EXHIBIT 4.1
EXECUTION COPY
STANDARD TERMS FOR DEPOSITARY TRUST AGREEMENTS
among
XXXXXXX LYNCH, PIERCE, XXXXXX & XXXXX INCORPORATED
as Initial Depositor,
and
-------------------------,
as Trustee and as Securities Intermediary
TRUST CERTIFICATES
Dated as of May _____, 1999
DEPOSITARY TRUST AGREEMENT
STANDARD TERMS FOR DEPOSITARY TRUST AGREEMENTS dated as of May
___, 1999, among the TRUST ENTITIES CREATED BY THE RESPECTIVE DEPOSIT AGREEMENTS
FOR ISSUANCE OF RECEIPTS EVIDENCING SHARES OF _______ COMPANIES IN THE ________
INDUSTRY, XXXXXXX LYNCH, PIERCE, XXXXXX & XXXXX INCORPORATED, a Delaware
Corporation (the "Initial Depositor") and __________, a ___________ corporation,
as trustee (the "Trustee"), ____________ a ___________ corporation, as
securities intermediary (in such capacity, the "Securities Intermediary").
PRELIMINARY STATEMENT
The Initial Depositor, the Trustee and the Securities
Intermediary have duly authorized the execution and delivery of these Standard
Terms for Depositary Trust Agreements (the "Standard Terms") to provide for the
deposit of Shares (as defined) from time to time with the Trustee for the
purposes set forth in these Standard Terms, for the creation of one or more
Series of Receipts evidencing the Shares so deposited and for the execution and
delivery of Receipts as provided in these Standard Terms.
Each Series will be issued under a separate Supplement to
these Standard Terms, duly executed and delivered by the Initial Depositor, the
Trustee and the Securities Intermediary. With respect to each Series, these
Standard Terms and all amendments hereof and, unless the context otherwise
requires, the related Supplement and all amendments thereto shall be known as
the "Trust Agreement."
All representations, covenants and agreements made herein by
each of the Initial Depositor, the Trustee and the Securities Intermediary are
for the benefit and security of the Owners (as defined).
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The Initial Depositor and the Securities Intermediary are
entering into these Standard Terms, and the Trustee is accepting the trust
created hereby, for good and valuable consideration, the receipt and sufficiency
of which are hereby acknowledged.
ARTICLE 1
DEFINITIONS AND ASSUMPTIONS
Section 1.1. Definitions. Except as otherwise specified herein
or in the applicable Supplement or as the context may otherwise require, the
following terms have the respective meanings set forth below for all purposes of
this Trust Agreement.
"Beneficial Owner": With respect to Receipts held through a
Depository, the beneficial owner of a Receipt.
"Book-Entry Securities": Securities maintained in the form of
entries (including, without limitation, the Security Entitlements in such
Securities) in the commercial book-entry system of the Fed and held for the
Trustee, directly or indirectly, by any Trustee's Fed Member. Book-Entry
Securities shall not include, in any event, any Certificated Security (or any
Security Entitlement in any Certificated Security) held, directly or indirectly,
through a Clearing Corporation.
"Business Day": As defined in the related Supplement.
"Certificate Account": An Eligible Account, which shall be a
Securities Account, and shall be held in trust in the name of the Trustee for
its benefit and the benefit of Owners of that Series of Receipts.
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"Certificate Registrar": The transfer agent or registrar whom
the Trustee shall cause to register the Receipts, and the transfers and
exchanges of Receipts, in a register to be maintained in the office or agency of
the Trustee.
"Certificated Security": As defined in Section 8-102(a)(4) of
the UCC.
"Clearing Agency": An organization that (i) is registered as a
"clearing agency" pursuant to Section 17A of the Exchange Act and (ii) is a
Clearing Corporation.
"Clearing Agency Participant": At any time, in respect of any
Clearing Agency, a securities intermediary that maintains Securities Accounts
with such Clearing Agency at such time.
"Clearing Corporation": The meaning specified in Section
8-102(a)(5) of the UCC.
"Closing Date": With respect to a Series of Receipts, the day
on which such Series of Receipts is first executed, authenticated and delivered.
"Commission": The Securities and Exchange Commission of the
United States or any successor governmental agency in the United States.
"Definitive Receipts": Definitive, fully registered Receipts.
"Deposited Shares": Shares at such time deposited or deemed to
be deposited under this Trust Agreement and identified in the related
Supplement, and any and all other Shares, property and cash received by the
Trustee in respect thereof and at such time held hereunder.
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"Deposited Shares Issuer": The issuer of a class of Deposited
Shares (including, if applicable, the guarantor of the Deposited Shares), as
identified in the related Supplement.
"Depositor": Any person who, from time to time, deposits
Shares into the Trust, either for its own account or as agent for the owners of
the Shares.
"Depositor Order": A written order or request, respectively,
signed in the name of the Initial Depositor or any other Depositor, as
appropriate, by any one of its executive officers.
"Depository": With respect to the Receipts issuable in whole
or in part in the form of one or more Global Receipts, the Person so designated
in the applicable Supplement, and, if at any time there is more than one such
Person, "Depository" as used with respect to the Receipts shall mean the
Depository with respect to the Receipts.
"Depository Securities": Securities consisting of Security
Entitlements to Certificated Securities, held by the Depository or a Clearing
Corporation or a nominee of either subject to the control of the Depository and
indorsed in blank by an appropriate Person or registered on the books of the
issuer thereof in the name of the Depository or its Clearing Corporation or a
nominee of either.
"DTC": The Depositary Trust Company, its nominees and their
respective successors.
"Eligible Account": A trust account(s) maintained as a
segregated account(s) and held by a Federal or State chartered depository
institution or trust company in trust for the benefit of the Owners; provided,
however, that such depository institution or trust company has a long-term
rating in one of the four highest categories by a nationally recognized
statistical rating organization.
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"Eligible Investments": Unless otherwise specified in the
related Supplement, means (a) direct obligations of the United States of America
or obligations fully guaranteed by the United States of America; (b) commercial
paper rated equal to the highest rating assigned by any two nationally
recognized rating organizations; (c) overnight federal funds transactions with
members of the Federal Reserve System arranged by federal funds brokers; and (d)
overnight repurchase agreements with respect to the securities described in
clause (a) above entered into with an office of a bank or trust company which is
located in the United States of America of any bank or trust company which is
organized under the laws of the United States or any state thereof and has
capital, surplus and undivided profits aggregating at least $500 million.
"Entitlement Holder": As defined in Section 8-102(a)(7) of the
UCC.
"Exchange Act": The Securities Exchange Act of 1934, as
amended.
"Fed": The Federal Reserve Bank of New York.
"Fed Member Securities Account": In respect of any Person, an
account in the name of such Person at the Fed, to which account Book-Entry
Securities held for such Person are or may be credited.
"Federal Book-Entry Regulations": (a) the Federal regulations
contained in Subpart B ("Treasury/Reserve Automated Debt Entry System (TRADES)"
governing Book-Entry Securities consisting of U.S. Treasury bonds, notes and
bills) and Subpart D ("Additional Provisions") of 31 C.F.R. Part 357, 31 C.F.R.
ss. 357.10 through ss. 357.14 and ss. 357.41 through ss. 357.44 (including
related defined terms in 31 C.F.R. ss. 357.2) and (b) to the extent
substantially identical to the federal regulations referred to in clause (a)
above (as in effect from time to time), the federal regulations governing other
Book-Entry Securities.
"Financial Asset": As defined in Section 8-102(a)(9) of the
UCC.
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"Global Receipt": A registered Receipt issued to the
Depository in accordance with Section 2.1 and bearing the legend prescribed
therein.
"Grant": To grant, sell, transfer and deposit to the Trustee
pursuant to these Standard Terms and the applicable Supplement; and the terms
"Granted" and "Granting" have the meanings correlative to the foregoing.
"Initial Depositor": Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx
Incorporated, a Delaware corporation, acting for its own account or as agent for
owners of the Deposited Shares.
"Owners": The person in whose name a Receipts is registered in
the Register on the applicable Record Date.
"Participant": A broker, dealer, bank, other financial
institution or other Person for whom from time to time a Depositary effects
book-entry transfers of Shares deposited with the Depositary.
"Pre-Release": As defined in Section 2.15.
"Person": Any individual, limited liability company,
corporation, partnership, joint venture, association, joint stock company, trust
(including any trust beneficiary), unincorporated organization or government or
any agency or political subdivision thereof.
"Receipts": Trust certificates issued hereunder evidencing
certain Deposited Shares as more particularly set forth in the related
Supplement.
"Reconstitution Events": As defined in Section 2.16.
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"Registrar": Any bank or trust company having an office in the
Borough of Manhattan, The City of New York, which shall be appointed to register
Receipts and transfers of Receipts as herein provided.
"Responsible Officers": With respect to the Trustee, any
officer within the Corporate Trust Office, including any Managing Director,
Senior Vice President, Vice President, Assistant Vice President, Assistant
Secretary or any other officer of the Trustee customarily performing functions
similar to those performed by any of the above designated officers and also,
with respect to a particular matter, any other officer to whom such matter is
referred because of such officer's actual knowledge of and familiarity with the
particular subject.
"Round-lot Receipts": 100 individual Receipts. Each Round-lot
Receipts shall represent the Deposited Shares as amended from time to time due
to Reconstitution Events.
"Securities Account": As defined in Section 8-501(a) of the
UCC.
"Securities Control": "Control" as defined in Section 8-106 of
the UCC and, for purposes of determining an interest in investment property
under UCC Article 9, Section 9-115(1)(e) of the UCC.
"securities intermediary": As defined in Section 8-102(a)(14)
of the UCC and, in respect of any Book-Entry Security, a "securities
intermediary" (as defined in 31 C.F.R. ss. 357.2 or, as applicable to such
Book-Entry Security, the corresponding Federal Book-Entry Regulations).
"Securities Intermediary": With respect to any Series, the
Securities Intermediary shall be the Person so specified in the applicable
Supplement until a successor Person shall have become the Securities
Intermediary pursuant to the applicable provisions of these Standard
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Terms and the applicable Supplement, and thereafter "Securities Intermediary"
shall mean such successor Person.
"Security": As defined in Section 8-102(a)(15) of the UCC.
"Shares": Equity securities issued by a Deposited Shares
Issuer as identified in the applicable Supplement.
"Supplement": An agreement incorporating these Standard Terms
that authorizes the issuance of a particular Series of Receipts.
"Trust": With respect to any Series, the Deposited Shares
constituting the Trust created hereby and by the related Supplement and to be
administered hereunder and thereunder, all for the benefit of the Owners of
Receipts of such Series as of a particular time.
"Trust Agreement": With respect to any Series, these Standard
Terms and all amendments hereof and, unless the context otherwise requires, the
related Supplement and all amendments thereto.
"Trustee": ________________, a __________________ corporation,
until a successor Person shall have become Trustee pursuant to the applicable
terms of the Trust Agreement.
"UCC": The Uniform Commercial Code, as in effect from time to
time in the State of New York and any successor statute.
Section 1.2. Rules of Construction. Unless the context
otherwise requires:
(i) a term has the meaning assigned to it;
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(ii) an accounting term not otherwise defined has the meaning
assigned to it in accordance with generally accepted accounting
principles as in effect in the United States from time to time;
(iii) "or" is not exclusive;
(iv) the words "herein", "hereof", "hereunder" and other words
of similar import refer to this Trust Agreement as a whole and not to
any particular Article, Section or other subdivision;
(v) "including" means including without limitation; and
(vi) words in the singular include the plural and words in the
plural include the singular.
ARTICLE 2
FORM OF RECEIPTS, DEPOSIT OF SHARES, EXECUTION AND
DELIVERY, TRANSFER AND SURRENDER OF RECEIPTS
Section 2.1. Creation and Declaration of Trusts; Assignment of
Shares. (a) The Initial Depositor, concurrently with the execution and delivery
of the related Supplement, does hereby agree to Grant to the Trustee for the
benefit of the Trustee and the Owners of each given Series of Receipts and
without recourse, all the right, title and interest of the Initial Depositor in,
to and under the Deposited Shares. Unless otherwise specified in the Supplement,
each such Grant will include all cash dividends and distributions in respect of
Deposited Shares to which the Owners are entitled.
(b) In connection with each Grant referred to in paragraph (a)
of this Section 2.1, the Initial Depositor shall, not later than the applicable
Closing Date, either
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(i) deposit the Deposited Shares for a given Series with the
Trustee by physical delivery of such Deposited Shares duly endorsed,
together with any documents necessary to transfer ownership of such
Deposited Shares, to the Trustee, or
(ii) have ensured that the Deposited Shares have been
delivered to a Clearing Agency, in which event (A) the Securities
Intermediary or its agent, on behalf of the Trustee for the benefit of
the Trust, has accepted delivery of such Deposited Shares through such
Clearing Agency, and (B) the Deposited Shares have been credited to a
Securities Account of the Trustee and maintained by the Securities
Intermediary on behalf of the Trustee for the benefit of the Trust, and
the Securities Intermediary or its agent shall have the right to hold
and maintain such Deposited Shares on deposit with such Clearing Agency
for all purposes of this Trust Agreement.
(c) From time to time after the date hereof, a Depositor may
deposit Shares with the Trustee. Any such deposit shall constitute a Grant as
contemplated by paragraph (a) of this Section 2.01.
(d) In the case of each delivery of Deposited Shares referred
to in paragraphs (b) and (c) of this Section 2.1, the Initial Depositor and any
other Depositor shall be deemed thereby to represent and warrant to the Trustee
and the Securities Intermediary that:
(i) the Initial Depositor and any other Depositor is duly
authorized to so deliver the Deposited Shares;
(ii) the Deposited Shares so delivered are genuine;
(iii) at the time of delivery of the Deposited Shares, such
Deposited Shares are free and clear of any lien, pledge, encumbrance,
right, charge, claim or other security interest (other than the lien
created by this Trust Agreement); and
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(iv) such delivery is irrevocable and free of any continuing
claim by the Initial Depositor or any other Depositor except such as
the Initial Depositor or any other Depositor may have as an Owner.
The above representations and warranties shall survive the
delivery of the Deposited Shares and the Receipts in respect thereof.
(e) Any Trust created hereunder shall not engage in any
business or activities other than in connection with, or relating to, the
holding, protecting and preserving of the Deposited Shares and the issuance of
the Receipts, and other than those required or authorized by this Trust
Agreement or incidental to and necessary to accomplish such activities. Any
Trust created hereunder shall not issue or sell any certificates or other
obligations other than the Receipts or otherwise incur, assume or guarantee any
indebtedness for money borrowed.
(f) Anything herein to the contrary notwithstanding, neither
the Trustee nor the Securities Intermediary assumes any of the obligations of
the Initial Depositor or any Depositor in respect of the Deposited Shares.
(g) The Securities Intermediary expressly agrees with the
Trustee and the Owners that, at all times from and after the date hereof, any
and all of the Deposited Shares held by the Securities Intermediary in the
Certificate Account are to be treated as Financial Assets under, and for all
purposes of, UCC Article 8 and UCC Article 9.
Section 2.2. Acceptance by Trustee. With respect to each
Series, the Trustee will acknowledge receipt by it, or by a custodian on its
behalf, of the related Deposited Shares now existing or hereafter acquired, and
declares that it will hold such Deposited Shares and all other documents
delivered to it pursuant to this Trust Agreement, and that it will hold all such
assets and such other assets (including Deposited Shares acquired from a Person
other than the Initial Depositor) comprising the Trust for a given Series, in
trust for the exclusive use and benefit of all
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present and future Owners of such Series and for the purposes and subject to the
terms and conditions set forth in this Trust Agreement.
Section 2.3. Representations and Warranties of the Initial
Depositor. The Initial Depositor hereby represents and warrants to the Trustee
that as of the Closing Date or as of such other date specifically provided
herein or in the applicable Supplement:
(i) the Initial Depositor is a corporation duly organized,
validly existing and in good standing under the laws of the State of
Delaware;
(ii) the execution and delivery of this Trust Agreement by the
Initial Depositor and its performance of and compliance with the terms
of this Trust Agreement will not violate the Initial Depositor's
certificate of incorporation or by-laws or constitute a default (or an
event which, with notice or lapse of time, or both, would constitute a
default) under, or result in the breach or acceleration of, any
material contract, agreement or other instrument to which the Initial
Depositor is a party or which may be applicable to the Initial
Depositor or any of its assets;
(iii) the Initial Depositor has the full power and authority
to enter into and consummate all transactions contemplated by this
Trust Agreement, has duly authorized the execution, delivery and
performance of this Trust Agreement and has duly executed and delivered
this Trust Agreement. This Trust Agreement, upon its execution and
delivery by the Initial Depositor and assuming due authorization,
execution and delivery by the Trustee, will constitute a valid, legal
and binding obligation of the Initial Depositor, enforceable against it
in accordance with the terms hereof, except as such enforcement may be
limited by bankruptcy, insolvency, reorganization, receivership,
moratorium or other laws relating to or affecting the rights of
creditors generally, and by general equity principles; and
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(iv) any additional representations and warranties, if any,
that may be specified in the applicable Supplement.
It is understood and agreed that the representations and
warranties of the Initial Depositor set forth in this Section 2.3 shall survive
delivery of the respective documents and the Deposited Shares to the Trustee and
shall inure to the benefit of the Trustee on behalf of the Owners
notwithstanding any restrictive or qualified endorsement or assignment. Upon
discovery by any of the Initial Depositor or the Trustee of a breach of any of
the foregoing representations and warranties which materially and adversely
affects the interests of the Owners, the party discovering such breach shall
give prompt written notice thereof to the other party.
Section 2.4. Agreement to Execute, Authenticate and Deliver
Receipts. Upon receipt by the Trustee of any deposit pursuant to Section 2.1
hereunder, together with a Depositor Order and the other documents required as
above specified, the Trustee, subject to the terms and conditions of this Trust
Agreement, shall, concurrently with the Grant to and receipt by it of the
Deposited Shares, cause to be executed, authenticated and delivered to or upon
the written order of the Initial Depositor or other Depositor, as the case may
be, in exchange for the Deposited Shares and such other assets constituting the
Trust, Receipts duly authenticated by or on behalf of the Trustee evidencing
ownership of the entire Trust, all in accordance with the terms and subject to
the conditions of Section 2.5.
Section 2.5. Execution, Authentication and Delivery; Global
Receipts. (a) The Receipts shall be executed by the Trustee by one of its
Responsible Officers, which may be in facsimile form and imprinted or otherwise
reproduced thereon. The signature of any of the Responsible Officers may be
manual or facsimile. Receipts bearing the manual or facsimile signature of
individuals who were at any time the Responsible Officers of the Trustee shall
be binding, notwithstanding that such individuals or any of them have ceased to
hold such offices prior to the authentication and delivery of such Receipts.
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(b) Each Receipt shall be dated as of the later of the date
specified in the related Supplement and the date of its authentication.
(c) Unless otherwise provided in the applicable Supplement,
each Receipt shall be a Global Receipt in compliance with the provisions of
Section 2.7 herein.
(d) No Receipts shall be entitled to any benefit under this
Trust Agreement or be valid or obligatory for any purpose, unless there appears
on such Receipt a certificate of authentication substantially in one of the
forms provided for herein executed by the Trustee by the manual signature of one
of its Responsible Officers, and such signature upon any Receipt shall be
conclusive evidence, and the only evidence, that such Receipt has been duly
authenticated and delivered hereunder and is entitled to the benefits of this
Trust Agreement.
Section 2.6. Custody and Holding of Deposited Shares. (a) With
respect to each Series, the Trustee shall hold and maintain the Deposited Shares
with the Securities Intermediary in and through, and hereby directs the
Securities Intermediary to credit any and all such Deposited Shares to, the
Certificate Account in such manner as shall enable the Trustee to be and have
the rights of an Entitlement Holder with respect to, and have sole dominion and
control (including, without limitation, Securities Control) over, such Deposited
Shares.
(b) The Securities Intermediary hereby represents, warrants,
covenants and agrees that from and after the Closing Date:
(i) Each Certificate Account is a Securities Account, with the
Trustee (for its benefit and the benefit of the Owners) as the
Entitlement Holder in, and having sole dominion and control (including,
without limitation, Securities Control) over, any and all Deposited
Shares (including, without limitation, any and all Shares and
properties referred to in clause (ii) below) in such Certificate
Account.
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(ii) All Shares and properties from time to time transferred
or credited to the Certificate Account constitute Financial Shares.
(iii) The Securities Intermediary is (and will remain) a
securities intermediary and is acting (and will continue to act) as
such with respect to the Certificate Account, the Deposited Shares
therein and the Trustee as Entitlement Holder. Unless otherwise
instructed by the Trustee in writing, the Securities Intermediary will
treat the Trustee (for its benefit and the benefit of the Owners) as
entitled to exercise the rights that comprise the Deposited Shares in
each Certificate Account. Further, the Securities Intermediary is and
will remain (A) a bank, banking institution, financial firm or similar
party, in each case, that regularly accepts in its course of its
business Book-Entry Securities as a custodial service for customers and
maintains Securities Accounts in the name of such customers reflecting
ownership of or interest in such Shares, (B) will maintain its books
and records reflecting such Book-Entry Securities in the State of New
York and (C) if the Trustee maintains one or more Certificate Accounts
with the Securities Intermediary, will have entered into, and will
maintain in full force and effect, an agreement with the Trustee
(which, on the date hereof, is comprised of this Trust Agreement) to
the effect that their respective rights and obligations in respect of
each other, said Deposited Shares and said Certificate Accounts are
governed by the laws of the State of New York.
(iv) The Securities Intermediary shall hold any and all Shares
and properties from time to time comprising the Deposited Shares
(whether individually or as part of a fungible bulk) in a manner such
that the Trustee will have dominion and control (including, without
limitation, Securities Control) over such Deposited Shares. The
Securities Intermediary will credit to the appropriate Certificate
Account (and will thereby or by book entry or otherwise identify as
being subject to the Grant to the Trustee hereunder) any and all Shares
and properties from time to time comprising the Deposited Shares in
accordance with Section 2.5(a) hereof.
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(v) To effect the intention of clauses (i) through (iv) above,
the Securities Intermediary or its agent maintains (and will continue
to maintain)
(A) one or more Securities Accounts with the Initial
Depository. The Securities Intermediary or its agent will
instruct the Initial Depository to credit such Securities
Accounts of the Securities Intermediary or its agent with the
Initial Depository with the Initial Depository Securities
comprising from time to time the Deposited Shares; and
(B) one or more Fed Member Securities Accounts to
which the Securities Intermediary through its agent will
instruct the Fed to credit, in accordance with the Book-Entry
Regulations, all Book-Entry Securities from time to time
comprising the Deposited Shares.
Section 2.7. Global Receipts. (a) Unless otherwise specified
in the related Supplement, the Receipts shall be held by the Depository in
book-entry form. The Initial Depositor or any other Depositor, as the case may
be, shall execute and, upon receipt of a Depositor Order, the Trustee shall
authenticate and deliver one or more Global Receipts that (i) shall represent
the Owners interest in such Deposited Shares and in such numbers as indicated by
such Global Receipt or Receipts, (ii) shall be registered in the name of the
Depository for such Global Receipt or Receipts or the nominee of such
Depository, (iii) shall be delivered by the Trustee to such Depository or
pursuant to such Depository's instruction and (iv) shall bear a legend
substantially to the following effect:
"UNLESS THIS GLOBAL RECEIPT IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY FOR REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY RECEIPT
ISSUED IS REGISTERED IN THE NAME OF A NOMINEE OF THE DEPOSITORY (AND ANY PAYMENT
IS MADE TO A NOMINEE OF THE DEPOSITORY), ANY TRANSFER, PLEDGE OR OTHER USE
HEREOF
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FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE
REGISTERED OWNER HEREOF HAS AN INTEREST HEREIN.
UNLESS AND UNTIL IT IS EXCHANGED IN WHOLE OR IN PART FOR THE INDIVIDUAL
CERTIFICATES REPRESENTED HEREBY, THIS GLOBAL RECEIPT MAY NOT BE TRANSFERRED
EXCEPT AS A WHOLE BY THE DEPOSITORY TO A NOMINEE OF THE DEPOSITORY OR BY A
NOMINEE OF THE DEPOSITORY TO THE DEPOSITORY OR TO ANOTHER NOMINEE OF THE
DEPOSITORY OR BY THE DEPOSITORY OR ANY SUCH NOMINEE TO A SUCCESSOR DEPOSITORY OR
A NOMINEE OF SUCH SUCCESSOR DEPOSITORY.
THIS RECEIPT REPRESENTS A FRACTIONAL UNDIVIDED INTEREST IN THE TRUST AND DOES
NOT EVIDENCE AN OBLIGATION OF, OR AN INTEREST IN, AND IS NOT GUARANTEED BY THE
INITIAL DEPOSITOR OR THE TRUSTEE OR ANY OF THEIR RESPECTIVE AFFILIATES. NEITHER
THIS RECEIPT NOR THE DEPOSITED SHARES ARE INSURED OR GUARANTEED BY ANY
GOVERNMENTAL AGENCY OR ANY OTHER PERSON."
(b) Unless otherwise provided in the applicable Supplement, no
Owner will receive a Definitive Receipt representing such Owner's interest in
such Receipt or Receipts, except as provided in Section 2.8. Unless and until
Definitive Receipts have been issued to Holders:
(i) the provisions of this Section 2.7 shall be in full force
and effect;
(ii) the Certificate Registrar and the Trustee shall be
entitled to deal with the Depository for all purposes of this Trust
Agreement (including the distribution of cash dividends and such other
distribution in respect of the Deposited Shares and the giving of
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instructions or directions hereunder) as the sole Owner of such Series
or Class, and shall have no obligation to the Beneficial Owners; and
(iii) the rights of Beneficial Owners shall be exercised only
through the Depository and shall be limited to those established by law
and agreements between such Beneficial Owners and the Depository or its
Participants.
(c) Each Depository for a Global Receipt must, at the time of
its designation and at all times while it serves as such Depository, be a
Clearing Agency registered under the Exchange Act and any other applicable
statute or regulation.
Section 2.8. Definitive Receipts. (a) If in respect of a
Series represented by one or more Global Receipts (i) the Initial Depositor
advises the Trustee and the Securities Intermediary in writing that the
Depository is no longer willing or able to properly discharge its
responsibilities with respect to the Receipts of such Series and the Initial
Depositor does not appoint a successor within 90 days or (ii) the Initial
Depositor at its option advises the Trustee and the Securities Intermediary in
writing that it elects to terminate the book-entry system of such Series through
the Depository, then the Depository shall notify all Beneficial Owners or
Participants in the Depository's system with respect to such Series and the
Trustee of the occurrence of any such event and of the availability of
Definitive Receipts for such Series to Beneficial Owners of such Series
requesting the same.
Upon surrender to the Trustee of the Global Receipts of such
Series by the Depository, accompanied by registration instructions, the Trustee
upon receipt of a Depositor Order for the execution, authentication and delivery
of Definitive Receipts of such Series, will execute, authenticate and deliver
Definitive Receipts of such Series representing the same number of Deposited
Shares as Global Receipts evidencing Receipts of such Series in exchange for
such Global Receipts. None of the Initial Depositor, the Certificate Registrar,
the Trustee or the Securities Intermediary 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. Upon the exchange
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of a Global Receipt for Definitive Receipts, such Global Receipts shall be
canceled by the Trustee. Definitive Receipts issued in exchange for a Global
Receipt shall be registered in such names and in such Authorized Denominations
as the Depository for such Global Receipt, pursuant to instructions from its
Participants, any indirect participants or otherwise, shall instruct the
Trustee. The Trustee shall deliver such Receipts to the Persons in whose names
such Receipts are so registered. Upon the issuance of Definitive Receipts of
Series, the Trustee shall recognize the holders of the Definitive Receipts of
such Series as Owners.
(b) In addition, if the Initial Depositor so specifies with
respect to the Receipts of a given Series, a Beneficial Owner may, on terms
acceptable to the Initial Depositor and the Depository for such Global Receipt,
receive individual Definitive Receipts in exchange for such beneficial interest.
Upon the request of such Beneficial Owner, the Trustee upon receipt of a
Depositor Order shall execute, authenticate and deliver, without service charge,
(i) to each such Person specified, a new individual Receipt or
Receipts of the same Series, of any Authorized Denomination as
requested by such Person representing the same number of Deposited
Shares as such Person's beneficial interest in the Global Receipt; and
(ii) to such Depository a new Global Receipt in an Authorized
Denomination equal to the difference, if any, between the total number
of Deposited Shares represented by the surrendered Global Receipt and
the total number of Deposited Shares represented by the individual
Receipts delivered to Owners thereof.
In any exchange provided for above, the Trustee, upon receipt
of an Initial Depositor Order, will execute, authenticate and deliver individual
Receipts in registered form in Authorized Denominations.
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Section 2.9. Registration; Registration of Transfer and
Exchange. (a) The Trustee shall cause to be kept a register for the Receipts in
which the Certificate Registrar shall provide for the registration of Receipts
and the registration of transfers and exchanges of Receipts. The Trustee is
hereby initially appointed Certificate Registrar for the purpose of registering
Receipts and transfers and exchanges of Receipts as herein provided; provided,
however, that the Trustee may appoint one or more co-Certificate Registrars.
Upon any resignation of any Certificate Registrar, the Depositor shall promptly
appoint a successor or, in the absence of such appointment, assume the duties of
Certificate Registrar.
If a Person other than the Trustee is appointed by the Initial
Depositor as Certificate Registrar, the Initial Depositor will give the Trustee
prompt written notice of the appointment of a Certificate Registrar and of the
location, and any change in the location, of the Certificate Register, and the
Trustee shall have the right to rely upon a certificate executed on behalf of
the Certificate Registrar by an executive officer thereof as to the names and
addresses of the Owners and the principal amounts and numbers of the Receipts
held by each Owner.
(b) Upon surrender for registration of transfer any Receipt at
the office or agency of the Trustee, if the requirements of Section 8-401(a) of
the UCC are met to the Trustee's satisfaction, the Trustee shall execute,
authenticate and deliver, in the name of the designated transferee or
transferees, one or more new Receipts reflecting the correct amount of Deposited
Shares.
(c) Notwithstanding any other provisions of this section,
unless and until it is exchanged in whole or in part for the individual Receipts
evidenced thereby, a Global Receipt representing all or a portion of the
Receipts may not be transferred except as a whole by the Depository to a nominee
of such Depository or by a nominee of such Depository to such Depository or
another nominee of such Depository or by such Depository or any such nominee to
a successor Depository or a nominee of such successor Depository.
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(d) At the option of the Owner, Receipts (other than a Global
Receipt, except as set forth below) may be exchanged for a Round-lot of 100
Receipts or integral multiples thereof upon surrender of the Receipts or
integral multiples thereof to be exchanged at the office or agency of the
Trustee maintained for such purpose.
(e) All Receipts issued upon any registration of transfer or
exchange of Receipts shall constitute complete and indefeasible evidence of
ownership in the Trust related to such Receipts and be entitled to the same
benefits under this Trust Agreement as the Receipts surrendered upon such
registration of transfer or exchange.
(f) Every Receipt presented or surrendered for registration of
transfer or exchange shall be duly endorsed, or be accompanied by a written
instrument of transfer in form satisfactory to the Trustee, the Trustee or the
Certificate Registrar, duly executed, by the Owner thereof or his attorney duly
authorized in writing, with such signature guaranteed by a brokerage firm or
financial institution that is a member of a Securities Approved Medallion
Program such as Securities Transfer Agents Medallion Program (STAMP), Stock
Exchange Medallion Program (SEMP) or New York Stock Exchange Inc. Medallion
Signature Program (MSP).
(g) No service charge shall be made to an Owner for any
registration of transfer or exchange of Receipts, but the Trustee may require
payment of a sum sufficient to cover any tax or other governmental charge that
may be imposed in connection with any registration of transfer or exchange of
Receipts.
Section 2.10. Transfer of Receipts; Combination and Split-up
of Receipts. The Trustee, subject to the terms and conditions of this Trust
Agreement, shall register transfers of Receipts on its transfer books from time
to time, upon any surrender of a Round-lot of 100 Receipts or any integral
multiple thereof, by the Owner in person or by a duly authorized attorney,
properly endorsed or accompanied by proper instruments of transfer, and duly
stamped as may be required by the laws of the State of New York and of the
United States of America.
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Thereupon the Trustee shall execute a new Round-lot of 100 Receipts and deliver
the same to or upon the order of the person entitled thereto in amounts equal to
a Round-lot Receipts or integral multiples thereof.
The Trustee, subject to the terms and conditions of this Trust
Agreement, shall upon surrender of Receipts for the purposes of effecting a
split-up or combination of such Receipts, execute and deliver one or more new
Round-lot Receipts for any authorized number of Receipts requested, evidencing
the same aggregate number of Receipts as the Receipts surrendered.
The Trustee may appoint one or more co-transfer agents for the
purpose of effecting transfers, combinations and split-ups of Receipts at
designated transfer offices on behalf of the Trustee. In carrying out its
functions, a co-transfer agent may require evidence of authority and compliance
with applicable laws and other requirements by Owners or persons entitled to
Receipts and will be entitled to protection and indemnity to the same extent as
the Trustee.
Section 2.11. Surrender of Receipts and Withdrawal of Shares.
Upon (i) receipt by the Trustee of a written request reasonably satisfactory to
it, (ii) surrender at the Corporate Trust Office of the Trustee of a Round-lot
of 100 Receipts or any integral multiple thereof for the purpose of withdrawal
of the Deposited Shares evidenced by each Round-lot Receipt, and (iii) upon
payment of the fee of the Trustee for the surrender of Receipts as provided in
Section 5.9 and payment of all taxes and governmental charges payable in
connection with such surrender and withdrawal of the Deposited Shares, and
subject to the terms and conditions of this Trust Agreement, the Owner of such
Round-lot of 100 Receipts shall be entitled to delivery of the amount of
Deposited Shares at the time evidenced by such Round-lot of 100 Receipts.
[Unless held in book-entry form, delivery of such Deposited Shares may be made
by the delivery of (a) certificates in the name of such Owner or as ordered by
him or by certificates properly endorsed or accompanied by proper instruments of
transfer to such Owner or as ordered by him and (b) any other Shares, property
and cash to which such Owner is then entitled in respect of such
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Round-lot Receipts to such Owner or as ordered by him. Such delivery shall be
made, as hereinafter provided, without unreasonable delay. Receipts canceled
under this Section 2.11 must be equal to a Round-lot of 100 Receipts or any
integral multiple thereof. If any Receipts are surrendered but not canceled
pursuant to the preceding sentence, the Trustee shall execute and deliver a
Round-lot of 100 Receipts not so canceled to the person or persons surrendering
the same provided that such balance equals one or more Round-lot Receipts.
In the case of Definitive Receipts, one or more Round-lot
Receipts surrendered for such purposes may be required by the Trustee to be
properly endorsed in blank or accompanied by proper instruments of transfer in
blank, and if the Trustee so requires, the Owner thereof shall execute and
deliver to the Trustee a written order directing the Trustee to cause the
Deposited Shares being withdrawn to be delivered to or upon the written order of
a person or persons designated in such order. Thereupon the Trustee shall direct
the Trustee to deliver at the Corporate Trust Office, subject to Sections 2.10,
3.1 and 3.2 and to the other terms and conditions of this Trust Agreement, to or
upon the written order of the person or persons designated in the order
delivered to the Trustee as above provided, the amount of Deposited Shares
evidenced by such Round-lot Receipts.
Section 2.12. Limitations on Execution and Delivery, Transfer
and Surrender of Receipts. As a condition precedent to the execution and
delivery, registration of transfer, split-up, combination or surrender of any
Receipts or withdrawal of any Deposited Shares, the Trustee or Registrar may
require payment from the Depositor of Shares or the presentor of the Receipts of
a sum sufficient to reimburse it for any tax or other governmental charge and
any stock transfer or registration fee with respect thereto (including any such
tax or charge and fee with respect to Shares being deposited or withdrawn) and
payment of any applicable fees as herein provided, may require the production of
proof satisfactory to it as to the identity and genuineness of any signature and
may also require compliance with any regulations the Trustee may establish
consistent with the provisions of this Trust Agreement, including, without
limitation, this Section 2.12.
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The delivery of Receipts against deposits of Shares may be
suspended, or the transfer of Receipts in a particular instance may be refused,
or the registration of transfer of outstanding Receipts generally may be
suspended, during any period when the transfer books of the Trustee are closed,
subject to the provisions of Section 7.7 hereof or the transfer books of a
Deposited Shares Issuer are closed. Notwithstanding any other provision of this
Trust Agreement or the Receipts, the surrender of one or more outstanding
Round-lot Receipts and withdrawal of Deposited Shares may not be suspended
subject to only (i) temporary delays caused by closing the transfer books of the
Trustee or a Deposited Shares Issuer or the payment of dividends on such Shares,
(ii) the payment of fees, taxes and similar charges, and (iii) compliance with
any U.S. laws or governmental regulations relating to the Receipts or to the
withdrawal of the Deposited Shares. Without limitation of the foregoing, the
Trustee shall not knowingly accept for deposit under this Agreement any Shares
required to be registered under the provisions of the Securities Act of 1933, as
amended, unless a registration statement is in effect as to such Shares.
The Trustee shall not execute and deliver Receipts under
Section 2.4, or accept for surrender of Receipts and withdrawal of Shares under
Section 2.11, except to the extent such Receipts represent a Round-lot of 100
Receipts, or any integral multiple thereof.
Section 2.13. Lost Definitive Receipts, Etc. In case any
Definitive Receipts shall be mutilated, destroyed, lost or stolen, the Trustee
shall execute and deliver a new Definitive Receipts of like tenor in exchange
and substitution for such mutilated Definitive Receipts upon cancellation
thereof, or in lieu of and in substitution for such destroyed, lost or stolen
Definitive Receipts. Before the Trustee shall execute and deliver a new
Definitive Receipts in substitution for a destroyed, lost or stolen Definitive
Receipts, the Owner thereof shall have (a) filed with the Trustee (i) a request
for such execution and delivery before the Trustee has notice that the
Definitive Receipts has been acquired by a bona fide purchaser and (ii) a
sufficient indemnity bond, and (b) satisfied any other reasonable requirements
imposed by the Trustee.
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Section 2.14. Cancellation and Destruction of Surrendered
Definitive Receipts. All Definitive Receipts surrendered to the Trustee shall be
canceled by the Trustee. The Trustee is authorized to destroy Definitive
Receipts so canceled.
Section 2.15. Pre-Release of Receipts. Notwithstanding Section
2.4 hereof, the Trustee may execute and deliver Receipts prior to the receipt of
Shares pursuant to Section 2.1 ("Pre-Release"). The Trustee may, pursuant to
Section 2.11, deliver Shares upon the receipt and cancellation of Receipts which
have been Pre-Released, whether or not such cancellation is prior to the
termination of such Pre-Release or the Trustee knows that such Receipts has been
Pre-Released. The Trustee may receive Receipts in lieu of Shares in satisfaction
of a Pre-Release. Each Pre-Release will be (a) preceded or accompanied by a
written representation from the person to whom Receipts are to be delivered that
such person, or its customer, owns the Share or Receipts to be remitted, as the
case may be, (b) at all times fully collateralized with cash, (c) terminable by
the Trustee on not more than five (5) business days notice, and (d) subject to
such further indemnities and credit regulations as the Trustee deems
appropriate. The number of Receipts which are outstanding at any time as a
result of Pre-Release will not normally exceed 30 percent (30%) of the Shares
deposited hereunder.
To the extent that the one or more Receipts are collateralized
by cash, as provided above, the Trustee may invest the cash, or direct that the
cash be invested, in one or more Eligible Investments.
The Trustee may retain for its own account any compensation
received by it in connection with the foregoing.
Section 2.16. Reconstitution Events. (a) In the event that the
Shares of any Deposited Shares Issuer cease to be outstanding as a result of a
merger, consolidation or other corporate combination, the shares of such entity
as shall acquire such Deposited Shares Issuer shall not be Deposited Shares
unless that entity is a Deposited Shares Issuer. Instead, the Trustee
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will distribute shares it receives as a result of such merger, consolidation or
other corporate combination to the Owners on a pro rata basis in accordance with
their ownership of the Receipts. In the event of a tender offer to purchase some
or all of the shares of a Deposited Securities Issuer, including the Deposited
Shares of such Deposited Securities Issuer, an Owner shall receive any materials
related thereto in accordance with Section 4.8 herein. In such an event, the
Trustee shall provide the Owners the opportunity to instruct the Trustee to
tender the relevant Deposited Shares represented by their Receipts in the same
manner as Section 4.8 provides with respect to voting Deposited Shares.
(b) In the event that any Deposited Shares Issuer no longer
has a class of common stock registered under section 12 of the Exchange Act,
then the Deposited Shares of such Deposited Shares Issuer shall be distributed
to the Owners by the Trustee on a pro rata basis in accordance with their
ownership of the Receipts.
(c) If the Commission determines that a Deposited Shares
Issuer is an investment company under the Investment Company Act of 1940, and
the Trustee has actual knowledge of such Commission determination, then the
Trustee shall distribute the Deposited Shares of such Deposited Shares Issuer to
the Owners on a pro rata basis in accordance with their ownership of the
Receipts.
2.17 Voting of Receipts. Any Owner, other than the Initial
Depositor holding Receipts in its own name for its own account or the account of
any affiliate, shall have the right to vote for the dissolution and liquidation
of the Trust. Owners representing no less than __% of the total outstanding
Receipts may request in writing that the Trustee conduct a vote to dissolve and
liquidate the Trust. Upon receipt of such notice, the Trustee shall promptly fix
a record date for the purpose of determining the Owners entitled to vote on such
dissolution and liquidation. On such record date, the Owners or their duly
designated proxies shall vote. In order to dissolve and liquidate the Trust, no
less than __% of the Owners entitled to vote thereon must vote in favor of such
dissolution and liquidation.
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ARTICLE 3
CERTAIN OBLIGATIONS OF OWNERS OF RECEIPTS
Section 3.1. Filing Proofs, Certificates and Other
Information. Any person presenting Shares for deposit or any Owner of a Receipts
may be required from time to time to file with the Trustee or the Trustee such
proof of citizenship or residence, exchange control approval, or such
information relating to the registration on the books of any Deposited Shares
Issuer or Share Registrar, if applicable, to execute such certificates and to
make such representations and warranties, as the Trustee may require. The
Trustee shall withhold the delivery or registration of transfer of any Receipts
or the delivery of any Deposited Shares until such proof or other information is
filed or such certificates are executed or such representations and warranties
made.
Section 3.2. Liability of Owner for Taxes. If any tax or other
governmental charge shall become payable with respect to any Receipts or any
Deposited Shares represented by a Receipts, such tax or other governmental
charge shall be payable by the Owner of such Receipts to the Trustee. The
Trustee shall refuse to effect any transfer of such Receipts or any withdrawal
of Deposited Shares evidenced by such Receipts until such payment is made, and
may withhold any dividends or other distributions, or may sell for the account
of the Owner thereof any part or all of the Deposited Shares represented by the
Receipts evidenced by such Receipts, and may apply such dividends or other
distributions or the proceeds of any such sale in payment of such tax or other
governmental charge and the Owner of such Receipts shall remain liable for any
deficiency.
Section 3.3. Warranties of Deposit of Shares. Every person
depositing Shares under this Deposit Agreement shall be deemed thereby to
represent and warrant that such Shares and each certificate therefor are validly
issued and fully paid, and that the person making such deposit is duly
authorized so to do. Every such person shall also be deemed to represent that
the
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deposit of such Shares and the sale of Receipts representing such Shares by that
person are not restricted under the Shares Act of 1933. Such representations and
warranties shall survive the deposit of Shares and issuance of Receipts.
ARTICLE 4
THE DEPOSITED SHARES
Section 4.1. Cash Distribution. Whenever the Trustee shall
receive any cash dividend or other cash distribution on any Deposited Shares,
the Trustee shall, subject to the provisions of Section 4.6, distribute the
amount thus received (net of the fees of the Trustee as provided in Section 5.9
hereof, if applicable) to the Owners entitled thereto, in proportion to the
number of Receipts held by them respectively; provided, however, that the
Trustee shall use its reasonable efforts to ensure that it makes such
distribution not later than 3 days from the date on which the Trustee receives
such cash distribution; and provided further, however, that in the event that
the respective Deposited Shares Issuer or the Trustee shall be required to
withhold and does withhold from such cash dividend or such other cash
distribution an amount on account of taxes, the amount distributed to the Owner
of the Receipts shall be reduced accordingly. The Trustee shall distribute only
such amount, however, as can be distributed without attributing to any Owner a
fraction of one cent. Any such fractional amounts shall be rounded down to the
nearest whole cent and so distributed to Owners entitled thereto.
In no event shall the Trustee invest or cause to be invested
any such cash dividend or other cash distribution.
Section 4.2. Distributions Other Than Cash, Shares or Rights.
Subject to the provisions of Section 4.11 and Section 5.9, whenever the Trustee
shall receive any distribution other than a distribution described in Sections
4.1, 4.3 or 4.4, the Trustee shall cause the Shares or property received by it
to be distributed to the Owners entitled thereto, in proportion to the number of
Receipts held by them respectively, in any manner that the Trustee may deem
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equitable and practicable for accomplishing such distribution; provided,
however, that if in the opinion of the Trustee such distribution can not be made
proportionately among the Owners entitled thereto, or if for any other reason
(including, but not limited to, any requirement that a Deposited Shares Issuer
or the Trustee withhold an amount on account of taxes or other governmental
charges or that such Shares must be registered under the Securities Act of 1933
in order to be distributed to Owners or Owners) the Trustee deems such
distribution not to be feasible, the Trustee shall adopt such method as it deems
equitable and practicable for the purpose of effecting such distribution,
including, but not limited to, the public or private sale of the Shares or
property thus received, or any part thereof, and the net proceeds of any such
sale (net of the fees of the Trustee as provided in Section 5.9) shall be
distributed by the Trustee to the Owners entitled thereto as in the case of a
distribution received in cash.
Section 4.3. Distribution in Shares. If any distribution upon
any Deposited Shares consists of a dividend in, or free distribution of, Shares,
the trustee shall retain such Shares hereunder, in which case each Round-lot of
100 Receipt shall thenceforth also represent such Shares and such Shares shall
be treated as additional Deposited Shares under this Trust Agreement.
Section 4.4. Rights. In the event that an Deposited Shares
Issuer shall offer or cause to be offered to the Owners of any Deposited Shares
any rights to subscribe for additional Shares or any rights of any other nature,
the Trustee shall make such rights available to any Owner.
The Trustee shall not offer rights to Owners unless both the
rights and the Shares to which such rights relate are either exempt from
registration under the Securities Act of 1933 with respect to a distribution to
Owners or are registered under the provisions of such Act. If an Owner of
Receipts requests distribution of warrants or other instruments in respect to
such rights, notwithstanding that there has been no such registration under such
Act, the Trustee shall not effect such distribution unless it has received an
opinion from recognized counsel for the issuer
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of the Shares involved upon which the Trustee may rely that such distribution to
such Owner is exempt from such registration.
The Trustee shall not be responsible for any failure to
determine that it may be lawful or feasible to make such rights available to
Owners in general or any Owner in particular.
Section 4.5. [Reserved.]
Section 4.6. Fixing of Record Date. Whenever any cash dividend
or other cash distribution shall become payable or any distribution other than
cash shall be made, or whenever a fee shall be charged by the Trustee under
Section 5.9(5), or whenever rights shall be issued with respect to the Deposited
Shares, or whenever for any reason the Trustee causes a change in the number of
shares that are represented by each Receipts, or whenever the Trustee shall be
instructed to act in respect to any meeting of Owners of Shares represented by
Deposited Shares, the Trustee shall fix a record date (a) for the determination
of the Owners who shall be (i) entitled to receive such dividend, distribution
or rights or the net proceeds of the sale thereof, (ii) required to pay such
fee, or (iii) entitled to give instructions to the Trustee for the exercise of
voting rights at any such meeting, or (b) on or after which each Receipts will
represent the changed number of Shares. In the case of subsections (a)(i) and
(a)(iii) of this Section 4.6, the Trustee shall use its reasonable efforts to
ensure that the record date set hereunder will be the same as the Record Date
set by the Deposited Shares Issuer. Subject to the provisions of Sections 4.1
and 4.4 and to the other terms and conditions of this Trust Agreement, the
Owners on such record date shall be entitled, as the case may be, to receive the
amount distributable by the Trustee with respect to such dividend or other
distribution or such rights or the net proceeds of sale thereof, or requested to
pay such fee, in proportion to the number of Receipts held by them respectively
and to give voting instructions and to act in respect of any other such matter.
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Section 4.7. Reports. The Trustee shall timely forward to
Owners any reports and communications, including any proxy statement or other
soliciting material, received from a Deposited Shares Issuer which are received
by the Trustee as the holder of the Deposited Shares.
Section 4.8. Voting Instructions for Deposited Shares. Upon
receipt by the Trustee of notice of any meeting of Owners of Deposited Shares,
the Trustee shall forward to owners the proxy statement or other solicitation
material referred to in section 4.7 and mail to the Owners a notice, the form of
which notice shall be in the sole discretion of the Trustee, which shall contain
(a) such information as is contained in such notice of meeting, and (b) a
statement that the Owners as of the close of business on a specified record date
will be entitled to instruct the Trustee as to the exercise of the voting
rights, if any, pertaining to the amount of Deposited Shares represented by
their respective Receipts and (c) a statement as to the manner in which such
instructions may be given. Upon the written request of an Owner on such record
date, received on or before the date established by the Trustee for such purpose
(the "Instruction Date") the Trustee shall vote or cause to be voted the amount
of Shares represented by the Deposited Shares evidenced by such Receipts in
accordance with the instructions set forth in such request. The Trustee shall
not vote or attempt to exercise the right to vote that attaches to the Shares
represented by the Deposited Shares, other than in accordance with such
instructions or deemed instructions.
There can be no assurance that Owners generally or any Owner
in particular will receive the notice described in the preceding paragraph
sufficiently prior to the Instruction Date to ensure that the Trustee will vote
the Shares represented by the Deposited Shares in accordance with the provisions
set forth in the preceding paragraph.
Section 4.9. Changes Affecting Deposited Shares. In
circumstances where the provisions of Section 4.3 do not apply, upon any change
in nominal value, change in par value, split-up, consolidation or any other
reclassification of any Shares represented by Deposited Shares, or upon any
recapitalization, reorganization, merger or consolidation or sale of assets
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affecting the issuer of such Shares or to which it is a party, any Shares which
shall be received by the Trustee in exchange for or in conversion of or in
respect of Deposited Shares, shall be distributed to the Owners entitled thereto
in proportion to the number of Receipts representing such Deposited Shares held
by them.
Section 4.10. Lists of Owners. Promptly upon request by a
Deposited Shares Issuer, the Trustee shall furnish to it a list as of a recent
date, of the names, addresses and holdings by all persons in whose names
Receipts are registered on the books of the Trustee.
Section 4.11. Withholding. In the event that the Trustee
determines that any distribution in property (including Shares and rights to
subscribe therefor) is subject to any tax or other governmental charge which the
Trustee is obligated to withhold, the Trustee shall, by public or private sale
dispose of all or a portion of such property (including Shares and rights to
subscribe therefor) in such amounts and in such manner as necessary and
practicable to pay any such taxes or charges and the Trustee shall distribute
the net proceeds of any such sale after deduction of such taxes or charges to
the Owners entitled thereto in proportion to the number of Receipts held by them
respectively.
ARTICLE 5
THE TRUSTEE, THE TRUSTEE AND THE DEPOSITED SHARES ISSUER
Section 5.1. Maintenance of Office and Transfer Books by the
Trustee. Until termination of this Trust Agreement in accordance with its terms,
the Trustee shall maintain in the Borough of Manhattan, The City of New York,
facilities for the execution and delivery, registration, registration of
transfers and surrender of Receipts in accordance with the provisions of this
Trust Agreement.
The Trustee shall keep books for the registration of receipts
and transfers of Receipts which at all reasonable times shall be open for
inspection by the Owners, provided that
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such inspection shall not be for the purpose of communicating with Owners in the
interest of a business or object other than the business of a Deposited Shares
Issuer or a matter related to this Trust Agreement or the Receipts.
The Trustee may close the transfer books at any time or from
time to time.
If any Receipts evidenced thereby are listed on one or more
stock exchanges in the United States, the Trustee shall act as Registrar or
appoint a registrar or one or more co-registrars for registry of such receipts
in accordance with any requirements of such exchange or exchanges.
Section 5.2. Prevention or Delay in Performance by the Initial
Depositor or the Deposited Shares Issuer or the Trustee. Neither the Initial
Depositor nor the Deposited Shares Issuer nor the Trustee shall incur any
liability to any Owner or Owners of any receipt, if by reason of any provision
of any present or future law or regulation of the United States or any other
country, or of any governmental or regulatory authority or stock exchange, or by
reason of any provision, present or future, of this Trust Agreement, or by
reason of any act of God or war or other circumstances beyond its control, the
Initial Depositor or the Deposited Shares Issuer or the Trustee shall be
prevented or forbidden from, or be subject to any civil or criminal penalty on
account of doing or performing any act or thing which by the terms of this Trust
Agreement it is provided shall be done or performed; nor shall the Initial
Depositor or the Deposited Shares Issuer or the Trustee incur any liability to
any Owner or Owners of any Receipts by reason of any non-performance or delay,
caused as aforesaid, in the performance of any act or thing which by the terms
of this Trust Agreement it is provided shall or may be done or performed, or by
reason of any exercise of, or failure to exercise, any discretion provided for
in this Trust Agreement. Where, by the terms of a distribution pursuant to
Sections 4.1, 4.2, or 4.3 of this Trust Agreement, or an offering or
distribution pursuant to Section 4.4 of the Agreement, or for any other reason,
such distribution or offering may not be made available to Owners, and the
Trustee may not dispose of such distribution or offering on behalf of such
Owners and make the net
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proceeds available to such Owners, then the Trustee shall not make such
distribution or offering, and shall allow any rights, if applicable, to lapse.
Section 5.3. Obligations of the Initial Depositor and the
Deposited Shares Issuer and the Trustee. The Initial Depositor and the Trustee
each assumes no obligation nor shall it be subject to any liability under this
Trust Agreement to any Owner or Owners of any Receipts (including, without
limitation, liability with respect to the validity or worth of the Deposited
Shares), except that it agrees to perform its obligations specifically set forth
in this Trust Agreement without negligence or bad faith.
Neither the Initial Depositor nor the Trustee shall be under
any obligation to appear in, prosecute or defend any action, suit or other
proceeding in respect of any Deposited Shares or in respect of the Receipts.
Neither the Initial Depositor nor the Trustee shall be liable
for any action or non-action by it in reliance upon the advice of or information
from legal counsel, accountants, any person representing Shares for deposit, any
Owner or any other person believed by it in good faith to be competent to give
such advice or information.
The Trustee shall not be liable for any acts or omissions made
by a successor Trustee whether in connection with a previous act or omission of
the Trustee or in connection with any matter arising wholly after the
resignation of the Trustee, provided that in connection with the issue out of
which such potential liability arises the Trustee performed its obligations
without negligence or bad faith while it acted as Trustee.
The Trustee shall not be responsible for any failure to carry
out any instructions to vote any of the Shares represented by Deposited Shares,
or for the manner in which any such vote is cast or the effect of any such vote,
provided that any such action or non-action is in good faith.
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Section 5.4. Resignation or Removal of the Trustee;
Appointment of Successor Trustee. (a) The Trustee may at any time resign as
Trustee hereunder by written notice of its election so to do, delivered to the
Owners and the Initial Depositor, and such resignation shall take effect upon
the appointment of a successor Trustee and its acceptance of such appointment as
hereinafter provided; provided, however, that in the event of such resignation,
the Trustee shall (i) assist the Initial Depositor acting on behalf of the
Owners in finding a successor Trustee acceptable to the Initial Depositor and
(ii) negotiate in good faith concerning any prepaid but unaccrued fees.
(b) The Initial Depositor acting on behalf of the Owners may
at any time remove for cause the Trustee as Trustee hereunder by written notice
delivered to the Trustee in the manner provided in Section 7.5 hereof, and such
removal shall take effect upon the appointment of the successor Trustee and its
acceptance of such appointment as provided in paragraph (e) of this Section
5.4(b); provided, however, that in the event of such removal, the Initial
Depositor shall negotiate in good faith with the Trustee in order to agree
regarding payment of the termination costs of the Trustee resulting from such
removal.
(c) Upon the designation and acceptance thereof of a successor
Trustee, following either resignation or removal of the Trustee, the Trustee
shall deliver to the successor Trustee all records relating to the Receipts in
the form and manner then maintained by the Trustee, which shall include a hard
copy thereof upon written request of the successor Trustee.
(d) If at any time the Trustee shall become incapable of
acting or shall be adjudged a bankrupt or insolvent, or a receiver of the
Trustee or of its property shall be appointed, or any public officer shall take
charge or control of the Trustee or of its property of affairs for the purpose
of rehabilitation, conservation or liquidation, the Initial Depositor acting on
behalf of the Owners shall petition any court of competent jurisdiction for the
removal of the Trustee and the appointment of a successor Trustee. In the event
the Trustee resigns or is removed, the Trustee shall reimburse the Initial
Depositor for any fees or charges previously paid
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to the Trustee in respect of duties not yet performed under this Trust Agreement
which remain to be performed by a successor Trustee.
(e) In case at any time the Trustee acting hereunder notifies
the Initial Depositor that it elects to resign or the Initial Depositor notifies
the Trustee that it or they elects or elect to remove the Trustee as Trustee,
the Initial Depositor shall, within sixty (60) days after the delivery of the
notice of resignation or removal, appoint a successor Trustee, which shall
satisfy the requirements for a trustee under Section 5.5. If no successor
Trustee has been appointed within sixty (60) days after the Trustee has given
written notice of its election to resign or the Initial Depositor has given
written notice to the Trustee of its or their election to remove the Trustee, as
the case may be, the Trustee may petition any court of competent jurisdiction
for the appointment of a successor Trustee. Every successor Trustee shall
execute and deliver to its predecessor and to the Initial Depositor an
instrument in writing accepting its appointment hereunder, and thereupon such
successor Trustee, without any further act or deed, shall become fully vested
with all the rights, powers, duties and obligations of its predecessor and for
all purposes shall be the Trustee under this Trust Agreement, and such
predecessor, upon payment of all sums due it and on the written request of the
Initial Depositor, shall execute and deliver an instrument transferring to such
successor all rights, obligations and powers of such predecessor hereunder, and
shall duly assign, transfer and deliver all right, title and interest in the
Deposited Shares and parts thereof to such successor. Any successor Trustee
shall promptly give notice of its appointment to the Owners of Receipts for
which it is successor Trustee in the manner provided in Section 7.5 hereof. In
all instances, The Initial Depositor will act on behalf of the Owners.
(f) Any corporation into or with which the Trustee may be
merged, consolidated or converted shall be the successor of such Trustee without
the execution or filing of any document or any further act.
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Section 5.5. Eligibility Requirements for Trustee. The Trustee
hereunder shall at all times be a corporation or an association which is not an
Affiliate of the Initial Depositor (but may have normal banking relationships
with the Initial Depositor and its Affiliates) organized and doing business
under the laws of any State or the United States, authorized under such laws to
exercise corporate trust powers which shall be eligible to act as a trustee
under TIA Section 310(a), having a combined capital and surplus of at least
$50,000,000, subject to supervision or examination by Federal or State authority
and have a rating from S&P of BBB- or higher. If such corporation or association
publishes reports of conditions at least annually, pursuant to law or to the
requirements of the aforesaid supervising or examining authority, then for the
purposes of this section the combined capital and surplus of such corporation or
association shall be deemed to be its combined capital and surplus as set forth
in its most recent report of conditions so published. In the event that at any
time such Trustee shall cease to be eligible in accordance with the provisions
of this section, such Trustee shall resign immediately in the manner and with
the effect specified in Section 5.4.
Section 5.6. The Trustees. Any Trustee may resign and be
discharged from its duties hereunder by notice of such resignation delivered to
the Trustee at least 30 days prior to the date on which such resignation is to
become effective. If upon such resignation there shall be no Trustee acting
hereunder, the Trustee shall, promptly after receiving such notice, appoint a
substitute Trustee or Trustees, each of which shall thereafter be a Trustee
hereunder. Whenever the Trustee in its discretion determines that it is in the
best interest of the Owners to do so, it may appoint substitute or additional
Trustee or Trustees, which shall thereafter be one of the Trustees hereunder.
Upon demand of the Trustee any Trustee shall deliver such of the Deposited
Shares held by it as are requested of it to any other Trustee or such substitute
or additional Trustee or Trustees. Each such substitute or additional Trustee
shall deliver to the Trustee, forthwith upon its appointment, an acceptance of
such appointment satisfactory in form and substance to the Trustee.
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Upon the appointment of any successor trustee hereunder, each
Trustee then acting hereunder shall forthwith become, without any further act or
writing, the agent hereunder of such successor trustee and the appointment of
such successor trustee shall in no way impair the authority of each Trustee
hereunder; but the successor trustee so appointed shall, nevertheless, on the
written request of any Trustee, execute and deliver to such Trustee all such
instruments as may be proper to give to such Trustee full and complete power and
authority as agent hereunder of such successor trustee.
Section 5.6. [Reserved.]
Section 5.7. [Reserved.]
Section 5.8. [Reserved.]
Section 5.9. Charges of Trustee. The following charges shall
be incurred by any party depositing or withdrawing Shares or by any party
surrendering Receipts or to whom Receipts are issued: (1) taxes and other
governmental charges, (2) such cable, telex and facsimile transmission expenses
as are expressly provided in this Trust Agreement, (3) a fee of $10 or less per
Round-lot of 100 Receipt for the execution and delivery of Receipts pursuant to
Section 2.5, and the surrender of Receipts pursuant to Section 2.11, (4) a fee
for the distribution of Shares pursuant to Section 4.2, such fee being in an
amount equal to the fee for the execution and delivery of Deposited Shares
referred to above which would have been charged as a result of the deposit of
such Shares (for purposes of this clause (4) treating all such Shares as if they
were Deposited Shares), but which Shares are instead distributed by the Trustee
to Owners, and (5) a fee of $.02 or less per Deposited Share per quarter to be
paid annually for acting as Trustee hereunder (which fee shall be assessed
against Owners of record as of the date or dates set by the Trustee in
accordance with Section 4.6 and shall be collected by deducting such fee from
one or more cash dividends or other cash distributions); provided, however, the
Trustee will waive this
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fee to the extent that the total dividends received by the Trustee during a
calendar year are insufficient to cover such fee for that year.
Section 5.10. Retention of Trust Documents. The Trustee is
authorized to destroy those documents, records, bills and other data compiled
during the term of this Trust Agreement at the times permitted by the laws or
regulations governing the Trustee.
ARTICLE 6
AMENDMENT AND TERMINATION
Section 6.1. Amendment. The Trustee may amend any provisions
of the Trust Agreement without the consent of the Initial Depositor or any Owner
in order to cure any ambiguity, to correct or supplement any inconsistent
provisions, to add any other provisions with respect to matters or questions
arising under the Trust Agreement that will not be inconsistent with the
provisions of this Trust Agreement; provided that such action will not, as
evidenced by an opinion of counsel delivered to the Trustee, adversely affect in
any material respect the interests of the Owners. Promptly after the execution
or any such amendment, the Trustee is required to furnish or cause to be
furnished written notification of the substance of the amendment to each Owner.
Any amendment that imposes or increases any fees or charges (other than taxes
and other governmental charges, registration fees, cable, telex or facsimile
transmission costs, delivery costs or other such expenses), or that otherwise
prejudices any substantial existing right of the Owners will not become
effective until 30 days after notice of such amendment is given to the Owners.
Section 6.2. Termination. The Trust shall terminate either by
(a) the Trustee mailing notice of such termination to the Owners of all Receipts
then outstanding if at any time 60 days shall have expired after the Trustee
shall have delivered to the Owners a written notice of its election to resign
and a successor depositary shall not have been appointed and accepted its
appointment as provided in Section 5.4 or (b) upon a vote by the Owners to
dissolve and
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liquidate the Trust in accordance with Section 2.17. On and after the date of
termination, the Owner of a Receipts will, upon (a) surrender of such Receipts
at the Corporate Trust Office of the Trustee, (b) payment of the fee of the
Trustee for the surrender of Receipts referred to in Section 2.8, and (c)
payment of any applicable taxes or governmental charges, be entitled to
delivery, to him or upon his order, of the amount of Deposited Shares evidenced
by such Round-lot Receipts. If any Receipts shall remain outstanding after the
date of termination, the Trustee thereafter shall discontinue the registration
of transfers of Receipts, shall suspend the distribution of dividends to the
Owners thereof, and shall not give any further notices or perform any further
acts under this Trust Agreement, except that the Trustee shall continue to
collect dividends and other distributions pertaining to Deposited Shares, shall
sell rights as provided in this Trust Agreement, and shall continue to deliver
Deposited Shares, together with any dividends or other distributions received
with respect thereto and the net proceeds of the sale of any rights or other
property, in exchange for Round-lot Receipts surrendered to the Trustee (after
deducting, in each case, the fee of the Trustee set forth in 5.9 for the
surrender of a Round-lot of 100 Receipts, any expenses for the account of the
Owner of such Receipts in accordance with the terms and conditions of this Trust
Agreement, and any applicable taxes or governmental charges). At any time after
the expiration of one year from the date of termination, the Trustee may sell
the Deposited Shares then held hereunder and may thereafter hold uninvested the
net proceeds of any such sale, together with any other cash then held by it
hereunder, unsegregated and without liability for interest, for the pro rata
benefit of the Owners of Receipts which have not theretofore been surrendered,
such Owners thereupon becoming general creditors of the Trustee with respect to
such net proceeds. After making such sale, the Trustee shall be discharged from
all obligations under this Trust Agreement, except to account for such net
proceeds and other cash (after deducting, in each case, the fee of the Trustee
for the surrender of a Round-lot of 100 Receipts, any fees of the Trustee due
and owing from the Owner of such Receipts pursuant to Section 5.9(b), any
expenses for the account of the Owner of such Receipts in accordance with the
terms and conditions of this Agreement, and any applicable taxes or governmental
charges.
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ARTICLE 7
MISCELLANEOUS
Section 7.1. Counterparts. This Trust Agreement may be
executed in any number of counterparts, each of which shall be deemed an
original and all of such counterparts shall constitute one and the same
instrument. Copies of this Trust Agreement shall be filed with the Trustee and
shall be open to inspection by any Owners or Owner of a Receipts during business
hours.
Section 7.2. Third-Party Beneficiaries. This Trust Agreement
is for the exclusive benefit of the parties hereto and the Owners of Receipts,
and shall not be deemed to give any legal or equitable right, remedy or claim
whatsoever to any other person.
Section 7.3. Severability. In case any one or more of the
provisions contained in this Trust Agreement or in the Receipts should be or
become invalid, illegal or unenforceable in any respect, the validity, legality
and enforceability of the remaining provisions contained herein or therein shall
in no way be affected, prejudiced or disturbed thereby.
Section 7.4. Owners and Owners as Parties; Binding Effect. The
Owners and Owners of Receipts from time to time shall be parties to this Trust
Agreement and shall be bound by all of the terms and conditions hereof and of
the Receipts by acceptance thereof.
Section 7.5. Notices. Any and all notices to be given to the
Trustee shall be deemed to have been duly given if personally delivered or sent
by mail or cable, telex or facsimile transmission confirmed by letter, addressed
to [ ], or any other place to which the Trustee may have transferred its
Corporate Trust Office.
Any and all notices to be given to any Owner shall be deemed
to have been duly given if personally delivered or sent by mail or cable, telex
or facsimile transmission confirmed
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by letter, addressed to such Owner at the address of such Owner as it appears on
the transfer books of the Trustee, or, if such Owner shall have filed with the
Trustee a written request that notices intended for such Owner be mailed to some
other address, at the address designated in such request.
Delivery of a notice sent by mail or cable, telex or facsimile
transmission shall be deemed to be effected at the time when a duly addressed
letter containing the same (or a confirmation thereof in the case of a cable,
telex or facsimile transmission) is deposited, postage prepaid, in a post-office
letter box. The Trustee may, however, act upon any cable, telex or facsimile
transmission received by them, notwithstanding that such cable, telex or
facsimile transmission shall not subsequently be confirmed by letter as
aforesaid.
Section 7.6. Governing Law. This Trust Agreement and the
Receipts shall be interpreted and all rights hereunder and thereunder and
provisions hereof and thereof shall be governed by the laws of the State of New
York.
Section 7.7. Compliance with U.S. Shares Laws. Notwithstanding
anything in this Trust Agreement to the contrary, the Depositary agrees that it
will not exercise any rights it has under this Trust Agreement to prevent the
withdrawal or delivery of Deposited Shares in a manner which would violate the
U.S. Shares laws.
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IN WITNESS WHEREOF, THE LEGAL ENTITIES CREATED BY THE
RESPECTIVE TRUST AGREEMENTS FOR ISSUANCE OF RECEIPTS REPRESENTING SHARES OF [ ]
have duly executed this agreement as of the day and year first set forth above
and all Owners shall become parties hereto upon acceptance by them of Receipts
issued in accordance with the terms hereof.
Legal entity created by the agreement
for the issuance of Receipts evidencing
Shares issued by [ ].
By: [ ]
As Trustee
By:
Name:
Title:
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Exhibit A to Trust Agreement
[Form of Global ABC Receipt]
UNLESS THIS GLOBAL RECEIPT IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY FOR REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY
CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF A NOMINEE OF THE DEPOSITORY (AND
ANY PAYMENT IS MADE TO A NOMINEE OF THE DEPOSITORY), ANY TRANSFER, PLEDGE OR
OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH
AS THE REGISTERED OWNER HEREOF HAS AN INTEREST HEREIN.
UNLESS AND UNTIL IT IS EXCHANGED IN WHOLE OR IN PART FOR THE INDIVIDUAL
CERTIFICATES REPRESENTED HEREBY, THIS GLOBAL RECEIPT MAY NOT BE TRANSFERRED
EXCEPT AS A WHOLE BY THE DEPOSITORY TO A NOMINEE OF THE DEPOSITORY OR BY A
NOMINEE OF THE DEPOSITORY TO THE DEPOSITORY OR TO ANOTHER NOMINEE OF THE
DEPOSITORY OR BY THE DEPOSITORY OR ANY SUCH NOMINEE TO A SUCCESSOR DEPOSITORY OR
A NOMINEE OF SUCH SUCCESSOR DEPOSITORY.
THIS RECEIPT REPRESENTS A FRACTIONAL UNDIVIDED INTEREST IN THE TRUST AND DOES
NOT EVIDENCE AN OBLIGATION OF, OR AN INTEREST IN, AND IS NOT GUARANTEED BY THE
INITIAL DEPOSITOR OR THE TRUSTEE OR ANY OF THEIR RESPECTIVE AFFILIATES. NEITHER
THIS RECEIPT NOR THE DEPOSITED SHARES ARE INSURED OR GUARANTEED BY ANY
GOVERNMENTAL AGENCY OR ANY OTHER PERSON.
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GLOBAL DEPOSITARY RECEIPT
FOR RECEIPTS ISSUED BY
ABC TRUST SERIES 1999A
REPRESENTING COMMON STOCK OF
[LIST COMPANIES HERE]
THE BANK OF NEW YORK, as Trustee
No. CUSIP NO.
Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx Incorporated, as
depositor (hereinafter called the "Depositor"), hereby certifies that _______,
or registered assigns IS THE OWNER OF_________ Receipts issued by ABC Trust
Series 1999A representing common stock of [LIST COMPANIES HERE]. At the date
hereof, each round lot of 100 Receipts represents an individual and undivided
ownership interest in the whole number of shares of the common stock of the
following [ ] companies:
---------------------------------
|Name of Company | Share Amounts|
---------------------------------
| | |
---------------------------------
| | |
---------------------------------
which is either deposited or subject to deposit under the Trust Agreement at the
Corporate Trust Office of the Depositary (herein called the "Trustee"). [The
Trustee's Corporate Trust Office is located at a different address than its
principal executive office. Its Corporate Trust Office is located at
________________, and its principal executive office is located at
_______________.
THE TRUSTEE'S CORPORATE TRUST OFFICE ADDRESS IS
-------------------
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[reverse of Global ABC Receipt]
Capitalized terms used herein shall have the meanings assigned
to them in the Standard Terms for Depositary Trust Agreements unless otherwise
indicated.
1. THE DEPOSITARY TRUST AGREEMENT.
This Global Receipt is issued upon the terms and conditions set forth
in the Standard Terms for Depositary Trust Agreements, dated as of ___________,
1999 (the "Trust Agreement"), by and among the Trust, the Trustee, the Initial
Depositor and the Securities Intermediary. By becoming an Owner, such Person
agrees to become a party to the Trust Agreement and become bound by all the
terms and conditions thereof. The Trust Agreement sets forth the rights of
Owners and the rights and duties of the Trustee in respect of the Shares
deposited thereunder and any and all other Shares, property and cash from time
to time received in respect of such Shares and held thereunder (such Shares,
property, and cash are herein called "Deposited Shares"). Copies of the Trust
Agreement are on file at the Trustee's Corporate Trust Office in New York City.
The statements made on the face and reverse of this Global Receipt are
summaries of certain provisions of the Trust Agreement and are qualified by and
subject to the detailed provisions of the Trust Agreement, to which reference is
hereby made. Capitalized terms not defined herein shall have the meanings set
forth in the Trust Agreement.
2. SURRENDER OF RECEIPTS AND WITHDRAWAL OF SHARES.
Upon (i) receipt by the Trustee of a written request reasonably
satisfactory to it, (ii) surrender at the Corporate Trust Office of the Trustee
of a Round-lot of 100 Receipts or any integral multiple thereof for the purpose
of withdrawal of the Deposited Shares evidenced by each Round-lot Receipt, and
(iii) upon payment of the fee of the Trustee for the surrender of Receipts as
provided in Trust Agreement and payment of all taxes and governmental charges
payable in connection with such surrender and withdrawal of the Deposited
Shares, and subject to the terms and conditions of this Trust Agreement, the
Owner of such Round-lot of 100 Receipts shall be entitled to delivery of the
amount of Deposited Shares at the time evidenced by such Round-lot of 100
Receipts.
3. TRANSFERS OF RECEIPTS.
The transfer of this Receipts is registrable on the books of the
Trustee at its Corporate Trust Office by the Owner hereof in person or by a duly
authorized attorney, upon surrender of this Receipts properly endorsed for
transfer or accompanied by proper instruments of transfer and funds sufficient
to pay any applicable transfer taxes and the expenses of the Trustee and upon
compliance with such regulations, if any, as the Trustee may establish for such
purpose. As a condition precedent to the execution and delivery, registration of
transfer, or surrender of any Receipt or withdrawal of any Deposited Shares, the
Depositary or Registrar may require payment from the depositor of Shares or the
presentor of the Round-lot Receipts of a sum sufficient to reimburse it for any
tax or other governmental charge and any stock transfer or registration fee
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with respect thereto (including any such tax or charge and fee with respect to
Shares being deposited or withdrawn) and payment of any applicable fees as
provided in this Receipts, may require the production of proof satisfactory to
it as to the identity and genuineness of any signature and may also require
compliance with any regulations the Trustee may establish consistent with the
provisions of the Trust Agreement or this Receipts.
The delivery of Receipts against deposits of Shares may be suspended,
or the transfer of Receipts in particular instances may be refused, or the
registration of transfer of outstanding Receipts generally may be suspended,
during any period when the transfer books of the Depositary are closed. Without
limitation of the foregoing, the Trustee shall not knowingly accept for deposit
under the Trust Agreement any Shares required to be registered under the
provisions of the Shares Act of 1933, unless a registration statement is in
effect as to such Shares.
The Trustee shall not execute and deliver Receipts under Section 2.3 of
the Trust Agreement, or accept for surrender and cancellation Receipts under
Section 2.5, except to the extent such Receipts represent a Round-lot Receipts,
or any integral multiple thereof.
4. LIABILITY OF OWNER FOR TAXES.
If any tax or other governmental charge shall become payable with
respect to any Receipts or any Deposited Shares represented hereby, such tax or
other governmental charge shall be payable by the Owner hereof to the Trustee.
The Trustee shall refuse to effect any transfer of this Receipts or any
withdrawal of Deposited Shares represented by a Round-lot Receipts until such
payment is made, and may withhold any dividends or other distributions, or may
sell for the account of the Owner hereof any part or all of the Deposited Shares
evidenced by a Round-lot Receipts, and may apply such dividends or other
distributions of the proceeds of any such sale in payment of such tax or other
governmental charge and the Owner hereof shall remain liable for any deficiency.
5. WARRANTIES OF DEPOSITORS.
Every person depositing Shares under the Depositary Trust Agreement
shall be deemed thereby to represent and warrant that such Shares and each
certificate therefor are validly issued and fully paid, and that the person
making such deposit is duly authorized so to do. Every such person shall also be
deemed to represent that the deposit of such Shares by that person are not
restricted under the Shares Act of 1933. Such representations and warranties
shall survive the deposit of Shares and issuance of Receipts.
6. CHARGES OF TRUSTEE.
The following charges shall be incurred by any party depositing or
withdrawing Shares or by any party surrendering Receipts or to whom Receipts are
issued: (1) taxes and other governmental charges, (2) such cable, telex and
facsimile transmission expenses as are expressly provided in this Trust
Agreement, (3) a fee of $10 or less per Round-lot of 100 Receipt for the
execution and delivery of Receipts pursuant to Section 2.6, 4.3 or 4.4, and the
surrender of
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Receipts pursuant to Section 2.8 or 6.2, (4) a fee for the distribution of
Shares pursuant to Section 4.2, such fee being in an amount equal to the fee for
the execution and delivery of Deposited Shares referred to above which would
have been charged as a result of the deposit of such Shares (for purposes of
this clause (4) treating all such Shares as if they were Deposited Shares), but
which Shares are instead distributed by the Trustee to Owners, and (5) a fee of
[ ] or less per Receipts per year for acting as Trustee hereunder (which fee
shall be assessed against Owners of record as of the date or dates set by the
Trustee in accordance with Section 4.06 and shall be collected at the sole
discretion of the Trustee by billing such Owners for such fee or by deducting
such fee from one or more cash dividends or other cash distributions).
The Trustee, subject to Article (8) hereof, may own and deal in any
class of Shares of the Deposited Shares Issuers and their affiliates in
Receipts.
7. LOANS AND PRE-RELEASE OF SHARES AND RECEIPTS.
Notwithstanding Section 2.3 of the Trust Agreement, the Trustee may
execute and deliver Receipts prior to the receipt of Shares pursuant to Section
2.2 of the Trust Agreement ("Pre-Release"). The Trustee may, pursuant to Section
2.5 of the Trust Agreement, deliver Shares upon the receipt and cancellation of
Receipts which have been Pre-Released, whether or not such cancellation is prior
to the termination of such Pre-Release or the Trustee knows that such Receipts
has been Pre-Released. The Trustee may receive Receipts in lieu of Shares in
satisfaction of a Pre-Release. Each Pre-Release will be (a) preceded or
accompanied by a written representation from the person to whom Receipts are to
be delivered that such person, or its customer, owns the Shares or Receipts to
be remitted, as the case may be, (b) at all times fully collateralized with cash
or such other collateral as the Trustee deems appropriate, (c) terminable by the
Trustee on not more than five (5) business days notice, and (d) subject to such
further indemnities and credit regulations as the Trustee deems appropriate. The
number of Receipts which are outstanding at any time as a result of Pre-Releases
will not normally exceed thirty percent (30%) of the Shares deposited under the
Trust Agreement; provided, however, that the Trustee reserves the right to
change or disregard such limit from time to time as it may determine.
The Trustee may retain for its own account any compensation received by
it in connection with the foregoing.
8. TITLE TO RECEIPTS.
It is a condition of this Receipt and every successive Owner and Owner
of this Receipt by accepting or holding the same consents and agrees, that title
to this Receipt when properly endorsed or accompanied by proper instruments of
transfer, is transferable by delivery with the same effect as in the case of a
negotiable instrument under the laws of the State of New York; provided,
however, that the Trustee, notwithstanding any notice to the contrary, may treat
the person in whose name this Receipt is registered on the books of the Trustee
as the absolute owner hereof for the purpose of determining the person entitled
to distribution or dividends or
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other distributions or to any notice provided for in the Trust Agreement and for
all other purposes.
9. VALIDITY OF RECEIPTS.
This Receipt shall not be entitled to any benefits under the Trust
Agreement or be valid or obligatory for any purpose, unless this Receipt shall
have been executed by the Trustee by the manual or facsimile signature of a duly
authorized signatory of the Trustee and, if a Registrar for the Receipts shall
have been appointed, countersigned by the manual or facsimile signature of a
duly authorized officer of the Registrar.
10. REPORTS; INSPECTION OF TRANSFER BOOKS.
The issuer of the Shares represented by the Deposited Shares is subject
to the periodic reporting requirements of the Shares Exchange Act of 1934 and,
accordingly, files certain reports with the Shares and Exchange Commission
(herein called the "Commission"). Such reports and communications will be
available for inspection and copying at the public reference facilities
maintained by the Commission located at 000 Xxxxx Xxxxxx, XX, Xxxxxxxxxx, XX
00000.
The Depositary will make available for inspection by Owners of Receipts
at its Corporate Trust Office any reports and communications, including any
proxy soliciting material, received from the Deposited Shares Issuer which are
both (a) received by the Trustee as the Owners of Deposited Shares and (b) made
generally available to the Owners of such Deposited Shares by the Deposited
Shares Issuer.
The Trustee shall keep books for the registration of Receipts and
transfers of Receipts which at all reasonable times shall be open for inspection
by the Owners of Receipts, provided that such inspection shall not be for the
purpose of communicating with Owners of Receipts in the interest of a business
or object other than the business of the Deposited Shares Issuer or a matter
related to the Trust Agreement or the Receipts.
11. DIVIDENDS AND DISTRIBUTIONS.
Whenever the Trustee shall receive any cash dividend or other cash
distribution on any Deposited Shares, the Trustee shall, subject to the Trust
Agreement, distribute the amount thus received (net of the fees of the Trustee
as provided in the Trust Agreement, if applicable) to the Owners of Receipts
entitled thereto, provided, however, that the Trustee shall use its reasonable
efforts to ensure that it makes such distribution no later than the end of the
calendar quarter following the calendar quarter in which the Trustee receives
such distribution; and provided further, however, that in the event that the
respective Deposited Shares Issuer or the Trustee shall be required to withhold
and does withhold from such cash dividend or such other cash distribution in
respect of any Deposited Shares an amount on account of taxes, the amount
distributed to the Owners of the Receipts representing such Deposited Shares
shall be reduced accordingly.
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Subject to the provisions of Sections 4.11 and 5.9 of the Trust
Agreement, whenever the Trustee shall receive any distribution other than a
distribution described in Sections 4.1, 4.3 or 4.4 of the Trust Agreement, the
Trustee shall cause the Shares or property received by it to be distributed to
the Owners of Receipts entitled thereto, in any manner that the Trustee may deem
equitable and practicable for accomplishing such distribution; provided,
however, that if in the opinion of the Trustee such distribution cannot be made
proportionately among the Owners of Receipts entitled thereto, or if for any
other reason (including, but not limited to, any requirement that a Deposited
Shares Issuer or the Trustee withhold an amount on account of taxes or other
governmental charges or that such Shares must be registered under the Shares Act
of 1933 in order to be distributed to Owners or Owners) the Trustee deems such
distribution not to be feasible, the Trustee shall adopt such method as it deems
equitable and practicable for the purpose of effecting such distribution,
including, but not limited to, the public or private sale of the Shares or
property thus received, or any part thereof, and the net proceeds of such sale
(net of the fees of the Trustee as provided in Section 5.9 of the Trust
Agreement) shall be distributed by the Trustee to the Owners of Receipts
entitled thereto as in the case of a distribution received in cash.
If any distribution upon any Deposited Shares consists of a dividend
in, or free distribution of, Shares, the Trustee shall distribute to the Owners
of outstanding Receipts entitled thereto, the amount of Shares received as such
dividend or free distribution, subject to the terms and conditions of the Trust
Agreement with respect to the deposit of Shares, including the withholding of
any tax or other governmental charge as provided in Section 4.11 of the Trust
Agreement and the payment of the fees of the Trustee as provided in Section 5.9
of the Trust Agreement. In lieu of the Trustee distributing such additional
Shares, as provided in the preceding sentence, the Trustee may retain such
Shares under the Trust Agreement, in which case each Round-lot Receipts shall
thenceforth also represent such Shares and such Shares shall be treated as
additional Deposited Shares under the Trust Agreement.
In the event that the Trustee determines that any distribution in
property (including Shares and rights to subscribe therefor) is subject to any
tax or other governmental charge which the Trustee is obligated to withhold, the
Trustee shall by public or private sale dispose of all or a portion of such
property (including Shares and rights to subscribe therefor) in such amounts and
in such manner as the Trustee deems necessary and practicable to pay any such
taxes or charges and the Trustee shall distribute the net proceeds or any such
sale after deduction of such taxes or charges to the Owners of Receipts entitled
thereto.
12. [RESERVED].
13. RIGHTS.
In the event that a Deposited Shares Issuer shall offer or cause to be
offered to the Owners of any Deposited Shares any rights to subscribe for
additional Shares or any rights of any other nature, the Trustee shall act in
making such rights available to any Owners or in disposing of
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such rights on behalf of any Owners and making the net proceeds available to
such Owners or in allowing the rights to lapse.
If an Owner of Receipts requests distribution of warrants or other
instruments in respect to such rights, notwithstanding that there has been no
such registration under such Act, the Trustee shall not effect such distribution
unless it has received an opinion from recognized counsel for the issuer of the
Shares involved upon which the Trustee may rely that such distribution to such
Owner is exempt from such registration.
The Trustee shall not be responsible for any failure to determine that
it may be lawful or feasible to make such rights available to Owners in general
or any Owner in particular.
14. RECORD DATES.
Whenever any cash dividend or other cash distribution shall become
payable or any distribution other than cash shall be made, or whenever rights
shall be issued with respect to the Deposited Shares, or whenever a fee shall be
changed by the Trustee under Section 5.9(5) of the Trust Agreement, or whenever
for any reason the Trustee causes a change in the number of Shares that are
represented by each Round-lot Receipts, or whenever the Trustee shall be
instructed to act in respect to any meeting of Owners of Shares represented by
Deposited Shares, the Trustee shall fix a record date (a) for the determination
of the Owners of Receipts who shall be (i) entitled to receive such dividend,
distribution or rights or the net proceeds of the sale thereof or (ii) required
to pay such fee, or (iii) entitled to give instructions for the exercise of
voting rights at any such meeting, or (b) on or after which each Receipts will
represent the changed number of Shares, subject to the provisions of the Trust
Agreement. In the case of subsections (a)(i) and (a)(iii) of this Article (14),
the Trustee shall use its reasonable efforts to ensure that the record date set
under the Trust Agreement will be the same as the record date set by the
Deposited Shares Issuer.
15. VOTING OF DEPOSITED SHARES.
Upon receipt by the Trustee of notice of any meeting of Owners of
Shares represented by Deposited Shares, the Trustee shall mail to the Owners of
Receipts a notice which shall contain (a) such information as is contained in
such notice of meeting, (b) a statement that the Owners of Receipts as of the
close of business on a specified record date will be entitled, subject to any
applicable provision of federal or state law, to instruct the Trustee as to the
exercise of the voting rights, if any, pertaining to the amount of Deposited
Shares represented by their respective Round-lot Receipts and (c) a statement as
to the manner in which such instructions may be given. Upon the written request
of an Owner of a Receipts on such record date, received on or before the date
established by the Trustee, the Trustee shall endeavor, in so far as
practicable, to vote or cause to be voted the amount of Shares represented by
the Deposited Shares evidenced by such Receipts in accordance with the
instructions set forth in such request. The Trustee shall vote or attempt to
exercise the right to vote that attaches to the Shares represented by the
Deposited Shares in accordance with such instructions or deemed instructions.
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There can be no assurance that Owners generally or any Owner in
particular will receive the notice described in the preceding paragraph
sufficiently prior to the Instruction Date to ensure that the Trustee will vote
the Shares represented by the Trustee in accordance with the provisions set
forth in the preceding paragraph.
16. CHANGES AFFECTING DEPOSITED SHARES.
In circumstances where the provisions of Section 4.3 of the Trust
Agreement do not apply, upon any change in nominal value, change in par value,
split-up, consolidation or any other reclassification of any Shares represented
by Deposited Shares, or upon any recapitalization, reorganization, merger or
consolidation, or sale of assets affecting the issuer of such Shares or to which
it is a party, any Shares which shall be received by the Trustee in exchange for
or in conversion of or in respect of Deposited Shares shall be distributed to
Owners of Round-lot Receipts
17. LIABILITY OF THE INITIAL DEPOSITOR AND THE TRUSTEE.
Neither the Initial Depositor nor the Trustee shall incur any liability
to any Owner or Owners of any Receipt, if by reason of any provision of any
present or future law or regulation of the United States or any other country,
or of any governmental or regulatory authority or stock exchange, or by reason
of any act of God or war or other circumstances beyond its control, the Initial
Depositor or the Trustee shall be prevented or forbidden from, or be subject to
any civil or criminal penalty on account of, doing or performing any act or
thing which by the terms of the Trust Agreement it is provided shall be done or
performed; nor shall the Initial Depositor or the Trustee incur any liability to
any Owner or Owners of a Receipts by reason of any non-performance or delay,
caused as aforesaid, in the performance of any act or thing which by the terms
of the Deposit Agreement it is provided shall or may be done or performed, or by
reason of any exercise of, or failure to exercise, any discretion provided for
in the Trust Agreement. Where, by the terms of a distribution pursuant to
Sections 4.1, 4.2 or 4.3 of the Trust Agreement, or an offering or distribution
pursuant to Section 4.4 of the Trust Agreement, or for any other reason, such
distribution or offering may not be made available to Owners of Receipts, and
the Trustee may not dispose of such distribution or offering on behalf of such
Owners and make the net proceeds available to such Owners, then the Trustee
shall not make such distribution or offering, and shall allow any rights, if
applicable, to lapse. The Trustee shall not be subject to any liability with
respect to the validity or worth of the Deposited Shares. Neither the Initial
Depositor nor the Trustee shall be under any obligation to appear in, prosecute
or defend any action, suit or other proceeding in respect of any Deposited
Shares or in respect of the Receipts. Neither the Initial Depositor nor the
Trustee shall be liable for any action or nonaction by it in reliance upon the
advice of or information from legal counsel, accountants, any person presenting
Shares for deposit, any Owner or Owners of a Receipts, or any other person
believed by it in good faith to be competent to give such advice or information.
The Trustee shall not be liable for any acts or omissions made by a successor
depositary whether in connection with a previous act or omission of the Trustee
or in connection with any matter arising wholly after the resignation of the
Trustee, provided that in connection with the issue out of which such potential
liability arises the Trustee performed its obligations without negligence or bad
faith while it acted as Trustee.
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None of the Initial Depositor or Trustee shall be responsible for any failure to
carry out any instructions to vote any of the Shares represented by Deposited
Shares, or for the manner in which any such vote is cast or the effect of any
such vote, provided that any such action or nonaction is in good faith. No
disclaimer of liability under the Shares Act of 1933 is intended by any
provision of the Trust Agreement.
18. RESIGNATION OF THE TRUSTEE.
The Trustee may at any time resign as Trustee under the Trust Agreement
by written notice of its election so to do delivered to the Owners, such
resignation to take effect no earlier than sixty (60) days after the date of
such notice. Whenever the Trustee in its discretion determines that it is in the
best interest of the Owners of Receipts to do so, it may appoint an additional
Trustee or Trustees.
19. AMENDMENT.
The form of the Receipts and any provisions of the Trust Agreement may
at any time and from time to time be amended by agreement between the Initial
Depositor and the Trustee in any respect which they may deem necessary or
desirable. Any amendment which shall impose or increase any fees or charges
(other than taxes and other governmental charges, registration fees, cable,
telex or facsimile transmission costs, delivery costs or other such expenses),
or which shall otherwise prejudice any substantial existing right of Owners of
Receipts, shall, however, not become effective as to outstanding Receipts until
the expiration of thirty days after notice of such amendment shall have been
given to the Owners of outstanding Receipts. Every Owner of a Receipts at the
time any amendment so becomes effective shall be deemed, by continuing to hold
such Receipts, to consent and agree to such amendment and to be bound by the
Trust Agreement as amended thereby. In no event shall any amendment impair the
right of the Owner of any Round-lot Receipts to surrender such Receipts and
receive therefor the Deposited Shares represented thereby, except in order to
comply with mandatory provisions of applicable law.
20. TERMINATION OF TRUST AGREEMENT.
The Trustee shall terminate the Trust Agreement by mailing notice of
such termination to the Owners of all Receipts then outstanding if at any time
60 days shall have expired after the Trustee shall have delivered to the Owners
a written notice of its election to resign and a successor Trustee shall not
have been appointed and accepted its appointment as provided in the Trust
Agreement. On and after the date of termination, the Owner of a Round-lot
Receipts will, upon (a) surrender of such Round-lot Receipts at the Corporate
Trust Office of the Trustee, (b) payment of the fee of the Trustee for the
surrender of Receipts referred to in Section 2.5 of the Trust Agreement and (c)
payment of any applicable taxes or governmental charges, be entitled to
delivery, to him or upon his order, of the amount of Deposited Shares evidenced
by such Round-lot Receipts. If any Receipts shall remain outstanding after the
date of termination, the Trustee thereafter shall discontinue the registration
of transfers of Receipts, shall suspend the distribution of dividends to the
Owners thereof, and shall not give any further notices or perform any further
acts under the Trust Agreement, except that the Trustee shall continue to
collect dividends and other distributions pertaining to Deposited Shares, shall
sell rights as provided in
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the Trust Agreement, and shall continue to deliver Deposited Shares, together
with any dividends or other distributions received with respect thereto and the
net proceeds of the sale of any rights or other property, in exchange for
Round-lot Receipts surrendered to the Trustee (after deducting, in each case,
the fee of the Trustee for the surrender of a Round-lot Receipts, any expenses
for the account of the Owner of such Round-lot Receipts in accordance with the
terms and conditions of the Trust Agreement and any applicable taxes or
governmental charges). At any time after the expiration of one year from the
date of termination, the Trustee may sell the Deposited Shares then held under
the Trust Agreement and may thereafter hold uninvested the net proceeds of any
such sale, together with any other cash then held by it thereunder, unsegregated
and without liability for interest, for the pro rata benefit of the Owners of
Receipts which have not theretofore been surrendered, such Owners thereupon
becoming general creditors of the Trustee with respect to such net proceeds.
After making such sale, the Trustee shall be discharged from all obligations
under the Trust Agreement, except to account for such net proceeds and other
cash (after deducting, in each case, the fee of the Trustee for the surrender of
a Round-lot Receipts, any fees of the Trustee due and owing from the Owner of
such Round-lot Receipts pursuant to Section 5.9(5) of the Trust Agreement, any
expenses for the account of the Owner of such Round-lot Receipts in accordance
with the terms and conditions of the Trust Agreement, and any applicable taxes
or governmental charges). Upon the termination of the Trust Agreement, the
Trustee shall be discharged from all obligations under the Trust Agreement.
21. COMPLIANCE WITH U.S. SECURITIES LAWS.
Notwithstanding anything in the Trust Agreement or this Receipt to the
contrary, the Trustee agrees that it will not exercise any rights it has under
the Trust Agreement to permit the withdrawal or delivery of Deposited Shares in
a manner which would violate the U.S. Shares law.
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