STANDARD TERMS FOR DEPOSITARY TRUST AGREEMENTS agreed to as of ________________,
2004 (these "Standard Terms"), between CANTOR XXXXXXXXXX & CO., a New York
general partnership (the "Sponsor") and THE BANK OF NEW YORK, a New York State
banking corporation, as trustee (the "Trustee").
W I T N E S S E T H:
WHEREAS, from time to time, the Sponsor and the Trustee may enter into one or
more depositary trust agreements providing for the deposit with the Trustee of
specified Securities (as hereinafter defined), the creation of Depositary Trust
Receipts representing the Securities so deposited and the execution and delivery
of certificates evidencing the Depositary Trust Receipts; and
WHEREAS, the Sponsor and the Trustee wish to establish the general terms and/or
conditions of such depositary trust agreements and the form of the certificates
evidencing Depositary Trust Receipts;
NOW, THEREFORE, in consideration of the premises and the mutual covenants
contained in these Standard Terms, the parties hereby agree as follows:
ARTICLE 1
DEFINITIONS AND ASSUMPTIONS
SECTION 1.1 DEFINITIONS. Except as otherwise specified in these Standard Terms
or in the applicable Depositary Trust Agreement or as the context may otherwise
require, the following terms have the respective meanings set forth below for
all purposes of these Standard Terms and the applicable Depositary Trust
Agreement.
"Beneficial Owner" means any Person owning a beneficial interest in any Receipt.
"Closing Date" means the day on which the initial deposit of Securities of any
given Trust is to be made, which date may be specified in the applicable
Depositary Trust Agreement.
"Commission" means the Securities and Exchange Commission of the United States
or any successor governmental agency in the United States.
"Deliver" means (a) when used with respect to Securities, either (i) one or more
book-entry transfers of such Securities to an account at DTC designated by the
Person entitled to such delivery for further credit as specified by such Person
or (ii) in the case of Securities for which DTC book-entry settlement is not
available, the delivery of
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certificates evidencing such Securities to the Person entitled to such delivery,
duly endorsed for transfer or accompanied by proper instruments of transfer and
(b) when used with respect to Receipts, either (i) one or more book-entry
transfers of Receipts to an account at DTC designated by the Person entitled to
such delivery for further credit as specified by such Person or (ii) in the
event DTC ceases to make its book-entry settlement system available for the
Receipts, execution and delivery at the office of the Trustee of one or more
certificates evidencing such Receipts.
"Depositary Trust Agreement" means, as provided in Section 2.1, a depositary
trust agreement entered into by the Sponsor and the Trustee pursuant to these
Standard Terms which incorporates by reference these Standard Terms, as the same
may be modified from time to time, in accordance with the terms hereof.
"Depositor" means any Person who is an accountholder at DTC and who deposits
Securities into the Trust, either for its own account or on behalf of another
Person who is the owner or beneficial owner of such Securities, or any person
who is not an accountholder at DTC but who has arranged for the deposit of
Securities with the Trust through DTC in a manner satisfactory to the Trustee.
"Depositor Order" means a written order or request signed in the name of the
Sponsor or any other Depositor, as applicable.
"DTC" means The Depository Trust Company, its nominees and their respective
successors.
"Exchange Act" means the Securities Exchange Act of 1934, as amended.
"Extraordinary Trust Expenses" means third party fees and other direct out of
pocket expenses reasonably incurred by the Trustee on behalf of the Trust
including, without limitation, (i) such expenses incurred in connection with
legal, tax, or accounting advice relating to matters arising hereunder, the
preparation and filing of any governmental or regulatory reports or tax
documents on behalf of the Trust, and any expenses incurred in protecting or
defending any action against the Trust, but (ii) excluding Trust Expenses.
"Investment Company Act" means the Investment Company Act of 1940, as amended.
"Issuance Denomination" is defined in Section 2.4(a), subject to increase as
provided in Sections 4.3(a) and 4.8.
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"Nasdaq" means the National Association of Securities Dealers Automated
Quotations system.
"Owner" means the Person in whose name a Receipt is registered in the books of
the Trustee maintained for that purpose.
"Person" means any individual, limited liability company, corporation,
partnership, joint venture, association, joint stock company, trust (including
any trust beneficiary), unincorporated organization or government or any agency
or political subdivision thereof.
"Receipt" means a depositary trust receipt which is issued under the Depositary
Trust Agreement and which represents the Owner's right to receive the Underlying
Securities which must be deposited into the Trust for issuance of a Receipt plus
any other Underlying Securities received by the Trustee with respect to such
Underlying Securities and held by the Trustee under the Depositary Trust
Agreement at such time. The Trustee shall only accept for deposit whole
Securities and shall not issue Receipts except to the extent such Receipts
represent, in the aggregate, whole Underlying Securities.
"Registrar" means any bank or trust company, which shall be appointed to
register Receipts and transfers of Receipts as herein provided.
"Restricted Securities" means Securities, or Receipts representing such
Securities, which are acquired directly or indirectly from the issuer or its
affiliates (as defined in Rule 144 under the Securities Act) in a transaction or
chain of transactions not involving any public offering, or which are held by an
officer or director (or person performing similar functions) or other affiliate
of the issuer, or which would require registration under the Securities Act in
connection with the public offer and sale thereof in the United States, or which
are subject to other restrictions on sale or deposit under the federal
securities laws of the United States, a shareholder agreement or the corporate
documents of the issuer.
"Round Lot" means 100 Receipts.
"Securities" means those securities which must be deposited in exchange for
issuance of Receipts.
"Securities Act" means the Securities Act of 1933, as amended.
"Securities Issuer" means, as of any time, the issuer of a class of Securities.
"Securities Registrar" means the entity that presently carries out the duties of
registrar for any Securities or any successor as registrar for any Securities
and any other appointed agent of a Securities Issuer for the transfer and
registration of Securities.
"Sponsor" means Cantor Xxxxxxxxxx & Co., a New York general partnership, or its
successor.
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"Surrender" means, when used with respect to Receipts, (a) one or more
book-entry transfers of Receipts to the DTC account of the Trustee or (b)
surrender to the Trustee at its office of one or more certificates evidencing
such Receipts, in each case in a Round Lot or an integral multiple thereof.
"Trust" means the trust entity created by the Depositary Trust Agreement.
"Trust Expenses" means the customary and ordinary expenses incurred by the
Trustee on behalf of the Trust, including direct out of pocket expenses incurred
in connection therewith.
"Trustee" means Bank of New York, a New York banking corporation, in its
capacity as Trustee under the Depositary Trust Agreement, or any successor as
Trustee thereunder.
"Underlying Debt Securities" means, as of any time, the U.S. Treasury debt
securities identified in the applicable Depositary Trust Agreement required to
be deposited in the Trust for the issuance of Receipts.
"Underlying Equity Security" means, as of any time, the equity security
identified in the applicable Depositary Trust Agreement required to be deposited
in the Trust for the issuance of Receipts.
"Underlying Securities" means, as of any time, Underlying Debt Securities of
each of the classes and in the quantities required by the applicable Depositary
Trust Agreement, and the Underlying Equity Security in the quantity required by
the applicable Depositary Trust Agreement, to be deposited in the Trust for the
issuance of Receipts and which are at such time deposited under the applicable
Depositary Trust Agreement and any other securities, property or cash received
by the Trustee in respect thereof and at such time held hereunder.
"Underwriters" means the entities identified in the prospectus relating to the
Receipts.
SECTION 1.2 RULES OF CONSTRUCTION. Unless the context otherwise requires:
(i) an accounting term not otherwise defined has the meaning assigned
to it in accordance with generally accepted accounting principles as in effect
in the United States from time to time;
(ii) "or" is not exclusive;
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(iii) the words "herein", "hereof", "hereunder" and other words of
similar import refer to these Standard Terms or the Depositary Trust Agreement
as a whole and not to any particular Article, Section or other subdivision;
(iv) "including" means including without limitation; and
(v) words in the singular include the plural and words in the plural
include the singular.
ARTICLE 2
FORM OF RECEIPTS, DEPOSIT OF SECURITIES, DELIVERY,
REGISTRATION OF TRANSFER AND SURRENDER OF RECEIPTS
SECTION 2.1 DEPOSITARY TRUST AGREEMENTS. Each Depositary Trust Agreement entered
into between the Sponsor and the Trustee for the purposes set forth herein shall
be in substantially the form of Exhibit A to these Standard Terms and shall
provide that these Standard Terms shall be incorporated by reference into, and
form a part of, such Depositary Trust Agreement.
SECTION 2.2 CREATION AND DECLARATION OF TRUSTS; DEPOSIT OF SECURITIES. (a) From
time to time after the date of the Depositary Trust Agreement, a Depositor may
deposit with the Trustee, during the Trustee's regular business hours,
Securities of each of the classes and in the quantities necessary to create
Receipts in accordance with Section 2 of the Depositary Trust Agreement in
effect at the time of deposit by Delivery of such Securities to the Trustee.
Unless otherwise specified in the Depositary Trust Agreement, such deposit shall
include all cash dividends, interest payments and distributions in respect of
such Securities payable to the Trustee, as holder, on a record date occurring on
or after the date of the related deposit.
(b) The Trustee shall only accept for deposit whole Securities and
shall not issue Receipts except to the extent such Receipts represent, in the
aggregate, whole Underlying Securities.
(c) The Trust shall not engage in any business or activities other than
those required or authorized by these Standard Terms or incidental and necessary
to carry out
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the duties and responsibilities set forth in the Depositary Trust Agreement.
Other than issuance of the Receipts, the Trust shall not issue or sell any
certificates or other obligations or otherwise incur, assume or guarantee any
indebtedness for money borrowed.
(d) Anything herein to the contrary notwithstanding, the Trustee does
not assume any of the duties, responsibilities, obligations or liabilities of
the Sponsor or any other Depositor in respect of the Underlying Securities.
(e) Underlying Securities shall be held by the Trustee at such place
and in such manner as the Trustee shall determine.
SECTION 2.3 ACCEPTANCE BY TRUSTEE. The Trustee will hold the Underlying
Securities for the benefit of the Owners for the purposes, and subject to and
limited by the terms and conditions, set forth in these Standard Terms and the
applicable Depositary Trust Agreement.
SECTION 2.4 FORM AND TRANSFERABILITY OF RECEIPTS. (a) The certificates
evidencing Receipts shall be substantially in the form set forth in Exhibit B
annexed to these Standard Terms, with appropriate insertions, modifications and
omissions, as hereinafter provided or as may be provided in the Depositary Trust
Agreement. The issuance denominations of a certificate shall be any integral
multiple of a Round Lot of Receipts, subject to increase or decrease as provided
in Sections 4.3(a) and 4.8 (such denominations, the "Issuance Denominations").
No Receipt shall be entitled to any benefits under the Depositary Trust
Agreement or be valid or obligatory for any purpose unless a certificate
evidencing such Receipt shall have been executed by the Trustee by the manual or
facsimile signature of a duly authorized signatory of the Trustee and, if a
Registrar (other than the Trustee) for the Receipts shall have been appointed,
countersigned by the manual or facsimile signature of a duly authorized officer
of the Registrar. The Trustee shall maintain books on which the registered
ownership of each Receipt and transfers, if any, of such registered ownership
shall be recorded. Certificates evidencing Receipts bearing the manual or
facsimile signature of a duly authorized signatory of the Trustee and Registrar,
if applicable, who was at the time such certificates were executed a proper
signatory of the Trustee or Registrar, if applicable, shall bind the Trustee,
notwithstanding that such signatory has ceased to hold such office prior to the
delivery of such certificates.
(b) The certificates evidencing Receipts may be endorsed with or have
incorporated in the text thereof such legends or recitals or modifications not
inconsistent with the provisions of the Depositary Trust Agreement as may be
required by the Trustee or required to comply with any applicable law or
regulations thereunder or with the rules and regulations of any securities
exchange upon which Receipts may be listed or to conform with any usage with
respect thereto, or to indicate any special limitations or restrictions to which
any particular Receipts are subject by reason of the date of issuance of the
Underlying Securities or otherwise.
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(c) The Sponsor and the Trustee will apply to DTC for acceptance of the
Receipts in its book-entry settlement system in registered form. Receipts
deposited with DTC shall be represented by one or more global certificates which
shall be registered in the name of Cede & Co., as nominee for DTC, and shall
bear the following legend:
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF
THE DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), TO THE
AGENT AUTHORIZED BY THE ISSUER FOR REGISTRATION OF TRANSFER, EXCHANGE
OR PAYMENT, AND ANY CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF
CEDE & CO. OR IN SUCH OTHER NAME AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO CEDE & CO. OR TO SUCH
OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC),
ANY TRANSFER, PLEDGE, OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR
TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE
& CO., HAS AN INTEREST HEREIN.
(d) So long as the Receipts are eligible for book-entry settlement with
DTC and such settlement is available, unless otherwise required by law,
notwithstanding anything to the contrary in the Depositary Trust Agreement, all
Receipts shall be evidenced by one or more global certificates registered in the
name of a nominee of DTC and no person acquiring beneficial ownership of such
Receipts shall receive or be entitled to receive physical delivery of Receipts.
Ownership of beneficial interests in Receipts evidenced by such global
certificate or certificates shall be shown on, and the transfer of such
ownership shall be effected only through, records maintained by (i) DTC or (ii)
institutions that have accounts with DTC.
(e) If, at any time when Receipts are evidenced by a global
certificate, DTC ceases to make its book-entry settlement system available for
such Receipts, the Trustee shall issue separate certificates in registered form
evidencing Receipts to the DTC book-entry settlement system participants
entitled thereto, with such additions, deletions and modifications to the
Depositary Trust Agreement and to the form of certificate evidencing Receipts as
the Sponsor and the Trustee may, from time to time, agree, and such participants
shall be charged the costs of printing, preparation, Delivery and shipping of
any such certificates.
(f) Certificates representing Receipts (and the Receipts evidenced
thereby) may be transferred only through the Surrender of such certificates to
the Trustee and the issuance of a new certificate or new certificates as
described in Section 2.6(b). The Trustee, notwithstanding any notice to the
contrary, will treat the Owner of Receipts as the absolute owner thereof for the
purpose of determining the person entitled to distribution
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of dividends and interest payments or other distributions or to any notice
provided for in the Depositary Trust Agreement and for all other purposes.
SECTION 2.5 DELIVERY OF RECEIPTS. Upon receipt by the Trustee of any deposit
pursuant to Section 2.2, together with a Depositor Order and the other documents
required as above specified, if any, the Trustee, subject to the terms and
conditions of the applicable Depositary Trust Agreement, shall use its best
efforts to Deliver, on or before the next succeeding business day to or upon the
written order of the Depositor, the number of Receipts issuable in respect of
such deposit, provided such number is an integral multiple of an Issuance
Denomination, but only upon payment to the Trustee of all taxes and governmental
charges and fees payable in connection with such deposit and the transfer of the
Underlying Securities.
SECTION 2.6 REGISTRATION; REGISTRATION OF TRANSFER; COMBINATION AND SPLIT-UP OF
CERTIFICATES. (a) The Trustee shall keep or cause to be kept a register of
Owners of Receipts and shall provide for the registration of Receipts and the
registration of transfers and exchanges of Receipts.
(b) The Trustee, subject to the terms and conditions of these Standard
Terms and the applicable Depositary Trust Agreement, shall register transfers of
ownership of Receipts on its transfer books from time to time, upon any
Surrender of a certificate evidencing such Receipts in any integral multiple of
a Round Lot, by the Owner in person or by a duly authorized attorney, properly
endorsed or accompanied by proper instruments of transfer, and duly stamped as
may be required by the laws of the State of New York and of the United States of
America, and the payment of any sums payable for taxes and governmental charges.
Thereupon the Trustee shall execute a new certificate or certificates evidencing
such Receipts in any integral multiple of a Round Lot requested, and deliver the
same to or upon the order of the Person entitled thereto in accordance with
Section 2.4(e).
(c) The Trustee, subject to the terms and conditions of these Standard
Terms and the applicable Depositary Trust Agreement, shall, upon Surrender of a
certificate evidencing Receipts for the purposes of effecting a split-up or
combination of such certificate or certificates, execute and deliver one or more
new certificate or certificates evidencing such Receipts in any integral
multiple of a Round Lot requested.
(d) The Trustee may appoint one or more co-transfer agents for the
purpose of effecting transfers, combinations and split-ups of Receipts at
designated transfer offices on behalf of the Trustee. In carrying out its
functions, a co-transfer agent may require evidence of authority and compliance
with applicable laws and other requirements by Owners or Persons entitled to
Receipts and will be entitled to protection and indemnity to the same extent as
the Trustee.
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SECTION 2.7 SURRENDER OF RECEIPTS AND WITHDRAWAL OF UNDERLYING SECURITIES. (a)
Upon Surrender at the office of the Trustee during the Trustee's regular
business hours of a Round Lot of Receipts or integral multiple thereof for the
purpose of withdrawal of the Underlying Securities represented thereby, and upon
payment of all taxes and governmental charges payable in connection with such
Surrender and withdrawal and delivery of the Underlying Securities, and subject
to the terms and conditions of the applicable Depositary Trust Agreement,
including, without limitation, Section 4.10, the Owner of such Receipts shall be
entitled to Delivery of the amount of Underlying Securities at the time
represented by such Receipts. Delivery of such Underlying Securities may be made
by (i) Delivery of Securities to such Owner or as ordered by such Owner and (ii)
any available form of delivery of any other securities, property and cash to
which such Owner is then entitled to such Owner or as ordered by such Owner. The
Trustee shall make such delivery as promptly as practicable.
(b) A certificate evidencing Receipts Surrendered for such purposes may
be required by the Trustee to be properly endorsed in blank or accompanied by
proper instruments of transfer in blank and endorsed by a member of the STAMP
Signature Guarantee Program, and if the Trustee so requires, the Owner thereof
shall execute and deliver to the Trustee a written order directing the Trustee
to cause the Underlying Securities being withdrawn to be delivered to or upon
the written order of a Person or Persons designated in such order. Thereupon the
Trustee shall Deliver through the facilities of DTC or, if applicable, at its
office, subject to Sections 2.8, 3.1, 3.2 and 4.10 and to the other terms and
conditions of the Depositary Trust Agreement, to or upon the written order of
the Person or Persons designated in the order delivered to the Trustee as above
provided, the amount of Underlying Securities represented by such Receipts.
SECTION 2.8 LIMITATIONS ON DELIVERY, REGISTRATION OF TRANSFER AND SURRENDER OF
RECEIPTS. (a) As a condition precedent to the Delivery, registration of
transfer, split-up, combination or Surrender (including, for the avoidance of
doubt, any Surrender in connection with an exchange) of any Receipt or
withdrawal or delivery of any Underlying Securities, the Trustee or Registrar
may require payment from the Depositor of Securities or the presentor of the
Receipts of a sum sufficient to reimburse it for any tax or other charge and any
stock transfer or registration fee with respect thereto (including any such tax
or charge and fee with respect to Securities being deposited or withdrawn), may
require the production of proof satisfactory to it as to the identity and
genuineness of any signature and may also require compliance with any
regulations the Trustee may establish consistent with the provisions of the
Depositary Trust Agreement, including, without limitation, this Section 2.8.
(b) The Delivery of Receipts against deposits of Securities, the
registration of transfer of Receipts or the Surrender of Receipts for the
purpose of withdrawal of Underlying Securities may be suspended, generally or in
particular instances, during any period when (i) the transfer books of the
Trustee are closed, (ii) the transfer books of a Securities Issuer are closed,
(iii) transfers through DTC are unavailable, or (iv) if any such action is
deemed necessary or advisable by the Trustee at any time or from time to
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time, subject to the provisions of the following sentence. Notwithstanding any
other provision of any applicable Depositary Trust Agreement or the Receipts,
the Surrender of Receipts and withdrawal of Underlying Securities may not be
suspended except as set forth in the previous sentence and for (i) temporary
delays caused by closing the transfer books of the Trustee or a Securities
Issuer, (ii) the payment of taxes and governmental charges, and (iii) compliance
with any U.S. laws or governmental regulations relating to the Receipts or to
the withdrawal of the Underlying Securities. Without limitation of the
foregoing, the Trustee shall not knowingly accept for deposit under the
Depositary Trust Agreement any Securities required to be registered under the
provisions of the Securities Act, for the public offer and sale thereof in the
United States unless a registration statement is in effect as to such Securities
for such offer and sale.
SECTION 2.9 LOST CERTIFICATES, ETC. In case any certificate evidencing Receipts
shall be mutilated, destroyed, lost or stolen, the Trustee shall execute and
deliver a new certificate of like tenor in exchange and substitution for such
mutilated certificate upon cancellation thereof, or in lieu of and in
substitution for such destroyed, lost or stolen certificate. Before the Trustee
shall execute and deliver a new certificate in substitution for a destroyed,
lost or stolen certificate, the Owner thereof shall have (a) filed with the
Trustee (i) a request for such execution and delivery before the Trustee has
notice that the Receipts have been acquired by a bona fide purchaser, and (ii)
an indemnity satisfactory to the Trustee (b) delivered to the Trustee amounts
sufficient to pay any taxes, expenses or similar charges associated with the
issuance of a new Receipt, and (c) satisfied any other reasonable requirements
imposed by the Trustee.
SECTION 2.10 CANCELLATION AND DESTRUCTION OF SURRENDERED CERTIFICATES. All
certificates evidencing Receipts Surrendered to the Trustee shall be canceled by
the Trustee. The Trustee is authorized to dispose of such certificates according
to its normal operating procedures.
SECTION 2.11 RESTRICTIONS ON PRE-RELEASE, PRE-CANCELLATION AND SECURITIES
LENDING. Notwithstanding anything in these Standard Terms to the contrary, the
Trustee will not, and will not permit the Trust to, (i) issue Receipts before
the deposit with the Trustee of the corresponding Securities, (ii) make Delivery
of Underlying Securities prior to the Surrender of the corresponding Receipt, or
(iii) lend, pledge or otherwise hypothecate any of the Underlying Securities or
other assets held by the Trust.
ARTICLE 3
CERTAIN OBLIGATIONS OF OWNERS OF RECEIPTS
SECTION 3.1 FILING PROOFS, CERTIFICATES AND OTHER INFORMATION. Any Person
presenting Securities for deposit or any Owner of Receipts may be required from
time to time to file with the Trustee such proof of citizenship or residence,
exchange control approval, or such information relating to the registration on
the books of any Securities Issuer or Securities Registrar, if applicable, to
execute such certificates and to make such
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representations and warranties, as the Trustee may require. The Trustee may
withhold the Delivery or registration of transfer of any Receipts or the
delivery of any Underlying Securities until such proof or other information is
filed or such certificates are executed or such representations and warranties
made.
SECTION 3.2 LIABILITY OF OWNER FOR TAXES AND OTHER CHARGES. If any tax or other
charge shall become payable with respect to any Receipts or any Underlying
Securities represented thereby, such tax or other charge shall be payable by the
Owner of such Receipts to the Trustee. The Trustee shall refuse to effect any
registration of transfer of such Receipts or any withdrawal of Underlying
Securities represented by such Receipt until such payment is made, and may
withhold any dividends, interest payments or other distributions, or may sell
for the account of the Owner thereof Underlying Securities constituting any
multiples of the securities which must be deposited for issuance of Receipts,
and may apply such dividends, interest payments or other distributions or the
proceeds of any such sale in payment of such tax or other charge and the Owner
of such Receipt shall remain liable for any deficiency.
SECTION 3.3 WARRANTIES ON DEPOSIT OF SECURITIES. Every Person depositing
Securities under the Depositary Trust Agreement shall be deemed thereby to
represent and warrant that such Securities and each certificate therefor are
validly issued and fully paid, that the person making such deposit is duly
authorized to do so and that at the time of delivery, such Securities are free
and clear of any lien, pledge, encumbrance, right, charge or claim (other than
the rights created by the Depositary Trust Agreement). Every such person shall
also be deemed to represent that such Securities are not, and Receipts
representing such Securities would not be, Restricted Securities. Such
representations and warranties shall survive the deposit of Securities, issuance
of Receipts or termination of the Depositary Trust Agreement. In the event that
the Trustee, in its sole discretion, determines that any of such representations
and warranties were materially inaccurate at the time deemed to be given and
that such inaccuracy has or may adversely affect other Beneficial Owners in any
material respect, the related deposit of Securities shall be null and void and,
to the extent lawful and feasible, the Trustee shall cause the related
Securities (and any securities or financial instruments resulting therefrom
subsequent to the date of deposit and not previously distributed) to be
redelivered, if lawful and feasible, to such person or related successors in
interest. Notwithstanding anything herein to the contrary, if for any reason any
liens, pledges, encumbrances, rights, charges or claims shall be made on such
Securities by a party claiming through such Depositor, or if such Securities are
Restricted Securities, the Trustee shall, promptly after becoming aware of such
lien, pledges, encumbrances, rights, charges or claims, notify the applicable
Depositor thereof.
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ARTICLE 4
THE UNDERLYING SECURITIES
SECTION 4.1 CASH DISTRIBUTIONS. Whenever the Trustee shall receive any cash
dividend, interest payment or other cash distribution on any Underlying
Securities, the Trustee shall distribute the amount thus received to the Owners
entitled thereto PROMPTLY (GENERALLY, WITHIN THREE BUSINESS DAYS OF RECEIPT), in
proportion to the number of Receipts held by them respectively; provided,
however, that in the event that the respective Securities Issuer or the Trustee
shall be required to withhold and does withhold from such cash dividend,
interest payment or such other cash distribution an amount on account of taxes,
the amount distributed to the Owners shall be reduced accordingly. Where such
withholding is required because of a characteristic of a particular Owner,
including the characteristics of any Person holding through such Owner,
distributions to such Owner shall be reduced by the amount of such withholding.
The Trustee shall distribute only such amount, however, as can be distributed
without attributing to any Owner a fraction of one cent. Any such fractional
amounts shall be rounded down to the nearest whole cent and so distributed to
Owners entitled thereto. The Trustee shall retain as additional compensation any
undistributed amounts resulting from such down-rounding.
SECTION 4.2 DISTRIBUTIONS OTHER THAN CASH OR SECURITIES. Subject to the
provisions of Sections 4.8 and 5.2, whenever the Trustee shall receive any
distribution other than (i) a distribution described in Section 4.1, 4.3(a) or
4.4 or (ii) any distribution which would otherwise be distributed hereunder
except that the Trustee deems such distribution not to be lawful and feasible,
the Trustee shall, subject to Section 4.10, cause the securities or property
received by it to be distributed to the Owners entitled thereto, in proportion
to the number of Receipts held by them respectively, in any manner that the
Trustee may deem equitable and practicable for accomplishing such distribution;
provided, however, that if in the opinion of the Trustee such distribution
cannot be made proportionately among the Owners entitled thereto, or if for any
other reason (including, but not limited to, any requirement that a Securities
Issuer or the Trustee withhold an amount on account of taxes or other
governmental charges or that such securities must be registered under the
Securities Act in order to be distributed to Owners) the Trustee deems such
distribution not to be feasible, the Trustee shall adopt such method as it deems
equitable and practicable for the purpose of effecting such distribution,
including, but not limited to, the public or private sale of the securities or
property thus received, or any part thereof, and the net proceeds of any such
sale shall be distributed by the Trustee to the Owners entitled thereto as in
the case of a distribution received in cash; provided, that nothing herein or in
any Depositary Trust Agreement shall be deemed to obligate the Trustee to
register or to cause to be registered any Securities.
SECTION 4.3 DISTRIBUTIONS IN SECURITIES. (a) If any distribution upon the
Underlying Equity Security consists of a dividend in, or free distribution of,
additional Underlying Equity Securities, the Trustee shall, to the extent lawful
and feasible, retain such Securities under the Depositary Trust Agreement, and,
in such case, (i) the amount of
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such Securities so retained in respect of each Receipt shall be added to the
quantity of Underlying Equity Securities which must be deposited for issuance of
Receipts and (ii) the number of Receipts in an Issuance Denomination may be
increased or decreased by the Trustee to the lowest multiple of 100 Receipts
such that no fractional shares are thereby represented in such Issuance
Denomination.
(b) Subject to the provisions of Section 5.2, if any distribution upon
the Underlying Equity Security consists of a dividend in, or free distribution
of, securities that are not Underlying Equity Securities, the Trustee shall
cause the securities received by it to be distributed to Owners in accordance
with Section 4.2.
SECTION 4.4 RIGHTS OFFERINGS. (a) Subject to the provisions of Section 5.2, if a
Securities Issuer offers or causes to be offered to the holders of any
Underlying Securities any rights to subscribe for additional Securities or other
securities, the Trustee shall have discretion in accordance with this Section
4.4 as to the procedure to be followed in making such rights available to any
Owners or in disposing of such rights on behalf of Owners and making the net
proceeds available to Owners or, if by the terms of such rights offering or for
any other reason (including the absence of an effective registration statement
covering the distribution of securities underlying the rights), the Trustee may
not make such rights available to any Owners or dispose of such rights and make
the net proceeds available to Owners, then the Trustee shall allow the rights to
lapse in accordance with Section 5.2. In the event that the Trustee is required
to withhold and does withhold on account of taxes from any distribution of the
net proceeds of a disposition of rights, the amount distributed to the Owners
shall be reduced accordingly. Where such withholding is required because of a
characteristic of a particular Owner or any Person holding through such Owner,
distributions to such Owner shall be reduced by the amount of such withholding.
Any distribution of the net proceeds of a disposition of rights shall be subject
to the rounding provisions of Section 4.1 hereof and the Trustee shall retain as
additional compensation any undistributed amounts resulting from such
down-rounding.
(b) The Trustee will not cause rights to be distributed to Owners
unless both the rights and the securities to which such rights relate are either
exempt from registration under the Securities Act with respect to a distribution
to all Owners or are registered under the provisions of such Act.
(c) The Trustee shall not be responsible for any failure to determine
that it may be lawful or feasible to cause rights to be distributed to Owners in
general or any Owner in particular.
SECTION 4.5 FIXING OF RECORD DATE. Whenever any cash dividend, interest payment
or other cash distribution shall become payable or any distribution other than
cash shall be made, or whenever the Trustee receives notice of any meeting of or
solicitation of proxies from holders of any Underlying Securities, or whenever
the Trustee shall find it
13
necessary or convenient in respect of any matter, the Trustee shall fix a record
date for the determination of the Owners who shall be (i) entitled to receive
such dividend, interest payment or distribution or the net proceeds of the sale
thereof, or (ii) entitled to give instructions to the Trustee for the exercise
of voting rights at any such meeting or solicitation. The Trustee shall use its
reasonable efforts to ensure that, to the extent practicable, the record date
set hereunder will be the same as the record date set by the Securities Issuer.
Subject to the terms and conditions of the Depositary Trust Agreement, the
Owners on such record date shall be entitled, as the case may be, to receive the
amount distributable by the Trustee with respect to such dividend, interest
payment or other distribution or the net proceeds of sale thereof, or to give
voting instructions, or to act in respect of any other such matter.
SECTION 4.6 REPORTS. The Trustee or its appointed agent shall to the extent
lawful, forward to Owners any reports and communications, including any proxy
statement or other soliciting material, received from a Securities Issuer which
are received by the Trustee as the holder of the Underlying Securities or its
appointed agent, unless such reports and communications have been forwarded
directly to Owners by such Securities Issuer or its appointed agent.
SECTION 4.7 VOTING INSTRUCTIONS FOR UNDERLYING SECURITIES. Upon receipt by the
Trustee or its appointed agent of notice of any meeting of, or solicitation of
proxies from, holders of Underlying Securities, the Trustee or its appointed
agent shall, to the extent lawful, mail to the Owners a notice, the form of
which notice shall be in the sole discretion of the Trustee, which shall contain
(a) such information as is contained in such notice of meeting or solicitation,
(b) a statement that the Owners as of the close of business on a specified
record date will be entitled, subject to applicable law and the provisions of
the corporate documents of the Securities Issuer, to instruct the Trustee as to
the exercise of the voting rights, if any, or giving of proxies, as applicable,
in respect of the amount of Underlying Securities represented by their
respective Receipts, and (c) a statement as to the manner in which such
instructions may be given. Upon the written request of an Owner of a Receipt on
such record date, received on or before the date established by the Trustee for
such purpose, the Trustee shall endeavor, insofar as practicable, to vote or
cause to be voted, or to give a proxy, as applicable, in respect of the amount
of Underlying Securities represented by such Receipt in accordance with the
instructions set forth in such request. The Trustee shall not vote or attempt to
exercise the right to vote that attaches to, or give a proxy with respect to,
Underlying Securities other than in accordance with such instructions delivered
to the Trustee in accordance with instructions contained in the Trustee's notice
to such Owner.
SECTION 4.8 CHANGES AFFECTING UNDERLYING SECURITIES. (a) In circumstances where
the provisions of Sections 4.2 and 4.3(a) do not apply, upon any change in
nominal value, change in par value, split-up, consolidation or any other
reclassification of any Underlying Securities, or upon any recapitalization,
reorganization, merger or consolidation or sale of assets affecting the issuer
of the Underlying Equity Security, if the relevant Securities Issuer survives
such event, the Trustee shall, to the extent lawful
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and feasible, retain such Securities under the Depositary Trust Agreement, and,
in such case, (A) the amount of such Securities so retained in respect of each
Receipt shall be added to the classes and quantities of securities which must be
deposited for issuance of Receipts, and (B) the number of Receipts in an
Issuance Denomination may be increased or decreased by the Trustee to the lowest
multiple of 100 Receipts such that no fractional shares are thereby represented
in such Issuance Denomination.
(b) Securities of any class which are surrendered by the Trustee in
connection with any such conversion or exchange shall, effective on the date of
such surrender, no longer be part of the securities which must be deposited for
issuance of Receipts. In any such case, the Trustee may call for the Surrender
of outstanding certificates evidencing Receipts to be exchanged for new
certificates specifically describing any applicable change in the classes and
quantities of securities which must be deposited for issuance of Receipts.
SECTION 4.9 WITHHOLDING. In the event that the Trustee determines that any
distribution in property (including Securities and rights to subscribe therefor)
is subject to any tax or other charge which the Trustee is obligated to
withhold, notwithstanding anything to the contrary in these Standard Terms or
the applicable Depositary Trust Agreement, the Trustee may by public or private
sale dispose of all or a portion of such property (including Securities and
rights to subscribe therefor) in such amounts and in such manner as the Trustee
deems necessary and practicable to pay any such taxes or charges and the Trustee
shall distribute the net proceeds of any such sale after deduction of such taxes
or charges to the Owners entitled thereto in proportion to the number of
Receipts held by them respectively, provided, however, that where such
withholding is required because of a characteristic of a particular Owner or any
Person holding through such Owner, distributions to such Owner shall be reduced
by the amount of such withholding.
SECTION 4.10 LIMITATION ON DISTRIBUTIONS. Notwithstanding any provision of the
Depositary Trust Agreement which requires or permits the Trustee to distribute
or Deliver any securities to Owners, the Trustee shall not distribute to any
Owner any fraction of a share or other security. Instead, the Trustee shall, to
the extent lawful, sell the aggregate of such fractions and distribute the net
proceeds, including the net proceeds received in addition to the sale of such
fractions, to the Owners entitled thereto as in the case of a distribution
received in cash. In connection with any such sale, the Trustee shall take
reasonable steps to obtain best execution and, in connection therewith, in its
sole discretion, shall select brokers to effect such sale (which may include
affiliates of the Trustee, the Sponsor or any Depositor) in a manner intended to
effect the best execution in connection therewith. Any such distribution of cash
related to the sale of such fraction shall be subject to the rounding provisions
of Section 4.1 hereof and the Trustee shall retain as additional compensation
any undistributed amounts resulting from such down-rounding.
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ARTICLE 5
THE TRUSTEE AND THE SPONSOR
SECTION 5.1 MAINTENANCE OF OFFICE AND TRANSFER BOOKS BY THE TRUSTEE. (a) Until
termination of this Depositary Trust Agreement in accordance with its terms, and
if required by the listing requirements of any exchange in the United States on
which the Receipts are traded, the Trustee shall maintain facilities for the
execution and Delivery, registration, registration of transfers and Surrender of
Receipts in accordance with the provisions of these Standard Terms and the
applicable Depositary Trust Agreement.
(b) The Trustee shall keep books for the registration of Receipts and
transfers of Receipts which at all reasonable times shall be open for inspection
by the Owners.
(c) The Trustee may close the transfer books at any time or from time
to time.
(d) If any Receipts evidenced thereby are listed on one or more stock
exchanges in the United States, the Trustee shall act as Registrar or appoint a
registrar or one or more co-registrars for registry of such receipts in
accordance with any requirements of such exchange or exchanges.
SECTION 5.2 PREVENTION OR DELAY IN PERFORMANCE BY THE SPONSOR OR THE TRUSTEE.
Neither the Sponsor nor the Trustee nor any of their respective directors,
employees, agents or affiliates shall incur any liability to any Owner or
Beneficial Owner of any Receipt, if by reason of any provision of any present or
future law or regulation of the United States or any other country, or of any
governmental or regulatory authority or stock exchange, or by reason of any
provision, present or future, of the corporate documents of any Securities
Issuer, or by reason of any provisions of any securities issued or distributed
by any Securities Issuer, or any offering or distribution thereof, or by reason
of any act of God or war or other circumstances beyond its control, the Sponsor
or the Trustee shall be prevented or forbidden from, or be subject to any civil
or criminal penalty on account of, doing or performing any act or thing which by
the terms of these Standard Terms or the applicable Depositary Trust Agreement
it is provided shall be done or performed; nor shall the Sponsor or the Trustee
nor any of their respective directors, employees, agents or affiliates incur any
liability to any Owner or Beneficial Owner of any Receipt by reason of any
non-performance or delay, caused as aforesaid, in the performance of any act or
thing which by the terms of these Standard Terms or the applicable Depositary
Trust Agreement it is provided shall or may be done or performed, or by reason
of any exercise of, or failure to exercise, any discretion provided for in these
Standard Terms or the applicable Depositary Trust Agreement or for any action or
inaction taken or omitted in good faith and without gross negligence hereunder.
Where, by the terms of an offering or distribution to which Section 4.2, 4.3(b)
or 4.4 applies, or for any other reason, it is not lawful and feasible to make
such distribution or offering available to Owners, and the Trustee may not
dispose of such distribution or offering on behalf of such Owners and make the
net proceeds
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available to such Owners, then the Trustee shall not make such distribution or
offering available to Owners and shall allow any rights, if applicable, to
lapse.
SECTION 5.3 OBLIGATIONS OF THE SPONSOR AND THE TRUSTEE. (a) Neither the Sponsor
nor the Trustee assumes any obligation nor shall they be subject to any
liability under these Standard Terms or the applicable Depositary Trust
Agreement to any Owner or Beneficial Owner of any Receipt (including, without
limitation, liability with respect to the validity or worth of the Underlying
Securities), except that each agrees to perform its respective obligations
specifically set forth in these Standard Terms and the applicable Depositary
Trust Agreement without gross negligence or willful misconduct. In performing
its obligations set forth in these Standard Terms and the applicable Depositary
Trust Agreement, the Trustee may consult with the Sponsor, in its sole
discretion, from time to time in its determination of various matters hereunder
and thereunder.
(b) Neither the Sponsor nor the Trustee shall be under any obligation
to prosecute or defend any action, suit or other proceeding in respect of any
Underlying Securities or in respect of the Receipts or the rights of the
Beneficial Owners of the Receipts. Notwithstanding the foregoing, the Trustee
may, in its discretion, undertake such action as it may deem necessary at any
time to protect the Trust and the rights of the Beneficial Owners of the
Receipts, provided however that any expense or liability and any pecuniary cost
of the Trustee reasonably incurred in connection therewith shall be an
Extraordinary Trust Expense hereunder.
(c) The Trustee and the Sponsor may employ agents, attorneys,
accountants and auditors and shall not be answerable for the default or
misconduct of any such agents, attorneys, accountants or auditors if such
parties have been selected with reasonable care and neither the Sponsor nor the
Trustee shall be liable for any action or non-action by it in reliance upon the
advice of or information from legal counsel, accountants, any person presenting
Securities for deposit, any Owner or any other person believed by it in good
faith to be competent to give such advice or information, including, without
limitation, whether any taxes or other charges are due on, or whether there are
any legal restrictions on the delivery or transfer of any Securities or
Receipts, or whether any Securities are Restricted Securities.
(d) The Trustee shall not be liable for any acts or omissions made by a
successor Trustee whether in connection with a previous act or omission of the
Trustee or in connection with any matter arising wholly after the resignation of
the Trustee, provided that in connection with the issue out of which such
potential liability arises the Trustee performed its obligations without
negligence or bad faith while it acted as Trustee.
(e) The Trustee shall be under no liability for any action taken in
good faith on any appraisal, paper, order, list, demand, request, consent,
affidavit, notice, opinion, direction, endorsement, assignment, resolution,
draft or other document whether or not of
17
the same kind, prima facie properly executed, or for the disposition of monies
or Securities pursuant to these Standard Terms, provided that the Trustee has
acted without negligence or bad faith. The Trustee may construe any of the
provisions of these Standard Terms or any Depositary Trust Agreement insofar as
the same may appear to be ambiguous or inconsistent with any other provisions
hereof or thereof, and any construction of any such provision by the Trustee in
good faith shall be binding upon the parties hereto and thereto.
(f) The Trustee shall not be responsible for or in respect of the
recitals herein, the validity or sufficiency of the trust created by any
Depositary Trust Agreement, the validity or sufficiency of these Standard Terms
or any Depositary Trust Agreement or for the due execution hereof and thereof by
the Sponsor or for the form, character, genuineness, sufficiency, value or
validity of any Securities or for or in respect of the validity or sufficiency
of the certificates (except for the due execution thereof by the Trustee).
(g) The Trustee shall not be responsible for any failure to carry out
any instructions to vote any of the Underlying Securities, or for the manner in
which any such vote is cast or the effect of any such vote, provided that any
such action or non-action is without negligence or bad faith.
(h) Except as specifically provided in Section 4.6, the Trustee shall
have no obligation to monitor or to obtain any information concerning the
business or affairs of any Securities Issuer or to advise Owners or Beneficial
Owners of any event or condition affecting any Securities Issuer.
(i) The Trustee shall have no obligation to comply with any direction
or instruction from any Owner or Beneficial Owner regarding Receipts except to
the extent specifically provided in these Standard Terms or any applicable
Depositary Trust Agreement.
(j) The Trustee shall be a fiduciary under these Standard Terms and the
applicable Depositary Trust Agreement; provided, however, that the fiduciary
duties and responsibilities and liabilities of the Trustee shall be limited by,
and shall be only those specifically set forth in, these Standard Terms and the
applicable Depositary Trust Agreement.
(k) For the purposes of these Standard Terms, actual knowledge or
knowledge of the Trustee shall mean actual knowledge of an officer in the
corporate action department of the Trustee, and actual knowledge or knowledge of
the Sponsor shall mean actual knowledge of an officer of the Sponsor responsible
for matters regarding the Trust.
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(l) In no event shall the Bank be responsible or liable for special,
indirect or consequential loss or damage of any kind whatsoever (including, but
not limited to, loss of profit), even if the Bank has been advised of the
likelihood of such loss or damage and regardless of the form of action.
SECTION 5.4 RESIGNATION OR REMOVAL OF THE TRUSTEE; APPOINTMENT OF SUCCESSOR
TRUSTEE. (a) The Trustee may at any time resign as Trustee hereunder by written
notice of its election so to do, delivered to the Sponsor, and such
resignation shall take effect upon the appointment of a successor Trustee and
its acceptance of such appointment as hereinafter provided.
(b) If at any time the Trustee is in material breach of its obligations
under the Depositary Trust Agreement and the Trustee fails to cure such breach
within 30 days after receipt by the Trustee of written notice from the Sponsor
or Owners of 25% or more of the outstanding Receipts specifying such default and
requiring the Trustee to cure such default, the Sponsor, acting on behalf of the
Owners, may remove the Trustee by written notice delivered to the Trustee in the
manner provided in Section 7.5, and such removal shall take effect upon the
appointment of the successor Trustee and its acceptance of such appointment as
hereinafter provided.
(c) In case at any time the Trustee acting hereunder shall resign or be
removed, the Sponsor, acting on behalf of the Owners, shall use its reasonable
efforts to appoint a successor Trustee. Every successor Trustee shall execute
and deliver to its predecessor and to the Sponsor, acting on behalf of the
Owners, an instrument in writing accepting its appointment hereunder, and
thereupon such successor Trustee, without any further act or deed, shall become
fully vested with all the rights, powers, duties and obligations of its
predecessor; but such predecessor, nevertheless, upon payment of all sums due it
and on the written request of the Sponsor, acting on behalf of the Owners, shall
execute and deliver an instrument transferring to such successor all rights and
powers of such predecessor hereunder, shall duly assign, transfer and deliver
all right, title and interest in the Underlying Securities to such successor,
and shall deliver to such successor a list of the Owners of all outstanding
Receipts. The Sponsor or any such successor Trustee shall promptly mail notice
of the appointment of such successor Trustee to the Owners.
(d) If the Trustee merges, consolidates or converts into, or transfers
all or substantially all of its trust servicing business to another corporation,
such corporation shall be the successor of such Trustee without the execution or
filing of any document or any further act.
SECTION 5.5 INDEMNIFICATION. (a) The Sponsor shall indemnify the
Trustee, its directors, employees, agents and affiliates against, and hold each
of them harmless from, any loss, liability, cost, expense or judgment
(including, but not limited to, the fees and expenses of counsel) (collectively
"Indemnified Amounts") which is suffered or incurred
19
by any of them and which arises out of acceptance of this Trust or acting as
Trustee hereunder or any acts performed or omitted pursuant to the provisions
of these Standard Terms or any Depositary Trust Agreement, as the same may be
amended, modified or supplemented from time to time, or any filings with or
submissions to the Commission in connection with or with respect to such
Receipts (which by way of illustration and not by way of limitation, include any
registration statement and any amendments or supplements thereto filed with the
Commission or any periodic reports or updates that may be filed under the
Exchange Act, or any failure to make any filings or submissions to the
Commission which are required to be made in connection with or with respect to
such Receipts), except that the Sponsor shall not have any obligations under
this Section 5.5(a) to pay Indemnified Amounts incurred as a result of and
attributable to (i) the gross negligence or willful misconduct of the Trustee in
carrying out its duties hereunder, or material breach of the terms of this
Agreement by, the Trustee, or (ii) written information regarding the name and
address of the Trustee furnished in writing to the Sponsor (and not materially
changed or altered) expressly for use in the registration statement filed with
the Commission relating to the Receipts and other written information provided
by the Trustee specifically for inclusion in reports filed on behalf of the
Trust under the Exchange Act; provided, however, that if such Indemnified
Amounts result from misrepresentations or omissions made by a Depositor (other
than the Sponsor) in connection with such Depositor's offer and sale of
Receipts, the Trustee shall first seek indemnification from such Depositor,
unless the Trustee has reason to believe that such indemnity is not reasonably
available.
(b) The Trustee shall indemnify the Sponsor, its directors, employees,
agents and affiliates against, and hold each of them harmless from, any
Indemnified Amounts (i) caused by the negligence or bad faith of the Trustee in
the performance of its duties hereunder or (ii) arising out of any written
information regarding the name and address of the Trustee furnished in writing
to the Sponsor (and not materially changed or altered) expressly for use in the
registration statement filed with the Commission relating to the Receipts.
(c) If the indemnification provided for in this Section 5.5 is
unavailable or insufficient to hold harmless the indemnified party under
subsection (a) or (b) above, then the indemnifying party shall contribute to the
Indemnified Amounts referred to in subsection (a) or (b) above (i) in such
proportion as is appropriate to reflect the relative benefits received by the
Sponsor on the one hand and the Trustee on the other hand from the offering of
the Receipts which are the subject of the action or (ii) if the allocation
provided by clause (i) above is not permitted by applicable law, in such
proportion as is appropriate to reflect not only the relative benefits referred
to in clause (i) above but also the relative fault of the Sponsor on the one
hand and the Trustee on the other hand in connection with the action, statement
or omission which resulted in such Indemnified Amount as well as any other
relevant equitable considerations. The relative benefits received by the Sponsor
on the one hand and the Trustee on the other shall be deemed to be in the same
proportions as the total underwriting fee from the offering of the Receipts
which are the subject of the action (before deducting expenses) received by the
Sponsor bear to the total fees received by the Trustee in
20
connection with such Receipts. The relative fault shall be determined by
reference to, among other things, whether any untrue or alleged untrue
statement of a material fact or the omission or alleged omission to state a
material fact from which the action arises relates to information supplied by
the Sponsor or the Trustee and the parties' relative intent, knowledge, access
to information and opportunity to correct or prevent such untrue statement or
omission or the act or omission from which the action arises. The amount of
Indemnified Amounts referred to in the first sentence of this subsection (c)
shall be deemed to include any legal or other expenses reasonably incurred by
such indemnified party in connection with investigating or defending any action
or claim which is the subject of this subsection (c).
SECTION 5.6 FEES OF TRUSTEE. (a) The Trustee shall be entitled to a fee of .04%
(4 basis points) per year of the Trust's assets, calculated on the basis of the
value of the aggregate value of the securities deposited into the Trust less the
aggregate value of securities withdrawn from the Trust. The Trustee's fee will
be payable at the end of each calendar quarter at the rate of .01% of the
aggregate value of securities deposited in the Trust (determined at the time of
the issuance of the Receipts associated with that Deposit), less the number of
Receipts redeemed multiplied by the average deposit price of a Receipt for the
period from the time of inception of the Trust to the end of the current
calendar quarter). The Trustee's fee is payable no later than [45] days after
the end of each calendar quarter. The fees payable pursuant to this Section 5.6,
and any fractional amounts retained by the Trustee as additional compensation
pursuant to Sections 4.1, 4.4, 4.10, and 5.10 hereunder, shall be deemed to be
full reimbursement to the Trustee for all Trust Expenses. The Trustee's fee
shall be paid solely by the Sponsor and in no circumstances shall the Trustee's
fee be paid out of the assets of the Trust.
(b) Extraordinary Trust Expenses shall be payable by the Sponsor upon
receipt of a detailed written invoice therefor from the Trustee provided that
the Trustee shall use its best efforts to provide the Sponsor with written
notice prior to any Extraordinary Trust Expense to be incurred in excess of
$1,000 and, provided further, that in no event shall Extraordinary Trust
Expenses be incurred in an amount in excess of $50,000 in the aggregate without
the express written consent of the Sponsor.
SECTION 5.7 RETENTION OF TRUST DOCUMENTS. The Trustee is authorized to destroy
those documents, records, bills and other data compiled during the term of the
Depositary Trust Agreement at the times permitted by the laws or regulations
governing the Trustee.
SECTION 5.8 FEDERAL SECURITIES LAW AND OTHER REGULATORY FILINGS. The Sponsor
shall (i) prepare and file a registration statement with the Commission and
take such action as is necessary from time to time to qualify the Receipts
for offering and sale under the federal securities laws of the United States and
any other state or other jurisdiction in which the Receipts are offered for
sale, including the preparation and filing of amendments and supplements to such
registration statement, (ii) promptly prepare and file any amendment and
supplement to the registration statement or prospectus, as
21
required by applicable law or regulation, and promptly deliver the same to the
Trustee, (iii) promptly notify the Trustee of any order preventing or suspending
the use of any prospectus, of any request for the amending or supplementing of
the registration statement or prospectus or if any event or circumstance occurs
to the knowledge of the Sponsor as a result of which the registration
statement or prospectus, as then amended or supplemented, would include an
untrue statement of a material fact or omit to state any material fact necessary
to make the statements therein, in the light of the circumstances under which
they were made, not misleading, (iv) provide the Trustee from time to time with
copies, including copies in electronic form or otherwise, of the prospectus, as
amended and supplemented, in such quantities as the Trustee may reasonably
request, (v) prepare and file any periodic reports or updates that may be
required under the Exchange Act and provide copies to the Trustee of same, (vi)
prepare and file any listing application necessary to list the Receipts on a
U.S. stock exchange, and prepare and file any additional forms or applications
in connection with the continued listing of such Receipts, and (vii) if such
Receipts are delisted from such stock exchange and the Trust is not terminated
in accordance with Section 6.2 hereof, to promptly take all reasonable steps to
list the Receipts on another U.S. stock exchange.
SECTION 5.9 PROSPECTUS DELIVERY. The Trustee shall, if required by the federal
securities laws of the United States, in any manner permitted by such laws,
deliver at the time of issuance of Receipts, a copy of the relevant prospectus,
as amended and supplemented at such time, and delivered to the Trustee by the
Sponsor, to each Person depositing Underlying Securities into the Trust for
issuance of Receipts; provided, that the Trustee shall have received from
counsel to the Sponsor an opinion stating that the posting of a Prospectus on
the indicated web site shall satisfy any delivery obligations under applicable
state and federal law. The Sponsor shall at all times maintain a number of
physical Prospectuses sufficient to enable the Trustee to satisfy any delivery
obligations it may have under applicable state or federal law.
SECTION 5.10. CASH HELD BY THE TRUST. Cash held by the Trust shall not be
reinvested but shall instead by distributed to the Owners on the next date on
which a cash distribution is made to the Owners. Any such distribution shall be
subject to the rounding provisions of Section 4.1 hereof and the Trustee shall
retain as additional compensation any undistributed amounts resulting from such
down-rounding.
ARTICLE 6
AMENDMENT AND TERMINATION
SECTION 6.1 AMENDMENT. The Trustee and the Sponsor may amend any provision of
the Depositary Trust Agreement without the consent of any Owner. Promptly after
the execution of any amendment, the Trustee shall furnish written notification
of any such amendment to each Owner. Any amendment that imposes or increases any
fees or charges (other than taxes and other charges, registration fees or other
such expenses), or that otherwise prejudices any substantial existing right of
the
22
Owners will not become effective until 30 days after notice of such amendment is
given to the Owners. Every Owner and Beneficial Owner, at the time any amendment
so becomes effective, shall be deemed, by continuing to hold any Receipt or an
interest therein, to consent and agree to such amendment and to be bound by the
Depositary Trust Agreement as amended thereby. In no event shall any amendment
impair the right of the Owner of any Receipt to Surrender such Receipt and
receive therefor the Underlying Securities represented thereby, except in order
to comply with mandatory provisions of applicable law.
SECTION 6.2 TERMINATION. (a) The Trust shall terminate promptly after the
Trustee distributes to Owners the interest payment made on the final Underlying
Debt Security held by the Trust.
(b) The Trust shall terminate earlier than the time specified in
paragraph (a) of this Section 6.2 by the Trustee mailing notice of such
termination to the Owners of all Receipts then outstanding at least 30 days
prior to the date set for termination (or upon such lesser notice as may be
practicable in the event of an occurrence set forth in (i), (ii), (iii), (iv),
(v) or (viii) below) if any of the following occurs:
(i) The Trustee is notified that the Underlying Equity Security ceases
to be outstanding as a result of a merger, consolidation or other corporate
combination of the Securities Issuer and Section 4.8 does not apply;
(ii) The Trustee is notified that the Underlying Equity Security is
delisted from trading on its primary exchange or market and is not listed for
trading on another national securities exchange or through Nasdaq within five
business days from the date of such delisting;
(iii) The Trustee is notified that the Underlying Equity Security no
longer is registered under section 12 of the Exchange Act;
(iv) The Trustee is notified that the Commission determines that the
issuer of the Underlying Equity Security is an investment company under the
Investment Company Act;
(v) The Trustee is notified that the Commission determines that the
Trust is an investment company required to register as such under the Investment
Company Act;
(vi) The Trustee is notified that the Receipts are delisted from a
national securities exchange and are not approved for listing on another
national securities exchange within 5 business days of their delisting;
23
(vii) Owners of more than 50% of the outstanding Receipts notify the
Trustee that they elect to terminate the Trust;
(viii) 60 days shall have expired after the Trustee shall have
delivered to the Sponsor and the Owners a written notice of its election to
resign and a successor trustee shall not have been appointed and accepted its
appointment as provided in Section 5.4;
(ix) The Sponsor or the Trustee determines, in its sole discretion,
that legal or regulatory issues (including litigation, Commission action or
interpretive developments of applicable law or regulation) make such early
termination in the best interest of the Owners, the Sponsor or the Trustee; or
(x) In excess of $50,000 of Extraordinary Trust Expenses have been
incurred by or on behalf of the Trust since the Closing Date, or are reasonably
believed by the Trustee to be incurred within the succeeding 30 day period, and
either the Trustee or the Sponsor so elects.
(c) On and after the date of termination, the Trustee shall deliver to
each Owner of a Receipt, to him or upon his order, the amount of Underlying
Securities evidenced by such Receipt and thereupon cancel such Receipt,
provided, however, at the sole discretion of the Trustee, the Trustee may
condition such delivery upon prior (i) Surrender of such Receipt at the office
of the Trustee, and (ii) payment of any applicable taxes or governmental
charges, or the Trustee may deduct any taxes or governmental charges from any
cash distribution with respect to the Receipts. If any Receipts shall remain
outstanding after the date of termination, the Trustee thereafter shall
discontinue the registration of transfers of Receipts, shall suspend the
distribution of dividends, interest payments or other distribution to the Owners
thereof, and shall not give any further notices or perform any further acts
under these Standard Terms or the applicable Depositary Trust Agreement, except
that the Trustee shall continue to collect dividends, interest payments and
other distributions pertaining to Underlying Securities and hold the same
uninvested and without liability for interest, shall sell rights as provided in
these Standard Terms or the applicable Depositary Trust Agreement, and shall
continue to deliver Underlying Securities, together with any dividends, interest
payments or other distributions received with respect thereto and the net
proceeds of the sale of any rights or other property, in exchange for Receipts
Surrendered to the Trustee (after deducting or upon payment of any applicable
taxes or governmental charges). At any time after the expiration of one year
following the date of termination, the Trustee may sell the Underlying
Securities then held hereunder and may thereafter hold uninvested the net
proceeds of any such sale, together with any other cash then held by it
hereunder, unsegregated and without liability for interest, for the pro rata
benefit of the Owners of Receipts which have not theretofore been Surrendered,
such Owners thereupon becoming general creditors of the Trustee with respect to
such net proceeds. After making such sale, the Trustee shall be discharged from
all obligations under these Standard Terms with respect to the Receipts and the
applicable Depositary Trust Agreement, except to
24
account for such net proceeds and other cash (after deducting, in each case, any
applicable taxes or governmental charges). Upon the termination of the
applicable Depositary Trust Agreement, the Sponsor shall be discharged from all
obligations under such Depositary Trust Agreement except for its obligations to
the Trustee under Sections 5.5 and 5.6(b).
ARTICLE 7
MISCELLANEOUS
SECTION 7.1 COUNTERPARTS. These Standard Terms and each Depositary Trust
Agreement may be executed in any number of counterparts, each of which shall be
deemed an original and all of such counterparts shall constitute one and the
same instrument. Copies of these Standard Terms and the applicable Depositary
Trust Agreement shall be filed with the Trustee and shall be open to inspection
by any Owner of a Receipt during business hours.
SECTION 7.2 THIRD-PARTY BENEFICIARIES. These Standard Terms and each Depositary
Trust Agreement are for the exclusive benefit of the respective parties hereto
and thereto, and shall not be deemed to give any legal or equitable right,
remedy or claim whatsoever to any other person.
SECTION 7.3 SEVERABILITY. In case any one or more of the provisions contained in
these Standard Terms or the applicable Depositary Trust Agreement or in the
Receipts should be or become invalid, illegal or unenforceable in any respect,
the validity, legality and enforceability of the remaining provisions contained
herein or therein shall in no way be affected, prejudiced or disturbed thereby.
SECTION 7.4 OWNERS AND BENEFICIAL OWNERS AS PARTIES; BINDING EFFECT. The Owners,
Beneficial Owners and Depositors from time to time shall be parties to the
applicable Depositary Trust Agreement and shall be bound by all of the terms and
conditions hereof and thereof and of the Receipts by their acceptance of
Receipts or any interest therein or by their depositing Securities, as the case
may be.
SECTION 7.5 NOTICES. (a) Any and all notices to be given to the Sponsor shall be
deemed to have been duly given if personally delivered or sent by mail or cable,
telex or facsimile transmission confirmed by letter, addressed to Cantor
Xxxxxxxxxx & Co., 000 Xxxx 00xx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention:
Xxxxxxx Xxxxxx, Executive Managing Director and General Counsel or any other
place to which the Sponsor may have transferred its principal office with notice
to the Trustee.
(b) Any and all notices to be given to the Trustee shall be deemed to
have been duly given if personally delivered or sent by mail or cable, telex or
facsimile transmission confirmed by letter, addressed to Bank of New York, 000
Xxxxxxx Xxxxxx, Xxxxx 8-E, New
25
York, New York 10286, Attention: Xxxxx Xxxxxxx, Vice President or any other
place to which the Trustee may have transferred its office with notices to the
Sponsor.
(c) Any and all notices to be given to any Owner shall be deemed to
have been duly given if personally delivered or sent by mail or cable, telex or
facsimile transmission confirmed by letter, addressed to such Owner at the
address of such Owner as it appears on the transfer books of the Trustee, or, if
such Owner shall have filed with the Trustee a written request that notices
intended for such Owner be mailed to some other address, at the address
designated in such request.
(d) Delivery of a notice sent by mail or cable, telex or facsimile
transmission shall be deemed to be effected at the time when a duly addressed
letter containing the same (or a confirmation thereof in the case of a cable,
telex or facsimile transmission) is deposited, postage prepaid, in a post-office
letter box. The Trustee may, however, act upon any cable, telex or facsimile
transmission received by them, notwithstanding that such cable, telex or
facsimile transmission shall not subsequently be confirmed by letter as
aforesaid.
SECTION 7.6 GOVERNING LAW. This Depositary Trust Agreement and the Receipts
shall be interpreted and all rights hereunder and thereunder and
provisions hereof and thereof shall be governed by the substantive laws (but not
the choice of law rules) of the State of New York. The Bank shall not be
responsible or liable for any failure or delay in the performance of its
obligations under this agreement arising our of or caused, directly or
indirectly, by circumstances beyond its reasonable control, including, without
limitation, acts of God; earthquakes; fires; floods; wars; civil or military
disturbances; sabotage; acts of terrorism; epidemics; riots; interruptions, loss
or malfunctions or utilities; computer (hardware or software) or communications
services; accidents; labor disputes; acts of civil or military authority or
governmental actions; it being understood that the Trustee shall use
commercially reasonable efforts which are consistent with accepted practices in
the banking industry to resume performance as soon as practicable under the
circumstances.
SECTION 7.7 TAX MATTERS. The Trustee agrees that it shall treat the Trust as a
grantor trust for federal income tax purposes. Each Owner and Beneficial Owner
of a Receipt agrees, through such Owner's acceptance of an interest in such
Receipt, that it shall treat the Trust as a grantor trust for federal income tax
purposes. The Trustee agrees to have prepared and filed all tax returns required
to be filed by the Trust and to comply with any applicable information reporting
obligations imposed on the Trust or with respect to payments received or made by
the Trust under New York or federal tax law. The Trustee reserves the right to
hire a service provider for the performance of its tax return preparation
duties, and shall have no liability for the preparation of such tax returns
provided that it has selected such service provider with due care.
26
IN WITNESS WHEREOF, CANTOR XXXXXXXXXX & CO. and BANK OF NEW YORK have
duly executed these Standard Terms as of the day and year first set forth above.
CANTOR XXXXXXXXXX & CO.,
as Sponsor
By: Cantor Xxxxxxxxxx Securities,
its Managing Partner
By: Cantor Xxxxxxxxxx, XX,
its General Partner
By: CF Group Management, Inc.
its Managing General Partner
By:
----------------------------
Name: Xxxxxx X. Xxxxxxx
Title: President
THE BANK OF NEW YORK,
as Trustee
By:
-------------------------------------
Name:
Title:
27
EXHIBIT A
[NAME OF TRUST]
[FORM OF] DEPOSITARY TRUST AGREEMENT
DEPOSITARY TRUST AGREEMENT dated as of ___________________ (this "Depositary
Trust Agreement"), between CANTOR XXXXXXXXXX & CO., a New York general
partnership (the "Sponsor"), THE BANK OF NEW YORK, a New York state-chartered
banking corporation, as trustee (the "Trustee"), and all Owners and Beneficial
Owners (each as hereinafter defined) from time to time of Depositary Trust
Receipts issued hereunder and all Depositors (as hereinafter defined) from time
to time.
SECTION 1. INCORPORATION OF STANDARD TERMS. The Standard Terms for Depositary
Trust Agreements agreed to as of ___________, 2004 (the "Standard Terms"),
between the Sponsor and the Trustee are hereby incorporated by reference into
and made a part of this Depositary Trust Agreement. If there is any conflict
between the provisions of this Depositary Trust Agreement and the Standard
Terms, the provisions of this Depositary Trust Agreement shall control.
SECTION 2. SECURITIES TO BE DEPOSITED. Initially, the securities which must be
deposited for issuance of one Round Lot of Receipts and which shall be
represented thereby shall be as follows:
Quantity which
must be deposited
Issuer and Title of Security per Round Lot of Receipts
-----------------------------------------------------------------------
[Issuer and title of security] [Quantity]
[Issuer and title of security] [Quantity]
provided, however, that if an event described in Section 4.3(a) or 4.8 of the
Standard Terms occurs, the quantities of the securities that must be deposited
for issuance of one Round Lot of Receipts shall be changed as provided in such
Sections, if applicable.
SECTION 3. CREATION AND DECLARATION OF TRUST; TERMINATION DATE. The trust
created hereby shall be known as [Name of Trust], for which the Trustee, or the
Sponsor to the extent provided herein, may conduct the business of the Trust,
make and execute contracts, and xxx and be sued. The termination date of the
Trust will be the business day after the Trustee distributes to Owners the
interest payment made on the final Underlying Debt Security held by the Trust,
unless terminated earlier pursuant to the Standard Terms.
A-1
IN WITNESS WHEREOF, CANTOR XXXXXXXXXX & CO. and THE BANK OF NEW YORK have duly
executed this agreement as of the day and year first set forth above. All Owners
and Beneficial Owners shall become parties hereto upon acceptance by them of
Receipts issued in accordance with the terms hereof or any interest therein, and
all Depositors shall become parties hereto upon depositing any Securities
hereunder.
CANTOR XXXXXXXXXX & CO.,
as Sponsor
By: Cantor Xxxxxxxxxx Securities,
its Managing Partner
By: Cantor Xxxxxxxxxx, XX,
its General Partner
By: CF Group Management, Inc.
its Managing General Partner
By:
----------------------------
Name: Xxxxxx X. Xxxxxxx
Title: President
THE BANK OF NEW YORK,
as Trustee
By:
-------------------------------------
Name:
Title:
A-2
EXHIBIT B
[Form of Receipt]
THE RECEIPTS EVIDENCED HEREBY REPRESENT RIGHTS WITH RESPECT TO UNDERLYING
SECURITIES (AS DEFINED IN THE DEPOSITARY TRUST AGREEMENT REFERRED TO HEREIN)
HELD BY THE TRUST AND DO NOT EVIDENCE AN OBLIGATION OF, OR AN INTEREST IN, AND
ARE NOT GUARANTEED BY THE SPONSOR OR THE TRUSTEE OR ANY OF THEIR RESPECTIVE
AFFILIATES. NEITHER THE RECEIPTS NOR THE UNDERLYING EQUITY SECURITIES ARE
INSURED OR GUARANTEED BY ANY GOVERNMENTAL AGENCY OR ANY OTHER PERSON.
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), TO THE AGENT
AUTHORIZED BY THE ISSUER FOR REGISTRATION OF TRANSFER EXCHANGE OR PAYMENT, AND
ANY CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER
NAME AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS
MADE TO CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE, OR OTHER USE HEREOF FOR VALUE OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER
HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.
DEPOSITARY TRUST RECEIPTS
ISSUED BY
[YUPS TRUST FOR ABC SHARES]
REPRESENTING COMMON STOCK OF
[ABC]
AND
CERTAIN U.S. TREASURY STRIPS
BANK OF NEW YORK, as Trustee
No. CUSIP NO.
BANK OF NEW YORK, as Trustee (hereinafter called the "Trustee"), hereby
certifies that CEDE & CO., as nominee of the Depository Trust Company, or
registered assigns, IS THE OWNER OF * Depository Trust Receipts issued by [YUPS
Trust for ABC
B-1
Shares], each representing the securities described in the within-mentioned
Depositary Trust Agreement. At the date hereof, each Round Lot of Receipts
represents the right to receive the following securities:
Quantity
Initially
Represented by
Issuer and Title Each Round Lot
of Security of Receipts
ABC, common stock
--------------
U.S. Treasury Strip [maturity & CUSIP]
--------------
which are deposited under the Depositary Trust Agreement referred to herein at
the office of the Trustee. The specification of the securities represented by
each Round Lot of Receipts is subject to change as provided in the Depositary
Trust Agreement. The Trustee's office is located at 000 Xxxxxxx Xxxxxx, Xxxxx
0-X, Xxx Xxxx, Xxx Xxxx 00000.
-------------
* That number of Receipts held at the Depository Trust Company at any given
point in time.
(1) THE DEPOSITARY TRUST AGREEMENT.
This Receipt is issued upon the terms and conditions set forth in the Depositary
Trust Agreement, dated as of _______, 2004 (the "Depositary Trust Agreement"),
agreed to by and among the Sponsor, the Trustee, all Owners and Beneficial
Owners from time to time of Receipts issued thereunder and all Depositors. By
becoming an Owner or Beneficial Owner, or by depositing Securities, such Person
agrees to become a party to the Depositary Trust Agreement and become bound by
all the terms and conditions thereof. The Depositary Trust Agreement sets forth
the rights of Owners and the rights and duties of the Trustee in respect of the
Securities deposited thereunder and any and all other securities, property and
cash from time to time received in respect of such Securities and held
thereunder (such Securities, other securities, property, and cash are herein
called "Underlying Securities"). Copies of the Depositary Trust Agreement are on
file at the Trustee's office.
The statements made on the face and reverse of this Receipt are summaries of
certain provisions of the Depositary Trust Agreement and are qualified by and
subject to the detailed provisions of the Depositary Trust Agreement, to which
reference is hereby made. Capitalized terms not defined herein shall have the
meanings set forth in the Depositary Trust Agreement.
B-2
(2) SURRENDER OF RECEIPTS AND WITHDRAWAL OF SECURITIES.
Upon Surrender at the office of the Trustee during the Trustee's regular
business hours of a Round Lot of Receipts or integral multiples thereof for the
purpose of withdrawal of the Underlying Securities represented thereby, and upon
payment of all taxes and governmental charges payable in connection with such
Surrender and withdrawal and delivery of the Underlying Securities, and subject
to the terms and conditions of the applicable Depositary Trust Agreement,
including, without limitation, Section 4.10 thereof, the Owner of such Receipts
shall be entitled to Delivery of the amount of Underlying Securities at the time
represented by such Receipts. Delivery of such Underlying Securities may be made
by (i) Delivery of Securities to such Owner or as ordered by such Owner and (ii)
any available form of delivery of any other securities, property and cash to
which such Owner is then entitled or as ordered by such Owner. The Trustee shall
only deliver whole Underlying Securities upon Surrender of Receipts representing
such Underlying Securities.
(3) REGISTRATION OF TRANSFERS, SPLIT-UPS AND COMBINATIONS OF CERTIFICATES;
LIMITATIONS.
The transfer of ownership of Receipts evidenced by this certificate is
registrable on the books of the Trustee at its office by the Owner hereof in
person or by a duly authorized attorney, upon Surrender of this certificate
evidencing Receipts, properly endorsed or accompanied by proper instruments of
transfer, and duly stamped as may be required by applicable laws. This
certificate evidencing Receipts may be split up into other such certificates,
each evidencing any integral multiple of a Round Lot of Receipts, or may be
combined with other certificates evidencing Receipts into one such certificate,
in each case evidencing the same aggregate number of Receipts as the certificate
or certificates Surrendered.
As a condition precedent to the Delivery, registration of transfer, split-up,
combination or Surrender (including, for the avoidance of doubt, any Surrender
in connection with an exchange) of any Receipt or withdrawal or delivery of any
Underlying Securities, the Trustee or Registrar may require payment from the
Depositor of Securities or the presentor of the Receipts of a sum sufficient to
reimburse it for any tax or governmental charge and any stock transfer or
registration fee with respect thereto (including any such tax or charge and fee
with respect to Securities being deposited or withdrawn), may require the
production of proof satisfactory to it as to the identity and genuineness of any
signature and may also require compliance with any regulations the Trustee may
establish consistent with the provisions of the Depositary Trust Agreement,
including, without limitation, Section 2.8 of the Standard Terms.
The Delivery of Receipts against deposits of Securities, the registration of
transfer of Receipts or the Surrender of Receipts for the purpose of withdrawal
of Underlying
B-3
Securities may be suspended, generally or in particular instances, during any
period when (i) the transfer books of the Trustee are closed, (ii) the transfer
books of a Securities Issuer are closed, (iii) transfers through DTC are
unavailable, or (iv) if any such action is deemed necessary or advisable by the
Trustee at any time or from time to time, subject to the provisions of the
following sentence. Notwithstanding any other provision of any applicable
Depositary Trust Agreement or the Receipts, the Surrender of Receipts and
withdrawal of Underlying Securities may not be suspended except as set forth in
the previous sentence and for (i) temporary delays caused by closing the
transfer books of the Trustee or a Securities Issuer, (ii) the payment of taxes
and governmental charges, and (iii) compliance with any U.S. laws or
governmental regulations relating to the Receipts or to the withdrawal of the
Underlying Securities. Without limitation of the foregoing, the Trustee shall
not knowingly accept for deposit under the Depositary Trust Agreement any
Securities required to be registered under the provisions of the Securities Act,
for the public offer and sale thereof in the United States, unless a
registration statement is in effect as to such Securities for such offer and
sale.
(4) LIABILITY OF OWNER FOR TAXES AND GOVERNMENTAL CHARGES.
If any tax or governmental charge shall become payable with respect to any
Receipts or any Underlying Securities represented thereby, such tax or other
charge shall be payable by the Owner of such Receipt to the Trustee. The Trustee
shall refuse to effect any registration of transfer of such Receipts or any
withdrawal of Underlying Securities represented by such Receipt until such
payment is made, and may withhold any dividends, interest payments or other
distributions, or may sell for the account of the Owner hereof Underlying
Securities constituting any multiples of the securities which must be deposited
for issuance of Receipts, and may apply such dividends, interest payments or
other distributions or the proceeds of any such sale in payment of such tax or
governmental charge and the Owner hereof shall remain liable for any deficiency.
(5) WARRANTIES ON DEPOSIT OF SECURITIES.
Every Person depositing Securities under the Depositary Trust Agreement shall be
deemed thereby to represent and warrant that such Securities and each
certificate therefor are validly issued and fully paid, that the person making
such deposit is duly authorized to do so and that at the time of delivery, such
Securities are free and clear of any lien, pledge, encumbrance, right, charge or
claim (other than the rights created by the Depositary Trust Agreement). Every
such person shall also be deemed to represent that such Securities are not, and
Receipts representing such Securities would not be, Restricted Securities. Such
representations and warranties shall survive the deposit of Securities, issuance
of Receipts or termination of the Depositary Trust Agreement. In the event that
the Trustee, in its sole discretion, determines that any of such representations
and warranties were materially inaccurate at the time deemed to be given and
that such inaccuracy has or may adversely affect other Beneficial Owners in any
material respect,
B-4
the related deposit of Securities shall be null and void and the Trustee shall
cause the related Securities (and any securities or financial instruments
resulting therefrom subsequent to the date of deposit and not previously
distributed) to be redelivered, if lawful and feasible, to such person or its
successors in interest. Notwithstanding anything herein to the contrary, if for
any reason any liens, pledges, encumbrances, rights, charges or claims shall be
made on such Securities by a party claiming through such Depositor, or if such
Securities are Restricted Securities, the Trustee may take such action or
refrain from taking any action as it shall determine in its sole discretion is
in the best interests of the holders of the Receipts, and related expenses may
be treated as Extraordinary Trust Expenses.
(6) FILING PROOFS, CERTIFICATES AND OTHER INFORMATION.
Any Person presenting Securities for deposit or any Owner of a Receipt may be
required from time to time to file with the Trustee such proof of citizenship or
residence, exchange control approval, or such information relating to the
registration on the books of any Securities Issuer or Securities Registrar, if
applicable, to execute such certificates and to make such representations and
warranties, as the Trustee may require. The Trustee may withhold the Delivery or
registration of transfer of any Receipts or the delivery of any Underlying
Securities until such proof or other information is filed or such certificates
are executed or such representations and warranties made.
(7) FEES OF TRUSTEE.
(a) The Trustee shall be entitled to a fee of .04% (4 basis points) per
year of the Trust's assets, calculated on the basis of the value of the
aggregate value of the securities deposited into the Trust less the aggregate
value of securities withdrawn from the Trust. The Trustee's fee will be payable
at the end of each calendar quarter at the rate of .01% of the aggregate value
of securities deposited in the Trust (determined at the time of the issuance of
the Receipts associated with that Deposit), less the aggregate value of the
securities withdrawn from the Trust (at the time of redemption of the Receipts
associated with that withdrawal). The Trustee's fee is payable no later than
[45] days after the end of each calendar quarter. The fees payable pursuant to
this Section 4, and any fractional amounts retained by the Trustee as additional
compensation pursuant to Sections 4.1, 4.4, 4.10, and 5.10 under the Trust
Agreement, shall be deemed to be full reimbursement to the Trustee for all Trust
Expenses.
(b) Extraordinary Trust Expenses shall be payable by the Sponsor upon
receipt of a detailed written invoice therefor from the Trustee, provided that
the Trustee shall use its best efforts to provide the Sponsor with written
notice prior to any Extraordinary Trust Expense to be incurred in excess of
$1,000 and, provided further, that in no event shall Extraordinary Trust
Expenses be incurred in an amount in excess of $50,000 in the aggregate without
the express written consent of the Sponsor.
B-5
(8) TITLE TO RECEIPTS.
It is a condition of the Receipts and every successive Owner of the Receipts by
accepting or holding a certificate for Receipts consents and agrees, that title
to such certificate (and to the Receipts evidenced thereby), when properly
endorsed or accompanied by proper instruments of transfer, is transferable by
delivery with the same effect as in the case of a negotiable instrument under
the laws of New York; provided, however, that the Trustee, notwithstanding any
notice to the contrary, may treat the Owner of Receipts as the absolute owner
thereof for the purpose of determining the person entitled to distribution of
dividends and interest payments or other distributions or to any notice provided
for in the Depositary Trust Agreement and for all other purposes.
(9) VALIDITY OF RECEIPTS.
Receipts shall not be entitled to any benefits under the Depositary Trust
Agreement or be valid or obligatory for any purpose, unless a certificate
evidencing such Receipts shall have been executed by the Trustee by the manual
or facsimile signature of a duly authorized signatory of the Trustee and, if a
Registrar (other than the Trustee) for the Receipts shall have been appointed,
countersigned by the manual or facsimile signature of a duly authorized officer
of the Registrar.
(10) REPORTS; INSPECTION OF TRANSFER BOOKS.
The issuer of the Underlying Equity Security is subject to the periodic
reporting requirements of the Exchange Act and, accordingly, files certain
reports with the Securities and Exchange Commission (herein called the
"Commission"). Such reports will be available for inspection and copying at the
public reference facilities maintained by the Commission located at 000 Xxxxx
Xxxxxx, XX, Xxxxxxxxxx, XX 00000.
The Trustee or its appointed agent shall, to the extent lawful, forward to
Owners any reports and communications, including any proxy statement or other
soliciting material, received from a Securities Issuer which are received by the
Trustee as the holder of the Underlying Securities or its appointed agent,
unless such reports and communications have been forwarded directly to Owners by
such Securities Issuer.
The Trustee shall keep books for the registration of Receipts and transfers of
Receipts which at all reasonable times shall be open for inspection by the
Owners.
(11) DIVIDENDS AND DISTRIBUTIONS.
Whenever the Trustee shall receive any cash dividend, interest payment or other
cash distribution on any Underlying Securities, the Trustee shall, subject to
the Depositary
B-6
Trust Agreement, distribute the amount thus received to the Owners of Receipts
entitled thereto in proportion to the number of Receipts held by them
respectively; provided, however, that in the event that the respective
Securities Issuer or the Trustee shall be required to withhold and does withhold
from such cash dividend, interest payment or such other cash distribution in
respect of any Underlying Securities an amount on account of taxes, the amount
distributed to the Owners of the Receipts representing such Underlying
Securities shall be reduced accordingly. Where such withholding is required
because of a characteristic of a particular Owner, including the characteristics
of any Person holding through such Owner, distributions to such Owner shall be
reduced by the amount of such withholding. The Trustee shall distribute only
such amount, however, as can be distributed without attributing to any Owner a
fraction of one cent. Any such fractional amounts shall be rounded down to the
nearest whole cent and so distributed to Owners entitled thereto. Fractional
amounts not distributed by the Trustee after such down-rounding shall be held by
the Trust for distribution to Owners on the next date on which a cash
distribution is made to Owners and such held over amounts shall be added to such
cash distribution. Any such fractional amounts remaining in the Trust after
termination pursuant to Section 6.2 of the Standard Terms shall be paid over to
the Sponsor, which shall donate such amount to a charity established for the
victims and the families of victims of the terrorist attacks on September 11,
2001.
Subject to the provisions of Sections 4.8 and 5.2 of the Standard Terms,
whenever the Trustee shall receive any distribution other than (i) a
distribution described in Section 4.1, 4.3(a) or 4.4 of the Standard Terms or
(ii) a distribution which would otherwise be distributed under the Depositary
Trust Agreement except that the Trustee deems such distribution not to be lawful
and feasible, the Trustee shall, subject to Section 4.10 of the Standard Terms,
cause the securities or property received by it to be distributed to the Owners
of Receipts entitled thereto, in proportion to the number of Receipts held by
them respectively, in any manner that the Trustee may deem equitable and
practicable for accomplishing such distribution; provided, however, that if in
the opinion of the Trustee such distribution cannot be made proportionately
among the Owners of Receipts entitled thereto, or if for any other reason
(including, but not limited to, any requirement that a Securities Issuer or the
Trustee withhold an amount on account of taxes or other governmental charges or
that such securities must be registered under the Securities Act in order to be
distributed to Owners) the Trustee deems such distribution not to be feasible,
the Trustee shall adopt such method as it deems equitable and practicable for
the purpose of effecting such distribution, including, but not limited to, the
public or private sale of the securities or property thus received, or any part
thereof, and the net proceeds of such sale shall be distributed by the Trustee
to the Owners entitled thereto as in the case of a distribution received in
cash.
If any distribution upon any Underlying Securities consists of a dividend in, or
free distribution of, additional Underlying Equity Securities, the Trustee
shall, to the extent lawful and feasible, retain such Securities under the
Depositary Trust Agreement, and, in such case, (i) the amount of such Securities
so retained in respect of each Receipt shall be
B-7
added to the quantity of Underlying Equity Securities which must be deposited
for issuance of Receipts and (ii) the number of Receipts in an Issuance
Denomination may be increased or decreased by the Trustee to the lowest multiple
of 100 Receipts such that no fractional shares are thereby represented in such
Issuance Denomination.
Subject to the provisions of Section 5.2 of the Standard Terms, if any
distribution upon the Underlying Equity Security consists of a dividend in, or
free distribution of, securities that are not Underlying Equity Securities, the
Trustee shall cause the securities received by it to be distributed to Owners in
accordance with Section 4.2 of the Standard Terms.
In the event that the Trustee determines that any distribution in property
(including Securities and rights to subscribe therefor) is subject to any tax or
other charge which the Trustee is obligated to withhold, notwithstanding
anything to the contrary in the Standard Terms or the applicable Depositary
Trust Agreement, the Trustee may by public or private sale dispose of all or a
portion of such property (including Securities and rights to subscribe therefor)
in such amounts and in such manner as the Trustee deems necessary and
practicable to pay any such taxes or charges and the Trustee shall distribute
the net proceeds of any such sale after deduction of such taxes or charges to
the Owners entitled thereto in proportion to the number of Receipts held by them
respectively, provided, however, that where such withholding is required because
of a characteristic of a particular Owner or any Person holding through such
Owner, distributions to such Owner shall be reduced by the amount of such
withholding. Any such distribution of cash related to the sale of such fraction
shall be subject to the rounding provisions of Section 4.1 of the Standard Terms
and the Trustee shall retain any undistributed amounts resulting from such
down-rounding.
(12) RIGHTS OFFERINGS.
(a) Subject to the provisions of Section 5.2 of the Standard Terms, if a
Securities Issuer offers or causes to be offered to the holders of any
Underlying Securities any rights to subscribe for additional Securities or other
securities, the Trustee shall have discretion in accordance with Section 4.4 of
the Standard Terms as to the procedure to be followed in making such rights
available to any Owners or in disposing of such rights on behalf of Owners and
making the net proceeds available to Owners or, if by the terms of such rights
offering or for any other reason (including the absence of an effective
registration statement covering the distribution of securities underlying the
rights), the Trustee may not make such rights available to any Owners or dispose
of such rights and make the net proceeds available to Owners, then the Trustee
shall allow the rights to lapse in accordance with Section 5.2 of the Standard
Terms. In the event that the Trustee is required to withhold and does withhold
on account of taxes from any distribution of the net proceeds of a disposition
of rights, the amount distributed to the Owners shall be reduced accordingly.
Where such withholding is required because of a characteristic of a particular
Owner or any Person holding through such Owner, distributions to such Owner
shall be reduced by the amount of such withholding. Any distribution of the net
proceeds
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of a disposition of rights shall be subject to the rounding provisions of
Section 4.1 of the Standard Terms and the Trustee shall retain any undistributed
amounts resulting from such down-rounding.
(b) The Trustee will not cause rights to be distributed to Owners
unless both the rights and the securities to which such rights relate are either
exempt from registration under the Securities Act with respect to a distribution
to all Owners or are registered under the provisions of such Act.
(c) The Trustee shall not be responsible for any failure to determine
that it may be lawful or feasible to cause rights to be distributed to Owners in
general or any Owner in particular.
(13) RECORD DATES.
Whenever any cash dividend, interest payment or other cash distribution shall
become payable or any distribution other than cash shall be made, or whenever
the Trustee receives notice of a meeting of or solicitation of proxies from
holders of any Underlying Securities, or whenever the Trustee shall find it
necessary or convenient in respect of any matter, the Trustee shall fix a record
date for the determination of the Owners who shall be (i) entitled to receive
such dividend, interest payment or distribution or the net proceeds of the sale
thereof, or (ii) entitled to give instructions to the Trustee for the exercise
of voting rights at any such meeting or solicitation. The Trustee shall use its
reasonable efforts to ensure that, to the extent practicable, the record date
set under the Depositary Trust Agreement will be the same as the record date set
by the Securities Issuer.
(14) VOTING OF UNDERLYING SECURITIES.
Upon receipt by the Trustee or its appointed agent of notice of any meeting of,
or solicitation of proxies from, holders of Underlying Securities, the Trustee
or its appointed agent shall, to the extent lawful, mail to the Owners a notice,
the form of which notice shall be in the sole discretion of the Trustee, which
shall contain (a) such information as is contained in such notice of meeting or
solicitation, (b) a statement that the Owners of Receipts as of the close of
business on a specified record date will be entitled, subject to applicable law
and the provisions of the corporate documents of the Securities Issuer, to
instruct the Trustee as to the exercise of the voting rights, if any, or giving
of proxies, as applicable, in respect of the amount of Underlying Securities
represented by their respective Receipts and (c) a statement as to the manner in
which such instructions may be given. Upon the written request of an Owner of a
Receipt on such record date, received on or before the date established by the
Trustee for such purpose, the Trustee shall endeavor, insofar as practicable, to
vote or cause to be voted, or to give a proxy, as
B-9
applicable, in respect of the amount of Underlying Securities represented by
such Receipt in accordance with the instructions set forth in such request. The
Trustee shall not vote or attempt to exercise the right to vote that attaches
to, or give a proxy with respect to, Underlying Securities other than in
accordance with such instructions.
(15) CHANGES AFFECTING UNDERLYING SECURITIES.
(a) In circumstances where the provisions of Sections 4.2 and 4.3(a) of
the Standard Terms do not apply, upon any change in nominal value, change in par
value, split-up, consolidation or any other reclassification of any Underlying
Securities, or upon any recapitalization, reorganization, merger or
consolidation or sale of assets affecting the issuer of any Underlying Equity
Security, if the relevant Securities Issuer survives such event, the Trustee
shall, to the extent lawful and feasible, retain such Securities under the
Depositary Trust Agreement, and, in such case, (A) the amount of such Securities
so retained in respect of each Receipt shall be added to the classes and
quantities of Securities which must be deposited for issuance of Receipts and
(B) the number of Receipts in an Issuance Denomination may be increased or
decreased by the Trustee to the lowest multiple of 100 Receipts such that no
fractional shares are thereby represented in such Issuance Denomination.
(b) Securities of any class which are surrendered by the Trustee in
connection with any such conversion or exchange shall, effective on the date of
such surrender, no longer be part of the securities which must be deposited for
issuance of Receipts. In any such case, the Trustee may call for the Surrender
of outstanding certificates evidencing Receipts to be exchanged for new
certificates specifically describing any applicable change in the classes and
quantities of securities which must be deposited for issuance of Receipts.
(16) LIABILITY OF THE SPONSOR AND THE TRUSTEE.
Neither the Sponsor nor the Trustee nor any of their respective directors,
employees, agents or affiliates shall incur any liability to any Owner or
Beneficial Owner of any Receipt, if by reason of any provision of any present or
future law or regulation of the United States or any other country, or of any
governmental or regulatory authority or stock exchange, or by reason of any
provisions of any securities issued or distributed by any Securities Issuer, or
any offering or distribution thereof, or by reason of any act of God or war or
other circumstances beyond its control, the Sponsor or the Trustee shall be
prevented or forbidden from, or be subject to any civil or criminal penalty on
account of, doing or performing any act or thing which by the terms of the
Standard Terms or the applicable Depositary Trust Agreement it is provided shall
be done or performed; nor shall the Sponsor or the Trustee nor any of their
respective directors, employees, agents or affiliates incur any liability to any
Owner or Beneficial Owner of any Receipt by reason of any non-performance or
delay, caused as aforesaid, in
B-10
the performance of any act or thing which by the terms of the Standard Terms or
the applicable Depositary Trust Agreement it is provided shall or may be done or
performed, or by reason of any exercise of, or failure to exercise, any
discretion provided for in the Standard Terms or the applicable Depositary Trust
Agreement or for any action or inaction taken or omitted in good faith and
without negligence under the Standard Terms or the applicable Depositary Trust
Agreement. Where, by the terms of an offering or distribution to which Sections
4.2, 4.3(b) or 4.4 of the Standard Terms applies, or for any other reason, it is
not lawful and feasible to make such distribution or offering available to
Owners, and the Trustee may not dispose of such distribution or offering on
behalf of such Owners and make the net proceeds available to such Owners, then
the Trustee shall not make such distribution or offering available to Owners and
shall allow any rights, if applicable, to lapse.
Neither the Sponsor nor the Trustee shall be under any obligation to
prosecute or defend any action, suit or other proceeding in respect of any
Underlying Securities or in respect of the Receipts or the rights of the
Beneficial Owners of the Receipts. Notwithstanding the foregoing, the Trustee
may, in its discretion, undertake such action as it may deem necessary at any
time to protect the Trust and the rights of the Beneficial Owners of the
Receipts, provided however that any expense or liability and any pecuniary cost
of the Trustee reasonably incurred in connection therewith shall be an
Extraordinary Trust Expense.
The Trustee and the Sponsor may employ agents, attorneys, accountants and
auditors and shall not be answerable for the default or misconduct of any such
agents, attorneys, accountants or auditors if such parties have been selected
with reasonable care. Neither the Sponsor nor the Trustee shall be liable for
any action or non-action by it in reliance upon the advice of or information
from legal counsel, accountants, any person presenting Securities for deposit,
any Owner or Beneficial Owner, or any other person believed by it in good faith
to be competent to give such advice or information, including, without
limitation, whether any taxes or other charges are due on, or whether there are
any legal restrictions on the delivery or transfer of any Securities or
Receipts, or whether any Securities are Restricted Securities.
The Trustee shall not be liable for any acts or omissions made by a successor
Trustee whether in connection with a previous act or omission of the Trustee or
in connection with any matter arising wholly after the resignation of the
Trustee, provided that in connection with the issue out of which such potential
liability arises the Trustee performed its obligations without negligence or bad
faith while it acted as Trustee.
The Trustee shall be under no liability for any action taken in good faith on
any appraisal, paper, order, list, demand, request, consent, affidavit, notice,
opinion, direction, endorsement, assignment, resolution, draft or other document
whether or not of the same
B-11
kind, prima facie properly executed, or for the disposition of monies or
Securities pursuant to the Standard Terms, provided that the Trustee has acted
without negligence or bad faith. The Trustee may construe any provision of the
Standard Terms or any applicable Depositary Trust Agreement insofar as the same
may appear to be ambiguous or inconsistent with any other provisions of the
Standard Terms or any applicable Depositary Trust Agreement, and any
construction of any such provision by the Trustee in good faith shall be binding
upon the parties to each of those Agreements.
The Trustee shall not be responsible for the validity or sufficiency of the
trust created by any Depositary Trust Agreement, the validity or sufficiency of
the Standard Terms or any applicable Depositary Trust Agreement or for the due
execution of those Agreements by the Sponsor, or for the form, character,
genuineness, sufficiency, value or validity of any Securities or for or in
respect of the validity or sufficiency of this or any other certificate (except
for the due execution thereof by the Trustee).
The Trustee shall not be responsible for any failure to carry out any
instructions to vote any of the Underlying Securities, or for the manner in
which any such vote is cast or the effect of any such vote, provided that any
such action or non-action is without negligence or bad faith. Except as
specifically provided in Section 4.6 of the Standard Terms, the Trustee shall
have no obligation to monitor or to obtain any information concerning the
business or affairs of any Securities Issuer or to advise Owners or Beneficial
Owners of any event or condition affecting any Securities Issuer. The Trustee
shall have no obligation to comply with any direction or instruction from any
Owner or Beneficial Owner regarding Receipts except to the extent specifically
provided in the Standard Terms or any applicable Depositary Trust Agreement. The
Trustee shall be a fiduciary under the Standard Terms and the applicable
Depositary Trust Agreement; provided, however, that the fiduciary duties and
responsibilities and liabilities of the Trustee shall be limited by, and shall
be only those specifically set forth in, the Standard Terms and the applicable
Depositary Trust Agreement. No disclaimer of liability under the Securities Act
is intended by any provision of the Depositary Trust Agreement. For the purposes
of the Standard Terms, actual knowledge or knowledge of the Trustee shall mean
actual knowledge of an officer in the corporate action department of the
Trustee, and the actual knowledge or knowledge of the Sponsor shall mean actual
knowledge of an officer of the Sponsor responsible for matters regarding the
Trust.
(17) RESIGNATION OR REMOVAL OF THE TRUSTEE.
(a) The Trustee may at any time resign as Trustee under the Depositary
Trust Agreement by written notice of its election so to do, delivered to the
Sponsor, and such resignation shall take effect upon the appointment of a
successor Trustee and its acceptance of such appointment.
B-12
(b) If at any time the Trustee is in material breach of its obligations
under the Depositary Trust Agreement and the Trustee fails to cure such breach
within 30 days after receipt by the Trustee of written notice from the Sponsor
or the Owners of 25% or more of the outstanding Receipts specifying such default
and requiring the Trustee to cure such default, the Sponsor, acting on behalf of
the Owners, may remove the Trustee by written notice delivered to the Trustee,
and such removal shall take effect upon the appointment of the successor Trustee
and its acceptance of such appointment.
(c) In case at any time the Trustee shall resign or be removed, the
Sponsor, acting on behalf of the Owners, shall use its reasonable efforts to
appoint a successor Trustee.
(18) AMENDMENT.
The Trustee and the Sponsor may amend any provision of the Depositary Trust
Agreement without the consent of any Owner. Promptly after the execution of
any amendment, the Trustee shall furnish written notification of any such
amendment to each Owner. Any amendment that imposes or increases any fees or
charges (other than taxes and governmental charges, registration fees or other
such expenses), or that otherwise prejudices any substantial existing right of
the Owners will not become effective until 30 days after notice of such
amendment is given to the Owners. Every Owner and Beneficial Owner, at the time
any amendment so becomes effective, shall be deemed, by continuing to hold any
Receipt or an interest therein, to consent and agree to such amendment and to be
bound by the Depositary Trust Agreement as amended thereby. In no event shall
any amendment impair the right of the Owner of any Receipt to Surrender such
Receipt and receive therefor the Underlying Securities represented thereby,
except in order to comply with mandatory provisions of applicable law.
(19) TERMINATION OF TRUST.
(a) The Trust shall terminate promptly after the Trustee distributes to
Owners the interest payment made on the final Underlying Debt Security held by
the Trust.
(b) The Trust shall terminate earlier than the time specified in
paragraph (a) of this Section 6.2 by the Trustee mailing notice of such
termination to the Owners of all Receipts then outstanding at least 30 days
prior to the date set for termination (or upon such lesser notice as may be
practicable in the event of an occurrence set forth in (i), (ii), (iii), (iv),
(v) or (viii) below) if any of the following occurs:
(i) The Trustee is notified that the Underlying Equity Security ceases
to be outstanding as a result of a merger, consolidation or other corporate
combination of the Securities Issuer and Section 4.8 of the Standard Terms does
not apply;
B-13
(ii) The Trustee is notified that the Underlying Equity Security is
delisted from trading on its primary exchange or market and is not listed for
trading on another national securities exchange or through Nasdaq within five
business days from the date of such delisting;
(iii) The Trustee is notified that the Underlying Equity Security no
longer is registered under section 12 of the Exchange Act;
(iv) The Trustee is notified that the Commission determines that the
issuer of the Underlying Equity Security is an investment company under the
Investment Company Act;
(v) The Trustee is notified that the Commission determines that the
Trust is an investment company required to register as such under the Investment
Company Act;
(vi) The Trustee is notified that the Receipts are delisted from a
national securities exchange and are not approved for listing on another
national securities exchange within 5 business days of their delisting;
(vii) Owners of more than 50% of the outstanding Receipts notify the
Trustee that they elect to terminate the Trust;
(viii) 60 days shall have expired after the Trustee shall have
delivered to the Sponsor and the Owners a written notice of its election to
resign and a successor trustee shall not have been appointed and accepted its
appointment as provided in Section 5.4 of the Standard Terms;
(ix) The Sponsor or the Trustee determines, in its sole discretion,
that legal or regulatory issues (including litigation, Commission action or
interpretive developments of applicable law or regulation) make such early
termination in the best interest of the Owners, the Sponsor or the Trustee; or
(x) In excess of $50,000 of Extraordinary Trust Expenses have been
incurred by or on behalf of the Trust since the Closing Date, or are reasonably
believed by the Trustee to be incurred within the succeeding 30 day period, and
either the Trustee or the Sponsor so elects.
(c) On and after the date of termination, the Trustee shall deliver to
each Owner of a Receipt, to him or upon his order, the amount of Underlying
Securities evidenced by such Receipt and thereupon cancel such Receipt,
provided, however, at the sole discretion of the Trustee, the Trustee may
condition such delivery upon prior (i) Surrender of such Receipt at the office
of the Trustee, and (ii) payment of any applicable
B-14
taxes or governmental charges, or the Trustee may deduct any taxes or charges
from any cash distribution with respect to the Receipts, or the Trustee may, in
its sole discretion, collect any such taxes or charges from the Owner at any
time thereafter. If any Receipts shall remain outstanding after the date of
termination, the Trustee thereafter shall discontinue the registration of
transfers of Receipts, shall suspend the distribution of dividends, interest
payments or other distribution to the Owners thereof, and shall not give any
further notices or perform any further acts under these Standard Terms or the
applicable Depositary Trust Agreement, except that the Trustee shall continue to
collect dividends, interest payments and other distributions pertaining to
Underlying Securities and hold the same uninvested and without liability for
interest, shall sell rights as provided in these Standard Terms or the
applicable Depositary Trust Agreement, and shall continue to deliver Underlying
Securities, together with any dividends, interest payments or other
distributions received with respect thereto and the net proceeds of the sale of
any rights or other property, in exchange for Receipts Surrendered to the
Trustee (after deducting or upon payment of any applicable taxes or governmental
charges). At any time after the expiration of one year following the date of
termination, the Trustee may sell the Underlying Securities then held hereunder
and may thereafter hold uninvested the net proceeds of any such sale, together
with any other cash then held by it hereunder, unsegregated and without
liability for interest, for the pro rata benefit of the Owners of Receipts which
have not theretofore been Surrendered, such Owners thereupon becoming general
creditors of the Trustee with respect to such net proceeds. After making such
sale, the Trustee shall be discharged from all obligations under these Standard
Terms with respect to the Receipts and the applicable Depositary Trust
Agreement, except to account for such net proceeds and other cash (after
deducting any applicable taxes or governmental charges).
(20) TAX MATTERS
In accordance with Section 7.7 of the Standard Terms, the Trustee shall
treat the Trust as a grantor trust for federal income tax purposes. Each Owner
and Beneficial Owner of a Receipt, through such Owner's acceptance of an
interest in such Receipt, shall treat the Trust as a grantor trust for federal
income tax purposes. The Trustee shall prepare and file all tax returns required
to be filed by the Trust and shall comply with any applicable information
reporting obligation imposed on the Trust or with respect to payments received
or made by the Trust.
B-15
STANDARD TERMS FOR DEPOSITARY TRUST AGREEMENTS
between
CANTOR XXXXXXXXXX & CO.
and
BANK OF NEW YORK
as Trustee
Dated as of ______________, 2004
Section 1.1 Definitions...........................................................................1
Section 1.2 Rules of Construction.................................................................4
Section 2.1 Depositary Trust Agreements...........................................................5
Section 2.2 Creation and Declaration of Trusts; Deposit of Securities.............................5
Section 2.3 Acceptance by Trustee.................................................................6
Section 2.4 Form and Transferability of Receipts..................................................6
Section 2.5 Delivery of Receipts..................................................................8
Section 2.6 Registration; Registration of Transfer; Combination and Split-up of Certificates......8
Section 2.7 Surrender of Receipts and Withdrawal of Underlying Securities.........................9
Section 2.8 Limitations on Delivery, Registration of Transfer and Surrender of Receipts...........9
Section 2.9 Lost Certificates, Etc...............................................................10
Section 2.10 Cancellation and Destruction of Surrendered Certificates.............................10
Section 2.11 Restrictions on Pre-Release, Pre-Cancellation and Securities Lending.................10
Section 3.1 Filing Proofs, Certificates and Other Information....................................10
Section 3.2 Liability of Owner for Taxes and Other Charges.......................................11
Section 3.3 Warranties on Deposit of Securities..................................................11
Section 4.1 Cash Distributions...................................................................12
Section 4.2 Distributions Other Than Cash or Securities..........................................12
Section 4.3 Distributions in Securities..........................................................12
Section 4.4 Rights Offerings.....................................................................13
Section 4.5 Fixing of Record Date................................................................13
Section 4.6 Reports..............................................................................14
Section 4.7 Voting Instructions for Underlying Securities........................................14
Section 4.8 Changes Affecting Underlying Securities..............................................14
Section 4.9 Withholding..........................................................................15
Section 4.10 Limitation on Distributions..........................................................15
Section 5.1 Maintenance of Office and Transfer Books by the Trustee..............................15
Section 5.2 Prevention or Delay in Performance by the Sponsor or the Trustee.....................16
Section 5.3 Obligations of the Sponsor and the Trustee...........................................16
Section 5.4 Resignation or Removal of the Trustee; Appointment of Successor Trustee..............18
Section 5.5 Indemnification......................................................................19
Section 5.6 Fees of Trustee......................................................................20
Section 5.7 Retention of Trust Documents.........................................................21
Section 5.8 Federal Securities Law and Other Regulatory Filings..................................21
Section 5.9 Prospectus Delivery..................................................................22
Section 5.10. Cash Held by the Trust...............................................................22
Section 6.1 Amendment............................................................................22
Section 6.2 Termination..........................................................................23
Section 7.1 Counterparts.........................................................................25
Section 7.2 Third-Party Beneficiaries............................................................25
Section 7.3 Severability.........................................................................25
Section 7.4 Owners and Beneficial Owners as Parties; Binding Effect..............................25
Section 7.5 Notices..............................................................................25
Section 7.6 Governing Law........................................................................26
Section 7.7 Tax Matters..........................................................................26
EXHIBIT A
FORM OF DEPOSITARY TRUST AGREEMENT....................................................................A-1
EXHIBIT B
FORM OF CERTIFICATE EVIDENCING RECEIPTS...............................................................B-1
2