Exhibit 4.4
AMENDMENT NO. 2 TO THE STANDARD TERMS FOR
DEPOSITARY TRUST AGREEMENTS
AMENDMENT NO. 2 TO THE STANDARD TERMS FOR DEPOSITARY TRUST AGREEMENTS
(the "Amendment") dated as of November 22, between Xxxxxxx Lynch, Pierce, Xxxxxx
& Xxxxx Incorporated, as Initial Depositor, and The Bank of New York, as
Trustee.
W I T N E S S E T H:
WHEREAS, the Initial Depositor wishes to amend the Standard Terms for
Depositary Trust Agreements, dated September 2, 1999, between the Initial
Depositor and the Trustee (the `Standard Terms") to allow for the inclusion in
all future and existing HOLDRS trusts the securities received as a result of
distribution of securities from a Securities Issuer or the securities received
as consideration in connection with a merger, acquisition or other corporate
combination involving a Securities Issuer. However, the Amendment does not
apply to the Market 2000+ HOLDRS or a future HOLDRS Trust agreed upon by the
Initial Depositor and the Trustee.
NOW, THEREFORE, in consideration of the premises and the mutual covenants
contained in this Amendment, the parties hereby agree as follows:
Article I
DEFINITIONS
Section 1.1 Definitions. The following definition is hereby deleted in
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its entirety and restated as follows:
(a) "Securities" means any shares of a class of securities, including
American depositary shares and American depositary receipts, and Additional
Securities which must be deposited for issuance of Receipts.
(b) The following definitions are hereby added to the Standard Terms:
"Additional Securities" means any securities which are issued to the
holders of the Underlying Securities as a dividend, distribution or in exchange
for Securities, unless such securities (1) are not listed for trading on a U.S.
national securities exchange or through Nasdaq NMS or (2) have a Standard &
Poor's Corporation Sector Classification that is different from any Underlying
Security in the respective HOLDRS trust at the time of the dividend,
distribution or exchange.
"Standard & Poor's Corporation Sector Classification" means the sector
classification given to each class of publicly traded securities of a company,
from time to time, by Standard & Poor's Corporation.
Article II
AMENDMENT
Section 2.1 Reconstitution Events. Section 2.11(a) is hereby
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deleted in its entirety and replaced with the following:
(a) If any class of Securities ceases to be outstanding as a result
of a merger, consolidation, corporate combination or other event, and, as a
result, securities which are not Underlying Securities or Additional Securities
are received by the Trustee, the Trustee shall, if it has actual knowledge of
such event, to the extent lawful and feasible and subject to Section 4.10,
distribute any such securities which shall be received by the Trustee to the
Owners in proportion to their ownership of Receipts. Effective on the date that
such Securities cease to be outstanding, such class of Securities shall cease to
be either Securities or Underlying Securities .
Section 2.2 Distributions in Securities. Section 4.3 is hereby
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deleted in its entirety and replaced with the following:
If any distribution by a Securities Issuer consists of a dividend in,
or free distribution of, Securities or Additional Securities, the Trustee shall,
to the extent lawful and feasible, retain such Securities or Additional
Securities under the Depositary Trust Agreement, and, in such case, (i) the
amount of such Securities or Additional 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 one Receipt 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.
Section 2.3 Changes Affecting Underlying Securities.
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Section 4.8(a) is hereby deleted in its entirety and replaced with the
following:
In circumstances where the provisions of Section 2.11, 4.2 and 4.3 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 Security, regardless of whether
the Securities Issuer survives, the Trustee shall, to the extent lawful and
feasible, retain any Securities or Additional Securities under the Depository
Trust Agreement, and, in such case, (i) the amount of such Securities or
Additional 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
one Receipt 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.
Article III
Miscellaneous
Section 3.1 Counterparts. This Amendment may be executed in any
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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 this
Amendment, the 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 3.2 Governing Law. This Amendment shall be interpreted and
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all rights hereunder and provisions hereof shall be governed by the substantive
laws (but not the choice of law rules) of the State of New York.
IN WITNESS WHEREOF, Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx Incorporated
and The Bank of New York have caused this Amendment to be executed by their
respective officers thereunto duly authorized, as of the date first set forth
above.
XXXXXXX LYNCH, PIERCE, XXXXXX &
XXXXX INCORPORATED
By: /s/ Xxxxxxx X. Xxxxxxxx
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Xxxxxxx X. Xxxxxxxx
Attorney-in-Fact and
First Vice President
THE BANK OF NEW YORK,
as Trustee
By: /s/ Xxxxxx XxXxxxxxxx
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Xxxxxx XxXxxxxxxx
Vice President
