Exhibit (a)(2)
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AMENDED AND RESTATED
TRUST AGREEMENT
CONSTITUTING
WBK STRYPES TRUST
Dated as of __________ __, 1997
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TABLE OF CONTENTS
Page
ARTICLE I
DEFINITIONS
SECTION 1.1 DEFINITIONS.............................................. 2
ARTICLE II
TRUST DECLARATION; PURPOSES, POWERS
AND DUTIES OF THE TRUSTEES; ADMINISTRATION
SECTION 2.1 NAME..................................................... 8
SECTION 2.2 OFFICE................................................... 8
SECTION 2.3 RATIFICATION AND APPROVAL OF ACTION OF EITHER OR
BOTH OF THE DEPOSITOR AND THE INITIAL TRUSTEE............ 8
SECTION 2.4 DECLARATION OF TRUST; PURPOSES OF THE TRUST.............. 8
SECTION 2.5 GENERAL POWERS AND DUTIES OF THE TRUSTEES................ 8
SECTION 2.6 PORTFOLIO ACQUISITION.................................... 10
SECTION 2.7 PORTFOLIO ADMINISTRATION................................. 10
SECTION 2.8 LIMITATIONS ON TRUSTEES' POWERS. ........................ 13
ARTICLE III
ACCOUNTS AND PAYMENTS
SECTION 3.1 THE TRUST ACCOUNT........................................ 14
SECTION 3.2 DISTRIBUTIONS TO HOLDERS................................. 14
SECTION 3.3 SEGREGATION.............................................. 14
SECTION 3.4 INVESTMENTS.............................................. 14
SECTION 3.5 EXPENSES................................................. 15
ARTICLE IV
REDEMPTION
SECTION 4.1 REDEMPTION............................................... 15
ARTICLE V
ISSUANCE OF CERTIFICATES;
REGISTRY; TRANSFER OF STRYPES
SECTION 5.1 FORM OF CERTIFICATE...................................... 15
ii
SECTION 5.2 TRANSFER OF STRYPES; ISSUANCE, TRANSFER AND
INTERCHANGE OF CERTIFICATES.............................. 16
SECTION 5.3 REPLACEMENT OF CERTIFICATES.............................. 16
SECTION 5.4 LIMITATION ON LIABILITY.................................. 17
SECTION 5.5 GENERAL PROVISIONS REGARDING THE STRYPES................. 17
ARTICLE VI
EXECUTION OF THE CONTRACT AND
OTHER TRANSACTION DOCUMENTS
SECTION 6.1 EXECUTION OF THE CONTRACT AND OTHER
TRANSACTION DOCUMENTS.....................................17
ARTICLE VII
TRUSTEES
SECTION 7.1 TRUSTEES................................................. 17
SECTION 7.2 VACANCIES................................................ 18
SECTION 7.3 POWERS................................................... 18
SECTION 7.4 MEETINGS................................................. 18
SECTION 7.5 RESIGNATION AND REMOVAL.................................. 19
SECTION 7.6 LIABILITY................................................ 19
SECTION 7.7 COMPENSATION............................................. 19
ARTICLE VIII
MISCELLANEOUS
SECTION 8.1 MEETINGS OF HOLDERS...................................... 20
SECTION 8.2 BOOKS AND RECORDS; REPORTS............................... 20
SECTION 8.3 DISSOLUTION.............................................. 21
SECTION 8.4 AMENDMENT AND WAIVER..................................... 22
SECTION 8.5 ACCOUNTANTS.............................................. 23
SECTION 8.6 NATURE OF HOLDER'S INTEREST.............................. 24
SECTION 8.7 DELAWARE LAW TO GOVERN................................... 24
SECTION 8.8 NOTICES.................................................. 25
SECTION 8.9 SEVERABILITY............................................. 25
SECTION 8.10 COUNTERPARTS............................................. 25
SECTION 8.11 SUCCESSORS AND ASSIGNS................................... 25
Schedule I - U.S. Treasury Securities.................................Exh. I-1
Annex A - Form of Bank ADS Request.........................................A-1
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EXHIBIT A - STRYPES CERTIFICATE.......................................Exh. A-1
EXHIBIT B - FORWARD PURCHASE AGREEMENT................................Exh. B-1
EXHIBIT C - INDEMNITY AGREEMENT.......................................Exh. C-1
EXHIBIT D - NOMINEE TRUST AGREEMENT...................................Exh. D-1
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AMENDED AND RESTATED TRUST AGREEMENT
This Amended and Restated Trust Agreement, dated as of September __, 1997
(the "Trust Agreement"), by and among ML IBK Positions, Inc. as sponsor (the
"Sponsor"), Xxxxxx X. Xxxxxxx, Xxxxxxx X. Xxxxxx III and Xxxxx X. X'Xxxxx, as
trustees (the "Trustees"), and the Holders (as defined herein), constituting WBK
STRYPES Trust (the "Trust").
W I T N E S E T H:
WHEREAS, Xxxx X. Xxxx, as depositor (the "Depositor") and Xxxxxxx X.
Xxxxxxxx, as trustee (the "Initial Trustee"), have previously entered into a
Trust Agreement dated as of March 14, 1996 (as subsequently amended, the
"Original Agreement"), creating XYZ STRYPES Trust;
WHEREAS, the Depositor has transferred his interest in XYZ STRYPES Trust
to the Sponsor;
WHEREAS, the Trustees hereby ratify and approve the transfer of the
interest of the Depositor in XYZ STRYPES Trust to the Sponsor;
WHEREAS, pursuant to an Instrument of Appointment, Acceptance, and
Resignation, dated as of February , 1997 (the "Instrument"), the Initial
Trustee appointed the Trustees as successor trustees to the Initial Trustee, the
Trustees accepted such appointment, and the Initial Trustee thereupon resigned
as trustee of the Trust;
WHEREAS, the Sponsor hereby waives the thirty (30) day notice requirement
of Section 5 of the Original Agreement and ratifies and approves the actions
taken pursuant to the Instrument;
WHEREAS, the parties hereto desire to amend and restate the Original
Agreement; and
WHEREAS, the Trust has previously issued one STRYPES to the Sponsor in
consideration of the aggregate purchase price therefor of $100, in satisfaction
of the requirements of Section 14(a)(1) under the Investment Company Act (as
hereinafter defined);
NOW, THEREFORE, the parties hereto agree to amend and restate the Original
Agreement as provided herein. Upon the execution and delivery of counterpart
signature pages hereto by the parties hereto, the Original Agreement will be
automatically amended and restated in its entirety to read as provided herein.
ARTICLE I
DEFINITIONS
SECTION 1.1 DEFINITIONS. Whenever used in this Trust Agreement, the
following words and phrases shall have the meanings listed below. Any reference
to any agreement shall be a reference to such agreement as supplemented or
amended from time to time.
"ABSOLUTELY ENTITLED" - Absolutely Entitled shall have the meaning it
would have as interpreted under principles of Australian income tax and trust
law and references in this Agreement to the Trust or Trustees holding or
receiving Reference Property or Reference Securities "for the benefit of the
Holders absolutely" shall have a corresponding meaning.
"ACCELERATION AMOUNT NOTICE" - An Acceleration Amount Notice as defined in
the Contract.
"ACCELERATION VALUE" - The Acceleration Value as defined in the Contract.
"ADMINISTRATION AGREEMENT" - The Administration Agreement between the
Administrator and the Trust, and any substitute agreement therefor entered into
pursuant to Section 2.5(a) hereof.
"ADMINISTRATOR" - The Bank of New York, a New York banking corporation, or
its successor as permitted under Section 6.1 of the Administration Agreement or
appointed pursuant to Section 2.5(a) hereof.
"AGGREGATE ACCELERATION VALUE" - The Aggregate Acceleration Value as
defined in the Contract.
"AMP" - Australian Mutual Provident Society, an Australian mutual
insurance company.
"BANK" - Westpac Banking Corporation, an Australian bank.
"BANK ADRs" - Bank ADSs evidenced by American Depositary Receipts of the
Bank.
"BANK ADSs" - American Depositary Shares of the Bank.
"BANK ORDINARY SHARES" - Ordinary Shares, par value A$1.00 per share of
the Bank.
"BUSINESS DAY" - Any day that is not a Saturday, a Sunday or a day on
which the New York Stock Exchange, the National Association of Securities
Dealers, Inc. National Market, or banking institutions or trust companies in The
City of New York and other place
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where payment under the Contract or the Escrow Agreement is required to be made
are authorized or obligated by law or executive order to close.
"CASH DISSOLUTION EVENT" - A Cash Dissolution Event as defined in the
Contract.
"CASH SETTLEMENT OPTION" - The option of AMP described in Section 2.5 (a)
of the Contract in whole or in part to settle the Contract for a cash payment on
the Settlement Date.
"CERTIFICATE" - Any certificate evidencing the ownership of STRYPES
substantially in the form of Exhibit A hereto.
"CLOSING DATE" - The Closing Date as defined in the Contract.
"CODE" - The Internal Revenue Code of 1986, as amended from time to time;
each reference herein to any section of the Code or any regulation thereunder
shall constitute a reference to any successor provision thereto.
"COMMENCEMENT DATE" - The day on which the Purchase Agreement is executed.
"COMMISSION" - The United States Securities and Exchange Commission, as
from time to time constituted, created under the Exchange Act, or if at any time
after the execution of this Trust Agreement such Commission is not existing or
performing the duties now assigned to it, then the body performing such duties
on such date.
"CONTRACT" - The Forward Purchase Contract among the Trust, AMP, the
Custodian, the Administrator and the Contracting Stockholder, substantially in
the form of Exhibit B hereto.
"CONTRACT CONSIDERATION" - The Contract Consideration as defined in the
Contract.
"CONTRACTING STOCKHOLDER" - The person named as "Seller" in the Contract.
"CUSTODIAN" - The Bank of New York or its successor as permitted under
paragraph 11 of the Custodian Agreement or appointed pursuant to Section 2.5(a)
hereof.
"CUSTODIAN AGREEMENT" - The Custodian Agreement, dated as of , 1997,
between the Custodian and the Trust, and any substitute agreement therefor
entered into pursuant to Section 2.5(a) hereof.
"DATE OF DELIVERY" - A Date of Delivery as defined in the Contract.
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"DEPOSITARY" - The Depository Trust Company, or any successor thereto.
"DISSOLUTION EVENT" - A Dissolution Event as defined in the Contract.
"DISTRIBUTION DATE" - Each February 15, May 15, August 15 and November 15,
of each year, commencing November 15, 1997, to and including , 2000 (or
if any such date is not a Business Day, then the first Business Day thereafter).
"EARLY SETTLEMENT DATE" - The Early Settlement Date as defined in the
Contract.
"ESCROW AGENT" - National Australia Bank Limited or its successor as
permitted under Clause 5.4(b) of the Escrow Agreement or appointed pursuant to
Section 2.5(a) hereof.
"ESCROW AGREEMENT" - The Escrow Agreement among the Trust, the Escrow
Agent, AMP and the Contracting Stockholder.
"EVENT OF DEFAULT" - An Event of Default as defined in the Contract.
"EXCHANGE" - The delivery by the Trustees to the Holders of Reference
Property (and to the extent that AMP elects to exercise the Cash Settlement
Option or is otherwise obligated to pay cash under the Contract, the amount of
cash with an equal value, as specified in the Contract as payable in respect
thereof) in mandatory exchange for the STRYPES on the Exchange Date.
"EXCHANGE ACT" - The Securities Exchange Act of 1934, as amended from time
to time; each reference herein to any section of such Act or any rule or
regulation thereunder shall constitute a reference to any successor provision
thereto.
"EXCHANGE DATE" - __________ __, 2000.
"FIRM CONSIDERATION AMOUNT" - The Firm Consideration Amount as defined in
the Contract.
"FIRM PAYMENT DATE" - The Firm Payment Date as defined in the Contract.
"FUND EXPENSE AGREEMENT" - Fund Expense Agreement among AMP, Xxxxxxx Xxxxx
and The Bank of New York.
"HOLDER" - The registered owner of any STRYPES as recorded on the books of
the Paying Agent.
"INDEMNITY AGREEMENT" - The Fund Indemnity Agreement among the Trust,
Xxxxxxx Xxxxx and AMP substantially in the form of Exhibit C hereto.
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"INDEPENDENT DEALERS" - Independent Dealers as defined in the Contract.
"INVESTMENT COMPANY ACT" - The Investment Company Act of 1940, as amended
from time to time; each reference herein to any section of such Act or any rule
or regulation thereunder shall constitute a reference to any successor provision
thereto.
"LIQUIDATION VALUE" - The aggregate proceeds received by the Trust from
the sale of the U.S. Treasury Securities pursuant to Section 2.6(b) hereof.
"MANAGING TRUSTEE" - The Trustee designated the Managing Trustee by
resolution of the Trustees.
"XXXXXXX XXXXX" - Xxxxxxx Xxxxx & Co., Inc.
"NOMINEE TRUST AGREEMENT" - The Nominee Trust Agreement among National
Australia Trustees Limited and AMP, in substantially the form of Exhibit D
hereto.
"OPTION CONSIDERATION AMOUNT" - The Option Consideration Amount as defined
in the Contract.
"ORIGINAL AGREEMENT" - The meaning specified in the recitals hereof.
"PARTICIPANT" - A Person having an account with the Depositary.
"PAYING AGENT" - The Bank of New York or its successor as permitted under
Section 6.6 of the Paying Agent Agreement or appointed pursuant to Section
2.5(a) hereof.
"PAYING AGENT AGREEMENT" - The Paying Agent Agreement between the Paying
Agent and the Trust, and any substitute agreement therefor entered into pursuant
to Section 2.5(a) hereof.
"PERSON" - An individual, partnership, corporation (including a business
trust), limited liability company, joint stock company, trust, unincorporated
association, joint venture or other entity, or a government or any political
subdivision or agency or instrumentality thereof.
"PROSPECTUS" - The prospectus of the Trust relating to the offering of the
STRYPES and constituting a part of the Registration Statement, as first filed
with the Commission pursuant to Rule 497(b) or (h) under the Securities Act, and
as subsequently amended or supplemented by the Trust.
"PURCHASE AGREEMENT" - The Purchase Agreement among the Trust, the
Contracting Stockholder, AMP and the Underwriter relating to the issue and sale
of the STRYPES, as described in the Prospectus.
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"QUARTERLY DISTRIBUTION" - $______ (or, in the case of the period from and
including __, 1997 to and including November 14, 1997, $_______).
"RECORD DATE" - Each February 1, May 1, August 1 and November 1, of each
year, commencing November 1, 1997.
"REFERENCE PROPERTY" - The Reference Property as defined in the Contract.
"REFERENCE SECURITY" - A Reference Security as defined in the Contract.
"REFERENCE SECURITY ISSUER DISSOLUTION EVENT" - A Reference Security
Issuer Dissolution Event as defined in the Contract.
"REGISTRATION STATEMENT" - The Registration Statement on Form N-2
(Registration Nos. 333-1787; 811-7565) of the Trust, as amended.
"SECURITIES ACT" - The Securities Act of 1933, as amended from time to
time; each reference herein to any section of such Act or any rule or regulation
thereunder shall constitute a reference to any successor provision thereto.
"SETTLEMENT DATE" - The Settlement Date as defined in the Contract.
"STRYPES" - Structured Yield Product Exchangeable for Stock(sm)
representing a proportionate share of beneficial ownership in the Trust
evidencing a Holder's undivided interest in the Trust and right to receive a pro
rata distribution upon liquidation of the Trust Estate.
"SUBSCRIPTION AGREEMENT" - The Subscription Agreement, dated as of
September 24, 1997, between the Trust and ML IBK POSItions, Inc.
"TEMPORARY INVESTMENTS" - Direct short-term U.S. government obligations,
as specified from time to time by the Trustees or through standing instructions
from the Trustees to the Administrator or the Paying Agent.
"TRANSFER AGENT AND REGISTRAR" - With respect to any Reference Security at
any time, the Person then acting as transfer agent and registrar for such
Reference Security.
"TRUST ACCOUNT" - The account created pursuant to Section 3.1 hereof.
"TRUST ESTATE" - The Contract, the Escrow Agreement and the U.S. Treasury
Securities held at any time by the Trust, together with any Temporary
Investments held at any time pursuant to Section 3.4 hereof, and any proceeds
thereof or therefrom and any other moneys held at any time in the Trust Account.
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"TRUSTEE" - Each of Xxxxxx X. Xxxxxxx, Xxxxxxx X. Xxxxxx III and Xxxxx X.
X'Xxxxx solely in such Person's capacity as a Trustee of the Trust created and
continued hereunder and not in such Person's individual capacity, or such
Trustee's successor in interest in such capacity, or any successor appointed as
herein provided.
"UNDERWRITER" - The Underwriter named in the Purchase Agreement.
"U.S. TREASURY SECURITIES" - The meaning specified in Section 2.6(b)
hereof.
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(sm) Service xxxx of Xxxxxxx Xxxxx & Co., Inc.
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ARTICLE II
TRUST DECLARATION; PURPOSES, POWERS
AND DUTIES OF THE TRUSTEES; ADMINISTRATION
SECTION 2.1 NAME. The Trust is named "WBK STRYPES Trust," as such name may
be modified from time to time by the Trustees following written notice to the
Holders. The Trust's activities may be conducted under the name of the Trust or
any other name deemed advisable by the Trustees.
SECTION 2.2 OFFICE. The address of the principal office of the Trust is
c/o Puglisi & Associates, 000 Xxxxxxx Xxxxxx, Xxxxx 000, Xxxxxx, Xxxxxxxx 00000.
On ten Business Days written notice to the Holders the Trustees may designate
another principal office.
SECTION 2.3 RATIFICATION AND APPROVAL OF ACTION OF EITHER OR BOTH OF THE
DEPOSITOR AND THE INITIAL TRUSTEE. The Sponsor and the Trustees hereby ratify
and approve any and all actions taken by either or both of the Depositor and the
Initial Trustee on behalf of the Trust on or prior to the date hereof in
connection with the registration of the Trust under the Investment Company Act,
in connection with the registration of the offer and sale of the STRYPES under
the Securities Act, or otherwise incident to, or connected with, or necessary to
accomplish, the foregoing or the offer and sale of the STRYPES by the
Underwriter and the operation of the Trust as described in the Prospectus.
SECTION 2.4 DECLARATION OF TRUST; PURPOSES OF THE TRUST. The Sponsor
hereby creates the Trust in order that it may acquire the U.S. Treasury
Securities, enter into the Contract, issue and sell to the Sponsor and the
Underwriter the STRYPES, hold the Trust Estate in trust for the use and benefit
of all present and future Holders and otherwise carry out the terms and
conditions of this Trust Agreement, all for the purpose of achieving the
investment objectives set forth in the Prospectus. The Trustees hereby declare
that they will accept and hold the Trust Estate in trust for the use and benefit
of all present and future Holders. The Depositor has heretofore deposited with
the Initial Trustee the sum of $1 to accept and hold in trust hereunder until
the issuance and sale of the STRYPES to the Underwriter, whereupon such sum
shall be donated to an organization satisfying the requirements of Section
170(c)(2) of the Code selected by unanimous consent of the Trustees.
SECTION 2.5 GENERAL POWERS AND DUTIES OF THE TRUSTEES. In furtherance of
the provisions of Section 2.4 hereof, the Sponsor authorizes and directs the
Trustees, on behalf of the Trust:
(a) to enter into and perform (and, in accordance with Section
8.4(a) hereof, amend), the Contract, the Purchase Agreement, the Indemnity
Agreement, the
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Custodian Agreement, the Administration Agreement, the Subscription
Agreement, the Escrow Agreement and the Paying Agent Agreement and to
perform all obligations of the Trustees (including the obligation to
provide indemnity hereunder and thereunder) and enforce all rights and
remedies of the Trust under each of such agreements; and if any of the
Custodian Agreement, the Administration Agreement and the Paying Agent
Agreement terminates, or the agent of the Trust thereunder resigns or is
discharged, to appoint a substitute agent and enter into a new agreement
with such substitute agent containing provisions substantially similar to
those contained in the agreement being terminated; provided that in any
such new agreement (i) the Custodian and the Paying Agent shall each be a
commercial bank or trust company organized and existing under the laws of
the United States of America or any state therein, shall have full trust
powers and shall have minimum capital, surplus and retained earnings of
not less than $100,000,000; and (ii) the Administrator shall be a
reputable financial institution eligible and qualified in all respects to
carry out its obligations under the Administration Agreement;
(b) to hold the Trust Estate in trust, to create and administer the
Trust Account, to direct payments received by the Trust to the Trust
Account and to make payments out of the Trust Account as set forth in
Article III hereof;
(c) to issue and sell to the Underwriter an aggregate of up to
STRYPES (including those STRYPES subject to the over-allotment option of
the Underwriter provided for in the Purchase Agreement) pursuant to the
Purchase Agreement and as contemplated by the Prospectus; provided,
however, that subsequent to the determination of the public offering price
per STRYPES and related underwriting discount for the STRYPES to be sold
to the Underwriter but prior to the sale of the STRYPES to the
Underwriter, the STRYPES originally issued to the Sponsor shall be split
into a greater number of STRYPES so that immediately following such split
the value of the STRYPES held by the Sponsor will equal the aforesaid
public offering price per STRYPES;
(d) to select independent public accountants and, subject to the
provisions of Section 8.5 hereof, to engage such independent public
accountants;
(e) to engage legal counsel and, to the extent required by Section
2.7(b) hereof, to engage professional advisors and pay reasonable
compensation thereto;
(f) to defend any action commenced against the Trustees or the Trust
and to prosecute any action which the Trustees deem necessary to protect
the Trust and the rights and interests of Holders, and to pay the costs
thereof;
(g) to delegate any or all of its powers and duties hereunder as
contemplated by the Custodian Agreement, the Paying Agent Agreement, the
Escrow Agreement and the Administration Agreement, to the extent permitted
by applicable law; and
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(h) to adopt the fundamental policies set forth in the Prospectus,
to adopt and amend a code of regulations, and take any and all such other
actions as necessary or advisable to carry out the purposes of the Trust,
subject to the provisions hereof and applicable law, including, without
limitation, the Investment Company Act.
SECTION 2.6 PORTFOLIO ACQUISITION. In furtherance of the provisions of
Section 2.4 hereof, the Sponsor further specifically authorizes and directs the
Trustees, acting on behalf of the Trust:
(a) to enter into the Contract with respect to the Reference
Property with the Contracting Stockholder and, subject to satisfaction of
the conditions set forth in the Contract and in the Escrow Agreement, to
pay to the Contracting Stockholder the Firm Consideration Amount and any
Option Consideration Amount thereunder with the proceeds of the sale of
the STRYPES, net of (1) the underwriting discount, (2) the purchase price
paid for the U.S. Treasury Securities as provided in paragraph (b) below,
(3) an amount in cash equal to the difference between the aggregate amount
of all Quarterly Distributions to be made on the STRYPES and the aggregate
proceeds to be received from the U.S. Treasury Securities upon maturity,
and (4) expenses in Section 3.5 hereof paid on the date hereof; and,
subject to the adjustments and exceptions set forth in the Contract, the
Contract shall entitle the Trust to receive from the Contracting
Stockholder (and/or AMP) on the Settlement Date for the benefit of the
Holders absolutely a specified number or amount of each type of Reference
Security and other property constituting part of the Reference Property
(and to the extent that AMP elects to exercise the Cash Settlement Option
or is otherwise obligated to pay cash under the Contract, an amount of
cash with an equal value) so that the Trust may execute the Exchange with
the Holders by registering the Holders as the owners of the Reference
Property; and
(b) to purchase for settlement on the Firm Payment Date, and on any
Date of Delivery, as appropriate, with the proceeds of the sale the
STRYPES, net of the underwriting discount, U.S. Treasury securities from
such brokers or dealers as the Trustees shall designate in writing to the
Administrator having the terms set forth on Schedule I hereto ("U.S.
Treasury Securities").
SECTION 2.7 PORTFOLIO ADMINISTRATION. In furtherance of the provisions of
Section 2.4 hereof, the Sponsor further specifically authorizes and directs the
Trustees:
(a) DETERMINATION OF REFERENCE PROPERTY ADJUSTMENTS. Upon receipt of
any notice pursuant to Section 6.6(a) of the Contract of an event
requiring an adjustment to the Reference Property, or upon otherwise
acquiring knowledge of such an event, to calculate the required adjustment
and furnish notice thereof to the Administrator or to request from the
Administrator such further information as may be necessary to calculate or
effect the required adjustment;
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(b) SELECTION OF SECURITIES DEALERS; INDEPENDENT INVESTMENT BANK. At
such times and for such purposes provided in the Contract, (i) to select
four of the nationally recognized securities dealers in The City of New
York to provide net bids for the purchase of rights or warrants referred
to in Section 3.1(b) of the Contract and to deliver notice to the
Administrator and (ii) to select and retain a nationally recognized
investment banking firm to determine the market value of any Reference
Property as provided in the Contract, including, without limitation,
Reference Property consisting of property other than cash or Reference
Securities, and to deliver to the Contracting Stockholder notice pursuant
to Section 9.1 of the Contract identifying the firm proposed to be
selected and retained, and to consult with the Contracting Stockholder on
such selection and retention as provided in such Section 9.1;
(c) ACCELERATION UPON EVENT OF DEFAULT. Upon receipt of any notice
pursuant to Section 9.1 of the Contract that an Event of Default has
occurred, or upon otherwise acquiring notice that an Event of Default has
occurred, to request quotations from Independent Dealers, compute the
Acceleration Value and the Aggregate Acceleration Value and deliver an
Acceleration Amount Notice, in each case with respect to the Contract, all
as described in Section 9.1 of the Contract;
(d) DETERMINATION OF CONTRACT CONSIDERATION. To calculate, at such
times and in such manner as provided in the Contract, the aggregate number
or amount of each type of Reference Security and other property
constituting part of the Reference Property (and to the extent AMP elects
to exercise the Cash Settlement Option or is otherwise obligated to pay
cash under the Contract, the amount of cash with an equal value) required
to be delivered by the Contracting Stockholder and/or AMP under Sections
2.1, 2.3, 2.4 and 2.5 of the Contract or, if a Dissolution Event shall
have occurred, the aggregate number or amount of each type of Reference
Security and other property constituting part of the Reference Property
that would be required to be delivered by the Contracting Stockholder
and/or AMP under the Contract if the Exchange Date were redefined for all
purposes of the Contract (including, without limitation, for purposes of
Section 2.4 thereof) to be the Early Settlement Date, all as provided in
Section 9.2 of the Contract; and
(e) DISTRIBUTION OF CONTRACT CONSIDERATION ON EXCHANGE DATE. Unless
a Dissolution Event shall have occurred or AMP elects to exercise the Cash
Settlement Option with respect to the Reference Property otherwise
deliverable under the Contract (in which event the cash received in
respect thereof shall be distributed pro rata to the Holders on the
Exchange Date) or a Partial Cash Distribution Event occurs (in which event
the cash received in respect thereof shall be distributed pro rata to the
Holder on the related Partial Cash Distribution Date):
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(i) DETERMINATION OF INTERESTS. To determine, on the Exchange
Date: (A) for each Holder, such Holder's pro rata share of the total
amount of each type of Reference Security and other property
constituting part of the Reference Property delivered to the Trust
for the benefit of the Holders absolutely on the Settlement Date
under the Contract; and (B) the amount of the fractional units or
interests of any type of Reference Property, if any, allocable to
each Holder and in the aggregate and to notify the Contracting
Stockholder and AMP of the foregoing determination in accordance
with the Contract;
(ii) DELIVERY OF REFERENCE SECURITIES. To deliver the units of
any Reference Security (after the payment of fractional units or
interests) to the Transfer Agent and Registrar on the Exchange Date,
with instructions that such units be re-registered and re-issued as
follows:
(A) for and in the name of each Holder (other than the
Depositary) who holds STRYPES in definitive form, the Transfer
Agent and Registrar shall be instructed to issue definitive
certificates representing a number of units of such Reference
Security equal to such Holder's pro rata share of the total
number of units of such Reference Security delivered to the
Trust on the Settlement Date under the Contract, rounded down
to the nearest integral number; and
(B) the Transfer Agent and Registrar shall be instructed
to all units of such Reference Security (after the payment of
fractional units or interests) to the account of the Custodian
held through the Depositary, who shall then be instructed to
transfer and credit such units of such Reference Security to
each Participant who holds STRYPES, with each Participant
receiving its pro rata share of the total number of units of
such Reference Security delivered to the Trust on the
Settlement Date under the Contract, reduced by the aggregate
cash value of any fractional units of such Reference Security
allocable to such Participant;
(iii) DELIVERY OF OTHER REFERENCE PROPERTY. To distribute on
the Exchange Date to each Holder such Holder's pro rata share of the
total number or amount of each type of Reference Property consisting
of cash or property other than cash or a Reference Security
delivered to the Trust on the Settlement Date under the Contract
rounding down to the nearest integral number in respect of any such
property;
(iv) DISTRIBUTION OF CASH IN RESPECT OF FRACTIONAL UNITS OR
INTERESTS. To distribute on the Exchange Date to each Holder to
which a fractional unit or interest of any particular type of
Reference Property is allocable as determined pursuant to clause
(i)(B) above such Holder's pro rata portion of the proceeds obtained
from the cash payment of all
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fractional units or interests of such type of Reference Property
pursuant to Section 2.4 of the Contract; and
(v) RECORD DATE. The distributions described in this Section
2.7(e) shall be made to Holders of record as of the close of
business on the Business Day preceding the Exchange Date.
(f) HOLDER'S REQUEST FOR BANK ADRS. At the request of a Holder, Bank
Ordinary Shares constituting Reference Property which such Holder may be
entitled to receive on the Exchange Date or otherwise will be delivered in
the form of Bank ADSs representing such shares and evidenced by Bank ADRs,
but only if at the time of delivery Bank ADSs are listed on the New York
Stock Exchange or another national or regional U.S. stock exchange or
quoted on a U.S. automated quotation system and if and to the extent such
Bank Ordinary Shares are accepted for deposit by the depositary for the
Bank ADSs. Any such request shall have been received by the Administrator
at least 30 days prior to the Exchange Date or other applicable
distribution date. Any such request may be revoked provided such
revocation is received by the Administrator at least 30 days prior to the
Exchange Date or other applicable distribution date. A Bank ADS
request/revocation form is attached hereto as Annex A. In the event that a
Holder elects to receive Bank ADSs, on the Exchange Date or other
distribution date, as the case may be, the Trust will deposit the Bank
Ordinary Shares with the Bank ADR depositary with instructions to register
ADRs in such Holder's name and to deliver such ADRs as requested by such
Holder and the Trust will be responsible for the payment of any fees of
the Bank ADR depositary in connection therewith. Any such payment will be
reimbursed by Xxxxxxx Xxxxx, which in turn will be reimbursed by AMP.
SECTION 2.8 LIMITATIONS ON TRUSTEES' POWERS. The Trustees, acting on
behalf of the Trust, are not permitted:
(a) to purchase or hold any securities or instruments except for
the U.S. Treasury Securities, the Contract, the Escrow
Agreement, any Reference Security received pursuant to the
Contract, and the Temporary Investments contemplated by
Section 3.4 hereof;
(b) to dispose of the Contract or the Escrow Agreement prior to
the Exchange Date;
(c) to issue any securities or instruments except for the STRYPES,
or to issue any STRYPES other than the STRYPES sold to the
Sponsor and the STRYPES to be sold pursuant to the Purchase
Agreement and until such STRYPES have been so purchased and
paid for in full;
(d) to make short sales or purchases on margin;
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(e) to write put or call options;
(f) to borrow money;
(g) to underwrite securities;
(h) to purchase or sell real estate, commodities or commodities
contracts;
(i) to purchase restricted securities;
(j) to make loans; or
(k) to take any action, or direct or permit the Administrator, the
Paying Agent or the Custodian to take any action, that would
vary the investment of the Holders within the meaning of
Treasury Regulation Section 301.7701-4(c), or otherwise take
any action or direct or permit any action to be taken that
would or could cause the Trust not to be a "grantor trust"
under the Code.
ARTICLE III
ACCOUNTS AND PAYMENTS
SECTION 3.1 THE TRUST ACCOUNT. The Trustees shall, upon issuance of the
STRYPES, establish with the Paying Agent an account to be called the "Trust
Account." All moneys received by the Trustees in respect of the Contract, the
U.S. Treasury Securities and any Temporary Investments held pursuant to Section
3.4 hereof, all moneys received from the sale of the STRYPES to the Sponsor, and
any proceeds from the sale of the STRYPES to the Underwriter after the purchase
of the Contract and the U.S. Treasury Securities shall be credited to the Trust
Account.
SECTION 3.2 DISTRIBUTIONS TO HOLDERS. On or shortly after each
Distribution Date the Trustees shall distribute to each Holder of record at the
close of business on the preceding Record Date, at the post office address of
the Holder appearing on the books of the Trust or Paying Agent a check or by any
other means mutually agreed upon by the Holder and the Trustees, in the amount
equal to such Holder's pro rata share of the Quarterly Distribution computed as
of the close of business on such Distribution Date.
SECTION 3.3 SEGREGATION. All moneys and other assets deposited or received
by the Trustees hereunder shall be held by them in trust as part of the Trust
Estate until required to be disbursed or otherwise disposed of in accordance
with the provisions of this Trust Agreement, and the Trustees shall handle such
moneys and other assets in such manner as shall constitute the segregation and
holding in trust within the meaning of the Investment Company Act.
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SECTION 3.4 INVESTMENTS. To the extent necessary to enable the Paying
Agent to make the next succeeding Quarterly Distribution, any moneys deposited
with or received by the Trustees in the Trust Account shall be invested as soon
as possible by the Paying Agent in Temporary Investments maturing no later than
the Business Day preceding the next following Distribution Date. Except as
otherwise specifically provided herein or in the Paying Agent Agreement, the
Paying Agent shall not have the power to sell, transfer or otherwise dispose of
any Temporary Investment prior to the maturity thereof, or to acquire additional
Temporary Investments. The Paying Agent shall hold any Temporary Investment to
its maturity and shall apply the proceeds thereof upon maturity to the payment
of the next succeeding Quarterly Distribution. All such Temporary Investments
shall be selected from time to time by the Trustees or pursuant to standing
instructions from the Trustees to the Administrator, and the Administrator
and/or Paying Agent shall have no liability to the Trust or any Holder or any
other Person with respect to any such Temporary Investment. Any interest or
other income received on any moneys in the Trust Account shall, upon receipt
thereof, be deposited into the Trust Account. Notwithstanding the foregoing, not
more than 5% of the assets of the Trust may be held at any time in the form of
cash and Temporary Investments, and the Trustees shall distribute cash, or
liquidate Temporary Investments and distribute the proceeds thereof, if, when
and to the extent needed to maintain compliance with the foregoing restriction.
SECTION 3.5 EXPENSES. The Trust will pay all expenses incurred in the
operation of the Trust, including, among other things, accounting services,
expenses for legal and auditing services, taxes, costs of printing proxies,
listing fees, if any, stock certificates and shareholder reports, charges of the
Custodian and the Paying Agent, expenses of registering the STRYPES under
Federal and state securities laws, Commission fees, fees and expenses of
Trustees, accounting costs, brokerage costs, litigation and other extraordinary
or non-recurring expenses, mailing and other expenses properly payable by the
Trust.
ARTICLE IV
REDEMPTION
SECTION 4.1 REDEMPTION. The Trustees shall have no right or obligation to
redeem the STRYPES.
ARTICLE V
ISSUANCE OF CERTIFICATES;
REGISTRY; TRANSFER OF STRYPES
SECTION 5.1 FORM OF CERTIFICATE. Each Certificate evidencing STRYPES shall
be countersigned manually or in facsimile by the Managing Trustee and executed
manually by the Paying Agent in substantially the form of Exhibit A hereto with
the blanks appropriately filled in, shall be dated the date of execution and
delivery by the Paying Agent and shall represent a fractional undivided interest
in the Trust, the numerator of which fraction shall be the number of STRYPES set
forth on the face of such Certificate and the
15
denominator of which shall be the total number of STRYPES outstanding at that
time. All STRYPES shall be issued in registered form and shall be numbered
serially. Pending the preparation of definitive Certificates, the Trustees may
execute and the Paying Agent shall authenticate and deliver temporary
Certificates (printed, lithographed, typewritten or otherwise reproduced, in
each case in form satisfactory to the Paying Agent). Temporary Certificates
shall be issuable as registered Certificates substantially in the form of the
definitive Certificates but with such omissions, insertions and variations as
may be appropriate for temporary Certificates, all as may be determined by the
Trustees with the concurrence of the Paying Agent. Every temporary Certificate
shall be executed by the Managing Trustee and be authenticated by the Paying
Agent upon the same conditions and in substantially the same manner, and with
like effect, as the definitive Certificates. Without unreasonable delay the
Managing Trustee shall execute and shall furnish definitive Certificates and
thereupon temporary Certificates may be surrendered in exchange therefor without
charge at each office or agency of the Paying Agent and the Paying Agent shall
authenticate and deliver in exchange for such temporary Certificates definitive
Certificates for a like aggregate number of STRYPES. Until so exchanged, the
temporary Certificates shall be entitled to the same benefits hereunder as
definitive Certificates.
SECTION 5.2 TRANSFER OF STRYPES; ISSUANCE, TRANSFER AND INTERCHANGE OF
CERTIFICATES. STRYPES may be transferred by the Holder thereof by presentation
and surrender of properly endorsed Certificates at the office of the Paying
Agent, accompanied by such documents executed by the Holder or his authorized
attorney as the Paying Agent deems necessary to evidence the authority of the
person making the transfer. Certificates issued pursuant to this Trust Agreement
are interchangeable for one or more other Certificates evidencing an equal
aggregate number of STRYPES and all Certificates issued as may be requested by
the Holder and deemed appropriate by the Paying Agent shall be issued in
denominations of one STRYPES or any multiple thereof. The Paying Agent may deem
and treat the person in whose name any STRYPES shall be registered upon the
books of the Paying Agent as the owner of such STRYPES for all purposes
hereunder and the Paying Agent shall not be affected by any notice to the
contrary. The transfer books maintained by the Paying Agent for the purposes of
this Section 5.2 shall include the name and address of the record owners of the
STRYPES and shall be closed in connection with the dissolution of the Trust
pursuant to Section 8.3 hereof. A sum sufficient to cover any tax or other
governmental charge that may be imposed in connection with any such transfer
shall be paid to the Paying Agent by the Holder. A Holder may be required to pay
a fee for each new Certificate to be issued pursuant to the preceding paragraph
in such amount as may be specified by the Paying Agent and approved by the
Trustees. All Certificates cancelled pursuant to this Trust Agreement may be
voided by the Paying Agent in accordance with the usual practice of the Paying
Agent or in accordance with the instructions of the Trustees; provided, however,
that the Paying Agent shall not be required to destroy cancelled Certificates.
The Paying Agent may adopt other reasonable rules and regulations for the
registration, transfer and tender of STRYPES as it may, in its discretion, deem
necessary.
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SECTION 5.3 REPLACEMENT OF CERTIFICATES In case any Certificate shall
become mutilated or be destroyed, stolen or lost, the Paying Agent shall execute
and deliver a new Certificate in exchange and substitution therefor upon the
Holder's furnishing the Paying Agent with proper identification and satisfactory
indemnity, complying with such other reasonable regulations and conditions as
the Paying Agent may prescribe and paying such expenses and charges, including
any bonding fee, as the Paying Agent may incur or reasonably impose; provided
that if the Trust has dissolved or is in the process of dissolving, the Paying
Agent, in lieu of issuing such new Certificate, may, upon the terms and
conditions set forth herein, make the distributions set forth in Section 8.3(c)
hereof. Any mutilated Certificate shall be duly surrendered and cancelled before
any duplicate Certificate shall be issued in exchange and substitution therefor.
Upon issuance of any duplicate Certificate pursuant to this Section 5.3, the
original Certificate claimed to have been lost, stolen or destroyed shall become
null and void and of no effect, and any bona fide purchaser thereof shall have
only such rights as are afforded under Article 8 of the Uniform Commercial Code
to a Holder presenting a Certificate for transfer in the case of an overissue.
SECTION 5.4 LIMITATION ON LIABILITY. Pursuant to ss.3803(a) of the
Delaware Business Trust Act, 12 Del. C. ss.3801, et seq., the Holders of the
STRYPES shall be entitled to the same limitation of personal liability extended
to stockholders of private corporations for profit organized under the General
Corporation Law of the State of Delaware.
SECTION 5.5 GENERAL PROVISIONS REGARDING THE STRYPES.
(A) The consideration received by the Trust for the issuance of the
STRYPES shall constitute a contribution to the capital of the Trust and shall
not constitute a loan to the Trust.
(B) Upon issuance of the STRYPES as provided in this Trust
Agreement, the STRYPES so issued shall be deemed to be validly issued, fully
paid and non-assessable.
(C) Every person, by virtue of having become a Holder in accordance
with the terms of this Trust Agreement, shall be deemed to have expressly
assented and agreed to the terms of, and shall be bound by, this Trust
Agreement.
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ARTICLE VI
EXECUTION OF THE CONTRACT AND
OTHER TRANSACTION DOCUMENTS
SECTION 6.1 EXECUTION OF THE CONTRACT AND OTHER TRANSACTION DOCUMENTS. The
Contract and other transaction documents shall be countersigned manually or in
facsimile by the Managing Trustee and executed manually by each of the
Contracting Stockholder, AMP, the Escrow Agreement, and the Custodian, as
applicable, and shall be dated the date of execution and delivery by the
Contracting Stockholder.
ARTICLE VII
TRUSTEES
SECTION 7.1 TRUSTEES. The Trust shall have three Trustees who shall
initially be elected by the Initial Trustee. One Trustee shall be the Managing
Trustee and, as such, is authorized to execute documents and instruments on
behalf of the Trust. The Managing Trustee will be appointed by resolution of the
Trustees. Each Trustee shall serve until the next regular annual or special
meeting of Holders called for the purpose of electing Trustees and, then, until
such Trustee's successor is duly elected and qualified. Holders may not cumulate
their votes in the election of Trustees. Each Trustee shall not be considered to
have qualified for the office unless such Trustee shall agree to be bound by the
terms of this Trust Agreement and shall evidence his consent by executing this
Trust Agreement or a supplement hereto.
SECTION 7.2 VACANCIES. Any vacancy in the office of a Trustee may be
filled in compliance with Sections 10 and 16 of the Investment Company Act by
the vote, within 30 days, of the remaining Trustees; provided that if required
by Section 16 of the Investment Company Act, the Trustees shall forthwith cause
to be held as promptly as possible and in any event within 60 days (unless the
Commission by order shall extend such period) of a meeting of Holders for the
purpose of electing Trustees in compliance with Sections 10 and 16 of the
Investment Company Act. Until a vacancy in the office of any Trustee is filled
as provided above, the remaining Trustees in office, regardless of their number,
shall have the powers granted to the Trustees and shall discharge all the duties
imposed upon the Trustees by this Trust Agreement. Election shall be by the
affirmative vote of Holders of a majority of the STRYPES entitled to vote
present in person or by proxy at a special meeting of Holders called for the
purpose of electing any Trustee. Each individual Trustee shall be at least 21
years of age and shall not be under any legal disability. No Trustee who is an
"interested person," as defined in the Investment Company Act, may assume office
if it would cause the composition of the Trustees of the Trust not to be in
compliance with the percentage limitations on interested persons in Section 10
of the Investment Company Act. Trustees need not be Holders. Notice of the
appointment or election of a successor Trustee shall be mailed promptly after
acceptance of such appointment by the successor Trustee to each Holder.
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SECTION 7.3 POWERS. The Trust will be managed solely by the Trustees, who
will, subject to the provisions of Article II and Section 8.6(b) hereof, have
complete and exclusive control over the management, conduct and operation of the
Trust's business, and shall have the rights, powers and authority of a board of
directors of a corporation organized under Delaware law. The Trustees shall have
fiduciary responsibility for the safekeeping and use of all funds and assets of
the Trust and shall not employ, or permit another to employ, such funds or
assets in any manner except for the exclusive benefit of the Trust and except in
accordance with the terms of this Trust Agreement. Subject to the continuing
supervision of the Trustees and as permitted by applicable law, the functions of
the Trust shall be performed by the Custodian, the Paying Agent, the
Administrator and such other entities engaged to perform such functions as the
Trustees may determine, including, without limitation, any or all administrative
functions.
SECTION 7.4 MEETINGS. Meetings of the Trustees shall be held from time to
time upon the call of any Trustee on not less than 48 hours notice (which may be
waived by any or all of the Trustees in writing either before or after such
meeting or by attendance at the meeting unless the Trustee attends the meeting
for the express purpose of objecting to the transaction of any business on the
ground that the meeting has not been lawfully called or convened). The Trustees
shall act either by majority vote of the Trustees present at a meeting at which
at least a majority of the Trustees then in office are present or by a unanimous
written consent of the Trustees without a meeting. Except as otherwise required
under the Investment Company Act, all or any of the Trustees may participate in
a meeting of the Trustees by means of a conference telephone call or similar
communications equipment by means of which all persons participating in the
meeting can hear each other, and participation in a meeting pursuant to such
communications equipment shall constitute presence in person at such meeting.
SECTION 7.5 RESIGNATION AND REMOVAL. Any Trustee may resign and be
discharged of the Trust created by the Trust Agreement by executing an
instrument in writing resigning as Trustee, filing the same with the
Administrator and sending notice thereof to the remaining Trustees, and such
resignation shall become effective immediately unless otherwise specified
therein. Any Trustee may be removed in the event of incapacity by vote of the
remaining Trustees and for any reason by written declaration or vote of the
Holders of more than 66 2/3% of the outstanding STRYPES, notice of which vote
shall be given to the remaining Trustees and the Administrator. The resignation,
removal or failure to reelect any Trustee shall not cause the termination of the
Trust.
SECTION 7.6 LIABILITY. The Trustees shall not be liable to the Trust or
any Holder for any action taken or for refraining from taking any action except
in the case of willful misfeasance, bad faith, gross negligence or reckless
disregard of the duties of their office. Specifically, without limitation, the
Trustees shall not be responsible for or in respect of the recitals herein or
the validity or sufficiency of this Trust Agreement or for the due execution
hereof by any other Person, or for or in respect of the validity or sufficiency
of STRYPES or Certificates representing STRYPES and shall in no event assume or
incur any
19
liability, duty or obligation to any Holder or to any other Person, other than
as expressly provided for herein. The Trustees may employ agents, attorneys,
administrators, accountants and auditors, and shall not be answerable for the
default or misconduct of any such Persons if such Persons shall have been
selected with reasonable care. Action in good faith may include action taken in
good faith in accordance with an opinion of counsel. In no event shall any
Trustee be personally liable for any expenses with respect to the Trust subject
to Section 8.6(c). Each Trustee shall be indemnified by the Trust with respect
to any claim, liability or loss arising out of or in connection with such
Trustee's acting as Trustee of the Trust and with respect to all reasonable
costs and expenses (including the reasonable costs of investigation, preparation
for and defense of legal and/or administrative proceedings relating to a claim
against such Trustee and reasonable attorneys' fees and disbursements) incurred
in connection with any such claim, liability or loss, except in the case of
willful misfeasance, bad faith, gross negligence or reckless disregard of the
duties of his office. Notwithstanding the foregoing, it is understood that the
Trust shall not, in respect of the legal expenses of any Trustee in connection
with any proceeding or related proceedings in the same jurisdiction, be liable
for the fees and expenses of more than one separate firm (in addition to any
local counsel).
SECTION 7.7 COMPENSATION. Each Trustee, other than a Trustee who is a
director, officer or employee of the Sponsor, the Underwriter, or the
Administrator or any affiliate thereof, shall receive a one-time, up-front fee
of $10,800, in respect of its annual fee and anticipated out-of-pocket expenses.
In addition, the Managing Trustee shall receive an additional one-time, up-front
fee of $3,600 for serving in such capacity. The Trustees will not receive any
pension or retirement benefits. In the event of the resignation or removal of a
Trustee, such Trustee shall remit to the Trust the portion of its fee ratable
for the period from the day of such resignation or removal through the Exchange
Date.
ARTICLE VIII
MISCELLANEOUS
SECTION 8.1 MEETINGS OF HOLDERS. The Trustees shall not hold annual or
regular meetings of Holders except as set forth herein and except as may be
required under the rules of the New York Stock Exchange. A special meeting may
be called at any time by the Trustees or upon petition of Holders of not less
than 51% of the STRYPES outstanding (unless substantially the same matter was
voted on during the preceding 12 months), and shall be called as required by the
Investment Company Act and the rules and regulations thereunder, including,
without limitation, when requested by the Holders of not less than 10% of the
STRYPES outstanding for the purposes of voting upon the question of the removal
of any Trustee or Trustees. The Trustees shall establish, and notify the Holders
in writing of, the record date for each such meeting which shall be not less
than 10 nor more than 50 days before the meeting date. Holders at the close of
business on the record date will be entitled to vote at the meeting. The
Administrator shall, as soon as possible after any such record date (or prior to
such record date if appropriate), mail by first class mail to each Holder a
notice of
20
meeting and a proxy statement and form of proxy in the form approved by the
Trustees and complying with the Investment Company Act and the rules and
regulations thereunder. Except as otherwise specified herein, in the Prospectus
(including, without limitation, changes to the Trust's fundamental policies set
forth in the Prospectus) or in any provision of the Investment Company Act and
the rules and regulations thereunder, any action may be taken by vote of Holders
of a majority of the STRYPES outstanding present in person or by proxy if
Holders of a majority of STRYPES outstanding on the record date are so
represented. Each STRYPES shall have one vote and may be voted in person or by
duly executed proxy. Any proxy may be revoked by notice in writing, by a
subsequently dated proxy or by voting in person at the meeting, and no proxy
shall be valid after eleven months following the date of its execution. Each
STRYPES shall have one vote and may be voted in person or by duly executed
proxy; provided, however, that any investment company registered under the
Investment Company Act of 1940, as amended (the "1940 Act"), owning STRYPES in
excess of the limits imposed by Sections 12(d)(1)(A)(i) and 12(d)(1)(C) of the
1940 Act must vote their STRYPES in proportion to the vote of all other Holders
that are not investment companies registered under the 1940 Act.
SECTION 8.2 BOOKS AND RECORDS; REPORTS. (a) The Trustees shall keep a
certified copy or duplicate original of this Trust Agreement on file at the
office of the Trust and the office of the Administrator available for inspection
at all reasonable times during its usual business hours by any Holder. The
Trustees shall keep proper books of record and account for all the transactions
under this Trust Agreement at the office of the Trust and the office of the
Administrator, and such books and records shall be open to inspection by any
Holder at all reasonable times during usual business hours. The Trustees shall
retain all books and records in compliance with Section 31 of the Investment
Company Act and the rules and regulations thereunder.
(b) With each payment to Holders the Paying Agent shall set forth, either
in the instruments by means of which payment is made or in a separate statement,
the amount being paid from the Trust Account expressed as a dollar amount per
STRYPES and the other information required under Section 19 of the Investment
Company Act and the rules and regulations thereunder. The Trustees shall prepare
and file or distribute reports as required by Section 30 of the Investment
Company Act and the rules and regulations thereunder. The Trustees shall prepare
and file such reports as may from time to time be required to be filed or
distributed to Holders under any applicable state or Federal statute or rule or
regulation thereunder, and shall file such tax returns as may from time to time
be required under any applicable state or Federal statute or rule or regulation
thereunder. One of the Trustees shall be designated by resolution of the
Trustees to make the filings and give the notices required by Rule 17g-1 under
the Investment Company Act.
(c) In calculating the net asset value of the Trust as required by the
Investment Company Act, (i) the U.S. Treasury Securities will be valued at the
mean between the last current bid and asked prices or, if quotations are not
available, as determined in good faith by the Trustees, (ii) short-term
investments having a maturity of 60 days or less will be valued at
21
cost with accrued interest or discount earned included in interest receivable
and (iii) the Contract will be valued at the mean of the bid prices received by
the Administrator from at least three independent broker-dealer firms
unaffiliated with the Trust to be named by the Trustees who are in the business
of making bids on financial instruments similar to the Contract and with terms
comparable thereto.
SECTION 8.3 DISSOLUTION. (a) The Trust created hereby shall dissolve, and
its affairs be wound up, upon the earliest of (i) the date 90 days after the
execution of this Trust Agreement if (x) the STRYPES have not theretofore been
issued or (y) the net worth of the Trust is not at least $100,000 at such time,
(ii) the date five Business Days after the Closing Date, (iii) the date which is
21 years less 91 days after the death of the last survivor of all of the
descendants of Xxxxxx X. Xxxxxxx living on the date hereof, and (iv) any time
after the occurrence of a Dissolution Event or the Settlement Date under the
Contract, upon the unanimous vote or consent of the Holders. The Trust is
irrevocable, the Sponsor has no right to withdraw any assets constituting a
portion of the Trust Estate, and the dissolution of the Sponsor shall not
operate to dissolve the Trust. The death or incapacity of any Holder shall not
operate to terminate this Trust Agreement, nor entitle his legal representatives
or heirs to claim an accounting or to take any action or proceeding in any court
for a partition or winding up of the Trust, and shall not otherwise affect the
rights, obligations and liabilities of the parties hereto.
(b) Written notice of any dissolution shall be sent to Holders specifying
the record date for any distribution to Holders, the amount distributable
(including, if applicable, the number or amount of each type of Reference
Security and other property constituting part of the Reference Property) with
respect to each STRYPES and the time of dissolution as determined by the
Trustees, upon which the books maintained by the Paying Agent pursuant to
Section 5.2 hereof shall be closed. Any such notice shall be provided by mail,
sent to each Holder at such Holder's address as it appears on the books of the
Paying Agent, first class, postage prepaid not less than nine days prior to the
date on which such distribution is to be made. At or prior to the mailing of
such notice, the Administrator shall publish a public announcement in The Wall
Street Journal or another daily newspaper of national circulation.
(c) Subject to any applicable provisions of law, for purposes of
dissolution under Sections 8.3(a)(ii), (iii) and (iv) hereof, within five
Business Days after such dissolution, the Trustees shall effect the sale of any
remaining property of the Trust (other than any Reference Property received
pursuant to the Contract and cash), and the Paying Agent shall distribute pro
rata as soon as practicable thereafter to each Holder, upon surrender for
cancellation of its Certificates, its interest in the Trust Estate. Together
with the distribution to the Holders, the Trustees shall furnish the Holders
with a final statement as of the date of the distribution of the amount
distributable with respect to each STRYPES. Any sale of the Trust Estate made
under this Section 8.3(c) shall be made through such executing brokers or to
such dealers as the Trustees, seeking best price and execution for the Trust,
shall designate in writing to the Paying Agent, taking into account such factors
as price, commission, size of order, difficulty of execution and brokerage skill
required.
22
(d) Notwithstanding anything to the contrary contained herein, no
fractional units of any Reference Security or amount of each type of Reference
Security and other property constituting part of the Reference Property, or
fractional interests of any Reference Property other than cash or a Reference
Security, will be distributed to Holders pursuant to Section 8.3(c) hereof upon
dissolution of the Trust. All fractional units or interests to which Holders
would otherwise be entitled upon dissolution of the Trust will be aggregated and
liquidated by the Contracting Stockholder who shall be notified by the
Administrator pursuant to delegated authority by the Trustees and, in lieu of
the fractional units or interests to which a Holder would otherwise have been
entitled in respect of the total number of STRYPES held by such Holder, such
Holder will receive its pro rata portion of the proceeds from such liquidation
(net of any brokerage or related expenses).
SECTION 8.4 AMENDMENT AND WAIVER. (a) This Trust Agreement other than
8.3(a)(iv) or Section 8.6(b) may be amended from time to time by the Trustees
for any purpose prior to the issuance and sale to the Underwriter of the STRYPES
and thereafter without the consent of any of the Holders (i) to cure any
ambiguity or to correct or supplement any provision contained herein or therein
which may be defective or inconsistent with any other provision contained herein
or therein; (ii) to change any provision hereof or thereof as may be required by
applicable law or the Commission or any successor governmental agency exercising
similar authority; or (iii) to make such other provisions in regard to matters
or questions arising hereunder or thereunder as shall not materially adversely
affect the interests of the Holders (as determined in good faith by the
Trustees, who may rely on an opinion of counsel).
(b) This Trust Agreement other than 8.3(a)(iv) or Section 8.6(b) may also
be amended from time to time by the Trustees (or the performance of any of the
provisions of the Trust Agreement other than 8.3(a)(iv) or Section 8.6(b) may be
waived) with the consent by the required vote of the Holders in accordance with
Section 8.1 hereof; provided that this Trust Agreement may not be amended (i)
without the consent by vote of the Holders of all STRYPES then outstanding, so
as to increase the number of STRYPES issuable hereunder above the number of
STRYPES specified in Section 2.5(c) hereof or such lesser number as may be
outstanding at any time during the term of this Trust Agreement, (ii) to reduce
the interest in the Trust represented by STRYPES without the consent of the
Holders of such STRYPES, (iii) if such amendment is prohibited by the Investment
Company Act or other applicable law or (iv) without the consent by vote of the
Holders of all STRYPES then outstanding, if such amendment would effect a change
in Section 2.4 or 2.8 hereof in the voting requirements set forth in Section 8.1
hereof or this Section 8.4.
(c) Any of the agreements referred to in Section 2.5(a) hereof may be
amended from time to time by the Trustees and the other parties thereto for any
purpose without the consent of any of the Holders.
(d) Promptly after the execution of any amendment, the Trustees shall
furnish written notification of the substance of such amendment to each Holder.
23
(e) Notwithstanding subsections (a) and (b) of this Section 8.4, no
amendment hereof shall permit the Trust, the Trustees, the Administrator, the
Paying Agent, the Escrow Agent or the Custodian to take any action or direct or
permit any Person to take any action that (i) would vary the investment of
Holders within the meaning of Treasury Regulation Section 301.7701-4(c), or (ii)
would or could cause the Trust not to be a "grantor trust" under the Code.
SECTION 8.5 ACCOUNTANTS. (a) The Trustees shall, in accordance with
Section 30 of the Investment Company Act, file annually with the Commission such
information, documents and reports as investment companies having securities
registered on a national securities exchange are required to file annually
pursuant to Section 13(a) of the Exchange Act and the rules and regulations
issued thereunder. The Trustees shall transmit to the Holders, at least
semi-annually, the reports required by Section 30(d) of the Investment Company
Act and the rules and regulations thereunder, including, without limitation, a
balance sheet accompanied by a statement of the aggregate value of investments
on the date of such balance sheet, a list showing the amounts and values of such
investments owned on the date of such balance sheet, and a statement of income
for the period covered by the report. Financial statements contained in such
annual reports shall be accompanied by a certificate of independent public
accounts based upon an audit not less in scope or procedures than that which
independent public accountants would ordinarily make for the purpose of
complying with generally accepted auditing standards and shall contain such
information as the Commission may prescribe. Each such report shall state that
such independent public accountants have verified investments owned, either by
actual examination or by receipt of a certificate from the Custodian.
(b) The independent public accountants referred to in subsection (a) above
shall be selected at a meeting held within 30 days before or after the beginning
of the fiscal year by the vote, cast in person, of a majority of the Trustees
who are not "interested persons" as defined in the Investment Company Act and
such selection shall be submitted for ratification at the first meeting of
Holders to be held as set forth in Section 8.1 hereof, and thereafter as
required by the Investment Company Act and the rules and regulations thereunder.
The employment of any independent public accountant for the Trust shall be
conditioned upon the right of the Holders by a vote of the lesser of (i) 67% or
more of the STRYPES present at a special meeting of Holders, if Holders of more
than 50% of STRYPES outstanding are present or represented by proxy at such
meeting or (ii) more than 50% of the STRYPES outstanding to terminate such
employment at any time without penalty.
(c) The foregoing provisions of this Section 8.5 are in addition to any
applicable requirements of the Investment Company Act and the rules and
regulations thereunder.
SECTION 8.6 NATURE OF HOLDER'S INTEREST. (a) Until there is a Dissolution
Event or an obligation of the Seller to deliver the Reference Property on the
occurrence of the Settlement Date under the Contract, each Holder holds at any
given time a beneficial interest in the Trust Estate (including the Contract)
but does not have any right to
24
take possession of any portion of the Trust Estate (including the Contract).
Until that time, each Holder has expressly waived any right he may have under
any rule of law, or the provisions of any statute, or otherwise, to require the
Trustees at any time to account, in any manner other than as expressly provided
in this Trust Agreement for the Reference Property, the Contract, the U.S.
Treasury Securities or other assets or moneys from time to time received, held
and applied by the Trustees hereunder. No Holder shall have any right except as
provided herein to control or determine the operation and management of the
Trust or the obligations of the parties hereto. Nothing set forth herein or in
the Certificates representing STRYPES shall be construed to constitute the
Holders from time to time as partners or members of an association.
(b) On the occurrence of a Dissolution Event or the Settlement Date under
the Contract, each Holder is Absolutely Entitled as against the Trustees to the
Reference Property being the Contract Consideration required to be delivered by
the Contracting Stockholder and/or the AMP under the Contract. The Trustee must
act at the direction of the Holders to distribute the Reference Property
pro-rata to the Holders or as the Holders direct or otherwise deal with the
Reference Property as the Holders direct from time to time.
(c) On the occurrence of a Dissolution Event or the Settlement Date under
the Contract, the Trustees shall not be indemnified by the Trust and each of
them hereby waives any such right to indemnity (whether this indemnity arises in
accordance with Section 7.6 hereof or under the operation of law or otherwise)
nor shall any Trustee be indemnified out of the Reference Property for its
expenses and other liabilities properly occurred under Section 3.5 hereof or
otherwise under this Agreement. The prohibition on indemnification described in
the immediately preceding sentence shall not, however, limit the right of a
Trustee to be indemnified or compensated in accordance with the terms of the
Fund Indemnity Agreement and Fund Expense Agreement.
SECTION 8.7 DELAWARE LAW TO GOVERN. This Trust Agreement is executed and
delivered in the State of Delaware, and all laws or rules of construction of the
State of Delaware, without regard to principles of conflict of laws, shall
govern the rights of the parties hereto and the Holders and the construction,
validity and effect of the provisions hereof.
SECTION 8.8 NOTICES Any notice, demand, direction or instruction to be
given to the Sponsor hereunder shall be in writing and shall be duly given if
mailed or delivered to ML IBK Positions, Inc. at World Financial Center, Xxxxx
Xxxxx, Xxx Xxxx, Xxx Xxxx 00000, or at such other address as shall be specified
by the Sponsor to the other parties hereto in writing. Any notice, demand,
direction or instruction to be given to the Trust and the Trustees hereunder
shall be in writing and shall be duly given if mailed or delivered to the Trust
c/o 000 Xxxxxxx Xxxxxx, Xxxxx 000, Xxxxxx, Xxxxxxxx 00000, and to each Trustee
at such Trustee's address set forth beneath its signature below, or such other
address as shall be specified to the other parties hereto by such party in
writing. Any notice to be given to a Holder shall be duly given if mailed, first
class postage prepaid, or by such other substantially
25
equivalent means as the Trustees may deem appropriate, or delivered to such
Holder at the address of such Holder appearing on the registry of the Paying
Agent.
SECTION 8.9 SEVERABILITY. If any one or more of the covenants, agreements,
provisions or terms of this Trust Agreement shall be for any reason whatsoever
held invalid, then such covenants, agreements, provisions or terms shall be
deemed severable from the remaining covenants, agreements, provisions and terms
of this Trust Agreement and shall in no way affect the validity or
enforceability of the other provisions of this Trust Agreement or of the
Certificates, or the rights of the Holders thereof.
SECTION 8.10 COUNTERPARTS This Trust Agreement may be executed in several
counterparts, each of which shall be an original and all of which shall
constitute but one and the same instrument.
SECTION 8.11 SUCCESSORS AND ASSIGNS. Whenever in this Trust Agreement any
of the parties hereto is named or referred to, the successors and assigns of
such party shall be deemed to be included, and all covenants and agreements in
this Trust Agreement by the Sponsor and Trustees shall bind and inure to the
benefit of their respective successors and assigns, whether or not so expressed.
26
IN WITNESS WHEREOF, the parties hereto have caused this Trust Agreement to
be duly executed.
ML IBK POSITIONS, INC.
By
----------------------------------
Name:
Title:
TRUSTEES:
--------------------------------------
Name: Xxxxxx X. Xxxxxxx
Address: 000 Xxxxxxx Xxxxxx, Xxxxx 000
Xxxxxx, Xxxxxxxx 00000
--------------------------------------
Name: Xxxxxxx X. Xxxxxx III
Address: 000 Xxxxxxx Xxxxxx, Xxxxx 000
Xxxxxx, Xxxxxxxx 00000
--------------------------------------
Name: Xxxxx X. X'Xxxxx
Address: 000 Xxxxxxx Xxxxxx, Xxxxx 000
Xxxxxx, Xxxxxxxx 00000
Schedule I
U.S. TREASURY SECURITIES
All terms specified are for stripped principal or interest components of
U.S. Treasury debt obligations.
Maturity Par Amount CUSIP No.
------------------ ------------- -----------------------------------------
Annex A
Form of Bank ADS Request/Revocation
WBK STRYPES(sm) TRUST
WBK STRYPES Trust
x/x Xxx Xxxx xx Xxx Xxxx
000 Xxxxxxx Xxxxxx, Xxxxx 00 Xxxx
Xxx Xxxx, Xxx Xxxx 00000
Dear Sirs:
[The undersigned, being the owner of the number of STRYPES specified below
issued by the Trust referred to above, hereby directs and instructs The Bank of
New York, as Administrator of the WBK STRYPES Trust (the "Trust"), upon the
Exchange Date or upon the occurrence of a Dissolution Event, as described in the
Trust Prospectus, dated September , 1997, to deliver any ordinary shares, par
value A$1.00 per share, of Westpac Banking Corporation (the "Bank Shares") to
which the undersigned is entitled pursuant to said STRYPES, to the depositary
(the "Depositary") for American Depositary Shares evidencing such Bank Shares
("ADSs") and to direct the Depositary on the behalf of the undersigned to
register the ADSs as set forth below.
We acknowledge and agree that, upon the delivery of the Bank Shares to the
Depositary with the instructions as described above, you shall have no further
liability for the undersigned as owner of the STRYPES. The undersigned shall
cease to be the beneficial owner of the Trust.](1)
[The undersigned, being the owner of the number of STRYPES specified below
issued by the Trust referred to above, hereby revokes the previous instructions
to The Bank of New York regarding delivery of any ordinary shares of Westpac
Banking Corporation (the "Bank Shares") relating to said STRYPES in the form of
American Depositary Shares and request that such Bank Shares be delivered as set
forth below](2)
Very truly yours,
-----------------------------
Name of Transferee:
Transferee's DTC Participant:
By:
Date:
Number of STRYPES owned:
Please register the [ADSs](1) [Bank Ordinary Shares](2) as follows:
Name:
Address:
Taxpayer ID Number:
----------
(SM) Service xxxx of Xxxxxxx Xxxxx & Co., Inc
(1) Strike out if this is a revocation letter.
(2) Strike out if this is a request letter.
Exhibit A
WBK STRYPES TRUST
NO. ____________________ STRYPES(MM) CUSIP NO. _______
THIS CERTIFIES THAT ________ IS THE RECORD OWNER OF _______ FULLY PAID AND
NON-ASSESSABLE STRYPES, PAR VALUE A $1.00 PER STRYPES, OF WBK STRYPES TRUST
CONSTITUTING FRACTIONAL UNDIVIDED BENEFICIAL INTERESTS IN WBK STRYPES TRUST, A
TRUST CREATED UNDER THE LAWS OF THE STATE OF DELAWARE PURSUANT TO AN AMENDED AND
RESTATED TRUST AGREEMENT (THE "TRUST AGREEMENT") BETWEEN ML IBK POSITIONS, INC.
AND THE TRUSTEES NAMED THEREIN AND THE HOLDERS (AS DEFINED THEREIN). THIS
CERTIFICATE IS ISSUED UNDER AND IS SUBJECT TO THE TERMS, PROVISIONS AND
CONDITIONS OF THE TRUST AGREEMENT, AS THE SAME MAY BE AMENDED FROM TIME TO TIME,
TO WHICH THE HOLDER OF THIS CERTIFICATE BY VIRTUE OF THE ACCEPTANCE HEREOF
ASSENTS AND IS BOUND, A COPY OF WHICH TRUST AGREEMENT IS AVAILABLE AT THE OFFICE
OF THE TRUST'S PAYING AGENT,___________________________________________________
_____________________. THIS CERTIFICATE IS TRANSFERABLE AND INTERCHANGEABLE BY
THE REGISTERED OWNER IN PERSON OR BY HIS DULY AUTHORIZED ATTORNEY AT THE OFFICE
OF THE PAYING AGENT UPON SURRENDER OF THIS CERTIFICATE PROPERLY ENDORSED OR
ACCOMPANIED BY A WRITTEN INSTRUMENT OF TRANSFER AND ANY OTHER DOCUMENTS THAT THE
PAYING AGENT MAY REQUIRE FOR TRANSFER, IN FORM SATISFACTORY TO THE PAYING AGENT
AND PAYMENT OF THE FEES AND EXPENSES PROVIDED IN THE TRUST AGREEMENT.
THIS CERTIFICATE IS NOT VALID UNLESS MANUALLY COUNTERSIGNED BY THE PAYING
AGENT.
WITNESS THE FACSIMILE SIGNATURE OF THE MANAGING TRUSTEE.
DATED:
WBK STRYPES TRUST
By
---------------------------------------
Xxxxxx X. Xxxxxxx
Managing Trustee
COUNTERSIGNED:
as Paying Agent
By
------------------------------
Authorized Signature
----------
(MM) Service Xxxx of Xxxxxxx Xxxxx & Co., Inc.
THIS CERTIFICATE IS ISSUED UNDER AND IS SUBJECT TO THE TERMS, PROVISIONS AND
CONDITIONS OF THE AMENDED AND RESTATED TRUST AGREEMENT BETWEEN ML IBK POSITIONS,
INC. AND THE TRUSTEES NAMED THEREIN AND THE HOLDERS (AS DEFINED THEREIN) TO
WHICH THE HOLDER OF THIS CERTIFICATE BY VIRTUE OF THE ACCEPTANCE HEREOF ASSENTS
AND IS BOUND.
The following abbreviations, when used in the inscription on the face of
this certificate, shall be construed as though they were written out in full
according to applicable laws or regulations:
TEN COM--as tenants in common UNIF GIFT MIN ACT--___Custodian___
TEN ENT--as tenants by the entireties (Cust) (Minor)
JT TEN-- as joint tenants with right under Uniform Gifts to
of survivorship and not as Minors Act _________
tenants in common (State)
Additional abbreviations also may be used though not in the above list.
For value received, _______________________ hereby sell, assign and transfer
unto
Please insert social securities or
other identifying number of assignee
------------------------------------
------------------------------------
--------------------------------------------------------------------------------
-------
(Please Print or Typewrite Name and Address, Including Zip Code, of Assignee)
______________ STRYPES of fractional undivided beneficial interest represented
by the within Certificate, and do hereby irrevocably constitute and appoint
_________ Attorney to transfer the said STRYPES on the books of the within-named
Trust with full power of substitution in the premises.
Dated:
----------------------------
-------------------------------------------
NOTICE: The Signature to this assignment must correspond
with the name as written upon the face of the
Certificate in every particular, without
alteration or enlargement or any change
whatsoever.
Signature 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-15.
