Draft of 5/18/98
EXHIBIT 2.a(ii)
AMENDED AND RESTATED
TRUST AGREEMENT
CONSTITUTING
XXXXX XXXXXX AUTOMATIC COMMON EXCHANGE SECURITY TRUST
Dated as of June __, 1998
Table of Contents
Page
ARTICLE I
DEFINITIONS
ARTICLE II
TRUST DECLARATION; PURPOSES, POWERS
AND DUTIES OF THE TRUSTEES; ADMINISTRATION
SECTION 2.1 Declaration of Trust; Purposes of the
Trust.................................................................... 6
SECTION 2.2 General Powers and Duties of the
Trustees................................................................. 6
SECTION 2.3 Portfolio Acquisition............................................................ 8
SECTION 2.4 Portfolio Administration......................................................... 9
SECTION 2.5 Manner of Sales.................................................................. 12
SECTION 2.6 Limitations on Trustees' Powers.................................................. 12
ARTICLE III
ACCOUNTS AND PAYMENTS
SECTION 3.1 The Trust Account................................................................ 13
SECTION 3.2 Payment of Fees and Expenses..................................................... 14
SECTION 3.3 Distributions to Holders......................................................... 14
SECTION 3.4 Segregation...................................................................... 14
SECTION 3.5 Temporary Investments............................................................ 14
ARTICLE IV
REDEMPTION
SECTION 4.1 Redemption....................................................................... 15
ARTICLE V
ISSUANCE OF CERTIFICATES;
REGISTRY; TRANSFER OF SECURITIES
Table of Contents
Page
SECTION 5.1 Form of Certificate.............................................................. 15
SECTION 5.2 Transfer of Securities; Issuance,
Transfer and Interchange of
Certificates............................................................. 17
SECTION 5.3 Replacement of Certificates...................................................... 18
ARTICLE VI
ISSUANCE OF THE CONTRACTS
SECTION 6.1 Execution of the Contracts....................................................... 18
ARTICLE VII
TRUSTEES
SECTION 7.1 Trustees......................................................................... 18
SECTION 7.2 Vacancies........................................................................ 19
SECTION 7.3 Powers........................................................................... 19
SECTION 7.4 Meetings......................................................................... 20
SECTION 7.5 Resignation and Removal.......................................................... 20
SECTION 7.6 Liability........................................................................ 21
SECTION 7.7 Compensation..................................................................... 21
ARTICLE VIII
MISCELLANEOUS
SECTION 8.1 Meetings of Holders.............................................................. 22
SECTION 8.2 Books and Records; Reports....................................................... 22
SECTION 8.3 Termination...................................................................... 24
SECTION 8.4 Amendment and Waiver............................................................. 25
SECTION 8.5 Accountants...................................................................... 26
SECTION 8.6 Nature of Holder's Interest...................................................... 27
SECTION 8.7 New York Law to Govern........................................................... 27
SECTION 8.8 Notices.......................................................................... 27
SECTION 8.9 Severability..................................................................... 28
SECTION 8.10 Counterparts..................................................................... 28
Table of Contents
Page
AMENDED AND RESTATED TRUST AGREEMENT
This Amended and Restated Trust Agreement, dated as of June
__, 1998 (the "Trust Agreement"), by and between Xxxxxxx Xxxxx & Co., as
sponsor (the "Sponsor"), and ________________, ________________ and
________________ as trustees (the "Trustees"), constituting Xxxxx Xxxxxx
Automatic Common Exchange Security Trust (the "Trust").
W I T N E S S E T H:
WHEREAS, the Sponsor and Xxxx X. Efron, as trustee, have
previously entered into a Declaration of Trust dated as of April 21, 1998 (the
"Original Agreement"), creating Fifth Automatic Common Exchange Security
Trust;
WHEREAS, the parties hereto desire to amend and
restate the Original Agreement in certain respects; and
WHEREAS, the Trust has previously issued to the Sponsor one
Security in consideration of the aggregate purchase price therefor of $100.00;
NOW, THEREFORE, the parties hereto agree to amend and
restate the Original Agreement as provided herein. Upon the execution and
delivery of copies hereof by the parties hereto, the Original Agreement will
be automatically amended and restated in its entirety to read as provided
herein.
ARTICLE I
DEFINITIONS
Whenever used in this Trust Agreement, the following words
and phrases shall have the meanings listed below. Any reference to any
agreement shall be a reference to such agreement as supplemented or amended
from time to time.
"Additional Purchase Price" - The Additional Purchase Price as
defined in the Contracts.
"Administration Agreement" - The Administration Agreement,
dated as of the date hereof, between the Administrator and the Trustees, and
any substitute agreement therefor entered into pursuant to Section 2.2(a)
hereof.
"Administrator" - __________________ or its successor as
permitted under Section 6.1 of the Administration Agreement or appointed
pursuant to Section 2.2(a) hereof.
"Average Market Price" - Average Market Price as defined in
the Contracts.
"Business Day" - A day on which the New York Stock Exchange,
Inc. is open for trading that is not a day on which banks in The City of New
York are authorized or obligated by law to close.
"Cash Settlement Alternative" - The Cash Settlement
Alternative as defined in certain of the Contracts.
"Certificate" - Any certificate evidencing the ownership of
Securities substantially in the form of Exhibit A hereto.
"Code" - The Internal Revenue Code of 1986, as amended from
time to time; each reference herein to any section of the Code or any regulation
thereunder shall constitute a reference to any successor provision thereto.
"Collateral Agent" - ____________________, or its successor as
permitted under the Collateral Agreements.
"Collateral Agreements" - The Collateral Agreements between
the Collateral Agent and each of the Sellers, securing the Sellers' obligations
under the Contracts, substantially in the form of Exhibit B hereto.
"Commencement Date" - The day on which the Underwriting
Agreement is executed.
"Commission" - The United States Securities and Exchange
Commission.
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"Common Stock" - Class A Common Stock, par value $.01 per
share, of the Company.
"Company" - The Xxxxx Xxxxxx Companies Inc., a Delaware
corporation.
"Contracts" - The forward purchase contracts entered into by
the Trustees with one or more existing shareholders of the Company,
substantially in the form of Exhibit C hereto.
"Custodian" - ____________________, or its successor as
permitted under paragraph 11 of the Custodian Agreement or appointed pursuant to
Section 2.2(a) hereof.
"Custodian Agreement" - The Custodian Agreement, dated as of
the date hereof, between the Custodian and the Trustees, and any substitute
agreement therefor entered into pursuant to Section 2.2(a) hereof.
"Depositary" - The Depository Trust Company, or any successor
thereto.
"Distribution Date" - Each February __, May __, August __ and
November __ of each year commencing August __, 1998, to and including June __,
2001 (or September __, 2001 if one or more of the Contracts is extended) or if
any such date is not a Business Day, then the first Business Day thereafter.
"Excess Purchase Payment" - Excess Purchase Payment as defined
under the Contracts.
"Event of Default" - An Event of Default as defined in the
Contracts.
"Exchange" - The delivery of Shares by the Trustees to the
Holders, subject to the adjustments and exceptions set forth in the Contracts
(or, to the extent one or more Sellers elect the Cash Settlement Alternative
under their respective Contracts, the amount in cash specified in
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such Contracts as payable in respect thereof), in mandatory exchange for the
Securities on the Exchange Date.
"Exchange Date" - The Exchange Date as defined in the
Contracts; provided that if the Exchange Date under one or more Contracts is
extended pursuant to the terms of such Contracts, then the "Exchange Date"
shall refer to and include both the Exchange Date under any Contracts that are
not so extended, and the Exchange Date as extended pursuant to the terms of
the other Contracts, and the provisions of this agreement (including, without
limitation, Section 2.4(e) and (f)) shall be applied successively to each such
Exchange Date.
"Exchange Rate" - The Exchange Rate as defined in the
Contracts.
"Firm Purchase Price" - The Firm Purchase Price as defined in
the Contracts.
"First Time of Delivery" - The First Time of Delivery as
defined in the Underwriting Agreement.
"Holder" - The registered owner of any Security as recorded on
the books of the Paying Agent.
"Indemnity Agreement" - The Fund Indemnity Agreement dated as
of the date hereof between the Trustees and the Sponsor substantially in the
form of Exhibit D hereto.
"Investment Company" - Investment Company as defined in
Section 3 of the Investment Company Act.
"Investment Company Act" - The Investment Company Act of 1940,
as amended from time to time; each reference herein to any section of such Act
or any rule or regulation thereunder shall constitute a reference to any
successor provision thereto.
"Managing Trustee" - The Trustee designated the Managing
Trustee by resolution of the Trustees.
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"Marketable Securities" - Marketable Securities as defined in
the Contracts.
"Original Agreement" - The meaning specified in the recitals
hereof.
"Participant" - A Person having a book-entry only system
account with the Depositary.
"Paying Agent" - ____________________, or its successor as
permitted under Section 6.6 of the Paying Agent Agreement or appointed pursuant
to Section 2.2(a) hereof.
"Paying Agent Agreement" - The Paying Agent Agreement, dated
as of the date hereof, between the Paying Agent and the Trustees, and any
substitute agreement therefor entered into pursuant to Section 2.2(a) hereof.
"Person" - An individual, a partnership, a corporation, a
trust, an unincorporated association, a joint venture or other entity or a
government or any agency or political subdivision thereof.
"Prospectus" - The prospectus relating to the Trust
constituting a part of the Registration Statement, as first filed with the
Commission pursuant to Rule 497(b) or (h) under the Securities Act, and as
subsequently amended or supplemented by the Trust.
"Quarterly Distribution" - $______ per Security paid to each
Holder on each Distribution Date.
"Record Date" - Each February __, May __, August __, and
November __ of each year commencing August __, 1998.
"Registration Statement" - Registration Statement on Form N-2
(Registration No. 333-50597) of the Trust, as amended.
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"Reorganization Event" - A Reorganization Event as defined in
the Contracts.
"Second Time of Delivery" - The Second Time of Delivery as
defined in the Underwriting Agreement.
"Securities Act" - The Securities Act of 1933, as amended from
time to time.
"Security" - $____ Trust Automatic Common Exchange Security of
the Trust evidencing a Holder's undivided interest in the Trust and right to
receive a pro rata distribution upon liquidation of the Trust Estate.
"Sellers" - The persons named as Sellers in the Contracts.
"Shares" - Shares of Common Stock to be exchanged by the
Trustees for the Securities on the Exchange Date.
"Temporary Investments" - Direct short-term U.S. government
obligations, as specified from time to time by the Trustees or through standing
instructions from the Trustees to the Administrator or the Paying Agent.
"Transfer Agent and Registrar" - ________________, as Transfer
Agent and Registrar for the Common Stock.
"Treasury Securities" - The meaning specified in Section
2.3(b) hereof.
"Trust Account" - The account created pursuant to Section 3.1
hereof.
"Trust Estate" - The Contracts and the U.S. Treasury
securities held at any time by the Trust, together with any Temporary
Investments held at any time pursuant to Section 3.5 hereof, and any proceeds
thereof or therefrom and any other moneys held at any time in the Trust Account.
"Underwriters" - The Underwriters named in the Underwriting
Agreement.
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"Underwriting Agreement" - The Underwriting Agreement as
described in the Prospectus.
ARTICLE II
TRUST DECLARATION; PURPOSES, POWERS
AND DUTIES OF THE TRUSTEES; ADMINISTRATION
SECTION 2.1 Declaration of Trust; Purposes of the Trust. The
Sponsor hereby creates the Trust in order that it may acquire the Treasury
Securities, enter into the Contracts, issue and sell to the Sponsor and the
Underwriters the Securities, receive and redeliver additional U.S. Treasury
Securities pursuant to certain of the Contracts, hold the Trust Estate in
trust for the use and benefit of all present and future Holders and otherwise
carry out the terms and conditions of this Trust Agreement, all for the
purpose of achieving the investment objectives set forth in the Prospectus.
The Trustees hereby declare that they will accept and hold the Trust Estate in
trust for the use and benefit of all present and future Holders. The Sponsor
has heretofore deposited with the Trustees the sum of $10 to accept and hold
in trust hereunder until the issuance and sale of the Securities to the
Underwriters, whereupon such sum shall be donated to an organization
satisfying the requirements of Section 170(c)(2) of the Code selected by
unanimous consent of the Trustees.
SECTION 2.2 General Powers and Duties of the Trustees. In
furtherance of the provisions of Section 2.1 hereof, the Sponsor authorizes
and directs the Trustees:
(a) to enter into and perform (and, in accordance with
Section 8.4 hereof, amend), the Contracts, the Collateral Agreements,
the Underwriting Agreement, the Indemnity Agreement, the Custodian
Agreement, the Administration Agreement and the Paying Agent
Agreement and to perform all obligations of the Trustees (including
the obligation to provide indemnity hereunder and thereunder) and
enforce all rights and remedies of the Trust under each of such
agreements; and if any of the
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Custodian Agreement, the Administration Agreement, the Collateral
Agreements and the Paying Agent Agreement terminates, or the agent of
the Trust thereunder resigns or is discharged, to appoint a
substitute agent and enter into a new agreement with such substitute
agent containing provisions substantially similar to those contained
in the agreement being terminated; provided that in any such new
agreement (i) the Custodian and the Paying Agent shall each be a
commercial bank or trust company organized and existing under the
laws of the United States of America or any state therein, shall have
full trust powers and shall have minimum capital, surplus and
retained earnings of not less than $100,000,000; and (ii) the
Administrator and the Collateral Agent shall each be a reputable
financial institution qualified in all respects to carry out its
obligations under the Administration Agreement or the Collateral
Agreements, as the case may be;
(b) to hold the Trust Estate in trust, to create and
administer the Trust Account, to direct payments received by the
Trust to the Trust Account and to make payments out of the Trust
Account as set forth in Article III hereof;
(c) to issue and sell to the Underwriters an aggregate of up
to _________ Securities (including those Securities subject to the
over-allotment option of the Underwriters provided for in the
Underwriting Agreement) pursuant to the Underwriting Agreement and as
contemplated by the Prospectus; provided, however, that subsequent to
the determination of the public offering price per Security and
related underwriting discount for the Securities to be sold to the
Underwriters but prior to the sale of the Securities to the
Underwriters, the Securities originally issued to the Sponsor shall
be split into a greater number of Securities so that immediately
following such split the value of each Security held by the Sponsor
will equal the aforesaid public offering price;
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(d) to select independent public accountants and, subject to
the provisions of Section 8.5 hereof, to engage such independent
public accountants;
(e) to engage legal counsel and, to the extent required by
Section 2.4 hereof, to engage professional advisors and pay
reasonable compensation thereto;
(f) to defend any action commenced against the Trustees or
the Trust and to prosecute any action which the Trustees deem
necessary to protect the Trust and the rights and interests of
Holders, and to pay the costs thereof;
(g) to arrange for the bonding of officers and employees of
the Trust as required by Section 17(g) of the Investment Company Act
and the rules and regulations thereunder;
(h) to delegate any and all of its powers and duties
hereunder as contemplated by the Custodian Agreement, the Paying
Agent Agreement and the Administration Agreement, to the extent
permitted by applicable law; and
(i) to adopt and amend bylaws, and take any and all such
other actions as necessary or advisable to carry out the purposes of
the Trust, subject to the provisions hereof and applicable law,
including, without limitation, the Investment Company Act.
SECTION 2.3 Portfolio Acquisition. In furtherance of the
provisions of Section 2.1 hereof, the Sponsor further specifically authorizes
and directs the Trustees:
(a) to enter into the Contracts with respect to the Shares
subject thereto with the Sellers on the Commencement Date for
settlement on the date or dates provided thereunder and, subject to
satisfaction of the conditions set forth in the Contracts, to pay the
Firm Purchase Price and the Additional Purchase Price, if any,
thereunder with the proceeds of the sale of the
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Securities, net of expenses payable in connection with the public
offering of the Securities as described in Section 3.2 hereof and net
of the purchase price paid for the Treasury Securities as provided in
paragraph (b) below; and, subject to the adjustments and exceptions
set forth in the Contracts, the Contracts shall entitle the Trust to
receive from each of the Sellers on the Exchange Date the Shares
subject thereto (or, if one or more Sellers elect the Cash Settlement
Alternative under their respective Contracts, the amount in cash
specified in such Contracts in respect thereof) so that the Trust may
execute the Exchange with the Holders; and
(b) to purchase for settlement at the First Time of
Delivery, and at the Second Time of Delivery, as appropriate, with
the proceeds of the sale of the Securities, net of expenses payable
in connection with the public offering of the Securities, U.S.
Treasury securities from such brokers or dealers as the Trustees
shall designate in writing to the Administrator having the terms set
forth on Schedule I hereto ("Treasury Securities").
SECTION 2.4 Portfolio Administration. In furtherance of the
provisions of Section 2.1 hereof, the Sponsor further specifically authorizes
and directs the Trustees:
(a) Determination of Dilution, Merger or Acceleration
Adjustments. Upon receipt of any notice pursuant to Section 5.4(b) of
the Contracts of an event requiring an adjustment to the Exchange
Rate, or upon otherwise acquiring knowledge of such an event, to
calculate the required adjustment and furnish notice thereof to the
Collateral Agent and the Sellers, or to request from the Sellers such
further information as may be necessary to calculate or effect the
required adjustment;
(b) Selection of Independent Investment Bank.
Upon receipt of notice of (i) the occurrence of a
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Reorganization Event in which property other than cash or Marketable
Securities is to be received in respect of the Common Stock as
described in Section 6.2 of the Contracts or (ii) an Excess Purchase
Payment in which the Company has paid or will pay consideration other
than cash as described in Section 6.1(d) of the Contracts, to select
and retain a nationally recognized investment banking firm to
determine the market value of such property as provided in the
Contracts, and to deliver to the Sellers notice pursuant to Section
8.1 of the Contracts identifying the firm proposed to be selected and
retained, and to consult with the Sellers on such selection and
retention as provided in such Section 8.1;
(c) Acceleration. In the event (i) an acceleration of a
Contract shall occur due to an Event of Default as provided in
Article VII of the Contracts, or (ii) a Reorganization Event shall
occur in respect of which the consideration received by holders of
Common Stock does not include Marketable Securities, as contemplated
by Section 6.2 of the Contracts, to liquidate a proportionate amount
(in the case of clause (i)) or all (in the case of clause (ii)) of
the Treasury Securities and distribute the proceeds thereof pro rata
to each of the Holders of Securities, together with any shares of
Common Stock or other amounts to be distributed to the Holders of
Securities, in each case in accordance with the Contracts and the
Collateral Agreements;
(d) Additional U.S. Treasury Securities. To accept
additional U.S. Treasury securities delivered to the Trust in
connection with an extension of the Exchange Date at certain of the
Sellers' election in accordance with Section 1.3 of their respective
Contracts, and to redeliver such U.S. Treasury securities in
connection with an acceleration of the Exchange Date at any of such
Sellers' election in accordance with Section 1.3 of their respective
Contracts;
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(e) Determination of Exchange Date Amounts. To calculate, on
the Exchange Date, the number of Shares (or, if one or more Sellers
elect the Cash Settlement Alternative under their respective
Contracts, the amount in cash) required to be delivered by each of
the Sellers under Section 1.1 of the Contracts or, if a
Reorganization Event shall have occurred, the amount of cash required
to be delivered by the Sellers, and the number of Marketable
Securities permitted to be delivered by the Sellers in lieu of all or
a portion of such cash, all as provided in Section 6.2 of the
Contracts, and to furnish notice of the amounts so determined to the
Collateral Agent and the Sellers; and
(f) Distribution of Exchange Consideration. Unless a
Reorganization Event shall have occurred (in which event distribution
of proceeds shall be governed by Section 8.3 below) or one or more
Sellers elect the Cash Settlement Alternative under their respective
Contracts (in which event the cash received in respect thereof shall
be distributed pro rata to the Holders of Securities promptly after
receipt thereof):
(i) Determination of Fractional Shares. To
determine, on the Exchange Date: (A) for each Holder of
Securities, such Holder's pro rata share of the total number
of Shares delivered to the Trustees under the Contracts on
the Exchange Date; and (B) the number of fractional Shares
allocable to each Holder (including, in the case of the
Depositary, fractional shares allocable to beneficial
owners of Securities who own through Participants) and in
the aggregate;
(ii) Cash for Fractional Shares. To sell, in
the principal market therefor, on the Exchange Date, a
number of Shares equal to the aggregate number of fractional
Shares determined pursuant to clause (i) (B) above, rounded
down to the nearest integral number; and to determine the
difference between (A) the aggregate proceeds of such sale
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(net of any brokerage or related expenses) and (B) the
product of the number of Shares so sold and the Average
Market Price; and, in accordance with the Indemnity
Agreement, to pay such difference, if positive, to Xxxxxxx,
Sachs & Co., or to request payment of such difference, if
negative, from Xxxxxxx, Xxxxx & Co.;
(iii) Delivery of Shares. To deliver the
remaining Shares to the Transfer Agent and Registrar on the
Exchange Date, with instructions that such Shares be
re-registered and re-issued as follows: (A) for and in the
name of each Holder (other than the Depositary) who holds
Securities in definitive form, the Transfer Agent and
Registrar shall be instructed to issue definitive
certificates representing a number of Shares equal to such
Holder's pro rata share of the total delivered to the
Trustees under the Contracts, rounded down to the nearest
integral number; (B) the Transfer Agent and Registrar shall
be instructed to transfer all remaining Shares to the
account of the Custodian held through the Depositary, who
shall then be instructed to transfer and credit such Shares
to each Participant who holds Securities, with each
Participant receiving its pro rata share of the total Shares
delivered to the Trust on the Exchange Date, reduced by the
aggregate fractional shares allocable to such Participant;
(iv) Distribution of Cash in Respect of
Fractional Shares. To distribute to each Holder of
Securities cash in the amount of: (A) the fraction of a
Share, if any, allocable to such Holder as determined
pursuant to clause (i) (B) above; times (B) the Average
Market Price;
(v) Distribution of Cash Received upon
Acceleration of Exchange Date. If the Exchange Date shall
have been accelerated pursuant to Section 1.3 of the
Contracts, to distribute to
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each Holder its pro rata share of any cash
received by the Trust from Sellers in connection
therewith; and
(vi) Record Date. The distributions described
in this paragraph (f) shall be made to Holders of record as
of the close of business on the Business Day preceding the
Exchange Date.
SECTION 2.5 Manner of Sales. Any sale of Trust property
permitted under Section 8.3(c) hereof shall be made through such executing
brokers or to such dealers as the Trustees, seeking best price and execution
for the Trust, shall designate in writing to the Paying Agent, taking into
account such factors as price, commission, size of order, difficulty of
execution and brokerage skill required.
SECTION 2.6 Limitations on Trustees' Powers. The Trustees
are not permitted:
(a) to purchase or hold any securities or instruments except
for the Shares, the Contracts, the Treasury Securities, any
additional U.S. Treasury securities delivered to the Trust in
connection with an extension of the Exchange Date, the Temporary
Investments contemplated by Section 3.5 hereof and, in the event of
a Reorganization Event, Marketable Securities;
(b) to dispose of the Contracts prior to the Exchange Date;
(c) to issue any securities or instruments except for the
Securities, or to issue any Securities other than the Securities sold
to the Sponsor and the Securities to be sold pursuant to the
Underwriting Agreement and until such Securities have been so
purchased and paid for in full;
(d) to make short sales or purchases on margin;
(e) to write put or call options;
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(f) to borrow money;
(g) to underwrite securities;
(h) to purchase or sell real estate, commodities or
commodities contracts;
(i) to purchase restricted securities;
(j) to make loans; or
(k) to take any action, or direct or permit the
Administrator, the Paying Agent or the Custodian to take any action,
that would vary the investment of the Holders within the meaning of
Treasury Regulation Section 301.7701-4(c), or otherwise take any
action or direct or permit any action to be taken that would or could
cause the Trust not to be a "grantor trust" under the Code.
ARTICLE III
ACCOUNTS AND PAYMENTS
SECTION 3.1 The Trust Account. The Trustees shall, upon
issuance of the Securities, establish with the Paying Agent an account to be
called the "Trust Account". All moneys received by the Trustees in respect of
the Contracts, the Treasury Securities, any other U.S. Treasury securities
delivered to the Trust and any Temporary Investments held pursuant to Section
3.5 hereof, all moneys received from the sale of the Securities to the
Sponsor, and any proceeds from the sale to the Underwriters of the Securities
after the purchase of the Contracts and the Treasury Securities and the
payment of the Trust's expenses described in Section 3.2 hereof shall be
credited to the Trust Account.
SECTION 3.2 Payment of Fees and Expenses. If so directed by
the Sellers, the Administrator is authorized to pay, from the amounts payable
to the Sellers pursuant to the
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Contracts, the fees and expenses of the Trust incurred in connection with the
offering of the Securities and the costs and expenses incurred in the
organization of the Trust.
SECTION 3.3 Distributions to Holders. On or shortly after
each Distribution Date the Trustees shall distribute to each Holder of record
at the close of business on the preceding Record Date, at the post office
address of the Holder appearing on the books of the Trust or Paying Agent or
by any other means mutually agreed upon by the Holder and the Trustees, an
amount equal to such Holder's pro rata share of the Quarterly Distribution
computed as of the close of business on such Distribution Date.
SECTION 3.4 Segregation. All moneys and other assets
deposited or received by the Trustees hereunder shall be held by them in trust
as part of the Trust Estate until required to be disbursed or otherwise
disposed of in accordance with the provisions of this Trust Agreement, and the
Trustees shall handle such moneys and other assets in such manner as shall
constitute the segregation and holding in trust within the meaning of the
Investment Company Act.
SECTION 3.5 Temporary Investments. To the extent necessary
to enable the Paying Agent to make the next succeeding Quarterly Distribution,
any moneys deposited with or received by the Trustees in the Trust Account
shall be invested as soon as possible by the Paying Agent in Temporary
Investments maturing no later than the Business Day preceding the next
following Distribution Date. Except as otherwise specifically provided herein
or in the Paying Agent Agreement, the Paying Agent shall not have the power to
sell, transfer or otherwise dispose of any Temporary Investment prior to the
maturity thereof, or to acquire additional Temporary Investments. The Paying
Agent shall hold any Temporary Investments to its maturity and shall apply the
proceeds thereof upon maturity to the payment of the next succeeding Quarterly
Distribution. All such Temporary Investments shall be selected from time to
time by the Trustees or pursuant to standing instructions from the Trustees to
the Administrator, and the Administrator and/or Paying Agent shall have no
liability to the Trust or any
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Holder or any other Person with respect to any such Temporary Investment. Any
interest or other income received on any moneys in the Trust Account shall,
upon receipt thereof, be deposited into the Trust Account. Notwithstanding the
foregoing, not more than 5% of the assets of the Trust may be held at any time
in the form of cash and Temporary Investments, and the Trustees shall
distribute cash, or liquidate Temporary Investments and distribute the
proceeds thereof, if, when and to the extent needed to maintain compliance
with the foregoing restriction.
ARTICLE IV
REDEMPTION
SECTION 4.1 Redemption. The Trustees shall have no right or
obligation to redeem Securities.
ARTICLE V
ISSUANCE OF CERTIFICATES; REGISTRY; TRANSFER OF SECURITIES
SECTION 5.1 Form of Certificate. Each Certificate
evidencing Securities shall be countersigned manually or in facsimile by the
Managing Trustee and executed manually by the Paying Agent in substantially
the form of Exhibit A hereto with the blanks appropriately filled in, shall be
dated the date of execution and delivery by the Paying Agent and shall
represent a fractional undivided interest in the Trust, the numerator of which
fraction shall be the number of Securities set forth on the face of such
Certificate and the denominator of which shall be the total number of
Securities outstanding at that time. All Securities shall be issued in
registered form and shall be numbered serially.
The Certificates delivered to the Underwriters at the First
Time of Delivery and the Second Time of Delivery (if any) will be issued in
the form of a global Certificate
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or Certificates representing the Securities issued to the Underwriters, to be
delivered to The Depository Trust Company, as depositary ("DTC"), by or on
behalf of the Trust. Such Certificate or Certificates shall initially be
registered on the books and records of the Trust in the name of Cede & Co.,
the nominee of DTC, and no beneficial owner of such Securities will receive a
definitive Certificate representing such beneficial owner's interest in such
Securities, except as provided in the next paragraph. Unless and until
definitive, fully registered Certificates have been issued pursuant to the
next paragraph, the Trust shall be entitled to deal with DTC for all purposes
of this Agreement as the Holder and the sole holder of the Certificates and
shall have no obligation to the beneficial owners thereof, and none of the
Trust, the Trustees, or any agent of the Trust or the Trustees shall have any
liability with respect to or responsibility for the records of DTC.
If DTC elects to discontinue its services as securities
depository, then definitive Certificates shall be prepared by the Trust. Upon
surrender of the global Certificate or Certificates accompanied by
registration instructions, the Trustees shall cause definitive Certificates to
be delivered to the beneficial owners in accordance with the instructions of
DTC. Neither the Trustees nor the Trust shall be liable for any delay in
delivery of such instructions and may conclusively rely on, and shall be
protected in relying on, such instructions.
Pending the preparation of definitive Certificates, the
Trustees may execute and the Paying Agent shall authenticate and deliver
temporary Certificates (printed, lithographed, typewritten or otherwise
reproduced, in each case in form satisfactory to the Paying Agent). Temporary
Certificates shall be issuable as registered Certificates substantially in the
form of the definitive Certificates but with such omissions, insertions and
variations as may be appropriate for temporary Certificates, all as may be
determined by the Trustees with the concurrence of the Paying Agent. Every
temporary Certificate shall be executed by the Managing Trustee and be
authenticated by the Paying Agent upon the same conditions
-18-
and in substantially the same manner, and with like effect, as the definitive
Certificates. Without unreasonable delay the Managing Trustee shall execute
and shall furnish definitive Certificates and thereupon temporary Certificates
may be surrendered in exchange therefor without charge at each office or
agency of the Paying Agent and the Paying Agent shall authenticate and deliver
in exchange for such temporary Certificates definitive Certificates for a like
aggregate number of Securities. Until so exchanged, the temporary Certificates
shall be entitled to the same benefits hereunder as definitive Certificates.
SECTION 5.2 Transfer of Securities; Issuance, Transfer and
Interchange of Certificates. Securities may be transferred by the Holder
thereof by presentation and surrender of properly endorsed Certificates at the
office of the Paying Agent, accompanied by such documents executed by the
Holder or his authorized attorney as the Paying Agent deems necessary to
evidence the authority of the person making the transfer. Certificates issued
pursuant to this Trust Agreement are interchangeable for one or more other
Certificates in an equal aggregate number of Securities and all Certificates
issued as may be requested by the Holder and deemed appropriate by the Paying
Agent shall be issued in denominations of one Security or any multiple
thereof. The Paying Agent may deem and treat the person in whose name any
Security shall be registered upon the books of the Paying Agent as the owner
of such Security for all purposes hereunder and the Paying Agent shall not be
affected by any notice to the contrary. The transfer books maintained by the
Paying Agent for the purposes of this Section 5.2 hereof shall include the
name and address of the record owners of the Securities and shall be closed in
connection with the termination of the Trust pursuant to Section 8.3 hereof.
A sum sufficient to cover any tax or other governmental
charge that may be imposed in connection with any such transfer shall be paid
to the Paying Agent by the Holder. A Holder may be required to pay a fee for
each new Certificate to be issued pursuant to the preceding paragraph in such
amount as may be specified by the Paying Agent and approved by the Trustees.
-19-
All Certificates cancelled pursuant to this Trust Agreement
may be voided by the Paying Agent in accordance with the usual practice of the
Paying Agent or in accordance with the instructions of the Trustees; provided,
however, that the Paying Agent shall not be required to destroy cancelled
Certificates.
The Paying Agent may adopt other reasonable rules and
regulations for the registration, transfer and tender of Securities as it may,
in its discretion, deem necessary.
SECTION 5.3 Replacement of Certificates. In case any
Certificate shall become mutilated or be destroyed, stolen or lost, the Paying
Agent shall execute and deliver a new Certificate in exchange and substitution
therefor upon the Holder's furnishing the Paying Agent with proper identi-
fication and satisfactory indemnity, complying with such other reasonable
regulations and conditions as the Paying Agent may prescribe and paying such
expenses and charges, including any bonding fee, as the Paying Agent may incur
or reasonably impose; provided that if the Trust has terminated or is in the
process of terminating, the Paying Agent, in lieu of issuing such new
Certificate, may, upon the terms and conditions set forth herein, make the
distributions set forth in Section 8.3(c) hereof. Any mutilated Certificate
shall be duly surrendered and cancelled before any duplicate Certificate shall
be issued in exchange and substitution therefor. Upon issuance of any
duplicate Certificate pur suant to this Section 5.3 hereof, the original
Certificate claimed to have been lost, stolen or destroyed shall become null
and void and of no effect, and any bona fide purchaser thereof shall have only
such rights as are afforded under Article 8 of the Uniform Commercial Code to
a Holder presenting a Certificate for transfer in the case of an overissue.
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ARTICLE VI
ISSUANCE OF THE CONTRACTS
SECTION 6.1 Execution of the Contracts. The Contracts shall
be countersigned manually or in facsimile by the Managing Trustee and executed
manually by each of the Sellers and shall be dated the date of execution and
delivery by each of the Sellers.
ARTICLE VII
TRUSTEES
SECTION 7.1 Trustees. The Trust shall have three Trustees who
shall initially be elected by the Sponsor. One Trustee shall be the Managing
Trustee and, as such, is authorized to execute documents and instruments on
behalf of the Trust. The Managing Trustee will be appointed by resolution of the
Trustees. Each Trustee shall serve until the next regular annual or special
meeting of Holders called for the purpose of electing Trustees and, then, until
such Trustee's successor is duly elected and qualified. Holders may not cumulate
their votes in the election of Trustees. Each Trustee shall not be considered to
have qualified for the office unless such Trustee shall agree to be bound by the
terms of this Trust Agreement and shall evidence his consent by executing this
Trust Agreement or a supplement hereto.
SECTION 7.2 Vacancies. Any vacancy in the office of a
Trustee may be filled in compliance with Sections 10 and 16 of the Investment
Company Act by the vote, within thirty days, of the remaining Trustees;
provided that if required by Section 16 of the Investment Company Act, the
Trustees shall forthwith cause to be held as promptly as possible and in any
event within sixty days (unless the Commission by order shall extend such
period) a meeting of Holders for the purpose of electing Trustees in
compliance with Sections 10 and 16 of the Investment Company Act. Until a
vacancy in the office of any Trustee is filled as
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provided above, the remaining Trustees in office, regardless of their number,
shall have the powers granted to the Trustees and shall discharge all the
duties imposed upon the Trustees by this Trust Agreement. Election shall be by
the affirmative vote of Holders of a majority of the Securities entitled to
vote present in person or by proxy at a special meeting of Holders called for
the purpose of electing any Trustee. Each individual Trustee shall be at least
21 years of age and shall not be under any legal disability. No Trustee who is
an "interested person", as defined in the Investment Company Act, may assume
office if it would cause the composition of the Trustees of the Trust not to
be in compliance with the percentage limitations on interested persons in
Section 10 of the Investment Company Act. Trustees need not be Holders. Notice
of the appointment or election of a successor Trustee shall be mailed promptly
after acceptance of such appointment by the successor Trustee to each Holder.
SECTION 7.3 Powers. The Trust will be managed solely by the
Trustees, who will, subject to the provisions of Article II hereof, have
complete and exclusive control over the management, conduct and operation of
the Trust's business, and shall have the rights, powers and authority of a
board of directors of a corporation organized under New York law. The Trustees
shall have fiduciary responsibility for the safekeeping and use of all funds
and assets of the Trust and shall not employ, or permit another to employ,
such funds or assets in any manner except for the exclusive benefit of the
Trust and except in accordance with the terms of this Trust Agreement. Subject
to the continuing supervision of the Trustees and as permitted by applicable
law, the functions of the Trust shall be performed by the Custodian, the
Paying Agent, the Administrator and such other entities engaged to perform
such functions as the Trustees may determine, including, without limitation,
any or all administrative functions.
SECTION 7.4 Meetings. Meetings of the Trustees shall be held
from time to time upon the call of any Trustee on not less than 48 hours'
notice (which may be waived by any or all of the Trustees in writing either
before or after
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such meeting or by attendance at the meeting unless the Trustee attends the
meeting for the express purpose of objecting to the transaction of any
business on the ground that the meeting has not been lawfully called or
convened). The Trustees shall act either by majority vote of the Trustees
present at a meeting at which at least a majority of the Trustees then in
office are present or by a unanimous written consent of the Trustees without a
meeting. Except as otherwise required under the Investment Company Act, all or
any of the Trustees may participate in a meeting of the Trustees by means of a
conference telephone call or similar communications equipment by means of
which all persons participating in the meeting can hear each other, and
participation in a meeting pursuant to such communications equipment shall
constitute presence in person at such meeting.
SECTION 7.5 Resignation and Removal. Any Trustee may resign
and be discharged of the trust created by the Trust Agreement by executing an
instrument in writing resigning as Trustee, filing the same with the
Administrator and sending notice thereof to the remaining Trustees, and such
resignation shall become effective immediately unless otherwise specified
therein. Any Trustee may be removed in the event of incapacity by vote of the
remaining Trustees and for any reason by written declaration or vote of the
Holders of more than 66 2/3% of the outstanding Securities, notice of which
vote shall be given to the remaining Trustees and the Administrator. The
resignation, removal or failure to reelect any Trustee shall not cause the
termination of the Trust.
SECTION 7.6 Liability. The Trustees shall not be liable to
the Trust or any Holder for any action taken or for refraining from taking any
action except in the case of willful misfeasance, bad faith, gross negligence
or reckless disregard of the duties of their office. Specifically, without
limitation, the Trustees shall not be responsible for or in respect of the
recitals herein or the validity or sufficiency of this Trust Agreement or for
the due execution hereof by any other Person, or for or in respect of the
validity or sufficiency of Securities or certificates repre-
-23-
senting Securities and shall in no event assume or incur any liability, duty or
obligation to any Holder or to any other Person, other than as expressly
provided for herein. The Trustees may employ agents, attorneys, administrators,
accountants and auditors, and shall not be answerable for the default or
misconduct of any such Persons if such Persons shall have been selected with
reasonable care. Action in good faith may include action taken in good faith in
accordance with an opinion of counsel. In no event shall any Trustee be
personally liable for any expenses with respect to the Trust. Each Trustee shall
be indemnified from the Trust Account with respect to any claim, liability, loss
or expense incurred in acting as Trustee of the Trust, including the costs and
expenses of the defense against any such claim or liability, except in the case
of willful misfeasance, bad faith, gross negligence or reckless disregard of the
duties of his office.
SECTION 7.7 Compensation. Each Trustee, other than a Trustee
who is a director, officer or employee of the Sponsor, any Underwriter, or the
Administrator or any affiliate thereof, shall receive a one-time, up-front fee
of $______, in respect of its annual fee and anticipated out-of-pocket
expenses. In addition, the Managing Trustee shall receive an additional
one-time, up-front fee of $_____ for serving in such capacity. The Trustees
will not receive any pension or retirement benefits. In the event of the
resignation or removal of a Trustee, such Trustee shall remit to the Trust the
portion of its fee ratable for the period from the day of such resignation or
removal through the Exchange Date.
ARTICLE VIII
MISCELLANEOUS
SECTION 8.1 Meetings of Holders. The Trustees shall not hold
annual or regular meetings of Holders except as set forth herein. A special
meeting may be called at any time by the Trustees or upon petition of Holders
of not less than 51% of the Securities outstanding (unless substantially
-24-
the same matter was voted on during the preceding 12 months), and shall be
called as provided in Section 7.2 hereof (or as otherwise required by the
Investment Company Act and the rules and regulations thereunder, including,
without limitation, when requested by the Holders of not less than 10% of the
Securities outstanding for the purposes of voting upon the question of the
removal of any Trustee or Trustees). The Trustees shall establish, and notify
the Holders in writing of, the record date for each such meeting which shall
be not less than 10 nor more than 50 days before the meeting date. Holders at
the close of business on the record date will be entitled to vote at the
meeting. The Administrator shall, as soon as possible after any such record
date (or prior to such record date if appropriate), mail by first class mail
to each Holder a notice of meeting and a proxy statement and form of proxy in
the form approved by the Trustees and complying with the Investment Company
Act and the rules and regulations thereunder. Except as otherwise specified
herein or in any provision of the Investment Company Act and the rules and
regulations thereunder, any action may be taken by vote of Holders of a
majority of the Securities outstanding present in person or by proxy if
Holders of a majority of Securities outstanding on the record date are so
represented. Each Security shall have one vote and may be voted in person or
by duly executed proxy. Any proxy may be revoked by notice in writing, by a
subsequently dated proxy or by voting in person at the meeting, and no proxy
shall be valid after eleven months following the date of its execution. Any
Investment Company owning Securities in excess of the limits imposed by
Sections 12(d)(1)(A)(i) and 12(d)(1)(C) of the Investment Company Act will be
required to vote its Securities in proportion to the votes of all other
Holders.
SECTION 8.2 Books and Records; Reports. (a) The Trustees
shall keep a certified copy or duplicate original of this Trust Agreement on
file at the office of the Trust and the office of the Administrator available
for inspection at all reasonable times during its usual business hours by any
Holder. The Trustees shall keep proper books of record and account for all the
transactions under this Trust Agreement at the office of the Trust and the
office of the
-25-
Administrator, and such books and records shall be open to inspection by any
Holder at all reasonable times during usual business hours. The Trustees shall
retain all books and records in compliance with Section 31 of the Investment
Company Act and the rules and regulations thereunder.
(b) With each payment to Holders the Paying Agent shall set
forth, either in the instruments by means of which payment is made or in a
separate statement, the amount being paid from the Trust Account expressed as
a dollar amount per Security and the other information required under Section
19 of the Investment Company Act and the rules and regulations thereunder. The
Trustees shall prepare and file or distrib ute reports as required by Section
30 of the Investment Company Act and the rules and regulations thereunder. The
Trustees shall prepare and file such reports as may from time to time be
required to be filed or distributed to Holders under any applicable state or
Federal statute or rule or regulation thereunder, and shall file such tax
returns as may from time to time be required under any applicable state or
Federal statute or rule or regulation thereunder. One of the Trustees shall be
designated by resolution of the Trustees to make the filings and give the
notices required by Rule 17g-1 under the Investment Company Act.
(c) In calculating the net asset value of the Trust as
required by the Investment Company Act, (i) the Treasury Securities will be
valued at the mean between the last current bid and asked prices or, if
quotations are not available, as determined in good faith by the Trustees,
(ii) short-term investments having a maturity of 60 days or less will be
valued at cost with accrued interest or dis count earned included in interest
receivable and (iii) the Contracts will be valued on the basis of the bid
price received by the Trust in respect of the Contracts, or any portion
thereof covering not less than 1000 shares, from an independent broker-dealer
firm unaffiliated with the Trust to be named by the Trustees who is in the
business of making bids on financial instruments similar to the Contracts and
with terms comparable thereto.
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SECTION 8.3 Termination. (a) This Trust Agreement and the
Trust created hereby shall terminate upon the earliest of (i) the date 90 days
after the execution of this Trust Agreement if (x) the Securities have not
theretofore been issued or (y) the net worth of the Trust is not at least
$100.00 at such time, (ii) the date of the repayment, sale or other
disposition, as the case may be, of all of the Contracts, the Treasury
Securities and any other securities held hereunder, (iii) the date 10 Business
Days after the Exchange Date (or, if the Contracts shall be accelerated
pursuant to Article VII thereof or Section 6.2 thereof, 10 Business Days after
the date on which the Trust shall receive the Shares or other consideration
then required to be delivered by each of the Sellers, or the proceeds of any
sale of collateral pursuant to Section 8(c) of the Collateral Agreements),
and (iv) the date which is 21 years less 91 days after the death of the last
survivor of all of the descendants of Xxxxxx X. Xxxxxxx living on the date
hereof. The Trust is irrevocable, the Sponsor has no right to withdraw any
assets constituting a portion of the Trust Estate, and the dissolution of the
Sponsor shall not operate to terminate the Trust. The death or incapacity of
any Holder shall not operate to terminate this Trust Agreement, nor entitle
his legal representatives or heirs to claim an accounting or to take any
action or proceeding in any court for a partition or winding up of the Trust,
and shall not otherwise affect the rights, obligations and liabilities of the
parties hereto.
(b) Written notice of any termination shall be sent to
Holders specifying the record date for any distribution to Holders and the
time of termination as determined by the Trustees, upon which the books
maintained by the Paying Agent pursuant to Section 5.2 hereof shall be closed.
(c) For purposes of termination under Sections 8.3(a)(ii),
(iii) and (iv) hereof, within five Business Days after such termination, the
Trustees shall, subject to any applicable provisions of law, effect the sale
of any remaining property of the Trust, and the Paying Agent shall distribute
pro rata as soon as practicable thereafter to each Holder, upon surrender for
cancellation of its Cer-
-27-
tificates, its interest in the Trust Estate. Together with the distribution to
the Holders, the Trustees shall furnish the Holders with a final statement as of
the date of the distribution of the amount distributable with respect to each
Security.
SECTION 8.4 Amendment and Waiver. (a) This Trust Agreement,
and any of the agreements referred to in Section 2.2(a) hereof, may be amended
from time to time by the Trustees for any purpose prior to the issuance and
sale to the Underwriters of the Securities and thereafter without the consent
of any of the Holders (i) to cure any ambiguity or to correct or supplement
any provision contained herein or therein which may be defective or
inconsistent with any other provision contained herein or therein; (ii) to
change any provision hereof or thereof as may be required by applicable law or
the Commission or any successor governmental agency exercising similar
authority; or (iii) to make such other provisions in regard to matters or
questions arising hereunder or thereunder as shall not materially adversely
affect the interests of the Holders (as determined in good faith by the
Trustees, who may rely on an opinion of counsel).
(b) This Trust Agreement may also be amended from time to
time by the Trustees (or the performance of any of the provisions of the Trust
Agreement may be waived) with the consent by the required vote of the Holders
in accordance with Section 8.1 hereof; provided that this Trust Agreement may
not be amended, without the consent by vote of the Holders of all Securities
then outstanding, (i) to increase the number of Securities issuable hereunder
above the number of Securities specified in Section 2.2(c) hereof or such
lesser number as may be outstanding at any time during the term of this Trust
Agreement, (ii) to reduce the interest in the Trust represented by Securities
without the consent of the Holders of such Securities, (iii) if such amendment
is prohibited by the Investment Company Act or other applicable law, (iv)
without the consent by vote of the Holders of all Securities then outstanding,
if such amendment would effect a change in the voting requirements set forth
in Section 8.1 hereof or this Section 8.4, or
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(v) without the consent by vote of the Holders of the lesser of (x) 67% or
more of the Securities represented at a special meeting of Holders, if more
than 50% of the Securities outstanding are represented at such meeting, and
(y) more than 50% of the Securities outstanding, if such amendment would
effect a change in Section 2.1 or 2.6 hereof.
(c) Promptly after the execution of any amendment, the
Trustees shall furnish written notification of the substance of such amendment
to each Holder.
(d) Notwithstanding subsections (a) and (b) of this Section
8.4 no amendment of this Agreement or the Agreements referred to in Section
2.2(a) hereof shall permit the Trust, the Trustees, the Administrator, the
Paying Agent or the Custodian to take any action or direct or permit any
Person to take any action that (i) would vary the investment of Holders within
the meaning of Treasury Regulation Section 301.7701-4(c), or (ii) would or
could cause the Trust, or direct or permit any action to be taken that would
or could cause the Trust, not to be a "grantor trust" under the Code.
SECTION 8.5 Accountants.
(a) The Trustees shall, in accordance with Section 30 of the
Investment Company Act, file annually with the Commission such information,
documents and reports as investment companies having securities registered on
a national securities exchange are required to file annually pursuant to
Section 13(a) of the Securities Exchange Act of 1934, as amended, and the
rules and regulations issued thereunder. The Trustees shall transmit to the
Holders, at least semi-annually, the reports required by Section 30(d) of the
Investment Company Act and the rules and regulations thereunder, including,
without limitation, a balance sheet accompanied by a statement of the
aggregate value of investments on the date of such balance sheet, a list
showing the amounts and values of such investments owned on the date of such
balance sheet, and a statement of income for the period covered by the report.
Financial statements contained in such annual reports shall be accompanied by
a certificate of
-29-
independent public accounts based upon an audit not less in scope or
procedures than that which independent public accountants would ordinarily
make for the purpose of presenting comprehensive and dependable financial
statements and shall contain such information as the Commission may prescribe.
Each such report shall state that such independent public accountants have
verified investments owned, either by actual examination or by receipt of a
certificate from the Custodian.
(b) The independent public accountants referred to in
subsection (a) above shall be selected at a meeting held within thirty days
before or after the beginning of the fiscal year by the vote, cast in person,
of a majority of the Trustees who are not "interested persons" as defined in
the Investment Company Act and such selection shall be submitted for
ratification at the first meeting of Holders to be held as set forth in
Section 8.1 hereof, and thereafter as required by the Investment Company Act
and the rules and regulations thereunder. The employment of any independent
public accountant for the Trust shall be conditioned upon the right of the
Holders by a vote of the lesser of (i) 67% or more of the Securities present
at a special meeting of Holders, if Holders of more than 50% of Securities
outstanding are present or represented by proxy at such meeting or (ii) more
than 50% of the Securities outstanding to terminate such employment at any
time without penalty.
(c) The foregoing provisions of this Section 8.5 are in
addition to any applicable requirements of the Investment Company Act and the
rules and regulations thereunder.
SECTION 8.6 Nature of Holder's Interest. Each Holder holds
at any given time a beneficial interest in the Trust Estate, but does not have
any right to take title or possession of any portion of the Trust Estate. Each
Holder expressly waives any right he may have under any rule of law, or the
provisions of any statute, or otherwise, to require the Trustees at any time to
account, in any manner other than as expressly provided in this Trust Agreement,
-30-
for the Shares, the Contracts, the Treasury Securities or other assets or
monies from time to time received, held and applied by the Trustees hereunder.
No Holder shall have any right except as provided herein to control or
determine the operation and management of the Trust or the obligations of the
parties hereto. Nothing set forth herein or in the certificates representing
Securities shall be construed to constitute the Holders from time to time as
partners or members of an association.
SECTION 8.7 New York Law to Govern. This Trust Agreement is
executed and delivered in the State of New York, and all laws or rules of
construction of the State of New York shall govern the rights of the parties
hereto and the Holders and the construction, validity and effect of the
provisions hereof.
SECTION 8.8 Notices. Any notice, demand, direction or
instruction to be given to the Sponsor hereunder shall be in writing and shall
be duly given if mailed or delivered to Xxxxxxx, Xxxxx & Co., 00 Xxxxx Xxxxxx,
Xxx Xxxx, Xxx Xxxx 00000, Attention: Registration Department, or at such other
address as shall be specified by the Sponsor to the other parties hereto in
writing. Any notice, demand, direction or instruction to be given to the Trust
and the Trustees hereunder shall be in writing and shall be duly given if
mailed or delivered to the Trust at __________________, New York, New York
_____ and to each Trustee at such Trustee's address set forth beneath its
signature below, or such other address as shall be specified to the other
parties hereto by such party in writing. Any notice to be given to a Holder
shall be duly given if mailed, first class postage prepaid, or by such other
substantially equivalent means as the Trustees may deem appropriate, or
delivered to such Holder at the address of such Holder appearing on the
registry of the Paying Agent.
SECTION 8.9 Severability. If any one or more of the
covenants, agreements, provisions or terms of this Trust Agreement shall be
for any reason whatsoever held invalid, then such covenants, agreements,
provisions or terms shall be deemed severable from the remaining covenants,
agree-
-31-
ments, provisions and terms of this Trust Agreement and shall in no way affect
the validity or enforceability of the other provisions of this Trust Agreement
or of the Certifi xxxxx, or the rights of the Holders thereof.
SECTION 8.10 Counterparts. This Trust Agreement may be
executed in counterparts, and as so executed will constitute one agreement,
binding on all of the parties hereto.
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IN WITNESS WHEREOF, the parties hereto have caused this
Trust Agreement to be duly executed.
XXXXXXX, SACHS & CO.
By:_______________________________
TRUSTEES:
----------------------------------
Name:
Address:
---------------------------------
Name:
Address:
---------------------------------
Name:
Address:
Schedule I
TREASURY SECURITIES
All terms specified are for stripped principal or interest components of
U.S. Treasury debt obligations.
FIRST TIME OF DELIVERY
PAR ZERO-COUPON STRIP RATE PRICE COST
------------ ------------------------------------- ----------- -------------------- -------------
------------ ------------------------------------- ----------- -------------------- -------------
------------ ------------------------------------- ----------- -------------------- -------------
------------ ------------------------------------- ----------- -------------------- -------------
------------ ------------------------------------- ----------- -------------------- -------------
------------ ------------------------------------- ----------- -------------------- -------------
------------ ------------------------------------- ----------- -------------------- -------------
------------ ------------------------------------- ----------- -------------------- -------------
SETTLEMENT DATE:
SECOND TIME OF DELIVERY
PAR ZERO-COUPON STRIP RATE PRICE COST
------------ ------------------------------------- ----------- -------------------- -------------
------------ ------------------------------------- ----------- -------------------- -------------
------------ ------------------------------------- ----------- -------------------- -------------
------------ ------------------------------------- ----------- -------------------- -------------
------------ ------------------------------------- ----------- -------------------- -------------
------------ ------------------------------------- ----------- -------------------- -------------
------------ ------------------------------------- ----------- -------------------- -------------
------------ ------------------------------------- ----------- -------------------- -------------
SETTLEMENT DATE:
Exhibit A
Unless this certificate is presented by an authorized representative
of The Depository Trust Company, a New York corporation ("DTC"), to
Xxxxx Xxxxxx Automatic Common Exchange Security Trust or its agent
for registration of transfer, exchange, or payment, and any
certificate issued is registered in the name of Cede & Co. (or in
such other name as is requested by an authorized representative of
DTC), ANY TRANSFER, PLEDGE, OR OTHER USE HEREOF FOR VALUE OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL inasmuch as the registered
owner hereof, Cede & Co., has an interest herein. This certificate
may be exchanged by an authorized representative of DTC in whole or
in part for securities in definitive form, registered in the names of
such holders as such representative of DTC shall specify, in which
case, a new certificate will be issued in the name of Cede & Co. (or
in such other name as is requested by such authorized representative
of DTC) representing the securities not issued in definitive form.
THIS CERTIFICATE IS ISSUED UNDER AND IS SUBJECT TO THE TERMS, PROVISIONS AND
CONDITIONS OF THE TRUST AGREEMENT REFERRED TO BELOW TO WHICH THE HOLDER OF
THIS CERTIFICATE BY VIRTUE OF THE ACCEPTANCE HEREOF ASSENTS AND IS BOUND.
$____ TRUST AUTOMATIC COMMON EXCHANGE SECURITIES
XXXXX XXXXXX AUTOMATIC COMMON EXCHANGE SECURITY TRUST
CUSIP NO. ___________
NO. ____________ ____________ SHARES
THIS CERTIFIES THAT CEDE & CO. IS THE RECORD OWNER OF ____________ $____ TRUST
AUTOMATIC COMMON EXCHANGE SECURITIES OF Xxxxx Xxxxxx AUTOMATIC COMMON EXCHANGE
SECURITY TRUST CONSTITUTING FRACTIONAL UNDIVIDED INTERESTS IN Xxxxx Xxxxxx
AUTOMATIC COMMON EXCHANGE SECURITY TRUST, A TRUST CREATED UNDER THE LAWS OF THE
STATE OF NEW YORK PURSUANT TO A TRUST AGREEMENT BETWEEN XXXXXXX, XXXXX & CO. AND
THE TRUSTEES NAMED THEREIN. THIS CERTIFICATE IS ISSUED UNDER AND IS SUBJECT TO
THE TERMS, PROVISIONS AND CONDITIONS OF THE TRUST AGREEMENT TO
WHICH THE HOLDER OF THIS CERTIFICATE BY VIRTUE OF THE ACCEPTANCE HEREOF
ASSENTS AND IS BOUND, A COPY OF WHICH TRUST AGREEMENT IS AVAILABLE AT THE
OFFICE OF THE TRUST'S ADMINISTRATOR AND PAYING AGENT, __________________, NEW
YORK, NEW YORK _____. THIS CERTIFICATE IS TRANSFERABLE AND INTERCHANGEABLE BY
THE REGISTERED OWNER IN PERSON OR BY HIS DULY AUTHORIZED ATTORNEY AT THE
OFFICE OF THE PAYING AGENT UPON SURRENDER OF THIS CERTIFICATE PROPERLY
ENDORSED OR ACCOMPANIED BY A WRITTEN INSTRUMENT OF TRANSFER AND ANY OTHER
DOCUMENTS THAT THE PAYING AGENT MAY REQUIRE FOR TRANSFER, IN FORM SATISFACTORY
TO THE PAYING AGENT AND PAYMENT OF THE FEES AND EXPENSES PROVIDED IN THE TRUST
AGREEMENT.
THIS CERTIFICATE IS NOT VALID UNLESS MANUALLY COUNTERSIGNED BY
THE PAYING AGENT.
WITNESS THE FACSIMILE SIGNATURE OF THE MANAGING TRUSTEE.
Xxxxx Xxxxxx Automatic Common
Exchange Security Trust
DATED: June __, 1998
By
------------------------------
Managing Trustee
COUNTERSIGNED:
--------------------,
as Paying Agent
By
------------------------------
Authorized Signature
-2-
