TRUST AGREEMENT
TRUST AGREEMENT, dated as of April 30, 1999, between XXXXXXX, XXXXX &
CO., as sponsor (the "Sponsor") and XXXX X. EFRON, as trustee (the "Trustee").
1. The Sponsor hereby creates Ninth Automatic Common Exchange Security
Trust (the "Trust") to acquire and hold a fixed portfolio of stripped U.S.
Treasury Securities (the "Treasuries"), enter into and hold purchase contracts
with respect to common stocks chosen by the Trustee (the "Contracts"), issue
shares of beneficial interest therein ("Securities"), and hold the Trust Estate
in trust for the use and benefit of all present and future beneficial owners of
Securities and otherwise carry out the terms and conditions hereof, all for the
purpose of providing periodic cash distributions and the potential for capital
appreciation for the beneficial owners of Securities. The Trustee hereby
declares that he will accept and hold the Trust Estate in trust for the use and
benefit of all present or future beneficial owners of Securities. The Sponsor
hereby deposits with the Trustee the sum of $10 to accept and hold in trust
hereunder. As used herein, "Trust Estate" means the Treasuries, the Contracts
and any monies held by the Trust from time to time.
2. The Sponsor authorizes and directs the Trustee to issue one
Security, at such price and on such terms as the Trustee may determine, to the
Sponsor upon the Sponsor's request. Such Security shall be evidenced by a
certificate, which shall be executed manually by the Trustee, shall be in
substantially the form of Exhibit A to this Agreement, with the blanks
appropriately filled in, shall be dated the date of countersignature and
delivery by the Paying Agent and shall represent an undivided interest in the
Trust. If the Trust makes a public offering of Securities, then subsequent to
the determination of the public offering price per Security and the related
underwriting discount for the Securities to be sold to the underwriters in such
public offering but prior to the sale of the Securities to such underwriters,
the Security issued pursuant to this Section shall be split into a greater
number of Securities so that immediately following such split the value of each
Security held by the Sponsor will equal the aforesaid public offering price less
the related underwriting discount.
3. The Sponsor specifically authorizes and directs the Trust to (i)
prepare a Registration Statement to be filed with the Securities and Exchange
Commission and an accompanying Prospectus to be furnished to prospective
purchasers of Securities; (ii) acquire the Treasuries as directed by the
Sponsor; (iii) enter into the Contracts; (iv) hold, invest and disburse monies
as directed by the Sponsor; and (v) adopt and amend bylaws and take any and all
other actions as necessary or advisable to carry out the purposes of the Trust.
4. Subject to the specific provisions hereof, the Trust will be managed
solely by the Trustee. The Trustee shall have fiduciary responsibility for the
safekeeping and use of all funds and assets of the Trust and shall not employ,
or permit another to employ, such funds or assets in any manner except for the
exclusive benefit of the Trust.
5. The Trustee may resign or be discharged of the trust created hereby
by executing an instrument in writing and filing the same with the Sponsor. Such
resignation shall become effective immediately upon such filing unless otherwise
specified therein. Before the issuance of any Securities, any vacancy in the
office of the Trustee may be filled by appointment by the Sponsor.
6. The Trustee shall not be liable to the Trust or any beneficial owner
of Securities for any action taken or for refraining from taking any action
except in the case of willful misfeasance, bad faith, gross negligence or a
willful disregard of the duties of his office.
7. Before the issuance of any Securities, (i) the trust created hereby
shall be revocable by the Sponsor at any time upon written notice to the
Trustee, and (ii) this Trust Agreement may be amended by the Trustee from time
to time for any purpose. This Trust Agreement and the Trust shall terminate upon
the date which is 21 years after the death of the last survivor of Xxxxxx X.
Xxxxxxx living on the date hereof.
8. This Trust Agreement is executed and delivered in the State of New
York, and all laws or rules of construction of the State of New York shall
govern the rights of the parties hereto and of the beneficial owners of
Securities and the interpretation of the provisions hereof.
9. This Trust Agreement may be executed in one or more counterparts
and, when a counterpart has been executed by each party hereto, all such
counterparts taken together shall constitute one and the same agreement.
IN WITNESS WHEREOF, the parties hereto have caused this Trust Agreement
to be duly executed as of the first date written above.
XXXXXXX, SACHS & CO., as Sponsor
/s/ Xxxxxxx, Xxxxx & Co.
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XXXX X. EFRON, as Trustee
/s/ Xxxx X. Efron
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Xxxx X. Efron
Exhibit A
THIS CERTIFICATE IS ISSUED UNDER AND IS SUBJECT TO THE TERMS, PROVISIONS AND
CONDITIONS OF THE TRUST AGREEMENT REFERRED TO BELOW TO WHICH THE HOLDER OF THIS
CERTIFICATE BY VIRTUE OF THE ACCEPTANCE HEREOF ASSENTS AND IS BOUND.
NINTH AUTOMATIC COMMON EXCHANGE SECURITY TRUST
NO. 1 ONE SECURITY
THIS CERTIFIES THAT XXXXXXX, XXXXX & CO. IS THE RECORD OWNER OF ONE OF
THE SECURITIES OF NINTH AUTOMATIC COMMON EXCHANGE SECURITY TRUST CONSTITUTING AN
UNDIVIDED INTEREST IN NINTH AUTOMATIC COMMON EXCHANGE SECURITY TRUST, A TRUST
CREATED UNDER THE LAWS OF THE STATE OF NEW YORK PURSUANT TO A TRUST AGREEMENT,
DATED APRIL __, 0000, XXXXXXX XXXXXXX, XXXXX & CO. AND XXXX X. EFRON, AS
TRUSTEE. THIS CERTIFICATE IS ISSUED UNDER AND IS SUBJECT TO THE TERMS,
PROVISIONS AND CONDITIONS OF THE TRUST AGREEMENT, TO WHICH THE HOLDER OF THIS
CERTIFICATE BY VIRTUE OF THE ACCEPTANCE HEREOF ASSENTS AND IS BOUND, A COPY OF
WHICH TRUST AGREEMENT IS AVAILABLE AT THE OFFICE OF THE TRUSTEE, 00 XXXXX
XXXXXX, XXX XXXX, XXX XXXX 00000.
WITNESS THE SIGNATURE OF THE TRUSTEE.
NINTH AUTOMATIC COMMON
EXCHANGE SECURITY TRUST
DATED:
By:
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Xxxx X. Efron
Trustee
