Exhibit 3.1
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North European Oil
Royalty Trust Agreement
NORTH EUROPEAN OIL COMPANY
WITH
XXXXXX X. XXXXXXX (commencing February 4, 1987)
XXXXXX X. XXXXXXXXX (commencing July 24, 1996)
XXXXXXXX X. XXXXXX (commencing November 1, 2006)
XXXXXXX X. XXXXXX (commencing September 10, 1975)
XXXXXXX X. XXXX (commencing April 25, 2001),
as Trustees
DATED: September 10, 1975
Last Amended: February 13, 2008
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NORTH EUROPEAN OIL ROYALTY TRUST
AGREEMENT OF TRUST
PAGE NO.
ARTICLE ONE TRANSFER TO THE TRUSTEES ............................ 2
1.1. Transfer to the Trustees ............................ 2
1.2. Instruments of Further Assurance .................... 3
1.3. Assumptions of Liabilities of Transferee
Liabilities ......................................... 3
1.4. Payments of Transferee Liabilities .................. 3
1.5. Acceptances of Incidental Property .................. 3
ARTICLE TWO DEFINITIONS ......................................... 3
2.1. Agreement or Agreement of Trust ..................... 3
2.2. Certificate or Certificates ......................... 3
2.3. Certificate Holder .................................. 4
2.4. Company ............................................. 4
2.5. Corporation ......................................... 4
2.6. Corporation Stockholders ............................ 4
2.7. Shareholders ........................................ 4
2.8. Trust Estate ........................................ 4
2.9. Trust Moneys ........................................ 4
2.10. Trustees ............................................ 4
2.11. Units ............................................... 4
ARTICLE THREE CERTIFICATES ........................................ 4
3.1. Issuance of Certificates ............................ 4
3.2. Rights of Certificate Holders ....................... 5
3.3. Form and Execution .................................. 5
3.4. Registration of Certificates ........................ 5
3.5. Transfer of Certificates ............................ 5
3.6. Effect of Transfer .................................. 6
3.7. Applicable Law ...................................... 6
3.8. Mutilated, Lost, Stolen and Destroyed Certificates .. 6
3.9. Ownership of Certificates by Trustees ............... 6
3.10. Issuance of Additional Certificates for Stockholders
of Corporation ...................................... 6
3.11. Issuance of Certificates for Increases in Number
of Units ............................................ 7
ARTICLE FOUR DURATION AND TERMINATION OF TRUST ................... 7
4.1. Name ................................................ 7
4.2. Duration ............................................ 8
4.3. Normal Term ......................................... 8
4.4. Earlier Termination Because of Diminished Royalties . 8
4.5. Termination by Certificate Holders .................. 8
4.6. Termination on Sales and Distribution ............... 8
4.7. Distribution on Termination ......................... 8
4.8. Continuance of Trust for Winding Up ................. 9
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PAGE NO.
ARTICLE FIVE COLLECTION AND APPLICATION OF TRUST MONEYS .......... 9
5.1. Collection of Trust Moneys .......................... 9
5.2. Payment of Expenses and Other Liabilities ........... 9
5.3. Distribution of Trust Moneys ........................ 10
5.4. Fixing of Record Dates .............................. 10
5.5. Accounts ............................................ 10
5.6. Withholding of Taxes or Charges ..................... 10
5.7. Reserves ............................................ 11
5.8. Report .............................................. 11
ARTICLE SIX PURPOSE OF TRUST AND LIMITATIONS ON TRUSTEES ........ 11
6.1. Purpose of Trust .................................... 11
6.2. Limitation on Trustees .............................. 11
6.3. General Application ................................. 11
ARTICLE SEVEN POWERS OF THE TRUSTEES .............................. 12
7.1. Generally ........................................... 12
7.2. Specific Powers Exercisable Without Further Consent . 12
7.3. Limitation of Powers ................................ 13
ARTICLE EIGHT DUTIES OF THE TRUSTEES .............................. 13
8.1. Payment of Trust Obligations ........................ 13
8.2. Books of Account .................................... 13
8.3. Approval of Accounts ................................ 13
8.4. Fiscal Year of the Trust ............................ 13
ARTICLE NINE TRUSTEES ............................................ 14
9.1. Generally ........................................... 14
9.2. Reliance by Trustees ................................ 14
9.3. Indemnification of Trustees ......................... 15
9.4. Recitals ............................................ 15
ARTICLE TEN PERSONS DEALING WITH THE TRUST OR TRUSTEES .......... 15
10.1. Reliance on Trustees' Statement as to Authority
to Act .............................................. 15
10.2. Reliance on Statement by Trustees as to Meeting of
Certificate Holders ................................. 15
10.3. Application of Money Paid or Transferred to
the Trustees ........................................ 15
10.4. Exculpation of Certificate Holders and of Trustees .. 15
10.5. Exoneration of Corporate Trustee .................... 16
ARTICLE ELEVEN COMPENSATION OF TRUSTEES ............................ 16
11.1. Compensation of Trustees ............................ 16
11.2. Extraordinary Services .............................. 16
11.3. Expenses ............................................ 16
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PAGE NO.
ARTICLE TWELVE TRUSTEES AND SUCCESSOR TRUSTEES ..................... 17
12.1. Number of Trustees .................................. 17
12.2. Action by Trustees Quorum ......................... 17
12.3. Resignation and Removal ............................. 17
12.4. Appointment of Successor ............................ 17
12.5. Successor Trustees .................................. 17
12.6. No Bond Required .................................... 18
ARTICLE THIRTEEN CERTIFICATE HOLDERS ................................. 18
13.1. Evidence of Action by Certificate Holders ........... 18
13.2. Limitation on Suits ................................. 18
13.3. Requirement of Undertaking .......................... 18
ARTICLE FOURTEEN MEETINGS OF CERTIFICATE HOLDERS ..................... 19
14.1. Meetings of Certificate Holders ..................... 19
14.2. Notices of Meeting .................................. 19
14.3. Voting .............................................. 19
14.4. Quorum .............................................. 19
14.5. Adjournments ........................................ 19
14.6. Conduct of Meeting .................................. 19
14.7. Record of Meeting ................................... 20
ARTICLE FIFTEEN AMENDMENTS .......................................... 20
15.1. Procedure to Amend .................................. 20
15.2. Certificate of Amendments ........................... 20
ARTICLE SIXTEEN MISCELLANEOUS ....................................... 20
16.1. Filing .............................................. 20
16.2. Significance of Titles Given Articles and
Selections .......................................... 20
16.3. Meaning ............................................. 20
16.4. Intention of Parties to Establish a Trust ........... 20
16.5. Laws as to Construction ............................. 20
16.6. Separability ........................................ 21
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AGREEMENT OF TRUST
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AGREEMENT OF TRUST made and entered into as of the 10th day of
September, 1975, as amended, by and between NORTH EUROPEAN OIL COMPANY, a
corporation organized and existing under the laws of the State of Delaware
(hereinafter called the "Company"), party of the first part, and Xxxx X. Xxx
Xxxx, Xxxxxx X. Xxxxxx, Xxxx X. Xxxxxx, Xx. and Xxxxxxx X. Xxxxxx as Trustees
(hereinafter sometimes called the "Trustees")(1), parties of the second part;
WHEREAS the Company has been and is now the holder of certain
contract rights to receive royalties relating to the production and sale of
petroliferous products within certain areas of the Federal Republic of
Germany, and certain other areas not now part of said Federal Republic of
Germany, as amended and modified from time to time, all as more particularly
described in Exhibit A annexed hereto and made part hereof (the "Royalty
Contracts"), and
WHEREAS the Company is also the holder of certain other assets,
claims or rights as more particularly set forth and described in Exhibit B
annexed hereto and made part hereof, and
WHEREAS the Company has not and does not now conduct any active
business activity and has been and will continue to be concerned with matters
solely relating to the receipt and distribution of monies payable from time
to time pursuant to the Royalty Contracts as described in Exhibit A, and
WHEREAS the Company and its shareholders have determined that it is
in their best interests that the Company create this trust and transfer to
the Trustees all of the Company's right, title and interest in the Royalty
Contracts and all the other assets and property hereinafter set forth to be
held in trust for the benefit of the Certificate Holders, upon the terms and
conditions herein set forth in order to preserve the Trust Estate and collect
the income therefrom for distribution to such Certificate Holders, and that
the Company wind up its affairs, distribute its other assets to its present
shareholders, subject to its liabilities existing at, or arising out of or
from any act or transaction of the Company prior to, the date of such
distribution to the extent the same are not separately provided for by the
Company and be dissolved under the laws of the State of Delaware, as
provided in the plan adopted for the complete liquidation of the Company in
such manner and in accordance with the provisions of a ruling letter from
Internal Revenue Service concerning said distribution and liquidations, and
WHEREAS the Company is the holder of certain shares of the Company
for the benefit of persons listed as shareholders of the Company, pursuant to
a decree of the Court of Chancery of the State of Delaware, dated May 1, 1957
and it is the intention of this Agreement of Trust to make provision for the
adequate protection of said beneficiaries substantially in the manner
provided in said decree by authorization for issuance of Units, as defined
herein, to such owners, successor owners, or beneficial owners of shares of
stock of the Company as may present evidence of ownership or rights in the
manner provided by the Trustees hereinafter named, and
(1) The Trustees as of February 13, 2008 are: Xxxxxx X. Xxxxxxx, Xxxxxx X.
Xxxxxxxxx, Xxxxxxxx X. Xxxxxx, Xxxxxxx X. Xxxxxx, and Xxxxxxx X. Xxxx.
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WHEREAS all things necessary to constitute these presents a valid
Agreement of Trust according to its terms, have been done and performed,
and the execution of this Agreement and the execution, authentication and
delivery of the Certificates have in all respects been duly authorized, and
the Company, in the exercise of the legal right and power in it vested, has
executed this Agreement and the Trustees propose to make, execute, issue and
deliver the Certificates in accordance with the provisions hereof;
NOW, THEREFORE, THIS AGREEMENT OF TRUST WITNESSETH that, in order
to declare the terms and conditions upon which this trust is created and the
Certificates are to be issued and received, and in consideration of the
premises, and the acceptance of the Certificates by the holders thereof and
the transfer and assignment to the Trustees of all the property and assets
herein described, the sum of One Dollar ($1) and other good and valuable
considerations duly paid to the Company by the Trustees at the execution of
these presents, the receipt of all of which is hereby acknowledged, and for
the purposes set forth herein, the Company covenants and agrees with the
Trustees, for the equal and proportionate benefit of its respective holders
from time to time of the Certificates, as follows:
ARTICLE ONE
TRANSFER TO THE TRUSTEES
SECTION 1.1. Transfer to the Trustees. The Company agrees to and
by these presents does give, grant, bargain, sell, warrant, alien, demise,
release, convey, assign, transfer, set over and confirm unto the Trustees,
and to their successors in said trust and to their assigns, forever, all and
singular, the following described properties (which initially are included in
the "Trust Estate" as herein defined), to wit:
I
The Royalty Contracts, as more particular described in Exhibit A
annexed hereto; and
II
The other assets, claims, or rights more particularly described
in Exhibit B annexed hereto; and
III
Also, all and singular, the appurtenances and rights belonging to
or appertaining to the aforesaid properties or any part thereof; with the
reversions, remainders, tolls, rents, revenues, issues, income, products and
profits thereof, and all the right, title, estate, interest and claims which
the Company now has or may hereafter acquire in and to the aforesaid
properties, and every part and parcel thereof.
TO HAVE AND TO HOLD the Trust Estate unto the Trustees and their
successors and assigns as hereinafter provided;
IN TRUST, NEVERTHELESS, upon the terms and trusts and for the uses
and purposes set forth herein for the equal proportionate benefit of all
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holders of Certificates to be issued hereunder, subject, however, to the
payment of the liabilities and obligations of the Company as hereinafter set
forth.
AND the Trustees agree to and do hereby accept such properties and
such trust.
SECTION 1.2. Instruments of Further Assurance. The Company and
such persons as shall have the right and power after the dissolution of the
Company shall, upon reasonable request of the Trustees, execute, acknowledge
and deliver such further instruments and do such further acts as may be
necessary or proper or more effectively to carry out the purposes of this
Agreement, to transfer any property intended to be covered hereby and to vest
in the Trustees, their successors and assigns, the estate, powers,
instruments or funds in trust hereunder.
SECTION 1.3. Assumptions of Liabilities of Transferee Liabilities.
The Trustees convent and agree to pay and discharge when due the liabilities
and obligations of the Company set forth in Exhibit C annexed hereto and
hereby made a part hereof.
SECTION 1.4. Payments of Transferee Liabilities. If any liability
shall be asserted against the Trustees as the transferees of the Trust Estate,
on account of any claimed liability of or through the Company, the Trustees
may use such part of the Trust Estate as may be necessary in contesting any
such liability and in payment thereof.
SECTION 1.5. Acceptances of Incidental Property. Subject to the
limitations expressed herein, the Trustees may from time to time receive and
accept as part of the Trust Estate any property or rights which may accrue or
come to them in connection with the Trust Estate and such property or rights
so received or accepted shall constitute a part of the Trust Estate for the
uses and purposes set forth herein.
ARTICLE TWO
DEFINITIONS
For all purposes of this instrument, unless the context otherwise
requires:
SECTION 2.1. Agreement or Agreement of Trust shall mean this
instrument as originally executed or as it may from time to time be amended
pursuant to the terms hereof.
SECTION 2.2. Certificate or Certificates shall mean any
Certificate or Certificates, as the case may be, issued under this Agreement.
Notwithstanding anything to the contrary in this Agreement, in lieu of issuing
Certificates in physical form, ownership of Units may be evidenced by book
entry or otherwise in uncertificated form. If Units are evidenced by book
entry or in uncertificated form, all references in this Agreement to
Certificates shall be deemed to include references to the Units as evidenced
by book entry or other uncertificated form, and references to the issuance of
Certificates shall include references to the registration of the owner of a
Unit and the issuance of any confirmation thereof that may be deemed
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appropriate by the Trustees or required by law. [As amended February 13,
2008]
SECTION 2.3. Certificate Holder, or any similar terms, shall mean
the registered owner of a Unit, whether held in certificated or
uncertificated form, as shown by the registration books maintained by the
Trustees. [As amended February 13, 2008]
SECTION 2.4. Company shall mean North European Oil Company, a
corporation organized under the laws of the State of Delaware and intended
to be dissolved after the execution of this instrument.
SECTION 2.5. Corporation shall mean North European Oil
Corporation, a dissolved corporation originally organized in 1929 under the
laws of the State of Delaware, the predecessor corporate entity to Company.
SECTION 2.6. Corporation Stockholders shall mean those persons or
entities in whose names shares of stock of the Company are held by the
Company as trustee, pursuant to the provisions of an order of the Delaware
Chancery Court dated May 1, 1957.
SECTION 2.7. Shareholders shall mean the holders of record of
the shares of the outstanding capital stock of the Company at the close of
business on the date fixed by the Company for the determination of
stockholders thereof entitled to receive distribution of the Trust
Certificates to be issued hereunder (the "Original Record Date").
SECTION 2.8. Trust Estate shall mean the property held from time
to time by the Trustees under this Agreement.
SECTION 2.9. Trust Moneys shall mean all rents, royalties, income,
proceeds and other receipts of or from the Trust Estate, including but not
limited to (i) royalties or payments received under the Royalty Contracts,
(ii) compensation for any part of the Trust Estate taken by eminent domain,
(iii) proceeds of sale of any part of the Trust Estate, (iv) proceeds of
insurance upon any part of the Trust Estate, and (v) interest earned on any
moneys or securities held by the Trustees under this Agreement.
SECTION 2.10. Trustees shall mean the parties of the second part
hereto and their successors which or who shall become such in the manner
hereinafter prescribed. Managing Trustee shall mean the person so designated
herein and his successor from time to time as designated by a majority of the
Trustees then qualified and acting.
SECTION 2.11. Units shall mean the equal undivided portions into
which the beneficial interests hereunder shall be divided.
ARTICLE THREE
CERTIFICATES
SECTION 3.1. Issuance of Certificates. If Units are to be
evidenced by physical Certificates, the form of such Certificates shall be
determined by Trustees from time to time. The Trustees shall forthwith issue
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any physical Certificates as directed by the Company. The number of Units
represented by any physical Certificate shall be designated on said
Certificate. [As amended February 13, 2008] No fractional part of a single
Unit shall be issued. Each Shareholder shall receive the number of Units
equal to two (2) times the number of shares of stock of the Company owned
of record by such Shareholder on the Original Record Date.
SECTION 3.2. Rights of Certificate Holders. The registered
owners of each Certificate shall be entitled to participation in the rights
and benefits due to a Certificate Holder in accordance with the number of his
Units under all the terms and provisions of this Agreement. The Certificates
and the interests therein shall be in all respects personal property and upon
the death shall in no wise terminate or affect the validity of this Agreement.
A Certificate Holder shall have no title to, right to possession of,
management of, or control of, the Trust Estate except as expressly provided in
this Agreement. No heir or devisee of any Certificate Holder shall have any
right of dower, homestead or inheritance, or of partition, or any other right,
statutory or otherwise, in any property whatever forming a part of the Trust
state, but the whole title, both legal and equitable, to all the Trust Estate
shall always continue to be vested in the Trustees and the sole interest of
the Certificate Holders shall be as provided in this Agreement.
SECTION 3.3. Form and Execution. The Units shall be evidenced in
such form (including uncertificated form) as the Trustees may from time to
time find necessary or desirable. All Units in certificated form shall be
executed by the manual or facsimile signatures of the Managing Trustee and
one other Trustee. [As amended February 13, 2008]
SECTION 3.4. Registration of Certificates. The Trustees shall
cause to be kept, at a place or places within or without the State of
Delaware, books for the registration and transfer of Units (herein sometimes
called the "register"); and, upon presentation for such purpose of a
Certificate or of an instruction to transfer an uncertificated Unit, the
Trustees shall, under such reasonable regulations as they may prescribe,
cause to be registered or transferred therein, any of such Units. [As
amended February 13, 2008] Certificate Holders or their duly authorized
representatives shall have the right, upon reasonable prior written notice to
the Trustees, and in accordance with reasonable regulations prescribed by the
Trustees, to inspect and make copies of the register.
SECTION 3.5. Transfer of Certificates. The Certificates and the
interest represented thereby (but no fractional part of a single Unit
thereof) may be transferred by the holder thereof in person or by a duly
authorized agent or attorney, or by the properly appointed legal
representative of the holder, (x) in the case of a Certificate in
certificated form, upon the surrender of the Certificate, duly executed for
transfer, to the Trustees with directions that such transfer be made and
recorded in the register of the Trustees, and (y) in the case of a Unit
evidenced in uncertificated form, upon the delivery of a transfer
instruction, and in each case upon the delivery of such other documents as
the Trustees may reasonably require and upon the payment of the reasonable
transfer charges, if any, established by the Trustees for the purpose of
reimbursing the Trustees for the expenses incident thereto. [As amended
February 13, 2008] Until any such transfer is recorded in the register of
the Trustees, the Trustees may treat the holder of record of any
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Certificate as the owner thereof for all purposes and shall not be charged
with notice of any claim or demand to such Certificate or the interest of
any other person. The ownership and registration of the Certificates may be
in any form which applicable law permits, subject to the reasonable
regulation thereof by the Trustees.
SECTION 3.6. Effect of Transfer. The recordation in the register
of the Trustees of a transfer of a Certificate shall, for the purposes of
this trust, transfer to the transferee as of the date of such recordation all
right, title and interest of the transferor in and to the Certificate to
which the transferor might then be or thereafter become entitled, except
that a transfer of a Certificate shall not by such transfer, transfer to the
transferee the right of the transferor to any sum payable by the Trustees to
holders of record on a date prior to the date or recordation in the register
of the Trustees of the transfer.
SECTION 3.7. Applicable Law. As to matters affecting the title,
ownership, warranty, transferability or attachment of the Certificates, the
laws from time to time in force in the State of Delaware with respect to
stock certificates shall govern except as otherwise herein specifically
provided.
SECTION 3.8. Mutilated, Lost, Stolen and Destroyed Certificates.
In case any Certificate shall be mutilated, lost, stolen or destroyed, then,
upon the production of such mutilated Certificate or upon the receipt of
evidence satisfactory to the Trustees of the loss, theft or destruction of
such Certificate and upon receipt also of a surety bond satisfactory to them,
unlimited in amount if they shall so specify, of such other security or
indemnity as may be required by them, the Trustees in their discretion may
execute and deliver or cause to be executed and delivered a new Certificate
in exchange for, and upon cancellation of, the mutilated Certificate, or in
lieu of the Certificate so lost, stolen or destroyed. Any holder of a new
Certificate issued under this Section shall be entitled to the benefits of
this Agreement equally and ratably with all other holders of Certificates.
The Trustees, in their discretion, may place upon such new Certificate a
distinguishing xxxx or legend to comply with the rules of any securities
exchange or to conform to any usage with respect thereto, but such xxxx or
legend shall in no wise affect the validity of such new Certificate. If
required by the Trustees, the applicant for such substitute certificate may
also be required, as a condition precedent to the issuance of such
certificate, to pay all reasonable costs, expenses and attorneys fees
incurred in connection with the issuance of such Certificate.
SECTION 3.9. Ownership of Certificates by Trustees. Each
Trustee, either individually or in a representative or fiduciary capacity
(other than as a Trustee hereunder), may acquire, own and dispose of
Certificates to the same extent as if he were not a Trustee hereunder.
SECTION 3.10. Issuance of Additional Certificates for
Stockholders of Corporation. The Trustees shall, pursuant to such procedures
and regulations as they may establish, issue Certificates for additional
Units (not to exceed 498,408 Units in the aggregate during the term of the
trust hereunder) to such person or persons as may present evidence of
ownership or entitlement to shares of stock of the Company, on the basis of
2.10 Units for each share of stock, which Units from and after the date of
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issuance of Certificates for such Units shall carry all of the rights to
which holders of Certificates are entitled as if issued upon the creation of
the trust hereunder, provided, however, that the person to whom Certificates
for Units are issued pursuant to this Section 3.10 shall receive as provided
herein (a) an additional amount at the rate of 12 per Unit for fractional
Units not issued but to which said holder would be entitled under the
computation hereinbefore provided, and (b) an amount equal to $.96 for each
such Unit so issued (which amount represents the accumulated dividends for
shares of stock in the Corporation which would have been paid up to the time
of the creation of this trust), and (c) an additional amount equal to the
aggregate of payments or distributions made with respect to Units from and
after the creation of this trust up to and including the issuance of the
Certificates hereunder. The Trustees shall not be required to establish any
reserves or set apart any funds with respect to such outstanding certificates
for shares of the Corporation not yet surrendered for conversion into
Certificates for Units hereunder, nor shall any person to whom Certificates
are issued pursuant to this Section 3.10 have any right to make claim or
demand for any interest or other payments except as specifically provided in
this Section 3.10. In connection with issuance of Certificates hereunder,
the Trustees may require appropriate proofs of ownership, suitable indemnity
agreements, and payment of the out-of-pocket expenses incurred by the Trust
(including any counsel fees) in connection with the issuance of such
Certificates. If from time to time the Trustees increase the number of Units
into which the Trust Estate is deemed divided as permitted under the
provisions of Section 7.2(7A) hereof, then the foregoing numbers in this
Section 3.10 shall be appropriately adjusted to reflect such increase. [As
amended February 10, 1981] All units attributable to previously unlocated
stockholders of the Company or the Corporation (the "Unlocated Stockholders")
have been issued to the Escheator of the State of Delaware or of other
relevant States (collectively, the "Escheators"). Effective July 1, 2005,
the Trustees have no obligation to issue units or pay dividends or
distributions to any Unlocated Stockholders as all claims against the Trust
by previously Unlocated Stockholders under Section 3.10 are barred. Any
Unlocated Stockholder with evidence of ownership or entitlement to
Corporation or Company shares shall be entitled only to file a claim with the
Escheators in accordance with 12 Del. C. 1206, in the case of the State of
Delaware, and in accordance with relevant state law with any other state
Escheator. [As deemed amended by order of the Delaware Court of Chancery on
February 26, 1996]
SECTION 3.11. Issuance of Certificates for Increases in Number of
Units. If the Trustees from time to time exercise their power pursuant to
Section 7.2(7A) hereof to increase the number of Units into which the Trust
Estate is deemed divided, the Trustees shall issue additional Certificates to
each Certificate Holder to reflect any such increase. [As amended February
10, 1981]
ARTICLE FOUR
DURATION AND TERMINATION OF TRUST
SECTION 4.1. Name. This trust may be known as the "North European
Oil Royalty Trust."
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SECTION 4.2. Duration. The term of the trust established
hereunder shall continue until the first to occur of the events described
in Sections 4.3, 4.4, or 4.5 hereof.
SECTION 4.3. Normal Term. The trust is established to continue
in perpetuity, provided that in the event the duration of this trust is
necessarily limited by the applicable laws of the State of Delaware or any
other state to a term which is shorter than the term hereinabove set forth
and a court of competent jurisdiction has finally determined that such
shorter term must be used and the laws of such state must be applied in
determining the duration of this trust, then and in such event this trust
shall continue for the maximum period permitted under the laws of said state
for the duration of this trust. [As amended February 13, 2008]
SECTION 4.4. Earlier Termination Because of Diminished Royalties.
The trust may also terminate at the end of the calendar year following the
fiscal year of the trust during which income under the Royalty Contracts, or
such other property then held as the Trust Estate, shall be less than an
amount equal to twice the aggregate of the sums required for administration
of the trust, including compensation of the Trustees as provided in this
Agreement.
SECTION 4.5. Termination by Certificate Holders. The trust may
also be terminated at any time on such date as may be specified by the action
of two-thirds in interest of the Certificate Holders in the manner provided
in Article Fourteen.
SECTION 4.6. Termination on Sales and Distribution. If the
Trustees sell any part of the Trust Estate as permitted by Article Seven
(other than investments of Trust Moneys by the Trustees pursuant to Section
9.4), then the trust shall be deemed terminated with respect to the property
sold. In such event, the Trustees shall distribute to the Certificate
Holders, pro rata according to the number of Units outstanding at the date
fixed by the Trustees for distribution, the net proceeds of the same ("net
proceeds" means the proceeds of the sale whether in cash or other property,
less (i) expenses on the sale, and (ii) such reserve as the Trustees deem
necessary to establish out of the proceeds to meet liabilities in connection
therewith), provided, however, that the Trustees shall not be required to
make a separate distribution of the net proceeds if they shall be less than
$100,000 (in which event such net proceeds shall be distributed with the next
regular income distribution). Each distribution of cash hereunder shall be
made by mailing checks to the Certificate Holders of record at the close of
business on the date fixed by the Trustees for such distribution at their
addresses as shown by the register maintained by the Trustees. Each
distribution of other property may be made by mailing appropriate instruments
of title to the Certificate Holders of record at the close of business on the
date fixed by the Trustees for such distribution at their addresses as shown
by the register maintained by the Trustees.
SECTION 4.7. Distribution on Termination. Upon the termination
of the trust by reason of any of the events specified in Sections 4.3, 4.4,
or 4.5, the Trustees shall proceed as promptly as possible to convert the
Trust Estate into cash or other property and the Trustees shall distribute to
the Certificates Holders, pro rata according to the number of Units
outstanding at the date fixed by the Trustees for distribution, the net
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proceeds (the "net proceeds" means the total cash or other property received
as a result of the conversion of the Trust Estate to cash or such other
property less (i) expenses of such conversion, (ii) liabilities hereunder
and (iii) such reserve as the Trustees deem necessary to establish to meet
liabilities hereunder), provided, however, that if the Trustees determine
that it will be in the best interests of the Certificate Holders not to
convert part or all of the Trust Estate into cash or other property, the
Trust Estate not so converted shall be distributed in kind to the Certificate
Holders, pro rata according to the number of Units outstanding at the date of
distribution. Each distribution of cash hereunder shall be made by mailing
checks to the Certificate Holders of record at the close of business on the
date fixed by the Trustees for such distribution at their addresses as shown
by the register maintained by the Trustees. Each distribution of other
property and distribution in kind may be made by mailing appropriate
instruments of title to the Certificate Holders of record at the close of
business on the date fixed by the Trustees for such distribution at their
addresses as shown by the register maintained by the Trustees.
Notwithstanding the foregoing, in the event that at the time of any
termination and distribution contemplated in this Section 4.7, there then
remain outstanding shares of the Company not yet presented for conversion
into Units pursuant to the provisions of Section 3.10, the Trustees shall set
apart an amount equal to the aggregate distributions which would be required
if all of such shares were so converted into Units on the day prior to the
first such termination distribution, which such amounts set apart shall be
disbursed, distributed, or retained in the manner provided by order of a
court of competent jurisdiction of the State of Delaware to which application
shall duly and promptly be made by the Trustees. Effective July 1, 2005, the
Trust is no longer required to set aside any amount for claims by the
Unlocated Stockholders upon termination of the Trust and any amounts
remaining at the same time of termination of the Trust may be disbursed or
distributed as if the shares of the Unlocated Stockholders had never existed.
[As deemed amended by order of the Delaware Court of Chancery on February 26,
1996]
SECTION 4.8. Continuance of Trust for Winding Up. After the
termination of the Trust and for the purpose of liquidating and winding up
the affairs of this Trust, the Trustees shall continue to act as such until
their duties have been fully performed. Upon the distribution of all of the
Trust Estate to the Certificate Holders and the payment and discharge of all
debts, liabilities and obligations of the Trust, the Trustees shall have no
further duties or obligations hereunder except to account as provided in
Section 5.7.
ARTICLE FIVE
COLLECTION AND APPLICATION OF TRUST MONEYS
SECTION 5.1. Collection of Trust Moneys. All Trust Moneys shall
be collected by the Trustees and held as a part of the Trust Estate.
SECTION 5.2. Payment of Expenses and Other Liabilities. The
Trustees shall pay from the Trust Moneys all expenses, charges, liabilities
and obligations of the Trust Estate and all liabilities and obligations which
the Trustees specifically assumed and agreed to pay pursuant to this
Agreement and such transferee liabilities which the Trustees may be obliged
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to pay as transferees of the Trust Estate, including, among the foregoing and
without limiting the generality of the foregoing, interest, taxes,
assessments and public charges of every kind and nature and the costs,
charges and expenses connected with or growing out of the execution or
administration of this trust and such other payments and disbursements as are
provided in this Agreement or which may be determined to be a proper charge
against the Trust Estate by the Trustees. The Trustees may, in their
discretion, make provision by reserve or otherwise out of the Trust Moneys,
for such amount as the Trustees in good faith may determine to be necessary
to meet present or future liabilities of the trust, whether fixed or
contingent.
SECTION 5.3. Distribution of Trust Moneys. The Trustees shall,
not less than quarterly, distribute and pay, or cause to be distributed and
paid, to the Certificate Holders as listed in Register in proportion to their
respective interests as evidenced by Certificates, pro rata according to the
number of Units owned by each Certificate Holder, as of such record date as
may be fixed for that purpose by the Trustees, all of the Trust Moneys (not
theretofore distributed to the Certificate Holders) as of the close of
business on such record date that are left after payment of, or provision
for, the expenses, liabilities and obligations of the Trust Estate as set
forth in this Article (including any reserve referred to in Section 5.2) and
after the withholding of the taxes or charges, if any, as provided in Section
5.6. The distributions to Certificate Holders required or made in accordance
with the provisions of this Article shall be made by mailing checks to the
Certificate Holders at the addresses set forth in the register of the
Trustees.
SECTION 5.4. Fixing of Record Dates. The Trustees shall fix the
record dates for the distribution of Trust monies as contemplated by Section
5.3 hereof, which record dates shall be at such intervals as may be
conveniently and reasonably regular, and shall not be more than thirty days
or less than ten days prior to the day of payment of said distributions.
SECTION 5.5. Accounts. The Trustees shall maintain their
accounts in accordance with generally accepted accounting principles and may
rely upon the advice and opinion of independent certified public accountants
or of legal counsel with respect to any matter relating to the determination
of net income, undistributed net income or amounts available for distribution
to Certificate Holders. The Trustees shall have the power, in their
discretion, to maintain the books of account of the trust for tax and record
purposes on a cash basis. The amount required to be distributed to
Certificate Holders on each distribution date in accordance with the
provisions of this Article shall be determined by the Trustees in their
discretion and their determination shall be final and conclusive on all
persons and in the absence of bad faith shall not be subject to review by
any court.
SECTION 5.6. Withholding of Taxes or Charges. The Trustees may
withhold from the Trust Moneys distributable to certain or all of the
Certificate Holders from time to time such sums as may be sufficient to pay
any taxes or other charges which have been or may be imposed on Certificate
Holders under the income tax laws or other laws of the United States or any
state or political subdivision by reason of the distributions of net income
to Certificate Holders, whenever the withholding of such sums is required by
law or regulation.
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SECTION 5.7. Reserves. The Trustees have the right to determine
from time to time the amounts to be retained, in addition to such amounts as
may be retained or withheld under Section 5.6, as reserves in connection with
anticipated charges or expenses of the Trust, for contingent or unascertained
liabilities or obligations of the Trust, or for such other purpose as the
Trustees may determine, subject to the limitations set forth in Article Six.
SECTION 5.8. Reports. As soon as practicable after the end of
each fiscal year of the trust and after termination of the trust, the
Trustees shall submit a written report and account to the holders of
Certificates showing (i) the assets and liabilities of the trust at the end
of such fiscal year or upon termination and the receipts and disbursements of
the Trustees for such fiscal year or period, certified by independent public
accountants, (ii) any changes in the Trust Estate not previously reported,
(iii) any action taken by the Trustees in the performance of their duties
under this Agreement not previously reported and which in their opinion
materially affects the Trust Estate, and (iv) a statement showing on a Unit
basis the dates and amounts of all distributions made by the Trustees during
such year, depletion and depreciation allowances, if any, and such
information as is reasonably available for income tax purposes. The Trustees
may submit similar reports for such interim periods during the fiscal year as
they deem advisable.
ARTICLE SIX
PURPOSE OF TRUST AND LIMITATIONS ON TRUSTEES
SECTION 6.1. Purpose of Trust. The sole purpose of this trust is
to conserve and protect the Trust Estate and collect and distribute the
income and proceeds therefrom to Certificate Holders after the payment of, or
provision for, expenses and contingent and ascertained liabilities.
SECTION 6.2. Limitation on Trustees. The Trustees shall not at
any time, on behalf of the trust or Certificate Holders, enter into or
engage in any business of any kind including, without limitation, the
purchase or acquisition of, the trading or substitution for, or the dealing
in oil or gas royalty rights wherever located. The Trustees shall not invest
any of the funds held in the Trust Estate in commercial or other ventures.
This limitation shall apply irrespective of whether the conduct of any such
business activities is deemed by the Trustees to be necessary or proper for
the conservation or protection of the Trust Estate. The Trustees may deposit
money held under this Agreement in an interest-bearing bank account or
accounts, or in a checking account or accounts and the Trustees may purchase
short-term obligations of the United States Government or its agencies or
certificates of deposit of banking institutions with assets in excess of
$500,000,000. The Trustees shall be restricted to the holding and collection
of the Trust Moneys and the payment and distribution thereof for the purposes
set forth in this Agreement and to the conservation and protection of the
Trust Estate and the administration thereof in accordance with the provisions
of this Agreement. The Trustees shall not acquire any new properties or
royalty rights of any kind except as permitted by Section 1.5.
SECTION 6.3. General Application. Every provision in this
Agreement, including the provisions of Article Seven, shall be construed in a
way that is consistent with the purpose and with the limitations on the
Trustees set forth in this Article Six, and no power granted by Article Seven
or any other provision of this Agreement shall be exercised in a manner which
goes beyond the purpose and the limitations of this Article Six.
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ARTICLE SEVEN
POWERS OF THE TRUSTEES
SECTION 7.1. Generally. The Trustees shall hold the legal and
equitable title to all property at any time constituting a part of the Trust
Estate and shall hold such property in trust to be administered and disposed
of by them pursuant to the terms of this Agreement for the benefit of
Certificate Holders.
SECTION 7.2. Specific Powers Exercisable Without Further Consent.
Subject to the provisions of Article Six, the Trustees shall have the
following specific powers, exercisable without any further authorization or
consent, but their enumeration shall not be considered in any way to limit or
control the power of the Trustees to act as specifically authorized by any
other Section or provision of this Agreement and to act in such manner as the
Trustees may deem necessary or appropriate to conserve and protect the Trust
Estate or to confer on the Certificate Holders the benefits intended to be
conferred upon them by this Agreement:
(1) To hold legal title to property forming part of the Trust
Estate in the name of the Trust; in a custody account at any bank, or in the
name of one or more of the Trustees or in the names of a nominee or nominees,
with or without disclosure of the interest of the Trust, without increase or
decrease of liability with respect thereto;
(2) To collect and receive any and all money and other property
of whatsoever kind or nature due to or owing or belonging to the Trust and to
give full discharge and acquittance therefore;
(3) To institute or defend actions for declaratory judgments or
other actions and to take such other action as the Trustees may deem
necessary or desirable to prevent a default or to enforce the default
provisions or other provisions of the Royalty Contracts or any other
instruments relating to or forming a part of the Trust Estate;
(4) To perform any act authorized, permitted or required under
the Royalty Contracts, or any other instruments relating to or forming a part
of the Trust Estate whether in the nature of an approval, consent, demand or
note thereunder or otherwise, and including, without limiting the generality
of the foregoing, to execute such settlement or clarification agreements
relating to the Royalty Contracts concerning the method of computation of the
royalties or payments to be paid thereunder, the method of administration
under such Royalty Contracts, the manner in which payments or remittances are
to be made thereunder, the enforcement procedures or rights with respect to
default and enforcement in the event of details, and such similar
administrative provisions of such Royalty Contracts which, in the opinion of
the Trustees, shall not materially affect the rights of the Trust thereunder;
(5) To pay all expenses of the Trust Estate or the Trustees, in
their fiduciary capacity, out of the Trust Estate, including without
limitation, the cost of such insurance policies or coverage with respect to
the affairs of the Trust as they may deem appropriate;
(6) To keep any or all of the Trust Estate that is movable at any
place or places or with a depository or custodian at such place or places;
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(7) To adopt and from time to time amend such regulations for the
internal procedural and administrative affairs of the Trust, including
without limitation provisions for the form and transfer of Certificates,
meeting of the Trustees or Certificate Holders, and the administration of the
affairs of the Trust, consistent with this Agreement.
(7A) To increase by whole number multiples the number of Units
into which the Trust Estate is divided, it being understood that immediately
following any such increase, each Certificate Holder shall have the same
proportionate ownership of the Trust Estate as immediately prior to any such
increase, and to issue additional or replacement Certificates to reflect any
such increase, provided that any such increase shall not be effective unless
and until approved by the Certificate Holders at a meeting as described in
Article 14 hereof; [As amended February 10, 1981]
(8) To do and perform any acts or things and only those acts or
things necessary or appropriate for the conservation and protection of the
Trust Estate, and in conjunction therewith to employ such agents,
representatives or employees, including registrars, transfer agents,
accountants, or attorneys and to confer upon them such authority as the
Trustees may deem expedient, and to pay reasonable compensation therefore.
SECTION 7.3. Limitation of Powers. No other powers or authority
shall be exercised by the Trustees unless such other powers or actions are
specifically authorized by a court of competent jurisdiction in the manner
provided for amendment of trust instruments.
ARTICLE EIGHT
DUTIES OF THE TRUSTEES
SECTION 8.1. Payment of Trust Obligations. The Trustees shall
pay out of the Trust Estate all liabilities and obligations incurred by them
in connection with the conservation or administration of the Trust Estate,
including without limiting the generality of the foregoing, the liabilities
and obligations set forth in Article Five.
SECTION 8.2. Books of Account. The Trustees shall maintain books
of account showing all receipts and disbursements and such other transactions
as the Trustees may deem appropriate in accordance with generally accepted
accounting principles, provided, however, that the Trustees shall have the
right, in their discretion, to maintain such books of account for tax and
record purposes on the cash basis.
SECTION 8.3. Approval of Accounts. The Trustees shall render the
written report to the Certificate Holders required by Section 5.7 hereof and
said report shall constitute an account of the Trustees' administration of
the trust for the fiscal year covered thereby. The approval at an annual
meeting of Certificate Holders of any account or accounts shall, as to
matters and transactions disclosed therein, be final and binding upon all
persons (whether in being or not) who may then or thereafter become
interested in or entitled to share in any Certificate.
SECTION 8.4. Fiscal Year of the Trust. The fiscal year of the
trust shall end on December 31 of each year unless the Trustees deem it
advisable to establish some other date as the date on which the fiscal year
of the trust shall end.
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ARTICLE NINE
TRUSTEES
SECTION 9.1. Generally. The Trustees accept and undertake to
discharge the trust created by this Agreement, upon the terms and conditions
thereof. The Trustees shall exercise such of the rights and powers vested
in them by this Agreement, and use the same degree of care and skill in their
exercise, as a prudent man would exercise or use under the circumstances in
the conduct of his own affairs. No provision of this Agreement shall be
construed to relieve the Trustees from liability for their own negligent
action, their own negligent failure to act, or their own willful misconduct,
except that
(a) no Trustee shall be responsible for the acts or omissions of
any other Trustee if done or omitted without his knowledge or consent unless
it shall be proved that such Trustee was negligent in ascertaining the
pertinent facts and no successor Trustee shall be in any way responsible for
the acts or omissions of any Trustees in office prior to the date on which
he becomes a Trustee;
(b) no Trustee shall be liable except for the performance of such
duties and obligations as are specifically set forth in this Agreement, and
no implied covenants or obligations shall be read into this Agreement against
the Trustees;
(c) in the absence of bad faith on the part of the Trustees, the
Trustees may conclusively rely, as to the truth of the statements and the
correctness of the opinions expressed therein, upon any certificates or
opinions furnished to the Trustees and conforming to the requirements of this
Agreement; but in the case of any such certificates or opinions which by any
provision hereof are specifically required to be furnished to the Trustees,
the Trustees shall be under a duty to examine the same to determine whether
or not they conform to the requirements of this Agreement;
(d) no Trustee shall be liable for any error of judgment made in
good faith, unless it shall be proved that such Trustee was negligent in
ascertaining the pertinent facts; and
(e) the Trustees shall not be liable with respect to any action
taken or omitted to be taken by them in good faith in accordance with the
direction of the holders of not less than a majority in interest of the
Certificates at the time outstanding relating to the time, method and place of
conducting any proceeding for any remedy available to the Trustees, or
exercising any trust or power conferred upon the Trustees under this
Agreement.
SECTION 9.2. Reliance by Trustees. Except as otherwise provided
in Section 9.1:
(a) the Trustees may rely and shall be protected in acting upon
any resolution, certificate, statement, instrument, opinion, report, notice,
request, consent, order, or other paper or document believed by them to be
genuine and to have been signed or presented by the proper party or parties;
and
(b) the Trustees may consult with legal counsel to be selected
by them, and the Trustees shall not be liable for any action taken by them
in accordance with the advice of such counsel.
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(c) persons dealing with the Trustees shall look only to the
Trust Estate to satisfy any liability incurred by the Trustees to such person
in carrying out the terms of this trust, and the Trustees shall have no
personal individual obligation to satisfy any such liability.
SECTION 9.3. Indemnification of Trustees. Each Trustee shall be
indemnified by and receive reimbursement from the Trust Estate against and
from any and all loss, liability, expense or damage which such Trustee may
incur or sustain, in good faith and without negligence, in the exercise and
performance of any of the powers and duties of such Trustee under this
Agreement. The Trustees shall have the right to purchase appropriate
policies of liability insurance in coverages and such liability, claims or
expenses which may be incurred in connection with their acting as Trustees.
Without limiting the generality of the foregoing, the Trustees shall be
authorized and empowered to implement indemnification provisions to the
fullest extent permitted under the laws of the State of Delaware as in effect
from time to time providing for indemnification to officers or directors of
corporations incorporated in that State, whether or not such indemnification
or authorization is specifically set forth herein, subject to such
limitations, if any, as may be imposed by the laws of the State of Delaware
upon indemnification of trustees.
SECTION 9.4. Recitals. The recitals contained herein and in the
Certificates shall be taken as the statements of the Company, and the
Trustees assume no responsibility for the correctness of the same. The
Trustees make no representations as to the validity of this Agreement.
ARTICLE TEN
PERSONS DEALING WITH THE TRUST OR TRUSTEES
SECTION 10.1. Reliance on Trustees' Statement as to Authority to
Act. Any person dealing with the Trustees shall be fully protected in
relying upon the Trustee's certificate that they have authority to take
action under this trust.
SECTION 10.2. Reliance on Statement by Trustees as to Meeting of
Certificate Holders. Any person dealing with the Trustees shall be fully
protected in relying upon the Trustees' certificate setting forth the facts
concerning the calling of any meeting of the Certificate Holders, the giving
of notice thereof, and the action taken at said meeting, including the number
of Units represented by Certificate Holders taking such action.
SECTION 10.3. Application of Money Paid or Transferred to the
Trustees. No person dealing with the Trustees shall be required to see to
the application by the Trustees of any money or property which may be paid or
transferred to the Trustees.
SECTION 10.4. Exculpation of Certificate Holders and of Trustees.
No Certificate Holder nor any Trustee shall be individually or personally
liable for any matter or thing in connection with the trust, the Trust
Estate, or the performance of this Agreement. Notice is hereby furnished to
all persons dealing with the trust or the Trustees that the Trustees or any
duly designated agent of the Trustees, as the case may be, are acting only as
agents for the Certificate Holders and neither the Trustees nor such agents
shall have any personal liability with respect to the foregoing, except to
the extent of their interest as Certificate Holders in the property held as
part of the Trust Estate.
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SECTION 10.5. Exoneration of Corporate Trustee. In addition to
the provisions set forth in Articles Nine and Ten, any corporate fiduciary
acting as Trustee hereunder shall be fully exonerated and exculpated from any
liability or responsibility, where the remaining individual Trustees exercise
their rights hereunder to make any discretionary determinations, whether or
not the corporate Trustee participates in the vote on such determinations of
the individual Trustees acting hereunder, without inquiry or investigation as
to any such determination.
ARTICLE ELEVEN
COMPENSATION OF TRUSTEES
SECTION 11.1. Compensation of Trustees. In lieu of any and all
commissions fixed by law for trustees, the Trustees shall receive the
following compensation for their services hereunder:
(a) Each individual Trustees (except for the Managing Trustee)
shall receive an annual amount equal to 1/5th of one percent of the
aggregate annual Trust Moneys, as defined in Section 2.3, but in no event
less than the sum of $5,000 per annum.
(b) The Managing Trustee shall receive an amount not less than
that paid to the other individual Trustees and shall also receive such
additional compensation as may be fixed from time to time by the Trustees
acting without the vote of the Managing Trustee.
(c) Any corporate trustee appointed or acting hereunder shall
receive such compensation as may be fixed by the other Trustees, provided,
however, that the fees to be paid to such corporate fiduciary must be
ratified by the Certificate Holders at the next regular annual meeting
held pursuant to this Agreement.
(d) Changes in the compensation and remuneration arrangements
provided herein which may be recommended by the Trustees shall not become
effective until ratified at the next succeeding annual meeting of Certificate
Holders as provided herein.
(e) All compensation paid to the Trustees shall be paid in such
installments and at such times as the Trustees may determine.
SECTION 11.2. Extraordinary Services. If a Trustee renders any
unusual or extraordinary service to the trust, constituting service not
expected of him as a Trustee hereunder, such Trustee shall be entitled to
receive reasonable additional compensation for such unusual or extraordinary
service so rendered, in such amount as may be fixed by the determination of
the remaining Trustees (not including the Trustee performing such unusual or
extraordinary services), or by the approval of a majority in interest of the
Certificate Holders. No such approval by either the remaining Trustees or
the Certificate Holders shall be required where services are rendered by such
firm or corporation with which any Trustee may be associated, affiliated, or
a member, for legal, accounting, brokerage, or similar services, provided that
such services are rendered at rates substantially similar to those charged by
such firm or corporation for its services to others than the Trust.
SECTION 11.3. Expenses. Each Trustee shall be reimbursed from the
Trust Estate for all expenses reasonably incurred by him in the performance
of his duties in accordance with this Agreement.
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ARTICLE TWELVE
TRUSTEES AND SUCCESSOR TRUSTEES
SECTION 12.1. Number of Trustees. There shall be not more than
five individuals, all of which shall be individual citizens and residents of
the United States, serving as Trustees hereunder, one of whom shall be
elected annually by the Trustees to serve as Managing Trustee. The Trustees,
by duly adopted resolution, or the Certificate Holders at an annual or
special meeting, may designate a corporate fiduciary to serve as an
additional Trustee hereunder. [As amended May 13, 1976]
SECTION 12.2. Action by Trustees Quorum. All action required or
permitted to be taken by the Trustees, in their capacity as Trustees, shall
be taken (i) at a meeting at which a quorum is present duly called by one or
more of the Trustees and held on at least 3 days' prior written or
telegraphic notice to all of the Trustees then in office, or (ii) by a
written vote, resolution or other writing without a meeting signed by all the
Trustees then in office. Except where this Agreement otherwise provides, all
action taken at such a meeting shall be by vote or resolution of a majority
of such of the Trustees as are present and shall have the same force and
effect as if then by all the Trustees. A majority of the Trustees then in
office shall constitute a quorum.
SECTION 12.3. Resignation and Removal. Any Trustee may resign and
be discharged from the trust here created by giving written notice thereof to
the remaining Trustees who shall thereafter mail a copy of such notice to the
Certificate Holders. Such resignation shall become effective on the day
specified in such notice or upon the appointment of such Trustee's successor
and such successor's acceptance of such appointment, whichever is earlier.
Any Trustee may be removed at any time, with or without cause, by holders of
two-thirds in interest of the Certificates then outstanding.
SECTION 12.4. Appointment of Successor. In case at any time a
Trustee shall resign or be removed or shall die or become incapable of
acting, or shall be adjudged a bankrupt or insolvent, a vacancy shall be
deemed to exist in the office of such Trustee, and a successor shall be
appointed by the remaining Trustees then in office, pending the election and
designation of Trustees by a meeting of the Certificate Holders as provided
in Article Fourteen. Pending the appointment of a successor Trustee, the
remaining Trustees then in office may take any action in the manner set forth
in Section 12.2 hereof.
SECTION 12.5. Successor Trustees. The Trustees herein designated
shall serve until the first annual meeting of Certificate Holders as provided
in Article Fourteen. Thereafter the Trustees shall be elected for a term of
one year. Any successor Trustee elected or appointed hereunder shall execute
an instrument accepting such designation hereunder and thereupon, such
successor Trustees shall, without any further act, become vested with all the
estates, properties, rights, powers, trusts and duties of his or its
predecessor in the trust hereunder with like effect as if originally named
therein; but the retiring Trustee shall nevertheless, when requested in
writing by the successor Trustee or by the remaining Trustees and upon
payment of its lawful charges and disbursements then unpaid, if any, execute
and deliver an instrument or instruments conveying and transferring to such
successor Trustee upon the trusts herein expressed, all the estates,
properties, rights, powers and trusts of such retiring Trustee, and shall
duly assign, transfer and deliver to such successor Trustee all property and
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money held by it or him hereunder. The Trustees elected or appointed shall
serve until their respective successors shall have been selected or appointed
and qualified as provided in this Section 12.4.
SECTION 12.6. No Bond Required. No bond shall be required of any
Trustee serving hereunder, but the Trustees may elect to carry fidelity
insurance on behalf of and at the expense of the Trust covering the actions
of the Trustees and their employees and agents.
ARTICLE THIRTEEN
CERTIFICATE HOLDERS
SECTION 13.1. Evidence of Action by Certificate Holders. Whenever
in this Agreement it is provided that Certificate Holders may take any action
(including the making of any demand or request the giving of any notice,
consent or waiver, the removal of a Trustee, the appointment of a successor
Trustee or the taking of any other action), the fact that at the time of
taking such action such holders have joined therein may be evidenced (a) by
any instrument or any number of instruments of similar tenor executed by
Certificate Holders in person or by agent or attorney appointed in writing,
or (b) by the record of Certificate Holders voting in favor thereof at any
regular or special meeting of Certificate Holders duly called and held in
accordance with the provisions of Article Fourteen.
SECTION 13.2. Limitation on Suits. No Certificate Holders shall
have any right by virtue of any provision of this Agreement to institute any
action or proceedings at law or in equity against any party other than the
Trustees upon or under or with respect to the Trust Estate or the agreements
relating to or forming part of the Trust Estate, and the Certificate Holders
hereby waive any such right, unless the holders of not less than 15% in
interest of the Units then outstanding shall have made written request upon
the Trustees to institute such action or proceedings in their own names as
Trustees hereunder and shall have offered to the Trustees reasonable
indemnity against the costs and expenses to be incurred therein or thereby,
and the Trustees for thirty days after their receipt of such notice, request
and offer of indemnity shall have failed to institute any such action or
proceedings; it being understood and intended, and being expressly covenanted
by Certificate Holder with each and the Trustees, that no one or more
Certificate Holder shall have any right in any matter whatever by virtue of
any provision of this Agreement to affect, disturb or prejudice the right of
any other Certificate Holder to obtain or seek to obtain priority over or
preference to any other such Holder or to enforce any right under this
Agreement, except in the manner herein provided and for the equal, ratable
and common benefit of all holders of Trust Certificates. Nothing contained
in this Section 13.2, however, shall restrict or limit any right which a
Certificate Holder may have as a matter of law to institute any action or
proceeding against the Trustees upon, or under or with respect to this
Agreement.
SECTION 13.3. Requirement of Undertaking. All parties to this
Agreement agree, and each Certificate Holder by his acceptance thereof shall
be deemed to have agreed, that the Trustees may request any court to require,
and any court may in its discretion require, in any suit for the enforcement
of any right or remedy under this Agreement, or in any suit against the
Trustees for any action taken or omitted by them as Trustees, the filing by
any party litigant in such suit of an undertaking to pay the costs of such
suit, and that such court may in its discretion assess reasonable costs,
including reasonable attorneys' fees, against any party litigant in such
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suit, having due regard to the merits and good faith of the claims or
defenses made by such party litigant; provided, that the provisions of this
Section shall not apply to any suit instituted by the Trustees.
ARTICLE FOURTEEN
MEETINGS OF CERTIFICATE HOLDERS
SECTION 14.1. Meetings of Certificate Holders. Annual meetings of
the Certificate Holders shall be held in such place as shall be designated by
the Trustees, on due notice to the Certificate Holders, on the second
Thursday in May of each year, or on such other day and date as the Trustees
shall determine and fix, provided that no annual meeting shall be so fixed
which shall be later than 13 months from the last such annual meeting.
Special meetings of the Certificate Holders may be called by the Trustees and
shall be called by them upon written request of Certificate Holders of not
less than 25% in interest. [As amended May 13, 1976]
SECTION 14.2. Notices of Meeting. Written notice of every meeting
of the Certificate Holders shall be given by the Trustees, which written
notice will set forth the time and place of such meeting and in general terms
the action proposed to be taken at such meeting, and shall be mailed not more
than 40 or less than 20 days before such meeting is to be held to all of the
Certificate Holders of record not more than 10 days before the date of such
mailing. No business not specified in the notice of a special meeting shall
be considered at the meeting.
SECTION 14.3. Voting. Each holder of one or more Certificates on
the record date shall be entitled to vote at a meeting of the Certificate
Holders either in person or by proxy duly authorized in writing. Each person
entitled to vote shall have one vote for each Unit represented by
Certificates he holds or represents. Unless specifically otherwise provided
in this Agreement, all actions by the Certificate Holders shall be taken by
the vote of a majority in interest of those Certificate Holders represented
in person or by proxy at any annual or special meeting of the Certificate
Holders.
SECTION 14.4. Quorum. Except where the provisions of this
Agreement require a specified percentage in interest of Units for action to
be taken at the meeting, provided that notice of any such meeting has been
given in the manner provided in Section 14.2, then representation of any
number of Units in person or by written proxy shall constitute a quorum for
such meeting. Where a meeting is called to act upon a matter which required
a specified percentage in interest of Units, then the presence of persons
holding or representing Certificates for the number of Units sufficient to
take action on such specified matter for the transaction of which such
meeting was called shall be necessary to constitute a quorum, but if less
than a quorum be present, the persons holding or representing a majority in
interest of the Certificates represented at the meeting may adjourn such
meeting with the same effect and for all intents and purposes as though a
quorum had been present.
SECTION 14.5. Adjournments. Any meeting of Certificate Holders
may be adjourned from time to time and a meeting may be held at such
adjourned time and place without further notice.
SECTION 14.6. Conduct of Meeting. The Managing Trustee shall
serve as Chairman and one of the Trustees shall serve as Secretary of the
meetings of the Certificate Holders. The vote upon any resolution submitted
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to any meeting of Certificate Holders shall be by written ballot. Inspectors
of Votes, appointed by the Chairman of the meeting, shall count all votes
cast at the meeting for or against any resolution and shall make and file
with the Secretary of the meeting their verified written report.
SECTION 14.7. Record of Meeting. A record of the proceedings of
each meeting shall be prepared by the Secretary of the meeting and there
shall be attached to such record the original reports of the Inspectors of
Votes on any ballot. Any such record signed by a majority of the Trustees
shall be conclusive evidence of the matters stated therein.
ARTICLE FIFTEEN
AMENDMENTS
SECTION 15.1. Procedure to Amend. The Certificate Holders may, by
vote of a majority in interest at any annual or special meeting for which the
notice of meeting shall furnish substance of the proposed amendment, amend
this Agreement in any particular, provided, however, that no amendment may be
made with respect to (a) the liability of Certificate Holders, (b) the
accessibility of Units, (c) the indemnification of Certificate Holders and
the Trustees, (d) the rights described in Sections 3.10 and 4.7, or (e) the
limitations on the business which may be conducted by the Trust or the powers
of the Trustees as set forth in Articles Six and Seven hereof, without
approval by a court of competent jurisdiction.
SECTION 15.2. Certificate of Amendments. A certificate in
recordable form signed by a majority of the Trustees setting forth any such
amendment and confirming that it was duly adopted in the manner provided in
Section 15.1 shall be conclusive evidence of such amendment.
ARTICLE SIXTEEN
MISCELLANEOUS
SECTION 16.1. Filing. This Agreement shall be filed or recorded
in the office of the Register in Chancery in and for New Castle County, State
of Delaware, and in such other office or offices as the Trustees may deem
appropriate. The Trustees shall file or record any amendment of this
Agreement in the same places where the original Agreement is filed or
recorded.
SECTION 16.2. Significance of Titles Given Articles and
Selections. Titles given to Articles and to Sections hereunder are for
general information only and shall not influence the construction of the
language of this Agreement.
SECTION 16.3. Meaning. Except where the context otherwise
requires, masculine shall include feminine, singular shall include plural
number, and persons shall include firms, associations and corporations.
SECTION 16.4. Intention of Parties to Establish a Trust. This
Agreement is not intended to create and shall not be interpreted as creating
an association, partnership or joint venture of any kind. It is intended as
a trust to be governed and construed in all respects as a trust.
SECTION 16.5. Laws as to Construction. This Agreement shall be
governed by and construed in accordance with the laws of the State of
Delaware and the Company, the Trustees and the Certificate Holders, by their
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acceptance of the Certificates issued hereunder, consent and agree that this
Agreement shall be governed by and construed in accordance with the said
laws.
SECTION 16.6. Separability. In the event any provision of this
Agreement or the application thereof to any person or circumstances shall be
finally determined by a court of proper jurisdiction to be invalid and
unenforceable to any extent, the remainder of this Agreement, or the
application of such provision to persons or circumstances other than those as
to which is held invalid or unenforceable, shall not be affected thereby, and
each provision of this Agreement shall be valid and enforced to the fullest
extent permitted by law.
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IN WITNESS WHEREOF, NORTH EUROPEAN OIL COMPANY has caused this
Agreement to be signed and acknowledged by its President and its corporate
seal to be affixed hereto, and the same to be attested by its Secretary and
the Trustees herein have signed, sealed and executed this Agreement, all as of
the day and year first above written.
NORTH EUROPEAN OIL COMPANY
ATTEST: By: s/ Xxxx X. Xxx Xxxx
----------------------
s/ Xxxxxxxx X. Xxxxxx NORTH EUROPEAN OIL ROYALTY
---------------------- TRUST
ASS'T SECRETARY
By: s/ Xxxx X. Xxx Xxxx
----------------------
Trustee
By: s/ Xxxxxx X. Xxxxxx
----------------------
Trustee
By: s/ Xxxx X. Xxxxxx, Xx.
----------------------
Trustee
By: s/ Xxxxxxx X. Xxxxxx
----------------------
Trustee
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STATE OF NEW YORK
ss.:
COUNTY OF NEW YORK
On this 10th day of September, 1975, before me personally appeared
XXXX X. XXX XXXX, XXXXXX X. XXXXXX, XXXX X. XXXXXX, XX., AND XXXXXXX X.
XXXXXX, known to me to be the individuals whose names are subscribed to the
within instrument and acknowledged that they executed the same for the
purposes therein contained.
s/ Xxxxx X. Xxxxxx
------------------
XXXXX X. XXXXXX
Notary Public, State of New York
No. 4508416
Qualified in Westchester County
Certificate filed in New York County
Commission Expires March 30, 0000
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XXXXX XX XXX XXXX
ss.:
COUNTY OF NEW YORK
On this 10th day of September, 1975, before me personally came XXXX
X. XXX XXXX, to me known, who, being by me duly sworn, did depose and say that
he resides at 00 Xxxxxxxx Xxxx, Xxxx'x Xxxx, Xxx Xxxx 00000, that he is the
President of NORTH EUROPEAN OIL COMPANY, the corporation described in and
which executed the foregoing instrument, that he knows the seal of said
corporation, that the seal affixed to said instrument is such corporate seal,
that it was so affixed by order of the Board of said corporation, and that he
signed his name thereto by like order.
s/ Xxxxx X. Xxxxxx
-------------------
XXXXX X. XXXXXX
Notary Public, State of New York
No. 4508416
Qualified in Westchester County
Certificate filed in New York County
Commission Expires March 30, 1977
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LIST OF EXHIBITS
Exhibit A Royalty Contracts to constitute part of Trust Estate (including
currently producing properties under operating Company agreements)
Exhibit B Other assets transferred to the Trust (including non-producing
leases, tax refund claims if any, rights to subsidiaries now in dissolution,
and miscellaneous assets)
Exhibit C Liabilities assumed by the Trust (including outstanding
salaries, accrued taxes or other charges, pension claims)
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EXHIBIT A
ROYALTY CONTRACTS CONSTITUTING
PART OF TRUST ESTATE AS DESCRIBED
IN TRUST AGREEMENT
All of the right, title and interest of the Company, under, pursuant
to, or by virtue of its rights as assignee or successor under the following
agreements:
1. Agreement between Nord Europaische Olgesellechatt mbH, and North
European Oil Company, dated September 30, 1971, accepted December 20, 1971.
2. Agreement between Erdol Forderzinsen Holding Gesellschaft mbH, and
North European Oil Company, dated September 30, 1971, accepted December 20,
1971.
3. Agreement between Socony-Vacuum Oil Co., Inc. and Xxxxxx Xxxxxxx et
al., dated February 2, 1953, and Assignment by Xxxxxx Xxxxxxx of portion of
interest in above agreement.
4. Any other rights whether or not similar in nature to those reflected
in the above described Royalty Contracts to which North European Oil Company
has heretofore or may at any time in the future become entitled, as assignee
or successor, or by operation of law, statute, or judicial or administrative
determination, without limitation.
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EXHIBIT B
ASSETS OF COMPANY OTHER THAN
ROYALTY CONTRACTS
1. Cash in the sum of $100.00
2. The following marketable securities (including interest payable or
accrued hereon):
NONE
3. Any or all royalties or payments receivable by North European Oil
Company under those Royalty Contracts described in Exhibit A at the date
hereof.
4. All of the right, title and interest of North European Oil Company
in and to any other accounts or notes receivable held by said Company.
5. All right, title and interest of North European Oil Company in and
to any other accounts or notes receivable in connection with the liquidation
of those entities heretofore constituting wholly owned subsidiaries of North
European Oil Company.
6. Any and all rights with respect to tax refund claims now pending or
to be made with respect to the period up to the date hereof, whether in the
United States, the Federal Republic of Germany or otherwise.
7. Any royalties or payments which may become due, whether or not
heretofore accrued, with respect to properties located in the Peoples
Democratic Republic of Germany and any claims of right to share in claim funds
with respect to settlement of claims for such rights.
8. All of the right, title and interest of North European Oil Company
in and to any other personal property owner by said Company at the date
hereof.
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EXHIBIT C
LIABILITIES ASSUMED BY THE TRUST
1. Salaries accrued to the date hereof for officers and employees of
North European Oil Company, including withholding tax payments or similar
expenses based on such salaries.
2. Taxes accrued to the date hereof by North European Oil Company,
whether in the United States, any state of subdivision thereof, or the Federal
Republic of Germany, including without limitation, taxes due with respect to
the liquidation of those entities heretofore constituting a wholly owned
subsidiary of the Company.
3. Amounts due, whether or not accrued to the date hereof, for pensions
or pension claims against North European Oil Company or entities heretofore
constituting its wholly owned subsidiaries.
4. Obligations of North European Oil Company to make payments to, and
indemnify, The Bank of New York, under the Shareholder Agency Agreement
entered into by said Bank and North European Oil Company, acting on behalf of
its shareholders.
5. Any other claims, accounts payable or amounts due as shown on the
books and records of North European Oil Company at the date hereof.
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