Exhibit 4.1
DEPOSIT AGREEMENT
THIS DEPOSIT AGREEMENT, dated as of
May 17, 2005 (this “Deposit Agreement”), is entered
into by and among THE MILLS CORPORATION, a Delaware corporation
(the “Company”), EQUISERVE TRUST COMPANY, N.A., a
national banking association, EQUISERVE, INC., a Delaware
corporation, and all holders from time to time of Receipts (as
hereinafter defined) issued hereunder. EquiServe Trust Company,
N.A., and EquiServe, Inc. may be referred to individually and
collectively herein as “Depositary.”
WITNESSETH:
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 (as
defined below) evidencing Depositary Shares representing a
fractional interest in the Preferred Shares deposited;
and
NOW, THEREFORE, in consideration of
the premises contained herein, it is agreed by and among the
parties hereto as follows:
ARTICLE I
DEFINITIONS
The following definitions shall apply to the
respective terms (in the singular and plural forms of such terms)
used in this Deposit Agreement and the Receipts:
SECTION 1.01. “Certificate of
Designations” shall mean the Certificate of Designations
Classifying 92,000 Preferred Shares as 7.875% Series G Cumulative
Redeemable Preferred Stock, par value $0.01 per share, filed with
the Secretary of State of the State of Delaware establishing the
Preferred Shares as a series of the Company’s preferred
stock, par value $0.01 per share.
SECTION 1.02. “Certificate of
Incorporation” shall mean the Amended and Restated
Certificate of Incorporation of the Company, as amended and
supplemented from time to time, and shall include the Certificate
of Designations.
SECTION 1.03. “Common
Shares” shall mean the Company’s common stock, par
value $.01 per share.
SECTION 1.04. “Company”
shall mean The Mills Corporation, a Delaware corporation, and its
successors.
SECTION 1.05. “Corporate
Office” shall mean the corporate office of the Depositary at
which at any particular time its business in respect of matters
governed by this Deposit Agreement shall be administered, which as
of the date of this Deposit Agreement is located at 250 Royall
Street, Canton, MA 02021.
SECTION 1.06. “Deposit
Agreement” shall mean this agreement, as the same may be
amended, modified or supplemented from time to time.
SECTION 1.07.
“Depositary” shall mean EquiServe Trust Company, N.A.,
and EquiServe, Inc., in each case, a company or corporation having
its principal office in the United States, and any successor as
depositary hereunder.
SECTION 1.08. “Depositary
Share” shall mean a fractional interest equal to 1/100 of one
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 and
distribution, voting, redemption and liquidation rights contained
in the Certificate of Designations.
SECTION 1.09.
“Depositary’s Agent” shall mean one or more
agents appointed by the Depositary as provided, and for the
purposes specified, in Section 7.05.
SECTION 1.10. “Existing Holder
Limit” shall have the meaning set forth in Section 12.1 of
the Company’s Certificate of Incorporation.
SECTION 1.11. “Ownership
Limit” shall have the meaning set forth in Section 12.1 of
the Company’s Certificate of Incorporation, as adjusted as
permitted in Section 12.9 of such Certificate of Incorporation
pursuant to certain resolutions of the Board of Directors of the
Company adopted at a meeting of the Board of Directors on February
20, 2001.
SECTION 1.12. “Preferred
Shares” shall mean the Company’s 7.875% Series G
Cumulative Redeemable Preferred Stock, par value $.01 per share,
heretofore validly issued, fully paid and nonassessable.
SECTION 1.13. “Receipt”
shall mean a Depositary Receipt issued under this Deposit Agreement
to evidence one or more Depositary Shares, whether in definitive or
temporary form, substantially in the form set forth as Exhibit
A hereto, with appropriate insertions, modifications and
omissions, as hereinafter provided in this Deposit
Agreement.
SECTION 1.14. “record
date” shall mean the date fixed pursuant to Section
4.04.
SECTION 1.15. “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 1.16.
“Registrar” shall mean EquiServe Trust Company, N.A.,
EquiServe, Inc. 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 1.17. “Securities
Act” shall mean the Securities Act of 1933, as
amended.
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SECTION 1.18. “Transfer
Agent” shall mean EquiServe Trust Company, N.A., EquiServe,
Inc. 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 2.01. Form and
Transferability of Receipts . Definitive Receipts shall be
engraved or printed or lithographed with steel-engraved borders and
underlying tint and shall be substantially in the form set forth in
Exhibit A annexed to this Deposit Agreement, with appropriate
insertions, modifications and omissions, as hereinafter provided.
Pending the preparation of definitive Receipts, upon the written
order of the Company, delivered in compliance with Section 2.02,
the Depositary 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 to be necessary, appropriate
or desirable, 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. 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 are represented by the surrendered temporary Receipt or
Receipts, and the Depositary shall cancel such surrendered
temporary Receipts. Such exchange and cancellation shall be made at
the Company’s expense and without any charge to the holder
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,
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 Company or to comply with any
applicable law or regulation or with the rules and regulations of
any securities exchange or interdealer quotation system upon which
the Preferred Shares, the Depositary Shares or the Receipts may be
listed or quoted or to conform with any usage
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with respect thereto, or to indicate any special
limitations or restrictions to which any particular Receipts are
subject, in each case as directed by the Company.
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 2.05, 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 redemption or voting
rights or to any notice provided for in this Deposit Agreement and
for all other purposes.
SECTION 2.02. 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 92,000 Preferred Shares, and from time to
time the Company shall deliver to the Depositary such additional
certificate or certificates evidencing additional Preferred Shares
(in respect of splits, combinations or other reclassifications that
may affect the Preferred Shares), in each case 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, including the resolutions of the Board of
Directors of the Company, as certified by the Secretary or any
Assistant Secretary of the Company on the date hereof as being
complete, accurate and in effect, relating to issuance and sale of
the Preferred Shares, (ii) an opinion letter of Company’s
counsel to the Depositary relating to (A) the existence and good
standing of the Company, (B) the due authorization of the
Depositary Shares and the status of the Preferred Shares
represented by the Depositary Shares as validly issued, fully paid
and non-assessable, and (C) the effectiveness under the Securities
Act of the registration statement relating to the Depositary
Shares, and (iii) a written letter of instruction 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. In lieu of executing and delivering
Receipts for the Depositary Shares, upon written letter of
instruction from the Company, the Depositary agrees to issue and
deliver the Receipts for the Depositary Shares in book-entry form
and issue a single global security to The Depository Trust Company
(“DTC”) (pursuant to the “FAST” delivery
method or otherwise), which security will be deposited with and
registered in the name of DTC or its nominee, or such other
successor securities depository as may be appointed by the Company
if DTC discontinues to provide services as securities depository
with respect to the Depositary Shares. Beneficial interests in the
global security will be shown on, and transfers of the global
security will be made only through, records maintained by DTC and
its participants. 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 reasonably determine. The
Company hereby appoints the Depositary as the Registrar and
Transfer Agent for the 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.
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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 be accompanied by an agreement or assignment, or
other instrument reasonably satisfactory to the Depositary, that
will provide for the prompt transfer to the Depositary or its
nominee of any distribution or right to subscribe for additional
Preferred Shares or to receive other property that any person in
whose name the Preferred Shares are or have 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, subject to the terms and conditions of this Deposit
Agreement, the Depositary 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 (iii) of the first
paragraph of this Section 2.02, 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 Certificate of Designations, as such may be
amended.
The Company shall deliver to the
Depositary from time to time such quantities of Receipts as the
Depositary may request to enable the Depositary to perform its
obligations under this Deposit Agreement.
SECTION 2.03. Optional Redemption
of Preferred Shares for Cash . Whenever the Company shall elect
to redeem deposited Preferred Shares for cash in accordance with
the provisions of the Certificate of Designations, it shall (unless
otherwise agreed in writing with the Depositary) give the
Depositary not less than 30 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 Certificate of
Designations, plus the amount, if any, of accrued and unpaid
dividends thereon ending on or prior to the date fixed for
redemption. The Depositary shall mail, first-class postage prepaid,
notice of the redemption of Preferred Shares and the proposed
simultaneous redemption of the Depositary Shares representing the
Preferred Shares to be redeemed, not less than 30 nor more than 60
days prior to the date fixed for redemption of such Preferred
Shares and Depositary Shares (the “redemption date”),
to the record holders 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. No failure to give
such notice or any defect thereto or in the mailing thereof shall
affect the sufficiency of notice or validity of the proceedings for
redemption except as to a holder to whom notice was defective or
not given. A redemption notice that has been mailed in the manner
provided herein shall be conclusively presumed to have been duly
given on the date mailed whether or not the holder
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received the redemption notice. The Company
shall provide the Depositary with such notice, and each such notice
shall state: (i) the redemption date; (ii) the redemption price per
Depositary Share (as set forth below), plus the amount, if any, of
accrued and unpaid dividends thereon ending on the redemption date;
(iii) the number of deposited Preferred Shares and Depositary
Shares to be redeemed; (iv) 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; (v) the
place or places where Receipts evidencing the Depositary Shares to
be redeemed are to be surrendered for payment of the redemption
price, plus any accrued and unpaid dividends payable thereon ending
on the redemption date; and (vi) that from and after the 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 of the outstanding Depositary Shares are to be redeemed,
the Depositary Shares to be redeemed shall be redeemed pro rata or
by any other equitable method determined by the Company that will
not result in a violation of the Ownership Limit, the Existing
Holder Limit or any other ownership restriction set forth in
Section 12.2(a) of the Company’s Certificate of
Incorporation.
In the event that notice of
redemption has been made as described in the immediately preceding
paragraph and the Company shall then have paid or caused to be paid
in full to EquiServe, Inc. the redemption price (determined
pursuant to the Certificate of Designations) of the Preferred
Shares deposited with EquiServe, Inc. to be redeemed, plus any
accrued and unpaid dividends thereon ending on the redemption date,
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 redemption date (unless the Company
shall have failed to pay for 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 redemption
price, plus any accrued and unpaid dividends thereon ending on the
redemption date) shall, to the extent of such Depositary Shares,
cease and terminate. Upon surrender of the Receipts evidencing such
Depositary Shares (properly endorsed or assigned for transfer, if
the Depositary or applicable law shall so require) in accordance
with such notice, such Depositary Shares shall be redeemed at a
redemption price of $25.00 per Depositary Share, plus all accrued
and unpaid dividends, if any, thereon ending on or prior to the
redemption date. The foregoing shall be further subject to the
terms and conditions of the Certificate of Designations. In the
event of any conflict between the provisions of this Deposit
Agreement and the provisions of the Certificate of Designations,
the provisions of the Certificate of Designations will govern and
the Company will instruct the Depositary accordingly.
If fewer than all of the Depositary
Shares evidenced by a Receipt are called for redemption, EquiServe,
Inc. 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 such
holder’s Depositary Shares that are not called for
redemption.
The Company acknowledges that the
bank accounts maintained by EquiServe, Inc. in connection with the
performance of the services described herein will be in the name of
EquiServe,
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Inc. and that EquiServe, Inc. may receive
investment earnings in connection with the investment at the risk
and for the benefit of EquiServe, Inc. of funds held in those
accounts from time to time.
SECTION 2.04. Registration of
Transfers of Receipts . The Company hereby appoints the
Depositary as the Registrar and Transfer Agent for the Receipts and
the Depositary hereby accepts such appointment and, as such, shall
register on its books from time to time transfers of Receipts upon
any surrender thereof by the holder in person or by a duly
authorized attorney, agent or representative, properly endorsed or
accompanied by a properly executed instrument of transfer or
endorsement and including a guarantee of the signature thereon by a
participant in a signature guarantee medallion program approved by
the Securities Transfer Association (a “Signature
Guarantee”), together with evidence of the payment of any
transfer taxes as may be required by applicable law. Upon such
transfer and surrender of Receipts, 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 so
transferred and surrendered.
SECTION 2.05. Combinations and
Split-ups of Receipts . Upon surrender of a Receipt or Receipts
at the Corporate Office or such other office as the Depositary may
designate for the purpose of effecting a split-up or combination of
Receipts, subject to the terms and conditions of this Deposit
Agreement, the Depositary shall execute and deliver a new Receipt
or Receipts in the authorized denominations requested evidencing
the same aggregate number of Depositary Shares evidenced by the
Receipt or Receipts surrendered; provided, however, that the
Depositary shall not issue any Depositary Receipt evidencing a
fractional Depositary Share.
SECTION 2.06. 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 other office as the
Depositary may designate for such withdrawals. 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
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 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 2.04) 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 a properly
executed instrument of transfer or endorsement.
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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 with a Signature
Guarantee.
The Depositary shall deliver the
deposited Preferred Shares and EquiServe, Inc. shall deliver the
money and other property, if any, represented by the Depositary
Shares evidenced by Receipts surrendered for withdrawal at the
Corporate Office, except that, at the request, risk and expense of
the holder surrendering such Receipt or Receipts and for the
account of the holder thereof, such delivery may be made at such
other place as may be designated by such holder.
SECTION 2.07. Limitations on
Execution and Delivery, Transfer, Split-up, Combination, Surrender
and Exchange of Receipts . As a condition precedent to the
execution and delivery, transfer, split-up, combination, surrender
or exchange of any Receipt, the Depositary, any of the
Depositary’s Agents or the Company may require any or all of
the following: (i) payment to it of a sum sufficient for the
payment (or, in the event that the Depositary or the Company shall
have made such payment, the reimbursement to it) of any tax or
other governmental charge with respect thereto (including any such
tax or charge with respect to the Preferred 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), including a Signature Guarantee; 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, appropriate or
desirable 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 applicable law or of any government or governmental
body or commission, or under any provision of this Deposit
Agreement; provided, however, that the Depositary and the
Depositary’s Agents shall first notify the Company in writing
prior to making such determination.
SECTION 2.08. Lost Receipts,
etc . In case any Receipt shall be mutilated or destroyed or
lost or stolen, the Depositary in its discretion may execute and
deliver a Receipt of like form and tenor in exchange 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 and the
provision of an open penalty surety bond, in each case satisfactory
to the Depositary and the Company and holding the Depositary and
the Company harmless.
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SECTION 2.09. Cancellation and
Destruction of Surrendered Receipts . All Receipts surrendered
to the Depositary or any Depositary’s Agent shall be
cancelled by the Depositary. Except as prohibited by applicable law
or regulation, the Depositary is authorized to destroy such
Receipts so cancelled.
ARTICLE III
CERTAIN OBLIGATIONS OF HOLDERS OF
RECEIPTS AND THE COMPANY
SECTION 3.01. Filing Proofs,
Certificates and Other Information . Any person presenting
Preferred 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 3.02. Payment of Fees and
Expenses . Holders of Receipts shall be obligated to make
payments to the Depositary of certain fees and expenses, as
provided in Section 5.09, 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 3.03. 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 any subsequent deposits thereof permitted hereunder, 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
non-assessable. Such representations and warranties shall survive
the deposit of the Preferred Shares and the issuance of
Receipts.
SECTION 3.04. Representation and
Warranty as to Receipts and Depositary Shares . The Company
hereby represents and warrants that the Receipts, when issued, will
evidence legal and valid interests in the Depositary Shares and
each Depositary Share will represent a legal and valid 1/100
fractional interest in one 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 4.01. Dividends and Other
Cash Distributions . Whenever EquiServe, Inc. shall receive any
cash dividend or other cash distributions on the deposited
Preferred Shares, including any cash received upon redemption of
any Preferred Shares pursuant to Section 2.03, EquiServe, Inc.
shall, subject to Section 3.02, distribute to record holders of
Receipts on the record date fixed pursuant to Section 4.04 (if
applicable) such amounts of such sum as are 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 EquiServe, Inc. shall be required by law to withhold and shall
withhold from any cash dividend or other cash distribution in
respect of the Preferred Shares an amount on account of taxes or as
otherwise required by law, regulation or court process, the amount
made available for distribution or distributed in respect of
Depositary Shares or Receipts, as applicable, shall be reduced
accordingly. EquiServe, Inc. 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 EquiServe, Inc. (without liability for interest thereon)
and shall be added to and be treated as part of the next sum
received by EquiServe, Inc. for distribution to record holders of
Receipts then outstanding.
SECTION 4.02. Distributions Other
Than Cash . Whenever the Depositary shall receive any dividend
or other distribution other than cash on the deposited Preferred
Shares, the Depositary shall, subject to Section 3.02, distribute
to record holders of Receipts on the record date fixed pursuant to
Section 4.04 such amounts of the securities or property received by
it as are in proportion to the respective numbers of Depositary
Shares evidenced by the Receipts held by such holders, in any
manner that the Depositary and the Company may deem equitable and
practicable for accomplishing such distribution. If, in the opinion
of the Depositary after consultation with the Company, such
distribution cannot be made proportionately among such record
holders, or if for any other reason (including any requirement that
the Company or the Depositary withhold an amount on account of
taxes) the Depositary deems, after consultation with the Company,
such distribution not to be feasible, the Depositary may, with the
approval of the Company, adopt such method as it deems equitable
and practicable for the purpose of effecting such distribution,
including the sale (at public or private sale) of the securities or
property thus received, or any part thereof, at such place or
places and upon such terms as it may deem proper. The net proceeds
of any such sale shall, subject to Section 3.02, be distributed or
made available for distribution, as the case may be, by the
Depositary to record holders of Receipts as provided by Section
4.01in 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 in order to be freely
transferable.
SECTION 4.03. Subscription
Rights, Preferences or Privileges . If the Company shall at any
time offer or cause to be offered to the persons in whose names
deposited Preferred 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, the offering of such rights, preferences or
privileges shall in each such instance be communicated to
the
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Depositary and thereafter 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 (i) 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 (ii) 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 3.01 and
Section 3.02, be distributed by EquiServe, Inc. to the record
holders of Receipts entitled thereto as provided by Section 4.01 in
the case of a distribution received in cash. The Company shall not
make any distribution of such rights, preferences or privileges,
unless the Company shall have provided to the Depositary an opinion
of counsel stating that such rights, preferences or privileges have
been registered under the Securities Act or do not need to be
registered in order to be freely transferable.
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 reasonable best efforts 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 commercially reasonable
efforts to take such action or obtain such authorization, consent
or permit sufficiently in advance of the expiration of such rights,
preferences or privileges to enable such holders to exercise such
rights, preferences or privileges.
SECTION 4.04. Notice of
Distributions; Fixing of Record Date for Holders of Receipts .
Whenever any cash dividend or other cash distributions 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, if any,
fixed by the Company with respect to the Preferred Shares) for the
determination of the holders of Receipts (a) who shall be entitled
to
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receive such dividend, distribution, rights,
preferences or privileges or the net proceeds of the sale thereof,
(b) who shall be entitled to give instructions for the exercise of
voting rights at any such meeting or to receive notice of such
meeting or (c) whose Depositary Shares are to be so
redeemed.
SECTION 4.05. Voting Rights .
Upon receipt of notice of any meeting at which the holders of
deposited Preferred 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 4.04 will be entitled, subject to
any applicable provision of law, to instruct the Depositary as to
the exercise of the voting rights pertaining to the amount of
Preferred 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 any such
instructions request the voting of a fractional interest of a
deposited Preferred Share, 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. Accordingly, for
each vote that a Preferred Share is entitled to pursuant to the
Certificate of Designations, each Depositary Share is entitled to
1/100 th of such vote. The Company hereby
agrees to take all reasonable action that may be deemed necessary
by the D
