Exhibit 4.9
FORM OF DEPOSIT
AGREEMENT
This DEPOSIT AGREEMENT is made and
entered into as of
, 200 by and among Trustreet Properties, Inc.,
a Maryland corporation (the “Company”),
, a
, as Depositary, and all holders from time to time of Receipts (as
hereinafter defined) issued hereunder.
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 evidencing
Depositary Shares representing a fractional interest in the
Preferred Shares deposited; and
WHEREAS, the Receipts are to be
substantially in the form of Exhibit A annexed to this
Deposit Agreement, with appropriate insertions, modifications and
omissions, as hereinafter provided in this Deposit
Agreement;
NOW, THEREFORE, in consideration of
the premises contained herein, it is agreed by and among the
parties hereto as follows:
ARTICLE I
DEFINITIONS
The following definitions shall
apply to the respective terms (in the singular and plural forms of
such terms) used in this Deposit Agreement and the
Receipts:
SECTION 1.01. “Articles of
Incorporation” shall mean the Restated Articles of
Incorporation, as amended and supplemented from time to time, of
the Company.
SECTION 1.02. “Articles
Supplementary” shall mean the Articles Supplementary
Classifying
Preferred Shares as % Series
Preferred Shares filed with the State Department of Assessments and
Taxation of the State of Maryland establishing the Preferred Shares
as a series of preferred shares of beneficial interest of the
Company.
SECTION 1.03. “Common
Shares” shall mean the Company’s common shares of
beneficial interest, $.01 par value per share.
SECTION 1.04. “Company”
shall mean Trustreet Properties, Inc., a Maryland 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 at
the date of this Deposit Agreement is located at
.
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
, 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 of a Preferred Share deposited with the
Depositary hereunder and the same proportionate interest in any and
all other property received by the Depositary in respect of such
Preferred Share and held under this Deposit Agreement, all as
evidenced by the Receipts issued hereunder. Subject to the terms of
this Deposit Agreement, each owner of a Depositary Share is
entitled, proportionately, to all the rights, preferences and
privileges of the Preferred Shares represented by such Depositary
Share, including the dividend and distribution, voting, redemption,
conversion and liquidation rights contained in the Articles
Supplementary.
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. “Ownership
Limit” shall have the meaning set forth in Article V of the
Company’s Declaration of Trust.
SECTION 1.11. “Preferred
Shares” shall mean the Company’s
% Series
preferred shares of beneficial interest, $.01 par value per share,
heretofore validly issued, fully paid and
non-assessable.
SECTION 1.12. “Receipt”
shall mean a Depositary Receipt issued hereunder to evidence one or
more Depositary Shares, whether in definitive or temporary form,
substantially in the form set forth as Exhibit A
hereto.
SECTION 1.13. “record
date” shall mean the date fixed pursuant to Section
4.04.
SECTION 1.14. “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 1.15.
“Registrar” shall mean American Stock Transfer &
Trust Company, or any bank or trust company appointed to register
ownership and transfers of Receipts or the deposited Preferred
Shares, as the case may be, as herein provided.
SECTION 1.16. “Securities
Act” shall mean the Securities Act of 1933, as
amended.
2
SECTION 1.17. “Transfer
Agent” shall mean American Stock Transfer & Trust
Company, or any bank or trust company appointed to transfer the
Receipts or the deposited Preferred Shares, as the case may be, as
herein provided.
ARTICLE II
FORM OF RECEIPTS, DEPOSIT OF
PREFERRED SHARES, EXECUTION
AND DELIVERY, TRANSFER, SURRENDER
AND REDEMPTION OF RECEIPTS
SECTION 2.01. 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, the
Depositary, upon the written order of the Company, delivered in
compliance with Section 2.02, shall execute and deliver temporary
Receipts which may be printed, lithographed, typewritten,
mimeographed or otherwise substantially of the tenor of the
definitive Receipts in lieu of which they are issued and with such
appropriate insertions, omissions, substitutions and other
variations as the persons executing such Receipts may determine, as
evidenced by their execution of such Receipts. If temporary
Receipts are issued, the Company and the Depositary will cause
definitive Receipts to be prepared without unreasonable delay.
After the preparation of definitive Receipts, the temporary
Receipts shall be exchangeable for definitive Receipts upon
surrender of the temporary Receipts at the Corporate Office or such
other offices, if any, as the Depositary may designate, without
charge to the holder. Upon surrender for cancellation of any one or
more temporary Receipts, the Depositary shall execute and deliver
in exchange therefor definitive Receipts representing the same
number of Depositary Shares as represented by the surrendered
temporary Receipt or Receipts. Such exchange shall be made at the
Company’s expense and without any charge therefor. Until so
exchanged, the temporary Receipts shall in all respects be entitled
to the same benefits under this Deposit Agreement, and with respect
to the Preferred Shares deposited, as definitive
Receipts.
Receipts shall be executed by the
Depositary by the manual or facsimile signature of a duly
authorized signatory of the Depositary, provided that if a
Registrar (other than the Depositary) shall have been appointed
then such Receipts shall also be countersigned by manual signature
of a duly authorized signatory of the Registrar. No Receipt shall
be entitled to any benefits under this Deposit Agreement or be
valid or obligatory for any purpose unless it shall have been
executed as provided in the preceding sentence. The Depositary
shall record on its books each Receipt executed as provided above
and delivered as hereinafter provided.
Except as the Depositary may
otherwise determine, Receipts shall be in denominations of any
number of whole Depositary Shares. All Receipts shall be dated the
date of their issuance.
Receipts may be endorsed with or
have incorporated in the text thereof such legends or recitals or
changes not inconsistent with the provisions of this Deposit
Agreement as may be required by the Company or required 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
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.
3
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 2.04, 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 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
Preferred Shares, properly endorsed or accompanied, if required by
the Depositary, by a duly executed instrument of transfer or
endorsement, in form satisfactory to the Depositary, together with
(i) all such certifications as may be required by the Depositary in
accordance with the provisions of this Deposit Agreement and (ii) a
written 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. The Depositary acknowledges receipt of the deposited
Preferred Shares and related documentation and agrees to hold such
deposited Preferred Shares in an account to be established by the
Depositary at the Corporate Office or at such other office as the
Depositary shall determine. The Company hereby appoints the
Depositary as the Registrar and Transfer Agent for the Preferred
Shares deposited hereunder and the Depositary hereby accepts such
appointment and, as such, will reflect changes in the number
(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
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, 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 2.02 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
4
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 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 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 Articles Supplementary, 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 Articles
Supplementary, including the amount, if any, of accrued and unpaid
dividends thereon to and including 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 which 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 received the redemption
notice. The Company shall provide the Depositary with such notice,
and each such notice shall state: the redemption date; the
redemption price and accrued and unpaid dividends payable on the
redemption date; 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 the Depositary Shares to be
redeemed are to be surrendered for payment of the redemption price
and accrued and unpaid dividends payable on the redemption date;
and 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 (as nearly as may be
practicable without creating fractional Depositary Shares) or by
any other equitable method determined by the Company that will not
result in a violation of the Ownership Limit.
5
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 the Depositary the 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 and including 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 all accrued and unpaid dividends to and including the
redemption date) 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 or applicable
law shall so require), such Depositary Shares shall be redeemed at
a redemption price of $
per Depositary Share plus all accrued and unpaid dividends to and
including the redemption date. The foregoing shall be further
subject to the terms and conditions of the Articles Supplementary.
In the event of any conflict between the provisions of this Deposit
Agreement and the provisions of the Articles Supplementary, the
provisions of the Articles Supplementary 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, the
Depositary will deliver to the holder of such Receipt upon its
surrender to the Depositary, together with payment of the
redemption price for and all other amounts payable in respect of
the Depositary Shares called for redemption, a new Receipt
evidencing such holder’s Depositary Shares evidenced by such
prior Receipt that are not called for redemption.
The Company acknowledges that the
bank accounts maintained by the Depositary in connection with the
performance of the services described herein will be in the name of
the Depositary and that the Depositary may receive investment
earnings in connection with the investment at the
Depositary’s risk and for its benefit 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
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.
6
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.
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.
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 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 . 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
7
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 or advisable by the
Depositary, any of time 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.
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.
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 and to execute such certificates 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
distribution or the sale of any rights or of the proceeds thereof,
until such proof or other information is filed or such certificates
are executed.
8
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 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 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 subsequent deposits thereof, each person so depositing
Preferred Shares under this Deposit Agreement, shall be deemed
thereby to represent and warrant that such Preferred Shares and
each certificate therefor are valid and that the person making such
deposit is duly authorized to do so. The Company hereby further
represents and warrants that such Preferred Shares, when issued,
will be validly issued, fully paid and 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 fractional
interest in a share of deposited Preferred Shares represented by
such Depositary Share. Such representation and warranty shall
survive the deposit of the Preferred Shares and the issuance of
Receipts evidencing the Depositary Shares.
ARTICLE IV
PREFERRED SHARES;
NOTICES
SECTION 4.01. Dividends and Other
Cash Distributions . Whenever the Depositary shall receive any
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, 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
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 by law to withhold and shall
withhold from any 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 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
9
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 4.02. 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 3.02, 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, as nearly as practicable, in proportion to the respective
numbers of Depositary Shares evidenced by the Receipts held by such
holders, in any manner that the Depositary and the Company may deem
equitable and practicable for accomplishing such distribution. If
in the opinion of the Depositary after consultation with the
Company, such distribution cannot be made proportionately among
such record holders, or if for any other reason (including any
requirement that the Company or the Depositary withhold an amount
on account of taxes), the Depositary deems, after consultation with
the Company, such distribution not to be feasible, the Depositary
may, with the approval of the Company, adopt such method as it
deems equitable and practicable for the purpose of effecting such
distribution, including the sale (at public or private sale) of the
securities or property thus received, or any part thereof at such
place or places and upon such terms as it may deem proper. The net
proceeds of any such sale shall, subject to Section 3.02, be
distributed or made available for distribution, as the case may be,
by the Depositary to record holders of Receipts as provided by
Section 4.01 in the case of a distribution received in c
