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TRUST AGREEMENT
TRUST AGREEMENT, dated as of June 29, 1999, between XXXXXXX, XXXXX & CO.,
as sponsor (the "Sponsor") and XXXX X. EFRON, as trustee (the "Trustee").
1. The Sponsor hereby creates Twelfth 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.
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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.
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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
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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.
TWELFTH 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 TWELFTH AUTOMATIC COMMON EXCHANGE SECURITY TRUST CONSTITUTING AN
UNDIVIDED INTERESTS IN TWELFTH AUTOMATIC COMMON EXCHANGE SECURITY TRUST, A TRUST
CREATED UNDER THE LAWS OF THE STATE OF NEW YORK PURSUANT TO A TRUST AGREEMENT,
DATED JUNE 29, 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.
TWELFTH AUTOMATIC COMMON
EXCHANGE SECURITY TRUST
DATED:
By:_________________________
Xxxx X. Efron
Trustee
