[Execution Copy]
EXHIBIT 4.1
STANDARD TERMS FOR DEPOSITARY TRUST AGREEMENTS
between
XXXXXXX LYNCH, PIERCE, XXXXXX & XXXXX INCORPORATED
and
THE BANK OF NEW YORK,
as Trustee
Dated as of September 2, 1999
TABLE OF CONTENTS
Page
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ARTICLE 1
DEFINITIONS AND ASSUMPTIONS
Section 1.1. Definitions ............................................................ 1
Section 1.2. Rules of Construction .................................................. 5
ARTICLE 2
FORM OF RECEIPTS, DEPOSIT OF SECURITIES, DELIVERY,
REGISTRATION OF TRANSFER AND SURRENDER OF RECEIPTS
Section 2.1. Depositary Trust Agreements ............................................ 6
Section 2.2. Creation and Declaration of Trusts; Deposit of Securities .............. 6
Section 2.3. Acceptance by Trustee .................................................. 8
Section 2.4. Form and Transferability of Receipts ................................... 8
Section 2.5. Delivery of Receipts ................................................... 10
Section 2.6. Registration; Registration of Transfer; Combination and Split-up of
Certificates ....................................................... 11
Section 2.7. Surrender of Receipts and Withdrawal of Underlying Securities .......... 12
Section 2.8. Limitations on Delivery, Registration of Transfer and Surrender of
Receipts ........................................................... 13
Section 2.9. Lost Certificates, Etc ................................................. 14
Section 2.10. Cancellation and Destruction of Surrendered Certificates ............... 14
Section 2.11. Reconstitution Events .................................................. 14
ARTICLE 3
CERTAIN OBLIGATIONS OF OWNERS OF RECEIPTS
Section 3.1. Filing Proofs, Certificates and Other Information ...................... 16
Section 3.2. Liability of Owner for Taxes and Other Charges ......................... 16
Section 3.3. Warranties on Deposit of Shares ........................................ 17
ARTICLE 4
THE UNDERLYING SECURITIES
Section 4.1. Cash Distributions ..................................................... 17
Section 4.2. Distributions Other Than Cash or Securities ............................ 17
Section 4.3. Distributions in Securities ............................................ 18
Section 4.4. Rights Offerings ....................................................... 19
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Section 4.5. Fixing of Record Date .................................................. 19
Section 4.6. Reports ................................................................ 20
Section 4.7. Voting Instructions for Underlying Securities .......................... 20
Section 4.8. Changes Affecting Underlying Securities ................................ 21
Section 4.9. Withholding ............................................................ 22
Section 4.10. Limitation on Distributions ............................................ 22
ARTICLE 5
THE TRUSTEE AND THE INITIAL DEPOSITOR
Section 5.1. Maintenance of Office and Transfer Books by the Trustee ................ 22
Section 5.2. Prevention or Delay in Performance by the Initial Depositor or the
Trustee ............................................................ 23
Section 5.3. Obligations of the Initial Depositor and the Trustee ................... 24
Section 5.4. Resignation or Removal of the Trustee; Appointment of Successor
Trustee ............................................................ 26
Section 5.5. Indemnification ........................................................ 27
Section 5.6. Charges of Trustee ..................................................... 29
Section 5.7. Retention of Trust Documents ........................................... 30
Section 5.8. Federal Securities Law Filings ......................................... 30
Section 5.9. Prospectus Delivery .................................................... 30
ARTICLE 6
AMENDMENT AND TERMINATION
Section 6.1. Amendment .............................................................. 31
Section 6.2. Early Termination ...................................................... 31
ARTICLE 7
MISCELLANEOUS
Section 7.1. Counterparts ........................................................... 33
Section 7.2. Third-Party Beneficiaries .............................................. 33
Section 7.3. Severability ........................................................... 34
Section 7.4. Owners and Beneficial Owners as Parties; Binding Effect ................ 34
Section 7.5. Notices ................................................................ 34
Section 7.6. Governing Law .......................................................... 35
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EXHIBIT A
FORM OF DEPOSITARY TRUST AGREEMENT ......................................... A-1
EXHIBIT B
FORM OF CERTIFICATE EVIDENCING RECEIPTS .................................... B-1
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STANDARD TERMS FOR DEPOSITARY TRUST AGREEMENTS agreed to as of
September 2, 1999 (these "Standard Terms"), between XXXXXXX LYNCH, PIERCE,
XXXXXX & XXXXX INCORPORATED, a Delaware corporation (the "Initial Depositor")
and THE BANK OF NEW YORK, a New York banking corporation, as trustee (the
"Trustee").
W I T N E S S E T H :
WHEREAS, from time to time, the Initial Depositor and the Trustee may
enter into one or more depositary trust agreements providing for the deposit
with the Trustee of specified Securities (as hereinafter defined), the creation
of Depositary Trust Receipts representing the Securities so deposited and the
execution and delivery of certificates evidencing the Depositary Trust Receipts;
and
WHEREAS, the Initial Depositor and the Trustee wish to establish the
general terms and conditions of such depositary trust agreements and the form of
the certificates evidencing Depositary Trust Receipts;
NOW, THEREFORE, in consideration of the premises and the mutual
covenants contained in these Standard Terms, the parties hereby agree as
follows:
ARTICLE 1
DEFINITIONS AND ASSUMPTIONS
Section 1.1. Definitions. Except as otherwise specified in these
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Standard Terms or in the applicable Depositary Trust Agreement or as the context
may otherwise require, the following terms have the respective meanings set
forth below for all purposes of these Standard Terms and the applicable
Depositary Trust Agreement.
"Beneficial Owner" means any Person owning a beneficial interest in
any Receipt.
"Closing Date" means the day on which the initial deposit of
Securities is to be made, which date may be specified in the applicable
Depositary Trust Agreement.
"Commission" means the Securities and Exchange Commission of the
United States or any successor governmental agency in the United States.
"Corporate Trust Office" means the office of the Trustee at which its
depositary receipt business is administered which, at the date of these Standard
Terms, is 000 Xxxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000.
"Deliver" means (a) when used with respect to Securities, either (i)
one or more book-entry transfers of such Securities to an account at DTC
designated by the Person entitled to such delivery for further credit as
specified by such Person or (ii) in the case of Securities for which DTC book-
entry settlement is not available, the delivery of certificates evidencing such
Securities to the Person entitled to such delivery, duly endorsed for transfer
or accompanied by proper instruments of transfer and (b) when used with respect
to Receipts, either (i) one or more book-entry transfers of Receipts to an
account at DTC designated by the Person entitled to such delivery for further
credit as specified by such Person or (ii) in the event DTC ceases to make its
book-entry settlement system available for the Receipts, execution and delivery
at the Corporate Trust Office of the Trustee of one or more certificates
evidencing such Receipts.
"Depositary Trust Agreement" means a depositary trust agreement
entered into by the Initial Depositor and the Trustee pursuant to these Standard
Terms which incorporates by reference these Standard Terms.
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"Depositor" means any Person who deposits Securities into the Trust,
either for its own account or on behalf of another Person who is the owner or
beneficial owner of such Securities.
"Depositor Order" means a written order or request signed in the name
of the Initial Depositor or any other Depositor, as applicable.
"DTC" means The Depository Trust Company, its nominees and their
respective successors.
"Initial Depositor" means Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx
Incorporated, a Delaware corporation, or its successor.
"Issuance Denomination" is defined in Section 2.4, subject to increase
as provided in Sections 4.3 and 4.8.
"Owner" means the Person in whose name a Receipt is registered in the
books of the Trustee maintained for that purpose.
"Person" means any individual, limited liability company, corporation,
partnership, joint venture, association, joint stock company, trust (including
any trust beneficiary), unincorporated organization or government or any agency
or political subdivision thereof.
"Receipt" means a depositary trust receipt which is issued under the
Depositary Trust Agreement and which represents the Owner's right to receive
the Underlying Securities which must be deposited into the Trust for issuance of
a Receipt
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plus any other Underlying Securities received by the Trustee with respect to
such Underlying Securities and held by the Trustee under the Depositary Trust
Agreement at such time. The Trustee shall only accept for deposit whole
Securities and shall not issue Receipts except to the extent such Receipts
represent, in the aggregate, whole Underlying Securities.
"Registrar" means any bank or trust company having an office in the
Borough of Manhattan, The City of New York, which shall be appointed to register
Receipts and transfers of Receipts as herein provided.
"Restricted Securities" means Securities, or Receipts representing
such Securities, which are acquired directly or indirectly from the issuer or
its affiliates (as defined in Rule 144 under the Securities Act of 1933) in a
transaction or chain of transactions not involving any public offering, or which
are held by an officer or director (or person performing similar functions) or
other affiliate of the issuer, or which would require registration under the
Securities Act of 1933 in connection with the public offer and sale thereof in
the United States, or which are subject to other restrictions on sale or deposit
under the federal securities laws of the United States, a shareholder agreement
or the corporate documents of the issuer.
"Round Lot" means 100.
"Securities" means any shares of a class of securities which must be
deposited for issuance of Receipts.
"Securities Issuer" means, as of any time, the issuer of a class of
Securities.
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"Securities Registrar" means the entity that presently carries out the
duties of registrar for any Securities or any successor as registrar for any
Securities and any other appointed agent of a Securities Issuer for the transfer
and registration of Securities.
"Surrender" means, when used with respect to Receipts, (a) one or more
book-entry transfers of Receipts to the DTC account of the Trustee or (b)
surrender to the Trustee at its Corporate Trust Office of one or more
certificates evidencing such Receipts, in each case in a Round Lot or an
integral multiple thereof.
"Trust" means the trust entity created by the Depositary Trust
Agreement.
"Trustee" means The Bank of New York, a New York banking corporation,
in its capacity as Trustee under the Depositary Trust Agreement, or any
successor as Trustee thereunder.
"Underlying Securities" means, as of any time, Securities of each of
the classes and in the quantities required by the Depositary Trust Agreement to
be deposited in the Trust for the issuance of Receipts and which are at such
time deposited under the applicable Depositary Trust Agreement and any other
securities, property or cash received by the Trustee in respect thereof and at
such time held hereunder.
Section 1.2. Rules of Construction. Unless the context otherwise
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requires:
(i) a term has the meaning assigned to it;
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(ii) an accounting term not otherwise defined has the meaning
assigned to it in accordance with generally accepted accounting principles as in
effect in the United States from time to time;
(iii) "or" is not exclusive;
(iv) the words "herein", "hereof", "hereunder" and other words of
similar import refer to these Standard Terms or the Depositary Trust Agreement
as a whole and not to any particular Article, Section or other subdivision;
(v) "including" means including without limitation; and
(vi) words in the singular include the plural and words in the plural
include the singular.
ARTICLE 2
FORM OF RECEIPTS, DEPOSIT OF SECURITIES, DELIVERY,
REGISTRATION OF TRANSFER AND SURRENDER OF RECEIPTS
Section 2.1. Depositary Trust Agreements. Each Depositary Trust
---------------------------
Agreement entered into between the Initial Depositor and the Trustee for the
purposes set forth herein shall be in substantially the form of Exhibit A to
these Standard Terms and shall provide that these Standard Terms shall be
incorporated by reference into, and form a part of, such Depositary Trust
Agreement.
Section 2.2. Creation and Declaration of Trusts; Deposit of
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Securities. (a) The Initial Depositor, concurrently with the execution and
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delivery of the Depositary Trust Agreement, does hereby agree to deposit with
the Trustee under the Depositary
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Trust Agreement all the right, title and interest of the Initial Depositor in,
to and under Securities, of each of the classes and in the quantities necessary
to create Receipts in accordance with Section 2 of the Depositary Trust
Agreement in effect at the time of deposit. Unless otherwise specified in the
Depositary Trust Agreement, such deposit shall include all cash dividends and
distributions in respect of such Securities.
(b) From time to time after the date of the Depositary Trust
Agreement, a Depositor may deposit with the Trustee, in the manner specified in
subsection (a), Securities, of each of the classes and in the quantities
necessary to create Receipts in accordance with Section 2 of the Depositary
Trust Agreement in effect at the time of deposit by Delivery of such Securities
to the Trustee.
(c) The Trustee shall only accept for deposit whole Securities and
shall not issue Receipts except to the extent such Receipts represent, in the
aggregate, whole Underlying Securities.
(d) The Trust shall not engage in any business or activities other
than those required or authorized by these Standard Terms or incidental and
necessary to carry out the duties and responsibilities set forth in the
Depositary Trust Agreement. Other than issuance of the Receipts, the Trust
shall not issue or sell any certificates or other obligations or otherwise
incur, assume or guarantee any indebtedness for money borrowed.
(e) Anything herein to the contrary notwithstanding, the Trustee does
not assume any of the duties, responsibilities, obligations or liabilities of
the Initial Depositor or any other Depositor in respect of the Underlying
Securities.
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(f) Underlying Securities shall be held by the Trustee at such place
and in such manner as the Trustee shall determine.
Section 2.3. Acceptance by Trustee. The Trustee will hold the
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Underlying Securities for the benefit of the Owners for the purposes, and
subject to and limited by the terms and conditions, set forth in these Standard
Terms and the applicable Depositary Trust Agreement.
Section 2.4. Form and Transferability of Receipts. (a) The
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certificates evidencing Receipts shall be substantially in the form set forth in
Exhibit B annexed to these Standard Terms, with appropriate insertions,
modifications and omissions, as hereinafter provided or as may be provided in
the Depositary Trust Agreement. The Issuance Denominations of a certificate
shall be any integral multiple of a Round Lot of Receipts, subject to increase
or decrease as provided in Sections 4.3 and 4.8. No Receipt shall be entitled
to any benefits under the Depositary Trust Agreement or be valid or obligatory
for any purpose unless a certificate evidencing such Receipt shall have been
executed by the Trustee by the manual or facsimile signature of a duly
authorized signatory of the Trustee and, if a Registrar (other than the Trustee)
for the Receipts shall have been appointed, countersigned by the manual or
facsimile signature of a duly authorized officer of the Registrar. The Trustee
shall maintain books on which the registered ownership of each Receipt and
transfers, if any, of such registered ownership shall be recorded. Certificates
evidencing Receipts bearing the manual or facsimile signature of a duly
authorized signatory of the Trustee and Registrar, if applicable, who was at the
time such certificates were executed a proper signatory of the Trustee or
Registrar, if applicable, shall bind the Trustee, notwithstanding that such
signatory has ceased to hold such office prior to the delivery of such
certificates.
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(b) The certificates evidencing Receipts may be endorsed with or have
incorporated in the text thereof such legends or recitals or modifications not
inconsistent with the provisions of the Depositary Trust Agreement as may be
required by the Trustee or required to comply with any applicable law or
regulations thereunder or with the rules and regulations of any securities
exchange upon which Receipts may be listed or to conform with any usage with
respect thereto, or to indicate any special limitations or restrictions to which
any particular Receipts are subject by reason of the date of issuance of the
Underlying Securities or otherwise.
(c) The Initial Depositor and the Trustee will apply to DTC for
acceptance of the Receipts in its book-entry settlement system. Receipts
deposited with DTC shall be represented by one or more global certificates which
shall be registered in the name of Cede & Co., as nominee for DTC, and shall
bear the following legend:
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE
OF THE DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), TO
THE AGENT AUTHORIZED BY THE ISSUER 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 (AND ANY PAYMENT IS MADE TO CEDE &
CO. OR TO SUCH OTHER ENTITY 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.
(d) So long as the Receipts are eligible for book-entry settlement
with DTC and such settlement is available, unless otherwise required by law,
notwithstanding anything to the contrary in the Depositary Trust Agreement, all
Receipts shall be
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evidenced by one or more global certificates registered in the name of a nominee
of DTC and no person acquiring beneficial ownership of such Receipts shall
receive or be entitled to receive physical delivery of Receipts. Ownership of
beneficial interests in Receipts evidenced by such global certificate or
certificates shall be shown on, and the transfer of such ownership shall be
effected only through, records maintained by (i) DTC or (ii) institutions that
have accounts with DTC.
(e) If, at any time when Receipts are evidenced by a global
certificate, DTC ceases to make its book-entry settlement system available for
such Receipts, the Trustee shall issue separate certificates evidencing Receipts
to the DTC book-entry settlement system participants entitled thereto, with such
additions, deletions and modifications to the Depositary Trust Agreement and to
the form of certificate evidencing Receipts as the Initial Depositor and the
Trustee may, from time to time, agree.
(f) Title to a certificate evidencing Receipts (and to the Receipts
evidenced thereby), when properly endorsed or accompanied by proper instruments
of transfer, shall be transferable by delivery with the same effect as in the
case of a negotiable instrument under the laws of New York; provided, however,
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that the Trustee, notwithstanding any notice to the contrary, may treat the
Owner of Receipts as the absolute owner thereof for the purpose of determining
the person entitled to distribution of dividends or other distributions or to
any notice provided for in the Depositary Trust Agreement and for all other
purposes.
Section 2.5. Delivery of Receipts. Upon receipt by the Trustee of
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any deposit pursuant to Section 2.2, together with a Depositor Order and the
other documents required as above specified, if any, the Trustee, subject to the
terms and conditions of the applicable Depositary Trust Agreement, shall Deliver
to or upon the written order of the Depositor the number of Receipts issuable in
respect of such deposit, provided such
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number is an integral multiple of an Issuance Denomination, but only upon
payment to the Trustee of the fees and expenses of the Trustee as provided in
Section 5.6 and of all taxes and governmental charges and fees payable in
connection with such deposit and the transfer of the Underlying Securities.
Section 2.6. Registration; Registration of Transfer; Combination and
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Split-up of Certificates. (a) The Trustee shall keep or cause to be kept a
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register of Owners of Receipts and shall provide for the registration of
Receipts and the registration of transfers and exchanges of Receipts.
(b) The Trustee, subject to the terms and conditions of these Standard
Terms and the applicable Depositary Trust Agreement, shall register transfers of
ownership of Receipts on its transfer books from time to time, upon any
Surrender of a certificate evidencing such Receipts in any integral multiple of
a Round Lot, by the Owner in person or by a duly authorized attorney, properly
endorsed or accompanied by proper instruments of transfer, and duly stamped as
may be required by the laws of the State of New York and of the United States of
America. Thereupon the Trustee shall execute a new certificate or certificates
evidencing such Receipts in any integral multiple of a Round Lot requested, and
deliver the same to or upon the order of the Person entitled thereto.
(c) The Trustee, subject to the terms and conditions of these Standard
Terms and the applicable Depositary Trust Agreement, shall, upon Surrender of a
certificate evidencing Receipts for the purposes of effecting a split-up or
combination of such certificate or certificates, execute and deliver one or more
new certificate or certificates evidencing such Receipts in any integral
multiple of a Round Lot requested.
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(d) The Trustee may appoint one or more co-transfer agents for the
purpose of effecting transfers, combinations and split-ups of Receipts at
designated transfer offices on behalf of the Trustee. In carrying out its
functions, a co-transfer agent may require evidence of authority and compliance
with applicable laws and other requirements by Owners or Persons entitled to
Receipts and will be entitled to protection and indemnity to the same extent as
the Trustee.
Section 2.7. Surrender of Receipts and Withdrawal of Underlying
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Securities. (a) Upon Surrender at the Corporate Trust Office of the Trustee
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of a Round Lot of Receipts or integral multiple thereof for the purpose of
withdrawal of the Underlying Securities represented thereby, and upon payment of
the fee of the Trustee in connection with the Surrender of Receipts as provided
in Section 5.6 and payment of all taxes and charges payable in connection with
such Surrender and withdrawal of the Underlying Securities, and subject to the
terms and conditions of the applicable Depositary Trust Agreement, including,
without limitation, Section 4.10, the Owner of such Receipts shall be entitled
to Delivery of the amount of Underlying Securities at the time represented by
such Receipts. Delivery of such Underlying Securities may be made by (i)
Delivery of Securities to such Owner or as ordered by such Owner and (ii) any
available form of delivery of any other securities, property and cash to which
such Owner is then entitled to such Owner or as ordered by such Owner. The
Trustee shall make such delivery as promptly as practicable.
(b) A certificate evidencing Receipts Surrendered for such purposes
may be required by the Trustee to be properly endorsed in blank or accompanied
by proper instruments of transfer in blank, and if the Trustee so requires, the
Owner thereof shall execute and deliver to the Trustee a written order directing
the Trustee to cause the Underlying Securities being withdrawn to be delivered
to or upon the written order of a Person or Persons designated in such order.
Thereupon the Trustee shall Deliver through
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the facilities of DTC or, if applicable, at its Corporate Trust office, subject
to Sections 2.8, 3.1, 3.2 and 4.10 and to the other terms and conditions of the
Depositary Trust Agreement, to or upon the written order of the Person or
Persons designated in the order delivered to the Trustee as above provided, the
amount of Underlying Securities represented by such Receipts.
Section 2.8. Limitations on Delivery, Registration of Transfer and
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Surrender of Receipts. (a) As a condition precedent to the Delivery,
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registration of transfer, split-up, combination or Surrender (including, for the
avoidance of doubt, any Surrender in connection with an exchange) of any Receipt
or withdrawal of any Underlying Securities, the Trustee or Registrar may require
payment from the Depositor of Securities or the presentor of the Receipts of a
sum sufficient to reimburse it for any tax or other charge and any stock
transfer or registration fee with respect thereto (including any such tax or
charge and fee with respect to Securities being deposited or withdrawn) and
payment of any applicable fees as herein provided, may require the production of
proof satisfactory to it as to the identity and genuineness of any signature and
may also require compliance with any regulations the Trustee may establish
consistent with the provisions of the Depositary Trust Agreement, including,
without limitation, this Section 2.8.
(b) The Delivery of Receipts against deposits of Securities, the
registration of transfer of Receipts or the Surrender of Receipts for the
purpose of withdrawal of Underlying Securities may be suspended, generally or in
particular instances, during any period when the transfer books of the Trustee
are closed or the transfer books of a Securities Issuer are closed or if any
such action is deemed necessary or advisable by the Trustee at any time or from
time to time, subject to the provisions of the following sentence.
Notwithstanding any other provision of any applicable Depositary Trust Agreement
or the Receipts, the Surrender of Receipts and withdrawal of
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Underlying Securities may not be suspended except for (i) temporary delays
caused by closing the transfer books of the Trustee or a Securities Issuer, (ii)
the payment of fees, taxes and applicable charges, and (iii) compliance with any
U.S. laws or governmental regulations relating to the Receipts or to the
withdrawal of the Underlying Securities. Without limitation of the foregoing,
the Trustee shall not knowingly accept for deposit under the Depositary Trust
Agreement any Securities required to be registered under the provisions of the
Securities Act of 1933, as amended, for the public offer and sale thereof in the
United States unless a registration statement is in effect as to such Securities
for such offer and sale.
Section 2.9. Lost Certificates, Etc. In case any certificate
----------------------
evidencing Receipts shall be mutilated, destroyed, lost or stolen, the Trustee
shall execute and deliver a new certificate of like tenor in exchange and
substitution for such mutilated certificate upon cancellation thereof, or in
lieu of and in substitution for such destroyed, lost or stolen certificate.
Before the Trustee shall execute and deliver a new certificate in substitution
for a destroyed, lost or stolen certificate, the Owner thereof shall have (a)
filed with the Trustee (i) a request for such execution and delivery before the
Trustee has notice that the Receipts have been acquired by a bona fide purchaser
and (ii) a sufficient indemnity bond, and (b) satisfied any other reasonable
requirements imposed by the Trustee.
Section 2.10. Cancellation and Destruction of Surrendered
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Certificates. All certificates evidencing Receipts Surrendered to the Trustee
------------
shall be canceled by the Trustee. The Trustee is authorized to destroy
certificates so canceled.
Section 2.11. Reconstitution Events. (a) If any class of Securities
---------------------
ceases to be outstanding as a result of a merger, consolidation or other
corporate combination of the Securities Issuer and Section 4.8 does not apply,
the Trustee shall, if it has actual
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knowledge of such event, to the extent lawful and feasible and subject to
Section 4.10, distribute any securities which shall be received by the Trustee
in exchange for, in conversion of or in respect of Underlying Securities which
are not Securities issued by a Securities Issuer to the Owners in proportion to
their ownership of Receipts. Effective on the date that such Securities cease to
be outstanding, such class of Securities shall cease to be part of the
securities which must be deposited for issuance of Receipts.
(b) If any class of Securities is delisted from trading on its
primary exchange or market and is not listed for trading on another national
securities exchange or through NASDAQ within five business days from the date of
such delisting, the Trustee shall, if it has actual knowledge of such event, to
the extent lawful and feasible and subject to Section 4.10, distribute the
Underlying Securities of such class to the Owners in proportion to their
ownership of Receipts. Effective on the date of such distribution, such class
of Securities shall cease to be a part of the securities which must be deposited
for issuance of Receipts.
(c) In the event that any Securities Issuer no longer has a class of
common stock registered under section 12 of the Securities Exchange Act of 1934,
as amended, the Trustee shall, if it has actual knowledge of such event, to the
extent lawful and feasible and subject to Section 4.10, distribute the
Underlying Securities of such Securities Issuer to the Owners in proportion to
their ownership of Receipts. Effective on the date of such distribution, such
class of Securities shall cease to be part of the securities which must be
deposited for issuance of Receipts.
(d) If the Commission determines that a Securities Issuer is an
investment company under the Investment Company Act of 1940, and the Trustee has
actual knowledge of such Commission determination, then the Trustee shall, to
the extent lawful and feasible and subject to Section 4.10, distribute the
Underlying Securities of
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such Securities Issuer to the Owners in proportion to their ownership of
Receipts. Effective on the date of such distribution, such class of Securities
shall cease to be part of the securities which must be deposited for issuance of
Receipts.
ARTICLE 3
CERTAIN OBLIGATIONS OF OWNERS OF RECEIPTS
Section 3.1. Filing Proofs, Certificates and Other Information. Any
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Person presenting Securities for deposit or any Owner of Receipts may be
required from time to time to file with the Trustee such proof of citizenship or
residence, exchange control approval, or such information relating to the
registration on the books of any Securities Issuer or Securities Registrar, if
applicable, to execute such certificates and to make such representations and
warranties, as the Trustee may require. The Trustee may withhold the Delivery
or registration of transfer of any Receipts or the delivery of any Underlying
Securities until such proof or other information is filed or such certificates
are executed or such representations and warranties made.
Section 3.2. Liability of Owner for Taxes and Other Charges. If any
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tax or other charge shall become payable with respect to any Receipts or any
Underlying Securities represented thereby, such tax or other charge shall be
payable by the Owner of such Receipts to the Trustee. The Trustee shall refuse
to effect any registration of transfer of such Receipts or any withdrawal of
Underlying Securities represented by such Receipt until such payment is made,
and may withhold any dividends or other distributions, or may sell for the
account of the Owner thereof Underlying Securities constituting any multiples of
the securities which must be deposited for issuance of Receipts, and may apply
such dividends or other distributions or the proceeds of any such sale in
payment of such tax or other charge and the Owner of such Receipt shall remain
liable for any deficiency.
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Section 3.3. Warranties on Deposit of Shares.
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Every Person depositing Securities under the Depositary Trust Agreement shall
be deemed thereby to represent and warrant that such Securities and each
certificate therefor are validly issued and fully paid, that the person making
such deposit is duly authorized to do so and that at the time of delivery, such
Securities are free and clear of any lien, pledge, encumbrance, right, charge or
claim (other than the rights created by the Depositary Trust Agreement). Every
such person shall also be deemed to represent that such Securities are not, and
Receipts representing such Securities would not be, Restricted Securities. Such
representations and warranties shall survive the deposit of Securities, issuance
of Receipts or termination of the Depositary Trust Agreement.
ARTICLE 4
THE UNDERLYING SECURITIES
Section 4.1. Cash Distributions. Whenever the Trustee shall receive
------------------
any cash dividend or other cash distribution on any Underlying Securities, the
Trustee shall distribute the amount thus received (net of the fees of the
Trustee as provided in Section 5.6, if applicable) to the Owners entitled
thereto, in proportion to the number of Receipts held by them respectively;
provided, however, that in the event that the respective Securities Issuer or
-------- -------
the Trustee shall be required to withhold and does withhold from such cash
dividend or such other cash distribution an amount on account of taxes, the
amount distributed to the Owners shall be reduced accordingly. The Trustee
shall distribute only such amount, however, as can be distributed without
attributing to any Owner a fraction of one cent. Any such fractional amounts
shall be rounded to the nearest whole cent and so distributed to Owners entitled
thereto.
Section 4.2. Distributions Other Than Cash or Securities. Subject to
-------------------------------------------
the provisions of Sections 4.8 and 5.6, whenever the Trustee shall receive any
distribution
-17-
other than a distribution described in Sections 4.1, 4.3 or 4.4 or any
distribution which would otherwise be distributed hereunder except that the
Trustee deems such distribution not to be lawful and feasible, the Trustee
shall, subject to Section 4.10, cause the securities or property received by it
to be distributed to the Owners entitled thereto, in proportion to the number of
Receipts held by them respectively, in any manner that the Trustee may deem
equitable and practicable for accomplishing such distribution; provided,
--------
however, that if in the opinion of the Trustee such distribution cannot be made
-------
proportionately among the Owners entitled thereto, or if for any other reason
(including, but not limited to, any requirement that a Securities Issuer or the
Trustee withhold an amount on account of taxes or other governmental charges or
that such securities must be registered under the Securities Act of 1933 in
order to be distributed to Owners) the Trustee deems such distribution not to be
feasible, the Trustee shall adopt such method as it deems equitable and
practicable for the purpose of effecting such distribution, including, but not
limited to, the public or private sale of the securities or property thus
received, or any part thereof, and the net proceeds of any such sale (net of the
fees of the Trustee as provided in Section 5.6) shall be distributed by the
Trustee to the Owners entitled thereto as in the case of a distribution received
in cash.
Section 4.3. Distributions in Securities. If any distribution upon
---------------------------
any Underlying Securities consists of a dividend in, or free distribution of,
Securities, the Trustee shall, to the extent lawful and feasible, retain such
Securities under the Depositary Trust Agreement, and, in such case, the (i) the
amount of such Securities so retained in respect of each Receipt shall be added
to the classes and quantities of securities which must be deposited for issuance
of Receipts and (ii) the number of Receipts in an Issuance Denomination may be
increased or decreased by the Trustee to the lowest multiple of 100 Receipts
such that no fractional shares are thereby represented in such Issuance
Denomination.
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Section 4.4. Rights Offerings. (a) If a Securities Issuer offers
----------------
or causes to be offered to the holders of any Underlying Securities any rights
to subscribe for additional Securities or other securities, the Trustee shall
have discretion in accordance with this Section 4.4 as to the procedure to be
followed in making such rights available to any Owners or in disposing of such
rights on behalf of Owners and making the net proceeds available to Owners or,
if by the terms of such rights offering or for any other reason (including the
absence of an effective registration statement covering the distribution of
securities underlying the rights), the Trustee may not make such rights
available to any Owners or dispose of such rights and make the net proceeds
available to Owners, then the Trustee shall allow the rights to lapse.
(b) The Trustee will not offer rights to Owners unless both the rights
and the securities to which such rights relate are either exempt from
registration under the Securities Act of 1933 with respect to a distribution to
all Owners or are registered under the provisions of such Act.
(c) The Trustee shall not be responsible for any failure to determine
that it may be lawful or feasible to make such rights available to Owners in
general or any Owner in particular.
Section 4.5. Fixing of Record Date. Whenever any cash dividend or
---------------------
other cash distribution shall become payable or any distribution other than cash
shall be made, or whenever the Trustee receives notice of any meeting of or
solicitation of proxies from holders of any Underlying Securities, or whenever a
fee shall be charged by the Trustee under Section 5.6, or whenever for any
reason there is a reconstitution or other event under the Depositary Trust
Agreement that causes a change in the composition of the securities which must
be deposited for issuance of Receipts, or whenever the Trustee shall find it
necessary or convenient in respect of any matter, the Trustee shall fix a record
-19-
date (a) for the determination of the Owners who shall be (i) entitled to
receive such dividend or distribution or the net proceeds of the sale thereof,
(ii) entitled to give instructions to the Trustee for the exercise of voting
rights at any such meeting or solicitation or (iii) required to pay such fee, or
(b) on or after which each Receipt will represent such changed group of
Securities. In the case of subsections (a)(i) and (a)(ii) of this Section 4.5,
the Trustee shall use its reasonable efforts to ensure that, to the extent
practicable, the record date set hereunder will be the same as the record date
set by the Securities Issuer. Subject to the terms and conditions of the
Depositary Trust Agreement, the Owners on such record date shall be entitled, as
the case may be, to receive the amount distributable by the Trustee with respect
to such dividend or other distribution or the net proceeds of sale thereof, or
to give voting instructions, or to act in respect of any other such matter, or
shall be obligated to pay such fee.
Section 4.6. Reports. The Trustee shall, to the extent lawful,
-------
forward to Owners any reports and communications, including any proxy statement
or other soliciting material, received from a Securities Issuer which are
received by the Trustee as the holder of the Underlying Securities or its
appointed agent, unless such reports and communications have been forwarded
directly to Owners by such Securities Issuer or its appointed agent.
Section 4.7. Voting Instructions for Underlying Securities. Upon
---------------------------------------------
receipt by the Trustee or its appointed agent of notice of any meeting of, or
solicitation of proxies from, holders of Underlying Securities, the Trustee
shall, to the extent lawful, mail to the Owners a notice, the form of which
notice shall be in the sole discretion of the Trustee, which shall contain (a)
such information as is contained in such notice of meeting or solicitation, and
(b) a statement that the Owners as of the close of business on a specified
record date will be entitled, subject to applicable law and the provisions of
the corporate documents of the Securities Issuer, to instruct the Trustee as to
the exercise of the voting
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rights, if any, or giving of proxies, as applicable, in respect of the amount of
Underlying Securities represented by their respective Receipts and (c) a
statement as to the manner in which such instructions may be given. Upon the
written request of an Owner of a Receipt on such record date, received on or
before the date established by the Trustee for such purpose, the Trustee shall
endeavor, insofar as practicable, to vote or cause to be voted, or to give a
proxy, as applicable, in respect of the amount of Underlying Securities
represented by such Receipt in accordance with the instructions set forth in
such request. The Trustee shall not vote or attempt to exercise the right to
vote that attaches to, or give a proxy with respect to, Underlying Securities
other than in accordance with such instructions.
Section 4.8. Changes Affecting Underlying Securities. (a) In
---------------------------------------
circumstances where the provisions of Sections 2.11, 4.2 and 4.3 do not apply,
upon any change in nominal value, change in par value, split-up, consolidation
or any other reclassification of any Underlying Securities, or upon any
recapitalization, reorganization, merger or consolidation or sale of assets
affecting the issuer of any Underlying Security, if the relevant Securities
Issuer survives such event, the Trustee shall, to the extent lawful and
feasible, retain such Securities under the Depositary Trust Agreement, and, in
such case, (A) the amount of such Securities so retained in respect of each
Receipt shall be added to the classes and quantities of securities which must be
deposited for issuance of Receipts and (B) the number of Receipts in an Issuance
Denomination may be increased or decreased by the Trustee to the lowest multiple
of 100 Receipts such that no fractional shares are thereby represented in such
Issuance Denomination.
(b) Securities of any class which are surrendered by the Trustee in
connection with any such conversion or exchange shall, effective on the date of
such surrender, no longer be part of the securities which must be deposited for
issuance of Receipts. In any such case, or in the case of an event to which
Section 2.11 applies, the
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Trustee may call for the Surrender of outstanding certificates evidencing
Receipts to be exchanged for new certificates specifically describing any
applicable change in the classes and quantities of securities which must be
deposited for issuance of Receipts.
Section 4.9. Withholding. In the event that the Trustee determines
-----------
that any distribution in property (including Securities and rights to subscribe
therefor) is subject to any tax or other charge which the Trustee is obligated
to withhold, notwithstanding anything to the contrary in these Standard Terms or
the applicable Depositary Trust Agreement, the Trustee may by public or private
sale dispose of all or a portion of such property (including Securities and
rights to subscribe therefor) in such amounts and in such manner as the Trustee
deems necessary and practicable to pay any such taxes or charges and the
Trustee shall distribute the net proceeds of any such sale after deduction of
such taxes or charges to the Owners entitled thereto in proportion to the number
of Receipts held by them respectively.
Section 4.1. Limitation on Distributions. Notwithstanding any
---------------------------
provision of the Depositary Trust Agreement which requires or permits the
Trustee to distribute or Deliver any securities to Owners, the Trustee shall not
distribute to any Owner any fraction of a share. Instead, the Trustee shall, to
the extent lawful, sell the aggregate of such fractions and distribute the net
proceeds to the Owners entitled thereto as in the case of a distribution
received in cash.
ARTICLE 5
THE TRUSTEE AND THE INITIAL DEPOSITOR
Section 5.1. Maintenance of Office and Transfer Books by the Trustee.
-------------------------------------------------------
(a) Until termination of this Depositary Trust Agreement in accordance with its
terms, the Trustee shall maintain in the Borough of Manhattan, The City of New
York, facilities
-22-
for the execution and Delivery, registration, registration of transfers and
Surrender of Receipts in accordance with the provisions of these Standard Terms
and the applicable Depositary Trust Agreement.
(b) The Trustee shall keep books for the registration of Receipts and
transfers of Receipts which at all reasonable times shall be open for inspection
by the Owners.
(c) The Trustee may close the transfer books at any time or from time
to time.
(d) If any Receipts evidenced thereby are listed on one or more stock
exchanges in the United States, the Trustee shall act as Registrar or appoint a
registrar or one or more co-registrars for registry of such receipts in
accordance with any requirements of such exchange or exchanges.
Section 5.2. Prevention or Delay in Performance by the Initial
-------------------------------------------------
Depositor or the Trustee. Neither the Initial Depositor nor the Trustee nor any
------------------------
of their respective directors, employees, agents or affiliates shall incur any
liability to any Owner or Beneficial Owner of any Receipt, if by reason of any
provision of any present or future law or regulation of the United States or any
other country, or of any governmental or regulatory authority or stock exchange,
or by reason of any provision, present or future, of the corporate documents of
any Securities Issuer, or by reason of any provisions of any securities issued
or distributed by any Securities Issuer, or any offering or distribution
thereof, or by reason of any act of God or war or other circumstances beyond its
control, the Initial Depositor or the Trustee shall be prevented or forbidden
from, or be subject to any civil or criminal penalty on account of, doing or
performing any act or thing which by the terms of these Standard Terms or the
applicable Depositary Trust Agreement it is
-23-
provided shall be done or performed; nor shall the Initial Depositor or the
Trustee incur any liability to any Owner or Beneficial Owner of any Receipt by
reason of any non-performance or delay, caused as aforesaid, in the performance
of any act or thing which by the terms of these Standard Terms or the applicable
Depositary Trust Agreement it is provided shall or may be done or performed, or
by reason of any exercise of, or failure to exercise, any discretion provided
for in these Standard Terms or the applicable Depositary Trust Agreement. Where,
by the terms of an offering or distribution to which Sections 2.11, 4.2 or 4.4
applies, or for any other reason, it is not lawful and feasible to make such
distribution or offering available to Owners, and the Trustee may not dispose of
such distribution or offering on behalf of such Owners and make the net proceeds
available to such Owners, then the Trustee shall not make such distribution or
offering available to Owners and shall allow any rights, if applicable, to
lapse.
Section 5.3. Obligations of the Initial Depositor and the Trustee.
----------------------------------------------------
(a) Neither the Initial Depositor nor the Trustee assumes any obligation nor
shall they be subject to any liability under these Standard Terms or the
applicable Depositary Trust Agreement to any Owner or Beneficial Owner of any
Receipt (including, without limitation, liability with respect to the validity
or worth of the Underlying Securities), except that each agrees to perform its
respective obligations specifically set forth in these Standard Terms and the
applicable Depositary Trust Agreement without negligence or bad faith.
(b) Neither the Initial Depositor nor the Trustee shall be under any
obligation to prosecute any action, suit or other proceeding in respect of any
Underlying Securities or in respect of the Receipts.
(c) Neither the Initial Depositor nor the Trustee shall be liable for
any action or non-action by it in reliance upon the advice of or information
from legal
-24-
counsel, accountants, any person presenting Securities for deposit, any Owner or
any other person believed by it in good faith to be competent to give such
advice or information.
(d) The Trustee shall not be liable for any acts or omissions made by
a successor Trustee whether in connection with a previous act or omission of the
Trustee or in connection with any matter arising wholly after the resignation of
the Trustee, provided that in connection with the issue out of which such
potential liability arises the Trustee performed its obligations without
negligence or bad faith while it acted as Trustee.
(e) The Trustee shall not be responsible for any failure to carry out
any instructions to vote any of the Underlying Securities, or for the manner in
which any such vote is cast or the effect of any such vote, provided that any
such action or non-action is without negligence or bad faith.
(f) Except as specifically provided in Section 4.6, the Trustee shall
have no obligation to monitor or to obtain any information concerning the
business or affairs of any Securities Issuer or to advise Owners or Beneficial
Owners of any event or condition affecting any Securities Issuer.
(g) The Trustee shall have no obligation to comply with any direction
or instruction from any Owner or Beneficial Owner regarding Receipts except to
the extent specifically provided in these Standard Terms or any applicable
Depositary Trust Agreement.
(h) The Trustee shall be a fiduciary under these Standard Terms and
the applicable Depositary Trust Agreement; provided, however, that the fiduciary
-------- -------
duties and responsibilities and liabilities of the Trustee shall be limited by,
and shall be only
-25-
those specifically set forth in, these Standard Terms and the applicable
Depositary Trust Agreement.
Section 5.4. Resignation or Removal of the Trustee; Appointment of
-----------------------------------------------------
Successor Trustee. (a) The Trustee may at any time resign as Trustee hereunder
-----------------
by written notice of its election so to do, delivered to the Initial Depositor,
and such resignation shall take effect upon the appointment of a successor
Trustee and its acceptance of such appointment as hereinafter provided.
(b) If at any time the Trustee is in material breach of its
obligations under the Depositary Trust Agreement and the Trustee fails to cure
such breach within 30 days after receipt by the Trustee of written notice from
the Initial Depositor or Owners of 25% or more of the outstanding Receipts
specifying such default and requiring the Trustee to cure such default, the
Initial Depositor, acting on behalf of the Owners, may remove the Trustee by
written notice delivered to the Trustee in the manner provided in Section 7.5,
and such removal shall take effect upon the appointment of the successor Trustee
and its acceptance of such appointment as hereinafter provided.
(c) In case at any time the Trustee acting hereunder shall resign or
be removed, the Initial Depositor, acting on behalf of the Owners, shall use its
reasonable efforts to appoint a successor Trustee, which shall be a bank or
trust company having an office in the Borough of Manhattan, The City of New
York. Every successor Trustee shall execute and deliver to its predecessor and
to the Initial Depositor, acting on behalf of the Owners, an instrument in
writing accepting its appointment hereunder, and thereupon such successor
Trustee, without any further act or deed, shall become fully vested with all the
rights, powers, duties and obligations of its predecessor; but such predecessor,
nevertheless, upon payment of all sums due it and on the written request of the
Initial Depositor, acting on behalf of the Owners, shall execute and deliver an
-26-
instrument transferring to such successor all rights and powers of such
predecessor hereunder, shall duly assign, transfer and deliver all right, title
and interest in the Underlying Securities to such successor, and shall deliver
to such successor a list of the Owners of all outstanding Receipts. The Initial
Depositor or any such successor Trustee shall promptly mail notice of the
appointment of such successor Trustee to the Owners.
(d) Any corporation into or with which the Trustee may be merged,
consolidated or converted shall be the successor of such Trustee without the
execution or filing of any document or any further act.
Section 5.5. Indemnification. (a) The Initial Depositor shall indemnify
---------------
the Trustee, its directors, employees, agents and affiliates against, and hold
each of them harmless from, any loss, liability, cost, expense or judgment
(including, but not limited to, the fees and expenses of counsel) (collectively
"Indemnified Amounts") which is incurred by any of them and which arises out of
acts performed or omitted pursuant to the provisions of these Standard Terms or
any Depositary Trust Agreement, as the same may be amended, modified or
supplemented from time to time, or any filings with or submissions to the
Commission in connection with or with respect to such Receipts (which by way of
illustration and not by way of limitation, include any registration statement
and any amendments or supplements thereto filed with the Commission or any
periodic reports or updates that may be filed under the Securities Exchange Act
of 1934, as amended, or any failure to make any filings or submissions to the
Commission which are required to be made in connection with or with respect to
such Receipts), except that the Initial Depositor shall not have any obligations
under this Section 5.5(a) to pay Indemnified Amounts incurred as a result of and
attributable to (i) the negligence or bad faith of, or material breach of the
terms of this Agreement by, the Trustee, (ii) written information regarding the
name and address of the Trustee furnished in writing to the Initial Depositor
(and not materially changed or altered) expressly for use in the
-27-
registration statement filed with the Commission relating to the Receipts, or
(iii) any misrepresentations or omissions made by a Depositor (other than
Initial Depositor) in connection with such Depositor's offer and sale of
Receipts.
(b) The Trustee shall indemnify the Initial Depositor, its directors,
employees, agents and affiliates against, and hold each of them harmless from,
any Indemnified Amounts (i) caused by the negligence or bad faith of the Trustee
or (ii) arising out of any written information regarding the name and address of
the Trustee furnished in writing to the Initial Depositor (and not materially
changed or altered) expressly for use in the registration statement filed with
the Commission relating to the Receipts.
(c) If the indemnification provided for in this Section 5.5 is
unavailable or insufficient to hold harmless the indemnified party under
subsection (a) or (b) above, then the indemnifying party shall contribute to the
Indemnified Amounts referred to in subsection (a) or (b) above (i) in such
proportion as is appropriate to reflect the relative benefits received by the
Initial Depositor on the one hand and the Trustee on the other hand from the
offering of the Receipts which are the subject of the action or (ii) if the
allocation provided by clause (i) above is not permitted by applicable law, in
such proportion as is appropriate to reflect not only the relative benefits
referred to in clause (i) above but also the relative fault of the Initial
Depositor on the one hand and the Trustee on the other hand in connection with
the action, statement or omission which resulted in such Indemnified Amount as
well as any other relevant equitable considerations. The relative benefits
received by the Initial Depositor on the one hand and the Trustee on the other
shall be deemed to be in the same proportions as the total commissions from the
offering of the Receipts which are the subject of the action (before deducting
expenses) received by the Initial Depositor bear to the total fees received by
the Trustee from the offering of such Receipts. The relative fault shall be
determined by
-28-
reference to, among other things, whether any untrue or alleged untrue statement
of a material fact or the omission or alleged omission to state a material fact
from which the action arises relates to information supplied by the Initial
Depositor or the Trustee and the parties' relative intent, knowledge, access to
information and opportunity to correct or prevent such untrue statement or
omission or the act or omission from which the action arises. The amount of
Indemnified Amounts referred to in the first sentence of this subsection (c)
shall be deemed to include any legal or other expenses reasonably incurred by
such indemnified party in connection with investigating or defending any action
or claim which is the subject of this subsection (c).
Section 5.6. Charges of Trustee. The following charges shall be
------------------
incurred by any party depositing or withdrawing Securities or by any party
Surrendering Receipts or to whom Receipts are Delivered or any Owner, as
applicable: (1) taxes and charges and other fees payable in respect of the
Underlying Securities assessed by third-party custodians, depositories,
depositary banks or transfer agents in the ordinary course of their respective
businesses, (2) a fee of $10 or less per 100 Receipts for the execution and
Delivery of Receipts pursuant to Section 2.5, and the Surrender of Receipts
pursuant to Section 2.7, and (3) a fee which shall accrue on the first day of
each calendar quarter at a rate of $.02 or less per Receipt per quarter for the
Trustee's services as such under the Depositary Trust Agreement (which fee shall
be assessed against Owners of record as of the date or dates set by the Trustee
in accordance with Section 4.5 and shall be collected at the Trustee's
discretion by deducting such fee from one or more cash dividends or other cash
distributions); provided, however, that with respect to the aggregate fee
-------- -------
accrued in any calendar year under this clause (3) with respect to each Receipt,
the Trustee will waive that portion which exceeds the total cash dividends and
other cash distributions the record date for which falls in such calendar year
and payable with respect to such Receipt.
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Section 5.7. Retention of Trust Documents. The Trustee is authorized
----------------------------
to destroy those documents, records, bills and other data compiled during the
term of the Depositary Trust Agreement at the times permitted by the laws or
regulations governing the Trustee.
Section 5.8. Federal Securities Law Filings. The Initial Depositor
------------------------------
shall (i) prepare and file a registration statement with the Commission and take
such action as is necessary from time to time to qualify the Receipts for
offering and sale under the federal securities laws of the United States,
including the preparation and filing of amendments and supplements to such
registration statement, (ii) promptly notify the Trustee of any amendment or
supplement to the registration statement or prospectus, of any order preventing
or suspending the use of any prospectus, of any request for the amending or
supplementing of the registration statement or prospectus or if any event or
circumstance occurs which is known to the Initial Depositor as a result of which
the registration statement or prospectus, as then amended or supplemented, would
include an untrue statement of a material fact or omit to state any material
fact necessary to make the statements therein, in the light of the circumstances
under which they were made, not misleading, (iii) provide the Trustee from time
to time with copies, including copies in electronic form, of the prospectus, as
amended and supplemented, in such quantities as the Trustee may reasonably
request and (iv) prepare and file any periodic reports or updates that may be
required under the Securities Exchange Act of 1934, as amended..
Section 5.9. Prospectus Delivery. The Trustee shall, if required by
-------------------
the federal securities laws of the United States, in any manner permitted by
such laws, deliver at the time of issuance of Receipts, a copy of the relevant
prospectus, as amended and supplemented at such time, to each Person depositing
Underlying Securities into the Trust for issuance of Receipts.
-30-
ARTICLE 6
AMENDMENT AND TERMINATION
Section 6.1. Amendment. The Trustee and the Initial Depositor may
---------
amend any provisions of the Depositary Trust Agreement without the consent of
any Owner. Any amendment that imposes or increases any fees or charges (other
than taxes and other charges, registration fees or other such expenses), or that
otherwise prejudices any substantial existing right of the Owners will not
become effective until 30 days after notice of such amendment is given to the
Owners. Every Owner and Beneficial Owner, at the time any amendment so becomes
effective, shall be deemed, by continuing to hold any Receipt or an interest
therein, to consent and agree to such amendment and to be bound by the
Depositary Trust Agreement as amended thereby. In no event shall any amendment
impair the right of the Owner of any Receipt to Surrender such Receipt and
receive therefor the Underlying Securities represented thereby, except in order
to comply with mandatory provisions of applicable law.
Section 6.2. Early Termination. (a) The Trust shall terminate by the
-----------------
Trustee mailing notice of such termination to the Owners of all Receipts then
outstanding at least 30 days prior to the date set for termination if any of the
following occurs:
(i) The Trustee is notified that the Receipts are delisted from a
national securities exchange and are not approved for listing on another
national securities exchange within 5 business days of their delisting;
(ii) Owners of at least 75% of the outstanding Receipts notify the
Trustee that they elect to terminate the Trust; or
-31-
(iii) 60 days shall have expired after the Trustee shall have
delivered to the Initial Depositor and the Owners a written notice of its
election to resign and a successor trustee shall not have been appointed
and accepted its appointment as provided in Section 5.4.
(b) On and after the date of termination, the Owner of a Receipt will,
upon (i) Surrender of such Receipt at the Corporate Trust Office of the Trustee,
(ii) payment of the fee of the Trustee for the Surrender of Receipts referred to
in Section 2.7, and (iii) payment of any applicable taxes or charges, be
entitled to Delivery, to him or upon his order, of the amount of Underlying
Securities evidenced by such Receipt. If any Receipts shall remain outstanding
after the date of termination, the Trustee thereafter shall discontinue the
registration of transfers of Receipts, shall suspend the distribution of
dividends or other distribution to the Owners thereof, and shall not give any
further notices or perform any further acts under these Standard Terms or the
applicable Depositary Trust Agreement, except that the Trustee shall continue to
collect dividends and other distributions pertaining to Underlying Securities
and hold the same uninvested and without liability for interest, shall sell
rights as provided in these Standard Terms or the applicable Depositary Trust
Agreement, and shall continue to deliver Underlying Securities, together with
any dividends or other distributions received with respect thereto and the net
proceeds of the sale of any rights or other property, in exchange for Receipts
Surrendered to the Trustee (after deducting or upon payment of, in each case,
the fee of the Trustee set forth in 5.6 for the Surrender of Receipts, any
expenses for the account of the Owner of such Receipts in accordance with the
terms and conditions of the Depositary Trust Agreement, and any applicable taxes
or charges). At any time after the expiration of one year following the date of
termination, the Trustee may sell the Underlying Securities then held hereunder
and may thereafter hold uninvested the net proceeds of any such sale, together
with any other cash then held by it hereunder, unsegregated and without
liability for interest, for the pro rata benefit of the Owners of
--- ----
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Receipts which have not theretofore been Surrendered, such Owners thereupon
becoming general creditors of the Trustee with respect to such net proceeds.
After making such sale, the Trustee shall be discharged from all obligations
under these Standard Terms with respect to the Receipts and the applicable
Depositary Trust Agreement, except to account for such net proceeds and other
cash (after deducting, in each case, the fee of the Trustee for the Surrender of
Receipts, any fees of the Trustee due and owing from the Owner of such Receipts
pursuant to Section 5.6, any expenses for the account of the Owner of such
Receipts in accordance with the terms and conditions of the Depositary Trust
Agreement, and any applicable taxes or governmental charges). Upon the
termination of the applicable Depositary Trust Agreement, the Initial Depositor
shall be discharged from all obligations under such Depositary Trust Agreement
except for its obligations to the Trustee under Section 5.5.
ARTICLE 7
MISCELLANEOUS
Section 7.1. Counterparts. These Standard Terms and each Depositary
------------
Trust Agreement may be executed in any number of counterparts, each of which
shall be deemed an original and all of such counterparts shall constitute one
and the same instrument. Copies of these Standard Terms and the applicable
Depositary Trust Agreement shall be filed with the Trustee and shall be open to
inspection by any Owner of a Receipt during business hours.
Section 7.2. Third-Party Beneficiaries. These Standard Terms and
-------------------------
each Depositary Trust Agreement are for the exclusive benefit of the respective
parties hereto and thereto, and shall not be deemed to give any legal or
equitable right, remedy or claim whatsoever to any other person.
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Section 7.3. Severability. In case any one or more of the
------------
provisions contained in these Standard Terms or the applicable Depositary Trust
Agreement or in the Receipts should be or become invalid, illegal or
unenforceable in any respect, the validity, legality and enforceability of the
remaining provisions contained herein or therein shall in no way be affected,
prejudiced or disturbed thereby.
Section 7.4. Owners and Beneficial Owners as Parties; Binding
------------------------------------------------
Effect. The Owners, Beneficial Owners and Depositors from time to time shall be
------
parties to the applicable Depositary Trust Agreement and shall be bound by all
of the terms and conditions hereof and thereof and of the Receipts by their
acceptance of Receipts or any interest therein or by their depositing
Securities, as the case may be.
Section 7.5. Notices. (a) Any and all notices to be given to the
-------
Initial Depositor shall be deemed to have been duly given if personally
delivered or sent by mail or cable, telex or facsimile transmission confirmed by
letter, addressed to Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx Incorporated, World
Financial Center, New York, New York 10281, Attention: Director, Customized
Investments, or any other place to which the Initial Depositor may have
transferred its principal office with notice to the Trustee.
(b) Any and all notices to be given to the Trustee shall be deemed to
have been duly given if personally delivered or sent by mail or cable, telex or
facsimile transmission confirmed by letter, addressed to The Bank of New York,
000 Xxxxxxx Xxxxxx, 00-X, Xxx Xxxx, Xxx Xxxx 00000, Attention: ADR
Administration, or any other place to which the Trustee may have transferred its
Corporate Trust Office with notices to the Initial Depositor.
(c) Any and all notices to be given to any Owner shall be deemed to
have been duly given if personally delivered or sent by mail or cable, telex or
facsimile
-34-
transmission confirmed by letter, addressed to such Owner at the address of such
Owner as it appears on the transfer books of the Trustee, or, if such Owner
shall have filed with the Trustee a written request that notices intended for
such Owner be mailed to some other address, at the address designated in such
request.
(d) Delivery of a notice sent by mail or cable, telex or facsimile
transmission shall be deemed to be effected at the time when a duly addressed
letter containing the same (or a confirmation thereof in the case of a cable,
telex or facsimile transmission) is deposited, postage prepaid, in a post-office
letter box. The Trustee may, however, act upon any cable, telex or facsimile
transmission received by them, notwithstanding that such cable, telex or
facsimile transmission shall not subsequently be confirmed by letter as
aforesaid.
Section 7.6. Governing Law. This Depositary Trust Agreement and the
-------------
Receipts shall be interpreted and all rights hereunder and thereunder and
provisions hereof and thereof shall be governed by the substantive laws (but not
the choice of law rules) of the State of New York.
-35-
IN WITNESS WHEREOF, XXXXXXX LYNCH, PIERCE, XXXXXX & XXXXX INCORPORATED
and THE BANK OF NEW YORK have duly executed these Standard Terms as of the day
and year first set forth above.
XXXXXXX LYNCH, PIERCE, XXXXXX &
XXXXX INCORPORATED
By:/S/ XXXXXXX X. XXXXXXXX
___________________________
Xxxxxxx X. Xxxxxxxx
First Vice President
THE BANK OF NEW YORK,
as Trustee
By:/S/ XXXXXX X. XXXXXXXXX
___________________________
Xxxxxx X. Xxxxxxxxx
Vice President
-36-
EXHIBIT A
[NAME OF TRUST]
[FORM OF] DEPOSITARY TRUST AGREEMENT
DEPOSITARY TRUST AGREEMENT dated as of __________ (this "Depositary
Trust Agreement"), between XXXXXXX LYNCH, PIERCE, XXXXXX & XXXXX INCORPORATED, a
Delaware corporation (the "Initial Depositor"), THE BANK OF NEW YORK, a New York
banking corporation, as trustee (the "Trustee"), and all Holders and Beneficial
Owners (each as hereinafter defined) from time to time of Depositary Trust
Receipts issued hereunder and all Depositors (as hereinafter defined) from time
to time.
Section 1. Incorporation of Standard Terms. The Standard Terms for
-------------------------------
Depositary Trust Agreements agreed to as of September 2, 1999 (the "Standard
Terms"), between the Initial Depositor and the Trustee are hereby incorporated
by reference into and made a part of this Depositary Trust Agreement. If there
is any conflict between the provisions of this Depositary Trust Agreement and
the Standard Terms, the provisions of this Depositary Trust Agreement shall
control.
Section 2. Securities to be Deposited. Initially, the securities
--------------------------
which must be deposited for issuance of one Round Lot of Receipts and which
shall be represented thereby shall be as follows:
Quantity which
must be deposited
Issuer and Title of Security per Round Lot of Receipts
---------------------------- -------------------------
[Issuer and title of security] [Quantity]
[Issuer and title of security] [Quantity]
; provided, however, that if an event to which Section 2.11 of the Standard
-------- -------
Terms applies or an event described in Sections 4.3 or 4.8 of the Standard Terms
occurs, the definition of the securities that must be deposited for issuance of
one Round Lot of Receipts shall be changed as provided in such Sections, if
applicable.
Section 3. Creation and Declaration of Trust; Termination Date. The
---------------------------------------------------
trust created hereby shall be known as [Name of Trust], for which the Trustee,
-------------
or the Initial Depositor to the extent provided herein, may conduct the business
of the Trust, make and execute contracts, and xxx and be sued. [The termination
date of the Trust will be December 31, 2039].
A-1
IN WITNESS WHEREOF, XXXXXXX LYNCH, PIERCE, XXXXXX & XXXXX INCORPORATED
and THE BANK OF NEW YORK have duly executed this agreement as of the day and
year first set forth above. All Owners and Beneficial Owners shall become
parties hereto upon acceptance by them of Receipts issued in accordance with the
terms hereof or any interest therein, and all Depositors shall become parties
hereto upon depositing any Securities hereunder.
XXXXXXX LYNCH, PIERCE, XXXXXX &
XXXXX INCORPORATED
By:____________________________
Name:
Title:
THE BANK OF NEW YORK,
as Trustee
By:____________________________
Name:
Title:
A-2
EXHIBIT B
[Form of Receipt]
THE RECEIPTS EVIDENCED HEREBY REPRESENT RIGHTS WITH RESPECT TO UNDERLYING
SECURITIES (AS DEFINED IN THE DEPOSITARY TRUST AGREEMENT REFERRED TO HEREIN)
HELD BY THE TRUST AND DO NOT EVIDENCE AN OBLIGATION OF, OR AN INTEREST IN, AND
ARE NOT GUARANTEED BY THE INITIAL DEPOSITOR OR THE TRUSTEE OR ANY OF THEIR
RESPECTIVE AFFILIATES. NEITHER THE RECEIPTS NOR THE UNDERLYING SECURITIES ARE
INSURED OR GUARANTEED BY ANY GOVERNMENTAL AGENCY OR ANY OTHER PERSON.
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRE SENTATIVE OF THE
DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), TO THE AGENT
AUTHORIZED BY THE ISSUER 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 REPRESENTA TIVE OF DTC (AND ANY PAYMENT IS
MADE TO CEDE & CO. OR TO SUCH OTHER ENTITY 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.
B-1
DEPOSITARY TRUST RECEIPTS
ISSUED BY
[NAME OF TRUST]
REPRESENTING [COMMON STOCK] OF
[LIST COMPANIES HERE]
THE BANK OF NEW YORK, as Trustee
No. CUSIP NO.
THE BANK OF NEW YORK, as Trustee (hereinafter called the "Trustee"),
hereby certifies that CEDE & CO., as nominee of the Depositary Trust Company, or
registered assigns, IS THE OWNER OF " Depositary Trust Receipts issued by
[Name of Trust], each representing the securities described in the within-
-------------
mentioned Depositary Trust Agreement. At the date hereof, each Round Lot of
Receipts represents the right to receive the following securities:
-------------------------------------------
Quantity
Initially
Issuer and Title Represented by
of Security Each Round Lot
----------- of Receipts
-----------
-------------------------------------------
-------------------------------------------
-------------------------------------------
which are deposited under the Depositary Trust Agreement referred to herein at
the Corporate Trust Office of the Trustee. The specification of the securities
represented by each Round Lot of Receipts is subject to change as provided in
the Depositary Trust Agreement. The Trustee's Corporate Trust Office is located
at a different address than its principal executive office. Its Corporate Trust
Office is located at 000 Xxxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, and its
principal executive office is located at Xxx Xxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx
00000.
THE TRUSTEE'S CORPORATE TRUST OFFICE ADDRESS IS
000 XXXXXXX XXXXXX, XXX XXXX, XXX XXXX 00000
------------------------
* That number of Receipts held at The Depository Trust Company at
any given point in time.
B-2
(1) THE DEPOSITARY TRUST AGREEMENT.
------------------------------
This Receipt is issued upon the terms and conditions set forth in the
Depositary Trust Agreement, dated as of _________, 1999 (the "Depositary Trust
Agreement"), agreed to by and among the Initial Depositor, the Trustee, all
Owners and Beneficial Owners from time to time of Receipts issued thereunder and
all Depositors. By becoming an Owner or Beneficial Owner, or by depositing
Securities, such Person agrees to become a party to the Depositary Trust
Agreement and become bound by all the terms and conditions thereof. The
Depositary Trust Agreement sets forth the rights of Owners and the rights and
duties of the Trustee in respect of the Securities deposited thereunder and any
and all other securities, property and cash from time to time received in
respect of such Securities and held thereunder (such Securities, other
securities, property, and cash are herein called "Underlying Securities").
Copies of the Depositary Trust Agreement are on file at the Trustee's Corporate
Trust Office in New York City.
The statements made on the face and reverse of this Receipt are summaries
of certain provisions of the Depositary Trust Agreement and are qualified by and
subject to the detailed provisions of the Depositary Trust Agreement, to which
reference is hereby made. Capitalized terms not defined herein shall have the
meanings set forth in the Depositary Trust Agreement.
(2) SURRENDER OF RECEIPTS AND WITHDRAWAL OF SECURITIES.
--------------------------------------------------
Upon Surrender at the Corporate Trust Office of the Trustee of a Round Lot
of Receipts or integral multiples thereof for the purpose of withdrawal of the
Underlying Securities represented thereby, and upon payment of the fee of the
Trustee in connection with the Surrender of Receipts as provided in Section 5.6
of the Standard Terms and payment of all taxes and charges payable in connection
with such Surrender and withdrawal of the Underlying Securities, and subject to
the terms and conditions of the applicable Depositary Trust Agreement,
including, without limitation, Section 4.10 thereof, the Owner of such Receipts
shall be entitled to Delivery of the amount of Underlying Securities at the time
represented by such Receipts. Delivery of such Underlying Securities may be made
by (i) Delivery of Securities to such Owner or as ordered by such Owner and (ii)
any available form of delivery of any other securities, property and cash to
which such Owner is then entitled to such Owner or as ordered by such Owner. The
Trustee shall only deliver whole Underlying Securities upon Surrender of
Receipts representing such Underlying Securities.
(3) REGISTRATION OF TRANSFERS, SPLIT-UPS AND COMBINATIONS OF CERTIFICATES;
----------------------------------------------------------------------
LIMITATIONS.
-----------
The transfer of ownership of Receipts evidenced by this certificate is
registrable on the books of the Trustee at its Corporate Trust Office by the
Owner hereof in person or by a duly authorized attorney, upon Surrender of this
certificate evidencing Receipts, properly endorsed or accompanied by proper
instruments of transfer, and duly stamped as
B-3
may be required by the laws of the State of New York and of the United States of
America. This certificate evidencing Receipts may be split up into other such
certificates, each evidencing any integral multiple of a Round Lot of Receipts,
or may be combined with other certificates evidencing Receipts into one such
certificate, in each case evidencing the same aggregate number of Receipts as
the certificate or certificates Surrendered.
As a condition precedent to the Delivery, registration of transfer, split-
up, combination or Surrender (including, for the avoidance of doubt, any
Surrender in connection with an exchange) of any Receipt or withdrawal of any
Underlying Securities, the Trustee or Registrar may require payment from the
Depositor of Securities or the presentor of the Receipts of a sum sufficient to
reimburse it for any tax or other charge and any stock transfer or registration
fee with respect thereto (including any such tax or charge and fee with respect
to Securities being deposited or withdrawn) and payment of any applicable fees
as herein provided, may require the production of proof satisfactory to it as to
the identity and genuineness of any signature and may also require compliance
with any regulations the Trustee may establish consistent with the provisions of
the Depositary Trust Agreement, including, without limitation, Section 2.8 of
the Standard Terms.
The Delivery of Receipts against deposits of Securities, the registration
of transfer of Receipts or the Surrender of Receipts for the purpose of
withdrawal of Underlying Securities may be suspended, generally or in particular
instances, during any period when the transfer books of the Trustee are closed
or the transfer books of a Securities Issuer are closed or if any such action is
deemed necessary or advisable by the Trustee at any time or from time to time
for any reason, subject to the provisions of the following sentence.
Notwithstanding any other provision of any applicable Depositary Trust Agreement
or the Receipts, the Surrender of Receipts and withdrawal of Underlying
Securities may not be suspended subject to only (i) temporary delays caused by
closing the transfer books of the Trustee or a Securities Issuer, (ii) the
payment of fees, taxes and similar charges, and (iii) compliance with any U.S.
laws or governmental regulations relating to the Receipts or to the withdrawal
of the Underlying Securities. Without limitation of the foregoing, the Trustee
shall not knowingly accept for deposit under the Depositary Trust Agreement any
Securities required to be registered under the provisions of the Securities Act
of 1933, as amended, for the public offer and sale thereof in the United States
unless a registration statement is in effect as to such Securities for such
offer and sale.
(4) RECONSTITUTION EVENTS
---------------------
(a) If any class of Securities ceases to be outstanding as a result of a
merger, consolidation or other corporate combination of the Securities Issuer
and Section 4.8 of the Standard Terms does not apply, the Trustee shall, if it
has actual knowledge of such
B-4
event, to the extent lawful and feasible and subject to Section 4.10 of the
Standard Terms, distribute any securities which shall be received by the Trustee
in exchange for, in conversion of or in respect of Underlying Securities which
are not Securities issued by a Securities Issuer to the Owners in proportion to
their ownership of Receipts. Effective on the date that such Securities cease to
be outstanding, such class of Securities shall cease to be part of the
securities which must be deposited for issuance of Receipts.
(b) If any class of Securities is delisted from trading on its primary
exchange or market and is not listed for trading on another national securities
exchange or through NASDAQ within five business days from the date of such
delisting, the Trustee shall, if it has actual knowledge of such event, to the
extent lawful and feasible and subject to Section 4.10 of the Standard Terms,
distribute the Underlying Securities of such class to the Owners in proportion
to their ownership of Receipts. Effective on the date of such distribution, such
class of Securities shall cease to be a part of the securities which must be
deposited for issuance of Receipts.
(c) In the event that any Securities Issuer no longer has a class of
common stock registered under section 12 of the Securities Exchange Act of 1934,
as amended, the Trustee shall, if it has actual knowledge of such event, to the
extent lawful and feasible and subject to Section 4.10 of the Standard Terms,
distribute the Underlying Securities of such Securities Issuer to the Owners in
proportion to their ownership of Receipts. Effective on the date of such
distribution, such class of Securities shall cease to be part of the securities
which must be deposited for issuance of Receipts.
(d) If the Commission determines that a Securities Issuer is an
investment company under the Investment Company Act of 1940, and the Trustee has
actual knowledge of such Commission determination, then the Trustee shall, to
the extent lawful and feasible and subject to Section 4.10 of the Standard
Terms, distribute the Underlying Securities of such Securities Issuer to the
Owners in proportion to their ownership of Receipts. Effective on the date of
such distribution, such class of Securities shall cease to be part of the
securities which must be deposited for issuance of Receipts.
(5) LIABILITY OF OWNER FOR TAXES AND OTHER CHARGES.
----------------------------------------------
If any tax or other governmental charge shall become payable with respect
to any Receipts or any Underlying Securities represented thereby, such tax or
other governmental charge shall be payable by the Owner hereof to the Trustee.
The Trustee shall refuse to effect any registration of transfer of such Receipts
or any withdrawal of Underlying Securities represented by such Receipt until
such payment is made, and may withhold any dividends or other distributions, or
may sell for the account of the Owner hereof Underlying Securities constituting
any multiples of the securities which must be deposited for issuance of
Receipts, and may apply such dividends or other distributions of
B-5
the proceeds of any such sale in payment of such tax or other charge and the
Owner hereof shall remain liable for any deficiency.
(6) WARRANTIES ON DEPOSIT OF SECURITIES.
-----------------------------------
Every Person depositing Securities under the Depositary Trust Agreement
shall be deemed thereby to represent and warrant that such Receipts and each
certificate therefor are validly issued and fully paid, that the person making
such deposit is duly authorized to do so and that at the time of delivery, such
Securities are free and clear of any lien, pledge, encumbrance, right, charge or
claim (other than the rights created by the Depositary Trust Agreement). Every
such person shall also be deemed to represent that such Securities are not, and
Receipts representing such Securities would not be, Restricted Securities. Such
representations and warranties shall survive the deposit of Securities, issuance
of Receipts or termination of the Depositary Trust Agreement.
(7) FILING PROOFS, CERTIFICATES AND OTHER INFORMATION.
-------------------------------------------------
Any person presenting Securities for deposit or any Owner of a Receipt may
be required from time to time to file with the Trustee such proof of citizenship
or residence, exchange control approval, or such information relating to the
registration on the books of any Securities Issuer or Securities Registrar, if
applicable, to execute such certificates and to make such representations and
warranties, as the Trustee may require. The Trustee may withhold the Delivery
or registration of transfer of any Receipts or the delivery of any Underlying
Securities until such proof or other information is filed or such certificates
are executed or such representations and warranties made.
(8) CHARGES OF TRUSTEE. The following charges shall be incurred by any party
------------------
depositing or withdrawing Securities or by any party Surrendering Receipts or to
whom Receipts are Delivered or any Owner, as applicable: (1) taxes and charges
and other fees payable in respect of the Underlying Securities assessed by
third-party custodians, depositories, depositary banks or transfer agents in the
ordinary course of their respective businesses, (2) a fee of $10 or less per 100
Receipts for the execution and Delivery of Receipts pursuant to Section 2.5 of
the Standard Terms, and the Surrender of Receipts pursuant to Section 2.7
Standard Terms, and (3) a fee which shall accrue on the first day of each
calendar quarter at a rate of $.02 or less per Receipt per quarter for the
Trustee's services as such under the Depositary Trust Agreement (which fee shall
be assessed against Owners of record as of the date or dates set by the Trustee
in accordance with Section 4.5 of the Standard Terms and shall be collected at
the Trustee's discretion by deducting such fee from one or more cash dividends
or other cash distributions); provided, however, that with respect to the
-------- -------
aggregate fee accrued in any calendar year under this clause (3) with respect to
each Receipt, the Trustee will waive that portion which exceeds the total cash
dividends and other cash distributions the record date for which falls in such
calendar year and payable with respect to such Receipt.
B-6
(9) TITLE TO RECEIPTS.
-----------------
It is a condition of the Receipts and every successive Owner of the
Receipts by accepting or holding a certificate for Receipts consents and agrees,
that title to such certificate (and the Receipts evidenced thereby), when
properly endorsed or accompanied by proper instruments of transfer, is
transferable by delivery with the same effect as in the case of a negotiable
instrument under the laws of New York; provided, however, that the Trustee,
-------- -------
notwithstanding any notice to the contrary, may treat the person in whose name
Receipts are registered on the books of the Trustee as the absolute owner
thereof for the purpose of determining the person entitled to distribution or
dividends or other distributions or to any notice provided for in the Depositary
Trust Agreement and for all other purposes.
(10) VALIDITY OF RECEIPTS.
--------------------
Receipts shall not be entitled to any benefits under the Depositary Trust
Agreement or be valid or obligatory for any purpose, unless a certificate
evidencing such Receipts shall have been executed by the Trustee by the manual
or facsimile signature of a duly authorized signatory of the Trustee and, if a
Registrar for the Receipts shall have been appointed, countersigned by the
manual or facsimile signature of a duly authorized officer of the Registrar.
(11) REPORTS; INSPECTION OF TRANSFER BOOKS.
-------------------------------------
The issuer of each class of Securities is subject to the periodic reporting
requirements of the Securities Exchange Act of 1934 and, accordingly, files
certain reports with the Securities and Exchange Commission (herein called the
"Commission"). Such reports will be available for inspection and copying at the
public reference facilities maintained by the Commission located at 000 Xxxxx
Xxxxxx, XX, Xxxxxxxxxx, XX 00000.
The Trustee shall, to the extent lawful, forward to Owners, any reports
and communications, including any proxy statement or other soliciting material,
received from a Securities Issuer which are received by the Trustee as the
holder of the Underlying Securities, unless such reports and communications have
been forwarded directly to Owners by such Securities Issuer.
The Trustee shall keep books for the registration of Receipts and transfers
of Receipts which at all reasonable times shall be open for inspection by the
Owners.
(12) DIVIDENDS AND DISTRIBUTIONS.
---------------------------
Whenever the Trustee shall receive any cash dividend or other cash
distribution on any Underlying Securities, the Trustee shall, subject to the
Depositary Trust Agreement, distribute the amount thus received (net of the fees
of the Trustee as provided in the Depositary Trust Agreement, if applicable) to
the Owners of Receipts entitled thereto; provided, however, that in the event
-------- -------
that the respective Securities Issuer or the
B-7
Trustee shall be required to withhold and does withhold from such cash dividend
or such other cash distribution in respect of any Underlying Securities an
amount on account of taxes, the amount distributed to the Owners of the Receipts
representing such Underlying Securities shall be reduced accordingly.
Subject to the provisions of Sections 4.8 and 5.6 of the Standard Terms,
whenever the Trustee shall receive any distribution other than a distribution
described in Sections 4.1, 4.3 or 4.4 of the Standard Terms or a distribution
which would otherwise be distributed under the Depositary Trust Agreement except
that the Trustee deems such distribution not to be lawful and feasiable, the
Trustee shall, subject to Section 4.10 of the Standard Terms, cause the
securities or property received by it to be distributed to the Owners of
Receipts entitled thereto, in any manner that the Trustee may deem equitable and
practicable for accomplishing such distribution; provided, however, that if in
-------- -------
the opinion of the Trustee such distribution cannot be made proportionately
among the Owners of Receipts entitled thereto, or if for any other reason
(including, but not limited to, any requirement that a Securities Issuer or the
Trustee withhold an amount on account of taxes or other governmental charges or
that such securities must be registered under the Securities Act of 1933 in
order to be distributed to Owners) the Trustee deems such distribution not to be
feasible, the Trustee shall adopt such method as it deems equitable and
practicable for the purpose of effecting such distribution, including, but not
limited to, the public or private sale of the securities or property thus
received, or any part thereof, and the net proceeds of such sale (net of the
fees of the Trustee as provided in Section 5.6 of the Standard Terms) shall be
distributed by the Trustee to the Owners entitled thereto as in the case of a
distribution received in cash.
If any distribution upon any Underlying Securities consists of a dividend
in, or free distribution of, Securities, the Trustee shall, to the extent lawful
and feasible, retain such Securities under the Depositary Trust Agreement, and,
in such case, the (i) the amount of such Securities so retained in respect of
each Receipt shall be added to the classes and quantities of securities which
must be deposited for issuance of Receipts and (ii) the number of Receipts in an
Issuance Denomination may be increased or decreased by the Trustee to the lowest
multiple of 100 Receipts such that no fractional shares are thereby represented
in such Issuance Denomination.
In the event that the Trustee determines that any distribution in
property (including Securities and rights to subscribe therefor) is subject to
any tax or other charge which the Trustee is obligated to withhold,
notwithstanding anything to the contrary in the Standard Terms or the applicable
Depositary Trust Agreement, the Trustee may by public or private sale dispose of
all or a portion of such property (including Securities and rights to subscribe
therefor) in such amounts and in such manner as the Trustee deems necessary and
practicable to pay any such taxes or charges and the Trustee shall distribute
the net
B-8
proceeds or any such sale after deduction of such taxes or charges to the Owners
entitled thereto.
(13) RIGHTS OFFERINGS.
----------------
(a) If a Securities Issuer offers or cause to be offered to the holders of
any Underlying Securities any rights to subscribe for additional Securities or
other securities, the Trustee shall have discretion in accordance with Section
4.4 of the Standard Terms as to the procedure to be followed in making such
rights available to any Owners or in disposing of such rights on behalf of
Owners and making the net proceeds available to Owners or, if by the terms of
such rights offering or for any other reason (including the absence of an
effective registration statement covering the distribution of securities
underlying the rights), the Depositary may not make such rights available to any
Owners or dispose of such rights and make the net proceeds available to Owners,
then the Trustee shall allow the rights to lapse.
(b) The Trustee will not offer rights to Owners unless both the rights and
the securities to which such rights relate are either exempt from registration
under the Securities Act of 1933 with respect to a distribution to all Owners or
are registered under the provisions of such Act.
(c) The Trustee shall not be responsible for any failure to determine that
it may be lawful or feasible to make such rights available to Owners in general
or any Owner in particular.
(14) RECORD DATES.
------------
Whenever any cash dividend or other cash distribution shall become payable
or any distribution other than cash shall be made, or whenever the Trustee
receives notice of a meeting of or solicitation of proxies from holders of any
Underlying Securities, or whenever a fee shall be changed by the Trustee under
Section 5.6 of the Standard Terms, or whenever for any reason there is a
reconstitution or other event under the Depositary Trust Agreement that causes a
change in the composition of the Securities which must be deposited for issuance
of Receipts, or whenever the Trustee shall find it necessary or convenient in
respect of any matter, the Trustee shall fix a record date (a) for the
determination of the Owners who shall be (i) entitled to receive such dividend,
distribution or rights or the net proceeds of the sale thereof or (ii) entitled
to give instructions for the exercise of voting rights at any such meeting or
solicitation, or (iii) required to pay such fee, or (b) on or after which each
Receipt will represent such changed group of Securities, subject to the
provisions of the Depositary Trust Agreement. In the case of subsections (a)(i)
and (a)(ii) of this Article (13), the Trustee shall use its reasonable efforts
to ensure that, to the extent practicable, the record date set under the
Depositary Trust Agreement will be the same as the record date set by the
Securities Issuer.
B-9
(15) VOTING OF UNDERLYING SECURITIES.
-------------------------------
Upon receipt by the Trustee or its appointed agent of notice of any meeting
of, or solicitation of proxies from, holders of Underlying Securities, the
Trustee shall, to the extent lawful, mail to the Owners a notice which shall
contain (a) such information as is contained in such notice of meeting or
solicitation, (b) a statement that the Owners of Receipts as of the close of
business on a specified record date will be entitled, subject to applicable law
and the provisions of the corporate documents of the Securities Issuer, to
instruct the Trustee as to the exercise of the voting rights, if any, or giving
of proxies, as applicable, in respect of the amount of Underlying Securities
represented by their respective Receipts and (c) a statement as to the manner in
which such instructions may be given. Upon the written request of an Owner of a
Receipt on such record date, received on or before the date established by the
Trustee, the Trustee shall endeavor, insofar as practicable, to vote or cause to
be voted, or to give a proxy, as applicable, in respect of the amount of
Underlying Securities represented by such Receipt in accordance with the
instructions set forth in such request. The Trustee shall not vote or attempt to
exercise the right to vote that attaches to, or give a proxy with respect to,
Underlying Securities other than in accordance with such instructions.
(16) CHANGES AFFECTING UNDERLYING SECURITIES.
---------------------------------------
(a) In circumstances where the provisions of Sections 2.11, 4.2 and 4.3
of the Standard Terms do not apply, upon any change in nominal value, change in
par value, split-up, consolidation or any other reclassification of any
Underlying Securities, or upon any recapitalization, reorganization, merger or
consolidation or sale of assets affecting the issuer of any Underlying Security,
if the relevant Securities Issuer survives such event, the Trustee shall, to the
extent lawful and feasible, retain such Securities under the Depositary Trust
Agreement, and, in such case, the (A) the amount of such Securities so retained
in respect of each Receipt shall be added to the classes and quantities of
Securities which must be deposited for issuance of Receipts and (B) the number
of Receipts in an Issuance Denomination may be increased or decreased by the
Trustee to the lowest multiple of 100 Receipts such that no fractional shares
are thereby represented in such Issuance Denomination.
(b) Securities of any class which are surrendered by the Trustee in
connection with any such conversion or exchange shall, effective on the date of
such surrender, no longer be part of the securities which must be deposited for
issuance of Receipts. In any such case, or in the case of an event to which
Section 2.11 of the Standard Terms applies, the Trustee may call for the
Surrender of outstanding certificates evidencing Receipts to be exchanged for
new certificates specifically describing any applicable change in the classes
and quantities of securities which must be deposited for issuance of Receipts.
(17) LIABILITY OF THE INITIAL DEPOSITOR AND THE TRUSTEE.
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Neither the Initial Depositor nor the Trustee nor any of their respective
directors, employees, agents or affiliates shall incur any liability to any
Owner or Beneficial Owner of any Receipt, if by reason of any provision of any
present or future law or regulation of the United States or any other country,
or of any governmental or regulatory authority or stock exchange, or by reason
of any act of God or war or other circumstances beyond its control, the Initial
Depositor or the Trustee shall be prevented or forbidden from, or be subject to
any civil or criminal penalty on account of, doing or performing any act or
thing which by the terms of the Standard Terms or the applicable Depositary
Trust Agreement it is provided shall be done or performed; nor shall the Initial
Depositor or the Trustee incur any liability to any Owner or Beneficial Owner of
any Receipt by reason of any non-performance or delay, caused as aforesaid, in
the performance of any act or thing which by the terms of the Standard Terms or
the applicable Depositary Trust Agreement it is provided shall or may be done or
performed, or by reason of any exercise of, or failure to exercise, any
discretion provided for in the Standard Terms or the applicable Depositary Trust
Agreement. Where, by the terms of an offering or distribution to which
Sections 2.11, 4.2 or 4.4 of the Standard Terms applies, or for any other
reason, it is not lawful and feasible to make such distribution or offering
available to Owners, and the Trustee may not dispose of such distribution or
offering on behalf of such Owners and make the net proceeds available to such
Owners, then the Trustee shall not make such distribution or offering available
to Owners and shall allow any rights, if applicable, to lapse. The Trustee
shall not be subject to any liability with respect to the validity or worth of
the Underlying Securities. Neither the Initial Depositor nor the Trustee shall
be under any obligation to prosecute any action, suit or other proceeding in
respect of any Underlying Securities or in respect of the Receipts. Neither the
Initial Depositor nor the Trustee shall be liable for any action or non-action
by it in reliance upon the advice of or information from legal counsel,
accountants, any person presenting Securities for deposit, any Owner or
Beneficial Owner, or any other person believed by it in good faith to be
competent to give such advice or information. The Trustee shall not be liable
for any acts or omissions made by a successor depositary whether in connection
with a previous act or omission of the Trustee or in connection with any matter
arising wholly after the resignation of the Trustee, provided that in connection
with the issue out of which such potential liability arises the Trustee
performed its obligations without negligence or bad faith while it acted as
Trustee. The Trustee shall not be responsible for any failure to carry out any
instructions to vote any of the Underlying Securities, or for the manner in
which any such vote is cast or the effect of any such vote, provided that any
such action or non-action is without negligence or bad faith. Except as
specifically provided in Section 4.6 of the Standard Terms, the Trustee shall
have no obligation to monitor or to obtain any information concerning the
business or affairs of any Securities Issuer or to advise Owners or Beneficial
Owners of any event or condition affecting any Securities Issuer. The Trustee
shall have no obligation to comply with any direction or instruction from any
Owner or Beneficial Owner regarding Receipts except to the extent specifically
provided in the Standard Terms or any applicable Depositary Trust Agreement. The
Trustee shall
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be a fiduciary under the Standard Terms and the applicable Depositary Trust
Agreement; provided, however, that the fiduciary duties and responsibilities and
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liabilities of the Trustee shall be limited by, and shall be only those
specifically set forth in, the Standard Terms and the applicable Depositary
Trust Agreement. No disclaimer of liability under the Securities Act of 1933 is
intended by any provision of the Depositary Trust Agreement.
(18) RESIGNATION OR REMOVAL OF THE TRUSTEE.
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(a) The Trustee may at any time resign as Trustee under the Depositary
Trust Agreement by written notice of its election so to do, delivered to the
Initial Depositor, and such resignation shall take effect upon the appointment
of a successor Trustee and its acceptance of such appointment.
(b) If at any time the Trustee is in material breach of its obligations
under the Depositary Trust Agreement and the Trustee fails to cure such breach
within 30 days after receipt by the Trustee of written notice from the Initial
Depositor or the Owners of 25% or more of the outstanding Receipts specifying
such default and requiring the Trustee to cure such default, the Initial
Depositor, acting on behalf of the Owners, may remove the Trustee by written
notice delivered to the Trustee, and such removal shall take effect upon the
appointment of the successor Trustee and its acceptance of such appointment.
(c) In case at any time the Trustee acting hereunder shall resign or be
removed, the Initial Depositor, acting on behalf of the Owners, shall use its
reasonable efforts to appoint a successor Trustee, which shall be a bank or
trust company having an office in the Borough of Manhattan, The City of New
York.
(19) AMENDMENT.
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The Trustee and the Initial Depositor may amend any provisions of the
Depositary Trust Agreement without the consent of any Owner. Any amendment that
imposes or increases any fees or charges (other than taxes and other charges,
registration fees or other such expenses), or that otherwise prejudices any
substantial existing right of the Owners will not become effective until 30 days
after notice of such amendment is given to the Owners. Every Owner and
Beneficial Owner, at the time any amendment so becomes effective, shall be
deemed, by continuing to hold any Receipt or an interest therein, to consent and
agree to such amendment and to be bound by the Depositary Trust Agreement as
amended thereby. In no event shall any amendment impair the right of the Owner
of any Receipt to Surrender such Receipt and receive therefor the Underlying
Securities represented thereby, except in order to comply with mandatory
provisions of applicable law.
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(20) EARLY TERMINATION OF DEPOSITARY TRUST AGREEMENT.
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(a) The Trust shall terminate by the Trustee mailing notice of such
termination to the Owners of all Receipts then outstanding at least 30 days
prior to the date set for termination if any of the following occurs:
(i) The Trustee is notified that the Receipts are delisted from a
national securities exchange and are not approved for listing on another
national securities exchange within 5 business days of their delisting;
(ii) Owners of at least 75% of the outstanding Receipts notify the
Trustee that they elect to terminate the Trust; or
(iii) 60 days shall have expired after the Trustee shall have
delivered to the Initial Depositor and the Owners a written notice of its
election to resign and a successor trustee shall not have been appointed
and accepted its appointment.
(b) On and after the date of termination, the Owner of a Receipt will,
upon (a) Surrender of such Receipt at the Corporate Trust Office of the Trustee,
(b) payment of the fee of the Trustee for the Surrender of Receipts referred to
in Section 2.7 of the Standard Terms, and (c) payment of any applicable taxes or
charges, be entitled to Delivery, to him or upon his order, of the amount of
Underlying Securities evidenced by such Receipt. If any Receipts shall remain
outstanding after the date of termination, the Trustee thereafter shall
discontinue the registration of transfers of Receipts, shall suspend the
distribution of dividends or other distribution to the Owners thereof, and shall
not give any further notices or perform any further acts under these Standard
Terms or the applicable Depositary Trust Agreement, except that the Trustee
shall continue to collect dividends and other distributions pertaining to
Underlying Securities and hold the same uninvested and without liability for
interest, shall sell rights as provided in these Standard Terms or the
applicable Depositary Trust Agreement, and shall continue to deliver Underlying
Securities, together with any dividends or other distributions received with
respect thereto and the net proceeds of the sale of any rights or other
property, in exchange for Receipts Surrendered to the Trustee (after deducting
or upon payment of, in each case, the fee of the Trustee set forth in 5.6 of the
Standard Terms for the Surrender of Receipts, any expenses for the account of
the Owner of such Receipts in accordance with the terms and conditions of the
Depositary Trust Agreement, and any applicable taxes or charges). At any time
after the expiration of one year following the date of termination, the Trustee
may sell the Underlying Securities then held hereunder and may thereafter hold
uninvested the net proceeds of any such sale, together with any other cash then
held by it hereunder, unsegregated and without liability for interest, for the
pro rata benefit of the Owners of Receipts which have not theretofore been
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Surrendered, such Owners thereupon becoming general creditors of the Trustee
with respect to such net proceeds. After making such sale, the Trustee shall be
discharged from all obligations under these
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Standard Terms with respect to the Receipts and the applicable Depositary Trust
Agreement, except to account for such net proceeds and other cash (after
deducting, in each case, the fee of the Trustee for the Surrender of Receipts,
any fees of the Trustee due and owing from the Owner of such Receipts pursuant
to Section 5.6 of the Standard Terms, any expenses for the account of the Owner
of such Receipts in accordance with the terms and conditions of the Depositary
Trust Agreement, and any applicable taxes or charges). Upon the termination of
the applicable Depositary Trust Agreement, the Initial Depositor shall be
discharged from all obligations under such Depositary Trust Agreement except for
its obligations to the Trustee under Section 5.5 of the Standard Terms.
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