EXECUTION COPY
EXECUTION COPY
FIRST INDUSTRIAL REALTY TRUST, INC.,
EQUISERVE INC. AND EQUISERVE TRUST COMPANY, N.A.
AS DEPOSITARY,
AND
THE HOLDERS FROM TIME TO TIME OF
THE DEPOSITARY RECEIPTS DESCRIBED HEREIN
RELATING TO SERIES F FLEXIBLE CUMULATIVE REDEEMABLE PREFERRED
STOCK
DEPOSIT AGREEMENT
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Dated as of May 27, 2004
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TABLE OF CONTENTS
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ARTICLE I
DEFINITIONS
ARTICLE II
FORM OF RECEIPTS, DEPOSIT OF STOCK, EXECUTION AND DELIVERY,
TRANSFER, SURRENDER AND REDEMPTION OF RECEIPTS
SECTION 2.1. Form and Transfer of
Receipts...................................2
SECTION 2.2. Deposit of Stock; Execution and
Delivery of Receipts in
Respect Thereof...............................................4
SECTION 2.3. Registration of Transfer of
Receipts............................5
SECTION 2.4. Split-ups and Combinations of
Receipts; Surrender of Receipts
and Withdrawal of Stock.......................................5
SECTION 2.5. Limitations on Execution and
Delivery, Transfer, Surrender
and Exchange of Receipts......................................6
SECTION 2.6. Lost Receipts,
etc..............................................7
SECTION 2.7. Cancellation and Destruction of
Surrendered Receipts............7
SECTION 2.8. Redemption of
Stock.............................................7
SECTION 2.9. Stock Constituting Excess
Stock.................................9
ARTICLE III
CERTAIN OBLIGATIONS OF HOLDERS OF RECEIPTS AND THE COMPANY
SECTION 3.1. Filing Proofs, Certificates and
Other Information...............9
SECTION 3.2. Payment of Taxes or Other
Governmental Charges..................9
SECTION 3.3. Warranty as to
Stock...........................................10
ARTICLE IV
THE DEPOSITED SECURITIES; NOTICES
SECTION 4.1. Cash
Distributions.............................................10
SECTION 4.2. Distributions Other than Cash,
Rights, Preferences or
Privileges...................................................10
SECTION 4.3. Subscription Rights, Preferences
or Privileges.................11
SECTION 4.4. Notice of Dividends, etc.; Fixing
Record Date for Holders
of Receipts..................................................12
SECTION 4.5. Voting
Rights..................................................12
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SECTION 4.6. Changes Affecting Deposited
Securities and Reclassifications,
Recapitalizations, etc.......................................13
SECTION 4.7. Delivery of
Reports............................................13
SECTION 4.8. List of Receipt
Holders........................................13
ARTICLE V
THE DEPOSITARY, THE DEPOSITARY'S
AGENTS, THE REGISTRAR AND THE COMPANY
SECTION 5.1. Maintenance of Offices, Agencies
and Transfer Books by the
Depositary; Registrar........................................14
SECTION 5.2. Prevention of or Delay in
Performance by the Depositary, the
Depositary's Agents, the Registrar or the Company ...........15
SECTION 5.3. Obligation of the Depositary, the
Depositary's Agents, the
Registrar and the Company....................................15
SECTION 5.4. Resignation and Removal of the
Depositary; Appointment of
Successor Depositary.........................................17
SECTION 5.5. Corporate Notices and
Reports..................................18
SECTION 5.6. Indemnification by the
Company.................................18
SECTION 5.7. Charges and
Expenses...........................................18
SECTION 5.8. Tax
Compliance.................................................18
ARTICLE VI
AMENDMENT AND TERMINATION
SECTION 6.1.
Amendment......................................................19
SECTION 6.2.
Termination....................................................19
ARTICLE VII
MISCELLANEOUS
SECTION 7.1.
Counterparts...................................................20
SECTION 7.2. Exclusive Benefit of
Parties...................................20
SECTION 7.3. Invalidity of
Provisions.......................................20
SECTION 7.4.
Notices........................................................20
SECTION 7.5. Appointment of
Registrar.......................................21
SECTION 7.6. Holders of Receipts Are
Parties................................21
SECTION 7.7. Governing
Law..................................................21
SECTION 7.8. Inspection of Deposit
Agreement................................21
SECTION 7.9.
Headings.......................................................22
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DEPOSIT
AGREEMENT, dated as of May 27, 2004, among FIRST INDUSTRIAL
REALTY
TRUST, INC., a Maryland corporation (the
"Company"), EquiServe Trust Company,
N.A., a national banking association and
EquiServe, Inc., a Delaware
corporation, (collectively EquiServe Trust
Company, N.A. and EquiServe, Inc.
shall be referenced herein as "Depositary"
or individually as the "Trust
Company" and "EQI", respectively), and the
holders from time to time of the
Receipts described herein.
WHEREAS, it is
desired to provide, as hereinafter set forth in this Deposit
Agreement, for the deposit of shares of
Series F Flexible Cumulative Redeemable
Preferred Stock of the Company with the
Depositary for the purposes set forth in
this Deposit Agreement and for the issuance
hereunder of Receipts evidencing
Depositary Shares in respect of the Stock
so deposited; and
WHEREAS, the
Receipts are to be substantially in the form of Exhibit A
annexed hereto, with appropriate
insertions, modifications and omissions, as
hereinafter provided in this Deposit
Agreement;
NOW, THEREFORE,
in consideration of the promises contained herein, the
receipt and sufficiency of which is hereby
acknowledged, the parties hereto
hereby agree as follows:
ARTICLE I
DEFINITIONS
The following
definitions shall, for all purposes, unless otherwise
indicated, apply to the respective terms
used in this Deposit Agreement:
"Articles
Supplementary" shall mean the Articles Supplementary filed with
the Secretary of State of the State of
Maryland establishing the Stock as a
series of preferred stock of the
Company.
"Deposit
Agreement" shall mean this Deposit Agreement, as amended or
supplemented from time to time.
"Depositary"
shall mean EquiServe Inc. and its fully owned subsidiary,
EquiServe Trust Company, N.A. and any
successor as Depositary hereunder.
"Depositary
Shares" shall mean Depositary Shares, each representing 1/100
of a share of Stock and evidenced by a
Receipt.
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"Depositary's
Agent" shall mean one or more agents appointed by the
Depositary pursuant to Section 5.1 hereof
and shall include the Registrar if
such Registrar is not the Depositary.
"Depositary's
Office" shall mean any office of the Depositary at which at
any particular time its depositary receipt
business shall be administered.
"Excess Stock"
shall mean Excess Stock as defined in Section 7.4 of the
Company's Amended and Restated Articles of
Incorporation.
"Receipt" shall
mean one of the Depositary Receipts, substantially in the
form set forth as Exhibit A hereto, issued
hereunder, whether in definitive or
temporary form and evidencing the number of
Depositary Shares held of record by
the record holder of such Depositary
Shares. If the context so requires, the
term "Receipt" shall be deemed to include
the DTC Receipt (as defined in Section
2.1 hereof).
"record holder"
or "holder" as applied to a Receipt shall mean the person
in whose name a Receipt is registered on
the books of the Depositary maintained
for such purpose.
"Registrar"
shall mean the Depositary or such other bank or trust company
which shall be appointed to register
ownership and transfers of Receipts as
herein provided.-
"Securities Act"
shall mean the Securities Act of 1933, as amended.
"Stock" shall
mean shares of the Company's Series F Flexible Cumulative
Redeemable Preferred Stock, $.0l par value
per share.
ARTICLE II
FORM OF RECEIPTS, DEPOSIT OF STOCK, EXECUTION AND DELIVERY,
TRANSFER, SURRENDER AND REDEMPTION OF RECEIPTS
SECTION 2.1.
Form and Transfer of Receipts. The Company and the Depositary
shall make application to The Depository
Trust Company ("DTC") for acceptance of
all or a portion of the Receipts for its
book-entry settlement system. The
Company hereby appoints the Depositary
acting through any authorized officer
thereof as its attorney-in-fact, with full
power to delegate, for purposes of
executing any agreements, certifications or
other instruments or documents
necessary or desirable in order to effect
the acceptance of such Receipts for
DTC eligibility. So long as the Receipts
are eligible for book-entry settlement
with DTC, unless otherwise required by law,
all Depositary Shares shall be
represented by a single receipt (the "DTC
Receipt"), which shall be deposited
with DTC (or its designee) evidencing all
such Depositary Shares and registered
in the name of the nominee of DTC
(initially expected to be Cede & Co.).
EquiServe Trust Company, N.A. or such other
entity as is agreed to by DTC may
hold the DTC
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Receipt as custodian for DTC. Ownership of
beneficial interests in the DTC
Receipt shall be shown on, and the transfer
of such ownership shall be effected
through, records maintained by (i) DTC or
its nominee for such DTC Receipt or
(ii) institutions that have accounts with
DTC.
If DTC
subsequently ceases to make its book-entry settlement system
available for the Receipts, the Company may
instruct the Depositary regarding
making other arrangements for book-entry
settlement. In the event that the
Receipts are not eligible for, or it is no
longer desirable to have the Receipts
available in, book-entry form, the
Depositary shall provide written instructions
to DTC to deliver to the Depositary for
cancellation the DTC Receipt, and the
Company shall instruct the Depositary to
deliver to the beneficial owners of the
Depositary Shares previously evidenced by
the DTC definitive Receipts in
physical form evidencing such Depositary
Shares. Such definitive receipts shall
be in substantially the form annexed hereto
as Annex A, with appropriate
insertions, modifications and omissions, as
hereafter provided.
The beneficial
owners of Depositary Shares shall, except as stated above
with respect to Depositary Shares in
book-entry form represented by the DTC
Receipt, be entitled to receive Receipts in
physical, certificated form as
herein provided.
The definitive
Receipts shall be engraved or printed or lithographed on
steel-engraved borders, with appropriate
insertions, modifications and
omissions, as hereinafter provided, if and
to the extent required by any
securities exchange on which the Receipts
are listed. The DTC Receipt shall bear
such legend or legends as may be required
by DTC in order for it to accept the
Depository Shares for its book-entry
settlement system. Pending the preparation
of definitive Receipts or if definitive
Receipts are not required by any
securities exchange on which the Receipts
are listed, the Depositary, upon the
written order of the Company, delivered in
compliance with Section 2.2 hereof,
shall execute and deliver temporary
Receipts which are 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
Depositary's Office or at such other place
or places as the Depositary shall
determine, 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 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 Stock, as definitive
Receipts.
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Receipts shall
be executed by the Depositary by the manual and/or facsimile
signature of a duly authorized officer of
the Depositary. 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 in accordance with the
foregoing sentence. The Depositary shall
record on its books each Receipt so
signed and delivered as hereinafter
provided.
Receipts shall
be in denominations of any number of whole Depositary
Shares. 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.
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 required to comply with
any applicable law or any regulation
thereunder or with the rules and
regulations of any securities exchange upon
which the Stock, 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, all as
directed by the Company.
Title to
Depositary Shares evidenced by a Receipt which is properly
endorsed or accompanied by a properly
executed instrument of transfer shall be
transferable by delivery with the same
effect as in the case of a negotiable
instrument; provided, however, that until
transfer of a Receipt shall be
registered on the books of the Depositary
as provided in Section 2.3, 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 or to any notice provided for
in this Deposit Agreement and for
all other purposes.
SECTION 2.2.
Deposit of Stock; Execution and Delivery of Receipts in
Respect Thereof. Subject to the terms and
conditions of this Deposit Agreement,
the Company may from time to time deposit
shares of Stock under this Deposit
Agreement by delivery to the Depositary of
a certificate or certificates for the
Stock to be deposited, 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 thereof as being as being complete,
accurate and in effect, relating to
issuance and sale of the Preferred Stock,
(ii) a letter of counsel to the
Company authorizing reliance on such
counsel's opinions delivered to the
underwriters named therein relating to (A)
the existence and good standing of
the Company, (B) the due authorization of
the Depositary Shares and the status
of the Depositary Shares as validly issued,
fully paid and non-assessable, and
(C) the effectiveness of any registration
statement under the Securities Act
relat-
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ing to the Depositary Shares, and (iii) a
written letter of instruction of the
Company or such holder, as the case may be,
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
number of Depositary Shares
representing such deposited Stock.
Deposited Stock
shall be held by the Depositary at the Depositary's Office
or at such other place or places as the
Depositary shall determine.
Upon receipt by
the Depositary of a certificate or certificates for Stock
deposited in accordance with the provisions
of this Section, together with the
other documents required as above
specified, and upon recordation of the Stock
on the books of the Company in the name of
the Depositary or its nominee, 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 whole number of Depositary
Shares representing, in the aggregate, the
Stock 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 Depositary's Office or
such other offices, if any, as the
Depositary may designate. Delivery at other
offices shall be at the risk and expense of
the person requesting such delivery.
SECTION 2.3.
Registration of Transfer of Receipts. Subject to the terms and
conditions of applicable law and of this
Deposit Agreement, the Depositary 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 including a
guarantee of the signature thereon by a
participant in a signature guarantee
medallion program approved by the
Securities Transfer Association ("Signature
Guarantee"). Thereupon, the
Depositary shall execute a new Receipt or
Receipts evidencing the same aggregate
number of Depositary Shares as those
evidenced by the Receipt or Receipts
surrendered and deliver such new Receipt or
Receipts to or upon the order of the
person entitled thereto.
SECTION 2.4.
Split-ups and Combinations of Receipts; Surrender of Receipts
and Withdrawal of Stock. Upon surrender of
a Receipt or Receipts at the
Depositary's Office or at such other
offices as it may designate for the purpose
of effecting a split-up or combination of
such Receipt or Receipts, and subject
to the terms and conditions of this Deposit
Agreement, the Depositary shall
execute and deliver a new Receipt or
Receipts in the authorized denomination or
denominations requested, evidencing the
aggregate number of Depositary Shares
evidenced by the Receipt or Receipts
surrendered; provided, however, that the
Depositary shall not issue any Receipt
evidencing a fractional Depositary Share.
Any holder of a
Receipt or Receipts representing any number of whole shares
of Stock may (unless the related Depositary
Shares have previously been called
for redemption) withdraw the Stock and all
money and other property, if any,
represented thereby by surrender-
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ing such Receipt or Receipts at the
Depositary's Office or at such other offices
as the Depositary may designate for such
withdrawals and paying any unpaid
amount due the Depositary. If such holder's
Depositary Shares are being held by
DTC or its nominee pursuant to Section 2.1
hereof, such holder shall request
withdrawal from the book-entry system of
Receipts representing any number of
whole shares. Thereafter, 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
shares of Stock and all money and other
property, if any, represented by the
Receipt or Receipts so surrendered for
withdrawal, but holders of such whole
shares of Stock will not thereafter be
entitled to deposit such Stock hereunder or
to receive Depositary Shares
therefor. If a Receipt 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 shares of Stock
to be so withdrawn, the Depositary shall at
the same time, in addition to such
number of whole shares of Stock and such
money and other property, if any, to be
so withdrawn, deliver to such holder, or
upon his order, a new Receipt
evidencing such excess number of Depositary
Shares; provided, however, that the
Depositary shall not issue any Receipt
evidencing a fractional Depositary Share.
Delivery of the
Stock and 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 Stock 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 Stock, 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 shares of
Stock be properly endorsed in blank or
accompanied by a properly executed
instrument of transfer in blank.
Delivery of the
Stock and the money and other property, if any, represented
by Receipts surrendered for withdrawal
shall be made by the Depositary at the
Depositary's 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 2.5.
Limitations on Execution and Delivery, Transfer, Surrender and
Exchange of Receipts. As a condition
precedent to the execution and delivery,
registration of transfer, split-up,
combination, surrender or exchange of any
Receipt, the Depositary, any of the
Depositary's Agents or the Company may
require 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 charges or expenses payable by
the holder of a Receipt pursuant to
Sections 3.2 and 5.7 hereof, may require
the production of evidence satisfactory
to it as to the
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identity and genuineness of any signature
including a Signature Guarantee, and
may also require compliance with such
regulations, if any, as the Depositary or
the Company may establish consistent with
the provisions of this Deposit
Agreement.
The deposit of
Stock may be refused, the delivery of Receipts against Stock
may be suspended, the registration of
transfer of Receipts may be refused and
the registration of transfer, surrender or
exchange of outstanding Receipts may
be suspended (i) during any period when the
register of stockholders of the
Company is closed, or (ii) if any such
action is deemed necessary or advisable
by the Depositary, any of the Depositary's
Agents or the Company at any time or
from time to time because of any
requirement of law or of any government or
governmental body or commission or under
any provision of this Deposit
Agreement.
SECTION 2.6.
Lost Receipts, etc. In case any Receipt shall be mutilated,
destroyed, lost or stolen, the Depositary
in its reasonable 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,
upon (i) the filing by the holder
thereof with the Depositary of evidence
reasonably satisfactory to the
Depositary of such destruction or loss or
theft of such Receipt, of the
authenticity thereof and of his or her
ownership thereof, (ii) the furnishing of
the Depositary with reasonable
indemnification and the provision of an open
penalty surety bond satisfactory to the
Depositary and holding it and the
Company harmless, and (iii) the payment of
any reasonable expense (including
reasonable fees, charges and expenses of
the Depositary) in connection with such
execution and delivery.
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
Company is authorized to destroy all
Receipts so cancelled.
SECTION 2.7.
Redemption of Stock. Whenever the Company shall be permitted
and shall elect to redeem shares of Stock
in accordance with the provisions of
the Company's Articles of Incorporation or
Articles Supplementary, it shall
(unless otherwise agreed to in writing with
the Depositary) give or cause to be
given to the Depositary not less than 45
days notice of the date of such
proposed redemption or exchange of Stock
and of the number of such shares held
by the Depositary to be so redeemed and the
applicable redemption price, as set
forth in the Articles Supplementary, which
notice shall be accompanied by a
certificate from the Company stating that
such redemption of Stock is in
accordance with the provisions of the
Company's Articles of Incorporation or
Articles Supplementary. On the date of such
redemption, provided that the
Company shall then have paid or caused to
be paid in full to the Depositary the
redemption price of the Stock to be
redeemed, plus an amount equal to any
accrued and unpaid dividends thereon to the
date fixed for redemption, in
accordance with the provisions of the
Articles Supplementary, the Depositary
shall redeem the number of Depositary
Shares representing such Stock. The
Depositary shall mail notice of
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the Company's redemption of Stock and the
proposed simultaneous redemption of
the number of Depositary Shares
representing the Stock to be redeemed by
first-class mail, postage prepaid, not less
than 30 and not more than 60 days
prior to the date fixed for redemption of
such Stock and Depositary Shares (the
"Redemption Date") to the record holders of
the Receipts evidencing the
Depositary Shares to be so redeemed, at the
address of such holders as they
appear on the records of the Depositary;
but neither failure to mail any such
notice of redemption of Depositary Shares
to one or more such holders nor any
defect in any notice of redemption of
Depositary Shares to one or more such
holders shall affect the sufficiency of the
proceedings for redemption as to the
other holders. The Company will provide the
Depositary with the information
necessary for the Depositary to prepare
such notice and each such notice shall
state: (i) the Redemption Date; (ii) the
number of Depositary Shares to be
redeemed and, if fewer than all the
Depositary Shares held by any such holder
are to be redeemed, the number of such
Depositary Shares held by such holder to
be so redeemed; (iii) the redemption price
per Depositary Share; (iv) the place
or places where Receipts evidencing
Depositary Shares are to be surrendered for
payment of the redemption price; and (v)
that dividends in respect of the Stock
represented by the Depositary Shares to be
redeemed will cease to accrue on such
Redemption Date and will bear no interest.
In case fewer than all the
outstanding Depositary Shares are to be
redeemed, the Depositary Shares to be so
redeemed shall be determined pro rata or by
lot in a manner determined by the
Board of Directors.
Notice having
been mailed by the Depositary as aforesaid, from and after
the Redemption Date (unless the Company
shall have failed to provide the funds
necessary to redeem the Stock evidenced by
the Depositary Shares called for
redemption) (i) dividends on the shares of
Stock so called for redemption shall
cease to accrue from and after such date,
(ii) the Depositary Shares being
redeemed from such proceeds shall be deemed
no longer to be outstanding, (iii)
all rights of the holders of Receipts
evidencing such Depositary Shares (except
the right to receive the redemption price)
shall, to the extent of such
Depositary Shares, cease and terminate and
(iv) upon surrender in accordance
with such redemption; notice of the
Receipts evidencing any such Depositary
Shares called for redemption (properly
endorsed or assigned for transfer, if the
Depositary or applicable law shall so
require), such Depositary Shares shall be
redeemed by the Depositary at a redemption
price per Depositary Share equal to
the same fraction of the redemption price
per share paid with respect to the
shares of Stock as the fraction each
Depositary Share represents of a share of
Stock plus the same fraction of all money
and other property, if any,
represented by such Depositary Shares,
including all amounts paid by the Company
in respect of dividends which on the
Redemption Date have accumulated on the
shares of Stock to be so redeemed and have
not theretofore been paid. Any funds
deposited by the Company with the
Depositary for any Depositary Shares that the
holders thereof fail to redeem will, upon
the written request of the Company, be
returned to the Company after a period of
five years from the date such funds
are so deposited.
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
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Depositary, together with the redemption
payment, a new Receipt evidencing the
Depositary Shares evidenced by such prior
Receipt and not called for redemption;
provided, however, that the Depositary
shall not issue any Receipt evidencing a
fractional Depositary Share.
SECTION 2.8.
Stock Constituting Excess Stock. As provided in the Articles
of Incorporation or Articles Supplementary,
upon the happening of certain
events, shares of Stock shall be deemed to
automatically constitute Excess
Stock. In the event of such a conversion,
the Receipt representing the deposited
Stock so converted shall no longer
represent, to the extent of the shares so
converted, such deposited Stock. Promptly
upon its knowledge of the conversion
of such deposited Stock into Excess Shares,
the Company shall notify the
Depositary of such conversion, the number
of shares of deposited Stock so
converted, and the identity of the holder
of the Receipt so affected, whereupon
the Depositary shall promptly notify the
holder of such Receipt as to the
foregoing information and the requirement
for the holder to surrender such
Receipt to the Depositary for cancellation
of the
