Exhibit 4.1
Journal Employees'
Stock Trust
Agreement
As amended June 5, 2001
Journal Employees'
Stock Trust Agreement
Dated May 15, 1937
(As amended May 5, 1954; December 23, 1964;
July 31, 1968; March 26, 1973; January 16, 1975; June 1, 1979;
April 1, 1982l January 1, 1986; February 1, 1990;
October 30, 1996 and June 5, 2001)
AGREEMENT, dated May 15, 1937, by and between XXXXX X. XXXXX, XXXX XxXXXXX,
WILMINGTON TRUST COMPANY, as Trustee under Agreement dated November 12, 1931,
with Xxxxxxxxx Xxxx Xxxxxxxx, WILMINGTON TRUST COMPANY, as Trustee under
Agreement dated November 12, 1931, with Xxxx Xxxx Xxxxx, XXXXX X. XXXX,
XXXXXXXXX XXXX XXXXXXXX and XXXX XXXX XXXXX, first parties; XXXXX X. XXXXX,
XXXXXX X. XXXXXXX, XXXX XXXXXX XXXXXXXX, XXXXXXX X. XXXXXX and XXXXXX X.
XXXXXXX, called "the trustees," second parties; and JOURNAL COMMUNICATIONS, a
Wisconsin corporation, called "the Company," third party:
1: General Definitions.
(a) This Agreement shall be known as "Journal Employees' Stock Trust
Agreement," except where referred to herein as "this Agreement."
(b) "Section" shall mean a division of this Agreement designated by arabic
numerals.
(c) The word "called" shall indicate the adoption for purposes of
simplification and convenience of certain terms and expressions which
will thereafter sometimes be used in this Agreement.
(d) "Persons" shall include corporations, trusts, associations and
partnerships, as well as natural persons.
(e) "Journal stock" shall mean the capital stock of the Company and in the
event of the reorganization or recapitalization of the Company,
whatever voting stock shall most nearly correspond to the present
capital stock of the Company.
(f) "Stockholder-Eligible" shall mean each of the persons named as First
Parties in the preamble of this Agreement so long as such persons
shall hold any shares of Journal stock and shall include the successor
or successors of each such person in the ownership of Journal stock.
(g) "Employee" shall mean every person now or at any time hereafter
employed in the service of one or more of the Employers, including the
officers of any of the Employers, so long as they shall be so employed
or on leave of absence duly granted. A director as such
shall not be deemed an employee or an officer for the purposes of this
Agreement.
(gg) "Employers" shall mean the Company and all corporations of which the
Company owns directly or indirectly 80% or more of the voting capital
stock.
(h) "Employee-Eligibles" shall mean employees during the continuance of
their employment.
(hh) An "Employee-Eligible-Transferee" means a person to whom units are
assigned by an employee-eligible upon the conditions defined in
Section 12 of this agreement.
(i) "Ex-Employee-Eligibles" shall mean persons who have ceased to be
employee-eligibles and those succeeding to their rights as owners of
units so long as such persons shall own any units as hereinafter
defined.
(ii) An "Employee Benefit Trust" shall mean a pension, profit sharing,
stock bonus or other similar trust established by an employer to
provide retirement benefits to employees and a trust established by an
employee-eligible to provide retirement benefits.
(j) "President" shall mean the person from time to time occupying the
office of President of the Company, in his individual and not in his
official capacity.
(k) "Board of Directors" shall mean a majority of the persons from time to
time constituting the Board of Directors of the Company, in their
individual and not in their official capacities.
(l) Unless otherwise indicated by the context, the singular shall include
the plural and the plural the singular, and the masculine shall
include the feminine and neuter.
(m) "Month" shall mean calendar month.
(mm) "Accounting Period" shall mean one of the 13 periods into which the
Company divides the calendar year for accounting purposes. Each such
period is composed of 4 calendar weeks, except that the first and
thirteenth periods may be longer or shorter to the extent necessary to
make each accounting year end on December 31.
(n) "Assign" shall mean bargain, sell, assign, convey and deliver.
(o) "Retirement" shall mean the separation of an employee from the
employment of the Employers (i) for an employee participating in the
Journal Communications, Inc. Employees' Pension Plan as in effect from
time to time, herein called the "JCI Plan," when eligible for Normal
Retirement, Early Retirement, or Disability Retirement under Section
4.1 of the JCI Plan; (ii) for an employee not eligible to participate
in the JCI Plan, when the employee would have been eligible for Normal
Retirement, Early Retirement, or Disability Retirement under Section
4.1 of the JCI Plan if such employee's Employer had been an "Employer"
under the JCI Plan but ignoring, for purposes of the determination
under this clause (ii), (A) the age 55 and ten (10) years of Credited
Service rule in Section 4.1(b) of the JCI Plan and (B) any
employment with such Employer prior to the date the Employer became a
"Related Employer" as defined in Section 14.1 of the JCI Plan; or
(iii) for a person participating in the JCI Plan who is not otherwise
eligible under (i), when eligible for any Early Retirement Window
Benefit under Article 4 of the JCI Plan
(p) "Qualified Termination" shall mean the separation of an employee from
the employment of the Employers as a result of (i) a downsizing of an
Employer, (ii) the elimination of employee positions, (iii) the sale
by any of the Employers of the stock of an Employer after which the
corporation the stock of which was sold no longer qualifies as an
Employer, (iv) the sale of substantially all of the assets of an
Employer, (v) a restructuring or reorganization of an Employer, (vi)
the outsourcing of a material amount of work or (vii) another similar
transaction or event as to which, in any case of (i)-(vii), the
trustees determine that there is a termination of a sufficient number
of employees and that the provisions of Section 9(h) should apply.
2: Purpose. The provisions of this Agreement are intended to promote and
facilitate the acquisition and ownership of a beneficial interest in Journal
stock by employee-eligibles and to promote stability and continuity of
management and control of the Company in the interest of the Company, the
stockholder-eligibles and the employee-eligibles through the instrumentality of
the trust hereinafter created.
3: Conveyance to the Trustees. First parties do hereby severally assign to the
trustees, in trust, for the uses and purposes hereinafter defined, the number of
shares of Journal stock set opposite their respective names below, viz.:
Xxxxx X. Xxxxx...................... 10,000 shares
Xxxx XxXxxxx........................ 10,000 shares
Wilmington Trust Company,
as Trustee under Agreement
dated November 12, 1931,
with Xxxxxxxxx Xxxx
Xxxxxxxx............................ 3,300 shares
Wilmington Trust Company,
as Trustee under Agreement
dated November 12, 1931,
with Xxxx Xxxx Xxxxx................ 3,300 shares
Xxxxx X. Xxxx, Xxxxxxxxx
Xxxx Xxxxxxxx and Xxxx
Xxxx Xxxxx.......................... 3,400 shares
Total............................... 30,000 shares
The said 30,000 shares of Journal stock, together with such other shares of
Journal stock as may hereafter be held by the trustees hereunder, are called the
"Capital Stock Fund."
I. CAPITAL STOCK FUND, UNITS OF
BENEFICIAL INTEREST THEREIN,
TRUST CERTIFICATES
4: Units of Beneficial Interest, Trust Certificates. The beneficial interests in
the Capital Stock Fund shall be divided into 30,000 equal parts called "units."
The trustees shall from time to time increase or decrease the number of units
into which the Capital Stock Fund shall be divided, to accord in so far as may
be practicable with the number of shares of Journal stock held by them
hereunder. Units shall be evidenced
by certificates, called "trust certificates," issued by the trustees.
Every such trust certificate shall be deemed to represent the number of
units specified therein, unless the trustees shall have increased or decreased
the number of units, in which case they shall call in all trust certificates
then outstanding and shall issue in lieu thereof new trust certificates
specifying the proper increased or decreased number of units represented
thereby. From and after any such call, each outstanding trust certificate
affected thereby shall represent not the number of units specified therein but
the number of units for which a new certificate is required, as aforesaid, to be
issued in lieu thereof. Trust certificates shall be in substantially the
following form:
This is to Certify That ___________ is the owner of _____ units of beneficial
interest in the trust under Journal Employees' Stock Trust Agreement dated May
15, 1937, to which reference is made for the terms and conditions of said trust,
including the rights and obligations of the holder of this certificate. By
acceptance of this certificate the holder consents to be bound by all of the
terms and conditions of said Agreement, an original of which is on file for
inspection at the office of the undersigned trustees at 000 Xxxx Xxxxx Xxxxxx,
Xxxxxxxxx, Xxxxxxxxx. The persons eligible to acquire any right or interest in
this certificate or in the units of beneficial interest represented hereby are
limited and this certificate is transferable only as provided in said Journal
Employees' Stock Trust Agreement. Dated
__________________________________
Trustees under Journal Employees' Stock
Trust Agreement dated May 15, 1937.
5: Units Vested in First Parties, Disposition by Them. Ownership of said 30,000
units shall forthwith be vested in first parties severally in proportion to the
number of shares of Journal stock hereinbefore assigned by them respectively to
the trustees, and first parties reserve to each of their number the right to
assign said units so vested in them, but only to eligibles as hereinafter
defined, in accordance with the terms of an agreement of even date herewith
between first parties and Journal Shares Corporation, a Wisconsin corporation.
6: Classes of Persons Eligible to Hold Trust Certificates. Except as otherwise
provided in Section 15, units and trust certificates evidencing units may be
owned and held only by persons included in one of the following classes, which
persons are called "eligibles":
(a) Stockholder-eligibles.
(b) Employee-eligibles.
(c) Ex-employee-eligibles, but only with respect to units and trust
certificates evidencing units acquired by them or their predecessors
in interest as employee-eligibles and only on condition that the
options provided for in Section 10 shall not have been exercised,
subject, however, to the limitations set forth in Section 13.
(d) The Company.
(e) Journal Shares Corporation.
(f) Employee-eligible-transferees.
(g) Employee Benefit Trusts
7: Recordation of Trust Certificates and Transfers Thereof. The trustees shall
keep a record of each trust certificate issued showing the date of issue, the
number of units represented thereby, the certificate number and the name and
address of the
person to whom issued. The trustees shall also keep a record of
each transfer of a trust certificate showing the date of transfer, the name and
address of the person or persons to whom transferred, together with the number
of units represented thereby and the number or numbers of the new trust
certificate or certificates issued. If any trust certificate shall be canceled,
the trustees shall note upon their record the certificate number, date of
cancellation and the number of units canceled. The trustees shall record the
transfer of a trust certificate only upon the production of proof satisfactory
to them that the transfer of the units represented thereby is in accordance with
the terms of this Agreement, and, except in the case of a sale of units owned by
employee-eligibles, ex-employee-eligibles, employee-eligible-transferees and
employee benefit trusts under the options provided for in Section 10, only upon
the surrender of such trust certificate properly endorsed. No transfer of any
unit or of any trust certificate shall be valid or effective for any purpose
unless made in accordance with the terms and conditions of this Agreement, nor
unless such transfer shall have been entered on the trustees' record. The
trustees shall not recognize any transfer of a fractional unit. The acceptance
of a trust certificate by the person to whom issued or the assertion of any
right or interest in units shall constitute an acceptance of and an agreement to
be bound by all of the terms and conditions of this Agreement.
8: Rights of Stockholder-Eligibles to Exchange Journal Stock for Trust
Certificates and Trust Certificates for Journal Stock. Any stockholder eligible
but no other person may at any time and from time to time assign shares of
Journal stock to the trustees and receive an exchange therefor trust
certificates evidencing units, or may surrender trust certificates representing
units acquired by them as stockholder-eligibles and subject to the terms and
conditions of this Agreement, receive in exchange therefor shares of Journal
stock; provided, however, that the ratio between the number of units and the
number of shares of Journal stock thus exchanged shall equal the ratio between
the number of units outstanding and the number of shares of Journal stock held
by the trustees immediately prior to such exchange.
9: Option Events With Respect to Units Owned by Employee-Eligibles. All units
owned by employee-eligibles employee benefit trusts,
employee-eligible-transferees or ex-employee-eligibles shall be subject to
purchase under the options defined in section 10, subject to the conditions
hereinafter stated, upon the happening of the option events hereinafter defined:
(a) A written offer to sell a specified number of units signed by any
unitholder and delivered to the President shall constitute an option
event in respect of the number of units specified in the offer.
(b) Termination of the employer-employee relationship between any
employee-eligible and the Employers by reason of any cause other than
retirement or qualified termination shall constitute an option event
in respect of all units then owned by such employee-eligible and in
respect of all units then held by an employee-eligible-transferee
pursuant to prior transfer by such employee-eligible under the
provisions of Section 12 and in respect of all units held by an
Employee Benefit Trust established by an employee-eligible.
(c) In the event of termination of the employer-employee relationship
between any employee-eligible and the Employers by reason of
retirement, the first anniversary of such retirement shall be an
option event in respect of all units then owned by such individual in
excess of 9/10 of the number of units owned at the time of retirement;
the second anniversary of such retirement shall be an option event in
respect of all units then owned by such individual in excess of 8/10
of the number of units owned at the time of retirement; the third
anniversary of such retirement shall be an option event in respect of
all units then owned by such individual in excess of 7/10 of the
number of units owned at the time of retirement; the fourth
anniversary of such retirement shall be an option event in respect of
all units then owned by such individual in excess of 6/10 of the
number of units owned at the time of retirement; the fifth anniversary
of such retirement shall be an option event in respect of all units
then owned by such individual in excess of 5/10 of the number of units
owned at the time of retirement; the sixth anniversary of such
retirement shall be an option event in respect of all units then owned
by such individual in excess of 4/10 of the number of units owned at
the time of retirement; the seventh anniversary of such retirement
shall be an option event in respect of all units then owned by such
individual in excess of 3/10 of the number of units owned at the time
of retirement; the eighth anniversary of such retirement shall be an
option event in respect of all units then owned by such individual in
excess of 2/10 of the number of units owned at the time of retirement;
the ninth anniversary of such retirement shall be an option event in
respect of all units then owned by such individual in excess of 1/10
of the number of units owned at the time of retirement; the tenth
anniversary of such retirement shall be an option event in respect of
all units then owned by such retired ex-employee-eligible. Provided
further that the death of any retired ex-employee-eligible prior to
the tenth anniversary of his retirement shall be an option event in
respect of all units owned by such retired ex-employee-eligible at the
time of death. The above reference to "units owned" and "units then
owned" refers to units registered in the name of the retired employee
and includes any marital or community property interest of the retired
employee's spouse.
(cc) In the case of any retired ex-employee-eligible who retired on or
before December 31, 1974, each anniversary of such retirement after
that date shall, at the written election of such retired
ex-employee-eligible, be an option event in respect of a number of
units equal to one-seventh of the units owned by him at the time of
retirement, or such lesser number of units as may constitute all units
owned by him on any such anniversary date. If any such
ex-employee-eligible fails to file such written election with the
trustees
before the first anniversary of his retirement after December 31,
1974, option events with respect to units owned by him shall occur on
the dates and in the amounts provided by this agreement as in effect
on the date of his retirement. This paragraph (cc) shall cease to be a
part of this agreement on the date on which the last unit owned by a
retired ex-employee-eligible who retired on or before December 31,
1974, is sold.
(ccc) In the case of any retired ex-employee-eligible who retired on or
before June 1, 1979, each anniversary of such retirement after that
date shall, at the written election of such retired
ex-employee-eligible, be an option event in respect of a number of
units equal to one-tenth of the units owned by him at the time of
retirement, or such lesser number of units as may constitute all units
owned by him on any such anniversary date. If any such
ex-employee-eligible fails to file such written election with the
trustees before the first anniversary of his retirement after June 1,
1979, option events with respect to units owned by him shall occur on
the dates and in the amounts provided by this agreement as in effect
on the date of his retirement or as elected under Section 9 (cc) as
the case may be. This paragraph (ccc) shall cease to be a part of this
agreement on the date on which the last unit owned by a retired
ex-employee-eligible who retired on or before June 1, 1979, is sold.
The above reference to "units owned" and "units then owned" refers to
units registered in the name of the retired employee and includes any
marital or community property interest of the retired employee's
spouse.
(d) For purposes of the option events described in Sections 9(c), (cc),
(ccc) and (h),
(i) units held by an employee-eligible-transferee or an Employee
Benefit Trust established by an employee-eligible shall be
treated as owned by the ex-employee-eligible who assigned such
units to the employee-eligible-transferee or established the
Employee Benefit Trust; and
(ii) such option events shall be applied to such units held by
employee-eligible-transferees and such Employee Benefit Trusts in
the chronological order of the issuance of the certificates
evidencing such units after first being applied to units held by
the ex-employee-eligible. The death of the ex-employee-eligible
shall be an option event in respect of all units then held by the
employee-eligible-transferees and such Employee Benefit Trusts as
well as all units then owned by the ex-employee-eligible.
(e) Termination as referred to in this Section 9 shall be deemed to have
occurred when an employee has ceased to be employed by any of the
Employers.
(f) A sale, transfer or other disposition of a unit or the trust
certificate
evidencing a unit, which is invalid and ineffective under the
provisions of Section 12, shall constitute an option event with
respect to such unit at the time of such attempted sale, transfer or
other disposition.
(g) An option event with respect to a unit owned by an employee-eligible,
an ex-employee-eligible or an employee-eligible-transferee shall
constitute an option event with respect to any marital or community
property interest of the spouse of the employee-eligible, the
ex-employee-eligible, or the employee-eligible or ex-employee-eligible
who transferred the unit to the employee-eligible-transferee.
(h) In the event of termination of the employer-employee relationship
between any employee-eligible and the Employers by reason of qualified
termination, where the termination does not qualify as a retirement
under Section 1(o) hereof :
(i) where the individual has continuously held all or part of his
units for twenty or more years at the time of termination, the
first anniversary of such termination shall be an option event in
respect of all units then owned by such individual in excess of
4/5 of the number of units owned at the time of termination; the
second anniversary of such termination shall be an option event
in respect of all units then owned by such individual in excess
of 3/5 of the number of units owned at the time of termination;
the third anniversary of such termination shall be an option
event in respect of all units then owned by such individual in
excess of 2/5 of the number of units owned at the time of
termination; the fourth anniversary of such termination shall be
an option event in respect of all units then owned by such
individual in excess of 1/5 of the number of units owned at the
time of termination; the fifth anniversary of such termination
shall be an option event in respect of all units then owned by
such individual;
(ii) where the individual has continuously held all or part of his
units for fifteen or more years (but less than twenty years) at
the time of termination, the first anniversary of such
termination shall be an option event in respect of all units then
owned by such individual in excess of 3/4 of the number of units
owned at the time of termination; the second anniversary of such
termination shall be an option event in respect of all units then
owned by such individual in excess of 2/4 of the number of units
owned at the time of termination; the third anniversary of such
termination shall be an option event in respect of all units then
owned by such individual in excess of 1/4 of the number of units
owned at the time of termination; the fourth anniversary of such
termination shall be an option event in respect of all units then
owned by such individual;
(iii) where the individual has continuously held all or part of his
units for ten or more years (but less than fifteen years) at the
time of termination, the first anniversary of such termination
shall be an option event in respect of all units then owned by
such individual in excess of 2/3 of the number of units owned at
the time of termination; the second anniversary of such
termination shall be an option event in respect of all units then
owned by such individual in excess of 1/3 of the number of units
owned at the time of termination; the third anniversary of such
termination shall be an option event in respect of all units then
owned by such individual;
(iv) where the individual has continuously held all or part of his
units for five or more years (but less than ten years) at the
time of termination, the first anniversary of such termination
shall be an option event in respect of all units then owned by
such individual in excess of 1/2 of the number of units owned at
the time of termination; the second anniversary of such
termination shall be an option event in respect of all units then
owned by such individual;
(v) where the individual has continuously held all or part of his
units for two or more years (but less than five years) at the
time of termination, the first anniversary of such termination
shall be an option event in respect of all units then owned by
such individual; and
(vi) where the individual has not held any of his units for two or
more years at the time of termination, the time of such
termination shall be an option event in respect of all units then
owned by such individual.
Provided further that the death of any ex-employee-eligible who was
terminated pursuant to a qualified termination shall be an option event in
respect of all units owned at the time of death. The above reference to
"units owned" and "units then owned" refers to units registered in the name
of the terminated employee and includes any marital or community property
interest of the terminated employee's spouse.
10: Options With Respect to Units. Options to purchase all or any of the units
made available through the happening of an option event, by depositing at the
office of the trustees in cash the option price determined according to the
formula set forth in Section 11, together with interest thereon as provided in
Section 13, within the period of time limited below, shall be vested in each of
the following classes of optionees successively:
Class A Optionees. For a period of six months after the happening of an
option event, such employee-eligible or eligibles, excluding the President,
either concurrently or successively, for such number of units and
for such period or periods not exceeding six months, as may be designated in
writing by the President to the Trustees.
Class B Optionees. For a period of two months after the expiration of the
time limited to Class A Optionees, such employee-eligible or eligibles,
including the President, and such employee benefit trusts, either concurrently
or successively, for such number of units and for such period or periods not
exceeding two months, as may be designated in writing by the Board of Directors
to the trustees.
Class C Optionees. For a period of four months after the expiration of the
time limited to Class B Optionees, stockholder-eligibles, with the right as
among themselves to purchase the units available to them in proportion to the
number of shares of Journal stock owned by them respectively, together with
their respective proportions of such units not purchased by any of their number.
Class D Optionees. For a period of five years after the expiration of the
time limited to Class C Optionees, the Company.
The options of each class of optionees shall apply only to units not
purchased by optionees in a prior class or classes.
The options arising upon the occurrence of any option event described in
Section 9 (a) or in Section 9 (b) shall terminate and supersede options then
pending, if any.
Any cash deposited with the trustees under the provisions of this section,
less taxes and expenses, if any, incident to the purchase of a unit or units,
shall be paid over promptly by the trustees to the seller of such unit or units,
subject, however, to the provisions of Sections 16 and 17.
Any of the aforesaid classes of optionees may waive their options by
delivering written notice thereof to the trustees. The President shall have the
power at any time to waive the options of Class A Optionees and the Board of
Directors shall have the power at any time to waive the options of Class B
Optionees. In the event the option of any class of optionees shall have been
waived, as hereinbefore provided, the options of the next succeeding class of
optionees shall commence on the date of such waiver.
11: Formula for Option Price of a Unit. The price, called "option price," at
which any unit subject to the foregoing options may be purchased by any optionee
shall be determined as follows:
The option price of a share of Journal stock shall be calculated according
to the formula set forth in Section 25, except that in lieu of the words "the
date of the trustees' offer" wherever occurring in Section 25, there shall be
substituted (a) with respect to optionees in Classes A, B or C, the words "the
date of the option event" and (b) with respect to the optionee in Class D, the
words "the date of purchase." This amount shall then be multiplied by the number
of shares of Journal stock held by the trustees on the date of the option event,
in the case of optionees of Class A, B or C, or on the date of purchase, in the
case of Class D Optionee, and the result thus obtained shall be divided by the
number of units outstanding on such date. The quotient thus obtained shall be
the option price of such unit. The trustees shall make a tentative determination
of such option price and the payment to the trustees of the sum so determined
shall be a sufficient exercise of the option, subject to such adjustment of such
tentative option price as may subsequently be requisite.
12: Restrictions on Transfer of Units. Every employee-eligible and
ex-employee-eligible shall have the right to assign any or all units owned by
him, by way of gift without considerations to a trustee, herein called an
"employee-eligible-transferee," in trust, for
the benefit of (i) individual beneficiaries or (ii) corporations, associations
or foundations organized for charitable, educational or religious purposes,
subject to the following conditions.
(a) Nothing in this section shall be deemed to authorize the sale of units
for a valuable consideration.
(b) No assignment of units to an employee-eligible-transferee shall revoke
or detract from the purchase option rights to which such units were
subject prior to transfer thereof to the trustee.
(c) A certified copy of the trust instrument evidencing any assignment of
units by an employee-eligible to an employee-eligible-transferee shall
be filed with the trustees under JESTA at the time of transfer.
Unless and until units owned by an employee-eligible or by an
ex-employee-eligible or by an employee-eligible-transferee or by an employee
benefit trust shall have become subject to purchase under the options specified
in Section 10 and said options shall have been exercised, or shall have expired
without having been exercised, no sale, transfer or other disposition of such
units or the trust certificates evidencing the same shall be valid or effective
for any purpose whatsoever except as provided in Section 12 above and in
Sections 15 and 16. The classification of a unit as marital property or
community property under applicable state laws shall not be deemed a sale,
transfer or other disposition for purposes of this paragraph so long as the
transferor unitholder in whose name the unit is recorded on the records of the
trustees (the "transferor unitholder") retains sole and exclusive rights of
management and control over the unit; nor shall a subsequent reassignment of the
transferee spouse's marital or community interest back to the transferor
unitholder be deemed a sale, transfer or other disposition for purposes of this
paragraph. The term "management and control" shall include, among other rights,
the right to vote, encumber, sell or otherwise dispose of the unit during the
lifetime of the transferor unitholder. Any sale, transfer, or other disposition
of a unit or the trust certificate evidencing the same which is not valid or
effective under this paragraph shall constitute an option event under Section 9
at the time of such attempted sale, transfer or other disposition.
Nothing in this agreement shall be deemed to prohibit an eligible, other
than an employee-eligible, employee benefit trust, ex-employee-eligible or
employee-eligible-transferee, from assigning to any other eligible any units
owned by him.
13: Rights of Unitholders to Participate in Dividends While Options to Class A,
B and C Optionees are pending. From the occurrence of an option event with
respect to any unit, and so long as such unit shall be subject to purchase by
optionees of Class A, B or C, the trustees shall withhold and accumulate all
payments out of dividends on Journal stock which otherwise would be made on
account of such unit and shall pay over such accumulations, if any, to the
purchaser of such unit, if an optionee of Class A, B or C, and such purchaser
shall pay to the trustees, and they in turn shall pay to the owner of such unit,
interest on the option price of such unit, computed from the date of the
happening of the option event to the date of purchase at the rate per annum to
be established by the trustees from time to time as necessary in their sole
discretion to reasonably reflect prevailing interest rates; but if such unit be
not purchased by an optionee of Class A, B or C, then upon the
expiration of the option to Class C Optionees, the trustees shall pay over such
accumulations unto the owner of such unit.
14: Rights of Unitholder to Participate in Dividends After the Expiration of the
Options to Class C Optionees. After the expiration of the option to Class C
Optionees, all further payments out of dividends received on Journal Stock on
account of any unit which shall not have been purchased by an optionee of Class
A, B or C, shall be paid by the trustees to the owner of such unit.
15: Right to Transfer Units Not Purchased by Optionees of Class A, B or C. If
any unit shall not have been purchased by an optionee of Class A, B or C, then
upon the expiration of the time limited to Class C Optionees, such unit shall be
transferable (and the trustees on demand shall then make the appropriate
notation of such fact on the trust certificate evidencing such unit) by such
person as may from time to time be the owner thereof, subject to the provisions
of Section 7, to anyone even though not an eligible, provided, however, that
such unit shall be subject to the option to the Class D Optionee until such
option shall have expired and provided further that if the Class D Optionee
shall purchase such unit at any time, then the unit shall thereafter again be
subject to the restrictions on transfer set forth in this Agreement.
16: Right of Eligibles to Pledge Units Subject to Options. Any trust certificate
owned by an eligible may be pledged to secure the payment of a loan or for any
other purpose provided, however, unless and until such eligible shall have
notified the trustees in writing of such pledge, the trustees shall not be bound
to recognize the interest of any pledgee in such trust certificate or in any
unit evidenced thereby, and provided further that the pledgee shall acquire no
rights in such unit greater than the rights of the pledgor therein. No sale or
other transfer of a unit pledged by an employee-eligible or an
ex-employee-eligible, upon foreclosure or other enforcement of such pledge,
shall be valid or effective unless at least five days' notice of such sale or
other transfer shall have been given in writing to the trustees. The occurrence
of such foreclosure sale or other transfer pursuant to due notice to the
trustees, shall be deemed an option event with respect to any unit affected
thereby and shall have the same effect as an option event specified in Section 9
(a) and shall terminate and supersede options then pending, if any; and
thereupon such unit shall be subject to purchase under the options provided in
Section 10. If such unit shall be purchased by an optionee of Class A, B, C or
D, the option price, together with interest or payments on account of dividends
as provided in Section 13, shall be paid over by the trustees to their pledgor,
the pledgee and/or the foreclosure purchaser as their respective interests may
appear. Any pledgee, by accepting any unit or the trust certificate evidencing
the same in pledge, shall be deemed to have accepted and to have agreed to be
bound by all the terms and conditions of this Agreement.
17: Obligation to Surrender Trust Certificates Upon the Happening of an Option
Event; Remedies. Forthwith upon the occurrence of an option event with respect
to any unit, it shall be the duty of whatever person shall have possession of
the trust certificate evidencing such unit, to deliver the same to the trustees
properly endorsed for transfer to the purchaser, and the trustees shall be
entitled to the remedy of specific performance to enforce such duty,
irrespective of whether or not they have or
could have resorted to other remedies. In the event that any unit shall have
been purchased by an optionee of any class and the trust certificate evidencing
such unit properly endorsed for transfer to the purchaser shall not have been
delivered to the trustees at the time of such purchase, such trust certificate
shall thereupon become void and of no effect except as evidence of the right to
receive the option price, which may be deposited without interest in any bank
which the trustees may select; and the trustees shall record the transfer of
such unit and shall issue to the optionee purchasing the same a new trust
certificate therefor.
18: Lost, Stolen or Destroyed Trust Certificates. The trustees, if satisfied
that any trust certificate has been lost, stolen or destroyed, may issue in lieu
thereof a new trust certificate, whereupon the old trust certificate, whether or
not in fact lost, stolen or destroyed, shall become void and of no effect
whatsoever and the trustees may impose such conditions upon and exact such
indemnity for the issuance of such new trust certificate as they may deem
necessary or desirable.
19: Information and Records Concerning Option Events. The trustees shall furnish
to the Company a list of all owners of units and shall thereafter notify the
Company currently of all persons becoming owners or ceasing to be owners of
units. The Company shall promptly notify the trustees of the occurrence of any
option event specified in Section 9 (a) and (b) and the President shall promptly
notify the trustees of the occurrence of an option event specified in Section 9
(c). Upon receipt of information to the effect that an option event has
occurred, the trustees shall make a record of the name of the owner and the
number of units with respect to which such option event shall have occurred, and
the date of the occurrence of such option event, which record shall be open to
inspection by all interested persons under such conditions as the trustees in
their discretion shall prescribe. If any unit or units, with respect to which an
option event shall have occurred, shall not have been purchased by optionees of
Class A or Class B as provided in Section 10, the trustees, promptly upon the
expiration of the time limited to Class B Optionees, or waiver of option, shall
notify each Class C Optionee in writing of his option, specifying the number of
units subject to option, and if any such unit or units shall not have been
purchased by Class C Optionees the trustees shall promptly upon the expiration
II. PROVISIONS RELATING TO
JOURNAL STOCK
20: Disposition of Income. The trustees shall pay over, as soon as practicable
after receipt, all income from the Capital Stock Fund, including such bonds or
notes of the Company, if any, as may be received in lieu of current income, less
such sums as they may deem necessary to provide for the payment of taxes and
expenses of administering the Capital Stock Fund, to owners of units in
proportion to the number of units owned by them respectively. The trustees may
instruct the Company to pay directly to the owners of units any sums out of the
dividends on Journal stock which otherwise would be payable to the trustees, and
the receipt of any such instructions by the Company shall discharge the trustees
from any and all further liability on account of any such payment. If any units
shall have been pledged as provided in Section 16 and the pledgor shall
have given written directions to the trustees for payment to the pledgee
of the whole or any part of the income to which such pledgor would otherwise be
entitled, the trustees shall comply with such directions or cause the same to be
complied with, so long as they shall remain unrevoked.
21: Voting Rights. The trustees, as soon as they shall receive notice of any
meeting of the owners of Journal stock, shall issue to each owner of units,
except ex-employee-eligibles, employee benefit trusts and
employee-eligible-transferees, a proxy authorizing him or such other person or
persons as he may substitute for him to vote at such meeting the number of
shares of Journal stock represented by the units owned by him, provided,
however, and each such proxy shall so state, that neither the owner of such
units nor his substitute or substitutes shall have the power or authority to
vote (a) to sell or lease all or substantially all of the assets of the Company,
or (b) to dissolve the Company, or (c) to merge or consolidate the Company with
any other corporation or corporations in which the Company and/or the
stockholders of the Company upon completion of such consolidation or merger do
not control directly or indirectly a majority of the voting stock, unless the
employee owners of at least two-thirds of the outstanding units owned by
employee-eligibles shall have authorized the trustees to offer all shares held
by the trustees for sale in accordance with the provisions of Section 24 to the
classes of optionees therein defined and such options shall have expired within
three months prior to such vote. The trustees may authorize the affixing of a
facsimile of their signatures to any proxy with the same effect as though such
proxy were signed by them personally.
The trustees shall have exclusive authority to vote all shares of Journal
stock represented by units owned by ex-employee-eligibles, employee benefit
trusts and employee-eligible-transferees.
22: Stock Dividends. All dividends paid to and received by the trustees in
shares of Journal stock shall be added to and become a part of the Capital Stock
Fund.
23: Subscription Rights. In the event that the trustees shall become entitled to
subscribe to additional shares of Journal stock, they shall, as soon as
practicable thereafter, notify in writing each owner of a unit then outstanding,
other than an ex-employee-eligible, of such fact and shall make an offer to each
such owner to subscribe on his behalf to such part of such shares of Journal
stock as shall be proportional to the number of units owned by him or any
portion of such part, on condition that he shall accept such offer and pay to
the trustees the subscription price before a specified date, sufficiently prior
to the date when the trustees' right to subscribe shall expire to enable them to
exercise such right; and on the further condition that the trustees shall not be
obliged to subscribe to any fractional share of Journal stock on behalf of any
such owner, and in every case they shall have authority to reduce the number of
shares subscribed for so far as may be requisite to avoid the creation of a
fractional unit. Any owner of a unit who shall receive such an offer from the
trustees may, subject to his obtaining the prior written consent of the
President, transfer to any eligible, other than an ex-employee-eligible, his
right to have the trustee subscribe to additional shares of Journal stock on his
behalf.
The trustees shall subscribe to so many shares of Journal stock as can be
paid for with the funds supplied to them by the owners of units accepting the
trustees' offer and shall permit their right, with respect to
the remaining shares of Journal stock to which they shall be entitled to
subscribe, to lapse. Upon receipt of any shares of Journal stock thus subscribed
for, the trustees shall forthwith issue to each owner of a unit or units who
shall have accepted the trustees' offer, a trust certificate for so many units
as shall be necessary to represent the number of shares of Journal stock paid
for by him, at the ratio obtaining immediately prior to such subscription
between the number of units outstanding and the number of shares of Journal
stock held by the trustees. Rights to subscribe to bonds or notes of any
corporation, if any shall be required by the trustees, shall be distributed pro
rata among the owners of units.
24: Sale of Journal Stock. None of the shares of Journal stock held by the
trustees shall be sold or otherwise permanently disposed of except in exchange
for its equivalent in the recapitalization or reorganization of the Company
unless and until (a) written authorization thereto signed by the
employee-eligible and employee benefit trust owners of at least two-thirds of
the units then outstanding owned by employee-eligibles and employee benefit
trusts shall have been filed with the trustees within eighteen months prior to
such sale or other permanent disposition, and (b) the trustees shall have first
granted to the following classes of optionees, successively, options in writing
for the periods of time limited below, to purchase all or any part of such
Journal stock, not purchased by prior optionees, by depositing at the office of
the trustees the option price in cash determined according to the formula set
forth in Section 25.
Class One Optionees. Beginning with the date of the first granting of the
options by the trustees, called "date of trustees' offer," and ending at the
expiration of six months thereafter:
(a) Each employee-eligible and employee benefit trust owner of units who
did not consent to such proposed sale or other permanent disposition,
called "non-consenting eligibles," as to such proportion of the shares
of Journal stock offered by the trustees as the number of units owned
by him bears to the total number of units then outstanding.
(b) Stockholder-eligibles as to the remainder of the shares of Journal
stock offered by the trustees, with the right as among themselves to
purchase such remainder, in proportion to the number of shares of
Journal stock owned by them respectively, together with their
respective proportion of such remainder, if any, not purchased by any
of their number.
Class Two Optionees. For a period of three months after the expiration of
the time limited to Class One Optionees.
(a) The non-consenting eligibles as to so many of the shares of Journal
stock offered to stockholder-eligibles as Class One optionees at shall
not have been purchased by said stockholder-eligibles, with the right
in such non-consenting eligibles as among themselves to purchase such
shares of Journal stock, in proportion to the number of units owned by
them respectively, together with their respective proportion of such
shares, if any, not purchased by any of their number.
(b) Stockholder-eligibles as to so many of the shares of Journal stock
offered to non-consenting eligibles as Class One optionees as shall
not
have been purchased by said non-consenting eligibles, with the right
in said stockholder-eligibles as among themselves to purchase such
shares of Journal stock, in proportion to the number of units owned by
them respectively, together with their respective proportions of such
shares, if any, not purchased by any of their number.
Class Three Optionees. For a period of three months after the expiration of
the time limited to Class Two optionees, the Company.
All of the optionees within any of the aforesaid classes may waive their
options by delivering joint written notice thereof to the trustees, in which
event the options of the next succeeding class of optionees shall be deemed to
begin to run on the date of such waiver.
The trustees shall not sell or otherwise permanently dispose of (except in
exchange for its equivalent on recapitalization or reorganization of the
Company) any of the shares of Journal stock held by them hereunder to any person
other than a Class One, Two or Three optionee except under the express condition
that the person so purchasing or otherwise acquiring such shares of Journal
stock shall agree also to purchase or take over from each Class One optionee,
within three months after the date of such purchase or other acquisition, for
the same price or other consideration and upon the same terms and conditions, so
many shares of Journal stock as may be offered to such purchaser by such Class
One optionee; provided, however, that if the trustees shall hold less than a
majority of the total number of shares of Journal stock outstanding such
purchaser shall not be obligated so to purchase or take over from any Class One
optionee any greater proportion of the shares of Journal stock owned by such
Class One optionee than the ratio between the number of shares so sold or
otherwise permanently disposed of by the trustees and the total number of shares
of Journal stock held by the trustees.
25: Formula for Option Price of Journal Stock. The price, called "option price,"
at which any share of Journal stock shall be subject to purchase pursuant to the
options provided in Section 24 shall be determined on a consolidated basis in
accordance with generally accepted accounting principles practiced by the
Company as shown by the books and records of the Company and its subsidiaries,
as follows:
The book value of all outstanding Journal stock as of the close of the
fiscal year next preceding the date of the trustees' offer shall first be
determined. This figure shall be increased by the net income or decreased by the
net loss, as the case may be, realized between the close of such fiscal year and
the close of the accounting period next preceding the date of the trustees'
offer, and from the amount thus obtained shall be subtracted the amount of
dividends, if any, paid on such Journal stock after the close of such fiscal
year. To this result there shall be added an amount equal to 39 times the
average accounting period net income of the Company available for dividends on
Journal stock during the 65 accounting periods next preceding the date of the
trustees' offer; but in computing such net income there shall be deducted
dividends, if any, paid or payable on any stock having priority over Journal
stock, and the trustees shall exclude from the net income calculation those
particular items of income or expense that the trustees determine to be large
and unusual. However, from and after such time as a large and unusual item has
an effect on net income of
the Company that exceeds three percent (3%) of the book value of all outstanding
Journal stock as of close of the last accounting period preceding the date of
the trustees' offer, the trustees may exclude the item from the net income
calculation only if the Board of Directors also consents to the action. For
transactions initiated after December 31, 1996, the sum thus obtained shall be
multiplied by a figure, called the "multiplier," which is shown below. The
product thus obtained shall be divided by the number of shares of Journal stock
outstanding as of the date of the trustees' offer and the quotient shall be the
option price of each share of Journal stock. In the event that there shall have
been any change in the capitalization of the Company between the end of the
fiscal year next preceding the date of the trustees' offer and the date of the
trustees' offer, the trustees shall make such adjustment in the option price as
may be necessary fairly to reflect such change. The trustees shall make a
tentative determination of such option price and payment to the trustees of the
sum so determined shall be sufficient exercise of the option, subject to such
adjustment of such tentative option price as may subsequently be requisite. The
multiplier shall be as follows:
1997 1998 1999 2000 2001
---- ---- ---- ---- ----
Period 1 1.0076923 1.1076923 1.2076923 1.3076923 1.4076923
Period 2 1.0153846 1.1153846 1.2153846 1.3153846 1.4153846
Period 3 1.0230769 1.1230769 1.2230769 1.3230769 1.4230769
Period 4 1.0307692 1.1307692 1.2307692 1.3307692 1.4307692
Period 5 1.0384615 1.1384615 1.2384615 1.3384615 1.4384615
Period 6 1.0461538 1.1461538 1.2461538 1.3461538 1.4461538
Period 7 1.0538462 1.1538462 1.2538462 1.3538462 1.4538462
Period 8 1.0615385 1.1615385 1.2615385 1.3615385 1.4615385
Period 9 1.0692308 1.1692308 1.2692308 1.3692308 1.4692308
Period 10 1.0769231 1.1769231 1.2769231 1.3769231 1.4769231
Period 11 1.0846154 1.1846154 1.2846154 1.3846154 1.4846154
Period 12 1.0923077 1.1923077 1.2923077 1.3932077 1.4923077
Period 13 1.1 1.2 1.3 1.4 1.5
For every period in 2002 and thereafter, the multiplier shall be 1.5.
III. GENERAL ADMINISTRATIVE CLAUSES
26: General Powers of the Trustees. The trustees are authorized and empowered:
(a) To cause to be transferred into their names as trustees hereunder and
to retain any and all shares of Journal stock now or hereafter
acquired by them under this Agreement, without liability on the part
of the trustees for any decrease in value thereof.
(b) Subject to the provisions and limitations herein expressly set forth,
to sell at public or private sale, exchange for like or unlike
property, and otherwise dispose off any or all shares of Journal stock
held by them hereunder, at such
price and upon such terms and credits as the trustees may deem proper.
(c) Subject to the provisions and limitations herein expressly set forth,
to participate in any plan or proceeding for reorganizing,
consolidating, merging or adjusting the finances of the Company, to
pay any assessment or any expense incident thereto and to do any other
act or thing that the trustees may deem necessary or advisable in
connection therewith.
(d) To employ counsel and pay them reasonable compensation and the
trustees shall be fully protected in any action under this Agreement
taken by them in good faith in accordance with the opinion of such
counsel.
(e) To select and employ suitable agents and to pay them reasonable
compensation.
(f) To compromise or submit to arbitration any claim in favor of or
against the trust estate or any controversy as to the option price of
Journal stock.
(g) To transfer so many shares of Journal stock held by them hereunder
into the name of each person elected a Director of the Company who may
have been so elected by the vote of the owners of units as shall be
necessary to enable such person to qualify as such Director.
(h) In every case of controversy between buyer and seller respecting the
option price of any unit, to employ at the expense of the Capital
Stock Fund a certified public accountant or a firm of certified public
accountants approved by the Company, to determine the amount of such
option price, and every determination so made shall be binding and
conclusive upon all parties to the transaction.
(i) To borrow any sum or sums of money from time to time from any person,
including the Company, for the purpose of paying taxes and, as
security for the payment of any sums so borrowed, together with
interest thereon, to charge, by pledge, mortgage or otherwise, the
Capital Stock Fund or any other assets in the hands of the trustees
and to execute such evidences of indebtedness as the lenders may from
time to time require.
(j) To institute or cause to be taken or instituted or to intervene in or
become a party to or exercise control over such actions, suits or
proceedings as the trustees shall deem judicious or proper in order to
protect the Capital Stock Fund or any other assets held by the
trustees and to defend or settle, in whole or in part, any litigation
which may at any time be threatened or instituted.
27: Notices. It shall be the duty of each party in interest hereunder, including
each owner of trust certificates, to keep the trustees informed of his proper
post office address, and any notice, communication, payment or distribution
under this Agreement may be given or made by mailing such notice, communication,
payment or distribution to such address with the same force and effect as if
personally delivered.
28: Meetings of Owners of Trust Certificates. Meetings of owners of trust
certificates or of any class of such owners may be called by the trustees in
their discretion and held at such time and place as shall be designated by the
trustees, upon five days' notice in writing, from the trustees to the class of
owners of trust certificates for which such meeting is held and at any such
meeting a trustee designated by the trustees shall act as chairman and each unit
shall be entitled to one vote in determining any matter presented to such
meeting. In case there shall be no trustees such meeting may be called by any
five owners of units.
IV. THE TRUSTEES
29: Right to Resign; Selection of Successor Trustees. The office of any trustee
hereunder shall be vacated and any and all right, title and interest of such
trustee in the Capital Stock Fund and other assets in the hands of the trustees,
if any, shall be divested without formal conveyance by (a) death, (b) mental or
physical incapacity certified to the remaining trustees by two physicians of
good standing retained by the trustees, (c) absence from the United States for a
period of more than one year, (d) resignation evidenced by written instrument
delivered to the remaining trustees, (e) termination of employment in the
service of the Employers, or (f) ceasing to be an owner of one or more units.
Any vacancy occurring in the office of any trustee shall be filled from
among the employee-eligible owners of units by the written appointment of Xxxxx
X. Xxxxx, so long as he shall be one of the trustees hereof, and by the written
acceptance of such appointee. Thereafter every such vacancy shall be filled from
among the employee-eligible owners of units by the written appointment of the
remaining trustees or trustee and the written acceptance of the appointee, but
if such remaining trustees or trustee shall not have filled such vacancy within
one month after such vacancy shall have occurred, or if there shall be no
remaining trustee, then by the affirmative vote of the employee-eligibles and
employee benefit trusts owning at least a majority of the units then outstanding
owned by employee-eligibles and employee benefit trusts.
A certificate executed by any three trustees in the same manner as a deed
to be recorded shall for all purposes of this Agreement be evidence of the
identity of the trustees acting under this Agreement at the time specified in
such certificate.
All persons appointed or elected to the office of trustee, as aforesaid,
shall be vested with all the same estates, powers, rights, duties, privileges,
immunities and discretions as if originally named herein.
30: Majority Rule; Action by Trustees. Except only as provided in Section 38, a
majority of the number of the trustees from time to time acting hereunder, even
though less than five, may do any act which might be performed by all of their
number, and such action may be at a meeting of the trustees or without a meeting
by an instrument or separate concurrent instruments in writing signed by the
requisite number of trustees and filed at the office of the trustees. If less
than all of the trustees shall perform any act they shall give prompt notice of
such action to the trustees who did not participate therein, but failure to give
such notice shall not invalidate such act. No trustee shall be answerable or
accountable for any act of any other trustee in which he shall not have
participated, nor for the custody of any property except such as shall come into
his own possession or personal control.
The trustees may appoint a secretary who shall keep and maintain a record
of their proceedings and action in such form as the trustees shall determine and
meetings of the trustees shall be held at such times and places and upon such
notice as they may from time to time determine and establish by agreement or
resolution.
31: Eligibility of Trustees as Officers and Directors. No person holding office
as trustee hereunder shall on that account be ineligible to serve as an officer
or member of the Board of Directors of any of the Employers, nor to receive
compensation for services rendered to any of the Employers, nor to acquire or
hold for his personal account shares of Journal stock, units or trust
certificates evidencing units.
32: No Bond Required of Trustees. No bond or other security shall be required of
any trustee for the due performance of his duties hereunder unless a majority of
the trustees shall from time to time determine otherwise.
33: Limitation on Liability of Trustees for Losses. No trustee shall incur any
liability or have any responsibility for any error of judgment or mistake of
law, or for any action or omission in the administration of this trust, except
only for his individual willful misconduct.
34: Compensation of Trustees; Exoneration From Liability. The trustees shall be
entitled to no compensation for their services hereunder, but shall be entitled
to exoneration from any and all liabilities which may be incurred by them in the
bona fide discharge of their duties hereunder and shall be entitled to
reimbursement for taxes and expenses paid in administering this trust, and shall
have a lien upon all trust assets in their hands to secure such exoneration and
reimbursement.
35: Audit of the Trustees' Accounts. The trustees shall, at least once in every
year, cause to be prepared a comprehensive report setting forth their assets and
liabilities, receipts and disbursements, and shall cause such report to be
audited by a certified public accountant or a firm of certified public
accountants selected by the trustees and copies thereof shall be filed in the
office of the trustees and shall there be open for the inspection of
stockholder-eligibles and the owners of units.
V. TERMINATION, AMENDMENT AND DISTRIBUTION
36: Termination by Sale of Journal Stock. In the event that the trustees shall
have sold, in compliance with the provisions of Section 24, any or all of the
shares of Journal stock held by them hereunder, this trust, with respect to the
shares of Journal stock so sold, shall terminate.
37: Duration of Trust. Unless terminated in the manner provided in Section 36 or
in Section 38, the duration of this trust shall be perpetual.
38: Amendment and Termination by Consent. This Agreement may be amended, or the
trust hereby created may be terminated at any time by the written consent of all
of the trustees then acting hereunder and the written consent of such of the
stockholder-eligibles as shall own at least 80 percent of the shares of Journal
stock then owned by stockholder-eligibles, and the affirmative vote of
employee-eligible and employee
benefit trust owners of at least two-thirds of the units then outstanding owned
by employee-eligibles and employee benefit trusts.
39: Distribution Upon Termination. In the event that this trust shall be
terminated by sale of Journal stock as provided in Section 36 the trustees shall
distribute the proceeds of such sale, or in the event this trust shall be
terminated in the manner provided in Section 38, the trustees shall distribute
the Capital Stock Fund as it may then be constituted, including principal and
undistributed income thereof, if any, less such sums as the trustees shall deem
necessary to reserve for taxes, expenses and other charges which may be incurred
by the trustees in making such sale and/or distribution, unto the owners of
units then outstanding, in proportion to the number of such units owned by them
respectively.
VI. SUPPLEMENTARY TRUST FUNDS
40: Composition of a Supplementary Trust Fund. If the trustees shall acquire,
either through the receipt of dividends, the exercise of subscription rights, an
exchange upon recapitalization or reorganization, or by any other means, stock
of the Company of a kind or class other than Journal stock is defined in Section
1, each such kind or class of stock, called "supplementary stock," shall be
segregated and held by the trustees in a separate trust fund, called
"supplementary trust fund," the beneficial interest in which shall be divided
into as many equal parts, called "supplementary units," as the trustees shall
deem necessary or convenient, and ownership of such supplementary units shall be
vested in the owners of units or supplementary units on account of which the
same shall have been acquired pro rata and shall be evidenced by trust
certificates, called "supplementary trust certificates," which shall be issued
in substantially the form set forth in Section 4.
41: Terms and Conditions Governing Supplementary Trust Funds, Units Therein and
Supplementary Trust Certificates. Except as to the formula for determining
option price, as provided in Section 42 and 43, respectively, each supplementary
unit and each kind or class of supplementary stock represented thereby shall be
subject to all the terms and conditions of this Agreement which are applicable
to units and Journal stock respectively, to the same extent as though the words
"supplementary unit" were substituted whenever the word "unit" appears, and the
words "supplementary stock" were substituted wherever the words "Journal stock"
appear, and each supplementary trust certificate and each supplementary trust
fund shall be subject to all the terms and conditions of this Agreement which
are applicable to trust certificates and the Capital Stock Fund, respectively,
to the same extent as though the words "supplementary trust certificate" were
substituted wherever the words "trust certificate" appear, and the words
"supplementary trust fund" were substituted wherever the words "Capital Stock
Fund" appear. Supplementary units subject to the terms and conditions of this
Agreement may be dealt with by the owners thereof independently of the units or
other supplementary units on account of which they may be acquired.
42: Formula for Option Price of a Supplementary Unit. In the event that any
supplementary unit shall be subject to purchase under the options as provided in
Section 9 and 10, the price, called "option price," at which such supplementary
unit
may be purchased by any optionee shall be determined as follows:
The option price of a share of the supplementary stock represented by such
unit shall be calculated according to the formula set forth in Section 43,
except that in lieu of the words "date of the trustees' offer" wherever
occurring in Section 43, there shall be substituted (a) with respect to
optionees of Class A, B or C the words "date of the option event," and (b) with
respect to Class D optionee the words "date of purchase." This amount shall then
be multiplied by the number of shares of such supplementary stock held by the
trustees on the date of the option event in the case of optionees of Class A, B
or C or on the date of purchase in the case of Class D optionee, and the result
thus obtained shall be divided by the number of such supplementary units
outstanding on such date. The quotient thus obtained shall be the option price
of such supplementary unit, which shall be tentatively determined with the same
effect as provided in Section 11.
43: Formula for Option Price of Supplementary Stock. In the event that any share
of supplementary stock shall become subject to purchase under the options
provided in Section 24, the price, called "option price," at which such
supplementary stock may be purchased by any optionee described in said Section
24 shall be determined on a consolidated basis in accordance with generally
accepted accounting principles practiced by the Company as shown by the books
and records of the Company and its subsidiaries, as follows:
The book value of all such outstanding supplementary stock as of the close
of the fiscal year next preceding the date of the trustees' offer shall first be
determined. Insofar as applicable to such supplementary stock, this figure shall
be increased by the net income or decreased by the net loss, as the case may be,
realized between the close of such fiscal year and the close of the accounting
period next preceding the date of the trustees' offer, and from the amount thus
obtained shall be subtracted the amount of dividends, if any, paid on such
supplementary stock since the close of such fiscal year. To this result there
shall be added, if such supplementary stock shall be the terms of its issue be
entitled to participate without limit in the net income of the Company available
for dividends, an amount equal to 39 times the proportionate interest of such
supplementary stock in the average accounting period net income of the Company
available for dividends during as many accounting periods not exceeding 65 next
preceding the date of the trustees' offer as such supplementary stock shall have
been outstanding. The sum thus obtained shall be divided by the number of shares
of such supplementary stock outstanding as of the date of the trustees' offer,
and the quotient shall be the option price for each share of such supplementary
stock which shall be tentatively determined with the same effect as provided in
Section 25. Provided however, that the option price of any share of
supplementary stock which by the terms of its issue is entitled to participate
in net earnings of the Company in a limited amount or percentage, shall not in
any event exceed the price at which it is callable or redeemable under the terms
of its issue, or the stated amount at which it is entitled by the terms of its
issue to participate in the assets of the Company in the event of liquidation,
whichever is higher. In the event that there shall have been any change in the
capitalization of the Company between the end of the fiscal year next preceding
the date of the
trustees' offer and the date of the trustees' offer, the trustees shall make
such adjustment in the option price as may be necessary fairly to reflect such
change.
VII. DIVISION OF TRUST INTO SEPARATE TRUSTS
44: Circumstances Under Which Trust is Divisible. If the trustees shall acquire,
either through the receipt of dividends, the exercise of subscriptionrights, an
exchange upon reorganization or by any other means, stock of any corporation
other than the Company, which corporation and in that event the Company also are
called `'separate corporations," and any owner of units shall cease to be
employed by any separate corporation but shall be employed by any other separate
corporation, the trustees shall divide this trust into separate and distinct
trusts, called `'separate trusts," so that the stock of each separate
corporation employing the same owners of units shall be held in the same
separate trust but that the stock of each separate corporation employing
different owners of units shall be in different separate trusts, but, subject to
such limitation, the trustees may make any allocation among such separate trust,
of supplementary stock, if any, held in this trust before its division as
aforesaid which they may deem appropriate, having regard to the nature of the
business conducted by the separate corporations whose stock shall be held in the
several separate trusts.
If, however, the trustees shall acquire, through any of the means described
in the preceding sentence, stock of any corporation other than the Company and
none of the owners of units shall cease to be employed by the Company by reason
of being transferred to such corporation other than the Company, the stock of
such other corporation shall be called, and treated in all respects as,
supplementary stock, as provided in Sections 40, 41, 42 and 43.
45: Exchange of Trust Certificates and Supplementary Trust Certificates, Terms
Governing Separate Trusts. Upon the division of this trust into separate trusts
as provided in Section 44, the trustees shall call in all of the outstanding
trust certificates and supplementary trust certificates, if any, and shall issue
in exchange therefor to the owners thereof appropriate trust certificates and,
if issuable, supplementary trust certificates for their proper number of units
of beneficial interest in each separate trust respectively. Upon receipt of
trust certificates and supplementary trust certificates, if any, in each
separate trust each employee-eligible or employee benefit trust owner thereof
shall offer such of them as represent units of supplementary units in shares of
stock of a separate corporation by which such owner is not employed or was not
created for sale to optionees in the manner set forth in Sections 9, 10, 41 and
42, provided, however, that Class A and B optionees shall be employee-eligibles
and employee benefit trusts of such separate corporation and Class D optionee
such separate corporation.
Thereafter each separate trust shall be administered independently of each
other separate trust and shall be subject to all the terms and conditions of
this Agreement as though the stock of each separate corporation held in such
separate trust were Journal stock or supplementary stock, as the case may be,
and each such separate corporation were the Company, provided, however, that if
any of the trustees of this trust shall become disqualified to act as trustees
of any separate trust by reason of their not owning any units in such separate
trust, the remaining trustees who are not so disqualified shall constitute
the trustees for such separate trust and they, or if all of the trustees shall
be so disqualified, then all of such disqualified trustees shall fill the
vacancy of any disqualified trustee or trustees in the manner herein provided
with respect to this trust, and thereafter the several separate trusts shall be
administered by separate trustees.
46: Subdivision of Separate Trusts. If after a separation of this trust into
separate trusts, as provided in Section 44, any owner of a separate unit or
units shall cease to be employed by any separate corporation but shall be
employed by any other separate corporation whose stock shall be held in any
separate trust, or if the trustees shall acquire in any separate trust, stock of
a corporation other than that whose stock shall be held in such separate trust
and any of the owners of units in such separate trust shall cease to be employed
by any such separate corporation but shall be employed by any other such
separate corporation whosestock shall be held in such separate trust, the
trustees shall subdivide such separate trust into further separate trusts, and
the same procedure shall be followed with the same effect as described in
Sections 44 and 45.
VIII. SITUS; INSPECTION OF
AGREEMENTS; AND SEVERABILITY
OF PROVISIONS
47: Situs. The trustees may, in their discretion, from time to time, change the
situs of the Capital Stock Fund or other assets held by the trustees to any
place within the United States, which situs may be at a place other than the
residence of the respective trustees, or any of them.
48: Inspection of This Agreement. A copy of this Agreement shall be filed in the
principal office of the Company and in the office of the trustees, and shall be
open to inspection by all interested persons, under such conditions as the
trustees in their discretion shall prescribe.
49: Severability of Provisions. If for any reason any provisions of this
Agreement shall become or be held inoperative or illegal, the validity and
effect of the other provisions hereof shall not thereby be affected.
This Agreement is executed in fourteen counterparts, each of which will be
deemed to be an original.
IN WITNESS WHEREOF, first parties, XXXXX X. XXXXX, XXXX XxXXXXX, XXXXX X.
XXXX, XXXXXXXXX XXXX XXXXXXXX and XXXX XXXX XXXXX, have hereunto set their hands
and seals, and WILMINGTON TRUST COMPANY, as Trustee under Agreement dated
November 12, 1931, with Xxxxxxxxx Xxxx Xxxxxxxx, and WILMINGTON TRUST COMPANY,
as Trustee under Agreement dated November 12, 1931, with Xxxx Xxxx Xxxxx, has
caused this Agreement to be signed in its name by one of its Vice Presidents and
to be attested and its corporate seal to be hereunto affixed by one of its
Assistant Secretaries; and the trustees, XXXXX X. XXXXX, XXXXXX X. XXXXXXX, XXXX
XXXXXX XXXXXXXX, XXXXXXX X. XXXXXX and XXXXXX X. XXXXXXX, have hereunto set
their hands and seals; and the third party, JOURNAL COMMUNICATIONS, has caused
this Agreement to be signed in its name by its President and to be attested and
its corporate seal to be hereunto affixed by its Secretary, done as of May 15,
1937.
