EXHIBIT 4.1
STANDARD TERMS FOR DEPOSITARY TRUST AGREEMENTS
between
XXXXXXX XXXXX XXXXXX INC.
and
U.S. BANK TRUST NATIONAL ASSOCIATION,
as Trustee
Dated as of , 2002
TABLE OF CONTENTS
PAGE
ARTICLE 1
DEFINITIONS AND ASSUMPTIONS
Section 1.1. Definitions.......................................... 1
Section 1.2. Rules of Construction................................ 3
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................................. 6
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 Delivery, Registration of
Transfer and Surrender of Receipts................... 8
Section 2.9. Lost Certificates, Etc............................... 8
Section 2.10. Cancellation and Destruction of Surrendered
Certificates......................................... 9
Section 2.11. Reconstitution Events................................ 9
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TABLE OF CONTENTS
(CONTINUED)
PAGE
ARTICLE 3
CERTAIN OBLIGATIONS OF OWNERS OF RECEIPTS
Section 3.1. Filing Proofs, Certificates and Other
Information.......................................... 9
Section 3.2. Liability of Owner for Taxes......................... 10
Section 3.3. Warranties on Deposit of Shares...................... 10
ARTICLE 4
THE UNDERLYING SECURITIES
Section 4.1. Cash Distributions................................... 10
Section 4.2. Distributions Other Than Cash or Securities.......... 10
Section 4.3. Distributions in Securities.......................... 11
Section 4.4. Rights Offerings..................................... 11
Section 4.5. Fixing of Record Date................................ 11
Section 4.6. Reports.............................................. 12
Section 4.7. Voting Instructions for Underlying Securities........ 12
Section 4.8. Changes Affecting Underlying Securities.............. 12
Section 4.9. Withholding.......................................... 13
Section 4.10. Limitation on Distributions.......................... 13
ARTICLE 5
THE TRUSTEE AND THE INITIAL DEPOSITOR
Section 5.1. Maintenance of Office and Transfer Books by the
Trustee.............................................. 13
Section 5.2. Prevention or Delay in Performance by the
Initial Depositor or the Trustee..................... 14
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TABLE OF CONTENTS
(CONTINUED)
PAGE
Section 5.3. Obligations of the Initial Depositor and the
Trustee.............................................. 14
Section 5.4. Resignation or Removal of the Trustee;
Appointment of Successor Trustee..................... 15
Section 5.5. Indemnification...................................... 16
Section 5.6. Charges of Trustee................................... 17
Section 5.7. Retention of Trust Documents......................... 17
Section 5.8. Federal Securities Law Filings....................... 17
Section 5.9. Prospectus Delivery.................................. 18
Section 5.10. Tax Returns and Reports.............................. 18
ARTICLE 6
AMENDMENT AND TERMINATION
Section 6.1. Amendment............................................ 18
Section 6.2. Early Termination.................................... 18
ARTICLE 7
MISCELLANEOUS
Section 7.1. Counterparts......................................... 20
Section 7.2. Third-Party Beneficiaries............................ 20
Section 7.3. Severability......................................... 20
Section 7.4. Owners and Beneficial Owners as Parties;
Binding Effect....................................... 20
Section 7.5. Notices.............................................. 20
Section 7.6. Governing Law........................................ 21
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STANDARD TERMS FOR DEPOSITARY TRUST AGREEMENTS agreed to as of , 2002
(these "Standard Terms"), between XXXXXXX XXXXX BARNEY INC., a New York
corporation (the "Initial Depositor") and U.S. BANK TRUST NATIONAL ASSOCIATION,
a national banking association, as trustee (the "Trustee").
W I T N E S S E T H
WHEREAS, from time to time, the Initial Depositor and the Trustee may
enter into one or more depositary trust agreements providing for the deposit
with the Trustee of specified Securities (as hereinafter defined), the creation
of Depositary Trust Receipts representing the Securities so deposited and the
execution and delivery of certificates evidencing the Depositary Trust Receipts;
and
WHEREAS, the Initial Depositor and the Trustee wish to establish the
general terms and conditions of such depositary trust agreements and the form of
the certificates evidencing Depositary Trust Receipts;
NOW, THEREFORE, in consideration of the premises and the mutual covenants
contained in these Standard Terms, the parties hereby agree as follows:
ARTICLE 1
DEFINITIONS AND ASSUMPTIONS
Section 1.1. Definitions. Except as otherwise specified in these
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
stockholders of a Securities Issuer pursuant to Sections 2.11(a), 4.3 and 4.8(a)
as a dividend or other distribution, if such securities are listed for trading
on a United States national securities exchange or through the NASDAQ National
Market System and the issuer of such securities has the same Economic Sector
Classification under the Global Industry Classification Standard as published by
Standard & Poor's as the issuers of the Underlying Securities in the Trust at
the time of the dividend or distribution.
"Beneficial Owner" means any Person owning a beneficial interest in any
Receipt.
"Closing Date" means the day on which the initial deposit of Securities is
to be made, which date may be specified in the applicable Depositary Trust
Agreement.
"Commission" means the Securities and Exchange Commission of the United
States or any successor governmental agency in the United States.
"Corporate Trust Office" means the office of the Trustee at which its
depositary receipt business is administered which, at the date of these Standard
Terms, is 000 Xxxx Xxxxxx, Xxxxx 0000, Xxx Xxxx, Xxx Xxxx 00000.
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"Deliver" means (a) when used with respect to Securities, either (i) one
or more book-entry transfers of such Securities to an account at DTC designated
by the Person entitled to such delivery for further credit as specified by such
Person or (ii) in the case of Securities for which DTC book-entry settlement is
not available, the delivery of certificates evidencing such Securities to the
Person entitled to such delivery, duly endorsed for transfer or accompanied by
proper instruments of transfer and (b) when used with respect to Receipts,
either (i) one or more book-entry transfers of Receipts to an account at DTC
designated by the Person entitled to such delivery for further credit as
specified by such Person or (ii) in the event DTC ceases to make its book-entry
settlement system available for the Receipts, execution and delivery at the
Corporate Trust Office of the Trustee of one or more certificates evidencing
such Receipts.
"Depositary Trust Agreement" means a depositary trust agreement entered
into by the Initial Depositor and the Trustee pursuant to these Standard Terms
which incorporates by reference these Standard Terms.
"Depositor" means any Person who deposits Securities into the Trust,
either for its own account or on behalf of another Person who is the Owner or
beneficial Owner of such Securities.
"Depositor Order" means a written order or request signed in the name of
the Initial Depositor or any other Depositor, as applicable.
"DTC" means The Depository Trust Company, its nominees and their
respective successors.
"Initial Depositor" means Xxxxxxx Xxxxx Xxxxxx Inc., a New York
corporation, or its successor.
"Issuance Denomination" is defined in Section 2.4, subject to increase as
provided in Sections 4.3 and 4.8.
"Owner" means the Person in whose name a Receipt is registered in the
books of the Trustee maintained for that purpose.
"Person" means any individual, limited liability company, corporation,
partnership, joint venture, association, joint stock company, trust (including
any trust beneficiary), unincorporated organization or government or any agency
or political subdivision thereof.
"Receipt" means a depositary trust receipt which is issued under the
Depositary Trust Agreement and which represents the Owner's right to receive the
Underlying Securities which must be deposited into the Trust for issuance of a
Receipt plus any other Underlying Securities received by the Trustee with
respect to such Underlying Securities and held by the Trustee under the
Depositary Trust Agreement at such time. The Trustee shall only accept for
deposit whole Securities and shall not issue Receipts except to the extent such
Receipts represent, in the aggregate, whole Underlying Securities.
"Registrar" means any bank or trust company having an office in the
Borough of Manhattan, The City of New York, which shall be appointed to register
Receipts and transfers of Receipts as herein provided.
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"Restricted Securities" means Securities, or Receipts representing such
Securities, which are acquired directly or indirectly from the issuer or its
affiliates (as defined in Rule 144 under the Securities Act of 1933, as amended)
in a transaction or chain of transactions not involving any public offering, or
which are held by an officer or director (or person performing similar
functions) or other affiliate of the issuer, or which would require registration
under the Securities Act of 1933, as amended, in connection with the public
offer and sale thereof in the United States, or which are subject to other
restrictions on sale or deposit under the federal securities laws of the United
States, a shareholder agreement or the corporate documents of the issuer.
"Round Lot" means 100.
"Securities" means any shares of a class of securities, including American
depositary shares and American depositary receipts, and Additional Securities,
which must be deposited for issuance of Receipts.
"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 Global Industry Classification Standard" means the
sector classification given to each class of publicly traded securities of a
company, from time to time, by Standard & Poor's.
"Surrender" means, when used with respect to Receipts, (a) one or more
book-entry transfers of Receipts to the DTC account of the Trustee or (b)
surrender to the Trustee at its Corporate Trust Office of one or more
certificates evidencing such Receipts, in each case in a Round Lot or an
integral multiple thereof.
"Trust" means the trust entity created by the Depositary Trust Agreement.
"Trustee" means U.S. Bank Trust National Association, a national banking
association, in its capacity as Trustee under the Depositary Trust Agreement, or
any successor as Trustee thereunder.
"Underlying Securities" means, as of any time, Securities of each of the
classes and in the quantities required by the Depositary Trust Agreement to be
deposited in the Trust for the issuance of Receipts and which are at such time
deposited under the applicable Depositary Trust Agreement and any other
securities, property or cash received by the Trustee in respect thereof and at
such time held hereunder.
Section 1.2 .Rules of Construction. Unless the context otherwise
requires:
(i) a term has the meaning assigned to it;
(ii) an accounting term not otherwise defined has the meaning
assigned to it in accordance with generally accepted accounting principles as in
effect in the United States from time to time;
(iii) "or" is not exclusive;
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(iv) the words "herein", "hereof", "hereunder" and other words
of similar import refer to these Standard Terms or the Depositary Trust
Agreement as a whole and not to any particular Article, Section or other
subdivision;
(v) "including" means including without limitation; and
(vi) words in the singular include the plural and words in the
plural include the singular.
ARTICLE 2
FORM OF RECEIPTS, DEPOSIT OF SECURITIES, DELIVERY, REGISTRATION OF
TRANSFER AND SURRENDER OF RECEIPTS
Section 2.1 Depositary Trust Agreements. Each Depositary Trust
Agreement entered into between the Initial Depositor and the Trustee for the
purposes set forth herein shall be in substantially the form of Exhibit A to
these Standard Terms and shall provide that these Standard Terms shall be
incorporated by reference into, and form a part of, such Depositary Trust
Agreement.
Section 2.2 Creation and Declaration of Trusts; Deposit of
Securities. (a) The Initial Depositor, concurrently with the execution and
delivery of the Depositary Trust Agreement, does hereby agree to deposit with
the Trustee under the Depositary Trust Agreement all the right, title and
interest of the Initial Depositor in, to and under Securities, of each of the
classes and in the quantities necessary to create Receipts in accordance with
Section 2 of the Depositary Trust Agreement in effect at the time of deposit.
Unless otherwise specified in the Depositary Trust Agreement, such deposit shall
include all cash dividends and distributions in respect of such Securities. The
Initial Depositor shall make such deposit on or prior to the Closing Date.
(b) From time to time after the date of the Depositary Trust
Agreement, a Depositor may deposit with the Trustee, in the manner specified in
subsection (a), Securities, of each of the classes and in the quantities
necessary to create Receipts in accordance with Section 2 of the Depositary
Trust Agreement in effect at the time of deposit by Delivery of such Securities
to the Trustee.
(c) The Trustee shall only accept for deposit whole Securities and
shall not issue Receipts except to the extent such Receipts represent, in the
aggregate, whole Underlying Securities.
(d) So long as this Trust Agreement remains in effect, the Trust (or
the Trustee acting on behalf of the Trust) shall not undertake any business,
activities or transaction except as expressly provided herein or contemplated
hereby. In particular, the Trustee shall not (i) acquire any investments or
engage in any activities not authorized by this Trust Agreement, (ii) sell,
assign, transfer, exchange, mortgage, pledge, set-off or otherwise dispose of
any of the trust property or interests therein, including to Owners, except as
expressly provided herein, (iii) take any action that would reasonably be
expected to cause the Trust to become taxable as a corporation or classified as
other than a grantor trust or custodial arrangement for U.S. federal
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income tax purposes, (iv) incur any indebtedness for borrowed money or issue any
other debt, or (v) take or consent to any action that would result in the
placement of a lien on any of the trust property. The Trustee shall defend all
claims and demands of all persons at anytime claiming any lien on any of the
trust property adverse to the interest of the Trust or the Owners in their
capacity as Owners.
(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 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
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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 certificates shall be shown on, and the transfer of such
Ownership shall be effected only through, records maintained by (i) DTC or (ii)
institutions that have accounts with DTC.
(e) If, at any time when Receipts are evidenced by a global
certificate, DTC ceases to make its book-entry settlement system available for
such Receipts, the Trustee shall issue separate certificates evidencing Receipts
to the DTC book-entry settlement system participants entitled thereto, with such
additions, deletions and modifications to the Depositary Trust Agreement and to
the form of certificate evidencing Receipts as the Initial Depositor and the
Trustee may, from time to time, agree.
(f) Title to a certificate evidencing Receipts (and to the Receipts
evidenced thereby), when properly endorsed or accompanied by proper instruments
of transfer, shall be transferable by delivery with the same effect as in the
case of a negotiable instrument under the laws of New York; provided, however,
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 Deliver to or
upon the written order of the Depositor the
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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. Thereupon the Trustee shall execute a new certificate
or certificates evidencing such Receipts in any integral multiple of a Round Lot
requested, and deliver the same to or upon the order of the Person entitled
thereto.
(c) The Trustee, subject to the terms and conditions of these
Standard Terms and the applicable Depositary Trust Agreement, shall, upon
Surrender of a certificate evidencing Receipts for the purposes of effecting a
split-up or combination of such certificate or certificates, execute and deliver
one or more new certificate or certificates evidencing such Receipts in any
integral multiple of a Round Lot requested.
(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 Corporate Trust Office of the Trustee 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.
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(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 Corporate Trust office, subject to Sections 2.8, 3.1, 3.2 and
4.10 and to the other terms and conditions of the Depositary Trust Agreement, to
or upon the written order of the Person or Persons designated in the order
delivered to the Trustee as above provided, the amount of Underlying Securities
represented by such Receipts.
Section 2.8 Limitations on Delivery, Registration of Transfer and
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 of a
sum sufficient to reimburse it for any tax or other charge and any stock
transfer or registration fee with respect thereto (including any such tax or
charge and fee with respect to Securities being deposited or withdrawn) and
payment of any applicable fees as herein provided, may require the production of
proof satisfactory to it as to the identity and genuineness of any signature and
may also require compliance with any regulations the Trustee may establish
consistent with the provisions of the Depositary Trust Agreement, including,
without limitation, this Section 2.8.
(b) The Delivery of Receipts against deposits of Securities, the
registration of transfer of Receipts or the Surrender of Receipts for the
purpose of withdrawal of Underlying Securities may be suspended, generally or in
particular instances, during any period when the transfer books of the Trustee
are closed or the transfer books of a Securities Issuer are closed or if any
such action is deemed necessary or advisable by the Trustee at any time or from
time to time, subject to the provisions of the following sentence.
Notwithstanding any other provision of any applicable Depositary Trust Agreement
or the Receipts, the Surrender of Receipts and withdrawal of Underlying
Securities may not be suspended except for (i) temporary delays caused by
closing the transfer books of the Trustee or a Securities Issuer, (ii) the
payment of fees, taxes and applicable charges, and (iii) compliance with any
U.S. laws or governmental regulations relating to the Receipts or to the
withdrawal of the Underlying Securities. Without limitation of the foregoing,
the Trustee shall not knowingly accept for deposit under the Depositary Trust
Agreement any Securities required to be registered under the provisions of the
Securities Act of 1933, as amended, for the public offer and sale thereof in the
United States unless a registration statement is in effect as to such Securities
for such offer and sale.
Section 2.9 Lost Certificates, Etc. In case any certificate
evidencing Receipts shall be mutilated, destroyed, lost or stolen, the Trustee
shall execute and deliver a new certificate of like tenor in exchange and
substitution for such mutilated certificate upon cancellation thereof, or in
lieu of and in substitution for such destroyed, lost or stolen certificate.
Before the Trustee shall execute and deliver a new certificate in substitution
for a destroyed, lost or stolen certificate, the Owner thereof shall have (a)
filed with the Trustee (i) a request for such execution and delivery before the
Trustee has notice that the Receipts have been acquired by a
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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 or other
corporate combination of the Securities Issuer and, as a result, securities
which are not Underlying Securities or Additional Securities are received by the
Trustee in exchange for, in conversion of or in respect of the Underlying
Securities, the Trustee shall, to the extent lawful and feasible and subject to
Section 4.10, distribute any securities which shall be received by the Trustee
to the Owners in proportion to their Ownership of Receipts. In the event of a
merger, consolidation or other corporate combination in which stockholders of a
Securities Issuer are provided an option of receiving either cash or securities,
the Trustee shall not respond and shall instead accept the default option
regardless of whether it is cash or securities. Effective on the date that such
Securities cease to be outstanding, such class of Securities shall cease to be
part of the Securities which must be deposited for issuance of Receipts.
(b) If any class of Securities is delisted from trading on its
primary exchange or market and is not listed for trading on another national
securities exchange or through the NASDAQ National Market System within five
business days from the date of such delisting, the Trustee shall, to the extent
lawful and feasible and subject to Section 4.10, distribute the Underlying
Securities of such class to the Owners in proportion to their Ownership of
Receipts. Effective on the date of such distribution, such class of Securities
shall cease to be a part of the securities which must be deposited for issuance
of Receipts.
(c) In the event that any Securities Issuer no longer has a class of
common stock registered under section 12 of the Securities Exchange Act of 1934,
as amended, the Trustee shall, to the extent lawful and feasible and subject to
Section 4.10, distribute the Underlying Securities of such Securities Issuer to
the Owners in proportion to their Ownership of Receipts. Effective on the date
of such distribution, such class of Securities shall cease to be part of the
securities which must be deposited for issuance of Receipts.
(d) If the Commission determines that a Securities Issuer is an
investment company under the Investment Company Act of 1940, and the Trustee has
actual knowledge of such Commission determination, then the Trustee shall, to
the extent lawful and feasible and subject to Section 4.10, distribute the
Underlying Securities of 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
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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. 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 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.
ARTICLE 4
THE UNDERLYING SECURITIES
Section 4.1 Cash Distributions. Whenever the Trustee shall receive
any cash dividend or other cash distribution on any Underlying Securities, the
Trustee shall distribute the amount thus received (net of the fees of the
Trustee as provided in Section 5.6, if applicable) to the Owners entitled
thereto, in proportion to the number of Receipts held by them respectively;
provided, however, that in the event that the respective Securities Issuer or
the Trustee shall be required to withhold and does withhold from such cash
dividend or such other cash distribution an amount on account of taxes, the
amount distributed to the Owners shall be reduced accordingly. The Trustee shall
distribute only such amount, however, as can be distributed without attributing
to any Owner a fraction of one cent. Any such fractional amounts shall be
rounded to the nearest whole cent and so distributed to Owners entitled thereto.
In the event that a Securities Issuer provides holders of any Underlying
Securities with an option to receive either cash, securities or any other
distribution, the Trustee shall not respond to the Securities Issuer and shall
accept the default option provided by the Securities Issuer regardless of
whether it is cash or securities or any other distribution.
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Section 4.2 Distributions Other Than Cash or Securities. Subject to
the provisions of Sections 4.9 and 5.6, whenever the Trustee shall receive any
distribution other than a distribution described in Sections 4.1, 4.3 or 4.4 or
any distribution which would otherwise be distributed hereunder except that the
Trustee deems such distribution not to be lawful and feasible, the Trustee
shall, subject to Section 4.10, cause the securities or property received by it
to be distributed to the Owners entitled thereto, in proportion to the number of
Receipts held by them respectively, in any manner that the Trustee may deem
equitable and practicable for accomplishing such distribution; provided,
however, that if in the opinion of the Trustee such distribution cannot be made
proportionately among the Owners entitled thereto, or if for any other reason
(including, but not limited to, any requirement that a Securities Issuer or the
Trustee withhold an amount on account of taxes or other governmental charges or
that such securities must be registered under the Securities Act of 1933, as
amended, in order to be distributed to Owners) the Trustee, after consultation
with the Initial Depositor, deems such distribution not to be feasible, the
Trustee may adopt, with the Initial Depositor's approval, which approval shall
not be unreasonably withheld, such method as it deems equitable and practicable
for the purpose of effecting such distribution such that each Owner receives
substantially identical property (less any applicable taxes), 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 Receipts
and (ii) the number of Receipts in an Issuance Denomination may be increased or
decreased by the Trustee to the lowest multiple of 100 Receipts such that no
fractional shares are thereby represented in such Issuance Denomination.
Section 4.4 Rights Offerings. (a) If a Securities Issuer offers or
causes to be offered to the holders of any Underlying Securities any rights to
subscribe for additional Securities or other securities, the Trustee shall have
discretion in accordance with this Section 4.4 as to the procedure to be
followed in making such rights available to any Owners or in disposing of such
rights on behalf of Owners and making the net proceeds available to Owners or,
if by the terms of such rights offering or for any other reason (including the
absence of an effective registration statement covering the distribution of
securities underlying the rights), the Trustee may not make such rights
available to any Owners or dispose of such rights and make the net proceeds
available to Owners, then the Trustee shall allow the rights to lapse.
(b) The Trustee will not offer rights to Owners unless both the
rights and the securities to which such rights relate are either exempt from
registration under the Securities Act of 1933, as amended, with respect to a
distribution to all Owners or are registered under the provisions of such act.
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(c) The Trustee shall not be responsible for any failure to
determine that it may be lawful or feasible to make such rights available to
Owners in general or any Owner in particular.
Section 4.5 Fixing of Record Date. Whenever any cash dividend or
other cash distribution shall become payable or any distribution other than cash
shall be made, or whenever the Trustee receives notice of any meeting of or
solicitation of proxies from holders of any Underlying Securities, or whenever a
fee shall be charged by the Trustee under Section 5.6, or whenever for any
reason there is a reconstitution or other event under the Depositary Trust
Agreement that causes a change in the composition of the securities which must
be deposited for issuance of Receipts, or whenever the Trustee shall find it
necessary or convenient in respect of any matter, the Trustee shall fix a record
date (a) for the determination of the Owners who shall be (i) entitled to
receive such dividend or distribution or the net proceeds of the sale thereof,
(ii) entitled to give instructions to the Trustee for the exercise of voting
rights at any such meeting or solicitation or (iii) required to pay such fee, or
(b) on or after which each Receipt will represent such changed group of
Securities. In the case of subsections (a)(i) and (a)(ii) of this Section 4.5,
the Trustee shall use its best efforts to fix a record date that will coincide
with the record date fixed by the issuer of the Underlying Securities; however,
if a coinciding record date is not practicable, the Trustee shall fix a record
date is near as practicable to the record date set by the Securities Issuer.
Subject to the terms and conditions of the Depositary Trust Agreement, the
Owners on such record date shall be entitled, as the case may be, to receive the
amount distributable by the Trustee with respect to such dividend or other
distribution or the net proceeds of sale thereof, or to give voting
instructions, or to act in respect of any other such matter, or shall be
obligated to pay such fee.
Section 4.6 Reports. The Trustee shall, to the extent lawful,
forward to Owners any reports and communications, including any proxy statement
or other soliciting material, received from a Securities Issuer which are
received by the Trustee as the holder of the Underlying Securities or its
appointed agent, unless such reports and communications have been forwarded
directly to Owners by such Securities Issuer or its appointed agent.
Section 4.7 Voting Instructions for Underlying Securities. Upon
receipt by the Trustee or its appointed agent of notice of any meeting of, or
solicitation of proxies from, holders of Underlying Securities, the Trustee
shall, to the extent lawful, mail to the Owners a notice which shall contain (a)
such information as is contained in such notice of meeting or solicitation, and
(b) a statement that the Owners as of the close of business on a specified
record date will be entitled, subject to applicable law and the provisions of
the corporate documents of the Securities Issuer, to instruct the Trustee as to
the exercise of the voting 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, insofar as practicable, 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.
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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, the (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
Receipts and (ii) the number of Receipts in an Issuance Denomination may be
increased or decreased by the Trustee to the lowest multiple of 100 Receipts
such that no fractional shares are thereby represented in such Issuance
Denomination.
(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 minimum necessary number of shares, distribute the
cash value of the fraction to such Owner and distribute the remaining cash to
all other Owners.
ARTICLE 5
THE TRUSTEE AND THE INITIAL DEPOSITOR
Section 5.1 Maintenance of Office and Transfer Books by the Trustee.
(a) Until termination of this Depositary Trust Agreement in accordance with its
terms, the Trustee shall maintain in the Borough of Manhattan, The City of New
York, facilities 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.
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(b) The Trustee shall keep books for the registration of Receipts
and transfers of Receipts which at all reasonable times shall be open for
inspection by the Owners.
(c) The Trustee may close the transfer books at any time or from
time to time.
(d) If any Receipts evidenced thereby are listed on one or more
stock exchanges in the United States, the Trustee shall act as Registrar or
appoint a registrar or one or more co-registrars for registry of such receipts
in accordance with any requirements of such exchange or exchanges.
Section 5.2 Prevention or Delay in Performance by the Initial
Depositor or the Trustee. Neither the Initial Depositor nor the Trustee nor any
of their respective directors, employees, agents or affiliates shall incur any
liability to any Owner or Beneficial Owner of any Receipt, if by reason of any
provision of any present or future law or regulation of the United States or any
other country, or of any governmental or regulatory authority or stock exchange,
or by reason of any provision, present or future, of the corporate documents of
any Securities Issuer, or by reason of any provisions of any securities issued
or distributed by any Securities Issuer, or any offering or distribution
thereof, or by reason of any act of God or war or other circumstances beyond its
control, the Initial Depositor or the Trustee shall be prevented or forbidden
from, or be subject to any civil or criminal penalty on account of, doing or
performing any act or thing which by the terms of these Standard Terms or the
applicable Depositary Trust Agreement it is provided shall be done or performed;
nor shall the Initial Depositor or the Trustee incur any liability to any Owner
or Beneficial Owner of any Receipt by reason of any non-performance or delay,
caused as aforesaid, in the performance of any act or thing which by the terms
of these Standard Terms or the applicable Depositary Trust Agreement it is
provided shall or may be done or performed, or by reason of any exercise of, or
failure to exercise, any discretion provided for in these Standard Terms or the
applicable Depositary Trust Agreement. Where, by the terms of an offering or
distribution to which Sections 2.11, 4.2 or 4.4 applies, or for any other
reason, it is not lawful and feasible to make such distribution or offering
available to Owners, and the Trustee may not dispose of such distribution or
offering on behalf of such Owners and make the net proceeds available to such
Owners, then the Trustee shall not make such distribution or offering available
to Owners and shall allow any rights, if applicable, to lapse.
Section 5.3 Obligations of the Initial Depositor and the Trustee.
(a) Neither the Initial Depositor nor the Trustee assumes any obligation nor
shall they be subject to any liability under these Standard Terms or the
applicable Depositary Trust Agreement to any Owner or Beneficial Owner of any
Receipt (including, without limitation, liability with respect to the validity
or worth of the Underlying Securities), except that each agrees to perform its
respective obligations specifically set forth in these Standard Terms and the
applicable Depositary Trust Agreement without negligence or bad faith.
(b) Neither the Initial Depositor nor the Trustee shall be under any
obligation to prosecute any action, suit or other proceeding in respect of any
Underlying Securities or in respect of the Receipts.
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(c) Neither the Initial Depositor nor the Trustee shall be liable
for any action or non-action by it in reliance upon the advice of or information
from legal counsel, accountants, any person presenting Securities for deposit,
any Owner or any other person believed by it in good faith to be competent to
give such advice or information.
(d) The Trustee shall not be liable for any acts or omissions made
by a successor Trustee whether in connection with a previous act or omission of
the Trustee or in connection with any matter arising wholly after the
resignation of the Trustee, provided that in connection with the issue out of
which such potential liability arises the Trustee performed its obligations
without negligence or bad faith while it acted as Trustee.
(e) The Trustee shall not be responsible for any failure to carry
out any instructions to vote any of the Underlying Securities, or for the manner
in which any such vote is cast or the effect of any such vote, provided that any
such action or non-action is without negligence or bad faith.
(f) Except as specifically provided in Section 4.6, the Trustee
shall have no obligation to monitor or to obtain any information concerning the
business or affairs of any Securities Issuer or to advise Owners or Beneficial
Owners of any event or condition affecting any Securities Issuer.
(g) The Trustee shall have no obligation to comply with any
direction or instruction from any Owner or Beneficial Owner regarding Receipts
except to the extent specifically provided in these Standard Terms or any
applicable Depositary Trust Agreement.
(h) The Trustee shall be a fiduciary under these Standard Terms and
the applicable Depositary Trust Agreement; provided, however, that the fiduciary
duties and responsibilities and liabilities of the Trustee shall be limited by,
and shall be only those specifically set forth in, these Standard Terms and the
applicable Depositary Trust Agreement.
Section 5.4 Resignation or Removal of the Trustee; Appointment of
Successor Trustee. (a) The Trustee may at any time resign as Trustee hereunder
by written notice of its election so to do, delivered to the Initial Depositor,
and such resignation shall take effect upon the appointment of a successor
Trustee and its acceptance of such appointment as hereinafter provided.
(b) If at any time the Trustee is in material breach of its
obligations under the Depositary Trust Agreement and the Trustee fails to cure
such breach within 30 days after receipt by the Trustee of written notice from
the Initial Depositor or Owners of 25% or more of the outstanding Receipts
specifying such default and requiring the Trustee to cure such default, the
Initial Depositor, acting on behalf of the Owners, may remove the Trustee by
written notice delivered to the Trustee in the manner provided in Section 7.5,
and such removal shall take effect upon the appointment of the successor Trustee
and its acceptance of such appointment as hereinafter provided.
(c) In case at any time the Trustee acting hereunder shall resign or
be removed, the Initial Depositor, acting on behalf of the Owners, shall use its
reasonable efforts to appoint a successor Trustee, which shall be a bank or
trust company having an office in the Borough of
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Manhattan, The City of New York. Every successor Trustee shall execute and
deliver to its predecessor and to the Initial Depositor, acting on behalf of the
Owners, an instrument in writing accepting its appointment hereunder, and
thereupon such successor Trustee, without any further act or deed, shall become
fully vested with all the rights, powers, duties and obligations of its
predecessor; but such predecessor, nevertheless, upon payment of all sums due it
and on the written request of the Initial Depositor, acting on behalf of the
Owners, shall execute and deliver an instrument transferring to such successor
all rights and powers of such predecessor hereunder, shall duly assign, transfer
and deliver all right, title and interest in the Underlying Securities to such
successor, and shall deliver to such successor a list of the Owners of all
outstanding Receipts. The Initial Depositor or any such successor Trustee shall
promptly mail notice of the appointment of such successor Trustee to the Owners.
(d) Any corporation into or with which the Trustee may be merged,
consolidated or converted shall be the successor of such Trustee without the
execution or filing of any document or any further act.
Section 5.5 Indemnification. (a) The Initial Depositor shall
indemnify the Trustee, its directors, employees, agents and affiliates against,
and hold each of them harmless from, any loss, liability, cost, expense or
judgment (including, but not limited to, the fees and expenses of counsel)
(collectively "Indemnified Amounts") which is incurred by any of them and which
arises out of acts performed or omitted pursuant to the provisions of these
Standard Terms or any Depositary Trust Agreement, as the same may be amended,
modified or supplemented from time to time, or any filings with or submissions
to the Commission in connection with or with respect to such Receipts (which by
way of illustration and not by way of limitation, include any registration
statement and any amendments or supplements thereto filed with the Commission or
any periodic reports or updates that may be filed under the Securities Exchange
Act of 1934, as amended, or any failure to make any filings or submissions to
the Commission which are required to be made in connection with or with respect
to such Receipts), except that the Initial Depositor shall not have any
obligations under this Section 5.5(a) to pay Indemnified Amounts incurred as a
result of and attributable to (i) the negligence or bad faith of, or material
breach of the terms of this Agreement by, the Trustee, (ii) written information
regarding the name and address of the Trustee furnished in writing to the
Initial Depositor (and not materially changed or altered) expressly for use in
the registration statement filed with the Commission relating to the Receipts,
or (iii) any misrepresentations or omissions made by a Depositor (other than
Initial Depositor) in connection with such Depositor's offer and sale of
Receipts.
(b) The Trustee shall indemnify the Initial Depositor, its
directors, employees, agents and affiliates against, and hold each of them
harmless from, any Indemnified Amounts (i) caused by the negligence or bad faith
of the Trustee or (ii) arising out of any written information regarding the name
and address of the Trustee furnished in writing to the Initial Depositor (and
not materially changed or altered) expressly for use in the registration
statement filed with the Commission relating to the Receipts.
(c) If the indemnification provided for in this Section 5.5 is
unavailable or insufficient to hold harmless the indemnified party under
subsection (a) or
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(b) above, then the indemnifying party shall contribute to the Indemnified
Amounts referred to in subsection (a) or (b) above (i) in such proportion as is
appropriate to reflect the relative benefits received by the Initial Depositor
on the one hand and the Trustee on the other hand from the offering of the
Receipts which are the subject of the action or (ii) if the allocation provided
by clause (i) above is not permitted by applicable law, in such proportion as is
appropriate to reflect not only the relative benefits referred to in clause (i)
above but also the relative fault of the Initial Depositor on the one hand and
the Trustee on the other hand in connection with the action, statement or
omission which resulted in such Indemnified Amount as well as any other relevant
equitable considerations. The relative benefits received by the Initial
Depositor on the one hand and the Trustee on the other shall be deemed to be in
the same proportions as the total commissions from the offering of the Receipts
which are the subject of the action (before deducting expenses) received by the
Initial Depositor bear to the total fees received by the Trustee from the
offering of such Receipts. The relative fault shall be determined by 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 which
from which the action arises relates to information supplied by the Initial
Depositor or the Trustee and the parties' relative intent, knowledge, access to
information and opportunity to correct or prevent such untrue statement or
omission or the act or omission from which the action arises. The amount of
Indemnified Amounts referred to in the first sentence of this subsection (c)
shall be deemed to include any legal or other expenses reasonably incurred by
such indemnified party in connection with investigating or defending any action
or claim which is the subject of this subsection (c).
Section 5.6 Charges of Trustee. The following charges shall be
incurred by any party depositing or withdrawing Securities or by any party
Surrendering Receipts or to whom Receipts are Delivered or any Owner, as
applicable: (1) taxes and charges and other fees payable in respect of the
Underlying Securities assessed by third-party custodians, depositories, transfer
agents, and other service providers in the ordinary course of their respective
businesses (whether in connection with the deposit of Securities or withdrawal
of Underlying Securities or otherwise), (2) a fee of $10 or less per 100
Receipts for the execution and Delivery of Receipts pursuant to Section 2.5, and
the Surrender of Receipts pursuant to Section 2.7, and (3) a fee which shall
accrue on the first day of each calendar quarter at a rate of $.02 or less per
Receipt per quarter for the Trustee's services as such under the Depositary
Trust Agreement (which fee shall be assessed against Owners of record as of the
date or dates set by the Trustee in accordance with Section 4.5 and shall be
collected at the Trustee's discretion by deducting such fee from one or more
cash dividends or other cash distributions); provided, however, that with
respect to the aggregate fee accrued in any calendar year under this clause (3)
with respect to each Receipt, the Trustee will waive that portion which exceeds
the total cash dividends and other cash distributions the record date for which
falls in such calendar year and payable with respect to such Receipt.
Section 5.7 Retention of Trust Documents. The Trustee is authorized
to destroy those documents, records, bills and other data compiled during the
term of the Depositary Trust Agreement at the times permitted by the laws or
regulations governing the Trustee.
Section 5.8 Federal Securities Law Filings. The Initial Depositor
shall (i) prepare and file a registration statement with the Commission and take
such action as is necessary from time to time to qualify the Receipts for
offering and sale under the federal
17
securities laws of the United States, including the preparation and filing of
amendments and supplements to such registration statement, (ii) promptly notify
the Trustee of any amendment or supplement to the registration statement or
prospectus, of any order preventing or suspending the use of any prospectus, of
any request for the amending or supplementing of the registration statement or
prospectus or if any event or circumstance occurs as a result of which the
registration statement or prospectus, as then amended or supplemented, would
include an untrue statement of a material fact or omit to state any material
fact necessary to make the statements therein, in the light of the circumstances
under which they were made, not misleading, (iii) provide the Trustee from time
to time with copies of the prospectus, as amended and supplemented, in such
quantities as the Trustee may request and (iv) prepare and file any periodic
reports or updates that may be required under the Securities Exchange Act of
1934, as amended.
Section 5.9 Prospectus Delivery. The Trustee shall, if required by
the federal securities laws of the United States, in any manner permitted by
such laws, deliver at the time of issuance of Receipts, a copy of the relevant
prospectus, as amended and supplemented at such time, to each Person depositing
Underlying Securities into the Trust for issuance of Receipts.
Section 5.10 Tax Returns and Reports. The Trustee shall prepare (or
cause to be prepared) and file all U.S. federal, state and local tax and
information returns and reports required to be filed by or in respect of the
Trust. In this regard, the Trustee shall (a) prepare and file (or cause to be
prepared and filed) all Internal Revenue Service forms and returns required to
be filed in respect of the Trust in each taxable year of the Trust, and (b)
prepare and furnish (or cause to be prepared and furnished) to each Owner all
Internal Revenue Service forms and returns required to be provided by the Trust.
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, provided that the Trustee or the Initial Depositor is provided with
an opinion of counsel to the effect that such amendment will not affect the
trust's status as a grantor trust or custodial arrangement for U.S. federal
income tax purposes. Any amendment that imposes or increases any fees or charges
(other than taxes and other charges, registration fees or other such expenses),
or that otherwise prejudices any substantial existing right of the Owners will
not become effective until 30 days after notice of such amendment is given to
the Owners. Every Owner and Beneficial Owner, at the time any amendment so
becomes effective, shall be deemed, by continuing to hold any Receipt or an
interest therein, to consent and agree to such amendment and to be bound by the
Depositary Trust Agreement as amended thereby. In no event shall any amendment
impair the right of the Owner of any Receipt to Surrender such Receipt and
receive therefor the Underlying Securities represented thereby, except in order
to comply with mandatory provisions of applicable law.
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Section 6.2 Termination. (a) The Trust shall terminate by the
Trustee mailing notice of such termination to the Owners of all Receipts then
outstanding at least 30 days prior to the date set for termination if any of the
following occurs:
(i) The Trustee is notified that the Receipts are delisted
from a national securities exchange and are not approved for listing on another
national securities exchange within 5 business days of their delisting;
(ii) Owners of at least 75% of the outstanding Receipts notify
the Trustee that they elect to terminate the Trust; or
(iii) 60 days shall have expired after the Trustee shall have
delivered to the Initial Depositor and the Owners a written notice of its
election to resign and a successor trustee shall not have been appointed and
accepted its appointment as provided in section 5.4.
(b) if none of the events in (a) occurs, the date of termination of
the Trust shall be , 2004.
(c) on and after the date of termination, the Owner of a Receipt
will, upon (i) Surrender of such Receipt at the Corporate Trust Office of the
Trustee, (ii) payment of the fee of the Trustee for the Surrender of Receipts
referred to in Section 2.7, and (iii) payment of any applicable taxes or
charges, be entitled to Delivery, to the Owner or upon the Owner's order, of the
amount of Underlying Securities evidenced by such Receipt. If any Receipts shall
remain outstanding after the date of termination, the Trustee thereafter shall
discontinue the registration of transfers of Receipts, shall suspend the
distribution of dividends or other distribution to the Owners thereof, and shall
not give any further notices or perform any further acts under these Standard
Terms or the applicable Depositary Trust Agreement, except that the Trustee
shall continue to collect dividends and other distributions pertaining to
Underlying Securities and hold the same uninvested and without liability for
interest, shall sell rights as provided in these Standard Terms or the
applicable Depositary Trust Agreement, and shall continue to deliver Underlying
Securities, together with any dividends or other distributions received with
respect thereto and the net proceeds of the sale of any rights or other
property, in exchange for Receipts Surrendered to the Trustee (after deducting
or upon payment of, in each case, the fee of the Trustee set forth in 5.6 for
the Surrender of Receipts, any expenses for the account of the Owner of such
Receipts in accordance with the terms and conditions of the Depositary Trust
Agreement, and any applicable taxes or charges). At any time after the
expiration of one year following the date of termination, the Trustee may sell
the Underlying Securities then held hereunder and may thereafter hold uninvested
the net proceeds of any such sale, together with any other cash then held by it
hereunder, unsegregated and without liability for interest, for the pro rata
benefit of the Owners of Receipts which have not theretofore been Surrendered,
such Owners thereupon becoming general creditors of the Trustee with respect to
such net proceeds. After making such sale, the Trustee shall be discharged from
all obligations under these Standard Terms with respect to the Receipts and the
applicable Depositary Trust Agreement, except to account for such net proceeds
and other cash (after deducting, in each case, the fee of the Trustee for the
Surrender of Receipts, any fees of the Trustee due and owing from the Owner of
such Receipts pursuant to Section 5.6, any expenses for the account of the Owner
of such Receipts in accordance with the terms and conditions of the Depositary
Trust Agreement, and any applicable taxes or governmental charges). Upon the
termination of the applicable Depositary Trust Agreement, the Initial Depositor
shall be discharged from all obligations under such Depositary Trust Agreement
except for its obligations to the Trustee under Section 5.5.
19
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 be or become invalid, illegal or unenforceable in any
respect, the validity, legality and enforceability of the remaining provisions
contained herein or therein shall in no way be affected, prejudiced or disturbed
thereby.
Section 7.4 Owners and Beneficial Owners as Parties; Binding Effect.
The Owners, Beneficial Owners and Depositors from time to time shall be parties
to the applicable Depositary Trust Agreement and shall be bound by all of the
terms and conditions hereof and thereof and of the Receipts by their acceptance
of Receipts or any interest therein or by their depositing Securities, as the
case may be.
Section 7.5 Notices. (a) Any and all notices to be given to the
Initial Depositor shall be deemed to have been duly given if personally
delivered or sent by mail or cable, telex or facsimile transmission confirmed by
letter addressed to Xxxxxxx Xxxxx Xxxxxx Inc., 000 Xxxxxxxxx Xxxxxx, XxxXxxx,
Xxx Xxxx 00000, Attention: Manager, Investment Banking Division 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 U.S. Bank Trust
National Association, 000 Xxxx Xxxxxx, Xxxxx 0000, Xxx Xxxx, Xxx Xxxx 00000,
Attention: Xxxxxxx Xxxxx Barney Inc., or any other place to which the Trustee
may have transferred its Corporate Trust Office with notices to the Initial
Depositor.
(c) Any and all notices to be given to any Owner shall be deemed to
have been duly given if personally delivered or sent by mail or cable, telex or
facsimile 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.
20
(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.
21
IN WITNESS WHEREOF, XXXXXXX XXXXX XXXXXX INC. and U.S. BANK TRUST
NATIONAL ASSOCIATION have duly executed these Standard Terms as of the day
and year first set forth above.
XXXXXXX XXXXX BARNEY INC.
By:
-----------------------------------
Name:
Title:
U.S. BANK TRUST NATIONAL
ASSOCIATION,
as Trustee
By:
-----------------------------------
Name:
Title:
22
EXHIBIT A
[NAME OF TRUST]
[FORM OF] DEPOSITARY TRUST AGREEMENT
DEPOSITARY TRUST AGREEMENT dated as of [specify date] (this "Depositary
Trust Agreement"), among XXXXXXX XXXXX XXXXXX INC., a New York corporation (the
"Initial Depositor"), U.S. Bank Trust National Association, a national banking
association, as trustee (the "Trustee"), all Owners 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 , 2002 (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 Receipt and which shall be represented
thereby shall be as follows:
Quantity which
must be deposited
Issuer and Title of Security per Receipt
---------------------------- -----------
[Issuer and title of security] [Quantity]
[Issuer and title of security] [Quantity]
; provided, however, that if an event to which Section 2.11 of the Standard
Terms applies or an event described in Sections 4.3 or 4.8 of the Standard Terms
occurs, the definition of the securities that must be deposited for issuance of
one Receipt shall be changed as provided in such Sections, if applicable.
Section 3. Creation and Declaration of Trust; Termination Date. The trust
created hereby shall be known as [Name of Trust], for which the Trustee, or the
Initial Depositor to the extent provided herein, may conduct the business of the
Trust, make and execute contracts, and xxx and be sued. [The termination date of
the Trust will be , 2004].
Section 4. Closing. The "Closing Date" shall be [specify date].
A-1
IN WITNESS WHEREOF, XXXXXXX XXXXX XXXXXX INC. and U.S. BANK TRUST NATIONAL
ASSOCIATION have duly executed this agreement as of the day and year first set
forth above. All Owners and Beneficial Owners shall become parties hereto upon
acceptance by them of Receipts issued in accordance with the terms hereof or any
interest therein, and all Depositors shall become parties hereto upon depositing
any Securities hereunder.
XXXXXXX XXXXX BARNEY INC.
By:
-----------------------------------
Name:
Title:
U.S. BANK TRUST NATIONAL
ASSOCIATION, as Trustee
By:
-----------------------------------
Name:
Title:
A-2
EXHIBIT B
[Form of Receipt]
THE RECEIPTS EVIDENCED HEREBY REPRESENT RIGHTS WITH RESPECT TO UNDERLYING
SECURITIES (AS DEFINED IN THE DEPOSITARY TRUST AGREEMENT REFERRED TO HEREIN)
HELD BY THE TRUST AND DO NOT EVIDENCE AN OBLIGATION OF, OR AN INTEREST IN, AND
ARE NOT GUARANTEED BY THE INITIAL DEPOSITOR OR THE TRUSTEE OR ANY OF THEIR
RESPECTIVE AFFILIATES. NEITHER THE RECEIPTS NOR THE UNDERLYING SECURITIES ARE
INSURED OR GUARANTEED BY ANY GOVERNMENTAL AGENCY OR ANY OTHER PERSON.
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED 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.
DEPOSITARY TRUST RECEIPTS
ISSUED BY
[NAME OF TRUST]
REPRESENTING [COMMON STOCK] OF
[LIST COMPANIES HERE]
U.S. BANK TRUST NATIONAL ASSOCIATION, as Trustee
No. [ ] CUSIP NO. [ ]
U.S. BANK TRUST NATIONAL ASSOCIATION, as Trustee (hereinafter called the
"Trustee"), hereby certifies that CEDE & CO., as nominee of the Depositary Trust
Company, or registered assigns, is the owner of [Number*] Depositary Trust
Receipts issued by [Name of Trust], each representing the securities described
in the within-mentioned Depositary Trust Agreement. At the date hereof, each
Receipt represents the right to receive the following securities:
----------
* That number of Receipts held at The Depository Trust Company at any given
point in time.
B-1
Quantity Initially
Represented by
Issuer and Title of Security Each Receipt
------------------------------------------ ------------------------------
------------------------------------------ ------------------------------
------------------------------------------ ------------------------------
------------------------------------------ ------------------------------
which are deposited under the Depositary Trust Agreement referred to herein at
the Corporate Trust office of the Trustee. The specification of the securities
represented by each Receipt is subject to change as provided in the Depositary
Trust Agreement. The Trustee's Corporate Trust Office and its principal
executive office is located at 000 Xxxx Xxxxxx, Xxxxx 0000, Xxx Xxxx, Xxx Xxxx
00000.
THE TRUSTEE'S CORPORATE TRUST OFFICE ADDRESS IS
000 XXXX XXXXXX, XXXXX 0000, XXX XXXX, XXX XXXX 00000
(1) THE DEPOSITARY TRUST AGREEMENT.
This Receipt is issued upon the terms and conditions set forth in the
Depositary Trust Agreement, dated as of , 2002 (the "Depositary Trust
Agreement"), agreed to by and among the Initial Depositor, the Trustee, all
Owners and Beneficial Owners from time to time of Receipts issued thereunder and
all Depositors. By becoming an Owner or Beneficial Owner, or by depositing
Securities, such Person agrees to become a party to the Depositary Trust
Agreement and become bound by all the terms and conditions thereof. The
Depositary Trust Agreement sets forth the rights of Owners and the rights and
duties of the Trustee in respect of the Securities deposited thereunder and any
and all other securities, property and cash from time to time received in
respect of such Securities and held thereunder (such Securities, other
securities, property, and cash are herein called "Underlying Securities").
Copies of the Depositary Trust Agreement are on file at the Trustee's Corporate
Trust office in New York City.
The statements made on the face and reverse of this Receipt are summaries
of certain provisions of the Depositary Trust Agreement and are qualified by and
subject to the detailed provisions of the Depositary Trust Agreement, to which
reference is hereby made. Capitalized terms not defined herein shall have the
meanings set forth in the Depositary Trust Agreement.
(2) SURRENDER OF RECEIPTS AND WITHDRAWAL OF SECURITIES.
Upon Surrender at the Corporate Trust Office of the Trustee of a Round Lot
of Receipts or integral multiples thereof for the purpose of withdrawal of the
Underlying Securities represented thereby, and upon payment of the fee of the
Trustee in connection with the Surrender
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of Receipts as provided in Section 5.6 of the Standard Terms and payment of all
taxes and charges payable in connection with such Surrender and withdrawal of
the Underlying Securities, and subject to the terms and conditions of the
applicable Depositary Trust Agreement, including, without limitation, Section
4.10 thereof, the Owner of such Receipts shall be entitled to Delivery of the
amount of Underlying Securities at the time represented by such Receipts.
Delivery of such Underlying Securities may be made by (i) Delivery of Securities
to such Owner or as ordered by such Owner and (ii) any available form of
delivery of any other securities, property and cash to which such Owner is then
entitled to such Owner or as ordered by such Owner. The Trustee shall only
deliver whole Underlying Securities upon Surrender of Receipts representing such
Underlying Securities.
(3) REGISTRATION OF TRANSFERS, SPLIT-UPS AND COMBINATIONS OF CERTIFICATES;
LIMITATIONS.
The transfer of Ownership of Receipts evidenced by this certificate is
registrable on the books of the Trustee at its Corporate Trust Office by the
Owner hereof in person or by a duly authorized attorney, upon Surrender of this
certificate evidencing Receipts, properly endorsed or accompanied by proper
instruments of transfer, and duly stamped as may be required by the laws of the
State of New York and of the United States of America. This certificate
evidencing Receipts may be split up into other such certificates, each
evidencing any integral multiple of a Round Lot of Receipts, or may be combined
with other certificates evidencing Receipts into one such certificate, in each
case evidencing the same aggregate number of Receipts as the certificate or
certificates Surrendered.
As a condition precedent to the Delivery, registration of transfer,
split-up, combination or Surrender (including, for the avoidance of doubt, any
Surrender in connection with an exchange) of any Receipt or withdrawal of any
Underlying Securities, the Trustee or Registrar may require payment from the
Depositor of Securities or the presentor of the Receipts of a sum sufficient to
reimburse it for any tax or other charge and any stock transfer or registration
fee with respect thereto (including any such tax or charge and fee with respect
to Securities being deposited or withdrawn) and payment of any applicable fees
as herein provided, may require the production of proof satisfactory to it as to
the identity and genuineness of any signature and may also require compliance
with any regulations the Trustee may establish consistent with the provisions of
the Depositary Trust Agreement, including, without limitation, Section 2.8 of
the Standard Terms.
The Delivery of Receipts against deposits of Securities, the registration
of transfer of Receipts or the Surrender of Receipts for the purpose of
withdrawal of Underlying Securities may be suspended, generally or in particular
instances, during any period when the transfer books of the Trustee are closed
or the transfer books of a Securities Issuer are closed or if any such action is
deemed necessary or advisable by the Trustee at any time or from time to time
for any reason, subject to the provisions of the following sentence.
Notwithstanding any other provision of any applicable Depositary Trust Agreement
or the Receipts, the Surrender of Receipts and withdrawal of Underlying
Securities may not be suspended subject to only (i) temporary delays caused by
closing the transfer books of the Trustee or a Securities Issuer, (ii) the
payment of fees, taxes and similar charges, and (iii) compliance with any U.S.
laws or governmental regulations relating to the Receipts or to the withdrawal
of the Underlying Securities. Without limitation of the foregoing, the Trustee
shall not knowingly accept for
B-3
deposit under the Depositary Trust Agreement any Securities required to be
registered under the provisions of the Securities Act of 1933, as amended, for
the public offer and sale thereof in the United States unless a registration
statement is in effect as to such Securities for such offer and sale.
(4) RECONSTITUTION EVENTS.
(a) If any class of Securities ceases to be outstanding as a result of a
merger, consolidation or other corporate combination of the Securities Issuer
and, as a result, securities which are not Underlying Securities or Additional
Securities are received by the Trustee in exchange for, in conversion of or in
respect of the Underlying Securities, and Section 4.8 of the Standard Terms does
not apply, the Trustee shall, to the extent lawful and feasible and subject to
Section 4.10 of the Standard Terms, distribute any securities which shall be
received by the Trustee to the Owners in proportion to their Ownership of
Receipts. Effective on the date that such Securities cease to be outstanding,
such class of Securities shall cease to be part of the securities which must be
deposited for issuance of Receipts.
(b) If any class of Securities is delisted from trading on its primary
exchange or market and is not listed for trading on another national securities
exchange or through the NASDAQ National Market System within five business days
from the date of such delisting, 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 class to the Owners in proportion to their
Ownership of Receipts. Effective on the date of such distribution, such class of
Securities shall cease to be a part of the securities which must be deposited
for issuance of Receipts.
(c) In the event that any Securities Issuer no longer has a class of
common stock registered under section 12 of the Securities Exchange Act of 1934,
as amended, the Trustee shall, to the extent lawful and feasible and subject to
Section 4.10 of the Standard Terms, distribute the Underlying Securities of such
Securities Issuer to the Owners in proportion to their Ownership of Receipts.
Effective on the date of such distribution, such class of Securities shall cease
to be part of the securities which must be deposited for issuance of Receipts.
(d) If the Commission determines that a Securities Issuer is an investment
company under the Investment Company Act of 1940, and the Trustee has actual
knowledge of such Commission determination, then the Trustee shall, to the
extent lawful and feasible and subject to Section 4.10 of the Standard Terms,
distribute the Underlying Securities of such Securities Issuer to the Owners in
proportion to their Ownership of Receipts. Effective on the date of such
distribution, such class of Securities shall cease to be part of the securities
which must be deposited for issuance of Receipts.
(5) LIABILITY OF OWNER FOR TAXES.
If any tax or other governmental charge shall become payable with respect
to any Receipts or any Underlying Securities represented thereby, such tax or
other governmental charge shall be payable by the Owner hereof to the Trustee.
The Trustee shall refuse to effect any registration of transfer of such Receipts
or any withdrawal of Underlying Securities represented by such Receipt until
such payment is made, and may withhold any dividends or
B-4
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 and the
Owner hereof shall remain liable for any deficiency.
(6) WARRANTIES ON DEPOSIT OF SECURITIES.
Every Person depositing Securities under the Depositary Trust Agreement
shall be deemed thereby to represent and warrant that such Receipts and each
certificate therefor are validly issued and fully paid, that the person making
such deposit is duly authorized to do so and that at the time of delivery, such
Securities are free and clear of any lien, pledge, encumbrance, right, charge or
claim (other than the rights created by the Depositary Trust Agreement). Every
such person shall also be deemed to represent that such Securities are not, and
Receipts representing such Securities would not be, Restricted Securities. Such
representations and warranties shall survive the deposit of Securities, issuance
of Receipts or termination of the Depositary Trust Agreement.
(7) FILING PROOFS, CERTIFICATES AND OTHER INFORMATION.
Any person presenting Securities for deposit or any Owner of a Receipt may
be required from time to time to file with the Trustee such proof of citizenship
or residence, exchange control approval, or such information relating to the
registration on the books of any Securities Issuer or Securities Registrar, if
applicable, to execute such certificates and to make such representations and
warranties, as the Trustee may require. The Trustee may withhold the Delivery or
registration of transfer of any Receipts or the delivery of any Underlying
Securities until such proof or other information is filed or such certificates
are executed or such representations and warranties made.
(8) CHARGES OF TRUSTEE.
The following charges shall be incurred by any party depositing or
withdrawing Securities or by any party Surrendering Receipts or to whom Receipts
are Delivered or any Owner, as applicable: (1) taxes and charges and other fees
payable in respect of the Underlying Securities assessed by third-party
custodians, depositories, transfer agents, and other service providers in the
ordinary course of their respective businesses (whether in connection with the
deposit of Securities or withdrawal of Underlying Securities or otherwise), (2)
a fee of $10 or less per 100 Receipts for the execution and Delivery of Receipts
pursuant to Section 2.5 of the Standard Terms, and the Surrender of Receipts
pursuant to Section 2.7 Standard Terms, and (3) a fee which shall accrue on the
first day of each calendar quarter at a rate of $.02 or less per Receipt per
quarter for the Trustee's services as such under the Depositary Trust Agreement
(which fee shall be assessed against Owners of record as of the date or dates
set by the Trustee in accordance with Section 4.5 of the Standard Terms and
shall be collected at the Trustee's discretion by deducting such fee from one or
more cash dividends or other cash distributions); provided, however, that with
respect to the aggregate fee accrued in any calendar year under this clause (3)
with respect to each Receipt, the Trustee will waive that portion which exceeds
the total cash dividends and other cash distributions the record date for which
falls in such calendar year and payable with respect to such Receipt.
B-5
(9) TITLE TO RECEIPTS.
It is a condition of the Receipts, and every successive Owner of the
Receipts by accepting or holding a certificate for Receipts consents and agrees,
that title to such certificate (and the Receipts evidenced thereby), when
properly endorsed or accompanied by proper instruments of transfer, is
transferable by delivery with the same effect as in the case of a negotiable
instrument under the laws of New York; provided, however, that the Trustee,
notwithstanding any notice to the contrary, may treat the person in whose name
Receipts are registered on the books of the Trustee as the absolute Owner
thereof for the purpose of determining the person entitled to distribution or
dividends or other distributions or to any notice provided for in the Depositary
Trust Agreement and for all other purposes.
(10) VALIDITY OF RECEIPTS.
Receipts shall not be entitled to any benefits under the Depositary Trust
Agreement or be valid or obligatory for any purpose, unless a certificate
evidencing such Receipts shall have been executed by the Trustee by the manual
or facsimile signature of a duly authorized signatory of the Trustee and, if a
Registrar for the Receipts shall have been appointed, countersigned by the
manual or facsimile signature of a duly authorized officer of the Registrar.
(11) REPORTS; INSPECTION OF TRANSFER BOOKS.
The issuer of each class of Securities is subject to the periodic
reporting requirements of the Securities Exchange Act of 1934 and, accordingly,
files certain reports with the Securities and Exchange Commission (herein called
the "Commission"). Such reports will be available for inspection and copying at
the public reference facilities maintained by the Commission located at 000
Xxxxx Xxxxxx, XX, Xxxxxxxxxx, XX 00000.
The Trustee shall, to the extent lawful, forward to Owners, any reports
and communications, including any proxy statement or other soliciting material,
received from a Securities Issuer which are received by the Trustee as the
holder of the Underlying Securities, unless such reports and communications have
been forwarded directly to Owners by such Securities Issuer.
The Trustee shall keep books for the registration of Receipts and
transfers of Receipts which at all reasonable times shall be open for inspection
by the Owners.
(12) DIVIDENDS AND DISTRIBUTIONS.
Whenever the Trustee shall receive any cash dividend or other cash
distribution on any Underlying Securities, the Trustee shall, subject to the
Depositary Trust Agreement, distribute the amount thus received (net of the fees
of the Trustee as provided in the Depositary Trust Agreement, if applicable) to
the Owners of Receipts entitled thereto; provided, however, that in the event
that the respective Securities Issuer or the 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.
B-6
In the event that a Securities Issuer provides holders of any Underlying
Securities with an option to receive either cash, securities or any other
distribution, the Trustee shall not respond to the Securities Issuer and shall
accept the default option provided by the Securities Issuer regardless of
whether it is cash or securities or any other distribution.
Subject to the provisions of Sections 4.8 and 5.6 of the Standard Terms,
whenever the Trustee shall receive any distribution other than a distribution
described in Sections 4.1, 4.3 or 4.4 of the Standard Terms or a distribution
which would otherwise be distributed under the Depositary Trust Agreement except
that the Trustee deems such distribution not to be lawful and feasible, the
Trustee shall, subject to Section 4.10 of the Standard Terms, cause the
securities or property received by it to be distributed to the Owners of
Receipts entitled thereto, in any manner that the Trustee may deem equitable and
practicable for accomplishing such distribution; provided, however, that if in
the opinion of the Trustee such distribution cannot be made proportionately
among the Owners entitled thereto, or if for any other reason (including, but
not limited to, any requirement that a Securities Issuer or the Trustee withhold
an amount on account of taxes or other governmental charges or that such
securities must be registered under the Securities Act of 1933, as amended, in
order to be distributed to Owners) the Trustee, after consultation with the
Initial Depositor, deems such distribution not to be feasible, the Trustee may
adopt, with the Initial Depositor's approval, which approval shall not be
unreasonably withheld, such method as it deems equitable and practicable for the
purpose of effecting such distribution such that each Owner receives
substantially identical property (less any applicable taxes), 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 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 Receipts and (ii) the number of Receipts in an Issuance Denomination
may be increased or decreased by the Trustee to the lowest multiple of 100
Receipts such that no fractional shares are thereby represented in such Issuance
Denomination.
In the event that the Trustee determines that any distribution in property
(including Securities and rights to subscribe therefor) is subject to any tax or
other charge which the Trustee is obligated to withhold, notwithstanding
anything to the contrary in the Standard Terms or the applicable Depositary
Trust Agreement, the Trustee may by public or private sale dispose of all or a
portion of such property (including Securities and rights to subscribe therefor)
in such amounts and in such manner as the Trustee deems necessary and
practicable to pay any such taxes or charges and the Trustee shall distribute
the net proceeds or any such sale after deduction of such taxes or charges to
the Owners entitled thereto.
B-7
(13) RIGHTS OFFERINGS.
(a) If a Securities Issuer offers or causes to be offered to the holders
of any Underlying Securities any rights to subscribe for additional Securities
or other securities, the Trustee shall have discretion in accordance with
Section 4.4 of the Standard Terms as to the procedure to be followed in making
such rights available to any Owners or in disposing of such rights on behalf of
Owners and making the net proceeds available to Owners or, if by the terms of
such rights offering or for any other reason (including the absence of an
effective registration statement covering the distribution of securities
underlying the rights), the Depositary may not make such rights available to any
Owners or dispose of such rights and make the net proceeds available to Owners,
then the Trustee shall allow the rights to lapse.
(b) The Trustee will not offer rights to Owners unless both the rights and
the securities to which such rights relate are either exempt from registration
under the Securities Act of 1933, as amended, with respect to a distribution to
all Owners or are registered under the provisions of such act.
(c) The Trustee shall not be responsible for any failure to determine that
it may be lawful or feasible to make such rights available to Owners in general
or any Owner in particular.
(14) RECORD DATES.
Whenever any cash dividend or other cash distribution shall become payable
or any distribution other than cash shall be made, or whenever the Trustee
receives notice of a meeting of or solicitation of proxies from holders of any
Underlying Securities, or whenever a fee shall be changed by the Trustee under
Section 5.6 of the Standard Terms, or whenever for any reason there is a
reconstitution or other event under the Depositary Trust Agreement that causes a
change in the composition of the Securities which must be deposited for issuance
of Receipts, or whenever the Trustee shall find it necessary or convenient in
respect of any matter, the Trustee shall fix a record date (a) for the
determination of the Owners who shall be (i) entitled to receive such dividend,
distribution or rights or the net proceeds of the sale thereof or (ii) entitled
to give instructions for the exercise of voting rights at any such meeting or
solicitation, or (iii) required to pay such fee, or (b) on or after which each
Receipt will represent such changed group of Securities, subject to the
provisions of the Depositary Trust Agreement. In the case of subsections (a)(i)
and (a)(ii) of this Article (14), the Trustee shall use its best efforts to fix
a record date that will coincide with the record date fixed by the issuer of the
Underlying Securities; however, if a coinciding record date is not practicable,
the Trustee shall fix a record date as near as is practicable to 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 shall, to the extent lawful, mail to the Owners a notice which shall
contain (a) such information as is contained in such notice of meeting or
solicitation, (b) a statement that the Owners of Receipts as of the close of
business on a specified record date will be entitled, subject to applicable law
and the provisions of the corporate documents of the Securities Issuer, to
instruct the Trustee as to the
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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,
insofar as practicable, vote or cause to be voted, or to give a proxy, as
applicable, in respect of the amount of Underlying Securities represented by
such Receipt in accordance with the instructions set forth in such request. The
Trustee shall not vote or attempt to exercise the right to vote that attaches
to, or give a proxy with respect to, Underlying Securities other than in
accordance with such instructions.
(16) CHANGES AFFECTING UNDERLYING SECURITIES.
(a) In circumstances where the provisions of Sections 2.11, 4.2 and 4.3 of
the Standard Terms do not apply, upon any change in nominal value, change in par
value, split-up, consolidation or any other reclassification of any Underlying
Securities, or upon any recapitalization, reorganization, merger or
consolidation or sale of assets affecting the issuer of any Underlying Security,
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, the (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 Receipts and (ii) the number of Receipts in an Issuance Denomination
may be increased or decreased by the Trustee to the lowest multiple of 100
Receipts such that no fractional shares are thereby represented in such Issuance
Denomination.
(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 act of God or war or other circumstances beyond its control, the Initial
Depositor or the Trustee shall be prevented or forbidden from, or be subject to
any civil or criminal penalty on account of, doing or performing any act or
thing which by the terms of the Standard Terms or the applicable Depositary
Trust Agreement it is provided shall be done or performed; nor shall the Initial
Depositor or the Trustee incur any liability to any Owner or Beneficial Owner of
any Receipt by reason of any non-performance or delay, caused as aforesaid, in
the performance of any act or thing which by the terms of the Standard Terms or
the applicable Depositary Trust Agreement it is provided shall or may be done or
performed, or by
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reason of any exercise of, or failure to exercise, any discretion provided for
in the Standard Terms or the applicable Depositary Trust Agreement. Where, by
the terms of an offering or distribution to which Sections 2.11, 4.2 or 4.4 of
the Standard Terms applies, or for any other reason, it is not lawful and
feasible to make such distribution or offering available to Owners, and the
Trustee may not dispose of such distribution or offering on behalf of such
Owners and make the net proceeds available to such Owners, then the Trustee
shall not make such distribution or offering available to Owners and shall allow
any rights, if applicable, to lapse. The Trustee shall not be subject to any
liability with respect to the validity or worth of the Underlying Securities.
Neither the Initial Depositor nor the Trustee shall be under any obligation to
prosecute any action, suit or other proceeding in respect of any Underlying
Securities or in respect of the Receipts. Neither the Initial Depositor nor the
Trustee shall be liable for any action or non-action by it in reliance upon the
advice of or information from legal counsel, accountants, any person presenting
Securities for deposit, any Owner or Beneficial Owner, or any other person
believed by it in good faith to be competent to give such advice or information.
The Trustee shall not be liable for any acts or omissions made by a
successor depositary whether in connection with a previous act or omission of
the Trustee or in connection with any matter arising wholly after the
resignation of the Trustee, provided that in connection with the issue out of
which such potential liability arises the Trustee performed its obligations
without negligence or bad faith while it acted as Trustee. The Trustee shall not
be responsible for any failure to carry out any instructions to vote any of the
Underlying Securities, or for the manner in which any such vote is cast or the
effect of any such vote, provided that any such action or non-action is without
negligence or bad faith. Except as specifically provided in Section 4.6 of the
Standard Terms, the Trustee shall have no obligation to monitor or to obtain any
information concerning the business or affairs of any Securities Issuer or to
advise Owners or Beneficial Owners of any event or condition affecting any
Securities Issuer. The Trustee shall have no obligation to comply with any
direction or instruction from any Owner or Beneficial Owner regarding Receipts
except to the extent specifically provided in the Standard Terms or any
applicable Depositary Trust Agreement. The Trustee shall 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 of 1933, as amended, is intended by any
provision of the Depositary Trust Agreement.
(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.
(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
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notice delivered to the Trustee, and such removal shall take effect upon the
appointment of the successor Trustee and its acceptance of such appointment.
(c) In case at any time the Trustee acting hereunder shall resign or be
removed, the Initial Depositor, acting on behalf of the Owners, shall use its
reasonable efforts to appoint a successor Trustee, which shall be a bank or
trust company having an office in the Borough of Manhattan, The City of New
York.
(19) AMENDMENT.
The Trustee and the Initial Depositor may amend any provisions of the
Depositary Trust Agreement without the consent of any Owner, provided that the
Trustee or the Initial Depositor is provided with an opinion of counsel to the
effect that such amendment will not affect the trust's status as a grantor trust
or custodial arrangement for U.S. federal income tax purposes. 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) EARLY TERMINATION OF DEPOSITARY TRUST AGREEMENT.
(a) The Trust shall terminate by the Trustee mailing notice of such
termination to the Owners of all Receipts then outstanding at least 30 days
prior to the date set for termination if any of the following occurs:
(i) The Trustee is notified that the Receipts are delisted from a national
securities exchange and are not approved for listing on another national
securities exchange within 5 business days of their delisting;
(ii) Owners of at least 75% of the outstanding Receipts notify the
Trustee that they elect to terminate the Trust; or
(iii) 60 days shall have expired after the Trustee shall have delivered to
the Initial Depositor and the Owners a written notice of its election to resign
and a successor trustee shall not have been appointed and accepted its
appointment.
(b) On and after the date of termination, the Owner of a Receipt will,
upon (a) Surrender of such Receipt at the Corporate Trust Office of the Trustee,
(b) payment of the fee of the Trustee for the Surrender of Receipts referred to
in Section 2.7 of the Standard Terms, and (c) payment of any applicable taxes or
charges, be entitled to Delivery, to him or upon his order, of the amount of
Underlying Securities evidenced by such Receipt. If any Receipts shall remain
outstanding after the date of termination, the Trustee thereafter shall
discontinue the registration of transfers of Receipts, shall suspend the
distribution of dividends or other distribution to the
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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 of the Standard Terms, any expenses for
the account of the Owner of such Receipts in accordance with the terms and
conditions of the Depositary Trust Agreement, and any applicable taxes or
charges). Upon the termination of the applicable Depositary Trust Agreement, the
Initial Depositor shall be discharged from all obligations under such Depositary
Trust Agreement except for its obligations to the Trustee under Section 5.5 of
the Standard Terms.
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