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Exhibit 4.1
DEPOSIT
AGREEMENT
This DEPOSIT AGREEMENT is
made and entered into as of March 27, 2008 by and among Saul
Centers, Inc., a Maryland corporation (the “Company”),
Continental Stock Transfer & Trust Company, 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 shares of the Company’s Preferred Stock (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 Stock 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 promises 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.
“AMEX” shall mean the American Stock Exchange or a
successor that is a national securities exchange registered under
Section 6 of the Exchange Act.
SECTION 1.02. “Articles
of Incorporation” shall mean the Articles of Incorporation,
as amended and supplemented from time to time, of the
Company.
SECTION 1.03. “Articles
Supplementary” shall mean the Articles Supplementary
Classifying 34,500 Shares of Preferred Stock as 9% Series B
Cumulative Redeemable Preferred Stock filed with the State
Department of Assessments and Taxation of the State of Maryland
establishing the Preferred Stock as a series of Preferred Stock of
the Company.
SECTION 1.04. “Common
Stock” shall mean shares of the Company’s common stock,
$.01 par value per share.
SECTION 1.05.
“Company” shall mean Saul Centers, Inc., a Maryland
corporation, and its successors.
SECTION 1.06.
“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 17 Battery Place, 8 th Floor, New York, New York.
SECTION 1.07. “Deposit
Agreement” shall mean this agreement, as the same may be
amended, modified or supplemented from time to time.
SECTION 1.08.
“Depositary” shall mean Continental Stock
Transfer & Trust Company, a company or corporation having
its principal office in the United States, and any successor as
depositary hereunder.
SECTION 1.09.
“Depositary Share” shall mean a 1/100
th
fractional interest of a
share of Preferred Stock deposited with the Depositary hereunder
and the same proportionate interest in any and all other property
received by the Depositary in respect of such share of Preferred
Stock 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 Stock represented by such Depositary Share, including
the dividend and distribution, voting, redemption, conversion and
liquidation rights as set forth in the Articles
Supplementary.
SECTION 1.10.
“Depositary’s Agent” shall mean one or more
agents appointed by the Depositary as provided, and for the
purposes specified, in Section 7.05 hereof.
SECTION 1.11. “Exchange
Act” shall mean the Securities Exchange Act of 1934, as
amended.
SECTION 1.12. “Existing
Holder Limit” shall have the meaning set forth in Article VI,
Section 4 of the Company’s Articles of
Incorporation.
SECTION 1.13.
“NASDAQ” shall mean the NASDAQ Stock Market, Inc. or a
successor that is a national securities exchange registered under
Section 6 of the Exchange Act.
SECTION 1.14.
“NYSE” shall mean the New York Stock Exchange, Inc. or
a successor that is a national securities exchange registered under
Section 6 of the Exchange Act.
SECTION 1.15.
“Ownership Limit” shall have the meaning set forth in
Article VI, Section 4 of the Company’s Articles of
Incorporation.
SECTION 1.16.
“Preferred Stock” shall mean shares of the
Company’s 9% Series B Cumulative Redeemable Preferred Stock,
$.01 par value per share, heretofore validly issued, fully paid and
non-assessable.
SECTION 1.17.
“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.
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SECTION 1.18. “record
date” shall mean the date fixed pursuant to Section 4.04
hereof.
SECTION 1.19. “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 1.20.
“redemption date” shall have the meaning set forth in
Section 2.03 hereof.
SECTION 1.21.
“REIT” shall have the meaning set forth in
Section 2.03 hereof.
SECTION 1.22.
“Registrar” shall mean Continental Stock
Transfer & Trust Company, or any bank or trust company
appointed to register ownership and transfers of Receipts or the
deposited Preferred Stock, as the case may be, as herein
provided.
SECTION 1.23.
“Securities Act” shall mean the Securities Act of 1933,
as amended.
SECTION 1.24.
“Signature Guarantee” shall have the meaning set forth
in Section 2.04 hereof.
SECTION 1.25. “Special
Damages” shall have the meaning set forth in
Section 5.08 hereof.
SECTION 1.26. “Transfer
Agent” shall mean Continental Stock Transfer & Trust
Company, or any bank or trust company appointed to transfer the
Receipts or the deposited Preferred Stock, as the case may be, as
herein provided.
ARTICLE II
FORM OF RECEIPTS, DEPOSIT
OF PREFERRED STOCK, 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
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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 Stock 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 Stock, 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.
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 Stock; 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
Depository Trust Company, or its designee, and evidencing up to
34,500 shares of Preferred Stock, 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 Stock. The Depositary acknowledges receipt of
the deposited Preferred Stock and related
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documentation and agrees to hold such
deposited Preferred Stock 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
Stock deposited hereunder and the Depositary hereby accepts such
appointment and, as such, will reflect changes in the number of
shares (including any fractional shares) of deposited Preferred
Stock held by it by notation, book-entry or other appropriate
method.
If required by the
Depositary, Preferred Stock presented for deposit by the Company at
any time, whether or not the register of stockholders 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 Stock or to receive other property that any person in
whose name the Preferred Stock is or has been registered may
thereafter receive upon or in respect of such deposited Preferred
Stock, 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 Stock
deposited hereunder, together with the other documents specified
above, and upon registering such Preferred Stock 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 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 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 Stock, or in the case of distributions of Preferred
Stock, if any, there shall be deposited hereunder not more than the
number of shares constituting the Preferred Stock 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 Stock for Cash . Shares of the
Preferred Stock are not redeemable prior to March 15, 2013.
However, in order to ensure that the Company remains qualified as a
real estate investment trust (“REIT”) for United States
federal income tax purposes in accordance with the Articles of
Incorporation, the Preferred Stock, together with all other equity
securities of the Company, shall be subject to Article VI of the
Articles of Incorporation pursuant to which Preferred Stock owned
by a stockholder in excess of the Ownership Limit, or by the
Existing Holder in excess of the Existing Holder Limit, shall
automatically be transferred to a Trust for the exclusive benefit
of a Beneficiary, as provided in Article VI, Section 5 of the
Articles of Incorporation. On or after March 15, 2013, if
the
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Company shall elect to redeem shares of
deposited Preferred Stock for cash in accordance with the
provisions of the Articles Supplementary, it shall (unless
otherwise agreed in writing with the Depositary) give the
Depositary not less than 30 nor more than 60 days’ prior
written notice of the date of such proposed redemption and of the
number of such shares of Preferred Stock 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 Stock and
the proposed simultaneous redemption of the Depositary Shares
representing the Preferred Stock to be redeemed, not less than 30
nor more than 60 days prior to the date fixed for redemption of
such Preferred Stock 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 shares of
deposited Preferred Stock 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 Stock
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 or the Existing Holder Limit.
During any period of time
that both (i) Preferred Stock is not listed on the NYSE, AMEX
or NASDAQ (or if the Preferred Stock is at any time held in the
form of Depositary Shares, the Depositary Shares representing
Preferred Stock are not listed on the NYSE, AMEX or NASDAQ), and
(ii) the Company is not subject to the reporting requirements
of the Exchange Act, but any shares of Series B Preferred Stock are
outstanding, the Corporation will have the option to redeem the
Series B Preferred Stock, in whole but not in part, within 90 days
of the date upon which the shares of the Series B Preferred Stock
(or the Depositary Shares) cease to be listed and we cease to be
subject to such reporting requirements, for a redemption price of
$2,500.00 per share, plus all dividends accrued and unpaid (whether
or not declared), if any, to the date such shares are redeemed as
provided in Section 5(c) of the Articles Supplementary, upon
the giving of notice as provided in Section 5(h) of the
Articles Supplementary.
In the event that notice of
redemption has been made as described in this Section 2.03 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 Stock
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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 Stock so
called for redemption by the Company and from and after the
redemption date (unless the Company shall have failed to pay for
the shares of Preferred Stock 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 shares of Preferred
Stock 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 $25.00 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.
Unless full cumulative
dividends on all Preferred Stock shall have been or
contemporaneously are declared and paid in cash or declared and a
sum sufficient for the payment thereof in cash irrevocably set
apart for payment for all past dividend periods and the then
current dividend period, no Preferred Stock shall be redeemed
unless all outstanding shares of Preferred Stock are simultaneously
redeemed and the Company shall not purchase or otherwise acquire
directly or indirectly any shares of Preferred Stock or any class
or series of equity securities of the Company ranking, as to
dividends or upon liquidation, on a parity with or junior to the
Preferred Stock (except by exchange for shares of equity securities
of the Company ranking, as to dividends and upon liquidation,
junior to the Preferred Stock); provided , however ,
that the foregoing shall not prevent the purchase of Preferred
Stock by the Company in accordance with the terms of
Section 5(a) or 5(e) of the Articles Supplementary or Article
VI of the Articles of Incorporation or otherwise in order to ensure
that the Company remains qualified as a REIT for United States
federal income tax purposes or the purchase or acquisition of
Preferred Stock pursuant to a purchase or exchange offer made on
the same terms to holders of all outstanding shares of Preferred
Stock.
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.
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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.
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 Stock . Any holder of a
Receipt or Receipts may withdraw any or all of the deposited
Preferred Stock 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
shares of such Preferred Stock 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 shares of Preferred Stock will not
thereafter be entitled to deposit such Preferred Stock hereunder or
to receive Depositary Shares therefor. If the Receipt or Receipts
delivered by the holder to the Depositary in connection with such
withdrawal shall evidence a number of Depositary Shares in excess
of the number of Depositary Shares representing the number of whole
or fractional shares of deposited Preferred Stock to be withdrawn,
the Depositary shall at the same time, in addition to such number
of whole or fractional shares of Preferred Stock 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 Stock 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
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
Preferred Stock, such holder shall execute and deliver to the
Depositary a written order so directing the Depositary and the
Depositary may require that the
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Receipt or Receipts surrendered by such
holder for withdrawal of such shares of Preferred Stock 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 Stock 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 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 Stock 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 Stock, the Depositary Shares or the Receipts
may be included for quotation or listed.
The deposit of Preferred
Stock may be refused, the delivery of Receipts against Preferred
Stock 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 stockholders 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.
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ARTICLE III
CERTAIN OBLIGATIONS OF
HOLDERS OF RECEIPTS AND THE COMPANY
SECTION 3.01. Filing
Proofs, Certificates and Other Information . Any person
presenting Preferred Stock 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 Stock 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.
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 Stock 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 Stock 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 Stock . In
the case of the initial deposit of the Preferred Stock hereunder,
the Company and, in the case of subsequent deposits thereof, each
person so depositing Preferred Stock under this Deposit Agreement,
shall be deemed thereby to represent and warrant that such
Preferred Stock 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
Stock, when issued, will be validly issued, fully paid and
non-assessable. Such representations and warranties shall survive
the deposit of the Preferred Stock 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 Stock represented by such Depositary Share. Such
representation and warranty shall survive the deposit of the
Preferred Stock and the issuance of Receipts evidencing the
Depositary Shares.
10
ARTICLE IV
THE PREFERRED STOCK;
NOTICES
SECTION 4.01. Dividends
and Other Cash Distributions . Whenever the Depositary shall
receive any dividend or other cash distributions on the deposited
Preferred Stock, including any cash received upon redemption of any
shares of Preferred Stock pursuant to Section 2.03,
the
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