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Exhibit 4.1
STANDARD TERMS FOR DEPOSITARY TRUST AGREEMENTS
between
EPOCH SECURITIES, INC.
and
INVESTORS BANK & TRUST COMPANY
as Trustee
Dated as of January [ ], 2001
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Table of Contents
Page
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ARTICLE 1
DEFINITIONS AND ASSUMPTIONS
Section 1.1. Definitions...................................................................1
Section 1.2. Rules of Construction.........................................................4
ARTICLE 2
FORM OF RECEIPTS, DEPOSIT OF SECURITIES, DELIVERY, REGISTRATION OF
TRANSFER AND SURRENDER OF RECEIPTS
Section 2.1. Depositary Trust Agreements...................................................4
Section 2.2. Creation and Declaration of Trusts; Deposit of Securities.....................4
Section 2.3. Acceptance by Trustee.........................................................5
Section 2.4. Form and Transferability of Receipts..........................................5
Section 2.5. Delivery of Receipts..........................................................7
Section 2.6. Registration; Registration of Transfer; Combination and
Split-up of Certificates......................................................7
Section 2.7. Surrender of Receipts and Withdrawal of Underlying
Securities....................................................................7
Section 2.8. Limitations on De1ivery, Registration of Transfer and
Surrender of Receipts.........................................................8
Section 2.9. Lost Certificates, Etc........................................................9
Section 2.10. Cancellation and Destruction of Surrendered Certificates......................9
Section 2.11. Reconstitution Events.........................................................9
ARTICLE 3
CERTAIN OBLIGATIONS OF OWNERS OF RECEIPTS
Section 3.1. Filing Proofs, Certificates and Other Information............................10
Section 3.2. Liability of Owner for Taxes and Other Charges...............................10
Section 3.3. Warranties on Deposit of Shares..............................................10
ARTICLE 4
THE UNDERLYING SECURITIES
Section 4.1. Cash Distributions...........................................................11
Section 4.2. Distributions Other Than Cash or Securities..................................11
Section 4.3. Distributions in Securities..................................................12
Section 4.4. Rights Offerings.............................................................12
Section 4.5. Fixing of Record Date........................................................12
Section 4.6. Reports......................................................................13
Section 4.7. Voting Instructions for Underlying Securities................................13
Section 4.8. Changes Affecting Underlying Securities......................................13
Section 4.9. Withholding..................................................................13
Section 4.10. Limitation on Distributions..................................................14
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ARTICLE 5
THE TRUSTEE AND THE INITIAL DEPOSITOR
Section 5.1. Maintenance of Office and Transfer Books by the Trustee......................14
Section 5.2. Prevention or Delay in Performance by the Initial Depositor
or the Trustee...............................................................14
Section 5.3. Obligations of the Initial Depositor and the Trustee.........................15
Section 5.4. Resignation or Removal of the Trustee; Appointment of
Successor Trustee............................................................17
Section 5.5. Indemnification..............................................................17
Section 5.6. Charges of Trustee...........................................................19
Section 5.7. Retention of Trust Documents.................................................19
Section 5.8. Federal Securities Law and Other Regulatory Filings..........................19
Section 5.9. Prospectus Delivery..........................................................20
ARTICLE 6
AMENDMENT AND TERMINATION
Section 6.1. Amendment....................................................................20
Section 6.2. Termination and Early Termination............................................20
ARTICLE 7
MISCELLANEOUS
Section 7.1. Counterparts.................................................................22
Section 7.2. Third-Party Beneficiaries....................................................22
Section 7.3. Severability.................................................................22
Section 7.4. Owners and Beneficial Owners as Parties; Binding Effect......................22
Section 7.5. Notices......................................................................22
Section 7.6. Governing Law................................................................23
EXHIBIT A
FORM OF DEPOSITARY TRUST AGREEMENT.................................................A-1
EXHIBIT B
FORM OF CERTIFICATE EVIDENCING RECEIPTS............................................B-1
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STANDARD TERM FOR DEPOSITARY TRUST AGREEMENTS agreed to as of
January [ ], 2001 (these "Standard Terms"), between EPOCH SECURITIES, INC.,
a Delaware corporation (the "Initial Depositor") and INVESTORS BANK & TRUST
COMPANY, a Massachusetts trust company, 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/or 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 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.
"Additional Securities" means any securities which are issued
to the holders of the Underlying Securities as a dividend, distribution or in
exchange for Securities, unless such securities (1) are not listed for trading
on a U.S. national securities exchange or through Nasdaq NMS or (2) have a
Standard & Poor's Corporation Sector Classification that is different from any
Underlying Security in the respective Trust at the time of the dividend,
distribution or exchange.
"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.
"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
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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 office of the Trustee of one or more certificates
evidencing such Receipts.
"Depositary Trust Agreement" means, as provided in Section
2.1, 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.
"Depositor" means any Person who is an accountholder at DTC
and 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, or any person who is not an accountholder at DTC but who has
arranged for the deposit of Securities with the Trust through DTC in a manner
satisfactory to the Trustee.
"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.
"Exchange Act" means the Securities Exchange Act of 1934, as
amended.
"Extraordinary Trust Expenses" means third party fees and
other direct out of pocket expenses reasonably incurred by the Trustee on behalf
of the Trust (i) including, without limitation, such expenses incurred in
connection with legal, tax, or accounting advice relating to matters arising
hereunder, the preparation and filing of any governmental or regulatory reports
or tax documents on behalf of the Trust, and any expenses incurred in protecting
or defending any action against the Trust, but (ii) excluding Trust Expenses.
"Initial Depositor" means Epoch Securities, Inc., a Delaware
corporation, or its successor.
"Investment Company Act" means the Investment Company Act of
1940, as amended.
"Issuance Denomination" is defined in Section 2.4(a), subject
to increase as provided in Sections 4.3 and 4.8.
"NASDAQ" means the National Association of Securities Dealers
Automated Quotations system.
"Owner" means the Person in whose name a Receipt is registered
in the books of the Trustee maintained for that purpose.
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"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 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, 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) 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 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 Receipts.
"Securities" means any shares of a class of securities and
Additional Securities which must be deposited for issuance of Receipts.
"Securities Act" means the Securities Act of 1933, as amended.
"Securities Issuer" means, as of any time, the issuer of a
class of Securities.
"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.
"Standard & Poor's Corporation Sector Classification" means
the sector classification given to each class of publicly traded securities of a
company, from time to time, by Standard & Poor's Corporation.
"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 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.
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"Trust Expenses" means the customary and ordinary expenses
incurred by the Trustee on behalf of the Trust, including direct out of pocket
expenses incurred in connection therewith.
"Trustee" means Investors Bank & Trust Company, a
Massachusetts trust company, 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.
"Underwriters" means the entities identified in the prospectus
relating to the Receipts.
Section 1.2. Rules of Construction. Unless the context
otherwise requires:
(i) 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;
(ii) "or" is not exclusive;
(iii) 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;
(iv) "including" means including without limitation; and
(v) 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
Securities. (a) The Initial Depositor, concurrently with the execution and
delivery of the Depositary Trust Agreement, does hereby agree to deposit or
cause to be deposited with the Trustee under the
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Depositary Trust Agreement all the right, title and interest of the Initial
Depositor in, to and under Securities (including Securities not yet delivered
but subject to a binding delivery obligation at an agreed price in accordance
with normal settlement procedures and subject to the delivery of cash sufficient
for the payment thereof from the Initial Depositor), 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
payable to the Trustee, as holder, on a record date occurring on or after the
date of the related deposit.
(b) From time to time after the date of the Depositary Trust
Agreement and subject to the provisions of Section 2.8(b)(iv), a Depositor may
deposit with the Trustee, during the Trustee's regular business hours, in the
manner specified in Section 2.2(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, including, among other things, agreeing to and
acknowledging the terms of a subrogation 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 or invest any cash proceeds in any instruments except for the
Securities.
(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.
(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
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
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
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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.
(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 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
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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, and such participants shall be charged
the costs of printing, preparation, Delivery and shipping of any such
certificates.
(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, 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 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 use its
best efforts to Deliver (i) to Depositors, on or before the immediately
succeeding business day or (ii) to the Initial Depositor not later than 12:30
p.m., Eastern Standard Time, on the day the Securities are so deposited,
provided the Trustee is able to confirm receipt of all the Securities so
deposited or collateral delivered in the place thereof, to or upon the written
order of the Depositor, the number of Receipts issuable in respect of such
deposit, provided such 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 Split-up of Certificates. (a) The Trustee shall keep or cause to
be kept a 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, and the payment of any sums payable for taxes and
governmental charges. Thereupon the Trustee shall execute a new certificate or
certificates evidencing such Receipts in any integral multiple of a
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Round Lot requested, and deliver the same to or upon the order of the Person
entitled thereto in accordance with Section 2.4(e).
(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, and payment of
reasonable charges for registering and shipping certificates, execute and
deliver one or more new certificate or certificates evidencing such Receipts in
any integral multiple of a Round Lot requested.
(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 Securities. (a) Upon Surrender at the office of the Trustee during
the Trustee's regular business hours 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 the facilities of DTC
or, if applicable, at its 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 De1ivery, Registration of Transfer
and Surrender of Receipts. (a) 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
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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 (i) the transfer books of the
Trustee are closed, (ii) the transfer books of a Securities Issuer are closed,
(iii) transfers through DTC are unavailable, or (iv) 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 Underlying Securities may not be
suspended except as set forth in the previous sentence and 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, 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 noticed 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
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,
corporate combination or other event, and, as a result, securities which are not
Underlying Securities or Additional Securities are received by the Trustee, the
Trustee shall, if it has actual knowledge of such event, to the extent lawful
and feasible and subject to Section 4.10, distribute any such securities which
shall be received by the Trustee 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 either Securities or Underlying
Securities.
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(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 Exchange Act, 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, 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 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 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 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 (including any charge or fee
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payable hereunder to the Trustee) and the Owner of such Receipt shall remain
liable for any deficiency.
Section 3.3. Warranties on Deposit of Shares. 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. In the event that
the Trustee, in its sole discretion, determines that any of such representations
and warranties were materially inaccurate at the time deemed to be given and
that such inaccuracy has or may adversely affect other Beneficial Owners in any
material respect, the related deposit of Securities shall be null and void and,
to the extent lawful and feasible, the Trustee shall cause the related
Securities (and any securities or financial instruments resulting therefrom
subsequent to the date of deposit and not previously distributed) to be
redelivered, if lawful and feasible, to such person or related successors in
interest. Notwithstanding anything herein to the contrary, if for any reason any
liens, pledges, encumbrances, rights, charges or claims shall be made on such
Securities by a party claiming through such Depositor, or if such Securities are
Restricted Securities, the Trustee may take such action or refrain from taking
any action as it shall determine in its sole discretion is in the best interests
of the holders of the Receipts and related expenses may be treated as
Extraordinary Expenses.
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 down to the nearest whole cent and so distributed to
Owners entitled thereto. Any amounts earned by the Trustee in connection with
any undistributed cash resulting from such down-rounding shall be treated as a
cash distribution in connection with payment of custodial fees and handling fees
payable to the Trustee pursuant to Section 5.6(a).
Section 4.2. Distributions Other Than Cash or Securities.
Subject to the provisions of Sections 4.8, 5.2 and 5.6, whenever the Trustee
shall receive any distribution other than (i) a distribution described in
Sections 4.1, 4.3 or 4.4 or (ii) any distribution which would otherwise be
distributed hereunder except that the Trustee deems such distribution not to be
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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 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
by a Securities Issuer consists of a dividend in, or free distribution of
Securities or Additional Securities, the Trustee shall, to the extent lawful and
feasible, retain such Securities or Additional Securities under the Depositary
Trust Agreement, and, in such case, (i) the amount of such Securities or
Additional 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
one Receipt 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.
Section 4.4. Rights Offerings. (a) Subject to the provisions
of Section 5.2, 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 distribute such rights to
Owners unless prohibited by law. If such distribution is prohibited, the Trustee
shall use its best efforts to sell such subscription rights and distribute the
proceeds thereof to the extent they exceed applicable Trustee's fees. If the
Trustee is prohibited by law from distributing such rights to any Owners or is
unable to sell such rights and distribute the net proceeds to Owners, then the
Trustee shall allow the rights to lapse in accordance with Section 5.2.
(b) 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(a)(3), 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 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
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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 and
Section 5.6(a) hereof, 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 or its appointed agent 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
or its appointed agent 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, (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 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, regardless of whether the
Securities Issuer survives, the Trustee shall, to the extent lawful and
feasible, retain any Securities or Additional Securities under the Depositary
Trust Agreement, and, in such case, (i) the amount of such Securities or
Additional 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
one Receipt 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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(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 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 4.10. 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. In connection with any such sale, the Trustee shall take
reasonable steps to obtain best execution and, in connection therewith, in its
sole discretion, shall select brokers to effect such sale (which may include
affiliates of the Trustee, the Initial Depositor or any other Depositor) in a
manner intended to effect the best execution in connection therewith. Any such
distribution of cash related to the sale of such fraction shall be treated as a
cash distribution hereunder in connection with the determination of custodial
fees and handling fees payable to the Trustee pursuant to Section 5.6(a).
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, and if required by the listing requirements of any exchange in
the United States on which the Receipts are traded, the Trustee shall maintain
facilities 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.
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(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 provided shall be done or performed;
nor shall the Initial Depositor or the Trustee nor any of their respective
directors, employees, agents or affiliates 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 or for any action or inaction taken or
omitted in good faith and without negligence hereunder. Where, by the terms of
an offering or distribution to which Section 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. In performing its obligations set forth in these Standard Terms and the
applicable Depositary Trust Agreement, the Trustee may consult with the Initial
Depositor, in its sole discretion, from time to time in its determination of
various matters hereunder and thereunder.
(b) Neither the Initial Depositor nor the Trustee shall be
under any obligation to prosecute or defend any action, suit or other proceeding
in respect of any Underlying Securities or in respect of the Receipts or the
rights of the beneficial owners of the Receipts. Notwithstanding the foregoing,
the Trustee may, in its discretion, undertake such action as it may deem
necessary at any time to protect the Trust and the rights of the beneficial
owners of the
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Receipts, provided however that any expense or liability and any pecuniary cost
of the Trustee reasonably incurred in connection therewith shall be an
Extraordinary Trust Expense hereunder.
(c) The Trustee and the Initial Depositor may employ agents,
attorneys, accountants and auditors and shall not be answerable for the default
or misconduct of any such agents, attorneys, accountants or auditors if such
parties have been selected with reasonable care and 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 any other person believed
by it in good faith to be competent to give such advice or information,
including, without limitation, whether any taxes or other charges are due on, or
whether there are any legal restrictions on the delivery or transfer of any
Securities or Receipts, or whether any Securities are Restricted Securities.
(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 be under no liability for any action
taken in good faith on any appraisal, paper, order, list, demand, request,
consent, affidavit, notice, opinion, direction, endorsement, assignment,
resolution, draft or other document whether or not of the same kind, prima facie
properly executed, or for the disposition of moneys or Securities pursuant to
these Standard Terms, provided that the Trustee has acted without negligence or
bad faith. The Trustee may construe any of the provisions of these Standard
Terms or any Depositary Trust Agreement insofar as the same may appear to be
ambiguous or inconsistent with any other provisions hereof or thereof, and any
construction of any such provision by the Trustee in good faith shall be binding
upon the parties hereto and thereto.
(f) The Trustee shall not be responsible for or in respect of
the recitals herein, the validity or sufficiency of the trust created by any
Depositary Trust Agreement, the validity or sufficiency of these Standard Terms
or any Depositary Trust Agreement or for the due execution hereof and thereof by
the Initial Depositor or for the form, character, genuineness, sufficiency,
value or validity of any Securities or for or in respect of the validity or
sufficiency of the Certificates (except for the due execution thereof by the
Trustee).
(g) 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.
(h) 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.
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(i) 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.
(j) 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 those specifically set forth in, these Standard
Terms and the applicable Depositary Trust Agreement.
(k) For the purposes of these Standard Terms, actual knowledge
or knowledge of the Trustee shall mean actual knowledge of an officer in the
corporate action department of the Trustee, and actual knowledge or knowledge of
the Initial Depositor shall mean actual knowledge of an officer of the Initial
Depositor responsible for matters regarding the Trust.
(l) The Trustee shall, provide, in writing, to the Initial
Depositor each fee paid to the Trustee pursuant to Sections 5.6(a)(3) and
5.6(a)(4) not later than [ ] of each year and acknowledges that the Initial
Depositor intends to disclose such information on the Internet at
xxx.xxxxxxxxx.xxx on a quarterly basis.
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. 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
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.
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(d) If the Trustee merges, consolidates or converts into, or
transfers all or substantially all of its trust servicing business to another
corporation, such corporation 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 suffered or incurred by any of
them and which arises out of acceptance of this Trust or acting as Trustee
hereunder or any 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 Exchange Act, 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 the Trustee in carrying out its duties hereunder, or
material breach of the terms of this Agreement by, the Trustee, except that any
action or omission of the Trustee under these Standard Terms or any Depository
Trust Agreement which infringes, violates or breaches or damages or injures any
rights or interests of a third party, shall not be deemed to be negligent or in
bad faith unless such action or omission is a material breach of these Standard
Terms or any Depository Trust Agreement, (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 registration
statement filed with the Commission relating to the Receipts and other written
information provided by the Trustee specifically for inclusion in reports filed
on behalf of the Trust under the Exchange Act 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 in the performance of its duties hereunder 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
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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 in connection
with such Receipts. The relative fault shall be determined by 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. (a) 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 $5 or less (as determined in the sole discretion of the
Trustee) per 100 Receipts for the execution and Delivery of Receipts pursuant to
Section 2.5, and, in addition, for the Surrender of Receipts pursuant to Section
2.7, (3) a custodial fee which shall accrue on the first day of each calendar
quarter at a rate of $.01 or less (as determined in the sole discretion of the
Trustee) per Receipt per quarter for the custodial services 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, no such fee shall accrue 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 and the Trustee will
waive any portion of the custodial fee that exceeds the total cash dividends and
other cash distributions made during the current quarter, and (4) to the extent
that there are funds available for distribution after the quarterly custodial
fee is deducted pursuant to clause (3), a $.25 per 100 Receipts handling fee
shall be incurred for each cash dividend or other cash distribution in respect
of the Underlying Securities at such time that such distributions are made
(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 by
deducting such fee from the related cash dividends or other cash distributions
when made after the quarterly custodial fee is deducted); provided, however,
that if the related cash dividend or cash distribution does not fully pay the
related handling fee, the Trustee will waive any remaining portion of the
handling fee. The fees payable pursuant to this Section 5.6(a) shall be deemed
to be full reimbursement to the Trustee for all Trust Expenses.
(b) Extraordinary Trust Expenses shall be payable by the
Initial Depositor upon receipt of a detailed written invoice therefor from the
Trustee provided that the Trustee shall use its best efforts to provide the
Initial Depositor with written notice prior to any Extraordinary
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Trust Expense to be incurred in excess of $1,000 and, provided further, that in
no event shall Extraordinary Trust Expenses be incurred in an amount in excess
of $50,000 in the aggregate without the express written consent of the Initial
Depositor.
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 and Other Regulatory
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 and any other state or other jurisdiction in which the
Receipts are offered for sale, including the preparation and filing of
amendments and supplements to such registration statement, (ii) promptly prepare
and file any amendment and supplement to the registration statement or
prospectus, as required by applicable law or regulation, and promptly deliver
the same to the Trustee, (iii) promptly notify the Trustee 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 to the knowledge of 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, (iv) provide
the Trustee from time to time with copies, including copies in electronic form
or otherwise, of the prospectus, as amended and supplemented, in such quantities
as the Trustee may reasonably request, (v) prepare and file any periodic reports
or updates that may be required under the Exchange Act and provide copies to the
Trustee of same, and (vi) prepare and file any listing application necessary to
list the Receipts on a U.S. stock exchange, and prepare and file any additional
forms or applications in connection with the continued listing of such Receipts,
and (vii) if such Receipts are delisted from such stock exchange and the Trust
is not terminated in accordance with Section 6.2 hereof, to promptly take all
reasonable steps to list the Receipts on another U.S. stock exchange.
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, and delivered
to the Trustee by the Initial Depositor, to each Person depositing Underlying
Securities into the Trust for issuance of Receipts, provided, however, that the
Initial Depositor shall use its best efforts to provide a means for delivery of
the relevant prospectus through the Internet, including, but not limited to
providing and maintaining a website on which is available for downloading the
relevant prospectus and any supplements thereto as may be in effect from time to
time, and provided further that the Initial Depositor shall use its best efforts
to get the consent of each Depositor to such form of delivery as the same may be
required, and for as long as such consent is required, under the federal
securities laws of the United States as the same may be interpreted from time to
time by the Commission.
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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. Promptly after the execution of any amendment, the Trustee shall
furnish written notification of any such amendment to 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. Termination and Early Termination. (a) The Trust
shall terminate on the termination date set forth in Section 3 of the Depositary
Trust Agreement unless terminated earlier by the Trustee by mailing notice of
such early termination to the Owners of all Receipts then outstanding at least
30 days prior to the date set for early termination (or upon such lesser notice
as may be practicable in the event of an occurrence set forth in (i) or (iv)
below) 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 more than 50% of the outstanding
Receipts notify the Trustee that they elect to terminate the
Trust;
(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; or
(iv) Less than nine Securities Issuers are
represented by the Receipts.
(b) On and after the date of termination, the Trustee shall
deliver to each Owner of a Receipt, to him or upon his order, the amount of
Underlying Securities evidenced by such Receipt and thereupon cancel such
Receipt, provided, however, at the sole discretion of the Trustee, the Trustee
may condition such delivery upon prior (i) Surrender of such Receipt at the
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, or the Trustee may deduct any fees, taxes or charges from any cash
distribution with respect to the Receipts, or the Trustee may, in its sole
discretion, collect any such fees, taxes or charges from the Owner at any time
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thereafter. 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 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, including any custody fees and handling fees which may accrue
during the termination period, 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 Sections 5.5 and 5.6(b).
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.
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
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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 Epoch Securities, Inc., 000 Xxxxx Xxxxxx, XxxXxxxx Xxx, Xxx
Xxxxxxxxx, XX 00000, Attention: Xxxxxxx Xxxxx, 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 Xxxxxx
Xxxxxxx, Director of Client Management, Investors Bank & Trust Company, Xxxxxxx
Tower, 000 Xxxxxxxxx Xxxxxx, Xxxxxx, Xxxxxxxxxxxxx 00000, or any other place to
which the Trustee may have transferred its 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 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.
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IN WITNESS WHEREOF, EPOCH SECURITIES, INC. and INVESTORS BANK
& TRUST COMPANY have duly executed these Standard Terms as of the day and year
first set forth above.
EPOCH SECURITIES, INC.
By: ____________________________________
Name:
Title:
INVESTORS BANK & TRUST COMPANY,
as Trustee
By: ____________________________________
Name:
Title:
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EXHIBIT A
[NAME OF TRUST]
[FORM OF] DEPOSITARY TRUST AGREEMENT
DEPOSITARY TRUST AGREEMENT dated as of ___________________
(this "Depositary Trust Agreement", between EPOCH SECURITIES, INC., a Delaware
corporation (the "Initial Depositor"), INVESTORS BANK & TRUST COMPANY, a
Massachusetts trust company, 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 ___________, 2001 (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 Section 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 is December 31, 2005, unless terminated earlier
pursuant to the Standard Terms.
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IN WITNESS WHEREOF, EPOCH SECURITIES, INC. and INVESTORS BANK
& TRUST COMPANY 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.
EPOCH SECURITIES, INC.
By: ________________________________________
Name:
Title:
INVESTORS BANK & TRUST COMPANY,
as Trustee
By: ________________________________________
Name:
Title:
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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 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.
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DEPOSITARY TRUST RECEIPTS
ISSUED BY
XYZ NETS(SM) TRUST
REPRESENTING COMMON STOCK OF
[LIST COMPANIES HERE]
INVESTORS BANK & TRUST COMPANY, as Trustee
No. CUSIP NO.
INVESTORS BANK & TRUST COMPANY, as Trustee (hereinafter called
the "Trustee"), hereby certifies that CEDE & CO., as nominee of the Depository
Trust Company, or registered assigns, IS THE OWNER OF * Depository Trust
Receipts issued by XYZ NETS(SM) 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
Represented by
Issuer and Title Each Round Lot
of Security of Receipts
----------- -----------
which are deposited under the Depositary Trust Agreement referred to herein at
the 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 office is located at Xxxxxxx Tower, 000 Xxxxxxxxx
Xxxxxx, Xxxxxx, XX. 00000.
THE TRUSTEE'S OFFICE ADDRESS IS
Xxxxxxx Tower, 000 Xxxxxxxxx Xxxxxx, Xxxxxx, XX. 00000
-------------------
* That number of Receipts held at The Depository Trust Company at any
given point in time.
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(1) THE DEPOSITARY TRUST AGREEMENT.
This Receipt is issued upon the terms and conditions set forth in the
Depositary Trust Agreement, dated as of _______, 2001 (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 office in
Boston, MA.
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 office of the Trustee during the Trustee's
regular business hours 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 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 may be required by applicable laws. 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
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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 (i) the transfer books of the
Trustee are closed, (ii) the transfer books of a Securities Issuer are closed,
(iii) transfers through DTC are unavailable, or (iv) 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 Underlying Securities may not be
suspended except as set forth in the previous sentence and 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, 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, corporate combination or other event, and, as a result,
securities which are not Underlying Securities or Additional Securities are
received by the Trustee, the Trustee shall, if it has actual knowledge of such
event, to the extent lawful and feasible and subject to Section 4.10, distribute
any such securities which shall be received by the Trustee 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
either Securities or Underlying Securities.
(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 Exchange Act, 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
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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, 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 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 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 the proceeds of any such sale in
payment of such tax or other charge (including any charge or fee payable
hereunder to the Trustee) 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 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. In the event that
the Trustee, in its sole discretion, determines that any of such representations
and warranties were materially inaccurate at the time deemed to be given and
that such inaccuracy has or may adversely affect other Beneficial Owners in any
material respect, the related deposit of Securities shall be null and void and
the Trustee shall cause the related Securities (and any securities or financial
instruments resulting therefrom subsequent to the date of deposit and not
previously distributed) to be redelivered, if lawful and feasible, to such
person or its successors in interest. Notwithstanding anything herein to the
contrary, if for any reason any liens, pledges, encumbrances, rights, charges or
claims shall be made on such Securities by a party claiming through such
Depositor, or if such Securities are Restricted Securities, the Trustee may take
such action or refrain from taking any action as it shall determine in its sole
discretion is in the best interests of the holders of the Receipts and related
expenses may be treated as Extraordinary Expenses.
(7) FILING PROOFS, CERTIFICATES AND OTHER INFORMATION.
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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.
(a) 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 $5 or less (as determined in
the sole discretion of the Trustee) per 100 Receipts for the execution and
Delivery of Receipts pursuant to Section 2.5, and, in addition, for the
Surrender of Receipts pursuant to Section 2.7, (3) a custodial fee which shall
accrue on the first day of each calendar quarter at a rate of $.01 or less (as
determined in the sole discretion of the Trustee) per Receipt per quarter for
the custodial services 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,
no such fee shall accrue 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, and (4) to the extent that there are funds
available for distribution after the quarterly custodial fee is deducted
pursuant to clause (3), a $.25 per 100 Receipts handling fee shall be incurred
for each cash dividend or other cash distribution in respect of the Underlying
Securities at such time that such distributions are made (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 by deducting such fee from
the related cash dividends or other cash distributions when made after the
quarterly custodial fee is deducted); provided, however, that if the related
distribution does not fully pay the related handling fee, the handling fee shall
expire. The fees payable pursuant to Section 5.6(a) shall be deemed to be full
reimbursement to the Trustee for all Trust Expenses.
(b) Extraordinary Trust Expenses shall be payable by the Initial
Depositor upon receipt of a detailed written invoice therefor from the Trustee
provided that the Trustee shall use its best efforts to provide the Initial
Depositor with written notice prior to any Extraordinary Trust Expense to be
incurred in excess of $1,000 and, provided further, that in no event shall
Extraordinary Trust Expenses be incurred in an amount in excess of $50,000 in
the aggregate without the express written consent of the Initial Depositor.
(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
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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 (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.
(11) REPORTS; INSPECTION OF TRANSFER BOOKS.
The issuer of each class of Securities is subject to the periodic
reporting requirements of the Exchange Act 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 or its appointed agent 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.
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 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 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, 5.2 and 5.6 of the Standard
Terms, whenever the Trustee shall receive any distribution other than (i) a
distribution described in Section 4.1, 4.3 or 4.4 of the Standard Terms or (ii)
a distribution which would otherwise be distributed under the Depositary Trust
Agreement except that the Trustee deems such distribution not to be lawful and
feasible, the Trustee shall, subject to Section 4.10 of the Standard Terms,
cause the securities or
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property received by it to be distributed to the Owners of Receipts 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 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 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 by a Securities Issuer consists of a dividend in,
or free distribution of Securities or Additional Securities, the Trustee shall,
to the extent lawful and feasible, retain such Securities or Additional
Securities under the Depositary Trust Agreement, and, in such case, (i) the
amount of such Securities or Additional 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 one Receipt 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 proceeds or 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.
(13) RIGHTS OFFERINGS.
(a) Subject to the provisions of Section 5.2, 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 distribute such rights to Owners unless prohibited by law. If such
distribution is prohibited, the Trustee shall sell such subscription rights and
distribute the proceeds thereof to the extent they exceed applicable Trustee's
fees. If the Trustee is prohibited by law from distributing such rights to any
Owners or selling such rights and distributing the net proceeds to Owners, then
the Trustee shall allow the rights to lapse in accordance with Section 5.2.
(b) 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.
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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 charged by the Trustee
under Section 5.6(a)(3) 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, (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 (14), 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.
(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 or its appointed agent 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, (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
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, regardless of whether
the Securities Issuer survives, the Trustee shall, to the extent lawful and
feasible, retain any Securities or Additional Securities under the Depositary
Trust Agreement, and, in such case, (i) the amount of such Securities or
Additional 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
one Receipt 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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(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.
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 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 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 nor any of their respective directors, employees,
agents or affiliates 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 or for any action or inaction taken or omitted in good faith and
without negligence hereunder. 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. Neither the Initial Depositor nor the Trustee shall be under any
obligation to prosecute or defend any action, suit or other proceeding in
respect of any Underlying Securities or in respect of the Receipts or the rights
of the beneficial owners of the Receipts. Notwithstanding the foregoing, the
Trustee may, in its discretion, undertake such action as it may deem necessary
at any time to protect the Trust and the rights of the beneficial owners of the
Receipts, provided however that any expense or liability and any pecuniary cost
of the Trustee reasonably incurred in connection therewith shall be an
Extraordinary Trust Expense hereunder. The Trustee and the Initial Depositor may
employ agents, attorneys, accountants and auditors and shall not be answerable
for the default or misconduct of any such agents, attorneys, accountants or
auditors if such parties have been selected with reasonable care. 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, including, without limitation,
whether any taxes or other charges are due on, or whether there are any legal
restrictions on the delivery or transfer of any Securities or Receipts, or
whether any Securities are Restricted Securities. The Trustee shall not be
liable for
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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. The
Trustee shall be under no liability for any action taken in good faith on any
appraisal, paper, order, list, demand, request, consent, affidavit, notice,
opinion, direction, endorsement, assignment, resolution, draft or other document
whether or not of the same kind, prima facie properly executed, or for the
disposition of moneys or Securities pursuant the Standard Terms, provided that
the Trustee has acted without negligence or bad faith. The Trustee may construe
any of the provisions under the Standard Terms or any applicable Depositary
Trust Agreement insofar as the same may appear to be ambiguous or inconsistent
with any other provisions hereof or thereof, and any construction of any such
provision by the Trustee in good faith shall be binding upon the parties hereto
and thereto. The Trustee shall not be responsible for or in respect of the
recitals herein, the validity or sufficiency of the trust created by any
Depositary Trust Agreement, the validity or sufficiency of the Standard Terms or
any applicable Depositary Trust Agreement or for the due execution hereof and
thereof by the Initial Depositor or for the form, character, genuineness,
sufficiency, value or validity of any Securities or for or in respect of the
validity or sufficiency of the Certificates (except for the due execution
thereof by the 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 be a fiduciary under the 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 those specifically set forth in, the Standard Terms and the applicable
Depositary Trust Agreement. No disclaimer of liability under the Securities Act
is intended by any provision of the Depositary Trust Agreement. For the purposes
of the Standard Terms, actual knowledge or knowledge of the Trustee shall mean
actual knowledge of an officer in the corporate action department of the
Trustee, and the actual knowledge or knowledge of the Initial Depositor shall
mean actual knowledge of an officer of the Initial Depositor responsible for
matters regarding the Trust. The Trustee shall, provide, in writing, to the
Initial Depositor each fee paid to the Trustee pursuant to Sections 5.6(a)(3)
and 5.6(a)(4) of the Standard Terms, not later than [-] of each year and
acknowledges that the Initial Depositor intends to disclose such information on
the Internet at xxx.xxxxxxxxx.xxx on a quarterly basis.
(18) RESIGNATION OR REMOVAL OF THE TRUSTEE.
(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.
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(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.
(19) AMENDMENT.
The Trustee and the Initial Depositor may amend any provisions of the
Depositary Trust Agreement without the consent of any Owner. Promptly after the
execution of any amendment, the Trustee shall furnish written notification of
any such amendment to 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.
(20) TERMINATION AND EARLY TERMINATION OF DEPOSITARY TRUST AGREEMENT.
(a) The Trust shall terminate on the termination date set forth in
Section 3 of the Depositary Trust Agreement unless terminated earlier by the
Trustee by mailing notice of such early termination to the Owners of all
Receipts then outstanding at least 30 days prior to the date set for early
termination (or upon such lesser notice as may be practicable in the event of an
occurrence set forth in (i) or (iv) below) 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 more than 50% of the outstanding Receipts
notify the Trustee that they elect to terminate the Trust;
(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 of
the Standard Terms; or
(iv) Less than nine Securities Issuers are represented by the
Receipts.
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(b) On and after the date of termination, the Trustee shall
deliver to each Owner of a Receipt to him or upon his order, the amount
of Underlying Securities evidenced by such Receipt and thereupon cancel
such Receipt, provided, however, at the sole discretion of the Trustee,
the Trustee may condition such delivery upon prior (a) Surrender of
such Receipt at the 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,
or the Trustee may deduct any fees, taxes or charges from any cash
distribution with respect to the Receipts, or the Trustee may, in its
sole discretion, collect any such fees, taxes or charges from the Owner
at any time thereafter. 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 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,
including any custody fees and handling fees which may accrue during
the termination period, 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 Sections 5.5 and 5.6(b) of the
Standard Terms.
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