DEPOSIT AGREEMENT
DEPOSIT AGREEMENT, dated as of November 24, 1998, among DUKE REALTY
INVESTMENTS, INC., an Indiana corporation (the "Company") and American Stock
Transfer & Trust Company, a New York 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 OF INCORPORATION" means the Amended and Restated
Articles of Incorporation, as amended from time to time, of the Company.
SECTION 1.2 "COMMON STOCK" means the common stock, par value $.01 per
share, of the Company.
SECTION 1.3 "COMPANY" means Duke Realty Investments, Inc., an Indiana
corporation, and its successors.
SECTION 1.4 "CORPORATE OFFICE" means 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 40 Wall Street, New York, New York
10005.
SECTION 1.5 "DEPOSIT AGREEMENT" means this agreement, as the same may
be amended, modified or supplemented from time to time.
SECTION 1.6 "DEPOSITARY" means American Stock Transfer & Trust Company,
a company having its principal office in the United States and having a
combined capital and surplus of at least $10,000,000, and any successor as
depositary hereunder.
SECTION 1.7 "DEPOSITARY SHARE" means a fractional interest of 1/10 of a
Preferred Share deposited with the Depositary hereunder and the same
proportionate interest in any and all other property received by the
Depositary in respect of such Preferred Share and held under this Deposit
Agreement, all as evidenced by the Receipts issued hereunder. Subject to the
terms of this Deposit Agreement, each owner of a Depositary Share is
entitled, proportionately, to all the rights, preferences and privileges of
the Preferred Share represented by such Depositary Share, including the
dividend, voting, redemption, conversion and liquidation rights contained in
the Designating Amendment.
SECTION 1.8 "DEPOSITARY'S AGENT" means an agent appointed by the
Depositary as provided, and for the purposes specified, in Section 7.5.
SECTION 1.9 "DESIGNATING AMENDMENT" means the amendment to the Articles
of Incorporation filed with the Secretary of State of the State of Indiana
establishing the Preferred Shares as a series of preferred shares of the
Company.
SECTION 1.10 "ISSUE DATE" means November 24, 1998.
SECTION 1.11 "PREFERRED SHARES" means the Company's 7.375% Series D
Convertible Cumulative Redeemable Preferred Shares, par value $0.01 per
share, heretofore validly issued, fully paid and nonassessable.
SECTION 1.12 "RECEIPT" means 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 1.13 "RECORD DATE" means the date fixed pursuant to Section 4.4.
SECTION 1.14 "RECORD HOLDER" OR "HOLDER" as applied to a Receipt means
the person in whose name a Receipt is registered on the books maintained by
the Depositary for such purpose.
SECTION 1.15 "REGISTRAR" means American Stock Transfer & Trust Company
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 1.16 "SECURITIES ACT" means the Securities Act of 1933, as
amended.
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SECTION 1.17 "TRANSFER AGENT" means American Stock Transfer & Trust
Company or any bank or trust company appointed to transfer the Receipts or
the deposited Preferred Shares, as the case may be, as herein provided.
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 2.3, 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.
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Receipts may be endorsed with or have incorporated in the text
thereof such legends or recitals or changes not inconsistent with the
provisions of this Deposit Agreement as may be required by the Depositary or
required to comply with any applicable law or regulation or with the rules
and 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 2.5, 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 FORM, DENOMINATION AND REGISTRATION.
(a) The Depositary Shares shall be issued in the form of one or more
Global Certificates ("Global Certificates"). The Global Certificates shall
be deposited on the Issue Date with, or on behalf of, The Depositary Trust
Company (the "DTC") and registered in the name of Cede & Co., as DTC's
nominee (such nominee being referred to as the "Global Certificate Holder").
(b) So long as the Global Certificate Holder is the registered owner of
any Depositary Shares, the Global Certificate Holder will be considered the
sole holder under this Deposit Agreement of any Depositary Shares evidenced
by the Global Certificate. Beneficial owners of Depositary Shares shall not
be considered the owner or holders thereof under this Deposit Agreement for
any purpose other than for the limited redemption right under Section 2.11.
(c) Payments in respect of the Liquidation Preference and dividends on
any Preferred Stock underlying Depositary Shares registered in the name of
the Global Certificate Holder on the applicable record date shall be payable
by the Company to or at the direction of the Global Certificate Holder in its
capacity as the registered holder under this Deposit Agreement. The Company
may treat the persons in whose names Depositary Shares, including the Global
Certificate, are registered as the owners thereof for the purpose of
receiving such payments.
(d) If (i) the Company notifies the holders in writing that the DTC is no
longer willing or able to act as a depositary and the Company is unable to
locate a qualified successor within 90 days or (ii) the Company, at its option,
notifies the holder in writing that it elects to cause the issuance of
Depositary Shares in the form of registered definitive certificates ("Definitive
Securities") under this Deposit Agreement, then, upon surrender by the Global
Certificate Holder of its Global Certificate, Depositary Shares in such form
will be issued to each person that the
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Global Certificate Holder and the DTC identify as being the beneficial owner
of the related Depositary Shares. Holders of beneficial interests in a Global
Certificate will not otherwise be entitled to exchange such beneficial
interest for Depositary Shares in the form of Definitive Securities.
(e) Each Global Certificate shall bear a legend in substantially the
following form:
"UNLESS AND UNTIL IT IS EXCHANGED IN WHOLE OR IN PART FOR A
SECURITY IN DEFINITIVE FORM, THIS SECURITY MAY NOT BE TRANSFERRED
EXCEPT AS A WHOLE BY THE DEPOSITARY TO A NOMINEE OF THE
DEPOSITARY OR BY A NOMINEE OF THE DEPOSITARY TO THE DEPOSITARY OR
ANOTHER NOMINEE OF THE DEPOSITARY OR BY THE DEPOSITARY OR ANY
SUCH NOMINEE TO A SUCCESSOR DEPOSITARY OR A NOMINEE OF SUCH
SUCCESSOR DEPOSITARY. THE DEPOSITARY TRUST COMPANY SHALL ACT AS
THE DEPOSITARY UNTIL A SUCCESSOR SHALL BE APPOINTED BY THE
COMPANY AND THE TRANSFER AGENT. UNLESS THIS CERTIFICATE IS
PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITARY TRUST
COMPANY (55 WATER STREET, NEW YORK, NEW YORK) ("DTC") TO THE
ISSUER OR ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE OR
PAYMENT, AND ANY CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF
CEDE & CO. OR SUCH OTHER NAME AS MAY BE REQUESTED BY AN
AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO CEDE
& CO. OR SUCH OTHER ENTITY AS MAY BE REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF
FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH
AS THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST
HEREIN."
SECTION 2.3 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 540,000
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
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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.
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 2.3, 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 Designating Amendment, 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 2.4 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 Designating Amendment, it shall
(unless otherwise agreed in writing with the Depositary) give the Depositary
not less than 60 days' prior written notice of the date of such proposed
redemption and of the number of such Preferred Shares held by the Depositary
to be redeemed and the applicable redemption price, as set forth in the
Designating Amendment, 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
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Preferred Shares to be redeemed, not less than 30 and not more than 60 days
prior to the date fixed for redemption of such Preferred Shares and
Depositary Shares (the "cash redemption date"), to the holders of record on
the record date fixed for such redemption pursuant to Section 4.4 hereof of
the Receipts evidencing the Depositary Shares to be so redeemed, at the
addresses of such holders as the same appear on the records of the
Depositary; but neither failure to mail any such notice to one or more such
holders nor any defect in any such notice shall affect the sufficiency of the
proceedings for redemption as to other holders. The Company shall provide
the Depositary with such notice, and each such notice shall state: the cash
redemption date; the cash redemption price; the number of deposited Preferred
Shares and Depositary Shares to be redeemed; if fewer than all the Depositary
Shares held by any holder are to be redeemed, the number of such Depositary
Shares held by such holder to be so redeemed; the place or places where
Receipts evidencing Depositary Shares to be redeemed are to be surrendered
for payment of the cash redemption price; and that from and after the cash
redemption date dividends in respect of the Preferred Shares represented by
the Depositary Shares to be redeemed will cease to accrue. If fewer than all
the outstanding Depositary Shares are to be redeemed, the Depositary Shares
to be redeemed shall be selected pro rata (as nearly as may be practicable
without creating fractional Depositary Shares) or by any other equitable
method determined by the Company. The Company shall also cause notice of
redemption to be published in a newspaper of general circulation in The City
of New York at least once a week for two successive weeks commencing not less
than 30 nor more than 60 days prior to the cash redemption date.
In the event that notice of redemption has been made as described
in the immediately preceding paragraph and the Company shall then have paid
in full to the Depositary the cash redemption price (determined pursuant to
the Designating Amendment) 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 Designating Amendment.
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.
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SECTION 2.5 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 2.6 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 2.7 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
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deliver to the Depositary a written order so directing the Depositary and the
Depositary may require that the Receipt or Receipts surrendered by such
holder for withdrawal of such Preferred Shares be properly endorsed in blank
or accompanied by a properly executed instrument of transfer or endorsement
in blank.
The Depositary shall deliver the deposited Preferred Shares and the
money and other property, if any, represented by the Depositary Shares
evidenced by Receipts surrendered for withdrawal at the Corporate Office,
except that, at the request, risk and expense of the holder surrendering such
Receipt or Receipts and for the account of the holder thereof, such delivery
may be made at such other place as may be designated by such holder.
SECTION 2.8 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 any provision of this Deposit Agreement.
SECTION 2.9 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 2.10 CANCELLATION AND DESTRUCTION OF SURRENDERED RECEIPTS. All
Receipts surrendered to the Depositary or any Depositary's Agent shall be
cancelled by the Depositary.
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Except as prohibited by applicable law or regulation, the Depositary is
authorized to destroy such Receipts so cancelled.
SECTION 2.11 REDEMPTION UPON THE DEATH OF A HOLDER. Whenever the
Company shall be required to cause the redemption of Depositary Shares upon
the death of a holder in accordance with the provisions of the Designating
Amendment, it shall (unless otherwise agreed in writing with the Depositary)
give the Depositary not less than 10 days' prior written notice of such
redemption and of the following: the redemption date, whether the redemption
will be in cash or in shares of Common Stock; the cash redemption price or
number of shares of Common Stock to be issued in redemption of the Depositary
Shares, as applicable; the number of Preferred Shares and Depositary Shares
to be redeemed; the holder whose Depositary Shares are to be redeemed; and
the name and address of the personal representative for such holder.
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 Designating Amendment) for the shares of Common Stock to be paid upon
redemption (determined pursuant to the Designating Amendment) 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 Depositary Shares as specified in the notice of redemption, and
from and after the 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 Receipt evidencing such
Depositary Shares (except the right to receive the 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.
In 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
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 subject to such
redemption.
No fractional shares of Common Stock will be issued in respect of a
redemption of Depositary Shares. In lieu of any fractional shares, the cash
and an amount equal to the product of such fraction multiplied by the closing
price of one share of Common Stock on the day prior to the redemption
settlement date shall be paid.
SECTION 2.12 CONVERSION OF DEPOSITARY SHARES
(a) The Depositary Shares held by any holder of a Receipt or Receipts
may, at the option of such holder, be converted, in whole, or from time to
time in part, into shares of Common Stock upon the same terms and conditions
as the Preferred Shares, except that the number of shares of Common Stock
received upon conversion of each Depositary Share will be
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equal to the number of shares of Common Stock received upon conversion of one
Preferred share divided by 10. Whenever a holder of a Receipt or Receipts
shall elect to convert the Depositary Shares represented by such Receipt or
Receipts into shares of Common Stock pursuant to the terms of the Preferred
Shares, such holder shall deliver to the Depositary or the Depositary's Agent
the Receipt or Receipts evidencing the Depositary Shares to be converted,
together with a written notice of conversion and an assignment of the Receipt
or Receipts to the Company or in blank, in form reasonably acceptable to the
Depositary. In addition, if such holder surrenders such Depositary Shares
for conversion during the period from the close of business on any record
date fixed pursuant to Section 4.4 for the payment of dividends until the
opening of business of the dividend payment date corresponding to such record
date (the "Dividend Payment Date"), such Receipt or Receipts shall be
accompanied by a payment in cash, Common Stock or a combination thereof
(depending on the method of payment that the Company has chosen to pay the
dividend) in an amount equal to the dividend payable on the Dividend Payment
Date, unless such Depositary Shares have been called for redemption on a
Redemption Date occurring during the period from the close of business on
such record date until the close of business on the business day immediately
following the Dividend Payment Date. The dividend payment with respect to
Depositary Shares called for redemption on a date during the period from the
close of business on such record date to the close of business on the
business day immediately following the Dividend Payment Date will be payable
on the Dividend Payment Date to the record holder of such Depositary Shares
on such record date, notwithstanding the conversion of such Depositary Shares
after such record date and prior to the Dividend Payment Date, and the holder
converting such Depositary Shares need not include a payment of such dividend
amount upon surrender of such Depositary Shares. Each conversion of
Depositary Shares shall be deemed to have been effected immediately before
the close of business on the date on which the requirements specified in the
preceding sentence shall have been satisfied (the "Conversion Date").
(b) If a holder of a Receipt elects to convert less than all of the
Depositary Shares evidenced by a Receipt, the Depositary will deliver to the
holder of the Receipt upon its surrender to the Depositary a new Receipt
evidencing the Depositary Shares evidenced by such prior Receipt and not
converted, together with a certificate for the shares of Common Stock issued
upon conversion. The foregoing shall further be subject to the terms and
conditions of the Preferred Shares, as set forth in the Articles of
Incorporation and Designating Amendment.
(c) No fractional shares of Common Stock shall be issued upon
conversion of Depositary Shares. If such conversion would otherwise result
in a fractional share of Common Stock being issued, the number of shares of
Common Stock to be issued upon conversion shall be rounded up to the nearest
whole share.
(d) From and after the Conversion Date, the Depositary Shares being
converted shall be deemed no longer to be outstanding, all dividends in
respect of the Preferred Shares converted shall cease to accrue, all rights
of the holders of Receipts evidencing such Depositary Shares shall, to the
extent of such Depositary Shares, cease and terminate, except the right to
receive shares of Common Stock into which the Depositary Shares have been
converted and the right to receive any money or other property to which the
holders of such Receipts were entitled upon conversion (including all
amounts, if any, paid by the Company in respect of dividends which, on the
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Conversion Date, have accrued on the Preferred Shares to be converted and
have not theretofore been paid).
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 1/10 fractional
interest in a deposited Preferred Share. Such representation and warranty
shall survive the deposit of the Preferred Shares and the issuance of
Receipts evidencing the Depositary Shares.
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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 2.4, 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 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
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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 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 4.4 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
14
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 10 votes and, accordingly, each
Depositary Share is entitled to one vote. The Company hereby agrees to take
all reasonable action that may be deemed necessary by the Depositary in order
to enable the Depositary to vote such Preferred Shares or cause such
Preferred Shares to be voted. In the absence of specific instructions from
the holder of a Receipt, the Depositary will abstain from voting to the
extent of the Preferred Shares represented by the Depositary Shares evidenced
by such Receipt. The Depositary shall not be required to exercise discretion
in voting any Preferred Shares represented by the Depositary Shares evidenced
by such Receipt.
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 Designating Amendment 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
15
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.
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 1099s for all open and
closed accounts, (ii) foreign tax withholding, (iii) withholding 31% (or any
withholding as may be required at the then applicable rate) of dividends from
eligible holders of Receipts, (iv) mailing W-9 forms to new holders of
Receipts without a certified taxpayer identification number, (v) processing
certified W-9 forms, (vi) preparation and filing of state information returns
and (vii) escheatment services.
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
16
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 or any other stock exchange, the Depositary may, with
the approval of the Company, appoint a Registrar (acceptable to the Company)
for registration of such Receipts or Depositary Shares in accordance with the
requirements of such Exchange. Such Registrar (which may be the Depositary
if so permitted by the requirements of such Exchange) may be removed and a
substitute registrar appointed by the Depositary upon the request or with the
approval of the Company. If the Receipts, such Depositary Shares or such
Preferred Shares are listed on one or more other stock exchanges, the
Depositary will, at the request and expense of the Company, arrange such
facilities for the delivery, transfer, surrender, redemption and exchange of
such Receipts, such Depositary Shares or such Preferred Shares as may be
required by law or applicable stock exchange regulations.
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 Articles of Incorporation or the
Designating Amendment or, in the case of the Company, the Depositary,
17
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.
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
18
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 in accordance with the applicable securities
laws.
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
19
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 Articles of Incorporation and the Designating Amendment 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 Designating Amendment and the form of Preferred Shares. Such
transmission will be at the Company's expense and the Company will provide
the Depositary with such number of copies of such documents as the Depositary
may 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
20
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 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
Designating Amendment 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 2.7 and Section 2.8 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 of 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 2.4 or 2.11 or
converted pursuant to Section 2.12 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.
21
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 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:
DUKE REALTY INVESTMENTS, INC.
8888 Keystone Crossing
Suite 1200
Indianapolis, Indiana 46240
Attention: Dennis D. Oklak
Telephone No.: (317) 808-6000
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,
22
or by telegram or telex or telecopier confirmed by letter, addressed to the
Depositary at the Corporate Office.
Any notices given to any record holder of a Receipt hereunder or
under the Receipts shall be in writing and shall be deemed to have been duly
given if personally delivered or sent by mail, or by telegram or telex or
telecopier confirmed by letter, addressed to such record holder at the
address of such record holder as it appears on the books of the Depositary
or, if such holder shall have filed with the Depositary in a timely manner a
written request that notices intended for such holder be mailed to some other
address, at the address designated in such request.
Delivery of a notice sent by mail, or by telegram or telex or
telecopier shall be deemed to be effected at the time when a duly addressed
letter containing the same (or a confirmation thereof in the case of a
telegram or telex or telecopier message) is deposited, postage prepaid, in a
post office letter box. The Depositary or the Company may, however, act upon
any telegram or telex or telecopier message received by it from the other or
from any holder of a Receipt, notwithstanding that such telegram or telex or
telecopier message shall not subsequently be confirmed by letter as aforesaid.
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 New York applicable to agreements made and to be performed in said State.
SECTION 7.8 INSPECTION OF DEPOSIT AGREEMENT AND DESIGNATING
AMENDMENT. Copies of this Deposit Agreement and the Designating Amendment
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.
23
IN WITNESS WHEREOF, Duke Realty Investments, Inc. and American Stock
Transfer & Trust Company 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.
DUKE REALTY INVESTMENTS, INC.
By:
----------------------------------------
Attest: Authorized Officer
AMERICAN STOCK TRANSFER & TRUST COMPANY
By:
----------------------------------------
Attest: Authorized Signatory
24
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 Designating Amendment imposes limitations on the number of
Series D Convertible Cumulative Redeemable Preferred Shares 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 Designating Amendment for
the Series D Convertible Cumulative Redeemable Preferred Shares. 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
D Convertible 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 5,400,000 DEPOSITARY SHARES
CUSIP 264411 87 7
RECEIPT FOR DEPOSITARY SHARES,
EACH REPRESENTING 1/10 OF A SERIES D CONVERTIBLE
CUMULATIVE REDEEMABLE PREFERRED SHARE
DUKE REALTY INVESTMENTS, INC.
(an Indiana corporation)
American Stock Transfer & Trust Company, as Depositary (the
"Depositary"), hereby certifies that ____________________ is the registered
owner of ____________ DEPOSITARY SHARES ("Depositary Shares"), each
Depositary Share representing 1/10 of one Series D Convertible Cumulative
Redeemable Preferred Share, $0.01 par value per share (the "Shares"), of Duke
Realty Investments, Inc., an Indiana corporation (the "Company"), on deposit
with the Depositary, subject to the terms and entitled to the benefits of the
Deposit Agreement dated as of November 24, 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.
Dated:
[Countersigned: AMERICAN STOCK TRANSFER & TRUST COMPANY
By: ] By:
----------------------- ---------------------------
Authorized Signatory
[FORM OF REVERSE RECEIPT]
DUKE REALTY INVESTMENTS, 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 DESIGNATING AMENDMENT WITH RESPECT TO THE SERIES D
CONVERTIBLE CUMULATIVE REDEEMABLE PREFERRED SHARES OF DUKE REALTY
INVESTMENTS, INC. ANY SUCH REQUEST SHALL BE ADDRESSED TO THE DEPOSITARY
NAMED ON THE FACE OF THIS RECEIPT.
-------------------------
The following abbreviations when used in the instructions on the face of
this receipt shall be construed as though they were written out in full
according to applicable laws or regulations.
TEN COM - as tenant in UNIF GIFT MIN ACT - Custodian
common -------- ---------
(Cust) (Minor)
TEN ENT - as tenants by Under Uniform Gifts to Minors Act
the entireties
JT TEN - as joint
tenants with
right of -----------------------------------------
survivorship (State)
and not as
tenants in
common
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.
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.