Exhibit 2.a(ii)
S&C Draft of February 16, 1999
AMENDED AND RESTATED
TRUST AGREEMENT
CONSTITUTING
XXXXX XXXXXX AUTOMATIC COMMON EXCHANGE SECURITY TRUST II
Dated as of February 17, 1999
Table of Contents
Page
----
ARTICLE I
DEFINITIONS
ARTICLE II
TRUST DECLARATION; PURPOSES, POWERS
AND DUTIES OF THE TRUSTEES; ADMINISTRATION
SECTION 2.1 Declaration of Trust; Purposes of the Trust................... 6
SECTION 2.2 General Powers and Duties of the Trustees..................... 7
SECTION 2.3 Portfolio Acquisition......................................... 9
SECTION 2.4 Portfolio Administration...................................... 9
SECTION 2.5 Manner of Sales............................................... 13
SECTION 2.6 Limitations on Trustees' Powers............................... 14
ARTICLE III
ACCOUNTS AND PAYMENTS
SECTION 3.1 The Trust Account............................................. 15
SECTION 3.2 Payment of Fees and Expenses.................................. 15
SECTION 3.3 Distributions to Holders...................................... 15
SECTION 3.4 Segregation................................................... 15
SECTION 3.5 Temporary Investments......................................... 15
ARTICLE IV
REDEMPTION
SECTION 4.1 Redemption................................................... 16
ARTICLE V
ISSUANCE OF CERTIFICATES; REGISTRY; TRANSFER OF SECURITIES
SECTION 5.1 Form of Certificate........................................... 16
SECTION 5.2 Transfer of Securities; Issuance, Transfer and
Interchange of Certificates....................................... 18
SECTION 5.3 Replacement of Certificates................................... 19
ARTICLE VI
ISSUANCE OF THE CONTRACT
SECTION 6.1 Execution of the Contract..................................... 19
ARTICLE VII
TRUSTEES
SECTION 7.1 Trustees...................................................... 20
SECTION 7.2 Vacancies..................................................... 20
SECTION 7.3 Powers........................................................ 21
SECTION 7.4 Meetings...................................................... 21
SECTION 7.5 Resignation and Removal....................................... 21
SECTION 7.6 Liability..................................................... 22
SECTION 7.7 Compensation.................................................. 22
ARTICLE VIII
MISCELLANEOUS
SECTION 8.1 Meetings of Holders........................................... 23
SECTION 8.2 Books and Records; Reports.................................... 24
SECTION 8.3 Termination................................................... 25
SECTION 8.4 Amendment and Waiver.......................................... 26
SECTION 8.5 Accountants................................................... 27
SECTION 8.6 Nature of Holder's Interest................................... 28
SECTION 8.7 New York Law to Govern........................................ 29
SECTION 8.8 Notices....................................................... 29
SECTION 8.9 Severability.................................................. 29
SECTION 8.10 Counterparts.................................................. 29
EXHIBITS
EXHIBIT A Form of Certificate........................................... A-1
EXHIBIT B Collateral Agreement.......................................... B-1
EXHIBIT C Contract...................................................... C-1
EXHIBIT D Indemnity Agreement........................................... D-1
EXHIBIT E Expense Agreement............................................. E-1
SCHEDULES
SCHEDULE I Form of Treasury Securities................................... I-1
AMENDED AND RESTATED TRUST AGREEMENT
This Amended and Restated Trust Agreement, dated as of
February 17, 1999 (the "Trust Agreement"), by and between Xxxxxxx, Xxxxx & Co.,
as sponsor (the "Sponsor"), and Xxxxxx X. Xxxxxxx, Xxxxxxx X. Xxxxxx III and
Xxxxx X. X'Xxxxx, as trustees (the "Trustees"), constituting Xxxxx Xxxxxx
Automatic Common Exchange Security Trust II (the "Trust").
W I T N E S S E T H:
WHEREAS, the Sponsor and Xxxx X. Efron, as trustee, have
previously entered into a Trust Agreement, dated as of June 17, 1998 (the
"Original Agreement"), creating Sixth Automatic Common Exchange Security Trust;
and
WHEREAS, as of the date of this Amended and Restated Trust
Agreement, Xxxx X. Efron has resigned as trustee and the Sponsor has appointed
the Trustees as the trustees of the Trust; and
WHEREAS, the parties hereto desire to amend and
restate the Original Agreement in certain respects; and
WHEREAS, the Trust has previously issued to the Sponsor one
Security in consideration of the aggregate purchase price therefor of $100.00;
NOW, THEREFORE, the parties hereto agree to amend and restate
the Original Agreement as provided herein. Upon the execution and delivery of
copies hereof by the parties hereto, the Original Agreement will be
automatically amended and restated in its entirety to read as provided herein.
ARTICLE I
DEFINITIONS
Whenever used in this Trust Agreement, the following words
and phrases shall have the meanings listed below. Any reference to any agreement
shall be a reference to such agreement as supplemented or amended from time to
time.
"Accelerated Portion" - The Accelerated Portion as defined in
the Contract.
"Additional Purchase Price" - The Additional Purchase Price as
defined in the Contract.
"Administration Agreement" - The Administration Agreement,
dated as of the date hereof, between the Adminis trator and the Trust, and any
substitute agreement therefor entered into pursuant to Section 2.2(a) hereof.
"Administrator" - The Chase Manhattan Bank, or its successor
as permitted under Section 6.1 of the Administration Agreement or appointed
pursuant to Section 2.2(a) hereof.
"Average Market Price" - Average Market Price as defined in
the Contract.
"Business Day" - A day on which the New York Stock Exchange,
Inc. is open for trading that is not a day on which banks in The City of New
York are authorized or obligated by law to close.
"Cash Merger" - Cash Merger as defined in the Contract.
"Cash Settlement Alternative" - The Cash Settlement
Alternative as defined in the Contract.
"Certificate" - Any certificate evidencing the ownership of
Securities substantially in the form of Exhibit A hereto.
"Code" - The Internal Revenue Code of 1986, as amended from
time to time; each reference herein to any section of the Code or any regulation
thereunder shall constitute a reference to any successor provision thereto.
"Collateral Agent" - The Chase Manhattan Bank, or its
successor as permitted under the Collateral Agreement.
"Collateral Agreement" - The Collateral Agreement between the
Collateral Agent and the Seller, securing the
-2-
Seller's obligations under the Contract, substantially in the form of Exhibit B
hereto.
"Commencement Date" - The day on which the Underwriting
Agreement is executed.
"Commission" - The United States Securities and Exchange
Commission.
"Common Stock" - Class A Common Stock, par value $.01 per
share, of the Company.
"Company" - The Xxxxx Xxxxxx Companies Inc., a Delaware
corporation.
"Contract" - The forward purchase contract between the Trust
and the Seller, substantially in the form of Exhibit C hereto.
"Custodian" - The Chase Manhattan Bank, or its successor as
permitted under paragraph 11 of the Custodian Agreement or appointed pursuant to
Section 2.2(a) hereof.
"Custodian Agreement" - The Custodian Agreement, dated as of
the date hereof, between the Custodian and the Trust, and any substitute
agreement therefor entered into pursuant to Section 2.2(a) hereof.
"Distribution Date" - Each February __, May __, August __ and
November __ of each year commencing March __, 1998, to and including the
Exchange Date or if any such date is not a Business Day, then the first Business
Day thereafter.
"DTC" - The Depository Trust Company, or any successor
thereto.
"Excess Purchase Payment" - Excess Purchase Payment as defined
under the Contract.
"Exchange" - The delivery of Shares by the Trustees to the
Holders, subject to the adjustments and exceptions set forth in the Contract
(or, to the extent the Seller elects the Cash Settlement Alternative, the amount
in cash specified in the Contract as payable in respect
-3-
thereof), in mandatory exchange for the Securities on the Exchange Date.
"Exchange Date" - The Exchange Date as defined in the
Contract; provided that if the Exchange Date under the Contract is extended,
then the "Exchange Date" shall refer to the Exchange Date as so extended.
"Exchange Rate" - The Exchange Rate as defined in the
Contract.
"Expense Agreement" - The Fund Expense Agreement dated as of
the date hereof between the Trust and the Sponsor substantially in the form of
Exhibit E hereto.
"Event of Default" - An Event of Default as defined in the
Contract.
"Firm Purchase Price" - The Firm Purchase Price as defined in
the Contract.
"First Time of Delivery" - The First Time of Delivery as
defined in the Underwriting Agreement.
"Holder" - The registered owner of any Security as recorded on
the books of the Paying Agent.
"Indemnity Agreement" - The Fund Indemnity Agreement dated as
of the date hereof between the Trust and the Sponsor substantially in the form
of Exhibit D hereto.
"Investment Company" - Investment Company as defined in
Section 3 of the Investment Company Act.
"Investment Company Act" - The Investment Company Act of 1940,
as amended from time to time; each reference herein to any section of such Act
or any rule or regulation thereunder shall constitute a reference to any
successor provision thereto.
"Managing Trustee" - The Trustee designated the Managing
Trustee by resolution of the Trustees.
"Marketable Securities" - Marketable Securities as defined in
the Contract.
-4-
"Merger Consideration" - Merger Consideration as defined in
the Contract.
"Original Agreement" - The meaning specified in the recitals
hereof.
"Participant" - A Person having a book-entry only system
account with the Depositary.
"Paying Agent" - ChaseMellon Shareholder Services, L.L.C., or
its successor as permitted under Section 6.6 of the Paying Agent Agreement or
appointed pursuant to Section 2.2(a) hereof.
"Paying Agent Agreement" - The Paying Agent Agree ment, dated
as of the date hereof, between the Paying Agent and the Trust, and any
substitute agreement therefor entered into pursuant to Section 2.2(a) hereof.
"Person" - An individual, a partnership, a corporation, a
trust, an unincorporated association, a joint venture or other entity or a
government or any agency or political subdivision thereof.
"Prospectus" - The prospectus relating to the Trust
constituting a part of the Registration Statement, as first filed with the
Commission pursuant to Rule 497(b) or (h) under the Securities Act, and as
subsequently amended or supplemented by the Trust.
"Quarterly Distribution" - $0.____ per Security paid to each
Holder on each Distribution Date.
"Record Date" - The Business Day preceding each
Distribution Date.
"Registration Statement" - The Registration Statement on
Form N-2 (Registration Nos. 333-57125 and 811-8827) of the Trust, as amended.
-5-
"Reorganization Event" - A Reorganization Event as defined in
the Contract.
"Second Time of Delivery" - The Second Time of Delivery as
defined in the Underwriting Agreement.
"Securities Act" - The Securities Act of 1933, as amended from
time to time.
"Security" - $____ Trust Automatic Common Exchange Security of
the Trust evidencing a Holder's undivided interest in the Trust and right to
receive a pro rata distribution upon liquidation of the Trust Estate.
"Seller" - The Xxxxx Xxxxxx 1994 Trust, a trust organized
under the laws of the State of New York.
"Shares" - Shares of Common Stock to be exchanged by the
Trustees for the Securities on the Exchange Date; provided that after a Spin-Off
Distribution, all references to "Shares" shall include the shares distributed in
such event, and provided, further that after any Reorganization Event, all
references to "Shares" shall refer to the Marketable Securities received in such
event.
"Spin-Off Distribution" - A Spin-Off Distribution as defined
in the Contract.
"Temporary Investments" - Direct short-term U.S. government
obligations, as specified from time to time as provided in Section 3.5.
"Transfer Agent and Registrar" - ChaseMellon Shareholder
Services, L.L.C., as Transfer Agent and Registrar for the Common Stock.
"Treasury Securities" - The U.S. Government Securities
purchased by the Trustees at the First Time of Delivery and, if applicable, the
Second Time of Delivery, as provided in Section 2.3(b) hereof.
"Trust Account" - The account created pursuant to Section 3.1
hereof.
-6-
"Trust Estate" - The Contract and the U.S. Government
Securities held at any time by the Trust, together with any Temporary
Investments held at any time pursuant to Section 3.5 hereof, and any proceeds
thereof or therefrom and any other moneys held at any time in the Trust Account.
"Underwriter" - Xxxxxxx, Sachs & Co.
"Underwriting Agreement" - The Underwriting Agreement as
described in the Prospectus.
"U.S. Government Securities" - Direct obligations of the
United States of America.
ARTICLE II
TRUST DECLARATION; PURPOSES, POWERS
AND DUTIES OF THE TRUSTEES; ADMINISTRATION
SECTION 2.1 Declaration of Trust; Purposes of the Trust. The
Sponsor hereby creates the Trust in order that it may acquire the Treasury
Securities, enter into the Con tract, issue and sell to the Sponsor and the
Underwriter the Securities, receive and redeliver additional U.S. Government
Securities upon an extension of the Exchange Date pursuant to the Contract, hold
the Trust Estate in trust for the use and benefit of all present and future
Holders and otherwise carry out the terms and conditions of this Trust
Agreement, all for the purpose of achieving the investment objectives set forth
in the Prospectus. The Trustees hereby declare that they will accept and hold
the Trust Estate in trust for the use and benefit of all present and future
Holders. The Sponsor has heretofore deposited with the Trustees the sum of $10
to accept and hold in trust hereunder until the issuance and sale of the
Securities to the Underwriter, whereupon such sum shall be donated to an
organization satisfying the requirements of Section 170(c)(2) of the Code
selected by unanimous consent of the Trustees.
SECTION 2.2 General Powers and Duties of the Trustees. In
furtherance of the provisions of Section 2.1 hereof, the Sponsor authorizes and
directs the Trustees:
-7-
(a) to enter into and perform (and, in accordance with Section
8.4 hereof, amend) the Contract, the Collateral Agreement, the
Underwriting Agreement, the Indemnity Agreement, the Custodian
Agreement, the Administration Agreement and the Paying Agent Agreement
and to perform all obligations of the Trustees (including the
obligation to provide indemnity hereunder and thereunder) and enforce
all rights and remedies of the Trust under each of such agreements; and
if any of the Custodian Agreement, the Administration Agreement, the
Collateral Agreement and the Paying Agent Agreement terminates, or the
agent of the Trust thereunder resigns or is discharged, to appoint a
substitute agent and enter into a new agreement with such substitute
agent containing provisions substantially similar to those contained in
the agreement being terminated; pro vided that in any such new
agreement (i) the Custodian and the Paying Agent shall each be a
commercial bank or trust company organized and existing under the laws
of the United States of America or any state therein, shall have full
trust powers and shall have minimum capital, surplus and retained
earnings of not less than $100,000,000; and (ii) the Administrator and
the Collateral Agent shall each be a reputable financial institution
qualified in all respects to carry out its obligations under the
Administration Agreement or the Collateral Agreement, as the case may
be;
(b) to hold the Trust Estate in trust, to create and
administer the Trust Account, to direct payments received by the Trust
to the Trust Account and to make payments out of the Trust Account as
set forth in Article III hereof;
(c) to issue and sell to the Underwriter an aggregate of up to
______________ [TOTAL NUMBER OF SECURITIES UNDER THE UNDERWRITING
AGREEMENT, INCLUDING THE OVER-ALLOTMENT OPTION] Securities (including
those Securities subject to the over-allotment option of the
Underwriter provided for in the Underwriting Agreement) pursuant to the
Underwriting Agreement and as contemplated by the Prospectus;
provided, however, that subsequent to the determination of the public
offering price per Security and related underwriting discount for the
Securities to be sold to the Underwriter but
-8-
prior to the sale of the Securities to the Underwriter, the Security
originally issued to the Sponsor 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;
(d) to select independent public accountants and, subject to
the provisions of Section 8.5 hereof, to engage such independent public
accountants;
(e) to engage legal counsel and, to the extent required by
Section 2.4 hereof, to engage professional advisors and pay reasonable
compensation thereto;
(f) to defend any action commenced against the Trustees or the
Trust and to prosecute any action which the Trustees deem necessary to
protect the Trust and the rights and interests of Holders, and to pay
the costs thereof;
(g) to arrange for the bonding of officers and employees of
the Trust as required by Section 17(g) of the Investment Company Act
and the rules and regulations thereunder;
(h) to delegate any and all of its powers and duties hereunder
as contemplated by the Collateral Agreement, the Custodian Agreement,
the Paying Agent Agreement and the Administration Agreement, to the
extent permitted by applicable law; and
(i) to adopt and amend bylaws, and take any and all such other
actions as necessary or advisable to carry out the purposes of the
Trust, subject to the provisions hereof and applicable law, including,
without limitation, the Investment Company Act.
SECTION 2.3 Portfolio Acquisition. In furtherance of the
provisions of Section 2.1 hereof, the Sponsor further specifically authorizes
and directs the Trustees:
(a) to enter into the Contract with respect to the Shares
subject thereto with the Seller on the Commencement Date for settlement
on the date or dates
-9-
provided thereunder and, subject to satisfaction of the conditions set
forth in the Contract, to pay the Firm Purchase Price and the
Additional Purchase Price, if any, thereunder with the proceeds of the
sale of the Securities, net of the purchase price paid for the Treasury
Securities as provided in paragraph (b) below; and, subject to the
adjustments and exceptions set forth in the Contract, the Contract
shall entitle the Trust to receive from the Seller on the Exchange Date
the Shares subject thereto (or, if the Seller elects the Cash
Settlement Alternative, the amount in cash specified in the Contract)
so that the Trust may execute the Exchange with the Holders; and
(b) to purchase for settlement at the First Time of Delivery,
and at the Second Time of Delivery, as appropriate, with the proceeds
of the sale of the Securities, Treasury Securities from such brokers or
dealers as the Trustees shall designate in writing to the Administrator
having the terms set forth on Schedule I hereto.
SECTION 2.4 Portfolio Administration. In furtherance of the
provisions of Section 2.1 hereof, the Sponsor further specifically authorizes
and directs the Trustees:
(a) Determination of Dilution, Merger or Acceleration
Adjustments. Upon receipt of any notice pursuant to Section 5.4(b) of
the Contract of an event requiring an adjustment to the Exchange Rate,
or upon otherwise acquiring knowledge of such an event, to calculate
the required adjustment and furnish notice thereof to the Collateral
Agent and the Seller, or to request from the Seller such further
information as may be necessary to calculate or effect the required
adjustment;
(b) Selection of Independent Investment Bank. Upon receipt of
notice of (i) the occurrence of a Reorganization Event in which
property other than cash or Marketable Securities is to be received in
respect of the Common Stock as described in Section 6.2 of the
Contract, (ii) an Excess Purchase Payment in which the Company has paid
or will pay consideration other than
-10-
cash as described in Section 6.1(d) of the Contract, or (iii) the
declaration or payment of a dividend or distribution to all holders of
Common Stock of evidences of its indebtedness or other non-cash assets
or the issuance of Common Stock rights or warrants as described in
Section 6.1(c) of the Contract, to retain the nationally recognized
investment banking firm selected by the Administrator to determine the
market value of such property as provided in the Contract, and to
deliver to the Seller notice pursuant to Section 8.1 of the Contract
identifying the firm proposed to be selected and retained, and to cause
the Administrator to consult with the Seller on such selection and
retention as provided in such Section 8.1;
(c) Acceleration. In the event (i) an acceleration of the
Contract shall occur due to an Event of Default as provided in Article
VII of the Contract, or (ii) a Reorganization Event shall occur in
respect of which the consideration received by holders of Common Stock
does not include Marketable Securities, as con templated by Section 6.2
of the Contract, to liquidate a proportionate amount (in the case of
clause (i)) or all (in the case of clause (ii)) of the Treasury
Securities and distribute the proceeds thereof pro rata to each of the
Holders of Securities, together with any shares of Common Stock or
other amounts to be distrib uted to the Holders of Securities, in each
case in accordance with the Contract and the Collateral Agreement;
(d) Additional U.S. Government Securities. To accept
additional U.S. Government Securities delivered to the Trust in
connection with an extension of the Exchange Date at the Seller's
election in accordance with Section 1.3 of the Contract, and to
redeliver such U.S. Government Securities in connection with an
acceleration of the Exchange Date at the Seller's election in
accordance with Section 1.3 of the Contract;
(e) Delivery of Cash Settlement Alternative Election Notice to
Holders of Securities. Upon receipt of a notice from the Seller of its
election of the Cash Settlement Alternative, as provided by Section
1.3(d)
-11-
of the Contract, or of the extension of the Exchange Date, as provided
by Section 1.3(e) of the Contract, or of the acceleration of the
Exchange Date, as provided by Section 1.3(f) of the Contract, to give
notice of such election, extension or acceleration as provided in the
Contract;
(f) Determination of Exchange Date Amounts. To calculate, on
the Exchange Date, the number of Shares (or, if the Seller elects the
Cash Settlement Alternative, the amount in cash) required to be
delivered by the Seller under Section 1.1 of the Contract or, if a
Reorganization Event shall have occurred, the amount of cash required
to be delivered by the Seller, and the number of Marketable Securities
permitted to be delivered by the Seller in lieu of all or a portion of
such cash, all as provided in Section 6.2 of the Contract, and to
furnish notice of the amounts so determined to the Collateral Agent and
the Seller;
(g) Distribution of Exchange Consideration. Unless a
Reorganization Event other than a Cash Merger in which the Merger
Consideration includes Marketable Securities (it being understood that
in the case of such a Cash Merger, this provision shall relate to the
portion of the Merger Consideration that consists of Marketable
Securities), shall have occurred (in which event distribution of
proceeds shall be governed by Section 8.3 below) or the Seller elects
the Cash Settlement Alternative (in which event the cash received in
respect thereof shall be distributed pro rata to the Holders of
Securities promptly after receipt thereof):
(i) Determination of Fractional Shares. To
determine, on the Exchange Date: (A) for each Holder of
Securities, such Holder's pro rata share of the total number
of Shares delivered to the Trustees under the Contract on the
Exchange Date; and (B) the number of fractional Shares
allocable to each Holder (including, in the case of the
Depositary, fractional shares allocable to beneficial owners
of Securities who own through Participants) and in the
aggregate;
-12-
(ii) Cash for Fractional Shares. To sell, in
the principal market therefor, on the Exchange Date, a number
of Shares equal to the aggregate number of fractional Shares
determined pursuant to clause (i) (B) above, rounded down to
the nearest integral number; and to determine the difference
between (A) the aggregate proceeds of such sale (net of any
brokerage or related expenses) and (B) the product of the
number of Shares so sold and the Average Market Price; and, in
accordance with the Indemnity Agreement, to pay such
difference, if positive, to the Seller, or to request payment
of such difference, if negative, from Seller;
(iii) Delivery of Shares. To deliver the
remaining Shares to the Transfer Agent and Registrar on the
Exchange Date, with instructions that such Shares be
re-registered and re-issued as follows: (A) for and in the
name of each Holder (other than the Depositary) who holds
Securities in definitive form, the Transfer Agent and
Registrar shall be instructed to issue definitive certificates
representing a number of Shares equal to such Holder's pro
rata share of the total delivered to the Trustees under the
Contract on the Exchange Date, rounded down to the nearest
integral number; (B) the Transfer Agent and Registrar shall be
instructed to transfer all remaining Shares to the account of
the Custodian held through the Depositary, who shall then be
instructed to transfer and credit such Shares to each
Participant who holds Securities, with each Participant
receiving its pro rata share of the total Shares delivered to
the Trust on the Exchange Date, reduced by the aggregate
fractional shares allocable to the beneficial owners of
Securities who own through such Participant;
(iv) Distribution of Cash in Respect of
Fractional Shares. To distribute to each Holder of Securities
cash in the amount of: (A) the fraction of a Share, if any,
allocable to such Holder as determined pursuant to clause (i)
(B) above; times (B) the Average Market Price;
-13-
(v) Distribution of Cash Received upon
Acceleration of Exchange Date. If the Exchange Date shall have
been accelerated pursuant to Section 1.3(f) of the Contract,
to distribute to each Holder its pro rata share of any cash
received by the Trust from the Seller in connection therewith;
and
(vi) Record Date. The distributions described
in this paragraph (g) shall be made to Holders of record as of
the close of business on the Business Day preceding the
Exchange Date;
(h) Application to List Securities. If the Securities are
delisted or suspended from trading on the New York Stock Exchange,
Inc., to apply for listing of the Securities on another national or
regional securities exchange or for quotation on another trading
market; and
(i) Distribution of Accelerated Portion. If a Cash Merger
shall occur, to distribute promptly to each Holder of Securities such
Holder's pro rata share of the Accelerated Portion delivered under the
Contract.
SECTION 2.5 Manner of Sales. Any sale of Trust property
permitted under Section 8.3(c) hereof shall be made through such executing
brokers or to such dealers as the Trustees, seeking best price and execution for
the Trust, shall designate in writing to the Paying Agent, taking into account
such factors as price, commission, size of order, difficulty of execution and
brokerage skill required.
SECTION 2.6 Limitations on Trustees' Powers. The Trustees are
not permitted:
(a) to purchase or hold any securities or instruments except
for the Shares, the Contract, the Treasury Securities, any additional
U.S. Government Securities delivered to the Trust in connection with an
extension of the Exchange Date under the Contract, the Temporary
Investments contemplated by Section 3.5 hereof and, in the event of a
Reorganization Event or a Spin-Off Distribution, Marketable Securities
or any other property received in such event;
-14-
(b) to dispose of the Contract prior to the Exchange Date;
(c) to issue any securities or instruments except for the
Securities, or to issue any Securities other than the Securities sold
to the Sponsor and the Securities to be sold pursuant to the
Underwriting Agreement and until such Securities have been so purchased
and paid for in full;
(d) to make short sales or purchases on margin;
(e) to write put or call options;
(f) to borrow money;
(g) to underwrite securities;
(h) to purchase or sell real estate, commodities or
commodities contracts;
(i) to purchase restricted securities;
(j) to make loans (other than the purchase of the Treasury
Securities pursuant to Section 2.3 hereof); or
(k) to take any action, or direct or permit the
Administrator, the Paying Agent or the Custodian to take any action,
that would vary the investment of the Holders within the meaning of
Treasury Regulation Section 301.7701-4(c), or otherwise take any action
or direct or permit any action to be taken that would or could cause
the Trust not to be a "grantor trust" under the Code.
ARTICLE III
ACCOUNTS AND PAYMENTS
SECTION 3.1 The Trust Account. The Trustees shall, upon
issuance of the Securities, establish with the Paying Agent an account to be
called the "Trust Account". All moneys received by the Trustees in respect of
the Contract, the Treasury Securities, any other U.S. Government Securities
delivered to the Trust and any Temporary
-15-
Investments held pursuant to Section 3.5 hereof, all moneys received from the
sale of the Securities to the Sponsor, and any proceeds from the sale to the
Underwriter of the Securi ties remaining after the purchase of the Contract and
the Treasury Securities shall be credited to the Trust Account.
SECTION 3.2 Payment of Fees and Expenses. The Administrator is
authorized to pay, to the extent not paid by third parties, the fees and
expenses of the Trust incurred in connection with the public offering of the
Securities and the costs and expenses incurred in connection with the
organization and operation of the Trust.
SECTION 3.3 Distributions to Holders. On or shortly after each
Distribution Date the Trustees shall distribute to each Holder of record at the
close of business on the preceding Record Date, at the post office address of
the Holder appearing on the books of the Trust or Paying Agent or by any other
means mutually agreed upon by the Holder and the Trustees, an amount equal to
the Quarterly Distribution with respect to all Securities held by such Holder
computed as of the close of business on such Distribution Date.
SECTION 3.4 Segregation. All moneys and other assets deposited
or received by the Trustees hereunder shall be held by them in trust as part of
the Trust Estate until required to be disbursed or otherwise disposed of in
accordance with the provisions of this Trust Agreement, and the Trustees shall
handle such moneys and other assets in such manner as shall constitute the
segregation and holding in trust within the meaning of the Investment Company
Act.
SECTION 3.5 Temporary Investments. To the extent necessary to
enable the Paying Agent to make the next succeeding Quarterly Distribution, any
moneys deposited with or received by the Trustees in the Trust Account shall be
invested as soon as possible by the Paying Agent in Temporary Investments
maturing no later than the Business Day preceding the next following
Distribution Date. Except as otherwise specifically provided herein or in the
Paying Agent Agreement, the Paying Agent shall not have the power to sell,
transfer or otherwise dispose of any Temporary Investment prior to the maturity
thereof, or to acquire additional Temporary Investments. The Paying Agent shall
-16-
hold any Temporary Investment to its maturity and shall apply the proceeds
thereof upon maturity to the payment of the next succeeding Quarterly
Distribution. All such Temporary Investments shall be selected from time to time
by the Trustees or pursuant to standing instructions from the Trustees to the
Administrator, and the Administrator and/or Paying Agent shall have no liability
to the Trust or any Holder or any other Person with respect to the payment or
performance of any such Temporary Investment. Any interest or other income
received on any moneys in the Trust Account shall, upon receipt thereof, be
deposited into the Trust Account. Notwithstanding the foregoing, not more than
5% of the assets of the Trust may be held at any time in the form of cash and
Temporary Investments, and the Trustees shall distribute cash, or liquidate
Temporary Investments and distribute the proceeds thereof, if, when and to the
extent needed to maintain compliance with the foregoing restriction.
ARTICLE IV
REDEMPTION
SECTION 4.1 Redemption. The Trustees shall have no right or
obligation to redeem Securities.
ARTICLE V
ISSUANCE OF CERTIFICATES; REGISTRY; TRANSFER OF SECURITIES
SECTION 5.1 Form of Certificate. Each Certifi cate evidencing
Securities shall be executed manually or in facsimile by the Managing Trustee
and countersigned manually by the Paying Agent in substantially the form of
Exhibit A hereto with the blanks appropriately filled in, shall be dated the
date of countersignature and delivery by the Paying Agent and shall represent a
fractional undivided interest in the Trust, the numerator of which fraction
shall be the number of Securities set forth on the face of such Certificate and
the denominator of which shall be the total number of Securities outstanding at
that time. All Securities shall be issued in registered form and shall be
numbered serially.
-17-
The Certificates delivered to the Underwriter at the First
Time of Delivery and the Second Time of Delivery (if any) will be issued in the
form of a global Certificate or Certificates representing the Securities issued
to the Underwriter, to be delivered to DTC by or on behalf of the Trust. Such
Certificate or Certificates shall initially be registered on the books and
records of the Trust in the name of Cede & Co., the nominee of DTC, and no
beneficial owner of such Securities will receive a definitive Certificate
representing such beneficial owner's interest in such Securities, except as
provided in the next paragraph. Unless and until definitive, fully registered
Certificates have been issued pursuant to the next paragraph, the Trust shall be
entitled to deal with DTC for all purposes of this Agreement as the Holder and
the sole holder of the Certificates and shall have no obligation to the
beneficial owners thereof, and none of the Trust, the Trustees, or any agent of
the Trust or the Trustees shall have any liability with respect to or
responsibility for the records of DTC.
If DTC elects to discontinue its services as securities
depository, then definitive Certificates shall be prepared by the Trustees as
provided above. Upon surrender of the global Certificate or Certificates
accompanied by registration instructions, the Trustees shall cause definitive
Certificates to be delivered to the beneficial owners in accordance with the
instructions of DTC. Neither the Trustees nor the Trust shall be liable for any
delay in delivery of such instructions and may conclusively rely on, and shall
be protected in relying on, such instructions.
Pending the preparation of definitive Certificates, the
Managing Trustee may execute and the Paying Agent shall countersign and deliver
temporary Certificates (printed, lithographed, typewritten or otherwise
reproduced, in each case in form satisfactory to the Paying Agent). Temporary
Certificates shall be issuable as registered Certificates substantially in the
form of the definitive Certificates but with such omissions, insertions and
variations as may be appropriate for temporary Certificates, all as may be
determined by the Trustees with the concurrence of the Paying Agent. Every
temporary Certificate shall be executed by the Managing Trustee and be
countersigned manually by the Paying Agent upon the same conditions and in
substantially the same manner, and with
-18-
like effect, as the definitive Certificates. Without unreasonable delay the
Managing Trustee shall execute and shall furnish definitive Certificates to the
Paying Agent and thereupon temporary Certificates may be surrendered in exchange
therefor without charge at each office or agency of the Paying Agent and the
Paying Agent shall countersign and deliver in exchange for such temporary
Certificates definitive Certificates for a like aggregate number of Securities.
Until so exchanged, the temporary Certificates shall be entitled to the same
benefits hereunder as definitive Certificates.
SECTION 5.2 Transfer of Securities; Issuance, Transfer and
Interchange of Certificates. Securities may be transferred by the Holder thereof
by presentation and surrender of properly endorsed Certificates at the office of
the Paying Agent, accompanied by such documents executed by the Holder or his
authorized attorney as the Paying Agent deems necessary to evidence the
authority of the person making the transfer. Certificates issued pursuant to
this Trust Agreement are interchangeable for one or more other Certificates in
an equal aggregate number of Securities and all Certificates issued shall be
issued in denominations of one Security or any multiple thereof. The Paying
Agent may deem and treat the person in whose name any Security shall be
registered upon the books of the Paying Agent as the owner of such Security for
all purposes hereunder and the Paying Agent shall not be affected by any notice
to the contrary. The transfer books maintained by the Paying Agent for the
purposes of this Section 5.2 hereof shall include the name and address of the
record owners of the Securities and shall be closed in connection with the
termination of the Trust pursuant to Section 8.3 hereof.
A sum sufficient to cover any tax or other governmental charge
that may be imposed in connection with any such transfer shall be paid to the
Paying Agent by the Holder. A Holder may be required to pay a fee for each new
Certificate to be issued pursuant to the preceding paragraph in such amount as
may be specified by the Paying Agent and approved by the Trustees.
All Certificates cancelled pursuant to this Trust Agreement
may be voided by the Paying Agent in accordance with the usual practice of the
Paying Agent or in accordance
-19-
with the instructions of the Trustees; provided, however, that the Paying Agent
shall not be required to destroy cancelled Certificates.
The Paying Agent may adopt other reasonable rules and
regulations for the registration, transfer and tender of Securities as it may,
in its discretion, deem necessary.
SECTION 5.3 Replacement of Certificates. In case any
Certificate shall become mutilated or be destroyed, stolen or lost, the Paying
Agent shall execute and deliver a new Certificate in exchange and substitution
therefor upon the Holder's furnishing the Paying Agent with proper
identification and satisfactory indemnity of the Trustees and the Paying Agent,
complying with such other reasonable regulations and conditions as the Paying
Agent may prescribe and paying such expenses and charges, including any bonding
fee, as the Paying Agent may incur or reasonably impose; provided that if the
Trust has terminated or is in the process of terminating, the Paying Agent, in
lieu of issuing such new Certificate, may, upon the terms and conditions set
forth herein, make the distributions set forth in Section 8.3(c) hereof. Any
mutilated Certificate shall be duly surrendered and cancelled before any
duplicate Certificate shall be issued in exchange and substitution therefor.
Upon issuance of any duplicate Certificate pursuant to this Section 5.3 hereof,
the original Certificate claimed to have been lost, stolen or destroyed shall
become null and void and of no effect, and any bona fide purchaser thereof shall
have only such rights as are afforded under Article 8 of the Uniform Commercial
Code to a Holder presenting a Certificate for transfer in the case of an
overissue.
ARTICLE VI
ISSUANCE OF THE CONTRACT
SECTION 6.1 Execution of the Contract. The Contract shall be
executed manually or in facsimile by the Managing Trustee and executed manually
by the Seller and shall be dated the date of execution and delivery by the
Seller.
-20-
ARTICLE VII
TRUSTEES
SECTION 7.1 Trustees. The Trust shall have three Trustees who
shall initially be elected by the Sponsor. One Trustee shall be the Managing
Trustee and, as such, is authorized to execute documents and instruments on
behalf of the Trust. The Managing Trustee will be appointed by resolution of the
Trustees. Each Trustee shall serve until a meeting of Holders is called for the
purpose of electing Trustees and, then, until such Trustee's successor is duly
elected and qualified. Holders may not cumulate their votes in the election of
Trustees. Each Trustee shall not be considered to have qualified for the office
unless such Trustee shall agree to be bound by the terms of this Trust Agreement
and shall evidence his consent by executing this Trust Agreement or a supplement
hereto.
SECTION 7.2 Vacancies. Any vacancy in the office of a Trustee
may be filled in compliance with Sections 10 and 16 of the Investment Company
Act by the vote, within thirty days, of the remaining Trustees; provided that if
required by Section 16 of the Investment Company Act, the Trustees shall
forthwith cause to be held as promptly as possible and in any event within sixty
days (unless the Commission by order shall extend such period) a meeting of
Holders for the purpose of electing Trustees in compliance with Sections 10 and
16 of the Investment Company Act. Until a vacancy in the office of any Trustee
is filled as provided above, the remaining Trustees in office, regardless of
their number, shall have the powers granted to the Trustees and shall discharge
all the duties imposed upon the Trustees by this Trust Agreement. Election shall
be by the affirmative vote of Holders of a majority of the Securities entitled
to vote present in person or by proxy at a special meeting of Holders called for
the purpose of electing any Trustee. Each individual Trustee shall be at least
21 years of age and shall not be under any legal disability. No Trustee who is
an "interested person", as defined in the Investment Company Act, may assume
office if it would cause the composition of the Trustees of the Trust not to be
in compliance with the percentage limitations on interested persons in Section
10 of the Investment Company Act. Trustees need not be Holders. Notice of the
appointment or
-21-
election of a successor Trustee shall be mailed promptly after acceptance of
such appointment by the successor Trustee to each Holder.
SECTION 7.3 Powers. The Trust will be managed solely by the
Trustees, who will, subject to the provisions of Article II hereof, have
complete and exclusive control over the management, conduct and operation of the
Trust's business, and shall have the rights, powers and authority of a board of
directors of a corporation organized under New York law. The Trustees shall have
fiduciary responsibility for the safekeeping and use of all funds and assets of
the Trust and shall not employ, or permit another to employ, such funds or
assets in any manner except for the exclusive benefit of the Trust and except in
accordance with the terms of this Trust Agreement. Subject to the continuing
supervision of the Trustees and as permitted by applicable law, the functions of
the Trust shall be performed by the Custodian, the Paying Agent, the
Administrator and such other entities engaged to perform such functions as the
Trustees may determine, including, without limitation, any or all administrative
functions.
SECTION 7.4 Meetings. Meetings of the Trustees shall be held
from time to time upon the call of any Trustee on not less than 48 hours' notice
(which may be waived by any or all of the Trustees in writing either before or
after such meeting or by attendance at the meeting unless the Trustee attends
the meeting for the express purpose of objecting to the transaction of any
business on the ground that the meeting has not been lawfully called or
convened). The Trustees shall act either by majority vote of the Trustees
present at a meeting at which at least a majority of the Trustees then in office
are present or by a unanimous written consent of the Trustees without a meeting.
Except as otherwise required under the Investment Company Act, all or any of the
Trustees may participate in a meeting of the Trustees by means of a conference
telephone call or similar communications equipment by means of which all persons
participating in the meeting can hear each other, and participation in a meeting
pursuant to such communications equipment shall constitute presence in person at
such meeting.
-22-
SECTION 7.5 Resignation and Removal. Any Trustee may resign
and be discharged of the trust created by the Trust Agreement by executing an
instrument in writing resigning as Trustee, filing the same with the
Administrator and sending notice thereof to the remaining Trustees, and such
resignation shall become effective immediately unless otherwise specified
therein. Any Trustee may be removed in the event of incapacity by vote of the
remaining Trustees and for any reason by written declaration or vote of the
Holders of more than 66 2/3% of the outstanding Securities, notice of which vote
shall be given to the remaining Trustees and the Administrator. The resignation,
removal or failure to reelect any Trustee shall not cause the termination of the
Trust.
SECTION 7.6 Liability. The Trustees shall not be liable to the
Trust or any Holder for any action taken or for refraining from taking any
action except in the case of willful misfeasance, bad faith, gross negligence or
reckless disregard of the duties of their office. Specifically, without
limitation, the Trustees shall not be responsible for or in respect of the
recitals herein or the validity or sufficiency of this Trust Agreement or for
the due execution hereof by any other Person, or for or in respect of the
validity or sufficiency of Securities or certificates repre senting Securities
and shall in no event assume or incur any liability, duty or obligation to any
Holder or to any other Person, other than as expressly provided for herein. The
Trustees may employ agents, attorneys, administrators, accountants and auditors,
and shall not be answerable for the default or misconduct of any such Persons if
such Persons shall have been selected with reasonable care. Action in good faith
may include action taken in good faith in accordance with an opinion of counsel.
In no event shall any Trustee be personally liable for any expenses with respect
to the Trust. Each Trustee shall be indemnified to the extent permitted by law
from the Trust Estate with respect to any claim, liability, loss or expense
incurred in acting as Trustee of the Trust, including the costs and expenses of
the defense against any such claim or liability, except in the case of willful
misfeasance, bad faith, gross negligence or reckless disregard of the duties of
his office.
-23-
SECTION 7.7 Compensation. Each Trustee, other than a Trustee
who is a director, officer or employee of the Sponsor, any Underwriter, or the
Administrator or any affiliate thereof, shall receive, pursuant to the Expense
Agreement, a one-time, up-front fee of $10,800, in respect of its annual fee and
anticipated out-of-pocket expenses. In addition, the Managing Trustee shall
receive, pursuant to the Expense Agreement, an additional one-time, up-front fee
of $3,600 for serving in such capacity. The Trustees will not receive any
pension or retirement benefits. In the event of the resignation or removal of a
Trustee, such Trustee shall remit to the Trust the portion of its fee ratable
for the period from the day of such resignation or removal through the Exchange
Date.
ARTICLE VIII
MISCELLANEOUS
SECTION 8.1 Meetings of Holders. The Trustees shall not hold
annual or regular meetings of Holders except as set forth herein. A special
meeting may be called at any time by the Trustees or upon petition of Holders of
not less than 51% of the Securities outstanding (unless substantially the same
matter was voted on during the preceding 12 months), and shall be called as
provided in Section 7.2 hereof (or as otherwise required by the Investment
Company Act and the rules and regulations thereunder, including, without
limitation, when requested by the Holders of not less than 10% of the Securities
outstanding for the purposes of voting upon the question of the removal of any
Trustee or Trustees). The Trustees shall establish, and notify the Holders in
writing of, the record date for each such meeting which shall be not less than
10 nor more than 50 days before the meeting date. Holders at the close of
business on the record date will be entitled to vote at the meeting. The
Administrator shall, as soon as possible after any such record date (or prior to
such record date if appropriate), mail by first class mail to each Holder a
notice of meeting and a proxy statement and form of proxy in the form approved
by the Trustees and complying with the Investment Company Act and the rules and
regulations thereunder. Except as otherwise specified herein or in any provision
of the Investment Company Act and the rules and regulations
-24-
thereunder, any action may be taken by vote of Holders of a majority of the
Securities outstanding present in person or by proxy if Holders of a majority of
Securities outstanding on the record date are so represented. Each Security
shall have one vote and may be voted in person or by duly executed proxy. Any
proxy may be revoked by notice in writing, by a subsequently dated proxy or by
voting in person at the meeting, and no proxy shall be valid after eleven months
following the date of its execution. Any Investment Company owning Securities in
excess of the limits imposed by Sections 12(d)(1)(A)(i) and 12(d)(1)(C) of the
Investment Company Act will be required to vote its Securities in proportion to
the votes of all other Holders.
SECTION 8.2 Books and Records; Reports. (a) The Trustees shall
keep a certified copy or duplicate original of this Trust Agreement on file at
the office of the Trust, which shall be located at 000 Xxxx 00xx Xxxxxx, Xxx
Xxxx, Xxx Xxxx 00000, and the office of the Administrator available for
inspection at all reasonable times during its usual business hours by any
Holder. The Trustees shall keep proper books of record and account for all the
transactions under this Trust Agreement at the office of the Trust and the
office of the Administrator, and such books and records shall be open to
inspection by any Holder at all reasonable times during usual business hours.
The Trustees shall retain all books and records in compliance with Section 31 of
the Investment Company Act and the rules and regulations thereunder.
(b) With each payment to Holders the Paying Agent shall set
forth, either in the instruments by means of which payment is made or in a
separate statement, the amount being paid from the Trust Account expressed as a
dollar amount per Security and the other information required under Section 19
of the Investment Company Act and the rules and regulations thereunder. The
Trustees shall prepare and file or distrib ute reports as required by Section 30
of the Investment Company Act and the rules and regulations thereunder. The
Trustees shall prepare and file such reports as may from time to time be
required to be filed or distributed to Holders under any applicable state or
Federal statute or rule or regulation thereunder, and shall file such tax
returns as may from time to time be required under any applicable state or
Federal statute or rule or regulation
-25-
thereunder. One of the Trustees shall be designated by resolution of the
Trustees to make the filings and give the notices required by Rule 17g-1 under
the Investment Company Act.
(c) In calculating the net asset value of the Trust as
required by the Investment Company Act, (i) the Treasury Securities will be
valued at the mean between the last current bid and asked prices or, if
quotations are not available, as determined in good faith by the Trustees, (ii)
short-term investments having a maturity of 60 days or less will be valued at
cost with accrued interest or discount earned included in interest receivable
and (iii) the Contract will be valued on the basis of the bid price received by
the Trust in respect of the Contract, or any portion thereof covering not less
than 1000 shares, from an independent broker-dealer firm unaffiliated with the
Trust to be named by the Trustees who is in the business of making bids on
financial instruments similar to the Contract and with terms comparable thereto
or if such a bid quotation is not available, as determined in good faith by the
Trustees.
SECTION 8.3 Termination. (a) This Trust Agree ment and the
Trust created hereby shall terminate upon the earliest of (i) the date 90 days
after the execution of this Trust Agreement if (x) the Securities have not
theretofore been issued to the Underwriter under the Underwriting Agreement or
(y) the net worth of the Trust is not at least $100.00 at such time, (ii) the
date of the repayment, sale or other disposition, as the case may be, of all of
the Contract, the Treasury Securities and any other securities held hereunder,
(iii) the date 10 Business Days after the Exchange Date (or, if the Contract
shall be accelerated pursuant to Article VII thereof or Section 6.2 thereof, 10
Business Days after the date on which the Trust shall receive the Shares or
other consideration then required to be delivered by the Seller, or the proceeds
of any sale of collateral pursuant to Section 8(c) of the Collateral Agreement),
and (iv) the date which is 21 years less 91 days after the death of the last
survivor of all of the descendants of Xxxxxx X. Xxxxxxx living on the date
hereof. The Trust is irrevocable, the Sponsor has no right to withdraw any
assets constituting a portion of the Trust Estate, and the dissolution of the
Sponsor shall not operate to terminate the Trust. The death or incapacity of any
-26-
Holder shall not operate to terminate this Trust Agreement, nor entitle his
legal representatives or heirs to claim an accounting or to take any action or
proceeding in any court for a partition or winding up of the Trust, and shall
not otherwise affect the rights, obligations and liabilities of the parties
hereto.
(b) Written notice of any termination shall be sent to Holders
specifying the record date for any distribution to Holders and the time of
termination as determined by the Trustees, upon which the books maintained by
the Paying Agent pursuant to Section 5.2 hereof shall be closed.
(c) For purposes of termination under Sections 8.3(a)(ii),
(iii) and (iv) hereof, within five Business Days after such termination, the
Trustees shall, subject to any applicable provisions of law, effect the sale of
any remaining property of the Trust, and the Paying Agent shall distribute pro
rata as soon as practicable thereafter to each Holder, upon surrender for
cancellation of its Certificates, its interest in the Trust Estate. Together
with the distribution to the Holders, the Trustees shall furnish the Holders
with a final statement as of the date of the distribution of the amount
distributable with respect to each Security.
SECTION 8.4 Amendment and Waiver. (a) This Trust Agreement,
and any of the agreements referred to in Section 2.2(a) hereof, may be amended
from time to time by the Trustees for any purpose prior to the issuance and sale
to the Underwriter of the Securities and thereafter without the consent of any
of the Holders (i) to cure any ambiguity or to correct or supplement any
provision contained herein or therein which may be defective or inconsistent
with any other provision contained herein or therein; (ii) to change any
provision hereof or thereof as may be required by applicable law or the
Commission or any successor governmental agency exercising similar authority;
or (iii) to make such other provisions in regard to matters or questions arising
hereunder or thereunder as shall not materially adversely affect the interests
of the Holders (as determined in good faith by the Trustees, who may rely on an
opinion of counsel).
-27-
(b) This Trust Agreement may also be amended from time to time
by the Trustees (or the performance of any of the provisions of the Trust
Agreement may be waived) with the consent by the required vote of the Holders in
accordance with Section 8.1 hereof; provided that this Trust Agreement may not
be amended, without the consent by vote of the Holders of all Securities then
outstanding, (i) to increase the number of Securities issuable hereunder above
the number of Securities specified in Section 2.2(c) hereof or such lesser
number as may be outstanding at any time during the term of this Trust
Agreement, (ii) to reduce the interest in the Trust represented by Securities
without the consent of the Holders of such Securities, (iii) if such amendment
is prohibited by the Investment Company Act or other applicable law, (iv)
without the consent by vote of the Holders of all Securities then outstanding,
if such amendment would effect a change in the voting requirements set forth in
Section 8.1 hereof or this Section 8.4, or (v) without the consent by vote of
the Holders of the lesser of (x) 67% or more of the Securities represented at a
special meeting of Holders, if more than 50% of the Securities outstanding are
represented at such meeting, and (y) more than 50% of the Securities
outstanding, if such amendment would effect a change in Section 2.1 or 2.6
hereof.
(c) Promptly after the execution of any amendment, the
Trustees shall furnish written notification of the substance of such amendment
to each Holder.
(d) Notwithstanding subsections (a) and (b) of this Section
8.4 no amendment of this Agreement or the Agreements referred to in Section
2.2(a) hereof shall permit the Trust, the Trustees, the Administrator, the
Paying Agent or the Custodian to take any action or direct or permit any Person
to take any action that (i) would vary the investment of Holders within the
meaning of Treasury Regulation Section 301.7701-4(c), or (ii) would or could
cause the Trust, or direct or permit any action to be taken that would or could
cause the Trust, not to be a "grantor trust" under the Code.
-28-
SECTION 8.5 Accountants.
(a) The Trustees shall, in accordance with Section 30 of the
Investment Company Act, file annually with the Commission such information,
documents and reports as investment companies having securities registered on a
national securities exchange are required to file annually pursuant to Section
13(a) of the Securities Exchange Act of 1934, as amended, and the rules and
regulations issued thereunder. The Trustees shall transmit to the Holders, at
least semi-annually, the reports required by Section 30(d) of the Investment
Company Act and the rules and regulations thereunder, including, without
limitation, a balance sheet accompanied by a statement of the aggregate value of
investments on the date of such balance sheet, a list showing the amounts and
values of such investments owned on the date of such balance sheet, and a
statement of income for the period covered by the report. Financial statements
contained in such annual reports shall be accompanied by a certificate of
independent public accounts based upon an audit not less in scope or procedures
than that which independent public accountants would ordinarily make for the
purpose of presenting comprehensive and dependable financial statements and
shall contain such information as the Commission may prescribe. Each such report
shall state that such independent public accountants have verified investments
owned, either by actual examination or by receipt of a certificate from the
Custodian.
(b) The independent public accountants referred to in
subsection (a) above shall be selected at a meeting held within thirty days
before or after the beginning of the fiscal year by the vote, cast in person, of
a majority of the Trustees who are not "interested persons" as defined in the
Investment Company Act and such selection shall be submitted for ratification at
the first meeting of Holders to be held as set forth in Section 8.1 hereof, and
thereafter as required by the Investment Company Act and the rules and
regulations thereunder. The employment of any independent public accountant for
the Trust shall be conditioned upon the right of the Holders by a vote of the
lesser of (i) 67% or more of the Securities present at a special meeting of
Holders, if Holders of more than 50% of Securities outstanding are present or
represented by proxy at such meeting or (ii) more than 50% of the Securities
-29-
outstanding to terminate such employment at any time without penalty.
(c) The foregoing provisions of this Section 8.5 are in
addition to any applicable requirements of the Investment Company Act and the
rules and regulations thereunder.
SECTION 8.6 Nature of Holder's Interest. Each Holder holds at
any given time a beneficial interest in the Trust Estate, but does not have any
right to take title or possession of any portion of the Trust Estate. Each
Holder expressly waives any right he may have under any rule of law, or the
provisions of any statute, or otherwise, to require the Trustees at any time to
account, in any manner other than as expressly provided in this Trust Agreement,
for the Shares, the Contract, the Treasury Securities or other assets or monies
from time to time received, held and applied by the Trustees hereunder. No
Holder shall have any right except as provided herein to control or determine
the operation and management of the Trust or the obligations of the parties
hereto. Nothing set forth herein or in the certificates representing Securities
shall be construed to constitute the Holders from time to time as partners or
members of an association.
SECTION 8.7 New York Law to Govern. 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 the Holders and the construction, validity and effect of the
provisions hereof.
SECTION 8.8 Notices. Any notice, demand, direction or
instruction to be given to the Sponsor hereunder shall be in writing and shall
be duly given if mailed or delivered to Xxxxxxx, Xxxxx & Co., 00 Xxxxx Xxxxxx,
Xxx Xxxx, Xxx Xxxx 00000, Attention: Registration Department, or at such other
address as shall be specified by the Sponsor to the other parties hereto in
writing. Any notice, demand, direction or instruction to be given to the Trust
and the Trustees hereunder shall be in writing and shall be duly given if mailed
or delivered to the Trust at 000 Xxxx 00xx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000 and
to each Trustee at such Trustee's address set forth beneath its signature below,
or
-30-
such other address as shall be specified to the other parties hereto by such
party in writing. Any notice to be given to a Holder shall be duly given if
mailed, first class postage prepaid, or by such other substantially equivalent
means as the Trustees may deem appropriate, or delivered to such Holder at the
address of such Holder appearing on the registry of the Paying Agent.
SECTION 8.9 Severability. If any one or more of the covenants,
agreements, provisions or terms of this Trust Agreement shall be for any reason
whatsoever held invalid, then such covenants, agreements, provisions or terms
shall be deemed severable from the remaining covenants, agree ments, provisions
and terms of this Trust Agreement and shall in no way affect the validity or
enforceability of the other provisions of this Trust Agreement or of the
Certificates, or the rights of the Holders thereof.
SECTION 8.10 Counterparts. This Trust Agreement may be
executed in counterparts, and as so executed will constitute one agreement,
binding on all of the parties hereto.
-31-
IN WITNESS WHEREOF, the parties hereto have caused this Trust
Agreement to be duly executed.
XXXXXXX, XXXXX & CO.
By:
--------------------------------
TRUSTEES:
----------------------------------
Name: Xxxxxxx X. Xxxxxx III
Address: Department of Economics
University of Delaware
Xxxxxx, Xxxxxxxx 00000
---------------------------------
Name: Xxxxx X. X'Xxxxx
Address: Department of Economics
University of Delaware
Xxxxxx, Xxxxxxxx 00000
---------------------------------
Name: Xxxxxx X. Xxxxxxx
Address: Department of Economics
University of Delaware
Xxxxxx, Xxxxxxxx 00000
-32-
Schedule I
TREASURY SECURITIES
All terms specified are for stripped principal or interest components of U.S.
Treasury debt obligations.
FIRST TIME OF DELIVERY
-----------------------------------------------------------------------------------------------------------------------------------
PAR ZERO-COUPON STRIP RATE PRICE COST CUSIP
-------------- ----------------------------------- ------------ -------------------- -------------------------- ------------------
-------------- ----------------------------------- ------------ -------------------- -------------------------- ------------------
-------------- ----------------------------------- ------------ -------------------- -------------------------- ------------------
-------------- ----------------------------------- ------------ -------------------- -------------------------- ------------------
-------------- ----------------------------------- ------------ -------------------- -------------------------- ------------------
-------------- ----------------------------------- ------------ -------------------- -------------------------- ------------------
-------------- ----------------------------------- ------------ -------------------- -------------------------- ------------------
-------------- ----------------------------------- ------------ -------------------- -------------------------- ------------------
-------------- ----------------------------------- ------------ -------------------- -------------------------- ------------------
-------------- ----------------------------------- ------------ -------------------- -------------------------- ------------------
-------------- ----------------------------------- ------------ -------------------- -------------------------- ------------------
-------------- ----------------------------------- ------------ -------------------- -------------------------- ------------------
-------------- ----------------------------------- ------------ -------------------- -------------------------- ------------------
============== =================================== ============ ==================== ========================== ==================
SETTLEMENT DATE: February __, 1999
-33-
SECOND TIME OF DELIVERY
-----------------------------------------------------------------------------------------------------------------------------------
PAR ZERO-COUPON STRIP RATE PRICE COST CUSIP
-------------- ----------------------------------- ------------ -------------------- -------------------------- ------------------
-------------- ----------------------------------- ------------ -------------------- -------------------------- ------------------
-------------- ----------------------------------- ------------ -------------------- -------------------------- ------------------
-------------- ----------------------------------- ------------ -------------------- -------------------------- ------------------
-------------- ----------------------------------- ------------ -------------------- -------------------------- ------------------
-------------- ----------------------------------- ------------ -------------------- -------------------------- ------------------
-------------- ----------------------------------- ------------ -------------------- -------------------------- ------------------
-------------- ----------------------------------- ------------ -------------------- -------------------------- ------------------
-------------- ----------------------------------- ------------ -------------------- -------------------------- ------------------
-------------- ----------------------------------- ------------ -------------------- -------------------------- ------------------
-------------- ----------------------------------- ------------ -------------------- -------------------------- ------------------
-------------- ----------------------------------- ------------ -------------------- -------------------------- ------------------
============== =================================== ============ ==================== ========================== ==================
SETTLEMENT DATE: February __, 1999
-34-
Exhibit A
Unless this certificate is presented by an authorized representative of The
Depository Trust Company, a New York corporation ("DTC"), to Xxxxx Xxxxxx
Automatic Common Exchange Security Trust II or its agent 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), 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. This certificate may be exchanged by
an authorized representative of DTC in whole or in part for securities in
definitive form, registered in the names of such holders as such representative
of DTC shall specify, in which case, a new certificate will be issued in the
name of Cede & Co. (or in such other name as is requested by such authorized
representative of DTC) representing the securities not issued in definitive
form.
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.
$____ TRUST AUTOMATIC COMMON EXCHANGE SECURITIES
XXXXX XXXXXX AUTOMATIC COMMON EXCHANGE SECURITY TRUST II
CUSIP NO.
-----------
NO. SHARES
----------- ------------
THIS CERTIFIES THAT CEDE & CO. IS THE RECORD OWNER OF ____________ OF THE $____
TRUST AUTOMATIC COMMON EXCHANGE SECURITIES OF XXXXX XXXXXX AUTOMATIC COMMON
EXCHANGE SECURITY TRUST II CONSTITUTING FRACTIONAL UNDIVIDED INTERESTS IN XXXXX
XXXXXX AUTOMATIC COMMON EXCHANGE SECURITY TRUST, A TRUST CREATED UNDER THE LAWS
OF THE STATE OF NEW YORK PURSUANT TO A TRUST AGREEMENT BETWEEN XXXXXXX, XXXXX &
CO. AND THE TRUSTEES NAMED THEREIN. 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 TRUST'S
ADMINISTRATOR AND PAYING AGENT, 000 XXXX 00XX XXXXXX, XXX
XXXX, XXX XXXX 00000. THIS CERTIFICATE IS TRANSFERABLE AND EXCHANGEABLE BY THE
REGISTERED OWNER IN PERSON OR BY HIS DULY AUTHORIZED ATTORNEY AT THE OFFICE OF
THE PAYING AGENT UPON SURRENDER OF THIS CERTIFICATE PROPERLY ENDORSED OR
ACCOMPANIED BY A WRITTEN INSTRUMENT OF TRANSFER AND ANY OTHER DOCUMENTS THAT THE
PAYING AGENT MAY REQUIRE FOR TRANSFER, IN FORM SATIS FACTORY TO THE PAYING AGENT
AND PAYMENT OF THE FEES AND EXPENSES PROVIDED IN THE TRUST AGREEMENT.
THIS CERTIFICATE IS NOT VALID UNLESS MANUALLY COUNTERSIGNED
BY THE PAYING AGENT.
WITNESS THE FACSIMILE SIGNATURE OF THE MANAGING TRUSTEE.
Xxxxx Xxxxxx Automatic Common
Exchange Security Trust II
DATED:
By
------------------------------
[Name]
Managing Trustee
COUNTERSIGNED:
ChaseMellon Shareholder Services, L.L.C.,
as Paying Agent
By
------------------------------------
Authorized Signature
-2-
