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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM 8-A
FOR REGISTRATION OF CERTAIN CLASSES OF SECURITIES
PURSUANT TO SECTION 12(b) OR (g) OF
THE SECURITIES EXCHANGE ACT OF 1934
HEALTH CARE PROPERTY INVESTORS, INC.
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(exact name of registrant as specified in its charter)
Maryland 33-0091377
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(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification Number)
4675 MacArthur Court, 9th Floor
Newport Beach, California 92660
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(Address of principal executive offices) (Zip Code)
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If this form relates to the registration of a If this form relates to the registration of a
class of securities pursuant to Section 12(b) class of securities pursuant to Section
of the Exchange Act and is effective 12(g) of the Exchange Act and is effective
pursuant to General Instruction A.(c), pursuant to General Instruction A.(d),
please check the following box. [X] please check the following box. [X]
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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
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Depositary Shares, each representing a one- New York Stock Exchange
one-hundredth interest in a share of the
Registrant's 8.60% Series C Cumulative
Redeemable Preferred Stock, par value $1.00
per share (the "Preferred Stock")
Securities to be registered pursuant to Section 12(g) of the Act:
8.60% Series C Cumulative Redeemable Preferred Stock, par value $1.00 per share
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INFORMATION REQUIRED IN REGISTRATION STATEMENT
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Item 1. Description of Registrant's Securities to be Registered.
1.1 For a description of the Preferred Stock, reference is hereby made
to the description of the Preferred Stock contained in the Prospectus dated
September 24, 1999 relating to the Preferred Stock filed with the Securities and
Exchange Commission under the Securities Act of 1933, as amended (File No.
333-87963) and incorporated herein by reference (see in particular "Description
of HCPI Capital Stock - HCPI Series C Preferred Stock" in the Prospectus).
1.2 For a description of the Depositary Shares, reference is hereby
made to the description of the Depositary Shares contained in the Prospectus
dated September 24, 1999 referred to above and incorporated herein by reference
(see in particular "Description of HCPI Capital Stock - HCPI Depositary Shares"
in the Prospectus).
Item 2. Exhibits
1. Articles of Amendment and Restatement of Health Care Property
Investors, Inc. (incorporated herein by reference to Exhibit 4.1 to
Health Care Property Investors, Inc.'s Amendment No. 2 to the
Registration Statement on Form S-3 dated January 31, 1990).
2. Second Amended and Restated Bylaws of Health Care Property
Investors, Inc. (incorporated herein by reference to Exhibit 3.2 of
Health Care Property Investors, Inc.'s Quarterly Report on Form 10-Q
for the period ended March 31, 1999).
3. Rights Agreement, dated as of July 5, 1990, between Health
Care Property Investors, Inc. and Manufacturers Hanover Trust
Company of California, as Rights Agent (incorporated herein by
reference to Exhibit 1 to Health Care Property Investors, Inc.'s
Registration Statement on Form 8-A filed on July 17, 1990).
4.* Form of Deposit Agreement (including form of Depository Receipt).
5. Articles Supplementary establishing and fixing the rights and
preferences of the 8.60% Series C Cumulative Redeemable Preferred
Stock (incorporated herein by reference to Exhibit 2.1 to Health
Care Property Investors, Inc.'s Current Report on Form 8-K, dated
August 4, 1999).
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* Filed herewith.
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SIGNATURES
Pursuant to the requirements of Section 12 of the Securities Act of
1934, the Registrant has duly caused this registration statement to be signed on
its behalf by the undersigned, thereunto duly authorized.
Date: November 3, 1999 HEALTH CARE PROPERTY INVESTORS, INC.
By: /s/ EDWARD J. HENNING
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Edward J. Henning
Senior Vice President, General
Counsel and Corporate Secretary
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EXHIBIT 4
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HEALTH CARE PROPERTY INVESTORS, INC.,
CHASEMELLON SHAREHOLDER SERVICES, L.L.C., AS DEPOSITARY,
AND
THE HOLDERS FROM TIME TO TIME OF
THE DEPOSITARY SHARES
DESCRIBED HEREIN
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DEPOSIT AGREEMENT
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Dated as of November __, 1999
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TABLE OF CONTENTS
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ARTICLE I DEFINITIONS.............................................................................................1
ARTICLE II FORM OF RECEIPTS, DEPOSIT OF STOCK, EXECUTION AND DELIVERY, TRANSFER, SURRENDER, AND
REDEMPTION OF RECEIPTS........................................................................2
SECTION 2.1 Form and Transfer of Receipts......................................................2
SECTION 2.2 Deposit of Stock; Execution and Delivery of Receipts in Respect Thereof............3
SECTION 2.3 Redemption of Stock................................................................4
SECTION 2.4 Registration of Transfer of Receipts...............................................5
SECTION 2.5 Split-ups and Combinations of Receipts: Surrender of Depositary Shares
and Withdrawal of Stock............................................................5
SECTION 2.6 Limitations on Execution and Delivery Transfer- Surrender and Exchange of
Receipts...........................................................................6
SECTION 2.7 Lost Receipts, etc.................................................................6
SECTION 2.8 Cancellation and Destruction of Surrendered Receipts...............................7
ARTICLE III CERTAIN OBLIGATIONS OF THE HOLDERS OF RECEIPTS AND THE COMPANY........................................7
SECTION 3.1 Filing Proofs Certificates and Other Information...................................7
SECTION 3.2 Payment of Taxes or Other Governmental Charges.....................................7
SECTION 3.3 Warranty as to Stock...............................................................7
ARTICLE IV THE DEPOSITED SECURITIES; NOTICES......................................................................8
SECTION 4.1 Cash Distributions.................................................................8
SECTION 4.2 Distributions Other than Cash......................................................8
SECTION 4.3 Subscription Rights, Preferences or Privileges.....................................8
SECTION 4.4 Notice of Dividends; Fixing of Record Date for Holders of Depositary
Shares.............................................................................9
SECTION 4.5 Voting Rights.....................................................................10
SECTION 4.6 Changes Affecting Deposited Securities and Reclassifications.
Recapitalizations, etc............................................................10
SECTION 4.7 Delivery of Reports...............................................................11
SECTION 4.8 List of Holders...................................................................11
ARTICLE V THE DEPOSITARY, THE DEPOSITARY'S AGENTS, THE REGISTRAR AND THE COMPANY.................................11
SECTION 5.1 Maintenance of Offices, Agencies and Transfer Books by the Depositary;
Registrar.........................................................................11
SECTION 5.2 Prevention of or Delay in Performance by the Depositary the Depositary's
Agents, any Registrar or the Company..............................................12
SECTION 5.3 Obligations of the Depositary, the Depositary's Agents, any Registrar and
the Company.......................................................................12
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SECTION 5.4 Resignation and Removal of the Depositary; Appointment of Successor
Depositary........................................................................13
SECTION 5.5 Corporate Notices and Reports.....................................................14
SECTION 5.6 Indemnification by the Company....................................................14
SECTION 5.7 Charges and Expenses..............................................................14
ARTICLE VI AMENDMENT AND TERMINATION.............................................................................15
SECTION 6.1 Amendment.........................................................................15
SECTION 6.2 Termination.......................................................................15
ARTICLE VII MISCELLANEOUS........................................................................................15
SECTION 7.1 Counterparts......................................................................15
SECTION 7.2 Exclusive Benefit of Parties......................................................15
SECTION 7.3 Invalidity of Provisions..........................................................16
SECTION 7.4 Notices...........................................................................16
SECTION 7.5 Depositary's Agents...............................................................16
SECTION 7.6 Holders of Receipts Are Parties...................................................16
SECTION 7.7 Governing Law.....................................................................17
SECTION 7.8 Inspection of Deposit Agreement...................................................17
SECTION 7.9 Headings..........................................................................17
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DEPOSIT AGREEMENT
This Deposit Agreement, dated as of November __, 1999, is entered into
by and among Health Care Property Investors, Inc., a Maryland corporation
(together with its successors, the "Company"), ChaseMellon Shareholder Services,
L.L.C., a New Jersey limited liability company, (together with any successor as
depositary hereunder, the "Depositary"), and the holders from time to time of
the Depositary Shares described herein.
WITNESSETH:
WHEREAS the parties hereto desire to provide, as hereinafter set forth
in this Deposit Agreement, for the deposit of shares of Stock (as hereinafter
defined) of the Company with the Depositary for the purposes set forth in this
Deposit Agreement and for the issuance hereunder of Receipts evidencing
Depositary Shares, in respect of the Stock so deposited;
NOW, THEREFORE, in consideration of the premises, the parties hereto
agree as follows:
ARTICLE I
DEFINITIONS
The following definitions shall for all purposes, unless otherwise
indicated, apply to the respective terms used in this Deposit Agreement and the
Receipts:
"Articles" means the articles supplementary filed with the State
Department of Assessment and Taxation of Maryland establishing the Stock as a
series of preferred stock of the Company.
"Deposit Agreement" means this Deposit Agreement, as amended or
supplemented from time to time.
"Depositary Shares" means Depositary Shares evidenced by a Receipt or
Receipts issued hereunder, and representing the interests in the Stock deposited
with the Depositary hereunder. Each Depositary Share shall, as provided herein,
represent a one-one-hundredth interest in a share of Stock and the same
proportionate interest in any and all other property received by the Depositary
in respect of such shares of Stock and held at the time under this Deposit
Agreement.
"Depositary's Agent" means an agent appointed by the Depositary
pursuant to Section 7.5.
"Depositary's Office" means the office of the Depositary at 400 South
Hope Street in Los Angeles, California, at which its depositary receipt business
shall be administered.
"Receipt" means a depositary receipt issued hereunder, whether in
definitive or temporary form and evidencing a Depositary Share or Depositary
Shares.
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"Record Holder" as applied with respect to a Depositary Share means the
person in whose name a Receipt evidencing such Depositary Share is registered on
the books of the Depositary maintained for such purpose.
"Redemption Date" shall have the meaning set forth in Section 2.3.
"Registrar" means any bank or trust company that shall be appointed to
register ownership and transfers of Receipts as herein provided.
"Stock" means shares of the Company's 8.60% Series C Cumulative
Redeemable Preferred Stock, par value $1.00 per share.
ARTICLE II
FORM OF RECEIPTS, DEPOSIT OF STOCK, EXECUTION AND DELIVERY,
TRANSFER, SURRENDER, AND REDEMPTION OF RECEIPTS
SECTION 2.1 Authorization to Change CUSIP Number; Form and Transfer of
Receipts.
The Company authorizes the Depositary to cause the CUSIP number of the
Depositary Shares to be changed to 421915 60 4 to reflect a change in the
securities underlying the Depositary Shares to the Company's Stock.
Definitive Receipts shall be engraved or printed or lithographed and
shall be substantially in the form set forth in Exhibit A annexed to this
Deposit Agreement, with appropriate insertions, modifications and omissions, as
hereinafter provided. Pending the preparation of definitive Receipts, the
Depositary, upon the written order of the Company delivered in compliance with
Section 2.2, shall execute and deliver temporary Receipts that are printed,
lithographed, typewritten, mimeographed or otherwise substantially of the tenor
of the definitive Receipts in lieu of which they are issued and with such
appropriate insertions, omissions, substitutions and other variations as the
persons executing such Receipts may determine, as evidenced by their execution
of such Receipts. If temporary Receipts are issued, the Company and the
Depositary will cause definitive Receipts to be prepared without unreasonable
delay. After the preparation of definitive Receipts, the temporary Receipts
shall be exchangeable for definitive Receipts upon surrender of the temporary
Receipts at an office designated by the Depositary as contemplated by the third
paragraph of Section 2.2, without charge to the holder. Upon surrender for
cancellation of any one or more temporary Receipts, the Depositary shall execute
and deliver in exchange therefor definitive Receipts representing the same
number of Depositary Shares as are represented by the surrendered temporary
Receipt or Receipts. Such exchange shall be made at the Company's expense and
without any charge therefor. Until so exchanged, the temporary Receipts shall in
all respects be entitled to the same benefits under this Deposit Agreement, and
with respect to the Stock, as definitive Receipts.
Receipts shall be executed by the Depositary by the manual signature of
a duly authorized officer of the Depositary; provided, however, that such
signature may be a facsimile if a Registrar for the Receipts (other than the
Depositary) shall have been appointed and such Receipts are countersigned by
manual signature of a duly authorized officer of the Registrar. No
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Receipt shall be entitled to any benefits under this Deposit Agreement or be
valid or obligatory for any purpose unless it shall have been executed manually
by a duly authorized officer of the Depositary or, if a Registrar for the
Receipts (other than the Depositary) shall have been appointed, by facsimile
signature of a duly authorized officer of the Depositary and countersigned
manually by a duly authorized officer of such Registrar. The Depositary shall
record on its books each Receipt so signed and delivered as hereinafter
provided.
Receipts shall be in denominations of any number of whole Depositary
Shares.
Receipts may be endorsed with or have incorporated in the text thereof
such legends or recitals or changes not inconsistent with the provisions of this
Deposit Agreement as may be required by the Company or the Depositary or
required to comply with any applicable law or any regulations of any securities
exchange upon which the Stock, the Depositary Shares or the Receipts may be
listed or to conform with any usage with respect thereto, or to indicate any
special limitations or restrictions to which any particular Receipts are
subject.
Title to Depositary Shares evidenced by a Receipt that is properly
endorsed, or accompanied by a properly executed instrument of transfer, shall be
transferable by delivery with the same effect as in the case of a negotiable
instrument; provided, however, that until transfer of a Depositary Share shall
be registered on the books of the Depositary as provided in Section 2.4, the
Depositary may, notwithstanding any notice to the contrary, treat the Record
Holder thereof at such time as the absolute owner thereof for the purpose of
determining the person entitled to distributions of dividends or other
distributions or to any notice provided for in this Deposit Agreement and for
all other purposes.
SECTION 2.2 Deposit of Stock; Execution and Delivery of Receipts in
Respect Thereof.
Subject to the terms and conditions of this Deposit Agreement, the
Company may from time to time deposit shares of Stock under this Deposit
Agreement by delivery to the Depositary of a certificate or certificates for the
stock to be deposited, properly endorsed or accompanied, if required by the
Depositary, by a duly executed instrument of transfer or endorsement, in form
satisfactory to the Depositary, together with all such certifications as may be
required by the Depositary in accordance with the provisions of this Deposit
Agreement, and together with a written order of the Company directing the
Depositary to execute and deliver to, or upon the written order of, the person
or persons stated in such order a Receipt or Receipts for the number of
Depositary Shares relating to such deposited Stock.
Deposited Stock shall be held by the Depositary at the Depositary's
Office or at such other place or places in the State of California as the
Depositary shall determine.
Upon receipt by the Depositary of a certificate or certificates for
Stock deposited in accordance with the provisions of this Section, together with
the other documents required as above specified, and upon recordation of the
Stock so deposited on the books of the Company in the name of the Depositary or
its nominee, the Depositary, subject to the terms and conditions of this Deposit
Agreement, shall execute and deliver to or upon the order of the person or
persons named in the written order delivered to the Depositary referred to in
the first paragraph of this
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Section, a Receipt or Receipts for the number of Depositary Shares relating to
the Stock so deposited and registered in such name or names as may be requested
by such person or persons. The Depositary shall execute and deliver such Receipt
or Receipts at the Depositary's Office or such other offices, if any, as the
Depositary may designate if requested by any such person or persons. Delivery at
other offices shall be at the risk and expense of the person requesting such
delivery.
Other than in the case of splits, combinations or other
reclassifications affecting the Stock, or in the case of dividends or other
distributions of Stock, if any, there shall be deposited hereunder not more than
forty thousand (40,000) shares of Stock.
SECTION 2.3 Redemption of Stock.
Whenever the Company shall elect to redeem shares of Stock in
accordance with the provisions of the Articles, it shall (unless otherwise
agreed in writing with the Depositary) mail notice to the Depositary of such
proposed redemption, by first class mail, postage prepaid not less than 35 or
more than 95 days prior to the date fixed for redemption of Stock in accordance
with Section 3 of the Articles. On the date of such redemption, provided that
the Company shall then have paid in full to the Depositary the redemption price
of the Stock to be redeemed, plus any accrued and unpaid dividends thereon (the
"Redemption Price"), the Depositary shall redeem the Depositary Shares relating
to such Stock. The Company shall publish notice of redemption of the Stock as
required by the Articles. The Depositary shall mail notice of such redemption
and the proposed simultaneous redemption of the number of Depositary Shares
relating to the Stock to be redeemed, by first-class mail, postage prepaid, not
less than 30 and not more than 90 days prior to the date fixed for redemption of
such Stock and Depositary Shares (the "Redemption Date"), to the Record Holders
of the Depositary Shares to be so redeemed, at the addresses of such holders as
they appear on the records of the Depositary; but neither failure to mail any
such notice to one or more such holders nor any defect in any notice to one or
more such holders shall affect the sufficiency of the proceedings for redemption
as to other holders. Each such notice shall state: (i) the Redemption Date; (ii)
the number of Depositary Shares to be redeemed and, if less than all the
Depositary Shares held by any such holder are to be redeemed, the number of such
Depositary Shares held by such holder to be so redeemed; (iii) the Redemption
Price; (iv) the place or places where Receipts evidencing Depositary Shares are
to be surrendered for payment of the redemption price; and (v) that dividends in
respect of the Stock underlying the Depositary Shares to be redeemed will cease
to accrue and accumulate at the close of business on such Redemption Date. In
case less than all the outstanding Depositary Shares are to be redeemed, the
Depositary Shares to be so redeemed shall be selected by lot, pro rata or such
other method as may be determined by the Depositary to be equitable.
If the Redemption Date is after the record date for determining holders
of Depositary Shares entitled to any dividend or distribution, such dividend or
distribution shall be payable to the holders of such Depositary Shares at the
close of business on such record date, notwithstanding such redemption.
Notice having been mailed by the Depositary as aforesaid, from and
after the Redemption Date (unless the Company shall have failed to redeem the
shares of Stock to be redeemed by it as set forth in the Company's notice
provided for in the preceding paragraph), all dividends in
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respect of the Depositary Shares so called for redemption shall cease to accrue
and accumulate, the Depositary Shares being redeemed from such proceeds shall be
deemed no longer to be outstanding, all rights of the holders of Receipts
evidencing such Depositary Shares (except (i) the right to receive the
Redemption Price, and (ii) the right to receive dividends the record date for
which is prior to the Exchange Date or Redemption Date, as set forth in the
preceding paragraph) shall, to the extent of such Depositary Shares, cease and
terminate and, upon surrender in accordance with such notice of the Receipts
evidencing any such Depositary Shares (properly endorsed or assigned for
transfer, if the Depositary shall so require), such Depositary Shares shall be
redeemed by the Depositary at the Redemption Price.
If less than all the Depositary Shares evidenced by a Receipt are
called for redemption, the Depositary will deliver to the holder of such Receipt
upon its surrender to the Depositary, together with the redemption payment, a
new Receipt evidencing the Depositary Shares evidenced by such prior Receipt and
not called for redemption.
SECTION 2.4 Registration of Transfer of Receipts.
Subject to the terms and conditions of this Deposit Agreement, the
Depositary shall register on its books from time to time transfers of Depositary
Shares upon any surrender of the Receipt or Receipts evidencing such Depositary
Shares by the holder in person or by duly authorized attorney, properly endorsed
or accompanied by a properly executed instrument of transfer. Thereupon the
Depositary shall execute a new Receipt or Receipts evidencing the same aggregate
number of Depositary Shares as those evidenced by the Receipt or Receipts
surrendered and deliver such new Receipt or Receipts to or upon the order of the
person entitled thereto.
SECTION 2.5 Split-ups and Combinations of Receipts: Surrender of
Depositary Shares and Withdrawal of Stock.
Upon surrender of a Receipt or Receipts at the Depositary's Office or
at such other offices as it may designate for the purpose of effecting a
split-up or combination of such Receipt or Receipts, and subject to the terms
and conditions of this Deposit Agreement, the Depositary shall execute and
deliver a new Receipt or Receipts in the denominations requested, evidencing the
aggregate number of Depositary Shares evidenced by Receipt or Receipts
surrendered.
Any holder of Depositary Shares may withdraw the number of whole shares
of Stock underlying such Depositary Shares and all money and other property, if
any, underlying such Depositary Shares by surrendering Receipts evidencing such
Depositary Shares at the Depositary's Office or at such other offices as the
Depositary may designate for such withdrawals. Thereafter, without unreasonable
delay, the Depositary shall deliver to such holder, or to the person or persons
designated by such holder as hereinafter provided, the number of whole shares of
Stock and all money and other property, if any, underlying the Depositary Shares
so surrendered for withdrawal, but holders of such whole shares of Stock will
not thereafter be entitled to deposit such Stock hereunder or to receive
Receipts evidencing Depositary Shares therefor. If a Receipt delivered by a
holder to the Depositary in connection with such withdrawal shall evidence a
number of Depositary Shares relating to other than a number of whole shares of
Stock, the Depositary shall at the same time, in addition to such
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number of whole shares of Stock and such money and other property, if any, to be
so withdrawn, deliver to such holder, or (subject to Section 3.2) upon his or
her order, a new Receipt evidencing such excess number of Depositary Shares. In
no event will fractional shares of Stock be distributed by the Depositary.
Delivery of the Stock and money and other property being withdrawn may be made
by delivery of such certificates, documents of title and other instruments as
the Depositary may deem appropriate.
If the Stock and the money and other property being withdrawn are to be
delivered to a person or persons other than the Record Holder of the Depositary
Shares evidenced by the Receipts being surrendered for withdrawal of Stock, such
holder shall execute and deliver to the Depositary a written order so directing
the Depositary, and the Depositary may require that the Receipt or Receipts
surrendered by such holder for withdrawal of such shares of Stock be properly
endorsed in blank or accompanied by a properly executed instrument of transfer.
Delivery of the Stock and money and other property, if any, underlying
the Depositary Shares surrendered for withdrawal shall be made by the Depositary
at the Depositary's Office, except that, at the request, risk and expense of the
holder surrendering such Depositary Shares and for the account of such holder,
such delivery may be made at such other place as may be designated by such
holder.
SECTION 2.6 Limitations on Execution and Delivery Transfer- Surrender
and Exchange of Receipts.
As a condition precedent to the execution and delivery, registration of
transfer, split-up, combination, surrender or exchange of any Receipt, the
Depositary, any of the Depositary's Agents or the Company may require payment to
it of a sum sufficient for the payment (or, in the event that the Depositary or
the Company shall have made such payment, the reimbursement to it) of any
charges or expenses payable by the holder of a Receipt pursuant to Section 5.7,
may require the production of evidence satisfactory to it as to the identity and
genuineness of any signature and may also require compliance with such
regulations, if any, as the Depositary or the Company may establish consistent
with the provisions of this Deposit Agreement.
The delivery of Receipts against Stock may be suspended, the
registration of transfer of Depositary Shares may be refused and the
registration of transfer, surrender or exchange of outstanding Depositary Shares
may be suspended (i) during any period when the register of stockholders of the
Company is closed or (ii) if any such action is deemed necessary or advisable by
the Depositary, any of the Depositary's Agents or the Company at any time from
time to time because of any requirement of law or of any government or
governmental body or commission or under any provision of this Deposit
Agreement.
SECTION 2.7 Lost Receipts, etc.
In case any Receipt shall be mutilated, destroyed, lost or stolen, the
Depositary in its discretion may execute and deliver a Receipt of like form and
tenor in exchange and substitution for such mutilated Receipt, or in lieu of and
in substitution for such destroyed, lost or stolen Receipt, upon (i) the filing
by the holder thereof with the Depositary of evidence satisfactory to the
Depositary of such destruction or loss or theft of such Receipt, or the
authenticity thereof and
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of his or her ownership thereof and (ii) the furnishing to the Depositary of
reasonable indemnification satisfactory to it.
SECTION 2.8 Cancellation and Destruction of Surrendered Receipts.
All Receipts surrendered to the Depositary or any Depositary's Agent
shall be canceled by the Depositary. Except as prohibited by applicable law or
regulation, the Depositary is authorized to destroy all Receipts so canceled.
ARTICLE III
CERTAIN OBLIGATIONS OF THE HOLDERS
OF RECEIPTS AND THE COMPANY
SECTION 3.1 Filing Proofs Certificates and Other Information.
Any holder of a Depositary Share may be required from time to time to
file such proof of residence, or other matters or other information, to execute
such certificates and to make such representations and warranties as the
Depositary or the Company may reasonably deem necessary or proper. The
Depositary or the Company may withhold the delivery, or delay the registration
of transfer, redemption or exchange, of any Depositary Share or the withdrawal
of any Stock underlying Depositary Shares or the distribution of any dividend or
other distribution or the sale of any rights or of the proceeds thereof until
such proof or other information is filed or such certificates are executed or
such representations and warranties are made.
SECTION 3.2 Payment of Taxes or Other Governmental Charges.
Holders of Depositary Shares shall be obligated to make payments to the
Depositary of certain charges and expenses, as provided in Section 5.7.
Registration of transfer of any Depositary Share or any withdrawal of Stock and
delivery of all money or other property, if any, underlying such Depositary
Share may be refused until any such payment due is made, and any dividends or
other distributions may be withheld or all or any part of the Stock or other
property relating to such Depositary Shares and not theretofore sold may be sold
for the account of the holder thereof (after attempting by reasonable means to
notify such holder prior to such sale), and such dividends or other
distributions or the proceeds of any such sale may be applied to any payment of
such charges or expenses, the holder of such Depositary Share remaining liable
for any deficiency.
SECTION 3.3 Warranty as to Stock.
The Company hereby represents and warrants that the Stock, when issued,
will be validly issued, fully paid and nonassessable. Such representation and
warranty shall survive the deposit of the Stock and the issuance of the
Receipts.
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ARTICLE IV
THE DEPOSITED SECURITIES; NOTICES
SECTION 4.1 Cash Distributions.
Whenever the Depositary shall receive any cash dividend or other cash
distribution on the Stock, the Depositary shall, subject to Sections 3.1 and
3.2, promptly distribute to the Record Holder of Depositary Shares on the record
date fixed pursuant to Section 4.4 such amounts of such dividend or distribution
as are, as nearly as practicable in proportion to the respective numbers of
Depositary Shares held by such holders; provided, however, that in case the
Company or the Depositary shall be required to withhold and shall withhold from
any cash dividend or other cash distribution in respect of the Stock an amount
on account of taxes, the amount made available for distribution or distributed
in respect of Depositary Shares to the Record Holders shall be reduced
accordingly. Fractions will be rounded down to the nearest whole cent.
SECTION 4.2 Distributions Other than Cash.
Whenever the Depositary shall receive any distribution other than cash
on the Stock, the Depositary shall, subject to Sections 3.1 and 3.2, promptly
distribute to the Record Holders of Depositary Shares on the record date fixed
pursuant to Section 4.4 such amounts of the securities or property received by
it as are, as nearly as practicable, in proportion to the respective numbers of
Depositary Shares held by such holders, in any manner that the Depositary may
deem equitable and practicable for accomplishing such distribution. If in the
opinion of the Depositary such distribution cannot be made proportionately among
such Record Holders, or if for any other reason (including any requirement that
the Company or the Depositary withhold an amount on account of taxes or
governmental charges) the Depositary deems, after consultation with the Company,
such distribution not to be feasible, the Depositary may, with the written
approval of the Company, adopt such method as it deems equitable and practicable
for the purpose of effecting such distribution, including the sale (at public or
private sale) of the securities or property thus received, or any part thereof,
at such place or places and upon such terms as it may deem proper. The net
proceeds of any such sale shall, subject to Sections 3.1 and 3.2, be distributed
or made available for distribution, as the case may be, by the Depositary to the
Record Holders of Depositary Shares entitled thereto as provided by Section 4.1
in the case of a distribution received in cash. The Company shall not make any
distribution of such securities unless the Company shall have provided an
opinion of counsel to the effect that such securities have been registered under
the Securities Act of 1933, as amended (the "1933 Act"), or do not need to be
registered.
SECTION 4.3 Subscription Rights, Preferences or Privileges.
If the Company shall at any time offer or cause to be offered to the
persons in whose names Stock is recorded on the books of the Company any rights,
preferences or privileges to subscribe for or to purchase any securities or any
rights, preferences or privileges of any other nature, such rights, preferences
or privileges shall in each such instance be made available by the Depositary to
the Record Holders of Depositary Shares in such manner as the Depositary may
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<PAGE> 12
determine, either by the issue to such Record Holders of warrants representing
such rights, preferences or privileges or by such other method as may be
approved by the Depositary with the written approval of the Company; provided,
however, that (a) if at the time of issue or offer of any such rights,
preferences or privileges the Depositary determines that it is not lawful or
(after consultation with the Company) not feasible to make such rights,
preferences or privileges available to holders of Depositary Shares by the
issuance of warrants or otherwise, or (b) if and to the extent so instructed by
holders of Depositary Shares who do not desire to exercise such rights,
preferences or privileges, then the Depositary, in its discretion (with the
approval of the Company, in any case where the Depositary has determined that it
is not feasible to make such rights, preferences or privileges available), may,
if applicable laws or the terms of such rights, preferences or privileges permit
such transfer, sell such rights, preferences or privileges at public or private
sale, at such place or places and upon such terms as it may deem proper. The net
proceeds of any such sale shall, subject to Section 3.1 and 3.2, be distributed
by the Depositary to the Record Holders of Depositary Shares entitled thereto as
provided by Section 4.1 in the case of a distribution received in cash. The
Company shall not make any distribution of such rights, preferences or
privileges unless the Company shall have provided an opinion of counsel to the
Depositary to the effect that such rights, preferences or privileges have been
registered under the 1933 Act or do not need to be registered.
If registration under the 1933 Act of the securities to which any
rights, preferences or privileges relate is required in order for holders of
Depositary Shares to be offered or sold the securities to which such rights,
preferences or privileges relate, the Company agrees with the Depositary that it
will file promptly a registration statement pursuant to such Act with respect to
such rights, preferences or privileges and securities and use its best efforts
and take all steps available to it to cause such registration statement to
become effective sufficiently in advance of the expiration of such rights,
preferences or privileges to enable such holders to exercise such rights,
preferences or privileges. In no event shall the Depositary make available to
the holders of Depositary Shares any right, preference or privilege to subscribe
for or to purchase any securities unless and until such a registration statement
shall have become effective, or unless the offering and sale of such securities
to such holders are exempt from registration under the provisions of such Act.
If any other action under the laws of any jurisdiction or any
governmental or administrative authorization, consent or permit is required in
order for such rights, preferences or privileges to be made available to the
holders of Depositary Shares, the Company agrees with the Depositary that the
Company will use its best efforts to take such action or obtain such
authorization, consent or permit sufficiently in advance of the expiration of
such rights, preferences or privileges to enable such holders to exercise such
rights, preferences or privileges.
SECTION 4.4 Notice of Dividends; Fixing of Record Date for Holders of
Depositary Shares.
Whenever any cash dividend or other cash distribution shall become
payable or any distribution other than cash shall be made, or if rights,
preferences or privileges shall at any time be offered, with respect to the
Stock, or whenever the Depositary shall receive notice of any meeting at which
holders of Stock are entitled to vote, or of which holders of Stock are entitled
to notice, the Depositary shall in each such instance fix a record date (which
shall be the same
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<PAGE> 13
date as the record date fixed by the Company with respect to the Stock) for the
determination of the holders of Depositary Shares who shall be entitled to
receive a distribution in respect of such dividend, distribution, rights,
preferences or privileges or the net proceeds of the sale thereof, or to give
instructions for the exercise of voting rights at any such meeting, or who shall
be entitled to receive notice of such meeting.
SECTION 4.5 Voting Rights.
Upon receipt of notice of any meeting at which the holders of the Stock
are entitled to vote, the Depositary shall, as soon as practicable thereafter,
mail to the Record Holders of Depositary Shares a notice that shall be provided
by the Company and that shall contain (a) such information as is contained in
such notice of meeting and (b) a statement informing holders of Depositary
Shares that they may instruct the Depositary as to the exercise of the voting
rights pertaining to the amount of Stock underlying their respective Depositary
Shares and a brief statement as to the manner in which such instructions may be
given. Upon the written request of the holders of Depositary Shares on the
record date established in accordance with Section 4.4, the Depositary shall
endeavor insofar as practicable to vote or cause to be voted, in accordance with
the instructions set forth in such requests, the maximum number of whole shares
of Stock underlying the Depositary Shares as to which any particular voting
instructions are received. The Company hereby agrees to take all action that may
be deemed necessary by the Depositary in order to enable the Depositary to vote
such Stock or cause such Stock to be voted. In the absence of specific
instructions from the holder of a Depositary Share, the Depositary will refrain
from voting to the extent of the Stock underlying the Depositary Shares.
SECTION 4.6 Changes Affecting Deposited Securities and
Reclassifications. Recapitalizations, etc.
Upon any change in par or liquidation value, split-up, combination or
any other reclassification of the Stock, or upon any recapitalization,
reorganization, merger, amalgamation or consolidation affecting the Company or
to which it is a party, the Depositary may in its discretion, with the approval
of, and shall upon the instructions of, the Company, and (in either case) in
such manner as the Depositary may deem equitable, (i) make such adjustments in
(a) the fraction of an interest in one share of Stock underlying one Depositary
Share and (b) the ratio of the redemption price per Depositary Share to the
redemption price of a share of the Stock, in each case as may be necessary fully
to reflect the effects of such change in par or liquidation value, split-up,
combination or other reclassification of the Stock, or of such recapitalization,
reorganization, merger, amalgamation or consolidation and (ii) treat any
securities that shall be received by the Depositary in exchange for or upon
conversion of or in respect of the Stock as new deposited securities so received
in exchange for or upon conversion of or in respect of such Stock. In any such
case the Depositary may in its discretion, with the approval of the Company,
execute and deliver additional Receipts, or may call for the surrender of all
outstanding Receipts to be exchanged for new Receipts specifically describing
such new deposited securities. Furthermore, by mutual agreement of the Company
and the Depositary, the Depositary may at any time make adjustments in (i) the
fraction of an interest in one share of Stock underlying one Depositary Share
and (ii) the ratio of the redemption price or exchange price per Depositary
Share to the redemption price or exchange price of a share of the Stock.
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<PAGE> 14
SECTION 4.7 Delivery of Reports.
The Depositary will forward to Record Holders of Receipts, at their
respective addresses appearing in the Depositary's books, all notices, reports
and communications received from the Company that are delivered to the
Depositary and that the Company is required to furnish to the holders of Stock
or Receipts.
SECTION 4.8 List of Holders.
Promptly upon each and every request from time to time by the Company,
the Depositary shall furnish to it a list, as of a recent date, of the names,
addresses and holdings of Depositary Shares of all persons in whose names
Depositary Shares are registered on the books of the Depositary or Registrar, as
the case may be.
ARTICLE V
THE DEPOSITARY, THE DEPOSITARY'S AGENTS,
THE REGISTRAR AND THE COMPANY
SECTION 5.1 Maintenance of Offices, Agencies and Transfer Books by the
Depositary; Registrar.
Upon execution of this Deposit Agreement, the Depositary shall maintain
at the Depositary's Offices, or at any Registrar's Office, at which the
Depositary shall have complete access to all books and records maintained on the
Company's behalf, facilities for the execution and delivery, surrender and
exchange of Receipts and the registration and registration of transfer of
Depositary Shares, and at the offices of the Depositary's Agents, if any,
facilities for the delivery, surrender and exchange of Receipts and the
registration of transfer of Depositary Shares, all in accordance with the
provisions of this Deposit Agreement.
The Depositary shall keep books at the Depositary's Office for the
registration and registration of transfer of Depositary Shares, which books at
all reasonable times shall be open for inspection by the Record Holders of
Depositary Shares; provided, however, that such inspection shall be for a proper
purpose reasonably related to such person's interest as an owner of Depositary
Shares and any such holder requesting to exercise such right shall certify such
fact in writing to the Depositary and the Company.
The Depositary may close such books, at any time or from time to time,
when deemed expedient by it in connection with the performance of its duties
hereunder.
If the Receipts or the Depositary Shares evidenced thereby or the Stock
underlying such Depositary Shares shall be listed on The New York Stock
Exchange, the Depositary may, with the approval of the Company, appoint a
Registrar for registration of such Receipts or Depositary Shares in accordance
with any requirements of such exchange. Such Registrar (which may be the
Depositary if so permitted by the requirements of such exchange) may be removed
and a substitute registrar appointed by the Depositary upon the written request
or with the written approval of the Company. If the Receipts, such Depositary
Shares or such Stock are listed on one or more other stock exchanges, the
Depositary will, at the request of the Company, arrange
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<PAGE> 15
such facilities for the execution, delivery, registration, registration of
transfer, surrender and exchange of such Receipts, such Depositary Shares or
such Stock as may be required by law or applicable stock exchange regulation.
SECTION 5.2 Prevention of or Delay in Performance by the Depositary the
Depositary's Agents, any Registrar or the Company.
Neither the Depositary nor any Depositary's Agent nor any Registrar nor
the Company shall incur any liability to any holder of any Depositary Share if
by reason of any provision of any present or future law, or regulation
thereunder, of the United States of America or of any other governmental
authority or, in the case of the Depositary, any Depositary's Agent or any
Registrar, by reason of any provision, present or future, of the Company's
charter` (including the Articles) or by reason of any act of God or war or other
circumstance beyond the control of the relevant party, the Depositary, any
Depositary's Agent, any Registrar or the Company shall be prevented or forbidden
from doing or perform the any act or thing that the terms of this Deposit
Agreement provide shall be done or performed; nor shall the Depositary, any
Depositary's Agent, any Registrar or the Company incur any liability to any
holder of a Depositary Share (i) by reason of any nonperformance or delay,
caused as aforesaid, in the performance of any act or thing that the terms of
this Deposit Agreement provide shall or may be done or performed, or (ii) by
reason of any exercise of, or failure to exercise, any discretion provided for
in this Deposit Agreement except, in case of any such exercise or failure to
exercise discretion not caused as aforesaid, if caused by the gross negligence
or willful misconduct of the party charged with such exercise or failure to
exercise.
SECTION 5.3 Obligations of the Depositary, the Depositary's Agents, any
Registrar and the Company.
Neither the Depositary nor any Depositary's Agent nor any Registrar nor
the Company assumes any obligation or shall be subject to any liability under
this Deposit Agreement to holders of Depositary Shares other than for such
person's own gross negligence or willful misconduct.
Neither the Depositary nor any Depositary's Agent nor any Registrar nor
the Company shall be under any obligation to appear in, prosecute or defend any
action, suit or other proceeding in respect of the Stock, the Depositary Shares
or the Receipts that in its opinion may involve it in expense or liability
unless indemnity satisfactory to it against all expense and liability be
furnished as often as may be required.
Neither the Depositary nor any Depositary's Agent nor any Registrar nor
the Company shall be liable for any action or failure to act by it in reliance
upon the written advice of legal counsel or accountants, or information from any
person presenting Stock for deposit, any holder of a Depositary Share or any
other person believed by it in good faith to be competent to give such
information. The Depositary, any Depositary's Agent, any Registrar and the
Company may each rely and shall each be protected in acting upon any written
notice, request, direction or other document believed by it to be genuine and to
have been signed or presented by the proper party or parties.
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<PAGE> 16
The Depositary undertakes, and any Registrar shall be required to
undertake, to perform such duties and only such duties as are specifically set
forth in this Deposit Agreement, and no implied covenants or obligations shall
be read into this Deposit Agreement against the Depositary or any Registrar. The
Depositary shall not be subject to any liability under this Deposit Agreement to
the Company other than for any liability that may arise out of acts performed or
omitted by the Depositary or its agents due to its or their negligence, bad
faith or willful misconduct. The Depositary, the Depositary's agents, any
Registrar and the Company may own and deal in any class of securities of the
Company and its affiliates and in Depositary Shares. The Depositary may also act
as transfer agent or registrar of any of the securities of the Company and its
affiliates.
Anything herein to the contrary notwithstanding, in no event shall the
Depositary be liable for special, indirect or consequential loss or damage of
any kind whatsoever (including but not limited to lost profits), even if the
Depositary has been advised of the likelihood of such loss or damage and
regardless of the form of action.
SECTION 5.4 Resignation and Removal of the Depositary; Appointment of
Successor Depositary.
The Depositary may at any time resign as Depositary hereunder by
written notice of its election so to be delivered to the Company, such
resignation to take effect upon the appointment of a successor Depositary and
such successor's written acceptance of such appointment as hereinafter provided.
The Depositary may at any time be removed by the Company by written
notice of such removal delivered to the Depositary, such removal to take effect
upon the appointment of a successor Depositary and such successor's written
acceptance of such appointment as hereinafter provided.
In case the Depositary acting hereunder shall at any time resign or be
removed, the Company shall, within 60 days after the delivery of the notice of
resignation or removal, as the case may be, appoint a successor Depositary,
which shall be a bank or trust company having its principal office in the United
States of America and having a combined capital and surplus of at least
$50,000,000. If no successor Depositary shall have been so appointed within 60
days after delivery of such notice, the resigning or removed Depositary may
petition any court of competent jurisdiction for the appointment of a successor
Depositary. Every successor Depositary shall execute and deliver to its
predecessor and to the Company an instrument in writing accepting its
appointment hereunder, and thereupon such successor Depositary, without any
further act or deed, shall become fully vested with all the rights, powers,
duties and obligations of its predecessor and for all purposes shall be the
Depositary under this Deposit Agreement, and such predecessor, upon the written
request of the Company, shall execute and deliver an installment transferring to
such successor all rights and powers of such predecessor hereunder, shall duly
assign, transfer and deliver all right, title and interest in the Stock and any
moneys or property held hereunder to such successor and shall deliver to such
successor a list of the Record Holders of all outstanding Depositary Shares. Any
successor Depositary shall promptly mail notice of its appointment to the Record
Holders of Depositary Shares. Thereafter,
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<PAGE> 17
any predecessor Depositary shall deliver any correspondence received from any
holders of Depositary Shares to the successor Depositary.
Any corporation into or with which the Depositary may be merged,
consolidated or converted shall be the successor of such Depositary without the
execution or filing of any document or any further act. Such successor
Depositary may authenticate the Receipts in the name of the predecessor
Depositary or in the name of the successor Depositary.
SECTION 5.5 Corporate Notices and Reports.
The Company agrees that it will transmit to the Depositary all notices,
reports and communications (including without limitation financial statements)
required by law, the rules of any national securities exchange upon which the
Stock, the Depositary Shares or the Receipts are listed or by the Company's
charter (including the Articles) to be furnished by the Company to holders of
the Stock.
SECTION 5.6 Indemnification by the Company.
The Company shall indemnify the Depositary, any Depositary's Agent and
any Registrar against, and hold each of them harmless from, any loss, liability
or expense (including the costs and expenses of defense) that may arise out of
(i) acts performed or omitted in connection with this Deposit Agreement and the
Depositary Shares (a) by the Depositary, any Registrar or any of their
respective agents (including any Depositary's Agent), except for any liability
arising out of gross negligence, willful misconduct or bad faith on the
respective parts of any such person or persons, or (b) by the Company or any of
its agents, arising out of the Company's or its agents' gross negligence,
willful misconduct or bad faith, or (ii) the offer, sale or registration under
the securities laws of the United States of the Depositary Shares or the Stock.
The obligations of the Company set forth in this Section 5.6 shall survive any
succession of any Depositary, Registrar or Depositary's Agent.
SECTION 5.7 Charges and Expenses.
The Company shall pay all transfer and other taxes and governmental
charges arising solely from the existence of the depositary arrangements. The
Company shall pay all charges of the Depositary agreed upon by the Company and
the Depositary in connection with the initial deposit of the Stock and the
initial issuance of the Receipts, any redemption of the Stock at the option of
the Company and any withdrawals of Stock by holders of Depositary Shares. All
other transfer and other taxes and governmental charges shall be at the expense
of holders of Depositary Shares. If, at the request of a holder of a Depositary
Share, the Depositary incurs charges or expenses for which it is not otherwise
liable hereunder, such holder will be liable for such charges and expenses. The
Company shall pay the Depositary reasonable compensation for all services
rendered by the Depositary under this Deposit Agreement according to the fee
schedule agreed to by the Company and the Depositary. All other charges and
expenses of the Depositary, any Depositary's Agent hereunder and any Registrar
(including, in each case, fees and expenses of counsel) incident to the
performance of their respective obligations hereunder will be paid upon
consultation and agreement between the Depositary and the Company as to the
amount and nature of such charges and expenses.
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ARTICLE VI
AMENDMENT AND TERMINATION
SECTION 6.1 Amendment.
The form of the Receipts and any provisions of this Deposit Agreement
may at any time and from time to time be amended by agreement between the
Company and the Depositary in any respect that they may deem necessary or
desirable; provided, however, that no such amendment that shall materially and
adversely alter the rights of the existing holders of Depositary Shares shall be
effective unless such amendment shall have been approved by the holders of at
least a majority of the Depositary Shares then outstanding. Every holder of any
outstanding Depositary Share at the time any such amendment becomes effective
shall be deemed, by continuing to hold such Depositary Share, to consent and
agree to such amendment and to be bound by this Deposit Agreement as amended
thereby.
SECTION 6.2 Termination.
This Deposit Agreement may be terminated by the Company or the
Depositary only after (i) all outstanding Depositary Shares shall have been
redeemed and any unpaid dividends on the Stock represented by the Depositary
Shares, together with all other moneys and property, if any, to which holders of
the related Receipts are entitled under the terms of such Receipts or this
Deposit Agreement, have been paid or distributed as provided in this Deposit
Agreement or provision therefor has been duly made pursuant to Section 2.3 or
(ii) there shall have been made a final distribution in respect of the Stock in
connection with any liquidation, dissolution or winding up of the Company and
such distribution shall have been distributed to the holders of Receipts
pursuant to Section 4.1 or 4.2, as applicable.
Upon the termination of this Deposit Agreement, the Company shall be
discharged from all obligations under this Deposit Agreement except for its
obligations to the Depositary, any Depositary's Agents and any Registrar under
Sections 5.6 and 5.7.
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.
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SECTION 7.3 Invalidity of Provisions.
In case any one or more of the provisions contained in this Deposit
Agreement or in the Receipts shall be or become invalid, illegal or
unenforceable in any respect, the validity, legality and enforceability of the
remaining provisions contained herein or therein shall in no way be affected,
prejudiced or disturbed thereby.
SECTION 7.4 Notices.
Any and all notices to be given to the Company hereunder or under the
Receipts shall be in writing and shall be deemed to have been duly given if
personally delivered or sent by mail or telegram or telex confirmed by letter,
addressed to the Company at 4675 MacArthur Court, 9th Floor, Newport Beach,
California 92660, to the attention of the General Counsel, or at any other
address of which the Company shall have notified the Depositary in writing.
Any and all notices to be given to the Depositary hereunder or under
the Receipts shall be in writing and shall be deemed to have been duly given if
personally delivered or sent by mail or by telegram or telex confirmed by
letter, addressed to the Depositary at the Depositary's Office, at 400 South
Hope Street, 4th Floor, Los Angeles, California 90071, or at any other address
of which the Depositary shall have notified the Company in writing.
Any and all notices to be given to any Record Holder of a Depositary
Share hereunder or under the Receipts shall be in writing and shall be deemed to
have been duly given if personally delivered or sent by mail or by telegram or
telex confirmed by letter, addressed to such Record Holder at the address of
such Record Holder as it appears on the books of the Depositary, or if 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 telex shall be
deemed to be effected at the time when a duly addressed letter containing the
same (or a confirmation thereof in the case of a telegram or telex message) is
deposited, postage prepaid, in a post office letter box. The Depositary or
Company may, however, act upon any telegram or telex message received by it from
the other or from any holder of a Depositary Share, notwithstanding that such
telegram or telex message shall not subsequently be confirmed by letter or as
aforesaid.
SECTION 7.5 Depositary's Agents.
The Depositary may from time to time, upon written notice to, and with
the prior approval of, the Company, appoint Depositary's Agents to act in any
respect for the Depositary for the purposes of this Deposit Agreement and may
terminate the appointment of such Depositary's Agents. The Depositary will
notify the Company of any such termination.
SECTION 7.6 Holders of Receipts Are Parties.
The holders of Depositary Shares from time to time shall be parties to
this Deposit Agreement and shall be bound by all of the terms and conditions
hereof and of the Receipts evidencing such Depositary Shares by acceptance of
delivery thereof.
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SECTION 7.7 Governing Law.
THIS DEPOSIT AGREEMENT AND THE RECEIPTS AND ALL RIGHTS HEREUNDER AND
THEREUNDER AND PROVISIONS HEREOF AND THEREOF SHALL BE GOVERNED BY, AND CONSTRUED
IN ACCORDANCE WITH, THE LAWS OF THE STATE OF CALIFORNIA WITHOUT REFERENCE TO
CHOICE OR CONFLICT OF LAW PRINCIPLES.
SECTION 7.8 Inspection of Deposit Agreement.
Copies of this Deposit Agreement shall be filed with the Depositary and
the Depositary's Agents and shall be open for inspection during business hours
al the Depositary's Office and the respective offices of the Depositary's
Agents, if any, by any bolder of a Depositary Share.
SECTION 7.9 Headings.
The headings of articles and sections in this Deposit Agreement and in
the form of Receipt set forth in Exhibit A hereto have been inserted for
convenience only and are not to be regarded as part of this Deposit Agreement or
the Receipts or to have any bearing upon the meaning or interpretation of any
provision contained herein or in the Receipts.
IN WITNESS WHEREOF, the Company and the Depositary have duly executed
this Deposit Agreement as of the day and year first above set forth, and all
holders of Depositary Shares shall become parties hereto by and upon acceptance
by them of delivery of Receipts evidencing such Depositary Shares and issued in
accordance with the terms hereof.
HEALTH CARE PROPERTY INVESTORS, INC.
By:
--------------------------------------
Edward J. Henning
Senior Vice President, General Counsel
and Secretary
CHASEMELLON SHAREHOLDER SERVICES, L.L.C.
By:
--------------------------------------
Authorized Officer
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EXHIBIT A
[FORM OF DEPOSITARY RECEIPT]
DEPOSITARY RECEIPT FOR DEPOSITARY SHARES
EACH REPRESENTING A ONE-ONE-HUNDREDTH INTEREST IN A SHARE OF
8.60% SERIES C CUMULATIVE REDEEMABLE PREFERRED STOCK,
PAR VALUE $1.00 PER SHAPE
HEALTH CARE PROPERTY INVESTORS, INC.
INCORPORATED UNDER THE LAWS OF THE STATE OF MARYLAND
THIS DEPOSITARY RECEIPT IS TRANSFERABLE
IN THE CITIES OF LOS ANGELES, RIDGEFIELD PARK OR NEW YORK
ChaseMellon Shareholder Services, L.L.C., as Depositary (the
"Depositary"), hereby certifies that
is the registered owner of ___________________________ DEPOSITARY SHARES.
("Depositary Shares"), each Depositary Share representing a one-one-hundredth
interest in one share of 8.60% Series C Cumulative Redeemable Preferred Stock,
par value $1.00 per share (the "Stock"), of Health Care Property Investors,
Inc., a Delaware corporation (the "Company"), on deposit with the Depositary,
subject to the terms and entitled to the benefits of the Deposit Agreement,
dated as of November __, 1999 (the "Deposit Agreement"), between the Company,
the Depositary and all holders from time to time of Depositary Receipts. By
accepting this Depositary Receipt the holder hereof becomes a party to and
agrees to be bound by all the terms and conditions of the Deposit Agreement.
This Depositary Receipt shall not be valid or obligatory for any purpose or
entitled to any benefits under the Deposit Agreement unless it shall have been
executed by the Depositary by the manual signature of a duly authorized officer
or, if executed in facsimile by the Depositary, countersigned by a Registrar in
respect of the Depositary Receipts by the manual signature of a duly authorized
officer thereof
Dated:
-----------------------
CHASEMELLON SHAREHOLDER SERVICES, L.L.C.
Depositary and Registrar
By:
------------------------------------
<PAGE> 22
HEALTH CARE PROPERTY INVESTORS, INC.
1. Depositary Shares. Subject to the terms of the Deposit Agreement
each owner of a Depositary Share is entitled, proportionately through the
Depositary, to all the rights and preferences of the Stock relating thereto
including dividend, voting, redemption and liquidation rights contained in the
Articles Supplementary adopted by the Company's Board of Directors setting forth
the number, terms, powers, descriptions, rights, preferences, qualifications,
restrictions and limitations of the Stock (the "Articles") copies of which are
on file at the Depositary's Office at 400 South Hope Street, 4th Floor, Los
Angeles, California 90071. Certain terms used herein but not defined are defined
in the Certificate.
2. The Deposit Agreement. Depositary Receipts (the "Receipts"), of
which this Receipt is one, are made available upon the terms and conditions set
forth in the Deposit Agreement. The Deposit Agreement sets forth the rights of
holders of the Receipts and the Depositary Shares evidenced thereby and the
rights and duties of the Depositary and the Company in respect of the Stock
deposited, and any and all other property and cash deposited from time to time
thereunder. The statements made on the face and the reverse of this Receipt are
summaries of certain provisions of the Deposit Agreement and are subject to the
detailed provisions thereof, to which reference is hereby made. Unless otherwise
expressly herein provided, all defined terms used herein shall have the meanings
ascribed thereto in the Deposit Agreement.
3. Redemption. Whenever the Company shall elect to redeem shares of
Stock in accordance with the provisions of the Articles, it shall (unless
otherwise agreed in writing with the Depositary) mail notice to the Depositary
of such proposed redemption, by first class mail, postage prepaid not less than
35 or more than 95 days prior to the date fixed for redemption of Stock in
accordance with Section 3 of the Articles. On the date of such redemption,
provided that the Company shall then have paid in full to the Depositary the
redemption price of the Stock to be redeemed, plus any accrued and unpaid
dividends thereon (the "Redemption Price"), the Depositary shall redeem the
Depositary Shares relating to such Stock. The Company shall publish notice of
the redemption of the Stock as required by the Articles. The Depositary shall
mail notice of such redemption and the proposed simultaneous redemption of the
number of Depositary Shares relating to the Stock to be redeemed, by first-class
mail, postage prepaid, not less than 30 and not more than 90 days prior to the
date fixed for redemption of such Stock and Depositary Shares (the "Redemption
Date"), to the Record Holders of the Depositary Shares to be so redeemed, at the
addresses of such holders as they appear on the records of the Depositary; but
neither failure to mail any such notice to one or more such holders nor any
defect in any notice to one or more such holders shall affect the sufficiency of
the proceedings for redemption as to other holders. Each such notice shall
state: (i) the Redemption Date; (ii) the number of Depositary Shares to be
redeemed and, if less than all the Depositary Shares held by any such holder are
to be redeemed, the number of such Depositary Shares held by such holder to be
so redeemed; (iii) the Redemption Price; (iv) the place or places where Receipts
evidencing Depositary Shares are to be surrendered for payment of the redemption
price; and (v) that dividends in respect of the Stock underlying the Depositary
Shares to be redeemed will cease to accrue and accumulate at the close of
business on such Redemption Date. In case less than all the outstanding
Depositary Shares are to be redeemed, the Depositary Shares to be so redeemed
<PAGE> 23
shall be selected by lot, pro rata or such other method as may be determined by
the Depositary to be equitable.
If the Redemption Date is after the record date for determining holders
of Depositary Shares entitled to any dividend or distribution, such dividend or
distribution shall be payable to the holders of such Depositary Shares at the
close of business on such record date, notwithstanding such redemption.
Notice having been mailed by the Depositary as aforesaid, from and
after the Redemption Date (unless the Company shall have failed to redeem the
shares of Stock to be redeemed by it as set forth in the Company's notice
provided for in the preceding paragraph) all dividends in respect of the
Depositary Shares so called for redemption shall cease to accrue and accumulate,
the Depositary Shares being redeemed from such proceeds shall be deemed no
longer to be outstanding, all rights of the holders of Receipts evidencing such
Depositary Shares (except (i) the right to receive the Redemption Price, and
(ii) the right to receive dividends the record date for which is prior to the
Exchange Date or Redemption Date, as set forth in the preceding paragraph)
shall, to the extent of such Depositary Shares, cease and terminate and, upon
surrender in accordance with such notice of the Receipts evidencing any such
Depositary Shares (properly endorsed or assigned for transfer, if the Depositary
shall so require), such Depositary Shares shall be redeemed by the Depositary at
the Redemption Price.
If less than all the Depositary Shares evidenced by a Receipt are
called for redemption, the Depositary will deliver to the holder of such Receipt
upon its surrender to the Depositary, together with the redemption payment, a
new Receipt evidencing the Depositary Shares evidenced by such prior Receipt and
not called for redemption.
4. Transfer, Split-Ups and Combinations. The Depositary Shares
evidenced by this Receipt are transferable on the books of the Depositary upon
surrender of this Receipt to the Depositary, properly endorsed or accompanied by
a properly executed instrument of transfer, and upon such transfer the
Depositary shall execute a new Receipt to or upon the order of the person
entitled thereto as provided in the Deposit Agreement. This Receipt may be split
into other Receipts or combined with other Receipts into one Receipt
representing the same aggregate number of Depositary Shares as the Receipt or
Receipts surrendered.
5. Suspension of Delivery, Transfer, etc. The transfer or surrender of
this Receipt may be suspended during any period when the register of
stockholders of the Company is closed or if any such action is deemed necessary
or advisable by the Depositary, any agent of the Depositary or the Company at
any time or from time to time because of any requirement of law or of any
government or governmental body or commission, or under any provision of the
Deposit Agreement.
6. Filing Proofs, Certificates and Other Information. Any holder of a
Depositary Share may be required to file such proof of residence or other
matters or other information, to execute such certificates and to make such
representations and warranties as the Depositary or the Company may reasonably
deem necessary or proper. The Depositary or the Company may withhold
the-delivery or delay the registration of transfer or redemption of any
Depositary Share or the distribution of any dividend or other distribution or
the sale of any rights or of the
<PAGE> 24
proceeds thereof until such proof or other information is filed or such
certificates are executed or such representations and warranties are made.
7. Payment of Taxes or Other Governmental Charges. If any tax or other
governmental charge shall become payable by or on behalf of the Depositary with
respect to this Receipt, such tax (including transfer taxes, if any) or
governmental charge shall be payable by the holder hereof Transfer of Depositary
Shares may be refused until such payment is made, and any dividends or other
distributions may be withheld or all or any part of the Stock or other property
underlying the Depositary Share or Shares evidenced by this Receipt and not
theretofore sold may be sold for the account of the holder hereof (after
attempting by reasonable means to notify such holder prior to such sale) and
such dividends or other distributions or the proceeds of any such sale may be
applied to any payment of such charges or expenses, the holder of this Receipt
remaining liable for any deficiency.
8. Warranty by Company. The Company has warranted that the Stock when
issued will be validly issued, fully paid and nonassessable.
9. Amendment. The form of the Receipts and any provisions of the
Deposit Agreement may at any time and from time to time be amended by agreement
between the Company and the Depositary in any respect which they may deem
necessary or desirable; provided, however, that no such amendment which shall
materially and adversely alter the rights of the existing holders of Depositary
Shares shall be effective unless such amendment shall have been approved by the
holders of at least a majority of the Depositary Shares then outstanding. A
holder of a Receipt at the time any such amendment so becomes effective shall be
deemed, by continuing to hold such Receipt, to consent and agree to such
amendment and to be bound by the Deposit Agreement as amended thereby.
10. Charges of Depositary. The Company will pay all transfer and other
taxes and governmental charges arising solely from the existence of the
depositary arrangements and all charges of the Depositary in connection with the
initial deposit of the Stock and the initial issuance of the Receipts, any
redemption of the Stock at the option of the Company and any withdrawals of
Stock by holders of Depositary Shares. All other transfer and other taxes and
other governmental charges shall be at the expense of holders of Depositary
Shares. All other charges and expenses of the Depositary, any Depositary's Agent
and any Registrar will be paid upon consultation and agreement between the
Depositary and the Company.
11. Title to Receipts. This Receipt (and the Depositary Shares
evidenced hereby) when properly endorsed or accompanied by a properly executed
instrument of transfer, is transferable by delivery with the same effect as in
the case of a negotiable instrument; provided, however, that until transfer of
the Depositary Share or Shares evidenced by a Receipt shall be registered on the
books of the Depositary, the Depositary may, notwithstanding any notice to the
contrary, treat the Record Holder of such Depositary Share or Shares at such
time as the absolute owner thereof for the purpose of determining the person
entitled to distributions of dividends or other distributions or to any notice
provided for in the Deposit Agreement and for all other purposes.
<PAGE> 25
12. Dividends and Distributions. Whenever the Depositary receives any
cash dividend or other cash distribution on the Stock, the Depositary will,
subject to the provisions of the Deposit Agreement, make such distribution to
the holders of Depositary Shares on the relevant record date as nearly as
practicable in proportion to the number of Depositary Shares held by such
holders; provided, however, that in case the Company or the Depositary shall be
required to withhold and shall withhold from any cash dividend or other cash
distribution in respect of the Stock an amount on account of taxes, the amount
made available for distribution or distributed in respect of Depositary Shares
shall be reduced accordingly. Fractions will be rounded down to the nearest
whole cent.
13. Fixing of Record Date. Whenever any cash dividend or other cash
distribution shall become payable or any distribution other than cash shall be
made, or if rights, preferences or privileges shall at any time be offered with
respect to the Stock, or whenever the Depositary shall receive notice of any
meeting at which holders of Stock are entitled to vote or of which holders of
Stock are entitled to notice, the Depositary shall in each instance fix a record
date (which shall be the record date fixed by the Company with respect to the
Stock) for the determination of the holders of Depositary Shares who shall be
entitled to receive such dividend distribution, rights, preferences or
privileges or the net proceeds of the sale thereof, or to give instructions for
the exercise of voting rights at any such meeting or who shall be entitled to
notice of such meeting.
14. Voting Rights. Upon receipt of notice of any meeting or action to
be taken by written consent at which holders of the Stock are entitled to vote
or consent, the Depositary shall, as soon as practicable thereafter, mail to the
record holders of Depositary Shares a notice which shall contain (i) such
information as is contained in such notice of meeting or action and (ii) a
statement informing holders of Depositary Shares that they may instruct the
Depositary as to the exercise of the voting rights or the giving or refusal of
consent pertaining to the amount of Stock underlying their respective Depositary
Shares and a brief statement as to the manner in which such instructions may be
given. Upon the written request of a holder of a Depositary Share on the record
date established in accordance with paragraph 13 hereof, the Depositary shall
endeavor insofar as practicable to vote or cause to be voted or give or withhold
consent the amount of Stock underlying such Depositary Share in accordance with
the instructions set forth in such request. In the absence of specific
instructions from the holder of a Depositary Share, the Depositary will refrain
from voting to the extent of the Stock underlying such Depositary Share.
15. Changes Affecting Deposited Securities. Upon any change in par or
liquidation value, split-up, combination or any other reclassification of the
Stock or upon any recapitalization, reorganization, merger, amalgamation or
consolidation affecting the Company or to which it is a party, the Depositary
may in its discretion, with the approval of the Company, and in such manner as
the Depositary may deem equitable (i) make such adjustments in (a) the fraction
of an interest in one share of Stock underlying one Depositary Share and (b) the
ratio of the Redemption Price per Depositary Share to the redemption price of a
share of Stock, in each case as may be necessary fully to reflect the effect of
such change and (ii) treat any securities which shall be received by the
Depositary in exchange for or upon conversion of or in respect of the Stock as
new deposited securities so received in exchange for or upon conversion of or in
respect of such Stock. In any such case the Depositary may in its discretion,
with the approval of the Company, execute and deliver additional Receipts, or
may call for the surrender of all
<PAGE> 26
outstanding Receipts to be exchanged for new Receipts specifically describing
such new deposited securities. Furthermore, by mutual agreement of the Company
and the Depositary, the Depositary may at any time make adjustments in (i) the
fraction of an interest in one share of Stock underlying one Depositary Share
and (ii) the ratio of the Redemption Price per Depositary Share to the
redemption price or exchange price of a share of the Stock.
16. Liability and Obligations of the Depositary, the Depositary's
Agents or the Company. Neither the Depositary nor any Depositary's Agent nor any
Registrar nor the Company assumes any obligations or shall be subject to any
liability under the Deposit Agreement to any holder of any Depositary Share,
other than for such person's own gross negligence or willful misconduct. Neither
the Depositary nor any Depositary's Agent nor any Registrar nor the Company
shall incur any liability to any holder of any Depositary Share if by reason of
any provision of any present or future law, or regulation thereunder of the
United States of America or of any other governmental authority or, in the case
of the Depositary, any Depositary's Agent or any Registrar, by reason of any
provision, present or future, of the Company's charter (including the Articles)
or by reason of any act of God or war or other circumstance beyond their
control, the Depositary, any Depositary's Agent, any Registrar or the Company
shall be prevented or forbidden from doing or performing any act or thing which
the terms of the Deposit Agreement provide shall be done or performed, nor shall
the Depositary, any Depositary's Agent, any Registrar or the Company incur any
liability to any holder of a Depositary Share by reason of nonperformance or
delay, caused as aforesaid, in performance of any act or thing which the terms
of the Deposit Agreement provide shall or may be done or performed, or by reason
of any exercise of, or failure to exercise, any discretion provided for in the
Deposit Agreement, other than for its or their gross negligence or willful
misconduct. Neither the Depositary nor any Depositary's Agent nor any Registrar
nor the Company shall be under any obligation to appear in, prosecute or defend
any action, suit or other proceeding in respect of the Stock, the Depositary
Shares or the Receipts, which in its opinion may involve it in expense or
liability unless indemnity satisfactory to it against all expense and liability
be furnished. The Deposit Agreement contains various other exculpatory,
indemnification and related provisions, to which reference is hereby made.
Anything herein or in the Deposit Agreement notwithstanding, in no event shall
the Depositary be liable for special, indirect or consequential loss or damage
of any kind whatsoever (including but not limited to -lost profits), even if the
Depositary has been advised of the likelihood of such loss or damage and
regardless of the form of action.
17. Resignation and Removal of Depositary. The Depositary may at any
time (i) resign by written notice of its election to do so delivered to the
Company, such resignation to take effect upon the appointment of a successor
Depositary and such successor's written acceptance of such appointment, or (ii)
be removed by the Company effective upon the appointment of a successor
Depositary and such successor's written acceptance of such appointment.
18. Termination of Deposit Agreement. The Deposit Agreement may be
terminated by the Company or the Depositary only after (i) all outstanding
Depositary Shares shall have been redeemed or (ii) there shall have been made a
final distribution in respect of the Stock in connection with any liquidation,
dissolution or winding up of the Company and such distribution shall have been
distributed to the holders of Depositary Shares. Upon the termination of the
<PAGE> 27
Deposit Agreement, the Company shall be discharged from all obligations
thereunder except for its obligations to the Depositary, any Depositary's Agent
and any Registrar with respect to indemnification, charges and expenses.
19. Governing Law. THIS RECEIPT AND THE DEPOSIT AGREEMENT AND ALL
RIGHTS HEREUNDER AND THEREUNDER AND THE PROVISIONS HEREOF AND THEREOF SHALL BE
GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF
CALIFORNIA.
THE DEPOSITARY IS NOT RESPONSIBLE FOR THE VALIDITY OF ANY DEPOSITED
STOCK. THE DEPOSITARY MAKES NO WARRANTIES OR REPRESENTATIONS AS TO THE VALIDITY,
GENUINENESS OR SUFFICIENCY OF ANY STOCK AT ANY TIME DEPOSITED WITH THE
DEPOSITARY HEREUNDER OR OF THE DEPOSITARY SHARES AS TO THE VALIDITY OR
SUFFICIENCY OF THE DEPOSIT AGREEMENT, AS TO THE VALUE OF THE DEPOSITARY SHARES
OR AS TO ANY RIGHT, TITLE OR INTEREST OF THE RECORD HOLDERS OF THE RECEIPTS TO
THE DEPOSITARY SHARES.
HEALTH CARE PROPERTY INVESTORS, INC. WILL FURNISH WITHOUT CHARGE TO
EACH RECEIPT HOLDER WHO SO REQUESTS A COPY OF THE DEPOSIT AGREEMENT AND THE
ARTICLES. ANY SUCH REQUEST IS TO BE ADDRESSED TO THE SECRETARY OF HEALTH CARE
PROPERTY INVESTORS, INC.
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