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FORM 8-A
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FOR REGISTRATION OF CERTAIN CLASSES OF SECURITIES
PURSUANT TO SECTION 12(b) or (g) OF THE
SECURITIES EXCHANGE ACT OF 1934
FIRST INDUSTRIAL REALTY TRUST, INC.
(Exact name of registrant as specified in its charter)
Maryland 36-3935116
(State of incorporation (I.R.S. Employer
or organization) Identification No.)
311 S. Wacker Drive, Suite 4000
Chicago, Illinois 60606
(Address of principal executive offices) (zip code)
Securities to be registered pursuant to Section 12(b) of the Act:
Title of each class Name of each exchange on which
to be so registered each class is to be registered
Depositary Shares each repre- The New York Stock Exchange
senting 1/100 of a share of ___________________________
7.95% Series D Cumulative ___________________________
Preferred Stock with a Liqui- ___________________________
dation Preference Equivalent ___________________________
to $25.00 per Depositary ___________________________
Share ___________________________
If this form relates to the registration of a class of securities pursuant to
Section 12(b) of the Exchange Act and is effective pursuant to General
Instruction A.(c), check the following box. [x]
If this form relates to the registration of a class of securities pursuant to
Section 12(g) of the Exchange Act and is effective pursuant to General
Instruction A.(d), check the following box. [ ]
Securities Act registration statement file number to which this form relates:
333-43641.
Securities to be registered pursuant to Section 12(g) of the Act:
None
(Title of class)
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Item 1: Description of Registrant's Securities to be Registered.
The description of First Industrial Realty Trust, Inc.'s (the "Company")
Depositary Shares each representing 1/100 of a share of 7.95% Series D
Cumulative Preferred Stock with a liquidation preference equivalent to $25.00
per Depositary Share is hereby set forth under the caption "Description of
Series D Preferred Shares and Depositary Shares" in the Prospectus Supplement
dated January 30, 1998 and under the captions "Description of Depositary Shares"
and "Description of Preferred Stock" in the accompanying Prospectus dated
January 27, 1998 each as filed with the Securities and Exchange Commission (the
"Commission") on February 3, 1998 pursuant to Rule 424(b), under the Securities
Act of 1933, as amended.
Item 2: Exhibits.
1. Registrant's Prospectus Supplement dated January 30, 1998, together with
accompanying Prospectus dated January 27, 1998 (filed with the Commission on
February 3, 1998).
2. Amended and Restated Articles of Incorporation of the Company
(incorporated by reference to Exhibit 3.1 of the Company's 10-Q for the fiscal
quarter ended June 30, 1996, File No. 1-13102).
3. Amended and Restated Bylaws of the Company, dated September 4, 1997
(incorporated by reference to Exhibit 4.1 of the Company's Form 8-K dated
September 4, 1997 as filed on September 29, 1997, File No. 1-13102).
4. Form of Articles Supplementary to the Amended and Restated Articles of
Incorporation of the Company relating to the Company's Series D Cumulative
Preferred Stock, $.01 par value (filed herewith).
5. Form of Deposit Agreement (filed herewith).
6. Form of Certificate representing Depositary Receipts (filed herewith).
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SIGNATURE
Pursuant to the requirements of Section 12 of the Securities Exchange Act
of 1934, the registrant has duly caused this registration statement to be signed
on its behalf by the undersigned, thereto duly authorized.
FIRST INDUSTRIAL REALTY TRUST, INC.
(Registrant)
By: /s/ Michael J. Havala
--------------------------------
Name: Michael J. Havala
Title: Chief Financial Officer,
Treasurer and Secretary
Date: February 4, 1998
7.95% Series D Cumulative Preferred Stock
(Liquidation Preference $2,500.00 Per Share)
ARTICLES SUPPLEMENTARY
FIRST INDUSTRIAL REALTY TRUST, INC.
----------------------------
Articles Supplementary of Board of Directors Classifying
and Designating a Series of Preferred Stock as
7.95% Series D Cumulative Preferred Stock
and Fixing Distribution and
Other Preferences and Rights of Such Series
----------------------------
Dated as of February 3, 1998
FIRST INDUSTRIAL REALTY TRUST, INC.
----------
Articles Supplementary of Board of Directors Classifying
and Designating a Series of Preferred Stock as
7.95% Series D Cumulative Preferred Stock
and Fixing Distribution and
Other Preferences and Rights of Such Series
----------
First Industrial Realty Trust, Inc., a Maryland corporation, having its
principal office in the State of Maryland in the City of Baltimore (the
"Company"), hereby certifies to the State Department of Assessments and Taxation
of Maryland that:
Pursuant to authority conferred upon the Board of Directors by the Charter
and Bylaws of the Company, the Board of Directors on December 3, 1996 and
December 4, 1997 adopted resolutions appointing certain members of the Board of
Directors to a committee (the "Special Committee") with power to cause the
Company to issue, among other things, certain series of Preferred Stock and to
determine the number of shares which shall constitute such series and the
Dividend Rate (as defined herein) and other terms of such series. The Special
Committee pursuant to a resolution dated January 30, 1998 (i) authorized the
creation and issuance of up to 60,000 shares of Series D Cumulative Preferred
Stock which stock was previously authorized but not issued and (ii) determined
the preferences, conversion and other rights, voting powers, restrictions,
limitations as to dividends, qualifications, and terms and conditions of
redemption of the shares of such series and the Dividend Rate (which rate shall
be 7.95%) payable on such series. Such preferences, conversion and other rights,
voting powers, restrictions, limitations as to dividends, qualifications, and
terms and conditions of redemption, number of shares and Dividend Rate, as
determined by such duly authorized committee, as applicable, are as follows:
Section 1. Number of Shares and Designation. This class of Preferred Stock
shall be designated 7.95% Series D Cu-
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mulative Preferred Stock (the "Series D Preferred Shares") and the number of
shares which shall constitute such series shall not be more that 57,500 shares,
par value $.01 per share, which number may be decreased (but not below the
number thereof then outstanding) from time to time by the Board of Directors.
Section 2. Dividend Rights. (1) Dividends shall be payable in cash on the
Series D Preferred Shares when, as and if declared by the Board of Directors,
out of assets legally available therefor: (i) for the period (the "Initial
Dividend Period") from the Deemed Original Issue Date (as defined below) to but
excluding April 1, 1998, and (ii) for each quarterly dividend period thereafter
(the Initial Dividend Period and each quarterly dividend period being
hereinafter individually referred to as a "Dividend Period" and collectively
referred to as "Dividend Periods"), which quarterly Dividend Periods shall
commence on January 1, April 1, July 1, and October 1 in each year (each, a
"Dividend Period Commencement Date"), commencing on April 1, 1998, and shall end
on and include the day next preceding the next Dividend Period Commencement
Date, at a rate per annum equal to 7.95% of the liquidation preference thereof
(the "Dividend Rate"). Dividends on each Series D Preferred Share shall be
cumulative from the Deemed Original Issue Date of such share and shall be
payable, without interest thereon, when, as and if declared by the Board of
Directors, on March 31, June 30, September 30 and December 31 of each year,
commencing on March 31, 1998 or, in the case of Series D Preferred Shares with a
Deemed Original Issue Date after March 31, 1998, the first such dividend payment
date following such Deemed Original Issue Date; provided, that if any such day
shall be a Saturday, Sunday, or a day on which banking institutions in the State
of New York are authorized or obligated by law to close, or a day which is or is
declared a national or a New York state holiday (any of the foregoing a
"Non-Business Day"), then the payment date shall be the next succeeding day
which is not a Non-Business Day. Each such dividend shall be paid to the holders
of record of Series D Preferred Shares as they appear on the stock register of
the Company on such record date, not more than 45 days nor less than 15 days
preceding the payment date thereof, as shall be fixed by the Board of Directors.
Dividends on account of arrears for any past Dividend Periods may be declared
and paid at any time, without reference to any regular dividend payment date, to
holders of record on such date, not more than 45 days nor less than 15 days
preceding the payment date thereof, as may be fixed by the Board of Directors.
After an amount equal to full cumulative dividends on this series, including for
the then current Dividend Period, has been paid to holders of record of Series D
Preferred Shares
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entitled to receive dividends as set forth above by the Company, or such
dividends have been declared and funds therefor set aside for payment, the
holders of Series D Preferred Shares will not be entitled to any further
dividends with respect to that Dividend Period.
"Deemed Original Issue Date" means (a) in the case of any share which is
part of the first issuance of Series D Preferred Shares or part of a subsequent
issuance of Series D Preferred Shares prior to April 1, 1998, the date of such
first issuance and (b) in the case of any share which is part of a subsequent
issuance of Series D Preferred Shares on or after April 1, 1998, the later of
(x) April 1, 1998 and (y) the latest Dividend Period Commencement Date which
precedes the date of issuance of such share and which succeeds the last Dividend
Period for which full cumulative dividends have been paid; provided that, in the
case of any share which is part of a subsequent issuance on or after April 1,
1998, the date of issuance of which falls between (i) the record date for
dividends payable on the first succeeding dividend payment date and (ii) such
dividend payment date, the "Deemed Original Issue Date" means the date of the
Dividend Period Commencement Date that immediately follows the date of issuance.
(2) Dividends payable on Series D Preferred Shares for any period greater
or less than a full Dividend Period, including the Initial Dividend Period,
shall be computed on the basis of a 360-day year consisting of twelve 30-day
months. Dividends payable on Series D Preferred Shares for each full Dividend
Period shall be computed by dividing the Dividend Rate by four.
(3) When dividends are not paid in full upon the Series D Preferred Shares
and any other series of preferred stock of the Company ranking on a parity
therewith as to dividends, (or, in the case of the Company's Series A Preferred
Shares, payments in lieu thereof are not made under that certain Guarantee and
Payment Agreement dated November 17, 1995 between First Industrial Securities,
L.P., a Delaware limited partnership and First Industrial Securities Corporation
for the benefit of American National Bank and Trust Company of Chicago for the
holders of the Series A Preferred Shares (the "Guarantee")), all dividends
declared upon the Series D Preferred Shares and any other series of preferred
stock of the Company ranking on a parity therewith as to dividends shall be
declared pro rata so that the amount of dividends declared per share on the
Series D Preferred Shares and such other series of preferred stock shall in all
cases bear to each other that same
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ratio that the accumulated dividends per share on the Series D Preferred Shares
and such other series of preferred stock (less, in the case of the Series A
Preferred Shares, payments under the Guarantee in lieu of such dividends) bear
to each other. Except as provided in the preceding sentence, unless an amount
equal to full cumulative dividends on the Series D Preferred Shares has been
paid to holders of record of Series D Preferred Shares entitled to receive
dividends as set forth above by the Company for all past Dividend Periods, no
dividends (other than in shares of the Company's common stock, par value $.01
per share (together with any other shares of capital stock of the Company into
which such shares shall be reclassified or changed "Common Stock"), or other
shares of capital stock of the Company ranking junior to the Series D Preferred
Shares as to dividends and upon liquidation) shall be declared or paid or set
aside for payment nor (except pursuant to the Guarantee with respect to the
Series A Preferred Shares) shall any other distribution be made upon the Common
Stock or any other Shares of capital stock of the Company ranking junior to or
on a parity with the Series D Preferred Shares as to dividends or upon
liquidation. Unless an amount equal to full cumulative dividends on the Series D
Preferred Shares has been paid to holders of record of Series D Preferred Shares
entitled to receive dividends as set forth above by the Company for all past
Dividend Periods, no Common Stock or any other Shares of capital stock of the
Company ranking junior to or on a parity with the Series D Preferred Shares as
to dividends or upon liquidation shall be redeemed, purchased, or otherwise
acquired for any consideration (or any moneys be paid to or made available for a
sinking fund for the redemption of any shares of any such stock) by the Company
or any subsidiary of the Company, except by conversion into or exchange for
shares of capital stock of the Company ranking junior to the Series D Preferred
Shares as to dividends and upon liquidation and except pursuant to the Guarantee
with respect to the Series A Preferred Shares.
Section 3. Liquidation. (1) In the event of any voluntary or involuntary
liquidation, dissolution, or winding up of the Company, the holders of Series D
Preferred Shares are entitled to receive out of the assets of the Company
available for distribution to stockholders, before any distribution of assets is
made to holders of Common Stock or any other class or series of shares ranking
junior to the Series D Preferred Shares upon liquidation, liquidating
distributions in the amount of the stated value of $2,500 per share, plus all
accumulated and unpaid dividends (whether or not earned or declared) for the
then current and all past Dividend Periods. If, upon any voluntary or
involuntary liquidation, dissolution,
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or winding up of the Company, the amounts payable with respect to the Series D
Preferred Shares and any other shares of the Company ranking as to any such
distribution on a parity with the Series D Preferred Shares are not paid in
full, the holders of Series D Preferred Shares and of such other shares will
share ratably in any such distribution of assets of the Company in proportion to
the full respective preferential amounts to which they are entitled. After
payment of the full amount of the liquidating distribution to which they are
entitled, the holders of Series D Preferred Shares will not be entitled to any
further participation in any distribution of assets by the Company.
(2) Written notice of any such liquidation, dissolution or winding up of
the Company, stating the payment date or dates when, and the place or places
where, the amounts distributable in such circumstances shall be payable, shall
be given by first class mail, postage prepaid, not less than 30 nor more than 60
days prior to the payment date stated therein, to each record holder of the
Series D Preferred Shares at the respective addresses of such holders as the
same shall appear on the stock transfer records of the Company.
(3) For purposes of liquidation rights, a consolidation or merger of the
Company with or into any other corporation or corporations or a sale of all or
substantially all of the assets of the Company shall be deemed not to be a
liquidation, dissolution or winding up of the Company.
Section 4. Redemption. (1) Except as provided in clause (9) below, the
Series D Preferred Shares are not redeemable prior to February 4, 2003. On and
after such date, the Series D Preferred Shares are redeemable at the option of
the Company, by resolution of the Board of Directors, in whole or in part, from
time to time upon not less than 30 nor more than 60 days' notice, at a cash
redemption price of the stated value of $2,500 per share, plus all accumulated
and unpaid dividends (whether or not earned or declared) to the date of
redemption (the "Redemption Price"). The Redemption Price (other than the
portion consisting of accumulated and unpaid dividends) shall be payable solely
out of the proceeds from the sale of capital stock of the Company. For purposes
of the preceding sentence "Capital Stock" means common stock, preferred stock,
depositary shares, interests, participations or other ownership interests
(however designated) and any rights (other than debt securities convertible into
or exchangeable for equity securities) or options to purchase any of the
foregoing.
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(2) If fewer than all of the outstanding Series D Preferred Shares are to
be redeemed, the number of shares to be redeemed will be determined by the Board
of Directors and such shares shall be redeemed pro rata from the holders of
record of such shares in proportion to the number of such shares held by such
holders (with adjustments to avoid redemption of fractional shares) or by lot in
a manner determined by the Board of Directors.
(3) Notwithstanding the foregoing, if an amount equal to full dividends for
all past Dividend Periods on the Series D Preferred Shares has not been paid to
holders of record of Series D Preferred Shares entitled to receive dividends as
set forth above by the Company, no Series D Preferred Shares shall be redeemed,
except pursuant to Article IX of the Charter, unless all outstanding Series D
Preferred Shares are simultaneously redeemed, and the Company shall not purchase
or otherwise acquire, directly or indirectly, any Series D Preferred Shares;
provided, however, that the foregoing shall not prevent the purchase or
acquisition of Series D Preferred Shares pursuant to a purchase or exchange
offer provided such offer is made on the same terms to all holders of Series D
Preferred Shares.
(4) Immediately prior to any redemption of Series D Preferred Shares, the
Company shall pay, in cash, any accumulated and unpaid dividends through the
redemption date, unless a redemption date falls after a dividend payment record
date and prior to the corresponding dividend payment date, in which case each
holder of Series D Preferred Shares at the close of business on such dividend
payment record date shall be entitled to the dividend payable on such shares on
the corresponding dividend payment date notwithstanding the redemption of such
shares before such dividend payment date. Except as expressly provided
hereinabove, the Company shall make no payment or allowance for unpaid
dividends, whether or not in arrears, on Series D Preferred Shares called for
redemption.
(5) Notice of redemption shall be given by publication in a newspaper of
general circulation in The City of New York, such publication to be made once a
week for two successive weeks, commencing not less than 30 nor more than 60 days
prior to the date fixed for redemption thereof. A similar notice will be mailed
by the Company by first class mail, postage prepaid, to each record holder of
the Series D Preferred Shares to be redeemed, not less than 30 nor more than 60
days prior to such redemption date, to the respective addresses of such holders
as the same shall appear on the stock transfer records of
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the Company. Each notice shall state: (i) the redemption date; (ii) the number
of Series D Preferred Shares to be redeemed; (iii) the Redemption Price; (iv)
the place or places where certificates for such shares are to be surrendered for
payment of the Redemption Price; and (v) that dividends on the shares to be
redeemed will cease to accumulate on such redemption date. If fewer than all the
Series D Preferred Shares held by any holder are to be redeemed, the notice
mailed to such holder shall also specify the number of Series D Preferred Shares
to be redeemed from such holder.
(6) In order to facilitate the redemption of Series D Preferred Shares, the
Board of Directors may fix a record date for the determination of the shares to
be redeemed, such record date to be not less than 30 nor more than 60 days prior
to the date fixed for such redemption.
(7) Notice having been given as provided above, from and after the date
fixed for the redemption of Series D Preferred Shares by the Company (unless the
Company shall fail to make available the money necessary to effect such
redemption), the holders of shares selected for redemption shall cease to be
stockholders with respect to such shares and shall have no interest in or claim
against the Company by virtue thereof and shall have no voting or other rights
with respect to such shares, except the right to receive the moneys payable upon
such redemption from the Company, less any required tax withholding amount,
without interest thereon, upon surrender (and endorsement or assignment of
transfer, if required by the Company and so stated in the notice) of their
certificates, and the shares represented thereby shall no longer be deemed to be
outstanding. If fewer than all the shares represented by a certificate are
redeemed, a new certificate shall be issued, without cost to the holder thereof,
representing the unredeemed shares. The Company may, at its option, at any time
after a notice of redemption has been given, deposit the redemption price for
the Series D Preferred Shares designated for redemption and not yet redeemed,
plus any accumulated and unpaid dividends thereon to the date fixed for
redemption, with the transfer agent or agents for the Series D Preferred Shares,
as a trust fund for the benefit of the holders of the Series D Preferred Shares
designated for redemption, together with irrevocable instructions and authority
to such transfer agent or agents that such funds be delivered upon redemption of
such shares and to pay, on and after the date fixed for redemption or prior
thereto, the redemption price of the shares to their respective holders upon the
surrender of their share certificates. From and after the making of such
deposit, the holders
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of the shares designated for redemption shall cease to be stockholders with
respect to such shares and shall have no interest in or claims against the
Company by virtue thereof and shall have no voting or other rights with respect
to such shares, except the right to receive from such trust fund the moneys
payable upon such redemption, without interest thereon, upon surrender (and
endorsement, if required by the Company) of their certificates, and the shares
represented thereby shall no longer be deemed to be outstanding. Any balance of
such moneys remaining unclaimed at the end of the five-year period commencing on
the date fixed for redemption shall be repaid to the Company upon its request
expressed in a resolution of its Board of Directors.
(8) Any Series D Preferred Shares that shall at any time have been redeemed
shall, after such redemption, have the status of authorized but unissued
preferred stock, without designation as to series until such shares are once
more designated as part of a particular series by the Board of Directors.
(9) The Series D Preferred Shares are subject to the provisions of Article
IX of the Charter, including, without limitation, the provisions for the
redemption of Excess Stock (as defined in such Article). Notwithstanding the
provisions of Article IX of the Charter, Series D Preferred Shares which have
been exchanged pursuant to such Article for Excess Stock may be redeemed, in
whole or in part, and, if in part, pro rata from the holders of record of such
shares in proportion to the number of such shares held by such holders (with
adjustments to avoid redemption of fractional shares) or by lot in a manner
determined by the Board of Directors, at any time when outstanding Series D
Preferred Shares are being redeemed.
Section 5. Voting Rights. The Series D Preferred Shares shall not have any
voting powers either general or special, except as required by law and except
that:
(1) If and whenever full cumulative dividends on the Series D Preferred
Shares, or any other series of preferred stock of the Company ranking on a
parity with the Series D Preferred Shares as to dividends or upon liquidation
(any such series, a "Parity Preferred Series"), for six quarterly dividend
payment periods, whether or not consecutive, are in arrears and unpaid, (and, if
such an arrearage exists with respect to Series A Preferred Shares, payment has
not been made in the amount of such arrearages pursuant to the Guarantee) (such
failure to pay by the Company, a "Dividend Default"), the holders of all
outstanding Series D Preferred Shares and any Parity
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Preferred Series, voting as a single class without regard to series, will be
entitled to elect two Directors until all dividends in arrears and unpaid on the
Series D Preferred Shares and any Parity Preferred Series have been paid (either
directly or, in the case of the Series A Preferred Shares, pursuant to the
Guarantee) or declared and funds therefor set apart for payment. At any time
when such right to elect Directors separately as a class shall have so vested,
the Company may, and upon the written request of the holders of record of not
less than 20% of the total number of Series D Preferred Shares and shares of any
Parity Preferred Series of the Company then outstanding shall, call a special
meeting of stockholders for the election of such Directors. In the case of such
a written request, such special meeting shall be held within 90 days after the
delivery of such request and, in either case, at the place and upon the notice
provided by law and in the Bylaws of the Company, provided that the Company
shall not be required to call such a special meeting if such request is received
less than 120 days before the date fixed for the next ensuing Annual Meeting of
Stockholders of the Company and the holders of all outstanding Series D
Preferred Shares and shares of any Parity Preferred Series are afforded the
opportunity to elect such Directors (or fill any vacancy) at such Annual Meeting
of Stockholders. Directors elected as aforesaid shall serve until the next
Annual Meeting of Stockholders of the Company or until their respective
successors shall be elected and qualified, or, if sooner, until an amount equal
to all dividends in arrears and unpaid have been paid (either directly or
pursuant to the Guarantee) or declared and funds therefor set apart for payment.
If, prior to the end of the term of any Director elected as aforesaid, a vacancy
in the office of such Director shall occur during the continuance of a Dividend
Default by reason of death, resignation, or disability, such vacancy shall be
filled for the unexpired term by the appointment of a new Director for the
unexpired term of such former Director, such appointment to be made by the
remaining Director or Directors elected as aforesaid.
(2) The affirmative vote or consent of the holders of at least two-thirds
of the outstanding Series D Preferred Shares and any Parity Preferred Series,
voting as a single class without regard to series, will be required to issue,
authorize or increase the authorized amount of any class or series of shares
ranking prior to the Series D Preferred Shares and shares of each Parity
Preferred Series as to dividends or upon liquidation or to issue or authorize
any obligation or security convertible into or evidencing a right to purchase
any such security. Subject to the preceding sentence, the affirma-
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tive vote or consent of the holders of at least two-thirds of the outstanding
Series D Preferred Shares, voting separately as a class, will be required to
amend or repeal any provision of, or add any provision to, the Charter if such
action would materially and adversely alter or change the powers, preferences,
privileges or rights of the Series D Preferred Shares.
(3) Nothing herein shall be taken to require a class vote or consent in
connection with the authorization, designation, increase or issuance of shares
of any class or series (including additional preferred stock of any series) that
rank junior to or on a parity with the Series D Preferred Shares as to dividends
and liquidation rights or in connection with the authorization, designation,
increase or issuance of any bonds, mortgages, debentures or other debt
obligations of the Company.
Section 6. Conversion. The Series D Preferred Shares are not convertible
into shares of any other class or series of the capital stock of the Company.
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IN WITNESS WHEREOF, the Company has caused these Articles Supplementary to
be signed in its name and on its behalf and attested to by the undersigned on
this 30th day of January, 1998 and the undersigned acknowledges under the
penalties of perjury that these Articles Supplementary are the corporate act of
said Company and that to the best of his knowledge, information and belief, the
matters and facts set forth herein are true in all material respects.
FIRST INDUSTRIAL REALTY TRUST, INC.
By: /s/ Gary H. Heigl
-------------------------------
Name: Gary H. Heigl
Title: Senior Vice President
Attest:
/s/ Scott A. Musil
- ----------------------------
Name: Scott A. Musil
Title: Assistant Secretary
FIRST INDUSTRIAL REALTY TRUST, INC.,
FIRST CHICAGO TRUST COMPANY OF NEW YORK,
AS DEPOSITARY,
AND
THE HOLDERS FROM TIME TO TIME OF
THE DEPOSITARY RECEIPTS DESCRIBED HEREIN
RELATING TO SERIES D CUMULATIVE PREFERRED STOCK
DEPOSIT AGREEMENT
---------------------
Dated as of February 4, 1998
---------------------
TABLE OF CONTENTS
Page
ARTICLE I
DEFINITIONS
ARTICLE II
FORM OF RECEIPTS, DEPOSIT OF STOCK, EXECUTION AND DELIVERY,
TRANSFER, SURRENDER AND REDEMPTION OF RECEIPTS
SECTION 2.1. Form and Transfer of Receipts...................................2
SECTION 2.2. Deposit of Stock; Execution and Delivery of
Receipts in Respect Thereof....................................5
SECTION 2.3. Registration of Transfer of Receipts............................5
SECTION 2.4. Split-ups and Combinations of Receipts; Surrender of
Receipts and Withdrawal of Stock..............................6
SECTION 2.5. Limitations on Execution and Delivery, Transfer,
Surrender and Exchange of Receipts............................7
SECTION 2.6. Lost Receipts, etc...............................................8
SECTION 2.7. Cancellation and Destruction of Surrendered Receipts.............8
SECTION 2.8. Redemption of Stock..............................................8
SECTION 2.9. Stock Constituting Excess Shares................................10
SECTION 2.10. Interchangeability of Book-Entry Receipts in Physical,
Certificated Form.............................................10
ARTICLE III
CERTAIN OBLIGATIONS OF HOLDERS OF RECEIPTS AND THE COMPANY
SECTION 3.1. Filing Proofs, Certificates and Other Information...............10
SECTION 3.2. Payment of Taxes or Other Governmental Charges..................11
SECTION 3.3. Warranty as to Stock............................................11
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Page
ARTICLE IV
THE DEPOSITED SECURITIES; NOTICES
SECTION 4.1. Cash Distributions..............................................11
SECTION 4.2. Distributions Other than Cash, Rights, Preferences or
Privileges....................................................12
SECTION 4.3. Subscription Rights, Preferences or Privileges..................12
SECTION 4.4. Notice of Dividends, etc.; Fixing Record Date for Holders
of Receipts...................................................14
SECTION 4.5. Voting Rights ..................................................14
SECTION 4.6. Changes Affecting Deposited Securities and Reclassifi-
cations, Recapitalizations, etc...............................15
SECTION 4.7. Delivery of Reports.............................................15
SECTION 4.8. List of Receipt Holders.........................................15
ARTICLE V
THE DEPOSITARY, THE DEPOSITARY'S AGENTS, THE REGISTRAR
SECTION 5.1. Maintenance of Offices, Agencies and Transfer Books by
the Depositary; Registrar.....................................16
SECTION 5.2. Prevention of or Delay in Performance by the Depositary,
the Depositary's Agents, the Registrar or the Company.........17
SECTION 5.3. Obligation of the Depositary, the Depositary's Agents,
the Registrar and the Company.................................17
SECTION 5.4. Resignation and Removal of the Depositary; Appointment
of Successor Depositary......................................19
SECTION 5.5. Corporate Notices and Reports...................................20
SECTION 5.6. Indemnification by the Company..................................20
SECTION 5.7. Charges and Expenses............................................21
SECTION 5.8. Tax Compliance .................................................21
ARTICLE VI
AMENDMENT AND TERMINATION
SECTION 6.1. Amendment ......................................................22
SECTION 6.2. Termination ....................................................22
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Page
ARTICLE VII
MISCELLANEOUS
SECTION 7.1. Counterparts ...................................................23
SECTION 7.2. Exclusive Benefit of Parties....................................23
SECTION 7.3. Invalidity of Provisions........................................23
SECTION 7.4. Notices ........................................................23
SECTION 7.5. Appointment of Registrar........................................24
SECTION 7.6. Holders of Receipts Are Parties.................................24
SECTION 7.7. Governing Law ..................................................24
SECTION 7.8. Inspection of Deposit Agreement.................................25
SECTION 7.9. Headings .......................................................25
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DEPOSIT AGREEMENT, dated as of February 4, 1998, among FIRST INDUSTRIAL
REALTY TRUST, INC., a Maryland corporation (the "Company"), FIRST CHICAGO TRUST
COMPANY OF NEW YORK, a national banking association (the "Depositary"), and the
holders from time to time of the Receipts described herein.
WHEREAS, it is desired to provide, as hereinafter set forth in this Deposit
Agreement, for the deposit of shares of Series D Cumulative Preferred Stock of
the Company with the Depositary for the purposes set forth in this Deposit
Agreement and for the issuance hereunder of Receipts evidencing Depositary
Shares in respect of the Stock so deposited; and
WHEREAS, the Receipts are to be substantially in the form of Exhibit A
annexed hereto, with appropriate insertions, modifications and omissions, as
hereinafter provided in this Deposit Agreement;
NOW, THEREFORE, in consideration of the promises contained herein, the
receipt and sufficiency of which is hereby acknowledged, the parties hereto
hereby agree as follows:
ARTICLE I
DEFINITIONS
The following definitions shall, for all purposes, unless otherwise
indicated, apply to the respective terms used in this Deposit Agreement:
"Articles Supplementary" shall mean the Articles Supplementary filed with
the Secretary of State of the State of Maryland establishing the Stock as a
series of preferred stock of the Company.
"Deposit Agreement" shall mean this Deposit Agreement, as amended or
supplemented from time to time.
"Depositary" shall mean First Chicago Trust Company of New York and any
successor as Depositary hereunder.
"Depositary Shares" shall mean Depositary Shares, each representing 1/100
of a share of Stock and evidenced by a Receipt.
"Depositary's Agent" shall mean an agent appointed by the Depositary
pursuant to Section 5.1 and shall include the Registrar if such Registrar is not
the Depositary.
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"Depositary's Office", shall mean any office of the Depositary at which at
any particular time its depositary receipt business shall be administered.
"Excess Stock" shall mean Excess Stock as defined in Section 7.4 of the
Company's Amended and Restated Articles of Incorporation.
"Receipt" shall mean one of the Depositary Receipts, substantially in the
form set forth as Exhibit A hereto, issued hereunder, whether in definitive or
temporary form and evidencing the number of Depositary Shares held of record by
the record holder of such Depositary Shares. If the context so requires, the
term "Receipt" shall be deemed to include the DTC Receipt (as defined in Section
2.1 hereof).
"record holder" or "holder" as applied to a Receipt shall mean the person
in whose name a Receipt is registered on the books of the Depositary maintained
for such purpose.
"Registrar" shall mean the Depositary or such other bank or trust company
which shall be appointed to register ownership and transfers of Receipts as
herein provided.-
"Securities Act" shall mean the Securities Act of 1933, as amended.
"Stock" shall mean shares of the Company's 7.95% Series D Cumulative
Preferred Stock, $.0l par value per share.
ARTICLE II
FORM OF RECEIPTS, DEPOSIT OF STOCK, EXECUTION AND DELIVERY,
TRANSFER, SURRENDER AND REDEMPTION OF RECEIPTS
SECTION 2.1. Form and Transfer of Receipts. The Company and the Depositary
shall make application to The Depository Trust Company ("DTC") for acceptance of
all or a portion of the Receipts for its book-entry settlement system. The
Company hereby appoints the Depositary acting through any authorized officer
thereof as its attorney-in-fact, with full power to delegate, for purposes of
executing any agreements, certifications or other instruments or documents
necessary or desirable in order to effect the acceptance of such Receipts for
DTC eligibility. So long as the Receipts are eligible for book-entry settlement
with DTC, unless otherwise required by law, all Depositary Shares to be traded
on the New York Stock Exchange with book-entry settlement through DTC shall be
represented by a single receipt (the "DTC Receipt"),
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which shall be deposited with DTC (or its designee) evidencing all such
Depositary Shares and registered in the name of the nominee of DTC (initially
expected to be Cede & Co.). First Chicago Trust Company of New York or such
other entity as is agreed to by DTC may hold the DTC Receipt as custodian for
DTC. Ownership of beneficial interests in the DTC Receipt shall be shown on, and
the transfer of such ownership shall be effected through, records maintained by
(i) DTC or its nominee for such DTC Receipt, or (ii) institutions that have
accounts with DTC.
If DTC subsequently ceases to make its book-entry settlement system
available for the Receipts, the Company may instruct the Depositary regarding
making other arrangements for book-entry settlement. In the event that the
Receipts are not eligible for, or it is no longer desirable to have the Receipts
available in, book-entry form, the Depositary shall provide written instructions
to DTC to deliver to the Depositary for cancellation the DTC Receipt, and the
Company shall instruct the Depositary to deliver to the beneficial owners of the
Depositary Shares previously evidenced by the DTC definitive Receipts in
physical form evidencing such Depositary Shares. Such definitive receipts shall
be in substantially the form annexed hereto as Annex A, with appropriate
insertions, modifications and omissions, as hereafter provided.
The beneficial owners of Depositary Shares shall, except as stated above
with respect to Depositary Shares in book-entry form represented by the DTC
Receipt, be entitled to receive Receipts in physical, certificated form as
herein provided.
Definitive Receipts shall be engraved or printed or lithographed on
steel-engraved borders, with appropriate insertions, modifications and
omissions, as hereinafter provided, if and to the extent required by any
securities exchange on which the Receipts are listed. The DTC Receipt shall bear
such legend or legends as may be required by DTC in order for it to accept the
Depository Shares for its book-entry settlement system. Pending the preparation
of definitive Receipts or if definitive Receipts are not required by any
securities exchange on which the Receipts are listed, the Depositary, upon the
written order of the Company, delivered in compliance with Section 2.2, shall
execute and deliver temporary Receipts which are printed, lithographed,
typewritten, mimeographed or otherwise substantially of the tenor of the
definitive Receipts in lieu of which they are issued and with such appropriate
insertions, omissions, substitutions and other variations as the persons
executing such Receipts may determine, as evidenced by their execution of such
Receipts. If temporary Receipts are issued, the Company and the Depositary will
cause de-
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finitive Receipts to be prepared without unreasonable delay. After the
preparation of definitive Receipts, the temporary Receipts shall be exchangeable
for definitive Receipts upon surrender of the temporary Receipts at the
Depositary's Office or at such other place or places as the Depositary shall
determine, without charge to the holder. Upon surrender for cancellation of any
one or more temporary Receipts, the Depositary shall execute and deliver in
exchange therefor definitive Receipts representing the same number of Depositary
Shares as represented by the surrendered temporary Receipt or Receipts. Such
exchange shall be made at the Company's expense and without any charge to the
holder therefor. Until so exchanged, the temporary Receipts shall in all
respects be entitled to the same benefits under this Agreement, and with respect
to the Stock, as definitive Receipts.
Receipts shall be executed by the Depositary by the manual and/or facsimile
signature of a duly authorized officer of the Depositary. No Receipt shall be
entitled to any benefits under this Deposit Agreement or be valid or obligatory
for any purpose unless it shall have been executed in accordance with the
foregoing sentence. The Depositary shall record on its books each Receipt so
signed and delivered as hereinafter provided.
Receipts shall be in denominations of any number of whole Depositary
Shares. The Company shall deliver to the Depositary from time to time such
quantities of Receipts as the Depositary may request to enable the Depositary to
perform its obligations under this Deposit Agreement.
Receipts may be endorsed with or have incorporated in the text thereof such
legends or recitals or changes not inconsistent with the provisions of this
Deposit Agreement as may be required by the Depositary or required to comply
with any applicable law or any regulation thereunder or with the rules and
regulations of any securities exchange upon which the Stock, the Depositary
Shares or the Receipts may be listed or to conform with any usage with respect
thereto, or to indicate any special limitations or restrictions to which any
particular Receipts are subject.
Title to Depositary Shares evidenced by a Receipt which is properly
endorsed or accompanied by a properly executed instrument of transfer shall be
transferable by delivery with the same effect as in the case of a negotiable
instrument; provided, however, that until transfer of a Receipt shall be
registered on the books of the Depositary as provided in Section 2.3, the
Depositary may, notwithstanding any notice to the contrary, treat the record
holder thereof at such time as the absolute owner thereof for the purpose of
determining the person entitled to distributions of
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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 or such holder, as
the case may be, directing the Depositary to execute and deliver to, or upon the
written order of, the person or persons stated in such order a Receipt or
Receipts for the number of Depositary Shares representing such deposited Stock.
Deposited Stock shall be held by the Depositary at the Depositary's Office
or at such other place or places as the Depositary shall determine.
Upon receipt by the Depositary of a certificate or certificates for Stock
deposited in accordance with the provisions of this Section, together with the
other documents required as above specified, and upon recordation of the Stock
on the books of the Company in the name of the Depositary or its nominee, the
Depositary, subject to the terms and conditions of this Deposit Agreement, shall
execute and deliver, to or upon the order of the person or persons named in the
written order delivered to the Depositary referred to in the first paragraph of
this Section, a Receipt or Receipts for the whole number of Depositary Shares
representing, in the aggregate, the Stock so deposited and registered in such
name or names as may be requested by such person or persons. The Depositary
shall execute and deliver such Receipt or Receipts at the Depositary's Office or
such other offices, if any, as the Depositary may designate. Delivery at other
offices shall be at the risk and expense of the person requesting such delivery.
SECTION 2.3. Registration of Transfer of Receipts. Subject to the terms and
conditions of this Deposit Agreement, the Depositary shall register on its books
from time to time transfers of Receipts upon any surrender thereof by the holder
in person or by a duly authorized attorney, 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
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the Receipt or Receipts surrendered and deliver such new Receipt or Receipts to
or upon the order of the person entitled thereto.
SECTION 2.4. Split-ups and Combinations of Receipts; Surrender of Receipts
and Withdrawal of Stock . Upon surrender of a Receipt or Receipts at the
Depositary's Office or at such other offices as it may designate for the purpose
of effecting a split-up or combination of such Receipt or Receipts, and subject
to the terms and conditions of this Deposit Agreement, the Depositary shall
execute and deliver a new Receipt or Receipts in the authorized denomination or
denominations requested, evidencing the aggregate number of Depositary Shares
evidenced by the Receipt or Receipts surrendered; provided, however, that the
Depositary shall not issue any Receipt evidencing a fractional Depositary Share.
Any holder of a Receipt or Receipts representing any number of whole shares
of Stock may (unless the related Depositary Shares have previously been called
for redemption) withdraw the Stock and all money and other property, if any,
represented thereby by surrendering such Receipt or Receipts at the Depositary's
Office or at such other offices as the Depositary may designate for such
withdrawals and paying any unpaid amount due the Depositary. If such holder's
Depositary Shares are being held by DTC or its nominee pursuant to Section 2.1,
such holder shall request withdrawal from the book-entry system of Receipts
representing any number of whole shares. Thereafter, without unreasonable delay,
the Depositary shall deliver to such holder or to the person or persons
designated by such holder as hereinafter provided the number of whole shares of
Stock and all money and other property, if any, represented by the Receipt or
Receipts so surrendered for withdrawal, but holders of such whole shares of
Stock will not thereafter be entitled to deposit such Stock hereunder or to
receive Depositary Shares therefor. If a Receipt delivered by the holder to the
Depositary in connection with such withdrawal shall evidence a number of
Depositary Shares in excess of the number of Depositary Shares representing the
number of whole shares of Stock to be so withdrawn, the Depositary shall at the
same time, in addition to such number of whole shares of Stock and such money
and other property, if any, to be so withdrawn, deliver to such holder, or upon
his order, a new Receipt evidencing such excess number of Depositary Shares;
provided, however, that the Depositary shall not issue any Receipt evidencing a
fractional Depositary Share.
Delivery of the Stock and money and other property being withdrawn may be
made by the delivery of such certificates, documents of title and other
instruments as the Depositary may deem
-7-
appropriate, which, if required by the Depositary, shall be properly endorsed or
accompanied by proper instruments of transfer.
If the Stock and the money and other property being withdrawn are to be
delivered to a person or persons other than the record holder of the Receipt or
Receipts being surrendered for withdrawal of Stock, such holder shall execute
and deliver to the Depositary a written order so directing the Depositary and
the Depositary may require that the Receipt or Receipts surrendered by such
holder for withdrawal of such shares of Stock be properly endorsed in blank or
accompanied by a properly executed instrument of transfer in blank.
Delivery of the Stock and the money and other property, if any, represented
by Receipts surrendered for withdrawal shall be made by the Depositary at the
Depositary's Office, except that, at the request, risk and expense of the holder
surrendering such Receipt or Receipts and for the account of the holder thereof,
such delivery may be made at such other place as may be designated by such
holder.
SECTION 2.5. Limitations on Execution and Delivery, Transfer, Surrender and
Exchange of Receipts. As a condition precedent to the execution and delivery,
registration of transfer, split-up, ts combination, surrender or exchange of any
Receipt, the Depositary, any of the Depositary's Agents or the Company may
require payment to it of a sum sufficient for the payment (or, in the event that
the Depositary or the Company shall have made such payment, the reimbursement to
it) of any charges or expenses payable by the holder of a Receipt pursuant to
Sections 3.2 and 5.7, may 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 deposit of Stock may be refused, the delivery of Receipts against Stock
may be suspended, the registration of transfer of Receipts may be refused and
the registration of transfer, surrender or exchange of outstanding Receipts may
be suspended (i) during any period when the register of stockholders of the
Company is closed, or (ii) if any such action is deemed necessary or advisable
by the Depositary, any of the Depositary's Agents or the Company at any time or
from time to time because of any requirement of law or of any government or
governmental body or commission or under any provision of this Deposit
Agreement.
-8-
SECTION 2.6. Lost Receipts, etc. In case any receipt shall be mutilated,
destroyed, lost or stolen, the Depositary in its reasonable discretion may
execute and deliver a Receipt of like form and tenor in exchange and
substitution for such mutilated Receipt, or in lieu of and in substitution for
such destroyed, lost or stolen Receipt, upon (i) the filing by the holder
thereof with the Depositary of evidence reasonably satisfactory to the
Depositary of such destruction or loss or theft of such Receipt, of the
authenticity thereof and of his or her ownership thereof, (ii) the furnishing of
the Depositary with indemnification reasonably satisfactory to it and the
Company and (iii) the payment of any reasonable expense (including reasonable
fees, charges and expenses of the Depositary) in connection with such execution
and delivery.
SECTION 2.7. Cancellation and Destruction of Surrendered Receipts. All
Receipts surrendered to the Depositary or any Depositary's Agent shall be
cancelled by the Depositary. Except as prohibited by applicable law or
regulation, the Company is authorized to destroy all Receipts so cancelled.
SECTION 2.8. Redemption of Stock. Whenever the Company shall be permitted
and shall elect to redeem shares of Stock in accordance with the provisions of
the Company's Articles of Incorporation or Articles Supplementary, it shall
(unless otherwise agreed to in writing with the Depositary) give or cause to be
given to the Depositary not less than 45 days notice of the date of such
proposed redemption or exchange of Stock and of the number of such shares held
by the Depositary to be so redeemed and the applicable redemption price, as set
forth in the Articles Supplementary, which notice shall be accompanied by a
certificate from the Company stating that such redemption of Stock is in
accordance with the provisions of the Company's Articles of Incorporation or
Articles Supplementary. On the date of such redemption, provided that the
Company shall then have paid or caused to be paid in full to the Depositary the
redemption price of the Stock to be redeemed, plus an amount equal to any
accrued and unpaid dividends thereon to the date fixed for redemption, in
accordance with the provisions of the Articles Supplementary, the Depositary
shall redeem the number of Depositary Shares representing such Stock. The
Depositary shall mail notice of the Company's redemption of Stock and the
proposed simultaneous redemption of the number of Depositary Shares representing
the Stock to be redeemed by first-class mail, postage prepaid, not less than 30
and not more than 60 days prior to the date fixed for redemption of such Stock
and Depositary Shares (the "Redemption Date") to the record holders of the
Receipts evidencing the Depositary Shares to be so redeemed, at the address of
such holders as they appear on the records of the
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Depositary; but neither failure to mail any such notice of redemption of
Depositary Shares to one or more such holders nor any defect in any notice of
redemption of Depositary Shares to one or more such holders shall affect the
sufficiency of the proceedings for redemption as to the other holders. The
Company will provide the Depositary with the information necessary for the
Depositary to prepare such notice and each such notice shall state: (i) the
Redemption Date; (ii) the number of Depositary Shares to be redeemed and, if
fewer than all the Depositary Shares held by any such holder are to be redeemed,
the number of such Depositary Shares held by such holder to be so redeemed;
(iii) the redemption price per Depositary Share; (iv) the place or places where
Receipts evidencing Depositary Shares are to be surrendered for payment of the
redemption price; and (v) that dividends in respect of the Stock represented by
the Depositary Shares to be redeemed will cease to accrue on such Redemption
Date and will bear no interest. In case fewer than all the outstanding
Depositary Shares are to be redeemed, the Depositary Shares to be so redeemed
shall be determined pro rata or by lot in a manner determined by the Board of
Directors.
Notice having been mailed by the Depositary as aforesaid, from and after
the Redemption Date (unless the Company shall have failed to provide the funds
necessary to redeem the Stock evidenced by the Depositary Shares called for
redemption) (i) dividends on the shares of Stock so called for redemption shall
cease to accrue from and after such date, (ii) the Depositary Shares being
redeemed from such proceeds shall be deemed no longer to be outstanding, (iii)
all rights of the holders of Receipts evidencing such Depositary Shares (except
the right to receive the redemption price) shall, to the extent of such
Depositary Shares, cease and terminate, and (iv) upon surrender in accordance
with such redemption; notice of the Receipts evidencing any such Depositary
Shares called for redemption (properly endorsed or assigned for transfer, if the
Depositary or applicable law shall so require), such Depositary Shares shall be
redeemed by the Depositary at a redemption price per Depositary Share equal to
the same fraction of the redemption price per share paid with respect to the
shares of Stock as the fraction each Depositary Share represents of a share of
Stock plus the same fraction of all money and other property, if any,
represented by such Depositary Shares, including all amounts paid by the Company
in respect of dividends which on the Redemption Date have accumulated on the
shares of Stock to be so redeemed and have not theretofore been paid. Any funds
deposited by the Company with the Depositary for any Depositary Shares that the
holders thereof fail to redeem will, upon the written request of the Company, be
returned to the Company after a period of five years from the date such funds
are so deposited.
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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 the redemption payment, a
new Receipt evidencing the Depositary Shares evidenced by such prior Receipt and
not called for redemption; provided, however, that the Depositary shall not
issue any Receipt evidencing a fractional Depositary Share.
As provided in the Articles of Incorporation or Articles Supplementary,
upon the happening of certain events, shares of Stock shall be deemed to
automatically constitute Excess Stock. In the event of such a conversion, the
Receipt representing the deposited Stock so converted shall no longer represent,
to the extent of the shares so converted, such deposited Stock. Promptly upon
its knowledge of the conversion of such deposited Stock into Excess Shares, the
Company shall notify the Depositary of such conversion, the number of shares of
deposited Stock so converted, and the identity of the holder of the Receipt so
affected, whereupon the Depositary shall promptly notify the holder of such
Receipt as to the foregoing information and the requirement for the holder to
surrender such Receipt to the Depositary for cancellation of the number of
Depositary Shares evidenced thereby equal to the deposited Stock constituting
Excess Shares represented thereby.
If fewer than all of the Depositary Shares evidenced by a Receipt are
required to be surrendered for cancellation, the Depositary will deliver to the
holder of such Receipt upon its surrender to the Depositary a new Receipt
evidencing the Depositary Shares evidenced by such prior Receipt and not
required to be surrendered for cancellation. Upon the conversion of the
deposited Stock and cancellation of the Depositary Shares represented thereby,
the Depositary will make appropriate adjustments in its records to reflect such
conversion and cancellation (including the reduction of any fractional share of
deposited Stock and the issuance of any Excess Shares).
ARTICLE III
CERTAIN OBLIGATIONS OF HOLDERS OF RECEIPTS AND THE COMPANY
SECTION 3.1. Filing Proofs, Certificates and Other Information. Any holder
of a Receipt 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
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reasonably deem necessary or proper or otherwise reasonably request. The
Depositary or the Company may withhold the delivery, or delay the registration
of transfer, redemption or exchange, of any Receipt or the withdrawal or
conversion of the Stock represented by the Depositary Shares evidenced by any
Receipt 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.
SECTION 3.2. Payment of Taxes or Other Governmental Charges. Holders of
Receipts 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 Receipt or any withdrawal of Stock and all money or other property, if any,
represented by the Depositary Shares evidenced by such Receipt may be refused
until any such payment due is made, and any dividends, interest payments or
other distributions may be withheld or any part of or all the Stock or other
property represented by the Depositary Shares evidenced by such Receipt 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, interest payments 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 Receipt 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 duly authorized, validly issued,
fully paid and nonassessable. Such representation and warranty shall survive the
deposit of the Stock and the issuance of 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 Stock, the Depositary shall, subject
to Sections 3.1 and 3.2, distribute to record holders of Receipts 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 evidenced by the Receipts 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 or as otherwise required
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by law, regulation or court process, the amount made available for distribution
or distributed in respect of Depositary Shares shall be reduced accordingly. In
the event that the calculation of any such cash dividend or other cash
distribution to be paid to any record holder on the aggregate number of
Depositary Receipts held by such holder results in an amount which is a fraction
of a cent, the amount the Depositary shall distribute to such record holder
shall be rounded to the next highest whole cent if such fraction of a cent is
equal to or greater than $.005; otherwise such fractional interest shall be
disregarded; and upon request of the Depositary, the Company shall pay the
additional amount to the Depositary for distribution.
SECTION 4.2. Distributions Other than Cash, Rights, Preferences or
Privileges. Whenever the Depositary shall receive any distribution other than
cash, rights, preferences or privileges upon Stock, the Depositary shall,
subject to Sections 3.1 and 3.2, distribute to record holders of Receipts 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 may be practicable, in proportion
to the respective numbers of Depositary Shares evidenced by the Receipts 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) the Depositary deems
(after consultation with the Company) such distribution not to be feasible, the
Depositary may, with the approval of the Company, adopt such method as it deems
equitable and practicable for the purpose of effecting such distribution,
including the sale (at public or private sale) of the securities or property
thus received, or any part thereof, at such place or places and upon such terms
as it may deem equitable and appropriate. 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 record holders of
Receipts as provided by Section 4.1 in the case of a distribution received in
cash.
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 Receipts in such manner as the
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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 in its discretion with the approval of the
Company; provided, however, that (i) 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 Receipts by the issue
of warrants or otherwise, or (ii) if and to the extent so instructed by holders
of Receipts who do not desire to execute such rights, preferences or privileges,
then the Depositary, in its discretion (with 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 Sections 3.1 and 3.2, be distributed by the Depositary to
the record holders of Receipts entitled thereto as provided by Section 4.1 in
the case of a distribution received in cash.
If registration under the Securities Act of the securities to which any
rights, preferences or privileges relate is required in order for holders of
Receipts to be offered or sold the securities to which such rights, preferences
or privileges relate, the Company will file promptly a registration statement
pursuant to the Securities 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 Receipts any right,
preference or privilege to subscribe for or to purchase any securities unless
and until it has received written notice from the Company that such registration
statement shall have become effective, or that the offering and sale of such
securities to such holders are exempt from registration under the provisions of
the Securities Act and the Company shall have provided to the Depositary an
opinion of counsel reasonably satisfactory to the Depositary to such effect.
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 holders of Receipts,
the Company
-14-
will use its reasonable 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 Record Date for Holders of
Receipts. 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 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, or whenever the Depositary and the Company shall decide it is
appropriate, 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
or otherwise in accordance with the terms of the Stock) for the determination of
the holders of Receipts 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 or for any other
appropriate reasons.
SECTION 4.5. Voting Rights. Upon receipt of notice of any meeting at which
the holders of Stock are entitled to vote, the Depositary shall, as soon as
practicable thereafter, mail to the record holders of Receipts a notice which
shall contain (i) such information as is contained in such notice of meeting and
(ii) a statement that the holders may, subject to any applicable restrictions,
instruct the Depositary as to the exercise of the voting rights pertaining to
the amount of Stock represented by their respective Depositary Shares (including
an express indication that instructions may be given to the Depositary to give a
discretionary proxy to a person designated by the Company) and a brief statement
as to the manner in which such instructions may be given. Upon the written
request of the holders of Receipts on the relevant record date, the Depositary
shall use its best efforts 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 represented by the Depositary Shares evidenced by all Receipts as to which
any particular voting instructions are received. The Company hereby agrees to
take all action which 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 Receipt, the Depositary
will not vote to the extent of the Stock represented by the Depositary Shares
evidenced by such Receipt.
-15-
SECTION 4.6. Changes Affecting Deposited Securities and Reclassifications,
Racapitalizations, etc. Upon any change in par value or liquidation preference,
split-up, combination or any other etc reclassification of the Stock, or upon
any recapitalization, reorganization, merger or consolidation affecting the
Company or to which it is a party, the Depositary may in its discretion with the
approval (not to be unreasonably withheld) 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 the fraction of an interest in one share
of Stock represented by one Depositary Share as may be necessary (as certified
by the Company) fully to reflect the effects of such change in par value or
liquidation preference, split-up, combination or other reclassification of
Stock, or of such recapitalization, reorganization, merger or consolidation 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 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. Anything to the contrary herein
notwithstanding, holders of Receipts shall have the right from and after the
effective date of any such change in par value or liquidation preference,
split-up, combination or other reclassification of the Stock or any such
recapitalization, reorganization, merger or consolidation to surrender such
Receipts to the Depositary with instructions to convert, exchange or surrender
the Stock represented thereby only into or for, as the case may be, the kind and
amount of shares of stock and other securities and property and cash into which
the Stock represented by such Receipts would have been converted or for which
such Stock would have been exchanged or surrendered had such Receipt been
surrendered immediately prior to the effective date of such transaction.
SECTION 4.7. Delivery of Reports. The Depositary shall furnish to holders
of Receipts any reports and communications received from the Company which are
received by the Depositary as the holder of Stock.
SECTION 4.8. List of Receipt Holders. Promptly upon request from time to
time by the Company, the Depositary shall furnish to it a list, as of the most
recent practicable date, of the names, addresses and holdings of Depositary
Shares of all record holders of Receipts. The Company shall be entitled to
receive such list four times annually.
-16-
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 Office facilities for the execution and
delivery, registration and registration of transfer, surrender and exchange of
Receipts, and at the offices of the Depositary's Agents, if any, facilities for
the delivery, registration of transfer, surrender and exchange of Receipts, 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 Receipts, which books during normal
business hours shall be open for inspection by the record holders of Receipts;
provided that any such holder requesting to exercise such right shall certify to
the Depositary that such inspection shall be for a proper purpose reasonably
related to such person's interest as an owner of Depositary Shares evidenced by
the Receipts.
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.
The Depositary may, with the approval of the Company, appoint a Registrar
for registration of the Receipts or the Depositary Shares evidenced thereby. If
the Receipts or the Depositary Shares evidenced thereby or the Stock represented
by such Depositary Shares shall be listed on one or more national securities
exchanges, the Depositary will appoint a Registrar (acceptable to the Company)
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 any such exchange) may be removed and a
substitute registrar appointed by the Depositary upon the request or with the
approval of the Company. If the Receipts, such Depositary Shares or such Stock
is listed on one or more other stock exchanges, the Depositary will, at the
request and at the expense of the Company, arrange such facilities for the
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 securities exchange regulation.
-17-
The Depositary may from time to time appoint Depositary's Agents to act in
any respect for the Depositary for the purposes of this Deposit Agreement and
may at any time appoint additional Depositary's Agents and vary or terminate the
appointment of such Depositary's Agents. The Depositary will notify the Company
of any such action.
SECTION 5.2. Prevention of or Delay in Performance by the Depositary, the
Depositary's Agents, the Registrar or t. Neither the Depositary nor any
Depositary's Agent nor the Registrar nor the Company shall incur any liability
to any holder of any Receipt 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, the Depositary's
Agent or the Registrar, by reason of any provision, present or future, of the
Company's Amended and Restated Articles of Incorporation or by reason of any act
of God or war or other circumstance beyond the control of the relevant party,
the Depositary, the Depositary's Agent, the Registrar or the Company shall be
prevented, delayed or forbidden from, or subjected to any penalty on account of,
doing or performing any act or thing which the terms of this Deposit Agreement
provide shall be done or performed; nor shall the Depositary, any Depositary's
Agent, the Registrar or the Company incur liability to any holder of a Receipt
(i) by reason of any nonperformance or delay, caused as aforesaid, in the
performance of any act or thing which the terms of this Deposit Agreement shall
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 the 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. Obligation of the Depositary, the Depositary's Agents, the
Registrar and the Company. Neither the Depositary nor any Depositary's Agent nor
the Registrar nor the Company assumes any any obligation or shall be subject to
any liability under this Deposit Agreement or any Receipt to holders of Receipts
other than for its gross negligence, willful misconduct or bad faith.
Neither the Depositary nor any Depositary's Agent nor the 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 which in its reasonable opinion may involve it in expense or
liability unless indemnity reasonably satisfactory to it against ex-
-18-
pense and liability be furnished as often as may be reasonably required.
Neither the Depositary nor any Depositary's Agent nor the Registrar nor the
Company shall be liable for any action or any 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 Receipt or any other person
believed by it in good faith to be competent to give such information. The
Depositary, any Depositary's Agent, the Registrar and the Company may each rely
and shall each be protected in acting upon any written notice, request,
direction or other document reasonably believed by it to be genuine and to have
been signed or presented by the proper party or parties.
The Depositary shall not be responsible for any failure to carry out any
instruction to vote any of the shares of Stock or for the manner or effect of
any such vote made, as long as any such action or inaction is in good faith. The
Depositary will indemnify the Company and hold it harmless from any loss,
liability or expense (including the reasonable costs and expenses of defending
itself) which arises from its negligence, wilful misconduct or bad faith. The
Depositary undertakes and any Registrar shall be required to undertake only such
duties as specifically set forth herein and no implied covenants or obligations
shall be read into this Deposit Agreement against the Depositary or Registrar.
The indemnification obligations of the Depositary set forth in this Section 5.3
shall survive any termination of this Agreement and any succession of any
Depositary.
The Depositary, its parent, affiliates or subsidiaries, the Depositary's
Agents and the Registrar may own, buy, sell and deal in any class of securities
of the Company and its affiliates and in Receipts or Depositary Shares or become
pecuniarily interested in any transaction in which the Company or its affiliates
may be interested or contract with or lend money to any such person or otherwise
act as fully or as freely as if it were not the Depositary, parent, affiliate or
subsidiary or Depositary's Agent or Registrar hereunder. The Depositary may also
act as trustee, transfer agent or registrar of any of the securities of the
Company and its affiliates.
It is intended that neither the Depositary nor any Depositary's Agent nor
the Registrar, acting as the Depositary's Agent or Registrar, as the case may
be, shall be deemed to be an "issuer" of the securities under the federal
securities laws or applicable state securities laws, it being expressly
understood and agreed that the Depositary, any Depositary's Agent and the
-19-
Registrar are acting only in a ministerial capacity as Depositary or Registrar
for the Stock.
Neither the Depositary (or its officers, directors, employees or agents)
nor any Depositary's Agent nor the Registrar makes any representation or has any
responsibility as to the validity of the registration statement pursuant to
which the Depositary Shares are registered under the Securities Act, the Stock,
the Depositary Shares or the Receipts (except for its counter-signatures
thereon) or any instruments referred to therein or herein, or as to the
correctness of any statement made therein or herein.
The Depositary assumes no responsibility for the correctness of the
description that appears in the Receipts. Notwithstanding any other provision
herein or in the Receipts, the Depositary makes no warranties or representations
as to the validity or genuineness of any Stock at any time deposited with the
Depositary hereunder or of the Depositary Shares, as to the validity or
sufficiency of this Deposit Agreement, as to the value of the Depositary Shares
or as to any right, title or interest of the record holders of Receipts in and
to the Depositary Shares. The Depositary shall not be accountable for the use or
application by the Company of the Depositary Shares or the Receipts or the
proceeds thereof.
SECTION 5.4. Resignation and Removal of the Depositary; Appointment of
Successor Depositary. The Depositary may at any time resign as Depositary
hereunder by delivering notice of its election to do so to the Company, such
resignation to take effect upon the appointment of a successor Depositary and
its acceptance of such appointment as hereinafter provided.
The Depositary may at any time be removed by the Company by notice of such
removal delivered to the Depositary, such removal to take effect upon the
appointment of a successor Depositary and its acceptance of such appointment as
hereinafter provided.
In case at any time the Depositary acting hereunder shall 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
$150,000,000. If no successor Depositary shall have been so appointed and have
accepted appointment within 60 days after delivery of such notice, the resigning
or removed Depositary may peti-
-20-
tion 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 payment of
all sums due it and on 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 Receipts and such records, books and other information in its
possession relating thereto. Any successor Depositary shall promptly mail notice
of its appointment to the record holders of Receipts.
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, and notice thereof shall
not be required hereunder. 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
deliver to the Depositary, and the Depositary will, promptly after receipt
thereof, transmit to the record holders of Receipts, in each case at the
addresses recorded in the Depositary's books, copies of all notices and reports
(including without limitation financial statements) required by law or by the
rules of any national securities exchange upon which the Stock, the Depositary
Shares or the Receipts are listed, to be furnished to the record holders of
Receipts. Such transmission will be at the Company's expense and the Company
will provide the Depositary with such number of copies of such documents as the
Depositary may reasonably request.
SECTION 5.6. Indemnification by the Company. The Company shall indemnify
the Depositary, any Depositary's Agent and the Registrar against, and hold each
of them harmless from, any loss, liability or expense (including the reasonable
costs and expenses of defending itself) which may arise out of acts performed or
omitted in connection with this Deposit Agreement and the Receipts by the
Depositary, any Registrar or any of their respective agents (including any
Depositary's Agent), except for any liabil-
-21-
ity arising out of negligence, willful misconduct or bad faith on the respective
parts of any such person or persons. The obligations of the Company set forth in
this Section 5.6 shall survive any termination of this Agreement or any
succession of any Depositary 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 charges of the Depositary in
connection with the initial deposit of the Stock and the initial issuance of the
Depositary Shares, all withdrawals of shares of the Stock by owners of
Depositary Shares, and any redemption of the Stock at the option of the Company.
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
Receipts, the Depositary incurs charges or expenses for which it is not
otherwise liable hereunder, such holder will be liable for such charges and
expenses. All other charges and expenses of the Depositary and any Depositary's
Agent hereunder (including, in each case, reasonable 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. The Depositary
shall present its statement for charges and expenses to the Company at such
intervals as the Company and the Depositary may agree.
SECTION 5.8. Tax Compliance. The Depositary, on its own behalf and on
behalf of the Company, will comply with all applicable certification,
information reporting and withholding (including "backup" withholding)
requirements imposed by applicable tax laws, regulations or administrative
practice with respect to (i) any payments made with respect to the Depositary
Shares or (ii) the issuance, delivery, holding, transfer, redemption or exercise
of rights under the Depositary Receipts or the Depositary Shares. Such
compliance shall include, without limitation, the preparation and timely filing
of required returns and the timely payment of all amounts required to be
withheld to the appropriate taxing authority or its designated agent.
The Depositary shall comply with any direction received from the Company
with respect to the application of such requirements to particular payments or
holders or in other particular circumstances, and may for purposes of this
Agreement rely on any such direction in accordance with the provisions of
Section 5.3 hereof.
-22-
The Depositary shall maintain all appropriate records documenting
compliance with such requirements, and shall make such records available on
request to the Company or to its authorized representatives.
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 which they may deem
necessary or desirable; provided, however, that no such amendment (other than
any change in the fees) which shall materially adversely alter the rights of the
holders of Receipts 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 an outstanding Receipt at the time any such
amendment becomes effective shall be deemed, by continuing to hold such Receipt,
to be bound by the Deposit Agreement as amended thereby. Subject to Section 2.9
hereof, notwithstanding the foregoing, in no event may any amendment impair the
right of any holder of any Depositary Shares, upon surrender of the Receipts
evidencing such Depositary Shares and subject to any conditions specified in
this Deposit Agreement, to receive shares of Stock and any money or other
property, if any, represented thereby, except in order to comply with mandatory
provisions of applicable law.
SECTION 6.2. Termination. This Deposit Agreement may be terminated by the
Company at any time upon not less than 30 days' prior written notice to the
Depositary, in which case, on a date that is not later than 30 days after the
date of such notice, the Depositary shall deliver or make available for delivery
to holders of Depositary Shares, upon surrender of the Receipts evidencing such
Depositary Shares, such number of whole or fractional shares of Stock as are
represented by such Depositary Shares. This Deposit Agreement will automatically
terminate after (i) all outstanding Depositary Shares have been redeemed
pursuant to Section 2.8 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 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
-23-
Agreement except for its obligations to the Depositary, the Registrar and any
Depositary's Agent under Sections 5.6 and 5.7.
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 should 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 by telegram or
facsimile transmission confirmed by letter, addressed to the Company at:
First Industrial Realty Trust, Inc.
311 S. Wacker Drive, Suite 4000
Chicago, Illinois 60606
Facsimile No.: (312) 922-6320
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 facsimile transmission
confirmed by letter, addressed to the Depositary at the Depositary's Office, at:
-24-
First Chicago Trust Company of New York
One First National Plaza, Suite 0123
Chicago, IL 60670
Attention: John Ruocco
Facsimile No.: (312) 407-3021
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 Receipt 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 facsimile
transmission 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 such
holder shall have filed with the Depositary a written request that notices
intended for such holder be mailed to some other address, at the address
designated in such request.
Delivery of a notice sent by mail or by telegram or facsimile transmission
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
facsimile transmission) is deposited for mailing by first class mail, postage
prepaid. The Depositary or the Company may, however, act upon any telegram or
facsimile transmission received by it from the other or from any holder of a
Receipt, notwithstanding that such telegram or facsimile transmission shall not
subsequently be confirmed by letter or as aforesaid.
SECTION 7.5. Appointment of Registrar. The Company hereby also appoints the
Depositary as Registrar in respect of the Receipts and the Depositary hereby
accepts such appointments.
SECTION 7.6. Holders of Receipts Are Parties. The holders of Receipts 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 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 APPLICABLE TO CONTRACTS
MADE IN AND TO BE PERFORMED IN THE STATE OF NEW YORK WITHOUT REGARD TO THE
CONFLICTS OF LAWS PRINCIPLES THEREOF.
-25-
SECTION 7.8. Inspection of Deposit Agreement. Copies of this Deposit
Agreement shall be filed with the Depositary and the Depositary's Agent and
shall be open to inspection during business hours at the Depositary's office or
respective offices of the Depositary's Agent, if any, by any holder of a
Receipt.
SECTION 7.9. Headings. The headings of articles and sections in this
Deposit Agreement have been inserted for convenience only and are not to be
regarded as a 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.
-26-
IN WITNESS WHEREOF, the Company and the Depositary have duly executed this
Agreement as of the day and year first above set forth, and all holders of
Receipts shall become parties hereto by and upon acceptance by them of delivery
of Receipts issued in accordance with the terms hereof.
FIRST INDUSTRIAL REALTY TRUST, INC.
/s/ Gary H. Heigl
----------------------------------------
Name: Gary H. Heigl
Title: Senior Vice President
FIRST CHICAGO TRUST COMPANY OF NEW YORK
/s/ Peter Sablich
----------------------------------------
Name: Peter Sablich
Title: Vice President
ANNEX A
[FORM OF FACE OF RECEIPT]
NUMBER SHARES
DR- (CUSIP_____)
see reverse for certain definitions
THIS CERTIFICATE IS TRANSFERABLE
IN NEW YORK, NY
[Logo]
RECEIPT FOR DEPOSITARY SHARES,
EACH REPRESENTING 1/100 OF A SHARE OF
SERIES D CUMULATIVE PREFERRED STOCK
FIRST INDUSTRIAL REALTY TRUST, INC.
(INCORPORATED UNDER THE LAWS OF THE STATE OF MARYLAND)
First Chicago Trust Company of New York, a national banking association
duly organized and existing under the laws of the United States of America with
an office at the time of execution of the Deposit Agreement (as defined below)
at One First National Plaza, Suite 0123, Chicago, IL 60670, as Depositary (the
"Depositary"), hereby certifies that
_____________is a registered owner of __________________________ DEPOSITARY
SHARES ("Depositary Shares"), each Depositary Share representing 1/100 of one
fully paid and non-assessable share of 7.95% Series D Cumulative Preferred
Stock, $.01 par value per share (the "Shares"), of First Industrial Realty
Trust, Inc., a Maryland corporation (the "Company"), on deposit with the
Depositary, subject to the terms and entitled to the benefits of the Deposit
Agreement dated as of February 4, 1998 (the "Deposit Agreement"), among the
Company, the Depositary and the holders from time to time of Receipts for
Depositary Shares. By accepting this Receipt, the holder hereof becomes a party
to and agrees to be bound by all the terms and conditions of the Deposit
Agreement. This Receipt shall not be valid or obligatory for any purpose or be
entitled to any benefits under the Deposit Agreement unless it shall have been
executed by the Depositary by the manual or facsimile signature of a duly
authorized officer or, if a Registrar in respect of the Receipts (other than the
Depositary) shall have been appointed, by the manual signature of a duly
authorized officer of such Registrar.
Dated:
Countersigned and Registered:
FIRST CHICAGO TRUST COMPANY OF NEW YORK
Depositary and Registrar
By: ____________________________________
By: ____________________________________
SECRETARY AND TREASURER
By: ____________________________________
PRESIDENT
[FORM OF REVERSE OF RECEIPT]
FIRST INDUSTRIAL REALTY TRUST, INC.
THE SHARES OF STOCK REPRESENTED BY THIS DEPOSITARY RECEIPT ARE SUBJECT TO
RESTRICTIONS ON TRANSFER FOR THE PURPOSE OF THE CORPORATION'S MAINTENANCE OF ITS
QUALIFICATION AS A REAL ESTATE INVESTMENT TRUST UNDER THE INTERNAL REVENUE CODE
OF 1986, AS AMENDED. NO PERSON MAY BENEFICIALLY OWN SHARES OF STOCK IN EXCESS OF
9.9% (OR SUCH GREATER PERCENTAGE AS MAY BE DETERMINED BY THE BOARD OF DIRECTORS
OF THE CORPORATION) OF THE OUTSTANDING STOCK OF THE CORPORATION. ANY PERSON WHO
ATTEMPTS TO BENEFICIALLY OWN SHARES OF STOCK IN EXCESS OF THE ABOVE LIMITATION
MUST IMMEDIATELY NOTIFY THE CORPORATION. ALL CAPITALIZED TERMS IN THIS LEGEND
HAVE THE MEANINGS DEFINED IN THE CORPORATION'S ARTICLES OF INCORPORATION, A COPY
OF WHICH, INCLUDING THE RESTRICTIONS ON TRANSFER, WILL BE SENT WITHOUT CHARGE TO
EACH STOCKHOLDER WHO SO REQUESTS. IF THE RESTRICTIONS ON TRANSFER ARE VIOLATED,
THE SHARES OF STOCK REPRESENTED HEREBY MAY BE AUTOMATICALLY EXCHANGED FOR SHARES
OF EXCESS STOCK WHICH WILL BE HELD IN TRUST BY THE CORPORATION.
THE CORPORATION WILL FURNISH TO ANY STOCKHOLDER ON REQUEST AND WITHOUT
CHARGE A FULL STATEMENT OF THE DESIGNATIONS AND ANY PREFERENCES, CONVERSIONS AND
OTHER RIGHTS, VOTING POWERS, RESTRICTIONS, LIMITATIONS AS TO DIVIDENDS,
QUALIFICATIONS, AND TERMS AND CONDITIONS OF REDEMPTION OF THE STOCK OF EACH
CLASS WHICH THE CORPORATION IS AUTHORIZED TO ISSUE AND, WITH RESPECT TO ANY
PREFERRED OR SPECIAL CLASS IN A SERIES, THE DIFFERENCES IN THE RELATIVE RIGHTS
AND PREFERENCES BETWEEN THE SHARES OF EACH SERIES TO THE EXTENT THEY HAVE BEEN
SET AND THE AUTHORITY OF THE BOARD OF DIRECTORS TO SET THE RELATIVE RIGHTS AND
PREFERENCES OF SUBSEQUENT SERIES.
The following abbreviations, when used in the inscription on the face of
this Depositary Receipt, shall be construed as though they were written out in
full according to applicable laws or regulations:
TEN COM-- as tenants in common UNIF GIFT MIN ACT -. . . Custodian . . .
TEN ENT-- tenants by the entireties (Cust) Minor
JT TEN -- as joint tenants with right under Uniform Gifts to Minors
of survivorship and not as Act . . . . .
tenants in common (State)
Additional abbreviations may also be used though not in the above list.
For Value Received, _____________________ hereby sells, assigns and transfers
unto
- --------------------------------------------------------------------------------
PLEASE INSERT SOCIAL SECURITY OR OTHER IDENTIFYING NUMBER OF ASSIGNEE
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
PLEASE PRINT OR TYPEWRITE NAME AND ADDRESS INCLUDING POSTAL ZIP CODE OF ASSIGNEE
Depositary Shares represented by the within Depositary Receipt, and do hereby
irrevocably constitute and appoint ________________ Attorney to transfer the
said Depositary Shares on the books of the within named Depositary with full
power of substitution in the premises.
- ----------------------------- ---------------------------
Dated Signed
NOTICE: THE SIGNATURE TO THIS ASSIGNMENT MUST CORRESPOND WITH THE NAME AS
WRITTEN UPON THE FACE OF THIS DEPOSITARY RECEIPT IN EVERY PARTICULAR, WITHOUT
ALTERATION OR ENLARGEMENT OR ANY CHANGE WHATEVER.
SIGNATURE(S) GUARANTEED
By: ___________________
A-1
THE SIGNATURE(S) SHOULD BE GUARANTEED BY AN ELIGIBLE GUARANTOR INSTITUTION
(BANKS, STOCKBROKERS, SAVINGS AND LOAN ASSOCIATIONS AND CREDIT UNIONS WITH
MEMBERSHIP IN AN APPROVED SIGNATURE GUARANTEE MEDALLION PROGRAM), PURSUANT TO
S.E.C. RULE 17Ad-15.
[FORM OF FACE OF RECEIPT]
NUMBER SHARES
DRT- FIRST INDUSTRIAL
THIS CERTIFICATE IS TRANSFERABLE (CUSIP ______)
IN NEW YORK, NY SEE REVERSE
FOR CERTAIN
DEFINITIONS
RECEIPT FOR DEPOSITARY SHARES,
EACH REPRESENTING 1/100 OF A SHARE OF
7.95% SERIES D CUMULATIVE PREFERRED STOCK
FIRST INDUSTRIAL REALTY TRUST, INC.
(INCORPORATED UNDER THE LAWS OF THE STATE OF MARYLAND)
First Chicago Trust Company of New York, a national banking association
duly organized and existing under the laws of the United States of America with
an office at the time of execution of the Deposit Agreement (as defined below)
at One First National Plaza, Suite 0123, Chicago, IL 60670, as Depositary (the
"Depositary"), hereby certifies that
is a registered owner of DEPOSITARY SHARES
("Depositary Shares"), each Depositary Share representing 1/100 of one fully
paid and non-assessable share of 7.95% Series D Cumulative Preferred Stock,
$2,500 liquidation preference per preferred share (the "Shares"), of First
Industrial Realty Trust, Inc., a Maryland corporation (the "Company"), on
deposit with the Depositary, subject to the terms and entitled to the benefits
of the Deposit Agreement dated as of February 4, 1998 (the "Deposit Agreement"),
among the Company, the Depositary and the holders from time to time of Receipts
for Depositary Shares. By accepting this Receipt, the holder hereof becomes a
party to and agrees to be bound by all the terms and conditions of the Deposit
Agreement. This Receipt shall not be valid or obligatory for any purpose or be
entitled to any benefits under the Deposit Agreement unless it shall have been
executed by the Depositary by the manual or facsimile signature of a duly
authorized officer or, if a Registrar in respect of the Receipts (other than the
Depositary) shall have been appointed, by the manual signature of a duly
authorized officer of such Registrar.
Dated:
President
Countersigned and Registered:
FIRST CHICAGO TRUST COMPANY OF NEW YORK
Depositary and
Registrar Secretary and Treasurer
[FORM OF REVERSE OF RECEIPT]
FIRST INDUSTRIAL REALTY TRUST, INC.
THE SHARES OF STOCK REPRESENTED BY THIS DEPOSITARY RECEIPT ARE SUBJECT TO
RESTRICTIONS ON TRANSFER FOR THE PURPOSE OF THE CORPORATION'S MAINTENANCE OF ITS
QUALIFICATION AS A REAL ESTATE INVESTMENT TRUST UNDER THE INTERNAL REVENUE CODE
OF 1986, AS AMENDED. NO PERSON MAY BENEFICIALLY OWN SHARES OF STOCK IN EXCESS OF
9.9% (OR SUCH GREATER PERCENTAGE AS MAY BE DETERMINED BY THE BOARD OF DIRECTORS
OF THE CORPORATION) OF THE OUTSTANDING STOCK OF THE CORPORATION. ANY PERSON WHO
ATTEMPTS TO BENEFICIALLY OWN SHARES OF STOCK IN EXCESS OF THE ABOVE LIMITATION
MUST IMMEDIATELY NOTIFY THE CORPORATION. ALL CAPITALIZED TERMS IN THIS LEGEND
HAVE THE MEANINGS DEFINED IN THE CORPORATION'S ARTICLES OF INCORPORATION, A COPY
OF WHICH, INCLUDING THE RESTRICTIONS ON TRANSFER, WILL BE SENT WITHOUT CHARGE TO
EACH STOCKHOLDER WHO SO REQUESTS. IF THE RESTRICTIONS ON TRANSFER ARE VIOLATED,
THE SHARES OF STOCK REPRESENTED HEREBY MAY BE AUTOMATICALLY EXCHANGED FOR SHARES
OF EXCESS STOCK WHICH WILL BE HELD IN TRUST BY THE CORPORATION.
THE CORPORATION WILL FURNISH TO ANY STOCKHOLDER ON REQUEST AND WITHOUT
CHARGE A FULL STATEMENT OF THE DESIGNATIONS AND ANY PREFERENCES, CONVERSIONS AND
OTHER RIGHTS, VOTING POWERS, RESTRICTIONS, LIMITATIONS AS TO DIVIDENDS,
QUALIFICATIONS, AND TERMS AND CONDITIONS OF REDEMPTION OF THE STOCK OF EACH
CLASS WHICH THE CORPORATION IS AUTHORIZED TO ISSUE AND, WITH RESPECT TO ANY
PREFERRED OR SPECIAL CLASS IN A SERIES, THE DIFFERENCES IN THE RELATIVE RIGHTS
AND PREFERENCES BETWEEN THE SHARES OF EACH SERIES TO THE EXTENT THEY HAVE BEEN
SET AND THE AUTHORITY OF THE BOARD OF DIRECTORS TO SET THE RELATIVE RIGHTS AND
PREFERENCES OF SUBSEQUENT SERIES.
The following abbreviations, when used in the inscription on the face of
this Depositary Receipt, shall be construed as though they were written out in
full according to applicable laws or regulations:
TEN COM-- as tenants in common UNIF GIFT MIN ACT--.........Custodian.....
TEN ENT-- as tenants by the (Cust) (Minor)
entireties
JT TEN -- as joint tenants with under Uniform Gifts to Minors
right of survivorship Act ............
and not as tenants in (State)
common
Additional abbreviations may also be used though not in the above list.
For Value Received, _________________ hereby sells, assigns and transfers unto
PLEASE INSERT SOCIAL SECURITY OR OTHER
IDENTIFYING NUMBER OF ASSIGNEE
-----------------------------------------
-----------------------------------------
- --------------------------------------------------------------------------------
PLEASE PRINT OR TYPEWRITE NAME AND ADDRESS
INCLUDING POSTAL ZIP CODE OF ASSIGNEE
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
Depositary Shares represented by the within
Depositary Receipt, and do hereby irrevocably constitute and appoint
________________ Attorney to transfer the said Depositary Shares on the books of
the within named Depositary with full power of substitution in the premises.
Dated
--------------------------
(Signed)_________________________________
NOTICE: THE SIGNATURE TO THIS ASSIGNMENT
MUST CORRESPOND WITH THE NAME AS WRITTEN
UPON THE FACE OF THIS DEPOSITARY RECEIPT IN
EVERY PARTICULAR, WITHOUT ALTERATION OR
ENLARGEMENT OR ANY CHANGE WHATEVER.
SIGNATURE(S) GUARANTEED
By:______________________________________
THE SIGNATURE(S) SHOULD BE GUARANTEED BY
AN ELIGIBLE GUARANTOR INSTITUTION (BANKS,
STOCKBROKERS, SAVINGS AND LOAN
ASSOCIATIONS AND CREDIT UNIONS WITH
MEMBERSHIP IN AN APPROVED SIGNATURE
GUARANTEE MEDALLION PROGRAM), PURSUANT TO
S.E.C. RULE 17Ad-15.
-2-