be required by
any securities exchange upon which the deposited Preferred Shares, the
Depositary Shares or the Receipts may be included for quotation or listed.
The deposit of Preferred Shares may be refused, the delivery of
Receipts against Preferred Shares may be suspended, the transfer of Receipts
may be refused, and the transfer, split-up, combination, surrender, exchange or
redemption of outstanding Receipts may be suspended (i) during any period when
the register of shareholders of the Company is closed or (ii) if any such
action is deemed reasonably necessary or advisable by the Depositary, any of
the Depositary's Agents or the Company at any time or from time to time because
of any requirement of law or of any government or governmental body or
commission, or under the Charter or under any provision of this Deposit
Agreement.
SECTION 2.8 LOST RECEIPTS, ETC. In case any Receipt shall be
mutilated or destroyed or lost or stolen, the Depositary, in its discretion,
may execute and deliver a Receipt of like form and tenor in exchange and
substitution for such mutilated Receipt or in lieu of and in substitution for
such destroyed, lost or stolen Receipt, PROVIDED that the holder thereof
provides the Depositary with (i) evidence reasonably satisfactory to the
Depositary of such destruction, loss or theft of such Receipt, of the
authenticity thereof and of his ownership thereof and (ii) reasonable
indemnification satisfactory to the Depositary and the Company.
SECTION 2.9 CANCELLATION AND DESTRUCTION OF SURRENDERED
RECEIPTS. All Receipts surrendered to the Depositary or any Depositary's Agent
shall be canceled by the Depositary. Except as prohibited by applicable law or
regulation, the Depositary is authorized to destroy such Receipts so cancelled.
-8-
12
ARTICLE III
CERTAIN OBLIGATIONS OF
HOLDERS OF RECEIPTS AND THE COMPANY
SECTION 3.1 FILING PROOFS, CERTIFICATES AND OTHER INFORMATION.
Any person presenting Preferred Shares for deposit or any holder of a Receipt
may be required from time to time to file such proof of residence or other
information, to execute such certificates and to make such representations and
warranties as the Depositary or the Company may reasonably deem necessary or
proper. The Depositary or the Company may withhold or delay the delivery of
any Receipt, the transfer, redemption or exchange of any Receipt, the
withdrawal of the deposited Preferred Shares represented by the Depositary
Shares evidenced by any Receipt, the distribution of any dividend or other
distribution or the sale of any rights or of the proceeds thereof, until such
proof or other information is filed, such certificates are executed or such
representations and warranties are made.
SECTION 3.2 PAYMENT OF FEES AND EXPENSES. Holders of Receipts
shall be obligated to make payments to the Depositary of certain fees and
expenses, as provided in Section 5.7, or provide evidence reasonably
satisfactory to the Depositary that such fees and expenses have been paid.
Until such payment is made, transfer of any Receipt or any withdrawal of the
Preferred Shares or money or other property, if any, represented by the
Depositary Shares evidenced by such Receipt may be refused, any dividend or
other distribution may be withheld, and any part or all of the Preferred Shares
or other property represented by the Depositary Shares evidenced by such
Receipt may be sold for the account of the holder thereof (after attempting by
reasonable means to notify such holder a reasonable number of days prior to
such sale). Any dividend or other distribution so withheld and the proceeds of
any such sale may be applied to any payment of such fees or expenses, the
holder of such Receipt remaining liable for any deficiency.
SECTION 3.3 REPRESENTATIONS AND WARRANTIES AS TO PREFERRED
SHARES. In the case of the initial deposit of the Preferred Shares hereunder,
the Company and, in the case of subsequent deposits thereof, each person so
depositing Preferred Shares under this Deposit Agreement shall be deemed
thereby to represent and warrant that such Preferred Shares and each
certificate therefor are valid and that the person making such deposit is duly
authorized to do so. The Company hereby further represents and warrants that
such Preferred Shares, when issued, will be validly issued, fully paid and
nonassessable. Such representations and warranties shall survive the deposit
of the Preferred Shares and the issuance of Receipts.
SECTION 3.4 REPRESENTATION AND WARRANTY AS TO RECEIPTS AND
DEPOSITARY SHARES. The Company hereby represents and warrants that the
Receipts, when issued, will evidence legal and valid interests in the
Depositary Shares and each Depositary Share will represent a legal and valid
1/100 fractional interest in a deposited Preferred Share. Such
-9-
13
representation and warranty shall survive the deposit of the Preferred Shares
and the issuance of Receipts evidencing the Depositary Shares.
ARTICLE IV
THE PREFERRED SHARES; NOTICES
SECTION 4.1 CASH DISTRIBUTIONS. Whenever the Depositary shall
receive any cash dividend or other cash distribution on the deposited Preferred
Shares, including any cash received upon redemption of any Preferred Shares
pursuant to Section 2.3, the Depositary shall, subject to Section 3.2,
distribute to record holders of Receipts on the record date fixed pursuant to
Section 4.4 such amounts of such sum as are, as nearly as practicable, in
proportion to the respective numbers of Depositary Shares evidenced by the
Receipts held by such holders; PROVIDED, HOWEVER, that in case the Company or
the Depositary shall be required to and shall withhold from any cash dividend
or other cash distribution in respect of the Preferred Shares represented by
the Receipts held by any holder an amount on account of taxes, the amount made
available for distribution or distributed in respect of Depositary Shares
represented by such Receipts subject to such withholding shall be reduced
accordingly. The Depositary shall distribute or make available for
distribution, as the case may be, only such amount, however, as can be
distributed without attributing to any holder of Receipts a fraction of one
cent, and any balance not so distributable shall be held by the Depositary
(without liability for interest thereon) and shall be added to and be treated
as part of the next sum received by the Depositary for distribution to record
holders of Receipts then outstanding.
SECTION 4.2 DISTRIBUTIONS OTHER THAN CASH. Whenever the
Depositary shall receive any distribution other than cash on the deposited
Preferred Shares, the Depositary shall, subject to Section 3.2, distribute to
record holders of Receipts on the record date fixed pursuant to Section 4.4
such amounts of the securities or property received by it as are, as nearly as
practicable, in proportion to the respective numbers of Depositary Shares
evidenced by the Receipts held by such holders, in any manner that the
Depositary and the Company may deem equitable and practicable for accomplishing
such distribution. If, in the opinion of the Depositary after consultation
with the Company, such distribution cannot be made proportionately among such
record holders, or if for any other reason (including any requirement that the
Company or the Depositary withhold an amount on account of taxes), the
Depositary deems, after consultation with the Company, such distribution not to
be feasible, the Depositary may, with the approval of the Company, adopt such
method as it deems equitable and practicable for the purpose of effecting such
distribution, including the sale (at public or private sale) of the securities
or property thus received or any part thereof, at such place or places and upon
such terms as it may deem proper. The net proceeds of any such sale shall,
subject to Section 3.2, be distributed or made available for distribution, as
the case may be, by the Depositary to record holders of Receipts as provided by
Section 4.1 in the case of a distribution received in cash. The Company shall
not make any distribution of such securities or property to the holders of
Receipts unless the
-10-
14
Company shall have provided to the Depositary an opinion of counsel stating
that such securities or property have been registered under the Securities Act
or do not need to be registered.
SECTION 4.3 SUBSCRIPTION RIGHTS, PREFERENCES OR PRIVILEGES. If
the Company shall at any time offer or cause to be offered to the persons in
whose names deposited Preferred Shares are registered on the books of the
Company any rights, preferences or privileges to subscribe for or to purchase
any securities or any rights, preferences or privileges of any other nature,
such rights, preferences or privileges shall in each such instance be made
available by the Depositary to the record holders of Receipts in such manner as
the Company shall instruct (including by the issue to such record holders of
warrants representing such rights, preferences or privileges); PROVIDED,
HOWEVER, that (a) if at the time of issue or offer of any such rights,
preferences or privileges the Company determines upon advice of its legal
counsel that it is not lawful or feasible to make such rights, preferences or
privileges available to the holders of Receipts (by the issue of warrants or
otherwise) or (b) if and to the extent instructed by holders of Receipts who do
not desire to exercise such rights, preferences or privileges, the Depositary
shall then, if so instructed by the Company, and if applicable laws or the
terms of such rights, preferences or privileges so permit, sell such rights,
preferences or privileges of such holders at public or private sale, at such
place or places and upon such terms as it may deem proper. The net proceeds of
any such sale shall, subject to Section 3.1 and Section 3.2, be distributed by
the Depositary to the record holders of Receipts entitled thereto as provided
by Section 4.1 in the case of a distribution received in cash. The Company
shall not make any distribution of such rights, preferences or privileges,
unless the Company shall have provided to the Depositary an opinion of counsel
stating that such rights, preferences or privileges have been registered under
the Securities Act or applicable state securities laws or do not need to be
registered.
If registration under the Securities Act or applicable state
securities laws 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 or applicable state securities laws 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 or
applicable state securities laws 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
-11-
15
to take such action or obtain such authorization, consent or permit
sufficiently in advance of the expiration of such rights, preferences or
privileges to enable such holders to exercise such rights, preferences or
privileges.
SECTION 4.4 NOTICE OF DIVIDENDS; FIXING OF RECORD DATE FOR
HOLDERS OF RECEIPTS. Whenever any cash dividend or other cash distribution
shall become payable, any distribution other than cash shall be made, or any
rights, preferences or privileges shall at any time be offered, with respect to
the deposited Preferred Shares, or whenever the Depositary shall receive notice
of (i) any meeting at which holders of such Preferred Shares are entitled to
vote or of which holders of such Preferred Shares are entitled to notice or
(ii) any election on the part of the Company to redeem any such Preferred
Shares, the Depositary shall in each such instance fix a record date (which
shall be the same date as the record date fixed by the Company with respect to
the Preferred Shares) for the determination of the holders of Receipts who
shall be entitled to receive such dividend, distribution, rights, preferences
or privileges or the net proceeds of the sale thereof, to give instructions for
the exercise of voting rights at any such meeting or to receive notice of such
meeting or whose Depositary Shares are to be so redeemed.
SECTION 4.5 VOTING RIGHTS. Upon receipt of notice of any
meeting at which the holders of deposited Preferred Shares are entitled to
vote, the Depositary shall, as soon as practicable thereafter, mail to the
record holders of Receipts a notice, which shall be provided by the Company and
which shall contain (i) such information as is contained in such notice of
meeting, (ii) a statement that the holders of Receipts at the close of business
on a specified record date fixed pursuant to Section 4.4 will be entitled,
subject to any applicable provision of law, to instruct the Depositary as to
the exercise of the voting rights pertaining to the amount of Preferred Shares
represented by their respective Depositary Shares and (iii) a brief statement
as to the manner in which such instructions may be given. Upon the written
request of a holder of a Receipt on such record date, the Depositary shall vote
or cause to be voted the amount of Preferred Shares represented by the
Depositary Shares evidenced by such Receipt in accordance with the instructions
set forth in such request. To the extent such instructions request the voting
of a fractional interest of a share of deposited Preferred Shares, the
Depositary shall aggregate such interest with all other fractional interests
resulting from requests with the same voting instructions and shall vote the
number of whole votes resulting from such aggregation in accordance with the
instructions received in such requests. Each Preferred Share is entitled to
100 votes and, accordingly, each Depositary Share is entitled to one vote. The
Company hereby agrees to take all reasonable action that may be deemed
necessary by the Depositary in order to enable the Depositary to vote such
Preferred Shares or cause such Preferred Shares to be voted. In the absence of
specific instructions from the holder of a Receipt, the Depositary will abstain
from voting to the extent of the Preferred Shares represented by the Depositary
Shares evidenced by such Receipt. The Depositary shall not be required to
exercise discretion in voting any Preferred Shares represented by the
Depositary Shares evidenced by such Receipt.
-12-
16
SECTION 4.6 CHANGES AFFECTING PREFERRED SHARES AND
RECLASSIFICATIONS, RECAPITALIZATION, ETC. Upon any change in par or stated
value, split-up, combination or any other reclassification of Preferred Shares,
or upon any recapitalization, reorganization, merger, amalgamation or
consolidation affecting the Company or to which it is a party or sale of all or
substantially all of the Company's assets, the Depositary shall, upon the
instructions of the Company: (i) make such adjustments in (a) the fraction of
an interest represented by one Depositary Share in one Preferred Share and (b)
the ratio of the redemption price per Depositary Share to the redemption price
of a Preferred Share, in each case as may be required by or as is consistent
with the provisions of the Articles Supplementary to fully reflect the effects
of such change in liquidation value, split-up, combination or other
reclassification of Shares, or of such recapitalization, reorganization,
merger, consolidation or sale and (ii) treat any shares or other securities or
property (including cash) that shall be received by the Depositary in exchange
for or upon conversion of or in respect of the Preferred Shares as new
deposited property under this Deposit Agreement, and Receipts then outstanding
shall thenceforth represent the proportionate interests of holders thereof or
the new deposited property so received in exchange for or upon conversion or in
respect of such Preferred Shares. In any such case the Depositary may, in its
discretion, with approval of the Company, execute and deliver additional
Receipts, or may call for the surrender of all outstanding Receipts to be
exchanged for new Receipts specifically describing such new deposited property.
Anything to the contrary herein notwithstanding, holders of Receipts shall have
the right from and after the effective date of any such change in par or stated
value, split-up, combination or other reclassification of the Preferred Shares
or any such recapitalization, reorganization, merger, amalgamation or
consolidation or sale of substantially all the assets of the Company to
surrender such Receipts to the Depositary with instructions to convert,
exchange or surrender the Preferred Shares represented thereby only into or
for, as the case may be, the kind and amount of shares and other securities and
property and cash into which the deposited Preferred Shares evidenced by such
Receipts might have been converted or for which such Preferred Shares might
have been exchanged or surrendered immediately prior to the effective date of
such transaction. The Company shall cause effective provision to be made in
the charter of the resulting or surviving corporation (if other than the
Company) for protection of such rights as may be applicable upon exchange of
the deposited Preferred Shares for securities or property or cash of the
surviving corporation in connection with the transactions set forth above. The
Company shall cause any such surviving corporation (if other than the Company)
expressly to assume the obligations of the Company hereunder.
SECTION 4.7 INSPECTION OF REPORTS. The Depositary shall make
available for inspection by holders of Receipts at the Corporate Office and at
such other places as it may from time to time deem advisable during normal
business hours any reports and communications received from the Company that
are both received by the Depositary as the holder of deposited Preferred Shares
and made generally available to the holders of the Preferred Shares. In
addition, the Depositary shall transmit certain notices and reports to the
holders of Receipts as provided in Section 5.5.
-13-
17
SECTION 4.8 LISTS OF RECEIPT HOLDERS. Promptly upon request
from time to time by the Company, the Depositary shall furnish to the Company a
list, as of a recent date specified by the Company, of the names, addresses and
holdings of Depositary Shares of all persons in whose names Receipts are
registered on the books of the Depositary.
SECTION 4.9 TAX AND REGULATORY COMPLIANCE. The Depositary
shall be responsible for (i) preparation and mailing of form 1099's for all
open and closed accounts, (ii) foreign tax withholding, (iii) withholding 31%
(or any withholding as may be required at the then applicable rate) of
dividends from eligible holders of Receipts if directed to do so by the Company
or required to do so by applicable law, (iv) mailing W-9 forms to new holders
of Receipts without a certified taxpayer identification number, (v) processing
certified W-9 forms, (vi) preparation and filing of state information returns
and (vii) escheatment services.
SECTION 4.10 WITHHOLDING. Notwithstanding any other provision
of this Deposit Agreement, in the event that the Depositary determines that any
distribution in property is subject 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 5.1 MAINTENANCE OF OFFICES, AGENCIES AND TRANSFER BOOKS
BY THE DEPOSITARY AND THE REGISTRAR. The Depositary shall maintain at the
Corporate Office facilities for the execution and delivery, transfer, surrender
and exchange, split-up, combination and redemption of Receipts and deposit and
withdrawal of Preferred Shares and at the offices of the Depositary's Agents,
if any, facilities for the delivery, transfer, surrender and exchange,
split-up, combination and redemption of Receipts and deposit and withdrawal of
Preferred Shares, all in accordance with the provisions of this Deposit
Agreement.
The Depositary shall keep books at the Corporate Office for the
registration and transfer of Receipts, which books at all reasonable times
shall be open for inspection by the record holders of Receipts as provided by
applicable law. The Depositary may close such books, at any time or from time
to time, when deemed expedient by it in connection with the performance of its
duties hereunder.
If the Receipts or the Depositary Shares evidenced thereby or the
Preferred Shares represented by such Depositary Shares shall be listed on the
New York Stock Exchange, Inc. or
-14-
18
any other stock exchange, the Depositary may, with the approval of the Company,
appoint a Registrar (acceptable to the Company) for registration of such
Receipts or Depositary Shares in accordance with the requirements of such
Exchange. Such Registrar (which may be the Depositary if so permitted by the
requirements of such Exchange) may be removed and a substitute registrar
appointed by the Depositary upon the request or with the approval of the
Company. If the Receipts, such Depositary Shares or such Preferred Shares are
listed on one or more other stock exchanges, the Depositary will, at the
request and expense of the Company, arrange such facilities for the delivery,
transfer, surrender, redemption and exchange of such Receipts, such Depositary
Shares or such Preferred Shares as may be required by law or applicable stock
exchange regulations.
SECTION 5.2 PREVENTION OR DELAY IN PERFORMANCE BY THE
DEPOSITARY, THE DEPOSITARY'S AGENTS, THE REGISTRAR OR THE COMPANY. Neither the
Depositary, any Depositary's Agent, any Registrar nor the Company shall incur
any liability to any holder of any Receipt, if by reason of any provision of
any present or future law or regulation thereunder of the United States of
America or of any other governmental authority or, in the case of the
Depositary, the Depositary's Agent or the Registrar, by reason of any
provision, present or future, of the Charter 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, the Depositary's Agent, the
Registrar or the Company shall be prevented or forbidden from doing or
performing any act or thing that the terms of this Deposit Agreement provide
shall be done or performed; nor shall the Depositary, any Depositary's Agent,
any Registrar or the Company incur any liability to any holder of a Receipt by
reason of any nonperformance or delay, caused as aforesaid, in the performance
of any act or thing that the terms of this Deposit Agreement provide shall or
may be done or performed, or by reason of any exercise of, or failure to
exercise, any discretion provided for in this Deposit Agreement.
SECTION 5.3 OBLIGATIONS OF THE DEPOSITARY, THE DEPOSITARY'S
AGENTS, THE REGISTRAR AND THE COMPANY. Neither the Depositary, any
Depositary's Agent, any Registrar nor the Company assumes any obligation or
shall be subject to any liability under this Deposit Agreement or any Receipt
to holders of Receipts other than from acts or omissions arising out of conduct
constituting bad faith, negligence (in the case of any action or inaction with
respect to the voting of the deposited Preferred Shares), gross negligence or
willful misconduct in the performance of such duties as are specifically set
forth in this Deposit Agreement.
Neither the Depositary, any Depositary's Agent, any Registrar nor the
Company shall be under any obligation to appear in, prosecute or defend any
action, suit or other proceeding with respect to the deposited Preferred
Shares, Depositary Shares or Receipts that in its reasonable opinion may
involve it in expense or liability unless indemnity reasonably satisfactory to
it against all expense and liability be furnished as often as may be required.
-15-
19
Neither the Depositary, any Depositary's Agent, any Registrar nor the
Company shall be liable for any action or any failure to act by it in reliance
upon the written advice of legal counsel or accountants, or information
provided by any person presenting Preferred Shares for deposit, any holder of a
Receipt or any other person believed by it in good faith to be competent to
give such information. The Depositary, any Depositary's Agent, any Registrar
and the Company may each rely and shall each be protected in acting upon any
written notice, request, direction or other document believed by it in good
faith to be genuine and to have been signed or presented by the proper party or
parties.
In the event the Depositary shall receive conflicting claims, requests
or instructions from any holders of Receipts, on the one hand, and the Company,
on the other hand, the Depositary shall be entitled to act on such claims,
requests or instructions received from the Company, and shall be entitled to
the full indemnification set forth in Section 5.6 hereof in connection with any
action so taken.
The Depositary shall not be responsible for any failure to carry out
any instruction to vote any of the deposited Preferred Shares or for the manner
or effect of any such vote made, as long as any such action or non-action is in
good faith and does not result from negligence or willful misconduct of the
Depositary. The Depositary undertakes, and any Registrar shall be required to
undertake, to perform such duties and only such duties as are specifically set
forth in this Deposit Agreement, and no implied covenants or obligations shall
be read into this Agreement against the Depositary or any Registrar.
The Depositary, its parent, affiliate, or subsidiaries, any
Depositary's Agent, and any Registrar may own, buy, sell or deal in any class
of securities of the Company and its affiliates and in Receipts or Depositary
Shares or become pecuniarily interested in any transaction in which the Company
or its affiliates may be interested or contract with or lend money to or
otherwise act as fully or as freely as if it were not the Depositary or the
Depositary's Agent hereunder. The Depositary may also act as transfer agent or
registrar of any of the securities of the Company and its affiliates or act in
any other capacity for the Company or its affiliates.
It is intended that neither the Depositary nor any Depositary's Agent
shall be deemed to be an "issuer" of the securities under the federal
securities laws or applicable state securities laws, it being expressly
understood and agreed that the Depositary and any Depositary's Agent are acting
only in a ministerial capacity as Depositary for the deposited Preferred
Shares; PROVIDED, HOWEVER, that the Depositary agrees to comply with all
information reporting and withholding requirements applicable to it under law
or this Deposit Agreement in its capacity as Depositary.
The Company agrees that it will register the deposited Preferred
Shares and the Depositary Shares if required by the applicable securities laws.
-16-
20
SECTION 5.4 RESIGNATION AND REMOVAL OF THE DEPOSITARY;
APPOINTMENT OF SUCCESSOR DEPOSITARY. The Depositary may at any time resign as
Depositary hereunder by notice of its election to do so delivered to the
Company, such resignation to take effect upon the appointment of a successor
depositary and its acceptance of such appointment as hereinafter provided.
The Depositary may at any time be removed by the Company by notice of
such removal delivered to the Depositary, such removal to take effect upon the
appointment of a successor depositary and its acceptance of such appointment as
hereinafter provided.
In case at any time the Depositary acting hereunder shall resign or be
removed, the Company shall, within 60 days after the delivery of the notice of
resignation or removal, as the case may be, appoint a successor depositary,
which shall be a bank or trust company having its principal office in the
United States of America and having a combined capital and surplus of at least
$50,000,000. If a successor depositary shall not have been appointed in 60
days, the resigning Depositary may petition a court of competent jurisdiction
to appoint a successor depositary. Every successor depositary shall execute
and deliver to its predecessor and to the Company an instrument in writing
accepting its appointment hereunder, and thereupon such successor depositary,
without any further act or deed, shall become fully vested with all the rights,
powers, duties and obligations of its predecessor and for all purposes shall be
the Depositary under this Deposit Agreement, and such predecessor, upon payment
of all sums due it and on the written request of the Company, shall promptly
execute and deliver an instrument transferring to such successor all rights and
powers of such predecessor hereunder, shall duly assign, transfer and deliver
all rights, title and interest in the deposited Preferred Shares and any moneys
or property held hereunder to such successor and shall deliver to such
successor a list of the record holders of all outstanding Receipts. Any
successor depositary shall promptly mail notice of its appointment to the
record holders of Receipts.
Any corporation into or with which the Depositary may be merged,
consolidated or converted shall be the successor of such Depositary without the
execution or filing of any document or any further act. Such successor
depositary may execute the Receipts either in the name of the predecessor
depositary or in the name of the successor depositary.
SECTION 5.5 NOTICES, REPORTS AND DOCUMENTS. The Company agrees
that it will deliver to the Depositary, and the Depositary will, promptly after
receipt thereof, transmit to the record holders of Receipts, in each case at
the address recorded in the Depositary's books, copies of all notices and
reports (including financial statements) required by law, by the rules of any
national securities exchange upon which the Preferred Shares, the Depositary
Shares or the Receipts are included for quotation or listed or by the Charter
and the Articles Supplementary to be furnished by the Company to holders of the
deposited Preferred Shares and, if requested by the holder of any Receipt, a
copy of this Deposit Agreement, the form of Receipt, the Articles Supplementary
and the form of Preferred Shares. Such transmission will be at the Company's
expense and the Company will provide the Depositary with such number of copies
of such
-17-
21
documents as the Depositary may reasonably request. In addition, the
Depositary will transmit to the record holders of Receipts at the Company's
expense such other documents as may be requested by the Company.
SECTION 5.6 INDEMNIFICATION BY THE COMPANY. The Company agrees
to indemnify the Depositary, any Depositary's Agent and any Registrar against,
and hold each of them harmless from, any liability, costs and expenses
(including reasonable attorneys' fees) that may arise out of, or in connection
with, its acting as Depositary, Depositary's Agent or Registrar, respectively,
under this Deposit Agreement and the Receipts, except for any liability arising
out of the willful misconduct, gross negligence, negligence (in the case of any
action or inaction with respect to the voting of the deposited Preferred
Shares) or bad faith on the part of any such person or persons. The
obligations of the Company set forth in this Section 5.6 shall survive any
succession of any Depositary, Registrar or Depositary's Agent or termination of
this Deposit Agreement.
SECTION 5.7 FEES, CHARGES AND EXPENSES. No charges and
expenses of the Depositary or any Depositary's Agent hereunder shall be payable
by any person, except as provided in this Section 5.7. The Company shall pay
all transfer and other taxes and governmental charges arising solely from the
existence of this Deposit Agreement. The Company shall also pay all fees and
expenses of the Depositary in connection with the initial deposit of the
Preferred Shares and the initial issuance of the Depositary Shares evidenced by
the Receipts, any redemption of the Preferred Shares at the option of the
Company and all withdrawals of the Preferred Shares by holders of Depositary
Shares. If a holder of Receipts requests the Depositary to perform duties not
required under this Deposit Agreement, the Depositary shall notify the holder
of the cost of the performance of such duties prior to the performance thereof.
Such holder will be liable for the charges and expenses related to such
performance. All other fees and expenses of the Depositary and any
Depositary's Agent hereunder and of any Registrar (including, in each case,
fees and expenses of counsel) incident to the performance of their respective
obligations hereunder will be promptly paid as previously agreed between the
Depositary and the Company. The Depositary shall present its statement for
fees and expenses to the Company every month or at such other intervals as the
Company and the Depositary may agree.
ARTICLE VI
AMENDMENT AND TERMINATION
SECTION 6.1 AMENDMENT. The form of the Receipts and any
provision of this Deposit Agreement may at any time and from time to time be
amended by agreement between the Company and the Depositary in any respect that
they may deem necessary or desirable; PROVIDED, HOWEVER, that no such amendment
(other than any change in the fees of any Depositary, Registrar or Transfer
Agent) which (i) shall materially and adversely alter the rights
-18-
22
of the holders of Receipts or (ii) would be materially and adversely
inconsistent with the rights granted to the holders of the Preferred Shares
pursuant to the Articles Supplementary shall be effective unless such amendment
shall have been approved by the holders of at least a majority of the
Depositary Shares then outstanding. In no event shall any amendment impair the
right, subject to the provisions of Section 2.6 and Section 2.7 and Article
III, of any holder of any Depositary Shares to surrender the Receipt evidencing
such Depositary Shares with instructions to the Depositary to deliver to the
holder the deposited Preferred Shares and all money and other property, if any,
represented thereby, except in order to comply with mandatory provisions of
applicable law. Every holder of an outstanding Receipt at the time any such
amendment becomes effective shall be deemed, by continuing to hold such
Receipt, to consent and agree to such amendment and to be bound by this Deposit
Agreement as amended thereby.
SECTION 6.2 TERMINATION. This Deposit Agreement may be
terminated by the Company upon not less than 30 days' prior written notice to
the Depositary if (i) such termination is necessary to preserve the Company's
status as a real estate investment trust under the Internal Revenue Code of
1986, as amended (or any successor provisions) or (ii) the holders of a
majority of the Preferred Shares consent to such termination, whereupon the
Depositary shall deliver or make available to each holder of a Receipt, upon
surrender of the Receipt held by such holder, such number of whole or
fractional shares of deposited Preferred Shares that are represented by the
Depositary Shares evidenced by such Receipt, together with any other property
held by the Depositary in respect of such Receipt. In the event that this
Deposit Agreement is terminated pursuant to clause (i) of the immediately
preceding sentence, the Company hereby agrees to use its best efforts to list
the Preferred Shares issued upon surrender of the Receipt evidencing the
Depositary Shares represented thereby on a national securities exchange. This
Deposit Agreement will automatically terminate if (i) all outstanding
Depositary Shares shall have been redeemed pursuant to Section 2.3 or (ii)
there shall have been made a final distribution in respect of the deposited
Preferred Shares in connection with any liquidation, dissolution or winding up
of the Company and such distribution shall have been distributed to the holders
of Receipts entitled thereto.
Upon the termination of this Deposit Agreement, the Company shall be
discharged from all obligations under this Deposit Agreement except for its
obligations to the Depositary, any Depositary's Agent and any Registrar under
Section 5.6 and Section 5.7.
ARTICLE VII
MISCELLANEOUS
SECTION 7.1 COUNTERPARTS. This Deposit Agreement may be
executed in any number of counterparts, and by each of the parties hereto on
separate counterparts, each of which counterparts, when so executed and
delivered, shall be deemed an original, but all such counterparts taken
together shall constitute one and the same instrument. Delivery of an
-19-
23
executed counterpart of a signature page to this Deposit Agreement by
telecopier shall be effective as delivery of a manually executed counterpart of
this Deposit Agreement. Copies of this Deposit Agreement shall be filed with
the Depositary and the Depositary's Agents and shall be open to inspection
during business hours at the Corporate Office and the respective offices of the
Depositary's Agents, if any, by any holder of a Receipt.
SECTION 7.2 EXCLUSIVE BENEFIT OF PARTIES. This Deposit
Agreement is for the exclusive benefit of the parties hereto, and their
respective successors hereunder, and shall not be deemed to give any legal or
equitable right, remedy or claim to any other person whatsoever.
SECTION 7.3 INVALIDITY OF PROVISIONS. In case any one or more
of the provisions contained in this Deposit Agreement or in the Receipts should
be or become invalid, illegal or unenforceable in any respect, the validity,
legality or enforceability of the remaining provisions contained herein or
therein shall in no way be affected, prejudiced or disturbed thereby.
SECTION 7.4 NOTICES. Any and all notices to be given to the
Company hereunder or under the Receipts shall be in writing and shall be deemed
to have been duly given if personally delivered or sent by mail, or by telegram
or facsimile transmission confirmed by letter, addressed to the Company at:
FelCor Suite Hotels, Inc.
545 E. John Carpenter Freeway
Suite 1300
Irving, Texas 75062
Attention: Lawrence D. Robinson
Telephone No.: (972) 444-4900
or at any other address of which the Company shall have notified the Depositary
in writing.
Any notices to be given to the Depositary hereunder or under the
Receipts shall be in writing and shall be deemed to have been duly given if
personally delivered or sent by mail, or by telegram or telex or telecopier
confirmed by letter, addressed to the Depositary at the Corporate Office.
Any notices given to any record holder of a Receipt hereunder or under
the Receipts shall be in writing and shall be deemed to have been duly given if
personally delivered or sent by mail, or by telegram or telex or telecopier
confirmed by letter, addressed to such record holder at the address of such
record holder as it appears on the books of the Depositary or, if such holder
shall have filed with the Depositary in a timely manner a written request that
notices intended for such holder be mailed to some other address, at the
address designated in such request.
-20-
24
Delivery of a notice sent by mail, or by telegram or telex or
telecopier shall be deemed to be effected at the time when a duly addressed
letter containing the same (or a confirmation thereof in the case of a telegram
or telex or telecopier message) is deposited, postage prepaid, in a post office
letter box. The Depositary or the Company may, however, act upon any telegram
or telex or telecopier message received by it from the other or from any holder
of a Receipt, notwithstanding that such telegram or telex or telecopier message
shall not subsequently be confirmed by letter as aforesaid.
SECTION 7.5 DEPOSITARY'S AGENTS. The Depositary may from time
to time appoint Depositary's Agents to act in any respect for the Depositary
for the purposes of this Deposit Agreement and may at any time appoint
additional Depositary's Agents and vary or terminate the appointment of such
Depositary's Agents. The Depositary will notify the Company of any such
action.
SECTION 7.6 HOLDERS OF RECEIPTS ARE PARTIES. The holders of
Receipts from time to time shall be deemed to be parties to this Deposit
Agreement and shall be bound by all of the terms and conditions hereof and of
the Receipts by acceptance of delivery thereof.
SECTION 7.7 GOVERNING LAW. This Deposit Agreement and the
Receipts and all rights hereunder and thereunder and provisions hereof and
thereof shall be governed by, and construed in accordance with, the law of the
State of Georgia applicable to agreements made and to be performed in said
State.
SECTION 7.8 INSPECTION OF DEPOSIT AGREEMENT AND ARTICLES
SUPPLEMENTARY. Copies of this Deposit Agreement and the Articles Supplementary
shall be filed with the Depositary and the Depositary's Agents and shall be
open to inspection during business hours at the Corporate Office and the
respective offices of the Depositary's Agents, if any, by any holder of any
Receipt.
SECTION 7.9 HEADINGS. The headings of articles and sections in
this Deposit Agreement and in the form of the Receipt set forth in Exhibit A
hereto have been inserted for convenience only and are not to be regarded as
part of this Deposit Agreement or to have any bearing upon the meaning or
interpretation of any provision contained herein or in the Receipts.
-21-
25
IN WITNESS WHEREOF, FelCor Suite Hotels, Inc. and SunTrust Bank,
Atlanta, Georgia 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.
FELCOR SUITE HOTELS, INC.
By: /s/ Lawrence D. Robinson
--------------------------------------
Name: Lawrence D. Robinson
Title: General Counsel
Attest: /s/ Susan E. Mitchell
----------------------------------
Witness
SUNTRUST BANK, ATLANTA, GEORGIA
By: /s/ Sue Hampton
-------------------------------------
Name: Sue Hampton
Title: Assistant Vice President
Attest: /s/ Sandra Benefield
---------------------------------
Authorized Signatory
-22-
26
EXHIBIT A
The Depositary Shares evidenced by this Depositary Receipt are subject
to restrictions on ownership and transfer for the purpose of the Company's
maintenance of its status as a Real Estate Investment Trust under the Internal
Revenue Code of 1986, as amended. In order to maintain such status, the
Company's Articles Supplementary imposes limitations on the number of shares of
Series B Cumulative Redeemable Preferred Stock that may be owned by any single
person or affiliated group. All capitalized terms in this legend have the
meanings defined in the Company's Articles Supplementary for the Series B
Cumulative Redeemable Preferred Stock. Transfers in violation of the
restrictions described above shall be void AB INITIO.
The Company will furnish to the holder hereof upon request and without
charge a complete written statement of the terms and conditions of the Series B
Cumulative Redeemable Preferred Shares. Requests for such statement may be
directed to the Secretary of the Company.
[FORM OF FACE OF RECEIPT]
DR-
CERTIFICATE FOR NOT MORE THAN [5,750,000] DEPOSITARY SHARES CUSIP 314305 30 1
RECEIPT FOR DEPOSITARY SHARES,
EACH REPRESENTING 1/100 OF A 9% SERIES B CUMULATIVE
REDEEMABLE PREFERRED SHARE
FELCOR SUITE HOTELS, INC.
(a Maryland corporation)
SunTrust Bank, Atlanta, Georgia, as Depositary (the "Depositary"),
hereby certifies that ____________________ is the registered owner of
____________ DEPOSITARY SHARES ("Depositary Shares"), each Depositary Share
representing 1/100 of one share of 9% Series B Cumulative Redeemable Preferred
Stock, $0.01 par value per share (the "Shares"), of FelCor Suite Hotels, Inc.,
a Maryland corporation (the "Company"), on deposit with the Depositary, subject
to the terms and entitled to the benefits of the Deposit Agreement dated as of
April 30, 1998 (the "Deposit Agreement"), among the Company, the Depositary and
the holders from time to time of Receipts for Depositary Shares. By accepting
this Receipt, the holder hereof becomes a party to and agrees to be bound by
all the terms and conditions of the Deposit Agreement. This Receipt shall not
be valid or obligatory for any purpose or entitled to any benefits under the
Deposit Agreement unless it shall have been executed by the Depositary by the
manual or facsimile signature of a duly authorized officer or, if a Registrar
in respect of the Receipts (other than the Depositary) shall have been
appointed, by the manual signature of a duly authorized officer of such
Registrar.
-A1-
27
Dated:
Countersigned:
By:
Authorized Signatory
-A2-
28
[FORM OF REVERSE RECEIPT]
FELCOR SUITE HOTELS, INC. WILL FURNISH WITHOUT CHARGE TO EACH
REGISTERED HOLDER OF RECEIPTS WHO SO REQUESTS A COPY OF THE DEPOSIT AGREEMENT
AND A COPY OF THE ARTICLES SUPPLEMENTARY WITH RESPECT TO THE 9% SERIES B
CUMULATIVE REDEEMABLE PREFERRED STOCK OF FELCOR SUITE HOTELS, INC. ANY SUCH
REQUEST SHALL BE ADDRESSED TO THE DEPOSITARY NAMED ON THE FACE OF THIS RECEIPT.
------------------------------------
The following abbreviations when used in the instructions on the face
of this receipt shall be construed as though they were written out in full
according to applicable laws or regulations.
TEN COM - as 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)
Additional abbreviations may also be used though not in the above
list.
ASSIGNMENT
For value received, ____________ hereby sell(s), assign(s) and transfer(s) unto
PLEASE INSERT SOCIAL SECURITY OR OTHER IDENTIFYING NUMBER OF ASSIGNEE
------------------------------------
------------------------------------
PLEASE PRINT OR TYPEWRITE NAME AND ADDRESS INCLUDING POSTAL ZIP CODE OF
ASSIGNEE
------------------------------------
____________ Depositary Shares represented by the within Receipt, and do hereby
irrevocably constitute and appoint ____________ Attorney to transfer the said
Depositary Shares on the books of the within named Depositary with full power
of substitution in the premises.
-A3-
29
Dated:_________
NOTICE: The signature to the assignment
must correspond with the name as written
upon the face of this Receipt in every
particular, without alteration or
enlargement or any change whatever.
-A4-