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EXHIBIT 4.3
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AMERICAN HEALTH PROPERTIES, INC.,
CHASEMELLON SHAREHOLDER SERVICES, L.L.C., AS DEPOSITARY,
AND
THE HOLDERS FROM TIME TO TIME OF
THE DEPOSITARY SHARES
DESCRIBED HEREIN
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DEPOSIT AGREEMENT
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DATED AS OF OCTOBER 27, 1997
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TABLE OF CONTENTS
PAGE
ARTICLE I DEFINITIONS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
ARTICLE II FORM OF RECEIPTS, DEPOSIT OF STOCK, EXECUTION AND
DELIVERY, TRANSFER, SURRENDER, REDEMPTION OF RECEIPTS . . . . . . . . . . . . . . . . . . . . . . . 2
SECTION 2.1 Form and Transfer of Receipts . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
SECTION 2.2 Deposit of Stock; Execution and Delivery of
Receipts in Respect Thereof . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
SECTION 2.3 Redemption of Stock . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
SECTION 2.4 Registration of Transfer of Receipts . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
SECTION 2.5 Split-ups and Combinations of Receipts; Surrender
of Depositary Shares and Withdrawal of Stock . . . . . . . . . . . . . . . . . . . . . . . 5
SECTION 2.6 Limitations on Execution and Delivery Transfer,
Surrender and Exchange of Receipts . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
SECTION 2.7 Lost Receipts. etc . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
SECTION 2.8 Cancellation and Destruction of Surrendered Receipts . . . . . . . . . . . . . . . . . . . . . . 7
ARTICLE III CERTAIN OBLIGATIONS OF THE HOLDERS OF RECEIPTS
AND THE COMPANY . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
SECTION 3.1 Filing Proofs Certificates and Other Information . . . . . . . . . . . . . . . . . . . . . . . . 7
SECTION 3.2 Payment of Taxes or Other Governmental Charges . . . . . . . . . . . . . . . . . . . . . . . . . 8
SECTION 3.3 Warranty as to Stock . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
ARTICLE IV THE DEPOSITED SECURITIES; NOTICES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
SECTION 4.1 Cash Distributions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
SECTION 4.2 Distributions Other than Cash . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
SECTION 4.3 Subscription Rights, Preferences or Privileges . . . . . . . . . . . . . . . . . . . . . . . . . 9
SECTION 4.4 Notice of Dividends. etc.; Fixing of Record Date
for Holders of Depositary Shares . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
SECTION 4.5 Voting Rights . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
SECTION 4.6 Changes Affecting Deposited Securities and
Reclassifications, Recapitalizations, etc . . . . . . . . . . . . . . . . . . . . . . . . . 11
SECTION 4.7 Delivery of Reports . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
SECTION 4.8 List of Holders . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
ARTICLE V THE DEPOSITARY, THE DEPOSITARY'S AGENTS, THE
REGISTRAR AND THE COMPANY . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
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SECTION 5.1 Maintenance of Offices, Agencies and Transfer Books
by the Depositary; Registrar . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
SECTION 5.2 Prevention of or Delay in Performance by the Depositary
the Depositary's Agents, any Registrar or the Company . . . . . . . . . . . . . . . . . . . 12
SECTION 5.3 Obligations of the Depositary, the Depositary's Agents
and Registrar and the Company . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
SECTION 5.4 Resignation and Removal of the Depositary; Appointment
of Successor Depositary . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
SECTION 5.5 Corporate Notices and Reports . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15
SECTION 5.6 Indemnification by the Company . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15
SECTION 5.7 Charges and Expenses . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15
ARTICLE VI AMENDMENT AND TERMINATION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16
SECTION 6.1 Amendment . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16
SECTION 6.2 Termination . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16
ARTICLE VII MISCELLANEOUS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17
SECTION 7.1 Counterparts . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17
SECTION 7.2 Exclusive Benefit of Parties . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17
SECTION 7.3 Invalidity of Provisions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17
SECTION 7.4 Notices . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17
SECTION 7.5 Depositary's Agents . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18
SECTION 7.6 Holders of Receipts Are Parties . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18
SECTION 7.7 Governing Law . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18
SECTION 7.8 Inspection of Deposit Agreement . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18
SECTION 7.9 Headings . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18
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DEPOSIT AGREEMENT
This Deposit Agreement, dated as of October 27, 1997, is entered into
by and among American Health Properties, Inc., a Delaware corporation (together
with its successors, the "Company"), ChaseMellon Shareholder Services, L.L.C.,
a New Jersey limited liability company, (together with any successor as
depositary hereunder, the "Depositary"), and the holders from time to time of
the Depositary Shares described herein.
WITNESSETH:
WHEREAS the parties hereto desire to provide, as hereinafter set forth
in this Deposit Agreement, for the deposit of shares of Stock (as hereinafter
defined) of the Company with the Depositary for the purposes set forth in this
Deposit Agreement and for the issuance hereunder of Receipts evidencing
Depositary Shares, in respect of the Stock so deposited;
NOW, THEREFORE, in consideration of the premises, the parties hereto
agree as follows:
ARTICLE I
DEFINITIONS
The following definitions shall for all purposes, unless otherwise
indicated, apply to the respective terms used in this Deposit Agreement and the
Receipts:
"Certificate" means the certificate of designations filed with the
Secretary of State of Delaware establishing the Stock as a series of preferred
stock of the Company.
"Deposit Agreement" means this Deposit Agreement, as amended or
supplemented from time to time.
"Depositary Shares" means Depositary Shares evidenced by a Receipt or
Receipts issued hereunder, and representing the interests in the Stock
deposited with the Depositary hereunder. Each Depositary Share shall, as
provided herein, represent a one-one-hundredth interest in a share of Stock and
the same proportionate interest in any and all other property received by the
Depositary in respect of such shares of Stock and held at the time under this
Deposit Agreement.
"Depositary's Agent" means an agent appointed by the Depositary
pursuant to Section 7.5. "Depositary's Office" means the office of the
Depositary at 000 Xxxxx Xxxx Xxxxxx in Los Angeles, California, at which its
depositary receipt business shall be administered.
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"Receipt" means a depositary receipt issued hereunder, whether in
definitive or temporary form and evidencing a Depositary Share or Depositary
Shares.
"Record Holder" as applied with respect to a Depositary Share means
the person in whose name a Receipt evidencing such Depositary Share is
registered on the books of the Depositary maintained for such purpose.
"Redemption Date" shall have the meaning set forth in Section 2.3.
"Registrar" means any bank or trust company that shall be appointed to
register ownership and transfers of Receipts as herein provided.
"Stock" means shares of the Company's 8.60% Cumulative Redeemable
Preferred Stock, Series B, par value $0.01 per share.
ARTICLE II
FORM OF RECEIPTS, DEPOSIT OF STOCK, EXECUTION AND
DELIVERY, TRANSFER, SURRENDER, AND REDEMPTION OF RECEIPTS
SECTION 2.1 Form and Transfer of Receipts.
Definitive Receipts shall be engraved or printed or lithographed 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 2.2, shall execute and deliver temporary Receipts that are printed,
lithographed, typewritten, mimeographed or otherwise substantially of the tenor
of the definitive Receipts in lieu of which they are issued and with such
appropriate insertions, omissions, substitutions and other variations as the
persons executing such Receipts may determine, as evidenced by their execution
of such Receipts. If temporary Receipts are issued, the Company and the
Depositary will cause definitive Receipts to be prepared without unreasonable
delay. After the preparation of definitive Receipts, the temporary Receipts
shall be exchangeable for definitive Receipts upon surrender of the temporary
Receipts at an office designated by the Depositary as contemplated by the third
paragraph of Section 2.2, 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 are 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 Stock, as definitive Receipts.
Receipts shall be executed by the Depositary by the manual signature
of a duly authorized officer of the Depositary; provided, however, that such
signature may be a facsimile if a Registrar for the Receipts (other than the
Depositary) shall have been appointed and such
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Receipts are countersigned by manual signature of a duly authorized officer 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 manually by a duly authorized officer of the Depositary or, if a
Registrar for the Receipts (other than the Depositary) shall have been
appointed, by facsimile signature of a duly authorized officer of the
Depositary and countersigned manually by a duly authorized officer of such
Registrar. The Depositary shall record on its books each Receipt so signed and
delivered as hereinafter provided.
Receipts shall be in denominations of any number of whole Depositary
Shares.
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 the Depositary or
required to comply with any applicable law or any regulations of any securities
exchange upon which the Stock, the Depositary Shares or the Receipts may be
listed or to conform with any usage with respect thereto, or to indicate any
special limitations or restrictions to which any particular Receipts are
subject.
Title to Depositary Shares evidenced by a Receipt that is properly
endorsed, or accompanied by a properly executed instrument of transfer, shall
be transferable by delivery with the same effect as in the case of a negotiable
instrument; provided, however, that until transfer of a Depositary Share shall
be registered on the books of the Depositary as provided in Section 2.4, the
Depositary may, notwithstanding any notice to the contrary, treat the Record
Holder thereof at such time as the absolute owner thereof for the purpose of
determining the person entitled to distributions of dividends or other
distributions or to any notice provided for in this Deposit Agreement and for
all other purposes.
SECTION 2.2 Deposit of Stock: Execution and Delivery of
Receipts in Respect Thereof.
Subject to the terms and conditions of this Deposit Agreement, the
Company may from time to time deposit shares of Stock under this Deposit
Agreement by delivery to the Depositary of a certificate or certificates for
the stock to be deposited, properly endorsed or accompanied, if required by the
Depositary, by a duly executed instrument of transfer or endorsement, in form
satisfactory to the Depositary, together with all such certifications as may be
required by the Depositary in accordance with the provisions of this Deposit
Agreement, and together with a written order of the Company directing the
Depositary to execute and deliver to, or upon the written order of, the person
or persons stated in such order a Receipt or Receipts for the number of
Depositary Shares relating to such deposited Stock.
Deposited Stock shall be held by the Depositary at the Depositary's
Office or at such other place or places in the State of California as the
Depositary shall determine.
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Upon receipt by the Depositary of a certificate or certificates for
Stock deposited in accordance with the provisions of this Section, together
with the other documents required as above specified, and upon recordation of
the Stock so deposited on the books of the Company in the name of the
Depositary or its nominee, the Depositary, subject to the terms and conditions
of this Deposit Agreement, shall execute and deliver to or upon the order of
the person or persons named in the written order delivered to the Depositary
referred to in the first paragraph of this Section, a Receipt or Receipts for
the number of Depositary Shares relating to the Stock so deposited and
registered in such name or names as may be requested by such person or persons.
The Depositary shall execute and deliver such Receipt or Receipts at the
Depositary's Office or such other offices, if any, as the Depositary may
designate if requested by any such person or persons. Delivery at other offices
shall be at the risk and expense of the person requesting such delivery.
Other than in the case of splits, combinations or other
reclassifications affecting the Stock, or in the case of dividends or other
distributions of Stock, if any, there shall be deposited hereunder not more
than forty-six thousand (46,000) shares of Stock.
SECTION 2.3 Redemption of Stock.
Whenever the Company shall elect to redeem shares of Stock in
accordance with the provisions of the Certificate, it shall (unless otherwise
agreed in writing with the Depositary) mail notice to the Depositary of such
proposed redemption, by first class mail, postage prepaid not less than 35 or
more than 95 days prior to the date fixed for redemption of Stock in accordance
with Section 3 of the Certificate. On the date of such redemption, provided
that the Company shall then have paid in full to the Depositary the redemption
price of the Stock to be redeemed, plus any accrued and unpaid dividends
thereon (the "Redemption Price"), the Depositary shall redeem the Depositary
Shares relating to such Stock. The Company shall publish notice of redemption
of the Stock as required by the Certificate. The Depositary shall mail notice
of such redemption and the proposed simultaneous redemption of the number of
Depositary Shares relating to the Stock to be redeemed, by first-class mail,
postage prepaid, not less than 30 and not more than 90 days prior to the date
fixed for redemption of such Stock and Depositary Shares (the "Redemption
Date"), to the Record Holders of the Depositary Shares to be so redeemed, at
the addresses of such holders as they appear on the records of the Depositary;
but neither failure to mail any such notice to one or more such holders nor any
defect in any notice to one or more such holders shall affect the sufficiency
of the proceedings for redemption as to other holders. Each such notice shall
state: (i) the Redemption Date; (ii) the number of Depositary Shares to be
redeemed and, if less than all the Depositary Shares held by any such holder
are to be redeemed, the number of such Depositary Shares held by such holder to
be so redeemed; (iii) the Redemption Price; (iv) the place or places where
Receipts evidencing Depositary Shares are to be surrendered for payment of the
redemption price; and (v) that dividends in respect of the Stock underlying the
Depositary Shares to be redeemed will cease to accrue and accumulate at the
close of business on such Redemption Date. In case less than all the
outstanding Depositary Shares are to be redeemed, the Depositary Shares to be
so redeemed
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shall be selected by lot, pro rata or such other method as may be determined by
the Depositary to be equitable.
If the Redemption Date is after the record date for determining
holders of Depositary Shares entitled to any dividend or distribution, such
dividend or distribution shall be payable to the holders of such Depositary
Shares at the close of business on such record date, notwithstanding such
redemption.
Notice having been mailed by the Depositary as aforesaid, from and
after the Redemption Date (unless the Company shall have failed to redeem the
shares of 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
Depositary Shares so called for redemption shall cease to accrue and
accumulate, the Depositary Shares being redeemed from such proceeds shall be
deemed no longer to be outstanding, all rights of the holders of Receipts
evidencing such Depositary Shares (except (i) the right to receive the
Redemption Price, and (ii) the right to receive dividends the record date for
which is prior to the Exchange Date or Redemption Date, as set forth in the
preceding paragraph) shall, to the extent of such Depositary Shares, cease and
terminate and, upon surrender in accordance with such notice of the Receipts
evidencing any such Depositary Shares (properly endorsed or assigned for
transfer, if the Depositary shall so require), such Depositary Shares shall be
redeemed by the Depositary at the Redemption Price.
If less than all 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 the redemption
payment, a new Receipt evidencing the Depositary Shares evidenced by such prior
Receipt and not called for redemption.
SECTION 2.4 Registration of Transfer of Receipts.
Subject to the terms and conditions of this Deposit Agreement, the
Depositary shall register on its books from time to time transfers of
Depositary Shares upon any surrender of the Receipt or Receipts evidencing such
Depositary Shares by the holder in person or by duly authorized attorney,
properly endorsed or accompanied by a properly executed instrument of transfer.
Thereupon the Depositary shall execute a new Receipt or Receipts evidencing the
same aggregate number of Depositary Shares as those evidenced by the Receipt or
Receipts surrendered and deliver such new Receipt or Receipts to or upon the
order of the person entitled thereto.
SECTION 2.5 Split-ups and Combinations of Receipts:
Surrender of Depositary Shares and Withdrawal of Stock.
Upon surrender of a Receipt or Receipts at the Depositary's Office or
at such other offices as it may designate for the purpose of effecting a
split-up or combination of such Receipt or Receipts, and subject to the terms
and conditions of this Deposit Agreement, the Depositary
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shall execute and deliver a new Receipt or Receipts in the denominations
requested, evidencing the aggregate number of Depositary Shares evidenced by
Receipt or Receipts surrendered.
Any holder of Depositary Shares may withdraw the number of whole
shares of Stock underlying such Depositary Shares and all money and other
property, if any, underlying such Depositary Shares by surrendering Receipts
evidencing such Depositary Shares at the Depositary's Office or at such other
offices as the Depositary may designate for such withdrawals. Thereafter,
without unreasonable delay, the Depositary shall deliver to such holder, or to
the person or persons designated by such holder as hereinafter provided, the
number of whole shares of Stock and all money and other property, if any,
underlying the Depositary Shares so surrendered for withdrawal, but holders of
such whole shares of Stock will not thereafter be entitled to deposit such
Stock hereunder or to receive Receipts evidencing Depositary Shares therefor.
If a Receipt delivered by a holder to the Depositary in connection with such
withdrawal shall evidence a number of Depositary Shares relating to other than
a number of whole shares of Stock, the Depositary shall at the same time, in
addition to such number of whole shares of Stock and such money and other
property, if any, to be so withdrawn, deliver to such holder, or (subject to
Section 3.2) upon his or her order, a new Receipt evidencing such excess number
of Depositary Shares. In no event will fractional shares of Stock be
distributed by the Depositary. Delivery of the Stock and money and other
property being withdrawn may be made by delivery of such certificates,
documents of title and other instruments as the Depositary may deem
appropriate.
If the Stock and the money and other property being withdrawn are to
be delivered to a person or persons other than the Record Holder of the
Depositary Shares evidenced by the Receipts being surrendered for withdrawal of
Stock, such holder shall execute and deliver to the Depositary a written order
so directing the Depositary, and the Depositary may require that the Receipt or
Receipts surrendered by such holder for withdrawal of such shares of Stock be
properly endorsed in blank or accompanied by a properly executed instrument of
transfer.
Delivery of the Stock and money and other property, if any, underlying
the Depositary Shares surrendered for withdrawal shall be made by the
Depositary at the Depositary's Office, except that, at the request, risk and
expense of the holder surrendering such Depositary Shares and for the account
of such holder, such delivery may be made at such other place as may be
designated by such holder.
SECTION 2.6 Limitations on Execution and Delivery
Transfer, Surrender and Exchange of Receipts.
As a condition precedent to the execution and delivery, registration
of transfer, split-up, combination, surrender or exchange of any Receipt, the
Depositary, any of the Depositary's Agents or the Company may require payment
to it of a sum sufficient for the payment (or, in the event that the Depositary
or the Company shall have made such payment, the reimbursement to it) of any
charges or expenses payable by the holder of a Receipt pursuant to Section 5.7,
may
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require the production of evidence satisfactory to it as to the identity and
genuineness of any signature and may also require compliance with such
regulations, if any, as the Depositary or the Company may establish consistent
with the provisions of this Deposit Agreement.
The delivery of Receipts against Stock may be suspended, the
registration of transfer of Depositary Shares may be refused and the
registration of transfer, surrender or exchange of outstanding Depositary
Shares may be suspended (i) during any period when the register of stockholders
of the Company is closed or (ii) if any such action is deemed necessary or
advisable by the Depositary, any of the Depositary's Agents or the Company at
any time from time to time because of any requirement of law or of any
government or governmental body or commission or under any provision of this
Deposit Agreement.
SECTION 2.7 Lost Receipts. etc.
In case any Receipt shall be mutilated, destroyed, 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, upon (i) the
filing by the holder thereof with the Depositary of evidence satisfactory to
the Depositary of such destruction or loss or theft of such Receipt, or the
authenticity thereof and of his or her ownership thereof and (ii) the
furnishing to the Depositary of reasonable indemnification satisfactory to it.
SECTION 2.8 Cancellation and Destruction of Surrendered
Receipts.
All Receipts surrendered to the Depositary or any Depositary's Agent
shall be canceled by the Depositary. Except as prohibited by applicable law or
regulation, the Depositary is authorized to destroy all Receipts so canceled.
ARTICLE III
CERTAIN OBLIGATIONS OF THE HOLDERS
OF RECEIPTS AND THE COMPANY
SECTION 3.1 Filing Proofs Certificates and Other
Information.
Any holder of a Depositary Share may be required from time to time to
file such proof of residence, or other matters or other information, to execute
such certificates and to make such representations and warranties as the
Depositary or the Company may reasonably deem necessary or proper. The
Depositary or the Company may withhold the delivery, or delay the registration
of transfer, redemption or exchange, of any Depositary Share or the withdrawal
of any Stock underlying Depositary Shares or the distribution of any dividend
or other distribution or the sale of any rights or of the proceeds thereof
until such proof or other information is filed or such certificates are
executed or such representations and warranties are made.
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SECTION 3.2 Payment of Taxes or Other Governmental
Charges.
Holders of Depositary Shares shall be obligated to make payments to
the Depositary of certain charges and expenses, as provided in Section 5.7.
Registration of transfer of any Depositary Share or any withdrawal of Stock and
delivery of all money or other property, if any, underlying such Depositary
Share may be refused until any such payment due is made, and any dividends or
other distributions may be withheld or all or any part of the Stock or other
property relating to such Depositary Shares and not theretofore sold may be
sold for the account of the holder thereof (after attempting by reasonable
means to notify such holder prior to such sale), and such dividends or other
distributions or the proceeds of any such sale may be applied to any payment of
such charges or expenses, the holder of such Depositary Share remaining liable
for any deficiency.
SECTION 3.3 Warranty as to Stock.
The Company hereby represents and warrants that the Stock, when
issued, will be validly issued, fully paid and nonassessable. Such
representation and warranty shall survive the deposit of the Stock and the
issuance of the Receipts.
ARTICLE IV
THE DEPOSITED SECURITIES; NOTICES
SECTION 4.1 Cash Distributions.
Whenever the Depositary shall receive any cash dividend or other cash
distribution on the Stock, the Depositary shall, subject to Sections 3.1 and
3.2, promptly distribute to the Record Holder of Depositary Shares on the
record date fixed pursuant to Section 4.4 such amounts of such dividend or
distribution as are, as nearly as practicable in proportion to the respective
numbers of Depositary Shares held by such holders; provided, however, that in
case the Company or the Depositary shall be required to withhold and shall
withhold from any cash dividend or other cash distribution in respect of the
Stock an amount on account of taxes, the amount made available for distribution
or distributed in respect of Depositary Shares to the Record Holders shall be
reduced accordingly. Fractions will be rounded down to the nearest whole cent.
SECTION 4.2 Distributions Other than Cash.
Whenever the Depositary shall receive any distribution other than cash
on the Stock, the Depositary shall, subject to Sections 3.1 and 3.2, promptly
distribute to the Record Holders of Depositary Shares on the record date fixed
pursuant to Section 4.4 such amounts of the securities or property received by
it as are, as nearly as practicable, in proportion to the respective numbers
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of Depositary Shares held by such holders, in any manner that the Depositary
may deem equitable and practicable for accomplishing such distribution. If in
the opinion of the Depositary 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 or governmental charges) the Depositary deems, after consultation with
the Company, such distribution not to be feasible, the Depositary may, with the
written 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 Sections 3.1 and
3.2, be distributed or made available for distribution, as the case may be, by
the Depositary to the Record Holders of Depositary Shares entitled thereto as
provided by Section 4.1 in the case of a distribution received in cash. The
Company shall not make any distribution of such securities unless the Company
shall have provided an opinion of counsel to the effect that such securities
have been registered under the Securities Act of 1933, as amended (the "1933
Act"), or do not need to be registered.
SECTION 4.3 Subscription Rights, Preferences or
Privileges.
If the Company shall at any time offer or cause to be offered to the
persons in whose names Stock is recorded on the books of the Company any
rights, preferences or privileges to subscribe for or to purchase any
securities or any rights, preferences or privileges of any other nature, such
rights, preferences or privileges shall in each such instance be made available
by the Depositary to the Record Holders of Depositary Shares in such manner as
the Depositary may determine, either by the issue to such Record Holders of
warrants representing such rights, preferences or privileges or by such other
method as may be approved by the Depositary with the written approval of the
Company; provided, however, that (a) if at the time of issue or offer of any
such rights, preferences or privileges the Depositary determines that it is not
lawful or (after consultation with the Company) not feasible to make such
rights, preferences or privileges available to holders of Depositary Shares by
the issuance of warrants or otherwise, or (b) if and to the extent so
instructed by holders of Depositary Shares who do not desire to exercise such
rights, preferences or privileges, then the Depositary, in its discretion (with
the approval of the Company, in any case where the Depositary has determined
that it is not feasible to make such rights, preferences or privileges
available), may, if applicable laws or the terms of such rights, preferences or
privileges permit such transfer, sell such rights, preferences or privileges at
public or private sale, at such place or places and upon such terms as it may
deem proper. The net proceeds of any such sale shall, subject to Section 3.1
and 3.2, be distributed by the Depositary to the Record Holders of Depositary
Shares entitled thereto as provided by Section 4.1 in the case of a
distribution received in cash. The Company shall not make any distribution of
such rights, preferences or privileges unless the Company shall have provided
an opinion of counsel to the Depositary to the effect that such rights,
preferences or privileges have been registered under the 1933 Act or do not
need to be registered.
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If registration under the 1933 Act of the securities to which any
rights, preferences or privileges relate is required in order for holders of
Depositary Shares to be offered or sold the securities to which such rights,
preferences or privileges relate, the Company agrees with the Depositary that
it will file promptly a registration statement pursuant to such Act with
respect to such rights, preferences or privileges and securities and use its
best efforts and take all steps available to it to cause such registration
statement to become effective sufficiently in advance of the expiration of such
rights, preferences or privileges to enable such holders to exercise such
rights, preferences or privileges. In no event shall the Depositary make
available to the holders of Depositary Shares any right, preference or
privilege to subscribe for or to purchase any securities unless and until such
a registration statement shall have become effective, or unless the offering
and sale of such securities to such holders are exempt from registration under
the provisions of such Act.
If any other action under the laws of any jurisdiction or any
governmental or administrative authorization, consent or permit is required in
order for such rights, preferences or privileges to be made available to the
holders of Depositary Shares, the Company agrees with the Depositary that the
Company will use its best efforts to take such action or obtain such
authorization, consent or permit sufficiently in advance of the expiration of
such rights, preferences or privileges to enable such holders to exercise such
rights, preferences or privileges.
SECTION 4.4 Notice of Dividends. etc.: Fixing of Record
Date for Holders of Depositary Shares.
Whenever any cash dividend or other cash distribution shall become
payable or any distribution other than cash shall be made, or if rights,
preferences or privileges shall at any time be offered, with respect to the
Stock, or whenever the Depositary shall receive notice of any meeting at which
holders of Stock are entitled to vote, or of which holders of Stock are
entitled to notice, the Depositary shall in each such instance fix a record
date (which shall be the same date as the record date fixed by the Company with
respect to the Stock) for the determination of the holders of Depositary Shares
who shall be entitled to receive a distribution in respect of such dividend,
distribution, rights, preferences or privileges or the net proceeds of the sale
thereof, or to give instructions for the exercise of voting rights at any such
meeting, or who shall be entitled to receive notice of such meeting.
SECTION 4.5 Voting Rights.
Upon receipt of notice of any meeting at which the holders of the
Stock are entitled to vote, the Depositary shall, as soon as practicable
thereafter, mail to the Record Holders of Depositary Shares a notice that shall
be provided by the Company and that shall contain (a) such information as is
contained in such notice of meeting and (b) a statement informing holders of
Depositary Shares that they may instruct the Depositary as to the exercise of
the voting rights pertaining to the amount of Stock underlying their respective
Depositary Shares and a brief statement as to the manner in which such
instructions may be given. Upon the written request of
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the holders of Depositary Shares on the record date established in accordance
with Section 4.4, the Depositary shall endeavor insofar as practicable to vote
or cause to be voted, in accordance with the instructions set forth in such
requests, the maximum number of whole shares of Stock underlying the Depositary
Shares as to which any particular voting instructions are received. The Company
hereby agrees to take all action that may be deemed necessary by the Depositary
in order to enable the Depositary to vote such Stock or cause such Stock to be
voted. In the absence of specific instructions from the holder of a Depositary
Share, the Depositary will refrain from voting to the extent of the Stock
underlying the Depositary Shares.
SECTION 4.6 Changes Affecting Deposited Securities and
Reclassifications, Recapitalizations. etc.
Upon any change in par or liquidation value, split-up, combination or
any other reclassification of the Stock, or upon any recapitalization,
reorganization, merger, amalgamation or consolidation affecting the Company or
to which it is a party, the Depositary may in its discretion, with the approval
of, and shall upon the instructions of, the Company, and (in either case) in
such manner as the Depositary may deem equitable, (i) make such adjustments in
(a) the fraction of an interest in one share of Stock underlying one Depositary
Share and (b) the ratio of the redemption price per Depositary Share to the
redemption price of a share of the Stock, in each case as may be necessary
fully to reflect the effects of such change in par or liquidation value,
split-up, combination or other reclassification of the Stock, or of such
recapitalization, reorganization, merger, amalgamation or consolidation and
(ii) treat any securities that shall be received by the Depositary in exchange
for or upon conversion of or in respect of the Stock as new deposited
securities so received in exchange for or upon conversion of or in respect of
such Stock. In any such case the Depositary may in its discretion, with the
approval of the Company, execute and deliver additional Receipts, or may call
for the surrender of all outstanding Receipts to be exchanged for new Receipts
specifically describing such new deposited securities. Furthermore, by mutual
agreement of the Company and the Depositary, the Depositary may at any time
make adjustments in (i) the fraction of an interest in one share of Stock
underlying one Depositary Share and (ii) the ratio of the redemption price or
exchange price per Depositary Share to the redemption price or exchange price
of a share of the Stock.
SECTION 4.7 Delivery of Reports.
The Depositary will forward to Record Holders of Receipts, at their
respective addresses appearing in the Depositary's books, all notices, reports
and communications received from the Company that are delivered to the
Depositary and that the Company is required to furnish to the holders of Stock
or Receipts.
SECTION 4.8 List of Holders.
Promptly upon each and every request from time to time by the Company,
the Depositary shall furnish to it a list, as of a recent date, of the names,
addresses and holdings of Depositary
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Shares of all persons in whose names Depositary Shares are registered on the
books of the Depositary or Registrar, as the case may be.
ARTICLE V
THE DEPOSITARY, THE DEPOSITARY'S AGENTS,
THE REGISTRAR AND THE COMPANY
SECTION 5.1 Maintenance of Offices, Agencies and Transfer
Books by the Depositary; Registrar.
Upon execution of this Deposit Agreement, the Depositary shall
maintain at the Depositary's Offices, or at any Registrar's Office, at which
the Depositary shall have complete access to all books and records maintained
on the Company's behalf, facilities for the execution and delivery, surrender
and exchange of Receipts and the registration and registration of transfer of
Depositary Shares, and at the offices of the Depositary's Agents, if any,
facilities for the delivery, surrender and exchange of Receipts and the
registration of transfer of Depositary Shares, all in accordance with the
provisions of this Deposit Agreement.
The Depositary shall keep books at the Depositary's Office for the
registration and registration of transfer of Depositary Shares, which books at
all reasonable times shall be open for inspection by the Record Holders of
Depositary Shares; provided, however, that such inspection shall be for a
proper purpose reasonably related to such person's interest as an owner of
Depositary Shares and any such holder requesting to exercise such right shall
certify such fact in writing to the Depositary and the Company.
The Depositary may close such books, at any time or from time to time,
when deemed expedient by it in connection with the performance of its duties
hereunder.
If the Receipts or the Depositary Shares evidenced thereby or the
Stock underlying such Depositary Shares shall be listed on The New York Stock
Exchange, the Depositary may, with the approval of the Company, appoint a
Registrar for registration of such Receipts or Depositary Shares in accordance
with any requirements of such exchange. Such Registrar (which may be the
Depositary if so permitted by the requirements of such exchange) may be removed
and a substitute registrar appointed by the Depositary upon the written request
or with the written approval of the Company. If the Receipts, such Depositary
Shares or such Stock are listed on one or more other stock exchanges, the
Depositary will, at the request of the Company, arrange such facilities for the
execution, delivery, registration, registration of transfer, surrender and
exchange of such Receipts, such Depositary Shares or such Stock as may be
required by law or applicable stock exchange regulation.
SECTION 5.2 Prevention of or Delay in Performance by the
Depositary the Depositary's Agents, any Registrar or the Company.
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Neither the Depositary nor any Depositary's Agent nor any Registrar
nor the Company shall incur any liability to any holder of any Depositary Share
if by reason of any provision of any present or future law, or regulation
thereunder, of the United States of America or of any other governmental
authority or, in the case of the Depositary, any Depositary's Agent or any
Registrar, by reason of any provision, present or future, of the Company's
Certificate of Incorporation (including the Certificate) or by reason of any
act of God or war or other circumstance beyond the control of the relevant
party, the Depositary, any Depositary's Agent, any Registrar or the Company
shall be prevented or forbidden from doing or perform the any act or thing that
the terms of this Deposit Agreement provide shall be done or performed; nor
shall the Depositary, any Depositary's Agent, any Registrar or the Company
incur any liability to any holder of a Depositary Share (i) by reason of any
nonperformance or delay, caused as aforesaid, in the performance of any act or
thing that the terms of this Deposit Agreement provide shall or may be done or
performed, or (ii) by reason of any exercise of, or failure to exercise, any
discretion provided for in this Deposit Agreement except, in case of any such
exercise or failure to exercise discretion not caused as aforesaid, if caused
by the gross negligence or willful misconduct of the party charged with such
exercise or failure to exercise.
SECTION 5.3 Obligations of the Depositary. the
Depositary's Agents, any Registrar and the Company.
Neither the Depositary nor any Depositary's Agent nor any Registrar
nor the Company assumes any obligation or shall be subject to any liability
under this Deposit Agreement to holders of Depositary Shares other than for
such person's own gross negligence or willful misconduct.
Neither the Depositary nor any Depositary's Agent nor any Registrar
nor the Company shall be under any obligation to appear in, prosecute or defend
any action, suit or other proceeding in respect of the Stock, the Depositary
Shares or the Receipts that in its opinion may involve it in expense or
liability unless indemnity satisfactory to it against all expense and liability
be furnished as often as may be required.
Neither the Depositary nor any Depositary's Agent nor any Registrar
nor the Company shall be liable for any action or failure to act by it in
reliance upon the written advice of legal counsel or accountants, or
information from any person presenting Stock for deposit, any holder of a
Depositary Share or any other person believed by it in good faith to be
competent to give such information. The Depositary, any Depositary's Agent, any
Registrar and the Company may each rely and shall each be protected in acting
upon any written notice, request, direction or other document believed by it to
be genuine and to have been signed or presented by the proper party or parties.
The Depositary undertakes, and any Registrar shall be required to
undertake, to perform such duties and only such duties as are specifically set
forth in this Deposit Agreement, and no
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implied covenants or obligations shall be read into this Deposit Agreement
against the Depositary or any Registrar. The Depositary shall not be subject to
any liability under this Deposit Agreement to the Company other than for any
liability that may arise out of acts performed or omitted by the Depositary or
its agents due to its or their negligence, bad faith or willful misconduct. The
Depositary, the Depositary's agents, any Registrar and the Company may own and
deal in any class of securities of the Company and its affiliates and in
Depositary Shares. The Depositary may also act as transfer agent or registrar
of any of the securities of the Company and its affiliates.
Anything herein to the contrary notwithstanding, in no event shall the
Depositary be liable for special, indirect or consequential loss or damage of
any kind whatsoever (including but not limited to lost profits), even if the
Depositary has been advised of the likelihood of such loss or damage and
regardless of the form of action.
SECTION 5.4 Resignation and Removal of the Depositary:
Appointment of Successor Depositary.
The Depositary may at any time resign as Depositary hereunder by
written notice of its election so to be delivered to the Company, such
resignation to take effect upon the appointment of a successor Depositary and
such successor's written acceptance of such appointment as hereinafter
provided.
The Depositary may at any time be removed by the Company by written
notice of such removal delivered to the Depositary, such removal to take effect
upon the appointment of a successor Depositary and such successor's written
acceptance of such appointment as hereinafter provided.
In case the Depositary acting hereunder shall at any time resign or be
removed, the Company shall, within 60 days after the delivery of the notice of
resignation or removal, as the case may be, appoint a successor Depositary,
which shall be a bank or trust company having its principal office in the
United States of America and having a combined capital and surplus of at least
$50,000,000. If no successor Depositary shall have been so appointed within 60
days after delivery of such notice, the resigning or removed Depositary may
petition any court of competent jurisdiction for the appointment of a successor
Depositary. Every successor Depositary shall execute and deliver to its
predecessor and to the Company an instrument in writing accepting its
appointment hereunder, and thereupon such successor Depositary, without any
further act or deed, shall become fully vested with all the rights, powers,
duties and obligations of its predecessor and for all purposes shall be the
Depositary under this Deposit Agreement, and such predecessor, upon the written
request of the Company, shall execute and deliver an instrument transferring to
such successor all rights and powers of such predecessor hereunder, shall duly
assign, transfer and deliver all right, title and interest in the Stock and any
moneys or property held hereunder to such successor and shall deliver to such
successor a list of the Record Holders of all outstanding Depositary Shares.
Any successor Depositary shall
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promptly mail notice of its appointment to the Record Holders of Depositary
Shares. Thereafter, any predecessor Depositary shall deliver any correspondence
received from any holders of Depositary Shares to the successor Depositary.
Any corporation into or with which the Depositary may be merged,
consolidated or converted shall be the successor of such Depositary without the
execution or filing of any document or any further act. Such successor
Depositary may authenticate the Receipts in the name of the predecessor
Depositary or in the name of the successor Depositary.
SECTION 5.5 Corporate Notices and Reports.
The Company agrees that it will transmit to the Depositary all
notices, reports and communications (including without limitation financial
statements) required by law, the rules of any national securities exchange upon
which the Stock, the Depositary Shares or the Receipts are listed or by the
Company's Certificate of Incorporation (including the Certificate) to be
furnished by the Company to holders of the Stock.
SECTION 5.6 Indemnification by the Company.
The Company shall indemnify the Depositary, any Depositary's Agent and
any Registrar against, and hold each of them harmless from, any loss, liability
or expense (including the costs and expenses of defense) that may arise out of
(i) acts performed or omitted in connection with this Deposit Agreement and the
Depositary Shares (a) by the Depositary, any Registrar or any of their
respective agents (including any Depositary's Agent), except for any liability
arising out of gross negligence, willful misconduct or bad faith on the
respective parts of any such person or persons, or (b) by the Company or any of
its agents, arising out of the Company's or its agents' gross negligence,
willful misconduct or bad faith, or (ii) the offer, sale or registration under
the securities laws of the United States of the Depositary Shares or the Stock.
The obligations of the Company set forth in this Section 5.6 shall survive any
succession of any Depositary, Registrar or Depositary's Agent.
SECTION 5.7 Charges and Expenses.
The Company shall pay all transfer and other taxes and governmental
charges arising solely from the existence of the depositary arrangements. The
Company shall pay all charges of the Depositary agreed upon by the Company and
the Depositary in connection with the initial deposit of the Stock and the
initial issuance of the Receipts, any redemption of the Stock at the option of
the Company and any withdrawals of Stock by holders of Depositary Shares. All
other transfer and other taxes and governmental charges shall be at the expense
of holders of Depositary Shares. If, at the request of a holder of a Depositary
Share, the Depositary incurs charges or expenses for which it is not otherwise
liable hereunder, such holder will be liable for such charges and expenses. The
Company shall pay the Depositary reasonable compensation for all services
rendered by the Depositary under this Deposit Agreement according to the fee
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schedule agreed to by the Company and the Depositary. All other charges and
expenses of the Depositary, any Depositary's Agent hereunder and any Registrar
(including, in each case, fees and expenses of counsel) incident to the
performance of their respective obligations hereunder will be paid upon
consultation and agreement between the Depositary and the Company as to the
amount and nature of such charges and expenses.
ARTICLE VI
AMENDMENT AND TERMINATION
SECTION 6.1 Amendment.
The form of the Receipts and any provisions of this Deposit Agreement
may at any time and from time to time be amended by agreement between the
Company and the Depositary in any respect that they may deem necessary or
desirable; provided, however, that no such amendment that shall materially and
adversely alter the rights of the existing holders of Depositary Shares shall
be effective unless such amendment shall have been approved by the holders of
at least a majority of the Depositary Shares then outstanding. Every holder of
any outstanding Depositary Share at the time any such amendment becomes
effective shall be deemed, by continuing to hold such Depositary Share, to
consent and agree to such amendment and to be bound by this Deposit Agreement
as amended thereby.
SECTION 6.2 Termination.
This Deposit Agreement may be terminated by the Company or the
Depositary only after (i) all outstanding Depositary Shares shall have been
redeemed and any unpaid dividends on the Stock represented by the Depositary
Shares, together with all other moneys and property, if any, to which holders
of the related Receipts are entitled under the terms of such Receipts or this
Deposit Agreement, have been paid or distributed as provided in this Deposit
Agreement or provision therefor has been duly made pursuant to Section 2.3 or
(ii) there shall have been made a final distribution in respect of the Stock in
connection with any liquidation, dissolution or winding up of the Company and
such distribution shall have been distributed to the holders of Receipts
pursuant to Section 4.1 or 4.2, as applicable.
Upon the termination of this Deposit Agreement, the Company shall be
discharged from all obligations under this Deposit Agreement except for its
obligations to the Depositary, any Depositary's Agents and any Registrar under
Sections 5.6 and 5.7.
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ARTICLE VII
MISCELLANEOUS
SECTION 7.1 Counterparts.
This Deposit Agreement may be executed in any number of counterparts,
and by each of the parties hereto on separate counterparts, each of which
counterparts, when so executed and delivered, shall be deemed an original, but
all such counterparts taken together shall constitute one and the same
instrument.
SECTION 7.2 Exclusive Benefit of Parties
This Deposit Agreement is for the exclusive benefit of the parties
hereto, and their respective successors hereunder, and shall not be deemed to
give any legal or equitable right, remedy or claim to any other person
whatsoever.
SECTION 7.3 Invalidity of Provisions.
In case any one or more of the provisions contained in this Deposit
Agreement or in the Receipts shall be or become invalid, illegal or
unenforceable in any respect, the validity, legality and enforceability of the
remaining provisions contained herein or therein shall in no way be affected,
prejudiced or disturbed thereby.
SECTION 7.4 Notices.
Any and all notices to be given to the Company hereunder or under the
Receipts shall be in writing and shall be deemed to have been duly given if
personally delivered or sent by mail or telegram or telex confirmed by letter,
addressed to the Company at 0000 Xxxxx Xxxxxxx'x Xxxxx Xxxxxx, Xxxxx 0000,
Xxxxxxxxx, Xxxxxxxx 00000, to the attention of the General Counsel, or at any
other address of which the Company shall have notified the Depositary in
writing.
Any and all notices to be given to the Depositary hereunder or under
the Receipts shall be in writing and shall be deemed to have been duly given if
personally delivered or sent by mail or by telegram or telex confirmed by
letter, addressed to the Depositary at the Depositary's Office, at 000 Xxxxx
Xxxx Xxxxxx, 0xx Xxxxx, Xxx Xxxxxxx, Xxxxxxxxxx 00000, or at any other address
of which the Depositary shall have notified the Company in writing.
Any and all notices to be given to any Record Holder of a Depositary
Share hereunder or under the Receipts shall be in writing and shall be deemed
to have been duly given if personally delivered or sent by mail or by telegram
or telex confirmed by letter, addressed to such Record Holder at the address of
such Record Holder as it appears on the books of the Depositary, or if
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such bolder shall have filed with the Depositary a written request that notices
intended for such bolder be mailed to some other address, at the address
designated in such request.
Delivery of a notice sent by mail or by telegram or telex shall be
deemed to be effected at the time when a duly addressed letter containing the
same (or a confirmation thereof in the case of a telegram or telex message) is
deposited, postage prepaid, in a post office letter box. The Depositary or
Company may, however, act upon any telegram or telex message received by it
from the other or from any holder of a Depositary Share, notwithstanding that
such telegram or telex message shall not subsequently be confirmed by letter or
as aforesaid.
SECTION 7.5 Depositary's Agents.
The Depositary may from time to time, upon written notice to, and with
the prior approval of, the Company, appoint Depositary' s Agents to act in any
respect for the Depositary for the purposes of this Deposit Agreement and may
terminate the appointment of such Depositary's Agents. The Depositary will
notify the Company of any such termination.
SECTION 7.6 Holders of Receipts Are Parties.
The holders of Depositary Shares from time to time shall be parties to
this Deposit Agreement and shall be bound by all of the terms and conditions
hereof and of the Receipts evidencing such Depositary Shares by acceptance of
delivery thereof.
SECTION 7.7 Governing Law.
THIS DEPOSIT AGREEMENT AND THE RECEIPTS AND ALL RIGHTS HEREUNDER AND
THEREUNDER AND PROVISIONS HEREOF AND THEREOF SHALL BE GOVERNED BY, AND
CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF CALIFORNIA WITHOUT
REFERENCE TO CHOICE OR CONFLICT OF LAW PRINCIPLES.
SECTION 7.8 Inspection of Deposit Agreement.
Copies of this Deposit Agreement shall be filed with the Depositary
and the Depositary's Agents and shall be open Lo inspection during business
hours al the Depositary's Office and the respective offices of the Depositary's
Agents, if any, by any bolder of a Depositary Share.
SECTION 7.9 Headings.
The headings of articles and sections in this Deposit Agreement and in
the form of Receipt set forth in Exhibit A hereto have been inserted for
convenience only and are not to be regarded as part of this Deposit Agreement
or the Receipts or to have any bearing upon the meaning or interpretation of
any provision contained herein or in the Receipts.
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IN WITNESS WHEREOF, the Company and the Depositary have duly executed
this Deposit Agreement as of the day and year first above set forth, and all
holders of Depositary Shares shall become parties hereto by and upon acceptance
by them of delivery of Receipts evidencing such Depositary Shares and issued in
accordance with the terms hereof.
AMERICAN HEALTH PROPERTIES, INC.
By: /s/ XXXXXX X. XXXXXXXX
-----------------------------
Authorized Officer
CHASEMELLON SHAREHOLDER SERVICES,
L.L.C.
By; /s/ XXXXXXX X. XXXXXXXXXXXXX
-----------------------------
Authorized Officer
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EXHIBIT A
[FORM OF DEPOSITARY RECEIPT]
DEPOSITARY RECEIPT FOR DEPOSITARY SHARES
EACH REPRESENTING A ONE-ONE-HUNDREDTH INTEREST IN A SHARE OF
8.60% CUMULATIVE REDEEMABLE PREFERRED STOCK, SERIES B,
PAR VALUE $0.01 PER SHARE
AMERICAN HEALTH PROPERTIES, INC.
INCORPORATED UNDER THE LAWS OF THE STATE OF DELAWARE
THIS DEPOSITARY RECEIPT IS TRANSFERABLE
IN THE CITIES OF LOS ANGELES, RIDGEFIELD PARK OR NEW YORK
ChaseMellon Shareholder Services, L.L.C., as Depositary (the
"Depositary"), hereby certifies that
is the registered owner of DEPOSITARY SHARES
---------------------------
("Depositary Shares"), each Depositary Share representing a one-one-hundredth
interest in one share of 8.60% Cumulative Redeemable Preferred Stock, Series B,
par value $0.01 per share (the "Stock"), of American Health Properties, Inc., a
Delaware corporation (the "Company"), on deposit with the Depositary, subject
to the terms and entitled to the benefits of the Deposit Agreement, dated as of
October 27, 1997 (the "Deposit Agreement"), between the Company, the Depositary
and all holders from time to time of Depositary Receipts. By accepting this
Depositary Receipt the holder hereof becomes a party to and agrees to be bound
by all the terms and conditions of the Deposit Agreement. This Depositary
Receipt shall not be valid or obligatory for any purpose or entitled to any
benefits under the Deposit Agreement unless it shall have been executed by the
Depositary by the manual signature of a duly authorized officer or, if executed
in facsimile by the Depositary, countersigned by a Registrar in respect of the
Depositary Receipts by the manual signature of a duly authorized officer
thereof.
Dated:
----------------------------
CHASEMELLON SHAREHOLDER SERVICES, L.L.C.
Depositary and Registrar
By:
------------------------------------------
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AMERICAN HEALTH PROPERTIES, INC.
1. Depositary Shares. Subject to the terms of the Deposit
Agreement each owner of a Depositary Share is entitled through the Depositary
proportionately to all the rights and preferences of the Stock relating thereto
including dividend, voting, redemption and liquidation rights contained in the
Certificate of Designations adopted by the Company's Board of Directors setting
forth the number, terms, powers, descriptions, rights, preferences,
qualifications, restrictions and limitations of the Stock (the "Certificate")
copies of which are on file at the Depositary's Office at 000 Xxxxx Xxxx
Xxxxxx, 0xx Xxxxx, Xxx Xxxxxxx, Xxxxxxxxxx 00000. Certain terms used herein but
not defined are defined in the Certificate.
2. The Deposit Agreement. Depositary Receipts (the "Receipts"),
of which this Receipt is one, are made available upon the terms and conditions
set forth in the Deposit Agreement. The Deposit Agreement sets forth the rights
of holders of the Receipts and the Depositary Shares evidenced thereby and the
rights and duties of the Depositary and the Company in respect of the Stock
deposited, and any and all other property and cash deposited from time to time
thereunder. The statements made on the face and the reverse of this Receipt are
summaries of certain provisions of the Deposit Agreement and are subject to the
detailed provisions thereof, to which reference is hereby made. Unless
otherwise expressly herein provided, all defined terms used herein shall have
the meanings ascribed thereto in the Deposit Agreement.
3. Redemption. Whenever the Company shall elect to redeem shares
of Stock in accordance with the provisions of the Certificate, it shall (unless
otherwise agreed in writing with the Depositary) mail notice to the Depositary
of such proposed redemption, by first class mail, postage prepaid not less than
35 or more than 95 days prior to the date fixed for redemption of Stock in
accordance with Section 3 of the Certificate. On the date of such redemption,
provided that the Company shall then have paid in full to the Depositary the
redemption price of the Stock to be redeemed, plus any accrued and unpaid
dividends thereon (the "Redemption Price"), the Depositary shall redeem the
Depositary Shares relating to such Stock. The Company shall publish notice of
the redemption of the Stock as required by the Certificate. The Depositary
shall mail notice of such redemption and the proposed simultaneous redemption
of the number of Depositary Shares relating to the Stock to be redeemed, by
first-class mail, postage prepaid, not less than 30 and not more than 90 days
prior to the date fixed for redemption of such Stock and Depositary Shares (the
"Redemption Date"), to the Record Holders of the Depositary Shares to be so
redeemed, at the addresses of such holders as they appear on the records of the
Depositary; but neither failure to mail any such notice to one or more such
holders nor any defect in any notice to one or more such holders shall affect
the sufficiency of the proceedings for redemption as to other holders. Each
such notice shall state: (i) the Redemption Date; (ii) the number of Depositary
Shares to be redeemed and, if less than all the Depositary Shares held by any
such holder are to be redeemed, the number of such Depositary Shares held by
such holder to be so redeemed; (iii) the Redemption Price; (iv) the place or
places where Receipts evidencing
25
Depositary Shares are to be surrendered for payment of the redemption price;
and (v) that dividends in respect of the Stock underlying the Depositary Shares
to be redeemed will cease to accrue and accumulate at the close of business on
such Redemption Date. In case less than all the outstanding Depositary Shares
are to be redeemed, the Depositary Shares to be so redeemed shall be selected
by lot, pro rata or such other method as may be determined by the Depositary to
be equitable.
If the Redemption Date is after the record date for determining
holders of Depositary Shares entitled to any dividend or distribution, such
dividend or distribution shall be payable to the holders of such Depositary
Shares at the close of business on such record date, notwithstanding such
redemption.
Notice having been mailed by the Depositary as aforesaid, from and
after the Redemption Date (unless the Company shall have failed to redeem the
shares of 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
Depositary Shares so called for redemption shall cease to accrue and
accumulate, the Depositary Shares being redeemed from such proceeds shall be
deemed no longer to be outstanding, all rights of the holders of Receipts
evidencing such Depositary Shares (except (i) the right to receive the
Redemption Price, and (ii) the right to receive dividends the record date for
which is prior to the Exchange Date or Redemption Date, as set forth in the
preceding paragraph) shall, to the extent of such Depositary Shares, cease and
terminate and, upon surrender in accordance with such notice of the Receipts
evidencing any such Depositary Shares (properly endorsed or assigned for
transfer, if the Depositary shall so require), such Depositary Shares shall be
redeemed by the Depositary at the Redemption Price.
If less than all 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 the redemption
payment, a new Receipt evidencing the Depositary Shares evidenced by such prior
Receipt and not called for redemption.
4. Transfer, Split-Ups and Combinations. The Depositary Shares
evidenced by this Receipt are transferable on the books of the Depositary upon
surrender of this Receipt to the Depositary, properly endorsed or accompanied
by a properly executed instrument of transfer, and upon such transfer the
Depositary shall execute a new Receipt to or upon the order of the person
entitled thereto as provided in the Deposit Agreement. This Receipt may be
split into other Receipts or combined with other Receipts into one Receipt
representing the same aggregate number of Depositary Shares as the Receipt or
Receipts surrendered.
5. Suspension of Delivery, Transfer, etc. The transfer or
surrender of this Receipt may be suspended during any period when the register
of stockholders of the Company is closed or if any such action is deemed
necessary or advisable by the Depositary, any agent of the Depositary or the
Company at any time or from time to time because of any requirement of law
26
or of any government or governmental body or commission, or under any provision
of the Deposit Agreement.
6. Filing Proofs, Certificates and Other Information. Any holder
of a Depositary Share may be required to file such proof of residence or other
matters or other information, to execute such certificates and to make such
representations and warranties as the Depositary or the Company may reasonably
deem necessary or proper. The Depositary or the Company may withhold
the-delivery or delay the registration of transfer or redemption of any
Depositary Share or the distribution of any dividend or other distribution or
the sale of any rights or of the proceeds thereof until such proof or other
information is filed or such certificates are executed or such representations
and warranties are made.
7. Payment of Taxes or Other Governmental Charges. If any tax or
other governmental charge shall become payable by or on behalf of the
Depositary with respect to this Receipt, such tax (including transfer taxes, if
any) or governmental charge shall be payable by the holder hereof. Transfer of
Depositary Shares may be refused until such payment is made, and any dividends
or other distributions may be withheld or all or any part of the Stock or other
property underlying the Depositary Share or Shares evidenced by this Receipt
and not theretofore sold may be sold for the account of the holder hereof
(after attempting by reasonable means to notify such holder prior to such sale)
and such dividends or other distributions or the proceeds of any such sale may
be applied to any payment of such charges or expenses, the holder of this
Receipt remaining liable for any deficiency.
8. Warranty by Company. The Company has warranted that the Stock
when issued will be validly issued, fully paid and nonassessable.
9. Amendment. The form of the Receipts and any provisions of the
Deposit Agreement may at any time and from time to time be amended by agreement
between the Company and the Depositary in any respect which they may deem
necessary or desirable; provided, however, that no such amendment which shall
materially and adversely alter the rights of the existing holders of Depositary
Shares shall be effective unless such amendment shall have been approved by the
holders of at least a majority of the Depositary Shares then outstanding. A
holder of a Receipt at the time any such amendment so becomes effective shall
be deemed, by continuing to hold such Receipt, to consent and agree to such
amendment and to be bound by the Deposit Agreement as amended thereby.
10. Charges of Depositary. The Company will pay all transfer and
other taxes and governmental charges arising solely from the existence of the
depositary arrangements and all charges of the Depositary in connection with
the initial deposit of the Stock and the initial issuance of the Receipts, any
redemption of the Stock at the option of the Company and any withdrawals of
Stock by holders of Depositary Shares. All other transfer and other taxes and
other governmental charges shall be at the expense of holders of Depositary
Shares. All other
27
charges and expenses of the Depositary, any Depositary's Agent and any
Registrar will be paid upon consultation and agreement between the Depositary
and the Company.
11. Title to Receipts. This Receipt (and the Depositary Shares
evidenced hereby) when properly endorsed or accompanied by a properly executed
instrument of transfer, is transferable by delivery with the same effect as in
the case of a negotiable instrument; provided, however, that until transfer of
the Depositary Share or Shares evidenced by a Receipt shall be registered on
the books of the Depositary, the Depositary may, notwithstanding any notice to
the contrary, treat the Record Holder of such Depositary Share or Shares at
such time as the absolute owner thereof for the purpose of determining the
person entitled to distributions of dividends or other distributions or to any
notice provided for in the Deposit Agreement and for all other purposes.
12. Dividends and Distributions. Whenever the Depositary receives
any cash dividend or other cash distribution on the Stock, the Depositary will,
subject to the provisions of the Deposit Agreement, make such distribution to
the holders of Depositary Shares on the relevant record date as nearly as
practicable in proportion to the number of Depositary Shares held by such
holders; provided, however, that in case the Company or the Depositary shall be
required to withhold and shall withhold from any cash dividend or other cash
distribution in respect of the Stock an amount on account of taxes, the amount
made available for distribution or distributed in respect of Depositary Shares
shall be reduced accordingly. Fractions will be rounded down to the nearest
whole cent.
13. Fixing of Record Date. Whenever any cash dividend or other
cash distribution shall become payable or any distribution other than cash
shall be made, or if rights, preferences or privileges shall at any time be
offered with respect to the Stock, or whenever the Depositary shall receive
notice of any meeting at which holders of Stock are entitled to vote or of
which holders of Stock are entitled to notice, the Depositary shall in each
instance fix a record date (which shall be the record date fixed by the Company
with respect to the Stock) for the determination of the holders of Depositary
Shares who shall be entitled to receive such dividend distribution, rights,
preferences or privileges or the net proceeds of the sale thereof, or to give
instructions for the exercise of voting rights at any such meeting or who shall
be entitled to notice of such meeting.
14. Voting Rights. Upon receipt of notice of any meeting or action
to be taken by written consent at which holders of the Stock are entitled to
vote or consent, the Depositary shall, as soon as practicable thereafter, mail
to the record holders of Depositary Shares a notice which shall contain (i)
such information as is contained in such notice of meeting or action and (ii) a
statement informing holders of Depositary Shares that they may instruct the
Depositary as to the exercise of the voting rights or the giving or refusal of
consent pertaining to the amount of Stock underlying their respective
Depositary Shares and a brief statement as to the manner in which such
instructions may be given. Upon the written request of a holder of a Depositary
Share on the record date established in accordance with paragraph 13 hereof,
the Depositary shall endeavor
28
insofar as practicable to vote or cause to be voted or give or withhold consent
the amount of Stock underlying such Depositary Share in accordance with the
instructions set forth in such request. In the absence of specific instructions
from the holder of a Depositary Share, the Depositary will refrain from voting
to the extent of the Stock underlying such Depositary Share.
15. Changes Affecting Deposited Securities. Upon any change in
par or liquidation value, split-up, combination or any other reclassification
of the Stock or upon any recapitalization, reorganization, merger, amalgamation
or consolidation affecting the Company or to which it is a party, the
Depositary may in its discretion, with the approval of the Company, and in such
manner as the Depositary may deem equitable (i) make such adjustments in (a)
the fraction of an interest in one share of Stock underlying one Depositary
Share and (b) the ratio of the Redemption Price per Depositary Share to the
redemption price of a share of Stock, in each case as may be necessary fully to
reflect the effect of such change and (ii) treat any securities which shall be
received by the Depositary in exchange for or upon conversion of or in respect
of the Stock as new deposited securities so received in exchange for or upon
conversion of or in respect of such Stock. In any such case the Depositary may
in its discretion, with the approval of the Company, execute and deliver
additional Receipts, or may call for the surrender of all outstanding Receipts
to be exchanged for new Receipts specifically describing such new deposited
securities. Furthermore, by mutual agreement of the Company and the Depositary,
the Depositary may at any time make adjustments in (i) the fraction of an
interest in one share of Stock underlying one Depositary Share and (ii) the
ratio of the Redemption Price per Depositary Share to the redemption price or
exchange price of a share of the Stock.
16. Liability and Obligations of the Depositary, the Depositary's
Agents or the Company. Neither the Depositary nor any Depositary's Agent nor
any Registrar nor the Company assumes any obligations or shall be subject to
any liability under the Deposit Agreement to any holder of any Depositary
Share, other than for such person's own gross negligence or willful misconduct.
Neither the Depositary nor any Depositary's Agent nor any Registrar nor the
Company shall incur any liability to any holder of any Depositary Share if by
reason of any provision of any present or future law, or regulation thereunder
of the United States of America or of any other governmental authority or, in
the case of the Depositary, any Depositary's Agent or any Registrar, by reason
of any provision, present or future, of the Company's Certificate of
Incorporation (including the Certificate) or by reason of any act of God or war
or other circumstance beyond their control, the Depositary, any Depositary's
Agent, any Registrar or the Company shall be prevented or forbidden from doing
or performing any act or thing which the terms of the Deposit Agreement provide
shall be done or performed, nor shall the Depositary, any Depositary's Agent,
any Registrar or the Company incur any liability to any holder of a Depositary
Share by reason of nonperformance or delay, caused as aforesaid, in performance
of any act or thing which the terms of the Deposit Agreement provide shall or
may be done or performed, or by reason of any exercise of, or failure to
exercise, any discretion provided for in the Deposit Agreement, other than for
its or their gross negligence or willful misconduct. Neither the Depositary nor
any Depositary's Agent nor any Registrar nor the Company shall be under any
obligation to appear in, prosecute or defend any action, suit or other
29
proceeding in respect of the Stock, the Depositary Shares or the Receipts,
which in its opinion may involve it in expense or liability unless indemnity
satisfactory to it against all expense and liability be furnished. The Deposit
Agreement contains various other exculpatory, indemnification and related
provisions, to which reference is hereby made. Anything herein or in the
Deposit Agreement notwithstanding, in no event shall the Depositary be liable
for special, indirect or consequential loss or damage of any kind whatsoever
(including but not limited to lost profits), even if the Depositary has been
advised of the likelihood of such loss or damage and regardless of the form of
action.
17. Resignation and Removal of Depositary. The Depositary may at
any time (i) resign by written notice of its election to do so delivered to the
Company, such resignation to take effect upon the appointment of a successor
Depositary and such successor's written acceptance of such appointment, or (ii)
be removed by the Company effective upon the appointment of a successor
Depositary and such successor's written acceptance of such appointment.
18. Termination of Deposit Agreement. The Deposit Agreement may be
terminated by the Company or the Depositary only after (i) all outstanding
Depositary Shares shall have been redeemed or (ii) there shall have been made a
final distribution in respect of the Stock in connection with any liquidation,
dissolution or winding up of the Company and such distribution shall have been
distributed to the holders of Depositary Shares. Upon the termination of the
Deposit Agreement, the Company shall be discharged from all obligations
thereunder except for its obligations to the Depositary, any Depositary's Agent
and any Registrar with respect to indemnification, charges and expenses.
19. Governing Law. THIS RECEIPT AND THE DEPOSIT AGREEMENT AND ALL
RIGHTS HEREUNDER AND THEREUNDER AND THE PROVISIONS HEREOF AND THEREOF SHALL BE
GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF
CALIFORNIA.
THE DEPOSITARY IS NOT RESPONSIBLE FOR THE VALIDITY OF ANY DEPOSITED
STOCK. THE DEPOSITARY MAKES NO WARRANTIES OR REPRESENTATIONS AS TO THE
VALIDITY, GENUINENESS OR SUFFICIENCY OF ANY STOCK AT ANY TIME DEPOSITED WITH
THE DEPOSITARY HEREUNDER OR OF THE DEPOSITARY SHARES AS TO THE VALIDITY OR
SUFFICIENCY OF THE DEPOSIT AGREEMENT, AS TO THE VALUE OF THE DEPOSITARY SHARES
OR AS TO ANY RIGHT, TITLE OR INTEREST OF THE RECORD HOLDERS OF THE RECEIPTS TO
THE DEPOSITARY SHARES.
AMERICAN HEALTH PROPERTIES, INC. WILL FURNISH WITHOUT CHARGE TO EACH
RECEIPT HOLDER WHO SO REQUESTS A COPY OF THE DEPOSIT AGREEMENT AND THE
CERTIFICATE. ANY SUCH REQUEST IS TO BE ADDRESSED TO THE SECRETARY OF AMERICAN
HEALTH PROPERTIES, INC.
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