Exhibit 2.a.(ii)
AMENDED AND RESTATED
TRUST AGREEMENT
CONSTITUTING
READER'S DIGEST AUTOMATIC COMMON EXCHANGE SECURITY TRUST
Dated as of ___________ __, 1998
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.......................................................... 5
SECTION 2.2 General Powers and Duties of the
Trustees....................................................... 6
SECTION 2.3 Portfolio Acquisition.......................................... 8
SECTION 2.4 Portfolio Administration....................................... 8
SECTION 2.5 Manner of Sales................................................ 11
SECTION 2.6 Limitations on Trustees' Powers................................ 11
ARTICLE III
ACCOUNTS AND PAYMENTS
SECTION 3.1 The Trust Account.............................................. 12
SECTION 3.2 Payment of Fees and Expenses................................... 12
SECTION 3.3 Distributions to Holders....................................... 12
SECTION 3.4 Segregation.................................................... 12
SECTION 3.5 Temporary Investments.......................................... 13
ARTICLE IV
REDEMPTION
SECTION 4.1 Redemption..................................................... 13
ARTICLE V
ISSUANCE OF CERTIFICATES;
REGISTRY; TRANSFER OF SECURITIES
SECTION 5.1 Form of Certificate............................................ 13
SECTION 5.2 Transfer of Securities; Issuance,
Transfer and Interchange of
Certificates................................................... 15
SECTION 5.3 Replacement of Certificates.................................... 16
Table of Contents
Page
ARTICLE VI
ISSUANCE OF THE CONTRACTS
SECTION 6.1 Execution of the Contracts..................................... 16
ARTICLE VII
TRUSTEES
SECTION 7.1 Trustees....................................................... 16
SECTION 7.2 Vacancies...................................................... 17
SECTION 7.3 Powers......................................................... 17
SECTION 7.4 Meetings....................................................... 18
SECTION 7.5 Resignation and Removal........................................ 18
SECTION 7.6 Liability...................................................... 18
SECTION 7.7 Compensation................................................... 19
ARTICLE VIII
MISCELLANEOUS
SECTION 8.1 Meetings of Holders............................................ 19
SECTION 8.2 Books and Records; Reports..................................... 20
SECTION 8.3 Termination.................................................... 21
SECTION 8.4 Amendment and Waiver........................................... 22
SECTION 8.5 Accountants.................................................... 23
SECTION 8.6 Nature of Holder's Interest.................................... 24
SECTION 8.7 New York Law to Govern......................................... 25
SECTION 8.8 Notices........................................................ 25
SECTION 8.9 Severability................................................... 25
SECTION 8.10 Counterparts................................................... 25
AMENDED AND RESTATED TRUST AGREEMENT
This Amended and Restated Trust Agreement, dated as of __________ __,
1998 (the "Trust Agreement"), by and between Xxxxxxx Xxxxx & Co., as sponsor
(the "Sponsor"), and Xxxxxxx X. Xxxxxx III, Xxxxx X. X'Xxxxx and Xxxxxx X.
Xxxxxxx as trustees (the "Trustees"), constituting Reader's Digest Automatic
Common Exchange Security Trust (the "Trust").
W I T N E S S E T H:
WHEREAS, the Sponsor and Xxxx X. Xxxxxxxx, as trustee, have previously
entered into a Declaration of Trust dated as of June 2, 1997 (the "Original
Agreement"), creating Third Automatic Common Exchange Security Trust;
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.
"Additional Purchase Price" - The Additional Purchase Price as defined
in the Contracts.
"Administration Agreement" - The Administration Agreement, dated as of
the date hereof, between the Administrator and the Trustees, and any substitute
agreement therefor entered into pursuant to Section 2.2(a) hereof.
"Administrator" - The Bank of New York 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
Contracts.
"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.
"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" - ____________________, or its successor as
permitted under the Collateral Agreements.
"Collateral Agreements" - The Collateral Agreements between the
Collateral Agent and each of the Sellers, securing the Sellers' obligations
under the Contracts, 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 Nonvoting Common Stock, par value $0.01 per
share, of the Company.
"Company" - The Reader's Digest Association, Inc., a Delaware
corporation.
"Contracts" - The forward purchase contracts entered into by the
Trustees with one or more existing shareholders of the Company, substantially in
the form of Exhibit C hereto.
"Custodian" - The Bank of New York, 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
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Trustees, and any substitute agreement therefor entered into pursuant to Section
2.2(a) hereof.
"Depositary" - The Depository Trust Company, or any successor thereto.
"Distribution Date" - Each ___________, ______, _________ and
___________ of each year commencing _________, 1998, to and including ______,
____ or if any such date is not a Business Day, then the first Business Day
thereafter.
"Excess Purchase Payment" - Excess Purchase Payment as defined under
the Contracts.
"Event of Default" - An Event of Default as defined in the Contracts.
"Exchange" - The delivery of Shares by the Trustees to the Holders,
subject to the adjustments and exceptions set forth in the Contracts, in
mandatory exchange for the Securities on the Exchange Date.
"Exchange Date" - The Exchange Date as defined in the Contracts.
"Exchange Rate" - The Exchange Rate as defined in the Contracts.
"Firm Purchase Price" - The Firm Purchase Price as defined in the
Contracts.
"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 Trustees 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.
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"Managing Trustee" - The Trustee designated the Managing Trustee by
resolution of the Trustees.
"Marketable Securities" - Marketable Securities as defined in the
Contracts.
"Original Agreement" - The meaning specified in the recitals hereof.
"Participant" - A Person having a book-entry only system account with
the Depositary.
"Paying Agent" - The Bank of New York, 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 Agreement, dated as of the
date hereof, between the Paying Agent and the Trustees, 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" - $______ per Security paid to each Holder on
each Distribution Date.
"Record Date" - Each __________, _____, ________, and __________ of
each year commencing ________, 1998.
"Registration Statement" - Registration Statement on Form N-2
(Registration No. 333-28245) of the Trust, as amended.
"Reorganization Event" - A Reorganization Event as defined in the
Contracts.
"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.
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"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.
"Sellers" - The persons named as Sellers in the Contracts.
"Shares" - Shares of Common Stock to be exchanged by the Trustees for
the Securities on the Exchange Date.
"Sponsor" - Xxxxxxx, Xxxxx & Co., in its capacity as sponsor of the
Trustee.
"Temporary Investments" - Direct short-term U.S. government
obligations, as specified from time to time by the Trustees or through standing
instructions from the Trustees to the Administrator or the Paying Agent.
"Transfer Agent and Registrar" - The Bank of New York, as Transfer
Agent and Registrar for the Common Stock.
"Treasury Securities" - The meaning specified in Section 2.3(b) hereof.
"Trust Account" - The account created pursuant to Section 3.1 hereof.
"Trust Estate" - The Contracts and the Treasury 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.
"Underwriters" - The Underwriters named in the Underwriting Agreement.
"Underwriting Agreement" - The Underwriting Agreement as described in
the Prospectus.
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 Contracts, issue and sell to the Sponsor and the Under-
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writers the Securities, 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 Underwriters, 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:
(a) to enter into and perform (and, in accordance with Section
8.4(a) hereof, amend), the Contracts, the Collateral Agreements, 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 Agreements 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; provided 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 Agreements, 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
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payments out of the Trust Account as set forth in Article III hereof;
(c) to issue and sell to the Underwriters an aggregate of up
to _________ Securities (including those Securities subject to the
over-allotment option of the Underwriters 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 Underwriters
but prior to the sale of the Securities to the Underwriters, the
Securities 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 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.
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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 Contracts with respect to the Shares
subject thereto with the Sellers on the Commencement Date for
settlement on the date or dates provided thereunder and, subject to
satisfaction of the conditions set forth in the Contracts, 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
expenses payable in connection with the public offering of the
Securities as described in Section 3.2 hereof and 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
Contracts, the Contracts shall entitle the Trust to receive from each
of the Sellers on the Exchange Date the Shares subject thereto 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, net of expenses payable in connection
with the public offering of the Securities, U.S. 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
("Treasury Securities").
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 Contracts
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
Sellers, or to request from the Sellers 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
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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 Contracts or (ii) an Excess Purchase
Payment in which the Company has paid or will pay consideration other
than cash as described in Section 6.1(d) of the Contracts, to select
and retain a nationally recognized investment banking firm to determine
the market value of such property as provided in the Contracts, and to
deliver to the Sellers notice pursuant to Section 8.1 of the Contracts
identifying the firm proposed to be selected and retained, and to
obtain the consent of the Sellers to such selection and retention as
provided in such Section 8.1;
(c) Acceleration. In the event an acceleration of a Contract
shall occur due to an Event of Default as provided in Article VII of
the Contracts, following a Reorganization Event or an election of the
Sellers to accelerate the Contracts pursuant to Section 6.2 of the
Contracts, to liquidate a proportionate amount of 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
or other consideration to be distributed to the Holders of Securities,
in each case in accordance with the Contracts and the Collateral
Agreements;
(d) Determination of Exchange Date Amounts. To calculate, on
the Exchange Date, the number of Shares required to be delivered by
each of the Sellers under Section 1.1 of the Contracts or, if a
Reorganization Event shall have occurred, the amount of cash and the
number of Marketable Securities required to be delivered by the
Sellers, all as provided in Section 6.2 of the Contracts, and to
furnish notice of the amounts so determined to the Collateral Agent and
the Sellers;
(e) Distribution of Exchange Consideration. Unless a
Reorganization Event shall have occurred (in which event distribution
of proceeds shall be governed by Section 8.3 below):
(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 Contracts on the Exchange Date; and (B) the number of
fractional Shares allocable to each Holder (including, in the case
of the
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Depositary, fractional shares allocable to beneficial owners
of Securities who own through Participants) and the number of
Shares comprising such fractional Shares in the aggregate;
(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 Xxxxxxx, Xxxxx & Co., or to request payment
of such difference, if negative, from Xxxxxxx, Sachs & Co.;
(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 Contracts, 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 such Participant; and
(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.
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(v) Record Date. The distributions described in this paragraph (e)
shall be made to Holders of record as of the close of business on the
Business Day preceding the Exchange Date.
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 Contracts, the Treasury Securities, the Temporary
Investments contemplated by Section 3.5 hereof and, in the event of a
Reorganization Event, Marketable Securities (it being understood that,
except as provided in Sections 2.3 and 3.5 hereof, the Trust shall
distribute any cash received by it to Holders of Securities as soon as
reasonably practicable following such receipt, without reinvestment of
such cash in any securities or other investments of any kind);
(b) to dispose of the Contracts 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;
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(j) to make loans; 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 Contracts, the
Treasury Securities and any Temporary 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 Underwriters of the Securities after the
purchase of the Contracts and the Treasury Securities and the payment of the
Trust's expenses described in Section 3.2 hereof shall be credited to the Trust
Account.
SECTION 3.2 Payment of Fees and Expenses. If so directed by the
Sellers, the Administrator is authorized to pay, from the amounts payable to the
Sellers pursuant to the Contracts, the fees and expenses of the Trust incurred
in connection with the offering of the Securities and the costs and expenses
incurred in the organization 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
such Holder's pro rata share of the Quarterly Distribution 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
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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
hold any Temporary Investments 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 any such Tempo-
rary 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.
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ARTICLE V
ISSUANCE OF CERTIFICATES; REGISTRY; TRANSFER OF SECURITIES
SECTION 5.1 Form of Certificate. Each Certificate evidencing
Securities shall be countersigned manually or in facsimile by the Managing
Trustee and executed 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 execution 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.
The Certificates delivered to the Underwriters 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
Underwriters, to be delivered to The Depository Trust Company, as depositary
("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, and
no successor securities depositary reasonably satisfactory to the Trustees
succeeds to the business of DTC, then definitive Certificates shall be prepared
by the Trust. 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
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instructions and may conclusively rely on, and shall be protected in relying
on, such instructions.
Pending the preparation of definitive Certificates, the Trustees may
execute and the Paying Agent shall authenticate 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 authenticated by the Paying
Agent upon the same conditions and in substantially the same manner, and with
like effect, as the definitive Certifi- xxxxx. Without unreasonable delay the
Managing Trustee shall execute and shall furnish definitive Certificates 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
authenticate 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 as may be
requested by the Holder and deemed appropriate by the Paying Agent 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.
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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 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, 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.
-16-
ARTICLE VI
ISSUANCE OF THE CONTRACTS
SECTION 6.1 Execution of the Contracts. The Contracts shall be
countersigned manually or in facsimile by the Managing Trustee and executed
manually by each of the Sellers and shall be dated the date of execution and
delivery by each of the Sellers.
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 the next regular annual or special meeting of
Holders 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
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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 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.
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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 representing 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 from the Trust Account 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.
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 a one-time, up-front fee
of $______, in respect of its annual fee and anticipated out-of-pocket expenses.
In addition, the Managing Trustee (provided he is not a director, officer or
employee of the Sponsor, any Underwriter, or the Administrator or any
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affiliate thereof) shall receive an additional one-time, up-front fee of $_____
for serving in such capacity. The Trustees will not receive any pension or
retirement benefits or other fringe 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 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
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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 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 distribute 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 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 Contracts will be valued on the basis of the bid price received by the Trust
in respect of the Contracts, 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
-21-
making bids on financial instruments similar to the Contracts and with terms
comparable thereto.
SECTION 8.3 Termination. (a) This Trust Agreement 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 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 Contracts, the Treasury Securities and any other securities
held hereunder, (iii) the date 10 Business Days after the Exchange Date (or, if
the Contracts shall be accelerated pursuant to Article VII thereof or in
accordance with 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 each of the Sellers, or the proceeds of any sale of collateral
pursuant to Section 8(c) of the Collateral Agreements), 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 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.
-22-
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
Underwriters 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 govern mental 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).
(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 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
-23-
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.
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
-24-
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 Contracts, 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, without reference to the conflict of
laws provisions thereof, 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, Sachs & 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 Xxxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000 and to each Trustee at
such Trustee's address set forth beneath its signature below, or 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
-25-
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, agreements, 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.
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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: Center for Economic
Education and
Entrepreneurship
University of Delaware
Xxxxxx, Xxxxxxxx 00000
_______________________________________
Name: Xxxxxx X. Xxxxxxx
Address: Department of Finance
University of Delaware
Xxxxxx, Xxxxxxxx 00000
Schedule I
TREASURY SECURITIES
All terms specified are for stripped principal or
interest components of U.S. Treasury debt
obligations.
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FIRST TIME OF DELIVERY
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PAR ZERO-COUPON STRIP RATE PRICE COST
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SETTLEMENT DATE:
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SECOND TIME OF DELIVERY
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PAR ZERO-COUPON STRIP RATE PRICE COST
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SETTLEMENT DATE:
Exhibit A
Unless this certificate is presented by an authorized representative of
The Depository Trust Company, a New York corporation ("DTC"), to Reader's
Digest Automatic Common Exchange Security Trust 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
READER'S DIGEST AUTOMATIC COMMON EXCHANGE SECURITY TRUST
CUSIP NO. ___________
NO. _________ ____________ SHARES
THIS CERTIFIES THAT CEDE & CO. IS THE RECORD OWNER OF ____________ $____ TRUST
AUTOMATIC COMMON EXCHANGE SECURITIES OF READER'S DIGEST AUTOMATIC COMMON
EXCHANGE SECURITY TRUST CONSTITUTING FRACTIONAL UNDIVIDED INTERESTS IN READER'S
DIGEST 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, __________________, NEW YORK, NEW YORK _____.
THIS CERTIFICATE IS TRANSFERABLE AND INTERCHANGEABLE 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 SATISFACTORY
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.
Reader's Digest Automatic Common
Exchange Security Trust
DATED: _________ __, 1998
By _____________________________
Managing Trustee
COUNTERSIGNED:
______________________,
as Paying Agent
By __________________________
Authorized Signature
-2-
