TABLE OF CONTENTS
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ARTICLE I
DEFINITIONS
Section 1.1. "Articles of Incorporation". . . . . . . . . . . . . . . . .1
Section 1.2. "Company". . . . . . . . . . . . . . . . . . . . . . . . . .1
Section 1.3. "Corporate Office" . . . . . . . . . . . . . . . . . . . . .1
Section 1.4. "Deposit Agreement". . . . . . . . . . . . . . . . . . . . .1
Section 1.5. "Depositary" . . . . . . . . . . . . . . . . . . . . . . . .1
Section 1.6. "Depositary Share" . . . . . . . . . . . . . . . . . . . . .2
Section 1.7. "Depositary's Agent" . . . . . . . . . . . . . . . . . . . .2
Section 1.8. "Designating Amendment". . . . . . . . . . . . . . . . . . .2
Section 1.9. "Preferred Shares" . . . . . . . . . . . . . . . . . . . . .2
Section 1.10. "Receipt". . . . . . . . . . . . . . . . . . . . . . . . . .2
Section 1.11. "record date". . . . . . . . . . . . . . . . . . . . . . . .2
Section 1.12. "record holder" or "holder". . . . . . . . . . . . . . . . .2
Section 1.13. "Registrar". . . . . . . . . . . . . . . . . . . . . . . . .2
Section 1.14. "Securities Act" . . . . . . . . . . . . . . . . . . . . . .2
Section 1.15. "Transfer Agent" . . . . . . . . . . . . . . . . . . . . . .2
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 . . . . . . . . . . . .3
Section 2.2. Deposit of Preferred Shares; Execution and Delivery of
Receipts in Respect Thereof. . . . . . . . . . . . . . . . .4
Section 2.3. Optional Redemption of Preferred Shares for Cash . . . . . .5
Section 2.4. Registration of Transfers of Receipts. . . . . . . . . . . .6
Section 2.5. Combinations and Split-ups of Receipts . . . . . . . . . . .6
Section 2.6. Surrender of Receipts and Withdrawal of Preferred Shares . .6
Section 2.7. Limitations on Execution and Delivery, Transfer, Split-up,
Combination, Surrender and Exchange of Receipts. . . . . . .7
Section 2.8. Lost Receipts, etc.. . . . . . . . . . . . . . . . . . . . .8
Section 2.9. Cancellation and Destruction of Surrendered Receipts . . . .8
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ARTICLE III
CERTAIN OBLIGATIONS OF HOLDERS OF RECEIPTS AND THE COMPANY
Section 3.1. Filing Proofs, Certificates and Other Information. . . . . . 8
Section 3.2. Payment of Fees and Expenses . . . . . . . . . . . . . . . . 8
Section 3.3. Representations and Warranties as to Preferred Shares. . . . 9
Section 3.4. Representation and Warranty as to Receipts and Depositary
Shares . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
ARTICLE IV
THE PREFERRED SHARES; NOTICES
Section 4.1. Cash Distributions . . . . . . . . . . . . . . . . . . . . . 9
Section 4.2. Distributions Other Than Cash. . . . . . . . . . . . . . . . 9
Section 4.3. Subscription Rights, Preferences or Privileges . . . . . . .10
Section 4.4. Notice of Dividends; Fixing of Record Date for Holders of
Receipts . . . . . . . . . . . . . . . . . . . . . . . . . .11
Section 4.5. Voting Rights. . . . . . . . . . . . . . . . . . . . . . . .11
Section 4.6. Changes Affecting Preferred Shares and Reclassifications,
Recapitalization, etc. . . . . . . . . . . . . . . . . . . .11
Section 4.7. Inspection of Reports. . . . . . . . . . . . . . . . . . . .12
Section 4.8. Lists of Receipt Holders . . . . . . . . . . . . . . . . . .12
Section 4.9. Tax and Regulatory Compliance. . . . . . . . . . . . . . . .12
Section 4.10. Withholding. . . . . . . . . . . . . . . . . . . . . . . . .13
ARTICLE V
THE DEPOSITARY AND THE COMPANY
Section 5.1. Maintenance of Offices, Agencies and Transfer Books by the
Depositary and the Registrar . . . . . . . . . . . . . . . .13
Section 5.2. Prevention or Delay in Performance by the Depositary, the
Depositary's Agents, the Registrar or the Company. . . . . .14
Section 5.3. Obligations of the Depositary, the Depositary's Agents, the
Registrar and the Company. . . . . . . . . . . . . . . . . .14
Section 5.4. Resignation and Removal of the Depositary; Appointment of
Successor Depositary . . . . . . . . . . . . . . . . . . . .15
Section 5.5. Notices, Reports and Documents . . . . . . . . . . . . . . .16
Section 5.6. Indemnification by the Company . . . . . . . . . . . . . . .16
Section 5.7. Fees, Charges and Expenses . . . . . . . . . . . . . . . . .16
ARTICLE VI
AMENDMENT AND TERMINATION
Section 6.1. Amendment. . . . . . . . . . . . . . . . . . . . . . . . . .17
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Section 6.2. Termination. . . . . . . . . . . . . . . . . . . . . . . . .17
ARTICLE VII
MISCELLANEOUS
Section 7.1. Counterparts . . . . . . . . . . . . . . . . . . . . . . . .18
Section 7.2. Exclusive Benefit of Parties . . . . . . . . . . . . . . . .18
Section 7.3. Invalidity of Provisions . . . . . . . . . . . . . . . . . .18
Section 7.4. Notices. . . . . . . . . . . . . . . . . . . . . . . . . . .18
Section 7.5. Depositary's Agents. . . . . . . . . . . . . . . . . . . . .19
Section 7.6. Holders of Receipts Are Parties. . . . . . . . . . . . . . .19
Section 7.7. Governing Law. . . . . . . . . . . . . . . . . . . . . . . .19
Section 7.8. Inspection of Deposit Agreement and Designating Amendment. .19
Section 7.9. Headings . . . . . . . . . . . . . . . . . . . . . . . . . .19
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DEPOSIT AGREEMENT
DEPOSIT AGREEMENT, dated as of January 14, 1999, among DUKE REALTY
INVESTMENTS, INC., an Indiana corporation (the "Company") and American Stock
Transfer & Trust Co., 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" shall mean the Amended and
Restated Articles of Incorporation, as amended from time to time, of the
Company.
SECTION 1.2. "COMPANY" shall mean Duke Realty Investments, Inc., an
Indiana corporation, and its successors.
SECTION 1.3. "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 40 Wall Street, New York, NY 10005.
SECTION 1.4. "DEPOSIT AGREEMENT" shall mean this agreement, as the same
may be amended, modified or supplemented from time to time.
SECTION 1.5. "DEPOSITARY" shall mean American Stock Transfer & Trust
Co., 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 1.6. "DEPOSITARY SHARE" shall mean a fractional interest of 1/10
of a Preferred Share deposited with the Depositary hereunder and the same
proportionate interest in any and all other property received by the Depositary
in respect of such Preferred Share and held under this Deposit Agreement, all as
evidenced by the Receipts issued hereunder. Subject to the terms of this
Deposit Agreement, each owner of a Depositary Share is entitled,
proportionately, to all the rights, preferences and privileges of the Preferred
Share represented by such Depositary Share, including the dividend, voting,
redemption, conversion and liquidation rights contained in the Designating
Amendment.
SECTION 1.7. "DEPOSITARY'S AGENT" shall mean an agent appointed by
the Depositary as provided, and for the purposes specified, in Section 7.5.
SECTION 1.8. "DESIGNATING AMENDMENT" shall mean 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 1.9. "PREFERRED SHARES" shall mean the Company's 8.25% Series
E Cumulative Redeemable Preferred Shares, 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 American Stock Transfer & Trust
Co. 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 American Stock Transfer &
Trust Co. or any bank or trust company appointed to transfer the Receipts or
the deposited Preferred Shares, as the case may be, as herein provided.
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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 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.
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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 400,000
Preferred Shares (or 460,000 Preferred Shares if the Underwriters exercise
their over allotment option), 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.
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
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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 2.3. 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 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 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
5
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.
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.
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
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provided, the number of whole or fractional shares of such Preferred Shares
and all such money and other property, if any, represented by the Depositary
Shares evidenced by the Receipt or Receipts so surrendered for withdrawal,
but holders of such whole or fractional Preferred Shares will not thereafter
be entitled to deposit such Preferred Shares hereunder or to receive
Depositary Shares therefor. If the Receipt or Receipts delivered by the
holder to the Depositary in connection with such withdrawal shall evidence a
number of Depositary Shares in excess of the number of Depositary Shares
representing the number of whole or fractional shares of deposited Preferred
Shares to be withdrawn, the Depositary shall at the same time, in addition to
such number of whole or fractional Preferred Shares and such money and other
property, if any, to be withdrawn, deliver to such holder, or (subject to
Section 2.4) upon his order, a new Receipt or Receipts evidencing such excess
number of Depositary Shares. Delivery of such Preferred Shares and such
money and other property being withdrawn may be made by the delivery of such
certificates, documents of title and other instruments as the Depositary may
deem appropriate, which, if required by the Depositary, shall be properly
endorsed or accompanied by proper instruments of transfer.
If the deposited Preferred Shares and the money and other property being
withdrawn are to be delivered to a person or persons other than the record
holder of the Receipt or Receipts being surrendered for withdrawal of Preferred
Shares, such holder shall execute and deliver to the Depositary a written order
so directing the Depositary and the Depositary may require that the Receipt or
Receipts surrendered by such holder for withdrawal of such Preferred Shares be
properly endorsed in blank or accompanied by a properly executed instrument of
transfer or endorsement in blank.
The Depositary shall deliver the deposited Preferred Shares and the money
and other property, if any, represented by the Depositary Shares evidenced by
Receipts surrendered for withdrawal at the Corporate Office, except that, at the
request, risk and expense of the holder surrendering such Receipt or Receipts
and for the account of the holder thereof, such delivery may be made at such
other place as may be designated by such holder.
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
7
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 Article X of the
Articles of Incorporation 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
cancelled by the Depositary. Except as prohibited by applicable law or
regulation, the Depositary is authorized to destroy such Receipts so cancelled.
ARTICLE III
CERTAIN OBLIGATIONS OF HOLDERS OF RECEIPTS AND THE COMPANY
SECTION 3.1. 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.
8
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.
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
9
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 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.
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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 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 discreton 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,
11
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 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
12
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 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.
13
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, 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.
14
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.
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
15
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 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
16
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 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 2.6 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,
17
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 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) 574-3531
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
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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.
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IN WITNESS WHEREOF, Duke Realty Investments, Inc. and American Stock
Transfer & Trust Co. 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 CO.
By:
------------------------------------------
Attest: Authorized Signatory
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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 E
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 E 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 E
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 4,600,000 DEPOSITARY SHARES
CUSIP____________
RECEIPT FOR DEPOSITARY SHARES,
EACH REPRESENTING 1/10 OF A SERIES E CUMULATIVE
REDEEMABLE PREFERRED SHARE
DUKE REALTY INVESTMENTS, INC.
(an Indiana corporation)
_______________, 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 E
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 January 14, 1999 (the "Deposit Agreement"),
among the Company, the Depositary and the holders from time to time of Receipts
for Depositary Shares. By accepting this Receipt, the holder hereof becomes a
party to and agrees to be bound by all the terms and conditions of the Deposit
Agreement. This Receipt shall not be valid or obligatory for any purpose or
entitled to any benefits under the Deposit Agreement unless it shall have been
executed by the Depositary by the manual or facsimile signature of a duly
authorized officer or, if a Registrar in respect of the Receipts (other than the
Depositary) shall have been appointed, by the manual signature of a duly
authorized officer of such Registrar.
Dated:
[Countersigned:
--------------------------------------
By: ] By:
-------------------------- ----------------------------------
Authorized Signatory
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[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 E 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 common UNIF GIFT MIN ACT - _____ Custodian ______
(Cust) (Minor)
TEN ENT - as tenants by the Under Uniform Gifts to Minors Act
entireties
JT TEN - as joint tenants with
right of survivorship
and not as tenants in __________________
common (State)
Additional abbreviations may also be used though not in the above list.
ASSIGNMENT
For value received, ____________ hereby 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.
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