exv4w6






EXHIBIT 4.6




[FORM]




DEPOSIT AGREEMENT




     This DEPOSIT AGREEMENT is made and entered into as of                     ,                      by and among National
Retail Properties, Inc., a Maryland corporation (the “Company”),                     , as
Depositary, and all holders from time to time of Receipts (as hereinafter defined) issued
hereunder.



WITNESSETH:




     WHEREAS, it is desired to provide, as hereinafter set forth in this Deposit Agreement, for the
deposit of shares of the Company’s Preferred Stock (as hereinafter defined) with the Depositary for
the purposes set forth in this Deposit Agreement and for the issuance hereunder of the Receipts
evidencing Depositary Shares representing a fractional interest in the Preferred Stock deposited;
and



     WHEREAS, the Receipts are to be substantially in the form of Exhibit A annexed to this
Deposit Agreement, with appropriate insertions, modifications and omissions, as hereinafter
provided in this Deposit Agreement;



     NOW, THEREFORE, in consideration of the promises contained herein, it is agreed by and among
the parties hereto as follows:



ARTICLE I




DEFINITIONS




     The following definitions shall apply to the respective terms (in the singular and plural
forms of such terms) used in this Deposit Agreement and the Receipts:



     SECTION 1.01. “Articles of Incorporation” shall mean the First Amended and Restated Articles
of Incorporation, as amended and supplemented from time to time, of the Company.



     SECTION 1.02. “Articles Supplementary” shall mean the Articles Supplementary Classifying
                     Shares of Preferred Stock as                     % Series                      Preferred Stock filed with the
State Department of Assessments and Taxation of the State of Maryland establishing the Preferred
Stock as a series of Preferred Stock of the Company.



     SECTION 1.03. “Capital Stock” shall mean Common Stock, Preferred Stock and any other class of
equity securities of the Company.



     SECTION 1.04. “Common Stock” shall mean shares of the Company’s common stock, $.01 par value
per share.



 









 





     SECTION 1.05. “Company” shall mean National Retail Properties, Inc., a Maryland corporation,
and its successors.



     SECTION 1.06. “Corporate Office” shall mean the corporate office of the Depositary at which
at any particular time its business in respect of matters governed by this Deposit Agreement shall
be administered, which at the date of this Deposit Agreement is located at
                    .



     SECTION 1.07. “Deposit Agreement” shall mean this agreement, as the same may be amended,
modified or supplemented from time to time.



     SECTION 1.08. “Depositary” shall mean                     , a company or corporation
having its principal office in the United States, and any successor as depositary hereunder.



     SECTION 1.09. ‘‘Depositary Share” shall mean a 1/100th fractional interest of a
share of Preferred Stock deposited with the Depositary hereunder and the same proportionate
interest in any and all other property received by the Depositary in respect of such share of
Preferred Stock and held under this Deposit Agreement, all as evidenced by the Receipts issued
hereunder. Subject to the terms of this Deposit Agreement, each owner of a Depositary Share is
entitled, proportionately, to all the rights, preferences and privileges of the Preferred Stock
represented by such Depositary Share, including the dividend and distribution, voting, redemption,
conversion and liquidation rights as set forth in the Articles Supplementary.



     SECTION 1.10. “Depositary’s Agent” shall mean one or more agents appointed by the Depositary
as provided, and for the purposes specified, in Section 7.05.



     SECTION 1.11. “Exchange Act” shall mean the Securities Exchange Act of 1934, as amended.



     SECTION 1.12. “NASDAQ” shall mean the NASDAQ Stock Market, Inc. or a successor that is a
national securities exchange registered under Section 6 of the Exchange Act.



     SECTION 1.13. “NYSE” shall mean the New York Stock Exchange, Inc. or a successor that is a
national securities exchange registered under Section 6 of the Exchange Act.



     SECTION 1.14. “NYSE Alternext” shall mean the NYSE Alternext US or a successor that is a
national securities exchange registered under Section 6 of the Exchange Act.



     SECTION 1.15. “Ownership Limit” shall have the meaning set forth in Article VI, Section 3 of
the Company’s Articles of Incorporation.



     SECTION 1.16. “Preferred Stock” shall mean shares of the Company’s                     % Series
                     Preferred Stock, $.01 par value per share, heretofore validly issued, fully
paid and non-assessable.



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     SECTION 1.17. “Receipt” shall mean a Depositary Receipt issued hereunder to evidence one or
more Depositary Shares, whether in definitive or temporary form, substantially in the form set
forth as Exhibit A hereto.



     SECTION 1.18. “record date” shall mean the date fixed pursuant to Section 4.04.



     SECTION 1.19. “record holder” or “holder” as applied to a Receipt shall mean the person in
whose name a Receipt is registered on the books maintained by the Depositary for such purpose.



     SECTION 1.20. “Registrar” shall mean                     , or any bank or trust
company appointed to register ownership and transfers of Receipts or the deposited Preferred Stock,
as the case may be, as herein provided.



     SECTION 1.21. “Securities Act” shall mean the Securities Act of 1933, as amended.



     SECTION 1.22. “Transfer Agent” shall mean                     , or any bank or trust
company appointed to transfer the Receipts or the deposited Preferred Stock, as the case may be, as
herein provided.



ARTICLE II




FORM OF RECEIPTS, DEPOSIT OF PREFERRED STOCK, EXECUTION

AND DELIVERY, TRANSFER, SURRENDER AND REDEMPTION OF RECEIPTS




     SECTION 2.01. Form and Transferability of Receipts. Definitive Receipts shall be
engraved or printed or lithographed with steel-engraved borders and underlying tint and shall be
substantially in the form set forth in Exhibit A annexed to this Deposit Agreement, with
appropriate insertions, modifications and omissions, as hereinafter provided. Pending the
preparation of definitive Receipts, the Depositary, upon the written order of the Company,
delivered in compliance with Section 2.02, shall execute and deliver temporary Receipts which may
be printed, lithographed, typewritten, mimeographed or otherwise substantially of the tenor of the
definitive Receipts in lieu of which they are issued and with such appropriate insertions,
omissions, substitutions and other variations as the persons executing such Receipts may determine,
as evidenced by their execution of such Receipts. If temporary Receipts are issued, the Company
and the Depositary will cause definitive Receipts to be prepared without unreasonable delay. After
the preparation of definitive Receipts, the temporary Receipts shall be exchangeable for definitive
Receipts upon surrender of the temporary Receipts at the Corporate Office or such other offices, if
any, as the Depositary may designate, without charge to the holder. Upon surrender for
cancellation of any one or more temporary Receipts, the Depositary shall execute and deliver in
exchange therefor definitive Receipts representing the same number of Depositary Shares as represented by the surrendered
temporary Receipt or Receipts. Such exchange shall be made at the Company’s expense and without
any charge therefor. Until so exchanged, the temporary Receipts shall in all respects be entitled
to the same benefits under this Deposit Agreement, and with respect to the Preferred Stock
deposited, as definitive Receipts.



     Receipts shall be executed by the Depositary by the manual or facsimile signature of a duly
authorized signatory of the Depositary, provided that if a Registrar (other than the



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Depositary) shall have been appointed then such Receipts shall also be countersigned by manual signature of a
duly authorized signatory of the Registrar. No Receipt shall be entitled to any benefits under
this Deposit Agreement or be valid or obligatory for any purpose unless it shall have been executed
as provided in the preceding sentence. The Depositary shall record on its books each Receipt
executed as provided above and delivered as hereinafter provided.




     Except as the Depositary may otherwise determine, Receipts shall be in denominations of any
number of whole Depositary Shares. All Receipts shall be dated the date of their issuance.



     Receipts may be endorsed with or have incorporated in the text thereof such legends or
recitals or changes not inconsistent with the provisions of this Deposit Agreement as may be
required by the Company or required to comply with any applicable law or regulation or with the
rules and regulations of any securities exchange or interdealer quotation system upon which the
Preferred Stock, the Depositary Shares or the Receipts may be listed or quoted or to conform with
any usage with respect thereto, or to indicate any special limitations or restrictions to which any
particular Receipts are subject, in each case, as directed by the Company.



     Title to any Receipt (and to the Depositary Shares evidenced by such Receipt) that is properly
endorsed or accompanied by a properly executed instrument of transfer or endorsement shall be
transferable by delivery with the same effect as in the case of a negotiable instrument; provided,
however, that until a Receipt shall be transferred on the books of the Depositary as provided in
Section 2.04, the Depositary may, notwithstanding any notice to the contrary, treat the record
holder thereof at such time as the absolute owner thereof for the purpose of determining the person
entitled to dividends or other distributions, the exercise of any redemption or voting rights or to
any notice provided for in this Deposit Agreement and for all other purposes.



     SECTION 2.02. Deposit of Preferred Stock; Execution and Delivery of Receipts in Respect
Thereof. Concurrently with the execution of this Deposit Agreement, the Company is delivering
to the Depositary a certificate or certificates, registered in the name of the Depository Trust
Company, or its designee, and evidencing up to
                     shares of Preferred Stock, properly
endorsed or accompanied, if required by the Depositary, by a duly executed instrument of transfer
or endorsement, in form satisfactory to the Depositary, together with (i) all such certifications
as may be required by the Depositary in accordance with the provisions of this Deposit Agreement
and (ii) a written letter of instruction of the Company directing the Depositary to execute and
deliver to, or upon the written order of, the person or persons stated in such order a Receipt
or Receipts for the Depositary Shares representing such deposited Preferred Stock. The Depositary
acknowledges receipt of the deposited Preferred Stock and related documentation and agrees to hold
such deposited Preferred Stock in an account to be established by the Depositary at the Corporate
Office or at such other office as the Depositary shall determine. The Company hereby appoints the
Depositary as the Registrar and Transfer Agent for the Preferred Stock deposited hereunder and the
Depositary hereby accepts such appointment and, as such, will reflect changes in the number of
shares (including any fractional shares) of deposited Preferred Stock held by it by notation,
book-entry or other appropriate method.



     If required by the Depositary, Preferred Stock presented for deposit by the Company at any
time, whether or not the register of stockholders of the Company is closed, shall also be



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accompanied by an agreement or assignment, or other instrument satisfactory to the Depositary, that
will provide for the prompt transfer to the Depositary or its nominee of any distribution or right
to subscribe for additional Preferred Stock or to receive other property that any person in whose
name the Preferred Stock is or has been registered may thereafter receive upon or in respect of
such deposited Preferred Stock, or in lieu thereof such agreement of indemnity or other agreement
as shall be satisfactory to the Depositary.




     Upon receipt by the Depositary of a certificate or certificates for Preferred Stock deposited
hereunder, together with the other documents specified above, and upon registering such Preferred
Stock in the name of the Depositary, the Depositary, subject to the terms and conditions of this
Deposit Agreement, shall execute and deliver to, or upon the order of, the person or persons named
in the written order delivered to the Depositary referred to in the first paragraph of this Section
2.02 a Receipt or Receipts for the number of whole Depositary Shares representing the Preferred
Stock so deposited and registered in such name or names as may be requested by such person or
persons. The Depositary shall execute and deliver such Receipt or Receipts at the Corporate
Office, except that, at the request, risk and expense of any person requesting such delivery, such
delivery may be made at such other place as may be designated by such person.



     Other than in the case of splits, combinations or other reclassifications affecting the
Preferred Stock, or in the case of distributions of Preferred Stock, if any, there shall be
deposited hereunder not more than the number of shares constituting the Preferred Stock as set
forth in the Articles Supplementary, as such may be amended.



     The Company shall deliver to the Depositary from time to time such quantities of Receipts as
the Depositary may request to enable the Depositary to perform its obligations under this Deposit
Agreement.



     SECTION 2.03. Optional Redemption of Preferred Stock for Cash. Shares of the
Preferred Stock are not redeemable prior to                     ,                     . However, in order to ensure
that the Company remains qualified as a real estate investment trust (“REIT”) for United States
federal income tax purposes in accordance with the Articles of Incorporation, the Preferred Stock,
together with all other Capital Stock, shall be subject to Article VI of the Articles of Incorporation pursuant to which Capital Stock owned by a
stockholder in excess of the Ownership Limit shall automatically be transferred to a Trust for the
exclusive benefit of a Beneficiary, as provided in Article VI, Section 4 of the Articles of
Incorporation. On or after                     ,                     , if the Company shall elect to redeem shares of
deposited Preferred Stock for cash in accordance with the provisions of the Articles Supplementary,
it shall (unless otherwise agreed in writing with the Depositary) give the Depositary not less than
30 nor more than 60 days’ prior written notice of the date of such proposed redemption and of the
number of such shares of Preferred Stock held by the Depositary to be redeemed and the applicable
redemption price, as set forth in the Articles Supplementary, including the amount, if any, of
accrued and unpaid dividends thereon to and including the date fixed for redemption. The
Depositary shall mail, first-class postage prepaid, notice of the redemption of Preferred Stock and
the proposed simultaneous redemption of the Depositary Shares representing the Preferred Stock to
be redeemed, not less than 30 nor more than 60 days prior to the date fixed for redemption of such
Preferred Stock and Depositary Shares (the “redemption date”), to the record



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holders of the Receipts evidencing the Depositary Shares to be so redeemed, at the addresses of such holders as
the same appear on the records of the Depositary. No failure to give such notice or any defect
thereto or in the mailing thereof shall affect the sufficiency of notice or validity of the
proceedings for redemption except as to a holder to whom notice was defective or not given. A
redemption notice which has been mailed in the manner provided herein shall be conclusively
presumed to have been duly given on the date mailed whether or not the holder received the
redemption notice. The Company shall provide the Depositary with such notice, and each such notice
shall state: the redemption date; the redemption price and accrued and unpaid dividends payable on
the redemption date; the number of shares of deposited Preferred Stock and Depositary Shares to be
redeemed; if fewer than all the Depositary Shares held by any holder are to be redeemed, the number
of such Depositary Shares held by such holder to be so redeemed; the place or places where Receipts
evidencing the Depositary Shares to be redeemed are to be surrendered for payment of the redemption
price and accrued and unpaid dividends payable on the redemption date; and that from and after the
redemption date dividends in respect of the Preferred Stock represented by the Depositary Shares to
be redeemed will cease to accrue. If fewer than all of the outstanding Depositary Shares are to be
redeemed, the Depositary Shares to be redeemed shall be redeemed pro rata (as nearly as may be
practicable without creating fractional Depositary Shares) or by any other equitable method
determined by the Company that will not result in a violation of the Ownership Limit.




     During any period of time that both (i) Preferred Stock is not listed on the NYSE, NASDAQ or
NYSE Alternext (or if the Preferred Stock is at any time held in the form of Depositary Shares, the
Depositary Shares representing Preferred Stock are not listed on the NYSE, NASDAQ or NYSE
Alternext), and (ii) the Company is not subject to the reporting requirements of the Exchange Act,
but any shares of Series                      Preferred Stock are outstanding, the Company will have the option to
redeem the Series                      Preferred Stock, in whole but not in part, within 90 days of the date upon
which the shares of the Series                      Preferred Stock cease to be listed and we cease to be subject to
such reporting requirements, for a redemption price of $                     per share, plus all dividends
accrued and unpaid (whether or not declared), if any, to the date such shares are redeemed as
provided in Section                      of the Articles Supplementary, upon giving notice as provided in
Section                      of the Articles Supplementary.



     In the event that notice of redemption has been made as described in this Section 2.3 and the
Company shall then have paid or caused to be paid in full to the Depositary the redemption price
(determined pursuant to the Articles Supplementary) of the Preferred Stock deposited with the
Depositary to be redeemed (including any accrued and unpaid dividends to and including the
redemption date), the Depositary shall redeem the number of Depositary Shares representing such
Preferred Stock so called for redemption by the Company and from and after the redemption date
(unless the Company shall have failed to pay for the shares of Preferred Stock to be redeemed by it
as set forth in the Company’s notice provided for in the preceding paragraph), all dividends in
respect of the shares of Preferred Stock called for redemption shall cease to accrue, the
Depositary Shares called for redemption shall be deemed no longer to be outstanding and all rights
of the holders of Receipts evidencing such Depositary Shares (except the right to receive the
redemption price plus all accrued and unpaid dividends to and including the redemption date) shall,
to the extent of such Depositary Shares, cease and terminate. Upon surrender in accordance with
said notice of the Receipts evidencing such Depositary Shares (properly endorsed or assigned for
transfer, if the Depositary or applicable law shall so require),



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such Depositary Shares shall be redeemed at a redemption price of $                     per Depositary Share plus all accrued and unpaid
dividends to and including the redemption date. The foregoing shall be further subject to the
terms and conditions of the Articles Supplementary. In the event of any conflict between the
provisions of this Deposit Agreement and the provisions of the Articles Supplementary, the
provisions of the Articles Supplementary will govern and the Company will instruct the Depositary
accordingly.




     Unless full cumulative dividends on all Preferred Stock shall have been or contemporaneously
are declared and paid in cash or declared and a sum sufficient for the payment thereof in cash set
apart for payment for all past dividend periods and the then current dividend period, no Preferred
Stock shall be redeemed unless all outstanding shares of Preferred Stock are simultaneously
redeemed and the Company shall not purchase or otherwise acquire directly or indirectly any shares
of Preferred Stock or any class or series of equity securities of the Company ranking, as to
dividends or upon liquidation, on a parity with or junior to the Preferred Stock (except by
exchange for shares of equity securities of the Company ranking, as to dividends and upon
liquidation, junior to the Preferred Stock); provided, however, that the foregoing
shall not prevent the purchase of Preferred Stock by the Company in accordance with the terms of
Section                      or                      of the Articles Supplementary or Article VI of the Articles of Incorporation
or otherwise in order to ensure that the Company remains qualified as a REIT for United States
federal income tax purposes or the purchase or acquisition of Preferred Stock pursuant to a
purchase or exchange offer made on the same terms to holders of all outstanding shares of Preferred
Stock.



     If fewer than all of the Depositary Shares evidenced by a Receipt are called for redemption,
the Depositary will deliver to the holder of such Receipt upon its surrender to the Depositary,
together with payment of the redemption price for and all other
amounts payable in respect of the Depositary Shares called for redemption, a new Receipt
evidencing such holder’s Depositary Shares evidenced by such prior Receipt that are not called for
redemption.



     The Company acknowledges that the bank accounts maintained by the Depositary in connection
with the performance of the services described herein will be in the name of the Depositary and
that the Depositary may receive investment earnings in connection with the investment at the
Depositary’s risk and for its benefit of funds held in those accounts from time to time.



     SECTION 2.04. Registration of Transfers of Receipts. The Company hereby appoints the
Depositary as the Registrar and Transfer Agent for the Receipts and the Depositary hereby accepts
such appointment and, as such, shall register on its books from time to time transfers of Receipts
upon any surrender thereof by the holder in person or by a duly authorized attorney, agent or
representative, properly endorsed or accompanied by a properly executed instrument of transfer or
endorsement and including a guarantee of the signature thereon by a participant in a signature
guarantee medallion program approved by the Securities Transfer Association (a “Signature
Guarantee”), together with evidence of the payment of any transfer taxes as may be required by
applicable law. Upon such surrender, the Depositary shall execute a new Receipt or Receipts and
deliver the same to or upon the order of the person entitled thereto evidencing the same aggregate
number of Depositary Shares evidenced by the Receipt or Receipts surrendered.



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     SECTION 2.05. Combinations and Split-ups of Receipts. Upon surrender of a Receipt or
Receipts at the Corporate Office or such other office as the Depositary may designate for the
purpose of effecting a split-up or combination of Receipts, subject to the terms and conditions of
this Deposit Agreement, the Depositary shall execute and deliver a new Receipt or Receipts in the
authorized denominations requested evidencing the same aggregate number of Depositary Shares
evidenced by the Receipt or Receipts surrendered.



     SECTION 2.06. Surrender of Receipts and Withdrawal of Preferred Stock. Any holder of
a Receipt or Receipts may withdraw any or all of the deposited Preferred Stock represented by the
Depositary Shares evidenced by such Receipt or Receipts and all money and other property, if any,
represented by such Depositary Shares by surrendering such Receipt or Receipts at the Corporate
Office or at such other office as the Depositary may designate for such withdrawals. After such
surrender, without unreasonable delay, the Depositary shall deliver to such holder, or to the
person or persons designated by such holder as hereinafter provided, the number of whole or
fractional shares of such Preferred Stock and all such money and other property, if any,
represented by the Depositary Shares evidenced by the Receipt or Receipts so surrendered for
withdrawal, but holders of such whole or fractional shares of Preferred Stock will not thereafter
be entitled to deposit such Preferred Stock hereunder or to receive Depositary Shares therefor. If
the Receipt or Receipts delivered by the holder to the Depositary in connection with such
withdrawal shall evidence a number of Depositary Shares in excess of the number of Depositary
Shares representing the number of whole or fractional shares of deposited
Preferred Stock to be withdrawn, the Depositary shall at the same time, in addition to such
number of whole or fractional shares of Preferred Stock and such money and other property, if any,
to be withdrawn, deliver to such holder, or (subject to Section 2.04) upon his order, a new Receipt
or Receipts evidencing such excess number of Depositary Shares. Delivery of such Preferred Stock
and such money and other property being withdrawn may be made by the delivery of such certificates,
documents of title and other instruments as the Depositary may deem appropriate, which, if required
by the Depositary, shall be properly endorsed or accompanied by a properly executed instrument of
transfer or endorsement.



     If the deposited Preferred Stock and the money and other property being withdrawn are to be
delivered to a person or persons other than the record holder of the Receipt or Receipts being
surrendered for withdrawal of Preferred Stock, such holder shall execute and deliver to the
Depositary a written order so directing the Depositary and the Depositary may require that the
Receipt or Receipts surrendered by such holder for withdrawal of such shares of Preferred Stock be
properly endorsed in blank or accompanied by a properly executed instrument of transfer or
endorsement in blank with a Signature Guarantee.



     The Depositary shall deliver the deposited Preferred Stock and the money and other property,
if any, represented by the Depositary Shares evidenced by Receipts surrendered for withdrawal at
the Corporate Office, except that, at the request, risk and expense of the holder surrendering such
Receipt or Receipts and for the account of the holder thereof, such delivery may be made at such
other place as may be designated by such holder.



     SECTION 2.07. Limitations on Execution and Delivery, Transfer, Split-up, Combination.
As a condition precedent to the execution and delivery, transfer, split-up, combination, surrender
or exchange of any Receipt, the Depositary, any of the Depositary’s



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Agents or the Company may require any or all of the following: (i) payment to it of a sum sufficient for the payment (or, in
the event that the Depositary or the Company shall have made such payment, the reimbursement to it)
of any tax or other governmental charge with respect thereto (including any such tax or charge with
respect to the Preferred Stock being deposited or withdrawn); (ii) the production of proof
satisfactory to it as to the identity and genuineness of any signature (or the authority of any
signature), including a Signature Guarantee; and (iii) compliance with such regulations, if any, as
the Depositary or the Company may establish consistent with the provisions of this Deposit
Agreement as may be required by any securities exchange upon which the deposited Preferred Stock,
the Depositary Shares or the Receipts may be included for quotation or listed.




     The deposit of Preferred Stock may be refused, the delivery of Receipts against Preferred
Stock may be suspended, the transfer of Receipts may be refused, and the transfer, split-up,
combination, surrender, exchange or redemption of outstanding Receipts may be suspended (i) during
any period when the register of stockholders of the Company is closed or (ii) if any such action is
deemed reasonably necessary or advisable by the Depositary, any of time Depositary’s Agents or the
Company at any time or from time to time because of any requirement of applicable law or of any government or governmental
body or commission, or under any provision of this Deposit Agreement.



     SECTION 2.08. Lost Receipts, etc. In case any Receipt shall be mutilated or
destroyed or lost or stolen, the Depositary in its discretion may execute and deliver a Receipt of
like form and tenor in exchange and substitution for such mutilated Receipt or in lieu of and in
substitution for such destroyed, lost or stolen Receipt, provided that the holder thereof provides
the Depositary with (i) evidence reasonably satisfactory to the Depositary of such destruction,
loss or theft of such Receipt, of the authenticity thereof and of his ownership thereof and (ii)
reasonable indemnification and the provision of an open penalty surety bond, in each case,
satisfactory to the Depositary and the Company and holding the Depositary and the Company harmless.



     SECTION 2.09. Cancellation and Destruction of Surrendered Receipts. All Receipts
surrendered to the Depositary or any Depositary’s Agent shall be cancelled by the Depositary.
Except as prohibited by applicable law or regulation, the Depositary is authorized to destroy such
Receipts so cancelled.



ARTICLE III




CERTAIN OBLIGATIONS OF HOLDERS OF RECEIPTS AND THE COMPANY




     SECTION 3.01. Filing Proofs, Certificates and Other Information. Any person
presenting Preferred Stock for deposit or any holder of a Receipt may be required from time to time
to file such proof of residence or other information and to execute such certificates as the
Depositary or the Company may reasonably deem necessary or proper. The Depositary or the Company
may withhold or delay the delivery of any Receipt, the transfer, redemption or exchange of any
Receipt, the withdrawal of the deposited Preferred Stock represented by the Depositary Shares
evidenced by any Receipt, the distribution of any distribution or the sale of any rights or of the
proceeds thereof, until such proof or other information is filed or such certificates are executed.



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     SECTION 3.02. Payment of Fees and Expenses. Holders of Receipts shall be obligated
to make payments to the Depositary of certain fees and expenses, as provided in Section 5.09, or
provide evidence reasonably satisfactory to the Depositary that such fees and expenses have been
paid. Until such payment is made, transfer of any Receipt or any withdrawal of the Preferred Stock
or money or other property, if any, represented by the Depositary Shares evidenced by such Receipt
may be refused, any distribution may be withheld, and any part or all of the Preferred Stock or
other property represented by the Depositary Shares evidenced by such Receipt may be sold for the
account of the holder thereof (after attempting by reasonable means to notify such holder a
reasonable number of days prior to such sale). Any distribution so withheld and the proceeds of
any such sale may be applied to any payment of such fees or expenses, the holder of such Receipt
remaining liable for any deficiency.



     SECTION 3.03. Representations and Warranties as to Preferred Stock. In the case of
the initial deposit of the Preferred Stock hereunder, the Company and, in the case
of subsequent deposits thereof, each person so depositing Preferred Stock under this Deposit
Agreement, shall be deemed thereby to represent and warrant that such Preferred Stock and each
certificate therefor are valid and that the person making such deposit is duly authorized to do so.
The Company hereby further represents and warrants that such Preferred Stock, when issued, will be
validly issued, fully paid and non-assessable. Such representations and warranties shall survive
the deposit of the Preferred Stock and the issuance of Receipts.



     SECTION 3.04. Representation and Warranty as to Receipts and Depositary Shares. The
Company hereby represents and warrants that the Receipts, when issued, will evidence legal and
valid interests in the Depositary Shares and each Depositary Share will represent a legal and valid
fractional interest in a share of deposited Preferred Stock represented by such Depositary Share.
Such representation and warranty shall survive the deposit of the Preferred Stock and the issuance
of Receipts evidencing the Depositary Shares.



ARTICLE IV




THE PREFERRED STOCK; NOTICES




     SECTION 4.01. Dividends and Other Cash Distributions. Whenever the Depositary shall
receive any dividend or other cash distributions on the deposited Preferred Stock, including any
cash received upon redemption of any shares of Preferred Stock pursuant to Section 2.03, the
Depositary shall, subject to Section 3.02, distribute to record holders of Receipts on the record
date fixed pursuant to Section 4.04 such amounts of such sum as are, as nearly as practicable, in
proportion to the respective numbers of Depositary Shares evidenced by the Receipts held by such
holders; provided, however, that, in case the Company or the Depositary shall be required by law to
withhold and shall withhold from any cash distribution in respect of the Preferred Stock an amount
on account of taxes or as otherwise required by law, regulation or court process, the amount made
available for distribution or distributed in respect of Depositary Shares shall be reduced
accordingly. The Depositary shall distribute or make available for distribution, as the case may
be, only such amount, however, as can be distributed without attributing to any holder of Receipts
a fraction of one cent, and any balance not so distributable shall be held by the Depositary
(without liability for interest thereon) and shall be added to and be treated as part of



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the next sum received by the Depositary for distribution to record holders of Receipts then outstanding.




     SECTION 4.02. Distributions Other Than Cash. Whenever the Depositary shall receive
any distribution other than cash on the deposited Preferred Stock, the Depositary shall, subject to
Section 3.02, distribute to record holders of Receipts on the record date fixed pursuant to Section
4.04 such amounts of the securities or property received by it as are, as nearly as practicable, in
proportion to the respective numbers of Depositary Shares evidenced by the Receipts held by such
holders, in any manner that the Depositary and the Company may deem equitable and practicable for
accomplishing such distribution. If in the opinion of the Depositary after consultation with the
Company, such distribution cannot be made proportionately among such record holders, or if for any
other reason (including any requirement that the Company or the Depositary withhold an amount on account of
taxes), the Depositary deems, after consultation with the Company, such distribution not to be
feasible, the Depositary may, with the approval of the Company, adopt such method as it deems
equitable and practicable for the purpose of effecting such distribution, including the sale (at
public or private sale) of the securities or property thus received, or any part thereof at such
place or places and upon such terms as it may deem proper. The net proceeds of any such sale
shall, subject to Section 3.02, be distributed or made available for distribution, as the case may
be, by the Depositary to record holders of Receipts as provided by Section 4.01 in the case of a
distribution received in cash. The Company shall not make any distribution of such securities or
property to the holders of Receipts unless the Company shall have provided to the Depositary an
opinion of counsel stating that such securities or property have been registered under the
Securities Act or do not need to be registered in order to be freely transferable.



     SECTION 4.03. Subscription Rights, Preferences or Privileges. If the Company shall
at any time offer or cause to be offered to the persons in whose names deposited Preferred Stock is
registered 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, the offering
of such rights, preferences or privileges shall in each such instance be communicated to the
Depositary and thereafter made available by the Depositary to the record holders of Receipts in
such manner as the Company shall instruct (including by the issue to such record holders of
warrants representing such rights, preferences or privileges); provided, however, that (a) if at
the time of issue or offer of any such rights, preferences or privileges the Company determines
upon advice of its legal counsel that it is not lawful or feasible to make such rights, preferences
or privileges available to the holders of Receipts (by the issue of warrants or otherwise) or (b)
if and to the extent instructed by holders of Receipts who do not desire to exercise such rights,
preferences or privileges, the Depositary shall then, if so instructed by the Company, and if
applicable laws or the terms of such rights, preferences or privileges so permit, sell such rights,
preferences or privileges of such holders 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
3.01 and Section 3.02, be distributed by the Depositary to the record holders of Receipts entitled
thereto as provided by Section 4.01 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 to the Depositary an opinion of counsel stating that such rights, preferences or
privileges have been registered under the Securities Act or do not need to be registered in order
to be freely transferable.



11









 





     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 agrees that it will promptly
file a registration statement pursuant to the Securities Act with respect to such rights,
preferences or privileges and securities and use its reasonable 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 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 the Securities Act and the Company
shall have provided to the Depositary an opinion of counsel to such effect.



     If any other action under the law 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 agrees to 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 4.04. Notice of Distributions; Fixing of Record Date for Holders of Receipts.
Whenever any dividend or other cash distributions shall become payable, any distribution other
than cash shall be made, or any rights, preferences or privileges shall at any time be offered,
with respect to the deposited Preferred Stock, or whenever the Depositary shall receive notice of
(i) any meeting at which holders of such Preferred Stock are entitled to vote or of which holders
of such Preferred Stock are entitled to notice or (ii) any election on the part of the Company to
redeem any shares of such Preferred Stock, the Depositary shall in each such instance fix a record
date (which shall be the same date as the record date, if any, fixed by the Company with respect to
the Preferred Stock) for the determination of the holders of Receipts (a) who shall be entitled to
receive such dividend, distribution, rights, preferences or privileges or the net proceeds of the
sale thereof, (b) who shall be entitled to give instructions for the exercise of voting rights at
any such meeting or to receive notice of such meeting or (c) whose Depositary Shares are to be so
redeemed.



     SECTION 4.05. Voting Rights. Upon receipt of notice of any meeting at which the
holders of deposited Preferred Stock are entitled to vote, the Depositary shall, as soon as
practicable thereafter, mail to the record holders of Receipts a notice, which shall be provided by
the Company and which shall contain (i) such information as is contained in such notice of meeting,
(ii) a statement that the holders of Receipts at the close of business on a specified record date
fixed pursuant to Section 4.04 will be entitled, subject to any applicable provision of law, to
instruct the Depositary as to the exercise of the voting rights pertaining to the amount of
Preferred Stock represented by their respective Depositary Shares and (iii) a brief statement as to
the manner in which such instructions may be given. Upon the written request of a holder of a
Receipt on such record date, the Depositary shall vote or cause to be voted the amount of Preferred
Stock represented by the Depositary Shares evidenced by such Receipt in accordance with the
instructions set forth in such request. To the extent any such instructions request the voting of
a fractional interest of a share of deposited Preferred Stock, the Depositary shall



12









 




aggregate such interest with all other fractional interests resulting from requests with the same voting
instructions and shall vote the number of whole votes resulting from such aggregation in accordance
with the instructions received in such requests. Each share of Preferred Stock is entitled to one
vote and, accordingly, each Depositary Share is entitled to 1/100th of a vote. The Company hereby agrees to take all reasonable action that may be
deemed necessary by the Depositary in order to enable the Depositary to vote such Preferred Stock
or cause such Preferred Stock to be voted. In the absence of specific instructions from the holder
of a Receipt, the Depositary will abstain from voting to the extent of the Preferred Stock
represented by the Depositary Shares evidenced by such Receipt. The Depositary shall not be
required to exercise discretion in voting any Preferred Stock represented by the Depositary Shares
evidenced by such Receipt.




     SECTION 4.06. Changes Affecting Preferred Stock and Reclassifications, Recapitalizations,
etc. Upon any change in par or stated value, split-up, combination or any other
reclassification of Preferred Stock, or upon any recapitalization, reorganization, merger,
amalgamation or consolidation affecting the Company or to which it is a party or sale of all or
substantially all of the Company’s assets, the Depositary shall, upon the instructions of the
Company, (i) make such adjustments in (a) the fraction of an interest represented by one Depositary
Share in one share of Preferred Stock and (b) the ratio of the redemption price per Depositary
Share to the redemption price of a share of Preferred Stock, in each case as may be required by or
as is consistent with the provisions of the Articles Supplementary to fully reflect the effects of
such change in liquidation preference, split-up, combination or other reclassification of stock, or
of such recapitalization, reorganization, merger, amalgamation, consolidation or sale and (ii)
treat any shares of stock or other securities or property (including cash) that shall be received
by the Depositary in exchange for or upon conversion of or in respect of the Preferred Stock as new
deposited property under this Deposit Agreement, and Receipts then outstanding shall thenceforth
represent the proportionate interests of holders thereof in the new deposited property so received
in exchange for or upon conversion of or in respect of such Preferred 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 property. 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 or stated value, split-up, combination or other reclassification of the
Preferred Stock or any such recapitalization, reorganization, merger, amalgamation or consolidation
or sale of substantially all the assets of the Company to surrender such Receipts to the Depositary
with instructions to convert, exchange or surrender the Preferred 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 deposited Preferred Stock evidenced by such Receipts might have
been converted or for which such Preferred Stock might have been exchanged or surrendered
immediately prior to the effective date of such transaction, subject to any subsequent change in
par or stated value, split-up, combination or other reclassification or any subsequent
recapitalization, reorganization, merger, amalgamation or consolidation or sale of substantially
all the assets. The Company shall cause effective provision to be made in the charter of the
resulting or surviving corporation (if other than the Company) for protection of such rights as may
be applicable upon exchange of the deposited Preferred Stock for securities or property or cash of
the surviving corporation in connection with the transactions set forth above. The Company shall
cause any such surviving



13









 




corporation (if other than the Company) expressly to assume the
obligations of the Company hereunder.


     SECTION 4.07. Inspection of Reports. The Depositary shall make available for
inspection by holders of Receipts at the Corporate Office and at such other places as it may from
time to time deem advisable during normal business hours any reports and communications received
from the Company that are both received by the Depositary as the holder of deposited Preferred
Stock and made generally available to the holders of the Preferred Stock. In addition, the
Depositary shall transmit certain notices and reports to the holders of Receipts as provided in
Section 5.05.


     SECTION 4.08. Lists of Receipt Holders. Promptly upon request from time to time by
the Company, the Depositary shall furnish to the Company a list, as of a recent date specified by
the Company, of the names, addresses and holdings of Depositary Shares of all persons in whose
names Receipts are registered on the books of the Depositary.


     SECTION 4.09. Tax and Regulatory Compliance. The Depositary shall be responsible for
(i) preparing and mailing of IRS Forms 1099, 1042 and 1042-S for all open and closed accounts, (ii)
all applicable withholding related to payments made with respect to the Receipts, including,
without limitation, withholding required pursuant to Sections 1441, 1442, 1445 and 3406 of the
Internal Revenue Code of 1986, as amended, (iii) mailing Form W-99, or W8-BEN, as appropriate, to
new holders of Receipts without a certified taxpayer identification number or to non-US investors,
(iv) processing certified Forms W-99 and W8-BEN, (v) preparing and filing of state information
returns and (vi) providing escheatment services.


     SECTION 4.10. Withholding. Notwithstanding any other provision of this Deposit
Agreement to the contrary, in the event that the Depositary determines that any distribution in
property is subject to any tax which the Depositary is obligated by applicable law to withhold, the
Depositary may dispose of all or a portion of such property in such amounts and in such manner as
the Depositary deems necessary and practicable to pay such taxes, by public or private sale, and
the Depositary shall distribute the net proceeds of any such sale or the balance of any such
property after deduction of such taxes to the holders of Receipts entitled thereto in proportion to
the number of Depositary Shares held by them, respectively; provided, however, that in the event
the Depositary determines that such distribution of property is subject to withholding tax only
with respect to some but not all holders of Receipts, the Depositary will use its best efforts (i)
to sell only that portion of such property distributable to such holders that is required to
generate sufficient proceeds to pay such withholding tax and (ii) to effect any such sale in such a
manner so as to avoid affecting the rights of any other holders of Receipts to receive such
distribution in property.


ARTICLE V


THE DEPOSITARY AND THE COMPANY


     SECTION 5.01. Maintenance of Offices, Agencies and Transfer Books by the Depositary and
the Registrar. The Depositary shall maintain at the Corporate Office facilities for the
execution and delivery, transfer, surrender and exchange, split-up, combination and


14








 




redemption of Receipts and deposit and withdrawal of Preferred Stock and at
the offices of the Depositary’s Agents, if any, facilities for the delivery, transfer, surrender
and exchange, split-up, combination and redemption of Receipts and deposit and withdrawal of
Preferred Stock, all in accordance with the provisions of this Deposit Agreement.




     The Depositary shall keep books at the Corporate Office for the registration and transfer of
Receipts, which books at all reasonable times shall be open for inspection by the record holders of
Receipts as provided by applicable law. 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 maintain such books in customary electronic form.



     If the Receipts or the Depositary Shares evidenced thereby or the Preferred Stock represented
by such Depositary Shares shall be listed on the NYSE, the NASDAQ or the NYSE Alternext or any
other stock exchange, or quoted on any interdealer quotation system, the Depositary may, with the
approval of the Company, appoint a Registrar (acceptable to the Company) for registration of such
Receipts or Depositary Shares in accordance with the requirements of such stock exchange or
quotation system. 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
request or with the approval of the Company. If the Receipts, such Depositary Shares or such
Preferred Stock are listed on one or more other stock exchanges or quotation systems, the
Depositary will, at the request and expense of the Company, arrange such facilities for the
delivery, transfer, surrender, redemption and exchange of such Receipts, such Depositary Shares or
such Preferred Stock as maybe required by applicable law or applicable stock exchange or quotation
system regulations.



     SECTION 5.02. Prevention or Delay in Performance by the Depositary, the Depositary’s
Agents, the Registrar or the Company. None of the Depositary, any Depositary’s Agent, any
Registrar or 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 Articles of Incorporation or
the Articles Supplementary or, in the case of the Company, the Depositary, the Depositary’s Agent
or the Registrar, 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, the Registrar or the Company shall be
prevented or forbidden from doing or performing 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 Receipt 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 by reason of any exercise
of, or failure to exercise, any discretion provided for in this Deposit Agreement.



     SECTION 5.03. Obligations of the Depositary, the Depositary’s Agents, the Registrar and
the Company. Each of the Depositary, any Depositary’s Agent and any Registrar shall at all
times act in good faith and shall use its best efforts within reasonable time limits to insure the
accuracy of all services performed pursuant to this Agreement. None of the Depositary, any
Depositary’s Agent, any Registrar or the Company assumes any obligation or shall be subject to



15









 




any liability under this Deposit Agreement or any Receipt to holders of Receipts other than from acts
or omissions arising out of conduct constituting bad faith, gross negligence or willful misconduct
in the performance of such duties as are specifically set forth in this Deposit Agreement.




     None of the Depositary, any Depositary’s Agent, any Registrar or the Company shall be under
any obligation to appear in, prosecute or defend any action, suit or other proceeding with respect
to the deposited Preferred Stock, Depositary Shares or Receipts that in its reasonable opinion may
involve it in expense or liability, unless indemnity reasonably satisfactory to it against all
expense and liability be furnished as often as may be required.



     None of the Depositary, any Depositary’s Agent, any Registrar or 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 provided by any person presenting Preferred Stock for deposit, any
holder of a Receipt or any other person believed by it in good faith to be competent to give such
advice or 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 in good faith to be genuine and to have been signed or presented by
the proper party or panics.



     In the event the Depositary shall receive conflicting claims, requests or instructions from
any holders of Receipts, on the one hand, and the Company, on the other hand, the Depositary shall
be entitled to act on such claims, requests or instructions received from the Company, and shall be
entitled to the full indemnification set forth in Section 5.06 hereof in connection with any action
so taken.



     The Depositary shall not be responsible for any failure to carry out any instruction to vote
any of the deposited Preferred Stock or for the manner or effect of any such vote made, as long as
any such action or non-action is in good faith and does not result from negligence or willful
misconduct of the Depositary. 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 Agreement
against the Depositary or any Registrar.



     The Depositary, its parent, affiliate, or subsidiaries, any Depositary’s Agent, and any
Registrar may own, buy, sell or 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 or otherwise act
as fully or as freely as if it were not the Depositary or the Depositary’s Agent hereunder. The
Depositary may also act as transfer agent or registrar of any of the securities of the Company and its affiliates or act in any other capacity for
the Company or its affiliates.



     It is intended that neither the Depositary nor any Depositary’s Agent 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 and any Depositary’s Agent are acting
only in a ministerial capacity as Depositary for the deposited Preferred Stock; provided, however,
that the Depositary agrees to comply with all information reporting and



16









 




withholding requirements applicable to it under law or this Deposit Agreement in its capacity as Depositary.




     Neither the Depositary (or its officers, directors, employees or agents) nor any Depositary’s
Agent 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
deposited Preferred Stock, the Depositary Shares, the Receipts (except its countersignature
thereon) or any instruments referred to therein or herein, or as to the correctness of any
statement made therein or herein; provided, however, that the Depositary is responsible for its
representations in this Deposit Agreement and for the validity of any action taken or required to
be taken by the Depositary in connection with this Deposit Agreement.



     The Company represents that it has registered the deposited Preferred Stock and the Depositary
Shares for sale in accordance with applicable securities laws.



     SECTION 5.04. Resignation and Removal of the Depositary; Appointment of Successor
Depositary. The Depositary may at any time resign as Depositary hereunder by delivering to the
Company notice of its election to do so, 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
$50,000,000. If a successor depositary shall not have been appointed in 60 days, the resigning
Depositary may petition a court of competent jurisdiction to appoint 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 promptly execute and deliver an instrument transferring to such successor all rights and powers of such predecessor hereunder, shall duly
assign, transfer and deliver all rights, title and interest in the deposited Preferred 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. 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. Such successor depositary may execute the Receipts either in the name of the
predecessor depositary or in the name of the successor depositary.




17












 





     SECTION 5.05. Notices, Reports and Documents. 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 address recorded in the Depositary’s books, copies
of all notices and reports (including financial statements) required by law, by the rules of any
national securities exchange or interdealer quotation system upon which the Preferred Stock, the
Depositary Shares or the Receipts are listed or quoted or by the Articles of Incorporation and the
Articles Supplementary to be furnished by the Company to holders of the deposited Preferred Stock
and, if requested by the holder of any Receipt, a copy of this Deposit Agreement, the form of
Receipt, the Articles Supplementary and the form of Preferred Stock. 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. In addition, the Depositary will transmit
to the record holders of Receipts at the Company’s expense such other documents as may be requested
by the Company.



     SECTION 5.06. Indemnification by the Company. The Company agrees to indemnify the
Depositary, any Depositary’s Agent and any Registrar against, and hold each of them harmless from,
any liability, costs and expenses (including reasonable attorneys’ fees) that may arise out of, or
in connection with, its acting as Depositary, Depositary’s Agent or Registrar, respectively, under
this Deposit Agreement and the Receipts, except for any liability arising out of the willful
misconduct, gross negligence, or bad faith on the part of any such person or persons. The
obligations of the Company set forth in this Section 5.06 shall survive any succession of any
Depositary, Registrar or Depositary’s Agent or termination of this Deposit Agreement.



     SECTION 5.07. Indemnification by the Depositary. The Depositary agrees to indemnify
the Company against, and hold the Company harmless from, any liability, costs and expenses
(including reasonable attorneys’ fees) that may arise out of, or in connection with, the refusal or
failure of any of the Depositary, any Depositary’s Agent or the Registrar to comply with the terms
of this Deposit Agreement, or which arise out of the willful misconduct, gross negligence, or bad
faith on the part of any such person or persons; provided, however, that the Depositary’s aggregate
liability hereunder with respect to, arising from, or arising in connection with this Deposit
Agreement, or from all services provided or omitted to be provided under this Deposit Agreement,
whether in contract, or in tort, or otherwise, is limited to, and shall not exceed, the amounts
paid hereunder by the Company to the Depositary as fees and charges under this Agreement or
otherwise, but not including reimbursable expenses, during the six (6) calendar months immediately
preceding the event for which recovery from the Depositary is being sought. The obligations of the
Depositary set forth in this Section 5.07 shall survive any succession of the Company or
termination of this Deposit Agreement.



     SECTION 5.08. Damages. The Depositary shall not be liable for any incidental,
indirect, special or consequential damages of any nature whatsoever, including, but not limited to,
loss of anticipated profits (collectively, “Special Damages”), occasioned by breach of any
provision of this Agreement by the Depositary even if apprised of the possibility of such damages.
The Company shall not be liable to the Depositary for Special Damages occasioned by breach of any
provision of this Agreement by the Company even if apprised of the possibility of such damages.



18









 





     SECTION 5.09. Fees, Charges and Expenses. No charges and expenses of the Depositary
or any Depositary’s Agent hereunder shall be payable by any person, except as provided in this
Section 5.09. The Company shall pay all transfer and other taxes and governmental charges arising
solely from the existence of this Deposit Agreement. The Company shall also pay all fees and
expenses of the Depositary in connection with the initial deposit of the Preferred Stock and the
initial issuance of the Depositary Shares evidenced by the Receipts, any redemption of the
Preferred Stock at the option of the Company and all withdrawals of the Preferred Stock by holders
of Receipts. If a holder of Receipts requests the Depositary to perform duties not required under
this Deposit Agreement, the Depositary shall notify the holder of the cost of the performance of
such duties prior to the performance thereof. Upon approval of such cost by such holder, such
holder will thereafter be liable for the charges and expenses related to such performance. All
other fees and expenses of the Depositary and any Depositary’s Agent hereunder and of any Registrar
(including, in each case, fees and expenses of counsel) incident to the performance of their
respective obligations hereunder will be promptly paid by the Company pursuant to such terms as the
Company and the Depositary shall agree in good faith. The Depositary shall present its statement
for fees and expenses to the Company every month or at such other intervals as the Company and the
Depositary may agree.



ARTICLE VI




AMENDMENT AND TERMINATION




     SECTION 6.01. Amendment. The form of the Receipts and any provision 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 (other than any change in the fees of any Depositary, Registrar or Transfer Agent
that are payable by the Company) which (i) shall materially and adversely alter the rights of the
holders of Receipts or (ii) would be materially and adversely inconsistent with the rights granted
to the holders of the Preferred Stock pursuant to the Articles Supplementary shall be effective
unless such amendment shall have been approved by the holders of Receipts evidencing at least
a majority of the Depositary Shares then outstanding. In no event shall any amendment impair the
right, subject to the provisions of Section 2.06 and Section 2.07 and Article III, of any holder of
any Depositary Shares to surrender the Receipt evidencing such Depositary Shares with instructions
to the Depositary to deliver to the holder the deposited Preferred Stock and all money and other
property if any, represented thereby, except in order to comply with mandatory provisions of
applicable law. Every holder of an outstanding Receipt at the time any such amendment becomes
effective shall be deemed, by continuing to hold such Receipt, to consent and agree to such
amendment and to be bound by this Deposit Agreement as amended thereby.



     SECTION 6.02. Termination. This Deposit Agreement may be terminated by the Company
upon not less than 30 days’ prior written notice to the Depositary if (i) such termination is
necessary to preserve the Company’s status as a real estate investment trust under the Internal
Revenue Code of 1986, as amended (or any successor provision), or (ii) the holders of Receipts
evidencing at least a majority of the Depositary Shares then outstanding consent to such
termination, whereupon the Depositary shall deliver or make available to each holder of a Receipt,
upon surrender of the Receipt held by such holder, such number of whole or fractional



19









 







shares of deposited Preferred Stock as are represented by the Depositary Shares evidenced by
such Depositary Receipt, together with any other property held by the Depositary in respect of such
Receipt. In the event that this Deposit Agreement is terminated pursuant to clause (i) of the
immediately preceding sentence, the Company hereby agrees to use its reasonable best efforts to
list or quote the Preferred Stock issued upon surrender of the Receipt evidencing the Depositary
Shares represented thereby on a national securities exchange or interdealer quotation system. This
Deposit Agreement will automatically terminate if (i) all outstanding Depositary Shares shall have
been redeemed pursuant to Section 2.03 or (ii) there shall have been made a final distribution in
respect of the deposited Preferred 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
entitled thereto.



     Upon the termination of this Deposit Agreement, (i) the Company shall be discharged from all
obligations under this Deposit Agreement except for its obligations to the Depositary, any
Depositary’s Agent and any Registrar under Section 5.06 and Section 5.09 and (ii) the Depositary
shall be discharged from all obligations under this Deposit Agreement except for its obligations to
the Company under Section 5.07.



ARTICLE VII




MISCELLANEOUS




     SECTION 7.01. 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. Delivery of an executed
counterpart of a signature page to this Deposit Agreement by telecopier shall be effective as
delivery of a manually executed counterpart of this Deposit Agreement. Copies of this Deposit
Agreement shall be filed with the Depositary and the Depositary’s Agents and shall be open to
inspection during business hours at the Corporate Office and the respective offices of time
Depositary’s Agents, if any, by any holder of a Receipt.



     SECTION 7.02. Exclusive Benefits 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 7.03. 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 7.04. 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:



     National Retail Properties, Inc.



20









 





      450 South Orange Avenue, Suite 900

      Orlando, Florida 32801

      Attention:

      Telephone No.: (800) 666-7348



or at any other address of which the Company shall have notified the Depositary in writing.




     Any 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 suit by mail, or by telegram
or telex or telecopier confirmed by letter, addressed to the Depositary at the Corporate Office to
the attention of the General Counsel.



     Any notices given to any record holder of a Receipt hereunder 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 or
telecopier 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 in a timely manner 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 or telecopier 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 or telecopier message) is deposited, postage prepaid, in a post
office letter box. The Depositary or the Company may, however, act upon any telegram or telex or
telecopier message received by it from the other or from any holder of a Receipt, notwithstanding
that such telegram or telex or telecopier message shall not subsequently be confirmed by letter as
aforesaid.



     SECTION 7.05. Depositary’s Agents. 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 7.06. Holders of Receipts Are Parties. The holders of Receipts from time to
time shall be deemed to 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 7.07. 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 law of the State of Maryland applicable to agreements made and to be performed
in said State.



     SECTION 7.08. Inspection of Deposit Agreement and Articles Supplementary. Copies of
this Deposit Agreement and the Articles Supplementary shall be filed with the Depositary and the
Depositary’s Agents and shall be open to inspection during business hours at the Corporate Office
and the respective offices of the Depositary’s Agents, if any, by any holder of any Receipt.



21









 





     SECTION 7.09. Headings. The headings of articles and sections in this Deposit
Agreement and in the form of the Receipt set forth in Exhibit A annexed hereto have been
inserted for convenience only and are not to be regarded as a part of this Deposit Agreement or to
have any bearing upon the meaning or interpretation of any provision contained herein or in the
Receipts.



[SIGNATURE PAGE FOLLOWS]





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     IN WITNESS WHEREOF, National Retail
Properties, Inc. and ________________ have caused this
Deposit Agreement to be duly executed on their behalf as of the date set forth above 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.


	 	 	 	 	 
	 	NATIONAL RETAIL PROPERTIES, INC.
 	 
	 	By:  	 	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 
	 
	 	[DEPOSITARY]
 	 
	 	By:  	 	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 



 








 




	 	 	 	 	 



EXHIBIT A


Form of Receipt


[NNN Logo]


DEPOSITARY RECEIPT FOR DEPOSITARY SHARES EACH REPRESENTING

1/100TH OF A

SHARE OF ___% SERIES ___ PREFERRED STOCK

OF

NATIONAL RETAIL PROPERTIES, INC.

INCORPORATED UNDER THE LAWS OF THE STATE OF MARYLAND


DEPOSITARY SHARES


THIS DEPOSITARY RECEIPT IS TRANSFERABLE
IN [CITY, STATE]



SEE REVERSE FOR CERTAIN DEFINITIONS



CUSIP                    

                                        , as Depositary (the “Depositary”), hereby certifies that                      is
the registered owner of Depositary Shares (“Depositary Shares”), each Depositary Share representing
1/100th of one share of                     % Series                      Preferred Stock (the “Preferred
Stock”), of National Retail Properties, Inc., a Maryland corporation (the “Corporation”), on
deposit with the Depositary, subject to the terms and entitled to the benefits of the Deposit
Agreement, dated as of                     ,                      (the “Deposit Agreement”), among the Corporation, 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 be entitled to any benefits under the Deposit Agreement unless it shall have been
executed by the Depositary by the manual and or facsimile signature of a duly authorized officer.



A-1








 









     The Corporation is authorized to issue Common Stock and one or more series of Preferred Stock.
The Corporation will furnish without charge to each receipt holder, who so requests in writing to
the Secretary of the Corporation at its principal office or to the transfer agent, a copy of the
Deposit Agreement. Any such request shall be made to the Corporation at the principal office of
the Corporation at 950 South Orange Avenue, Suite 900, Orlando, Florida 32801, Attention:
                                        .



Dated:




	 	 	 
	 

	 	Countersigned
	 
	 	 
	 

	 	[Name of Depositary],
	 

	 	Depositary, Transfer Agent and Registrar
	 
	 	 
	 

	 	By:
	 
	 	 
	 

	 	 
	 

	 	AUTHORIZED OFFICER






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NATIONAL RETAIL PROPERTIES, INC.


     The securities represented by this certificate are subject to restrictions on transfer for the
purpose of maintenance of the Corporation’s status as a real estate investment trust (“REIT”) under
the Internal Revenue Code of 1986, as amended (the “Code”). Except as otherwise provided pursuant
to the Charter of the Corporation, no Person may (i) Beneficially or Constructively Own shares of
Capital Stock in excess of 9.8 percent of the Value of the outstanding shares of Capital Stock of
the Corporation or (ii) Beneficially Own Equity Stock which would result in the Corporation being
“closely held” under Section 856(h) of the Code or otherwise would cause the Corporation to fail to
qualify as a REIT. Any Person who attempts or proposes to Beneficially or Constructively Own
shares of Capital Stock in excess of the above limitations must notify the Corporation in writing
at least fifteen (15) days prior to the proposed or attempted transfer. If the transfer
restrictions referred to herein are violated, the shares of Capital Stock represented hereby
automatically will be exchanged for shares of Excess Stock and will be held in trust by the
Corporation, all as provided in the Charter of the Corporation. All capitalized terms in this
legend have the meanings identified in the Corporation’s Charter, as the same may be amended or
restated from time to time, a copy of which, including the restrictions on transfer, will be sent
without charge to each stockholder who so requests.


     The Corporation will furnish to any stockholder, upon request and without charge, a full
statement of the information required by Section 2-211(b) of the Maryland General Corporation Law
with respect to the designations and any preferences, conversion and other rights, voting powers,
restrictions, limitations as to distributions, qualifications, and terms and conditions of
redemption of the stock of each class which the Corporation has authority to issue and, if the
Corporation is authorized to issue any preferred or special class in series or classes, (i) the
difference in the relative rights and preferences between the shares of each series and class to
the extent set, and (ii) the authority of the Board of Directors to set such rights and preferences
of subsequent series and classes. The foregoing summary does not purport to be complete and is
subject to and qualified in its entirety by reference to the Charter of the Corporation, a copy of
which will be sent without charge to each stockholder who so requests. Such request must be made
to the Secretary of the Corporation at its principal office.


     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

TEN ENT as tenants by the entireties

JT TEN as joint tenants with right of survivorship and not as tenants in common


	 	 	 	 	 	 	 	 	 
	UNIF GIFT MIN ACT—
	 	 	 	Custodian	 	 	 	 
	 
	 	 
	 	 	 	 
	 	     
	 
	 	(Cust)	 	 	 	(Minor)	 	 
	 
	 	 	 	 	 	 	 	 
	 	 	UNDER Uniform Gifts to Minors Act	 	 	 	 
	 
	 	 	 	 	 	 	 	 
	 
	 	 
	 	 	 	 	 	     




A-3







 





	 	 	 	 	 	 	 	 	 
	 
	 	(State)	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 
	UNIF GIFT MIN ACT—	 	 	 	Custodian (until age                                         )
	 
	 	 	 	 	 	 	 	 
	 
	 	(Cust)	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 
	 	 	 	 	under Uniform Transfers
	 
	 	 	 	 	 	 	 	 
	 
	 	(Minor)	 	 	 	 	 	 
	 
	to Minors Act
	 	 	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 
	 
	 	(State)	 	 	 	 	 	 





Additional abbreviations may also be used though not in the above list.



For Value Received,                                          hereby sell, assign and transfer 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



	 	 	 
	Dated                                         
	 	Signed                                         




NOTICE: THE SIGNATURE FOR THIS ASSIGNMENT MUST CORRESPOND WITH THE NAME AS WRITTEN UPON THE FACE
OF THIS DEPOSITARY RECEIPT IN EVERY PARTICULAR, WITHOUT ALTERNATION OR ENLARGEMENT OR ANY CHANGE
WHATEVER.



A-4








 








Signature(s) Guaranteed:



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-16.





A-5