Exhibit 4.16
FORM OF DEPOSIT AGREEMENT
This DEPOSIT
AGREEMENT is made and entered into as of
, 200
by and among Capital Automotive REIT, a
Maryland real estate investment trust (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.
“Declaration of Trust” shall mean the Amended and
Restated Declaration of Trust, 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 Capital Automotive REIT, a
Maryland real estate investment trust, 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.
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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
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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.
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
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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.
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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.
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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
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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
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any rights or of the proceeds
thereof, until such proof or other information is filed or such
certificates are executed.
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
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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
o
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