DEPOSIT AGREEMENT

 

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                                DEPOSIT AGREEMENT

 

      This DEPOSIT AGREEMENT (this "Agreement"), dated as of April 7, 2005,

among FelCor Lodging Trust Incorporated, a Maryland corporation (the "Company"),

SunTrust Bank, a Georgia banking corporation, as Depositary ("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

Agreement, for the deposit of the Company's Preferred Shares (as hereinafter

defined) with the Depositary for the purposes set forth in this Agreement and

for the issuance hereunder of the Receipts evidencing Depositary Shares (as

hereinafter defined) 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 Agreement, with appropriate insertions, modifications and

omissions, as hereinafter provided in this 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 Agreement and the

Receipts:

 

      SECTION 1.1 "Agreement" shall mean this Agreement, as the same may be

amended, modified or supplemented from time to time.

 

      SECTION 1.2 "Articles Supplementary" shall mean the articles supplementary

to the Charter filed with the Department of Assessments and Taxation of the

State of Maryland establishing the Preferred Shares as a series of preferred

shares of the Company.

 

      SECTION 1.3 "Charter" shall mean the Articles of Amendment and

Restatement, as supplemented, corrected and amended from time to time, of the

Company.

 

      SECTION 1.4 "Company" shall mean FelCor Lodging Trust Incorporated, a

Maryland corporation, and its successors.

 

      SECTION 1.5 "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 Agreement shall

 

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be administered, which at the date of this Agreement is located at 58 Edgewood

Avenue, N.E., Atlanta, Georgia 30303.

 

      SECTION 1.6 "Depositary" shall mean SunTrust Bank, a bank having its

principal office in the United States and having a combined capital and surplus

of at least $50,000,000, and any successor as depositary hereunder.

 

      SECTION 1.7 "Depositary Share" shall mean a 1/100 fractional interest 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 Agreement, all as

evidenced by the Receipts issued hereunder. Subject to the terms of this

Agreement, each owner of a Depositary Share is entitled, proportionately, to all

the rights, preferences and privileges of the Preferred Share represented by

such Depositary Share, including the dividend, voting, redemption, conversion

and liquidation rights contained in the Articles Supplementary.

 

      SECTION 1.8 "Depositary's Agent" shall mean an agent appointed by the

Depositary as provided, and for the purposes specified, in Section 8.5.

 

      SECTION 1.9 "Preferred Shares" shall mean the 8% Series C Cumulative

Redeemable Preferred Stock, par value $0.01 per share, of the Company heretofore

validly issued, fully paid and nonassessable.

 

      SECTION 1.10 "Receipt" shall mean a receipt issued hereunder to evidence

one or more Depositary Shares, whether in definitive or temporary form,

substantially in the form set forth as Exhibit A hereto.

 

      SECTION 1.11 "Record Date" shall mean the date fixed pursuant to Section

4.4.

 

      SECTION 1.12 "Record Holder" or "Holder", as applied to a Receipt, shall

mean the person in whose name a Receipt is registered on the books maintained by

the Depositary for such purpose.

 

      SECTION 1.13 "Registrar" shall mean SunTrust Bank or any bank or trust

company appointed to register ownership and transfers of Receipts or the

deposited Preferred Shares, as the case may be, as herein provided.

 

      SECTION 1.14 "Securities Act" shall mean the Securities Act of 1933, as

amended.

 

      SECTION 1.15 "Transfer Agent" shall mean SunTrust Bank 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 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 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 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 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 or 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

Receipt is 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 distributions of dividends or

other distributions, the exercise of any conversion rights or to any notice

provided for in this 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 Agreement,

the Company is delivering to the Depositary a certificate or certificates,

registered in the name of the Depositary and evidencing Preferred Shares,

properly endorsed or accompanied, if required by the Depositary, by a duly

executed instrument of transfer or endorsement, in form satisfactory to the

Depositary, together with (i) all such certifications as may be required by the

Depositary in accordance with the provisions of this 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 hereby 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

Agreement, shall execute and deliver to, or upon the order of, the person or

persons named in the written order delivered to the Depositary referred to in

the first paragraph of this Section 2.2, a Receipt or Receipts for the number of

whole Depositary Shares representing the Preferred Shares so deposited and

registered in such name or names as may be requested by such person or persons.

The Depositary shall execute and deliver such Receipt or Receipts at the

Corporate Office, except that, at the request, risk and expense of any person

requesting such delivery, such delivery may be made at such other place as may

be designated by such person.

 

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      Other than in the case of splits, combinations or other reclassifications

affecting the Preferred Shares, or in the case of dividends or other

distributions of Preferred Shares, if any, there shall be deposited hereunder

not more than the number of shares constituting the Preferred Shares as set

forth in the Articles Supplementary, as such may be amended.

 

      The Company shall deliver to the Depositary from time to time such

quantities of Receipts as the Depositary may request to enable the Depositary to

perform its obligations under this Agreement.

 

      SECTION 2.3 Optional Redemption of Preferred Shares for Cash. Whenever the

Company shall elect to redeem deposited Preferred Shares for cash in accordance

with the provisions of the Articles Supplementary, it shall (unless otherwise

agreed in writing with the Depositary) give the Depositary not less than 30 nor

more than 60 days prior written notice of the date of such proposed redemption

and of the number of such Preferred Shares held by the Depositary to be redeemed

and the applicable redemption price, as set forth in the Articles Supplementary,

including the amount, if any, of accrued and unpaid dividends to the date of

such redemption. The Depositary shall mail, first-class postage prepaid, notice

of the redemption of Preferred Shares and the proposed simultaneous redemption

of the Depositary Shares representing the Preferred Shares to be redeemed, not

less than 30 nor more than 60 days prior to the date fixed for redemption of

such Preferred Shares and Depositary Shares (the "cash redemption date"), to the

holders of record on the record date fixed for such redemption pursuant to

Section 4.4 hereof of the Receipts evidencing the Depositary Shares to be so

redeemed, at the addresses of such holders as the same appear on the records of

the Depositary; but neither failure to mail any such notice to one or more such

holders nor any defect in any such notice shall affect the sufficiency of the

proceedings for redemption as to other holders. The Company shall provide the

Depositary with such notice, and each such notice shall state: the cash

redemption date; the cash redemption price; the number of deposited Preferred

Shares and Depositary Shares to be redeemed; if fewer than all the Depositary

Shares held by any holder are to be redeemed, the number of such Depositary

Shares held by such holder to be so redeemed; the place or places where Receipts

evidencing Depositary Shares to be redeemed are to be surrendered for payment of

the cash redemption price; and that from and after the cash redemption date

dividends in respect of the Preferred Shares represented by the Depositary

Shares to be redeemed will cease to accrue. If fewer than all the outstanding

Depositary Shares are to be redeemed, the Depositary Shares to be redeemed shall

be selected pro rata (as nearly as may be practicable without creating

fractional Depositary Shares) or by any other equitable method determined by the

Company. The Company may also cause notice of redemption to be published in the

Wall Street Journal or New York Times or, if neither is being published, in any

other newspaper of national circulation, prior to the cash redemption date.

 

         In the event that notice of redemption has been made as described in

the immediately preceding paragraph and the Company shall then have paid in full

to the Depositary the cash redemption price (determined pursuant to the Articles

Supplementary) of the Preferred Shares deposited with the Depositary to be

redeemed (including any accrued and unpaid dividends to the date of redemption),

the Depositary shall redeem the number of Depositary Shares

 

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representing such Preferred Shares so called for redemption by the Company and

from and after the cash redemption date (unless the Company shall have failed to

redeem the Preferred Shares to be redeemed by it as set forth in the Company's

notice provided for in the preceding paragraph), all dividends in respect of the

Preferred Shares called for redemption shall cease to accrue, the Depositary

Shares called for redemption shall be deemed no longer to be outstanding and all

rights of the holders of Receipts evidencing such Depositary Shares (except the

right to receive the cash redemption price and any money or other property to

which holders of such Receipts were entitled upon such redemption) shall, to the

extent of such Depositary Shares, cease and terminate. Upon surrender in

accordance with said notice of the Receipts evidencing such Depositary Shares

(properly endorsed or assigned for transfer, if the Depositary shall so

require), such Depositary Shares shall be redeemed at a cash redemption price of

$25.00 per Depositary Share plus any other money and other property payable in

respect of such Preferred Shares. The foregoing shall be further subject to the

terms and conditions of the Articles Supplementary.

 

      If fewer than all of the Depositary Shares evidenced by a Receipt are

called for redemption, the Depositary will deliver to the holder of such Receipt

upon its surrender to the Depositary, together with payment of the cash

redemption price for and all other amounts payable in respect of the Depositary

Shares called for redemption, a new Receipt evidencing the Depositary Shares

evidenced by such prior Receipt and not called for redemption.

 

      SECTION 2.4 Registration of Transfers of Receipts. The Company hereby

appoints the Depositary as the Registrar and Transfer Agent for the Receipts and

the Depositary hereby accepts such appointment and, as such, shall register on

its books from time to time transfers of Receipts upon any surrender thereof by

the holder in person or by a duly authorized attorney, properly endorsed or

accompanied by a properly executed instrument of transfer or endorsement,

together with evidence of the payment of any transfer taxes as may be required

by law. Upon such surrender, the Depositary shall execute a new Receipt or

Receipts and deliver the same to or upon the order of the person entitled

thereto evidencing the same aggregate number of Depositary Shares evidenced by

the Receipt or Receipts surrendered.

 

      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 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) that have

previously been called for redemption. After such surrender, without

unreasonable delay, the Depositary shall deliver to

 

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such holder, or to the person or persons designated by such holder as

hereinafter provided, the number of whole or fractional shares of such Preferred

Shares and all such money and other property, if any, represented by the

Depositary Shares evidenced by the Receipt or Receipts so surrendered for

withdrawal, but holders of such whole or fractional Preferred Shares will not

thereafter be entitled to deposit such Preferred Shares hereunder or to receive

Depositary Shares therefor. If the Receipt or Receipts delivered by the holder

to the Depositary in connection with such withdrawal shall evidence a number of

Depositary Shares in excess of the number of Depositary Shares representing the

number of whole or fractional shares of deposited Preferred Shares to be

withdrawn, the Depositary shall at the same time, in addition to such number of

whole or fractional Preferred Shares and such money and other property, if any,

to be withdrawn, deliver to such holder, or (subject to Section 2.4) upon his

order, a new Receipt or Receipts evidencing such excess number of Depositary

Shares. Delivery of such Preferred Shares and such money and other property

being withdrawn may be made by the delivery of such certificates, documents of

title and other instruments as the Depositary may deem appropriate, which, if

required by the Depositary, shall be properly endorsed or accompanied by proper

instruments of transfer.

 

      If the deposited Preferred Shares and the money and other property being

withdrawn are to be delivered to a person or persons other than the record

holder of the Receipt or Receipts being surrendered for withdrawal of Preferred

Shares, such holder shall execute and deliver to the Depositary a written order

so directing the Depositary and the Depositary may require that the Receipt or

Receipts surrendered by such holder for withdrawal of such Preferred Shares be

properly endorsed in blank or accompanied by a properly executed instrument of

transfer or endorsement in blank.

 

      The Depositary shall deliver the deposited Preferred Shares and the money

and other property, if any, represented by the Depositary Shares evidenced by

Receipts surrendered for withdrawal at the Corporate Office, except that, at the

request, risk and expense of the holder 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 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.

 

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      The deposit of Preferred Shares may be refused, the delivery of Receipts

against Preferred Shares may be suspended, the transfer of Receipts may be

refused, and the transfer, split-up, combination, surrender, exchange or

redemption of outstanding Receipts may be suspended (i) during any period when

the register of shareholders of the Company is closed or (ii) if any such action

is deemed reasonably necessary or advisable by the Depositary, any of the

Depositary's Agents or the Company at any time or from time to time because of

any requirement of law or of any government or governmental body or commission,

or under the Charter or under any provision of this Agreement.

 

      SECTION 2.8 Lost Receipts, Etc. In case any Receipt shall be mutilated or

destroyed or lost or stolen, the Depositary, in its discretion, may execute and

deliver a Receipt of like form and tenor in exchange and substitution for such

mutilated Receipt or in lieu of and in substitution for such destroyed, lost or

stolen Receipt, provided that the holder thereof provides the Depositary with

(i) evidence reasonably satisfactory to the Depositary of such destruction, loss

or theft of such Receipt, of the authenticity thereof and of his ownership

thereof and (ii) reasonable indemnification satisfactory to the Depositary and

the Company.

 

      SECTION 2.9 Cancellation and Destruction of Surrendered Receipts. All

Receipts surrendered to the Depositary or any Depositary's Agent shall be

canceled by the Depositary. Except as prohibited by applicable law or

regulation, the Depositary is authorized to destroy such Receipts so cancelled.

 

                                   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 6.7, 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

 

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means to notify such holder a reasonable number of days prior to such sale). Any

dividend or other distribution so withheld and the proceeds of any such sale may

be applied to any payment of such fees or expenses, the holder of such Receipt

remaining liable for any deficiency.

 

      SECTION 3.3 Representations and Warranties as to Preferred Shares. In the

case of the initial deposit of the Preferred Shares hereunder, the Company and,

in the case of subsequent deposits thereof, each person so depositing Preferred

Shares under this Agreement shall be deemed thereby to represent and warrant

that such Preferred Shares and each certificate therefor are valid and that the

person making such deposit is duly authorized to do so. The Company hereby

further represents and warrants that such Preferred Shares, when issued, will be

validly issued, fully paid and nonassessable. Such representations and

warranties shall survive the deposit of the Preferred Shares and the issuance of

Receipts.

 

      SECTION 3.4 Representation and Warranty as to Receipts and Depositary

Shares. The Company hereby represents and warrants that the Receipts, when

issued, will evidence legal and valid interests in the Depositary Shares and

each Depositary Share will represent a legal and valid 1/100 fractional interest

in a deposited Preferred Share. Such 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

 

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Receipts held by such holders, in any manner that the Depositary and the Company

may deem equitable and practicable for accomplishing such distribution. If, in

the opinion of the Depositary after consultation with the Company, such

distribution cannot be made proportionately among such record holders, or if for

any other reason (including any requirement that the Company or the Depositary

withhold an amount on account of taxes), the Depositary deems, after

consultation with the Company, such distribution not to be feasible, the

Depositary may, with the approval of the Company, adopt such method as it deems

equitable and practicable for the purpose of effecting such distribution,

including the sale (at public or private sale) of the securities or property

thus received or any part thereof, at such place or places and upon such terms

as it may deem proper. The net proceeds of any such sale shall, subject to

Section 3.2, be distributed or made available for distribution, as the case may

be, by the Depositary to record holders of Receipts as provided by Section 4.1

in the case of a distribution received in cash. The Company shall not make any

distribution of such securities or property to the holders of Receipts unless

the Company shall have provided to the Depositary an opinion of counsel stating

that such securities or property have been registered under the Securities Act

or do not need to be registered.

 

      SECTION 4.3 Subscription Rights, Preferences or Privileges. If the Company

shall at any time offer, or cause to be offered, to the persons in whose names

deposited Preferred Shares are registered on the books of the Company any

rights, preferences or privileges to subscribe for or to purchase any securities

or any rights, preferences or privileges of any other nature, such rights,

preferences or privileges shall in each such instance be made available by the

Depositary to the record holders of Receipts in such manner as the Company shall

instruct (including by the issue to such record holders of warrants representing

such rights, preferences or privileges); provided, however, that (a) if at the

time of issue or offer of any such rights, preferences or privileges the Company

determines upon advice of its legal counsel that it is not lawful or feasible to

make such rights, preferences or privileges available to the holders of Receipts

(by the issue of warrants or otherwise) or (b) if and to the extent instructed

by holders of Receipts who do not desire to exercise such rights, preferences or

privileges, the Depositary shall then, if so instructed by the Company, and if

applicable laws or the terms of such rights, preferences or privileges so

permit, sell such rights, preferences or privileges of such holders at public or

private sale, at such place or places and upon such terms as it may deem proper.

The net proceeds of any such sale shall, subject to Section 3.1 and Section 3.2,

be distributed by the Depositary to the record holders of Receipts entitled

thereto as provided by Section 4.1 in the case of a distribution received in

cash. The Company shall not make any distribution of such rights, preferences or

privileges, unless the Company shall have provided to the Depositary an opinion

of counsel stating that such rights, preferences or privileges have been

registered under the Securities Act or applicable state securities laws or do

not need to be registered.

 

      If registration under the Securities Act or applicable state securities

laws of the securities to which any rights, preferences or privileges relate is

required in order for holders of Receipts to be offered or sold the securities

to which such rights, preferences or privileges relate, the Company agrees that

it will promptly file a registration statement pursuant to the Securities Act or

applicable state securities laws with respect to such rights, preferences or

privileges and securities and use its best efforts and take all steps available

to it to cause such registration statement to become effective sufficiently in

advance of the expiration of such rights, preferences

 

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or privileges to enable such holders to exercise such rights, preferences or

privileges. In no event shall the Depositary make available to the holders of

Receipts any right, preference or privilege to subscribe for or to purchase any

securities unless and until such a registration statement shall have become

effective or unless the offering and sale of such securities to such holders are

exempt from registration under the provisions of the Securities Act or

applicable state securities laws and the Company shall have provided to the

Depositary an opinion of counsel to such effect.

 

      If any other action under the law of any jurisdiction or any governmental

or administrative authorization, consent or permit is required in order for such

rights, preferences or privileges to be made available to holders of Receipts,

the Company agrees to use its best efforts to take such action or obtain such

authorization, consent or permit sufficiently in advance of the expiration of

such rights, preferences or privileges to enable such holders to exercise such

rights, preferences or privileges.

 

      SECTION 4.4 Notice of Dividends; Fixing of Record Date for Holders of

Receipts. Whenever any cash dividend or other cash distribution shall become

payable, any distribution other than cash shall be made, or any rights,

preferences or privileges shall at any time be offered, with respect to the

deposited Preferred Shares, or whenever the Depositary shall receive notice of

(i) any meeting at which holders of such Preferred Shares are entitled to vote

or of which holders of such Preferred Shares are entitled to notice or (ii) any

election on the part of the Company to redeem any such Preferred Shares, the

Depositary shall in each such instance fix a record date (which shall be the

same date as the record date fixed by the Company with respect to the Preferred

Shares) for the determination of the holders of Receipts who shall be entitled

to receive such dividend, distribution, rights, preferences or privileges or the

net proceeds of the sale thereof, to give instructions for the exercise of

voting rights at any such meeting or to receive notice of such meeting or whose

Depositary Shares are to be so redeemed.

 

         SECTION 4.5 Voting Rights. Upon receipt of notice of any meeting at

which the holders of deposited Preferred Shares are entitled to vote, the

Depositary shall, as soon as practicable thereafter, mail to the record holders

of Receipts a notice, which shall be provided by the Company and which shall

contain (i) such information as is contained in such notice of meeting, (ii) a

statement that the holders of Receipts at the close of business on a specified

record date fixed pursuant to Section 4.4 will be entitled, subject to any

applicable provision of law, to instruct the Depositary as to the exercise of

the voting rights pertaining to the amount of Preferred Shares represented by

their respective Depositary Shares and (iii) a brief statement as to the manner

in which such instructions may be given. Upon the written request of a holder of

a Receipt on such record date, the Depositary shall vote, or cause to be voted,

the amount of Preferred Shares represented by the Depositary Shares evidenced by

such Receipt in accordance with the instructions set forth in such request. To

the extent such instructions request the voting of a fractional interest of a

share of deposited Preferred Shares, the Depositary shall aggregate such

interest with all other fractional interests resulting from requests with the

same voting instructions and shall vote the number of whole votes resulting from

such aggregation in accordance with the instructions received in such requests.

Each Preferred Share is entitled to 100 votes and, accordingly, each Depositary

Share is entitled to one vote. The Company hereby agrees to take all reasonable

action that may be deemed necessary by the Depositary in order to

 

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enable the Depositary to vote such Preferred Shares or cause such Preferred

Shares to be voted. In the absence of specific instructions from the holder of a

Receipt, the Depositary will abstain from voting to the extent of the Preferred

Shares represented by the Depositary Shares evidenced by such Receipt. The

Depositary shall not be required to exercise discretion in voting any Preferred

Shares represented by the Depositary Shares evidenced by such Receipt.

 

      SECTION 4.6 Changes Affecting Preferred Shares and Reclassifications,

Recapitalization, Etc. Upon any change in par or stated value, split-up,

combination or any other reclassification of Preferred Shares, or upon any

recapitalization, reorganization, merger, amalgamation or consolidation

affecting the Company or to which it is a party or sale of all or substantially

all of the Company's assets, the Depositary shall, upon the instructions of the

Company: (i) make such adjustments in (a) the fraction of an interest

represented by one Depositary Share in one Preferred Share and (b) the ratio of

the redemption price per Depositary Share to the redemption price of a Preferred

Share, in each case as may be required by, or as is consistent with, the

provisions of the Articles Supplementary to fully reflect the effects of such

change in liquidation value, split-up, combination or other reclassification of

Shares, or of such recapitalization, reorganization, merger, consolidation or

sale and (ii) treat any shares or other securities or property (including cash)

that shall be received by the Depositary in exchange for or upon conversion of

or in respect of the Preferred Shares as new deposited property under this

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 of 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