EXHIBIT (a)(2)
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AMENDED AND RESTATED
TRUST AGREEMENT
CONSTITUTING
▇▇▇▇▇▇ STRYPES TRUST
Dated as of September 15, 1997
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TABLE OF CONTENTS
PAGE
ARTICLE I
DEFINITIONS
SECTION 1.1 DEFINITIONS.............................................. 2
ARTICLE II
TRUST DECLARATION; PURPOSES, POWERS
AND DUTIES OF THE TRUSTEES; ADMINISTRATION
SECTION 2.1 NAME.................................................... 7
SECTION 2.2 OFFICE.................................................. 7
SECTION 2.3 RATIFICATION AND APPROVAL OF ACTION OF THE
TRUSTEES................................................ 7
SECTION 2.4 DECLARATION OF TRUST; PURPOSES OF THE TRUST............. 7
SECTION 2.5 GENERAL POWERS AND DUTIES OF THE TRUSTEES............... 7
SECTION 2.6 PORTFOLIO ACQUISITION................................... 9
SECTION 2.7 PORTFOLIO ADMINISTRATION................................ 9
SECTION 2.8 MANNER OF SALES......................................... 12
SECTION 2.9 LIMITATIONS ON TRUSTEES' POWERS......................... 12
ARTICLE III
ACCOUNTS AND PAYMENTS
SECTION 3.1 THE TRUST ACCOUNT....................................... 13
SECTION 3.2 DISTRIBUTIONS TO HOLDERS................................ 13
SECTION 3.3 SEGREGATION............................................. 13
SECTION 3.4 INVESTMENTS............................................. 14
ARTICLE IV
REDEMPTION
SECTION 4.1 REDEMPTION.............................................. 14
ARTICLE V
ISSUANCE OF CERTIFICATES;
REGISTRY; TRANSFER OF STRYPES
SECTION 5.1 FORM OF CERTIFICATE..................................... 14
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SECTION 5.2 TRANSFER OF STRYPES; ISSUANCE, TRANSFER AND
INTERCHANGE OF CERTIFICATES.............................. 15
SECTION 5.3 REPLACEMENT OF CERTIFICATES.............................. 15
SECTION 5.4 LIMITATION ON LIABILITY.................................. 16
SECTION 5.5 GENERAL PROVISIONS REGARDING THE STRYPES................. 16
ARTICLE VI
EXECUTION OF THE CONTRACT
SECTION 6.1 EXECUTION OF THE CONTRACT................................ 16
ARTICLE VII
TRUSTEES
SECTION 7.1 TRUSTEES................................................ 16
SECTION 7.2 VACANCIES............................................... 17
SECTION 7.3 POWERS.................................................. 17
SECTION 7.4 MEETINGS................................................ 17
SECTION 7.5 RESIGNATION AND REMOVAL................................. 18
SECTION 7.6 LIABILITY............................................... 18
SECTION 7.7 COMPENSATION............................................ 18
ARTICLE VIII
MISCELLANEOUS
SECTION 8.1 MEETINGS OF HOLDERS.................................... 19
SECTION 8.2 BOOKS AND RECORDS; REPORTS............................. 19
SECTION 8.3 DISSOLUTION............................................ 20
SECTION 8.4 AMENDMENT AND WAIVER................................... 21
SECTION 8.5 ACCOUNTANTS............................................ 22
SECTION 8.6 NATURE OF HOLDER'S INTEREST............................ 22
SECTION 8.7 DELAWARE LAW TO GOVERN................................. 23
SECTION 8.8 NOTICES................................................ 23
SECTION 8.9 SEVERABILITY........................................... 23
SECTION 8.10 COUNTERPARTS........................................... 23
SECTION 8.11 SUCCESSORS AND ASSIGNS................................. 23
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AMENDED AND RESTATED TRUST AGREEMENT
This Amended and Restated Trust Agreement, dated as of September , 1997
(the "Trust Agreement"), by and among ML IBK Positions, Inc., as sponsor (the
"Sponsor"), ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ III and ▇▇▇▇▇ ▇. ▇'▇▇▇▇▇, as
trustees (the "Trustees"), and the Holders (as defined herein), constituting
▇▇▇▇▇▇ STRYPES Trust (the "Trust").
W I T N E S S E T H:
- - - - - - - - - -
WHEREAS, ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, as depositor (the "Depositor") and ▇▇▇▇▇▇ ▇.
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ III and ▇▇▇▇▇ ▇. ▇'▇▇▇▇▇, as trustees (the
"Trustees"), have previously entered into a Trust Agreement dated as of August
5, 1997 (the "Original Agreement"), creating ▇▇▇▇▇▇ STRYPES Trust;
WHEREAS, the Depositor has transferred her interest in ▇▇▇▇▇▇ STRYPES Trust
to the Sponsor;
WHEREAS, the Trustees hereby ratify and approve the transfer of the
interest of the Depositor in ▇▇▇▇▇▇ STRYPES Trust to the Sponsor;
WHEREAS, the parties hereto desire to amend and restate the Original
Agreement in certain respects; and
WHEREAS, the Trust has previously issued one STRYPES to the Sponsor in
consideration of the aggregate purchase price therefor of $100;
NOW, THEREFORE, the parties hereto agree to amend and restate the Original
Agreement as provided herein. Upon the execution and delivery of counterpart
signature pages hereto by the parties hereto, the Original Agreement will be
automatically amended and restated in its entirety to read as provided herein.
ARTICLE I
DEFINITIONS
SECTION 1.1 DEFINITIONS. Whenever used in this Trust Agreement, the
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following words and phrases shall have the meanings listed below. Any reference
to any agreement shall be a reference to such agreement as supplemented or
amended from time to time.
"ACCELERATION AMOUNT NOTICE" - An Acceleration Amount Notice as defined in
the Contract.
"ACCELERATION VALUE" - The Acceleration Value as defined in the Contract.
"ADMINISTRATION AGREEMENT" - The Administration Agreement between the
Administrator and the Trust, substantially in the form of Exhibit E hereto, and
any substitute agreement therefor entered into pursuant to Section 2.5(a)
hereof.
"ADMINISTRATOR" - The Bank of New York, or its successor as permitted under
Section 6.1 of the Administration Agreement or appointed pursuant to Section
2.5(a) hereof.
"AGGREGATE ACCELERATION VALUE" - The Aggregate Acceleration Value as
defined in the Contract.
"BUSINESS DAY" - Any day that is not a Saturday, a Sunday or a day on which
the New York Stock Exchange, The NASDAQ National Market, or banking institutions
or trust companies in The City of New York are authorized or obligated by law or
executive order to close.
"CASH SETTLEMENT OPTION" - The option of each Contracting Stockholder
described in Section 2.5 of the Contract to settle its obligation to deliver
shares of ▇▇▇▇▇▇ Common Stock contained in Section 2.1 of the Contract, in whole
or in part, through a cash payment on the Settlement Date.
"CERTIFICATE" - Any certificate evidencing the ownership of STRYPES
substantially in the form of Exhibit A hereto.
"CLOSING DATE" - The Closing Date as defined in the Contract.
"CODE" - The Internal Revenue Code of 1986, as amended from time to time;
each reference herein to any section of the Code or any regulation thereunder
shall constitute a reference to any successor provision thereto.
"COLLATERAL AGENT" - The Bank of New York or its successor as permitted
under the Security and Pledge Agreement.
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"COMMENCEMENT DATE" - The day on which the Purchase Agreement is executed.
"COMMISSION" - The United States Securities and Exchange Commission, as
from time to time constituted, created under the Exchange Act, or if at any time
after the execution of this Trust Agreement such Commission is not existing or
performing the duties now assigned to it, then the body performing such duties
on such date.
"COMPANY" - ▇▇▇▇▇▇ Communications, Inc., a Delaware corporation.
"COMPANY SUCCESSOR" - Any surviving entity or subsequent surviving entity
of the Company.
"CONTRACT" - The Forward Purchase Contract among the Trust, the Collateral
Agent, as agent and custodian for and on behalf of the Trust, and the
Contracting Stockholders, substantially in the form of Exhibit C hereto.
"CONTRACT CONSIDERATION" - The Contract Consideration as defined in the
Contract.
"CONTRACTING STOCKHOLDER" - Each person named as a "Seller" in the
Contract.
"CUSTODIAN" - The Bank of New York or its successor as permitted under
paragraph 11 of the Custodian Agreement or appointed pursuant to Section 2.5(a)
hereof.
"CUSTODIAN AGREEMENT" - The Custodian Agreement, dated as of September 10,
1997, between the Custodian and the Trust, and any substitute agreement therefor
entered into pursuant to Section 2.5(a) hereof.
"DATE OF DELIVERY" - A Date of Delivery as defined in the Contract.
"DEPOSITARY" - The Depository Trust Company, or any successor thereto.
"DISTRIBUTION DATE" - Each , , and
of each year, commencing , 1997, to and including , 2000 (or if any
such date is not a Business Day, then the first Business Day thereafter).
"EARLY SETTLEMENT DATE" - The Early Settlement Date as defined in the
Contract.
"EVENT OF DEFAULT" - An Event of Default as defined in the Security and
Pledge Agreement.
"EXCHANGE" - The delivery by the Trustees to the Holders of shares of
▇▇▇▇▇▇ Common Stock (or, if one or more Contracting Stockholders elects to
exercise the Cash
3
Settlement Option under the Contract, the amount of cash or combination of cash
and ▇▇▇▇▇▇ Common Stock with an equal value, as specified in the Contract as
payable in respect thereof) in mandatory exchange for the STRYPES on the
Exchange Date.
"EXCHANGE ACT" - The Securities Exchange Act of 1934, as amended from time
to time; each reference herein to any section of such Act or any rule or
regulation thereunder shall constitute a reference to any successor provision
thereto.
"EXCHANGE DATE" - _______ __, 2000.
"FIRM CONSIDERATION AMOUNT" - The Firm Consideration Amount as defined in
the Contract.
"FIRM PAYMENT DATE" - The Firm Payment Date as defined in the Contract.
"HOLDER" - The registered owner of any STRYPES as recorded on the books of
the Paying Agent.
"INDEMNITY AGREEMENT" - The Fund Indemnity Agreement among the Trust,
▇▇▇▇▇▇▇ ▇▇▇▇▇ and the Contracting Stockholders, substantially in the form of
Exhibit D hereto.
"INDEPENDENT DEALERS" - Independent Dealers as defined in the Contract.
"INVESTMENT COMPANY ACT" - The Investment Company Act of 1940, as amended
from time to time; each reference herein to any section of such Act or any rule
or regulation thereunder shall constitute a reference to any successor provision
thereto.
"LIQUIDATION VALUE" - The aggregate proceeds received by the Trust from the
sale of the U.S. Treasury Securities pursuant to Section 2.8(a) hereof.
"MANAGING TRUSTEE" - The Trustee designated the Managing Trustee by
resolution of the Trustees.
"MARKETABLE SECURITIES" - Any securities listed on a U.S. national
securities exchange or reported by The NASDAQ National Market.
"▇▇▇▇▇▇▇ ▇▇▇▇▇" - ▇▇▇▇▇▇▇ ▇▇▇▇▇ & Co., Inc.
"OPTION CONSIDERATION AMOUNT" - The Option Consideration Amount as defined
in the Contract.
"ORIGINAL AGREEMENT" - The meaning specified in the recitals hereof.
"PARTICIPANT" - A Person having an account with the Depositary.
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"PAYING AGENT" - The Bank of New York or its successor as permitted under
Section 6.6 of the Paying Agent Agreement or appointed pursuant to Section
2.5(a) hereof.
"PAYING AGENT AGREEMENT" - The Paying Agent Agreement between the Paying
Agent and the Trust, substantially in the form of Exhibit F hereto, and any
substitute agreement therefor entered into pursuant to Section 2.5(a) hereof.
"PERSON" - An individual, partnership, corporation (including a business
trust), limited liability company, joint stock company, trust, unincorporated
association, joint venture or other entity, or a government or any political
subdivision or agency or instrumentality thereof.
"PROSPECTUS" - The prospectus of the Trust relating to the offering of the
STRYPES and constituting a part of the Registration Statement, as first filed
with the Commission pursuant to Rule 497(b) or (h) under the Securities Act, and
as subsequently amended or supplemented by the Trust.
"PURCHASE AGREEMENT" - The Purchase Agreement among the Trust, the
Contracting Stockholders and the Underwriters relating to the issue and sale of
the STRYPES, as described in the Prospectus.
"QUARTERLY DISTRIBUTION" - $______ (or, in the case of the period from and
including ______ __, 1997 to and including ______ __, 1997, $_______).
"RECORD DATE" - Each , , and of each year,
commencing ____ __, 1997.
"REGISTRATION STATEMENT" - The Registration Statement on Form N-2
(Registration Nos. 333-33707; 811-08337) of the Trust, as amended.
"REORGANIZATION EVENT" - A Reorganization Event as defined in the Contract.
"SECURITIES ACT" - The Securities Act of 1933, as amended from time to
time; each reference herein to any section of such Securities Act or any rule or
regulation thereunder shall constitute a reference to any successor provision
thereto.
"SECURITY AND PLEDGE AGREEMENT" - The Security and Pledge Agreement among
the Collateral Agent, the Contracting Stockholders and the Trust, securing the
obligations of the Contracting Stockholders under the Contract, substantially in
the form of Exhibit B hereto.
"SETTLEMENT DATE" - The Settlement Date as defined in the Contract.
"▇▇▇▇▇▇ COMMON STOCK" - Shares of common stock of the Company to be
exchanged by the Trustees for the STRYPES on the Exchange Date; provided that,
in the event of a reclassification referred to in clause (iv) of Section
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3.1(a) of the Contract, the term "▇▇▇▇▇▇ Common Stock" shall mean the other
common stock of the Company issued pursuant thereto.
"STRYPES" - Structured Yield Product Exchangeable for Stock(SM),
representing a proportionate share of beneficial ownership in the Trust
evidencing a Holder's undivided interest in the Trust and right to receive a pro
rata distribution upon liquidation of the Trust Estate.
"TAX EVENT" - A Tax Event as defined in the Contract.
"TAX EVENT ACCELERATION AMOUNT" - The Tax Event Acceleration Amount as
defined in the Contract.
"TAX EVENT ACCELERATION DATE" - A Tax Event Acceleration Date as defined in
the Contract.
"TAX EVENT CASH SETTLEMENT" - The option of each Contracting Stockholder
described in Section 2.5 of the Contract to settle its obligation to deliver
shares of ▇▇▇▇▇▇ Common Stock contained in Section 7.3 of the Contract, in whole
or in part, through a cash payment on the Tax Event Acceleration Date.
"TEMPORARY INVESTMENTS" - Direct short-term U.S. government obligations, as
specified from time to time by the Trustees or through standing instructions
from the Trustees to the Administrator or the Paying Agent.
"TRANSFER AGENT AND REGISTRAR" - American Stock Transfer & Trust Company,
as transfer agent and registrar for the ▇▇▇▇▇▇ Common Stock.
"TRUST ACCOUNT" - The account created pursuant to Section 3.1 hereof.
"TRUST ESTATE" - The Contract and the U.S. Treasury Securities held at any
time by the Trust, together with any Temporary Investments held at any time
pursuant to Section 3.4 hereof, and any proceeds thereof or therefrom and any
other moneys held at any time in the Trust Account.
"UNDERWRITERS" - The several Underwriters named in the Purchase Agreement.
"U.S. TREASURY SECURITIES" - The meaning specified in Section 2.6(b)
hereof.
____________________________
(SM) Service ▇▇▇▇ of ▇▇▇▇▇▇▇ ▇▇▇▇▇ & Co., Inc.
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ARTICLE II
TRUST DECLARATION; PURPOSES, POWERS
AND DUTIES OF THE TRUSTEES; ADMINISTRATION
SECTION 2.1 NAME. The Trust is named "▇▇▇▇▇▇ STRYPES Trust," as such
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name may be modified from time to time by the Trustees following written notice
to the Holders. The Trust's activities may be conducted under the name of the
Trust or any other name deemed advisable by the Trustees.
SECTION 2.2 OFFICE. The address of the principal office of the Trust is
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c/o Puglisi & Associates, ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇.
On ten Business Days written notice to the Holders the Trustees may designate
another principal office.
SECTION 2.3 RATIFICATION AND APPROVAL OF ACTION OF THE TRUSTEES. The
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Sponsor hereby ratifies and approves any and all actions taken by the Trustees
on behalf of the Trust on or prior to the date hereof in connection with the
registration of the Trust under the Investment Company Act, in connection with
the registration of the offer and sale of the STRYPES under the Securities Act,
or otherwise incident to, or connected with, or necessary to accomplish, the
foregoing or the offer and sale of the STRYPES by the Underwriters and the
operation of the Trust as described in the Prospectus.
SECTION 2.4 DECLARATION OF TRUST; PURPOSES OF THE TRUST. The Sponsor
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hereby creates the Trust in order that it may acquire the U.S. Treasury
Securities, enter into the Contract, issue and sell to the Sponsor and the
several Underwriters the STRYPES, hold the Trust Estate in trust for the use and
benefit of all present and future Holders and otherwise carry out the terms and
conditions of this Trust Agreement, all for the purpose of achieving the
investment objectives set forth in the Prospectus. The Trustees hereby declare
that they will accept and hold the Trust Estate in trust for the use and benefit
of all present and future Holders. The Depositor has heretofore deposited with
the Trustees the sum of $1 to accept and hold in trust hereunder until the
issuance and sale of the STRYPES to the several Underwriters, whereupon such sum
shall be donated to an organization satisfying the requirements of Section
170(c)(2) of the Code selected by unanimous consent of the Trustees.
SECTION 2.5 GENERAL POWERS AND DUTIES OF THE TRUSTEES. In furtherance
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of the provisions of Section 2.4 hereof, the Sponsor authorizes and directs the
Trustees, on behalf of the Trust:
(a) to enter into and perform (and, in accordance with Section 8.4(a)
hereof, amend), the Contract, the Security and Pledge Agreement, the
Purchase Agreement, the Indemnity Agreement, the Custodian Agreement, the
Administration Agreement, the Paying Agent Agreement and the Subscription
Agreement and to perform all obligations of the Trustees (including the
obligation to provide indemnity
7
hereunder and thereunder) and enforce all rights and remedies of the Trust
under each of such agreements; and if any of the Custodian Agreement, the
Administration Agreement, the Security and Pledge Agreement and the Paying
Agent Agreement terminates, or the agent of the Trust thereunder resigns or
is discharged, to appoint a substitute agent and enter into a new agreement
with such substitute agent containing provisions substantially similar to
those contained in the agreement being terminated; provided that in any
such new agreement (i) the Custodian and the Paying Agent shall each be a
commercial bank or trust company organized and existing under the laws of
the United States of America or any state therein, shall have full trust
powers and shall have minimum capital, surplus and retained earnings of not
less than $100,000,000; and (ii) the Administrator and the Collateral Agent
shall each be a reputable financial institution eligible and qualified in
all respects to carry out its obligations under the Administration
Agreement or the Security and Pledge Agreement, as the case may be;
(b) to hold the Trust Estate in trust, to create and administer the
Trust Account, to direct payments received by the Trust to the Trust
Account and to make payments out of the Trust Account as set forth in
Article III hereof;
(c) to issue and sell to the Underwriters an aggregate of up to
4,600,000 STRYPES (including those STRYPES subject to the over-allotment
option of the several Underwriters provided for in the Purchase Agreement)
pursuant to the Purchase Agreement and as contemplated by the Prospectus;
provided, however, that subsequent to the determination of the public
offering price per STRYPES and related underwriting discount for the
STRYPES to be sold to the several Underwriters but prior to the sale of the
STRYPES to the several Underwriters, the STRYPES originally issued to the
Sponsor shall be split into a greater number of STRYPES so that immediately
following such split the value of each STRYPES held by the Sponsor will
equal the aforesaid public offering price per STRYPES;
(d) to select independent public accountants and, subject to the
provisions of Section 8.5 hereof, to engage such independent public
accountants;
(e) to engage legal counsel and, to the extent required by Section 2.7
hereof, to engage professional advisors and pay reasonable compensation
thereto;
(f) to defend any action commenced against the Trustees or the Trust
and to prosecute any action which the Trustees deem necessary to protect
the Trust and the rights and interests of Holders, and to pay the costs
thereof;
(g) to delegate any or all of its powers and duties hereunder as
contemplated by the Custodian Agreement, the Paying Agent Agreement and the
Administration Agreement, to the extent permitted by applicable law; and
(h) to adopt the fundamental policies set forth in the Prospectus, to
adopt and amend a code of regulations, and take any and all such other
actions as necessary
8
or advisable to carry out the purposes of the Trust, subject to the
provisions hereof and applicable law, including, without limitation, the
Investment Company Act.
SECTION 2.6 PORTFOLIO ACQUISITION. In furtherance of the provisions of
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Section 2.4 hereof, the Sponsor further specifically authorizes and directs the
Trustees, acting on behalf of the Trust:
(a) to enter into the Contract with respect to the shares of ▇▇▇▇▇▇
Common Stock subject thereto with the Contracting Stockholders on the
Commencement Date for settlement on the date or dates provided thereunder
and, subject to satisfaction of the conditions set forth in the Contract,
to pay to each Contracting Stockholder the Firm Consideration Amount and
any Option Consideration Amount thereunder. Such payments shall be made
with the proceeds of the sale of the STRYPES, net of (1) the underwriting
discount, (2) the purchase price paid for the U.S. Treasury Securities as
provided in paragraph (b) below, and (3) an amount in cash equal to the
difference between the aggregate amount of all Quarterly Distributions to
be made on the STRYPES and the aggregate proceeds to be received from the
U.S. Treasury Securities upon maturity; and, subject to the adjustments and
exceptions set forth in the Contract, the Contract shall entitle the Trust
to receive from each Contracting Stockholder on the Settlement Date the
shares of ▇▇▇▇▇▇ Common Stock subject thereto (or, if such Contracting
Stockholder elects to exercise the Cash Settlement Option under the
Contract, in whole or in part, an amount of cash or combination of cash and
▇▇▇▇▇▇ Common Stock with an equal value) so that the Trust may execute the
Exchange with the Holders; and
(b) to purchase for settlement on the Firm Payment Date, and on any
Date of Delivery, as appropriate, with the proceeds of the sale the
STRYPES, net of the underwriting discount, U.S. Treasury securities from
such brokers or dealers as the Trustees shall designate in writing to the
Administrator having the terms set forth on Schedule I hereto ("U.S.
Treasury Securities").
SECTION 2.7 PORTFOLIO ADMINISTRATION. In furtherance of the provisions
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of Section 2.4 hereof, the Sponsor further specifically authorizes and directs
the Trustees:
(a) DETERMINATION OF DILUTION ADJUSTMENTS. Upon receipt of any notice
pursuant to Section 6.4(a) of the Contract of an event requiring an
adjustment to the Exchange Rate Formula, or upon otherwise acquiring
knowledge of such an event, to calculate the required adjustment and
furnish notice thereof to the Collateral Agent and the Administrator or to
request from the Administrator such further information as may be necessary
to calculate or effect the required adjustment;
(b) SELECTION OF INDEPENDENT INVESTMENT BANK. At such times and for
such purposes provided in the Contract, to select and retain a nationally
recognized investment banking firm to determine the market value of such
property as provided in the Contract, and to deliver to the Contracting
Stockholders notice pursuant to Section 8.1 of the Contract identifying the
firm proposed to be selected
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and retained, and to consult with the Contracting Stockholders on such
selection and retention as provided in such Section 8.1;
(c) ACCELERATION UPON EVENT OF DEFAULT. Upon receipt of any notice
pursuant to Section 6.4(b) of the Contract that an Event of Default has
occurred, or upon otherwise acquiring notice that an Event of Default has
occurred, to request quotations from Independent Dealers, compute the
Acceleration Value and the Aggregate Acceleration Value and deliver an
Acceleration Amount Notice, in each case with respect to the Contract, all
as described in Section 7.1 of the Contract;
(d) SALE OF U.S. TREASURY SECURITIES UPON TAX EVENT ACCELERATION.
Upon receipt of any notice from the Contracting Stockholders that they are
exercising their option pursuant to Section 7.3 of the Contract to
accelerate the settlement of their obligations thereunder upon the
occurrence of a Tax Event, to (i) to select three United States government
securities primary dealers in The City of New York to provide bids for the
purchase of the U.S. Treasury Securities then held by the Trust as provided
in Section 2.8(a) hereof, (ii) to sell the U.S. Treasury Securities then
held by the Trust at the highest bid received as provided in Section 2.8(a)
hereof and (iii) to provide notice to the Collateral Agent and the
Contracting Stockholders of the Liquidation Value and the Tax Event
Acceleration Amount, all as described in Section 7.3 of the Contract;
(e) DETERMINATION OF CONTRACT CONSIDERATION. To calculate, at such
times and in such manner as provided in the Contract, the aggregate number
of shares of ▇▇▇▇▇▇ Common Stock (or, if the Cash Settlement Option under
the Contract is exercised, in whole or in part, the amount of cash or
combination of cash and ▇▇▇▇▇▇ Common Stock with an equal value) required
to be delivered by each Contracting Stockholder under Sections 2.1, 2.3,
2.4 and 2.5 of the Contract or, if a Reorganization Event shall have
occurred, the amount of cash and/or the aggregate number of units of any
Marketable Security required to be delivered by each Contracting
Stockholder on the Early Settlement Date, all as provided in Section 7.2 of
the Contract or, if the Contracting Stockholders shall have exercised their
option to accelerate the settlement of their obligations under the Contract
upon the occurrence of a Tax Event, the amount of cash and the aggregate
number of shares of ▇▇▇▇▇▇ Common Stock (or, if the Tax Event Cash
Settlement Option under the Contract is exercised, in whole or in part, the
amount of cash or combination of cash and ▇▇▇▇▇▇ Common Stock with an equal
value) required to be delivered by each Contracting Stockholder on the Tax
Event Acceleration Date, all as provided in Section 7.3 of the Contract,
and to furnish notice of the amounts so determined to the Collateral Agent
and the Contracting Stockholders; and
(f) DISTRIBUTION OF CONTRACT CONSIDERATION ON EXCHANGE DATE. Unless
an Event of Default or a Reorganization Event shall have occurred or the
Contracting Stockholders shall have exercised their option to accelerate
the settlement of their obligations under the Contract upon the occurrence
of a Tax Event (in which events distribution of the Contract Consideration
shall be
10
governed by Section 8.3 below) or one or more of the Contracting
Stockholders elects to exercise the Cash Settlement Option, in whole, with
respect to the shares of ▇▇▇▇▇▇ Common Stock otherwise deliverable under
the Contract (in which event the cash received in respect thereof shall be
distributed pro rata to the Holders of STRYPES on the Exchange Date):
(i) DETERMINATION OF FRACTIONAL SHARES. To determine, on
the Exchange Date: (A) for each Holder of STRYPES, such Holder's pro
rata share of the total number of shares of ▇▇▇▇▇▇ Common Stock
delivered to the Trust on the Settlement Date under the Contract; and
(B) the number of fractional shares of ▇▇▇▇▇▇ Common Stock, if any,
allocable to each Holder and in the aggregate;
(ii) CASH FOR FRACTIONAL SHARES. To sell, in the principal
market therefor, on the Exchange Date, a number of shares of ▇▇▇▇▇▇
Common Stock equal to the aggregate number of fractional shares, if
any, determined pursuant to clause (i)(B) above;
(iii) DELIVERY OF SHARES. To deliver the remaining shares
of ▇▇▇▇▇▇ Common Stock to the Transfer Agent and Registrar on the
Exchange Date, with instructions that such shares of ▇▇▇▇▇▇ Common
Stock be re-registered and re-issued as follows:
(A) for and in the name of each Holder (other than the
Depositary) who holds STRYPES in definitive form, the Transfer
Agent and Registrar shall be instructed to issue definitive
certificates representing a number of shares of ▇▇▇▇▇▇ Common
Stock equal to such Holder's pro rata share of the total number
of shares of ▇▇▇▇▇▇ Common Stock delivered to the Trust on the
Settlement Date under the Contract, rounded down to the nearest
integral number; and
(B) the Transfer Agent and Registrar shall be instructed to
transfer all remaining shares of ▇▇▇▇▇▇ Common Stock to the
account of the Custodian held through the Depositary, who shall
then be instructed to transfer and credit such shares of ▇▇▇▇▇▇
Common Stock to each Participant who holds STRYPES, with each
Participant receiving its pro rata share of the total shares of
▇▇▇▇▇▇ Common Stock delivered to the Trust on the Settlement Date
under the Contract, reduced by the aggregate cash value of any
fractional shares of ▇▇▇▇▇▇ Common Stock allocable to such
Participant;
(iv) DISTRIBUTION OF CASH IN RESPECT OF FRACTIONAL SHARES. To
distribute on the Exchange Date to each Holder of STRYPES to which a
fractional share of ▇▇▇▇▇▇ Common Stock is allocable as determined
pursuant to clause (i)(B) above such Holder's pro rata portion of the
proceeds
11
obtained from the liquidation of all fractional shares of ▇▇▇▇▇▇
Common Stock pursuant to clause (ii) above (net of any brokerage or
related expenses); and
(v) RECORD DATE. The distributions described in this
paragraph (f) shall be made to Holders of record as of the close of
business on the Business Day preceding the Exchange Date.
SECTION 2.8 MANNER OF SALES. (a) Upon receipt of any notice from the
---------------
Contracting Stockholders that they are exercising their option pursuant to
Section 7.3 of the Contract to accelerate the settlement of their obligations
thereunder upon the occurrence of a Tax Event, the Trustees on the second
Business Day immediately preceding the Tax Event Acceleration Date shall solicit
cash bids, for settlement on the Business Day immediately preceding the Tax
Event Acceleration Date, from three (or such fewer number of dealers as may be
providing such bids) of the United States government securities primary dealers
in The City of New York listed on Schedule 2.8(a) hereto selected by the
Trustees after consultation with the Contracting Stockholders (which may include
the Administrator or its affiliates) for the purchase by the quoting dealer of
all U.S. Treasury Securities then held by the Trust. If for any reason the
Trustees are unable to obtain the required bid on the second Business Day
preceding the Tax Event Acceleration Date, the Trustees shall attempt to obtain
such bid daily until they are able to obtain the required bid. The Trustees
shall accept the highest bid received that will result in the greatest amount of
proceeds from the sale of the U.S. Treasury Securities then held by the Trust
and shall sell all such U.S. Treasury Securities at that highest bid and the
proceeds from such sale shall be held by the Paying Agent in the Trust Account.
The Trustees shall not be held liable in any way for failure to obtain such
required bid in accordance with this Section 2.8(a).
(b) Any sale of Trust property permitted under Section 8.3(c) hereof shall
be made through such executing brokers or to such dealers as the Trustees,
seeking best price and execution for the Trust, shall designate in writing to
the Paying Agent, taking into account such factors as price, commission, size of
order, difficulty of execution and brokerage skill required.
SECTION 2.9 LIMITATIONS ON TRUSTEES' POWERS. The Trustees, acting on
-------------------------------
behalf of the Trust, are not permitted:
(a) to purchase or hold any securities or instruments except for the
U.S. Treasury Securities, the Contract, shares of ▇▇▇▇▇▇ Common
Stock acquired pursuant to the Contract, the Temporary
Investments contemplated by Section 3.4 hereof, and, in the event
of a Reorganization Event, Marketable Securities;
(b) to dispose of the Contract prior to the Exchange Date;
(c) to issue any securities or instruments except for the STRYPES, or
to issue any STRYPES other than the STRYPES sold to the Sponsor
and
12
the STRYPES to be sold pursuant to the Purchase Agreement and
until such STRYPES have been so purchased and paid for in full;
(d) to make short sales or purchases on margin;
(e) to write put or call options;
(f) to borrow money;
(g) to underwrite securities;
(h) to purchase or sell real estate, commodities or commodities
contracts;
(i) to purchase restricted securities;
(j) to make loans; or
(k) to take any action, or direct or permit the Administrator, the
Paying Agent or the Custodian to take any action, that would vary
the investment of the Holders within the meaning of Treasury
Regulation Section 301.7701-4(c), or otherwise take any action or
direct or permit any action to be taken that would or could cause
the Trust not to be a "grantor trust" under the Code.
ARTICLE III
ACCOUNTS AND PAYMENTS
SECTION 3.1 THE TRUST ACCOUNT. The Trustees shall, upon issuance of the
-----------------
STRYPES, establish with the Paying Agent an account to be called the "Trust
Account". All moneys received by the Trustees in respect of the Contract, the
U.S. Treasury Securities and any Temporary Investments held pursuant to Section
3.4 hereof, all moneys received from the sale of the STRYPES to the Sponsor, and
any proceeds from the sale of the STRYPES to the Underwriters after the purchase
of the Contract and the U.S. Treasury Securities shall be credited to the Trust
Account.
SECTION 3.2 DISTRIBUTIONS TO HOLDERS. On or shortly after each
------------------------
Distribution Date the Trustees shall distribute to each Holder of record at the
close of business on the preceding Record Date, at the post office address of
the Holder appearing on the books of the Trust or Paying Agent or by any other
means mutually agreed upon by the Holder and the Trustees, an amount equal to
such Holder's pro rata share of the Quarterly Distribution computed as of the
close of business on such Distribution Date.
SECTION 3.3 SEGREGATION. All moneys and other assets deposited or
-----------
received by the Trustees hereunder shall be held by them in trust as part of the
Trust Estate until required to be disbursed or otherwise disposed of in
accordance with the provisions of
13
this Trust Agreement, and the Trustees shall handle such moneys and other assets
in such manner as shall constitute the segregation and holding in trust within
the meaning of the Investment Company Act.
SECTION 3.4 INVESTMENTS. To the extent necessary to enable the Paying
-----------
Agent to make the next succeeding Quarterly Distribution, any moneys deposited
with or received by the Trustees in the Trust Account shall be invested as soon
as possible by the Paying Agent in Temporary Investments maturing no later than
the Business Day preceding the next following Distribution Date. Except as
otherwise specifically provided herein or in the Paying Agent Agreement, the
Paying Agent shall not have the power to sell, transfer or otherwise dispose of
any Temporary Investment prior to the maturity thereof, or to acquire additional
Temporary Investments. The Paying Agent shall hold any Temporary Investment to
its maturity and shall apply the proceeds thereof upon maturity to the payment
of the next succeeding Quarterly Distribution. All such Temporary Investments
shall be selected from time to time by the Trustees or pursuant to standing
instructions from the Trustees to the Administrator, and the Administrator
and/or Paying Agent shall have no liability to the Trust or any Holder or any
other Person with respect to any such Temporary Investment. Any interest or
other income received on any moneys in the Trust Account shall, upon receipt
thereof, be deposited into the Trust Account. Notwithstanding the foregoing,
not more than 5% of the assets of the Trust may be held at any time in the form
of cash and Temporary Investments, and the Trustees shall distribute cash, or
liquidate Temporary Investments and distribute the proceeds thereof, if, when
and to the extent needed to maintain compliance with the foregoing restriction.
ARTICLE IV
REDEMPTION
SECTION 4.1 REDEMPTION. The Trustees shall have no right or obligation
----------
to redeem STRYPES.
ARTICLE V
ISSUANCE OF CERTIFICATES;
REGISTRY; TRANSFER OF STRYPES
SECTION 5.1 FORM OF CERTIFICATE. Each Certificate evidencing STRYPES
-------------------
shall be countersigned manually or in facsimile by the Managing Trustee and
executed manually by the Paying Agent in substantially the form of Exhibit A
hereto with the blanks appropriately filled in, shall be dated the date of
execution and delivery by the Paying Agent and shall represent a fractional
undivided interest in the Trust, the numerator of which fraction shall be the
number of STRYPES set forth on the face of such Certificate and the denominator
of which shall be the total number of STRYPES outstanding at that time. All
STRYPES shall be issued in registered form and shall be numbered serially.
Pending the preparation of definitive Certificates, the Trustees may execute and
the Paying Agent shall authenticate and deliver temporary Certificates (printed,
lithographed, typewritten or otherwise reproduced, in each case in form
satisfactory to the Paying Agent). Temporary
14
Certificates shall be issuable as registered Certificates substantially in the
form of the definitive Certificates but with such omissions, insertions and
variations as may be appropriate for temporary Certificates, all as may be
determined by the Trustees with the concurrence of the Paying Agent. Every
temporary Certificate shall be executed by the Managing Trustee and be
authenticated by the Paying Agent upon the same conditions and in substantially
the same manner, and with like effect, as the definitive Certificates. Without
unreasonable delay the Managing Trustee shall execute and shall furnish
definitive Certificates and thereupon temporary Certificates may be surrendered
in exchange therefor without charge at each office or agency of the Paying Agent
and the Paying Agent shall authenticate and deliver in exchange for such
temporary Certificates definitive Certificates for a like aggregate number of
STRYPES. Until so exchanged, the temporary Certificates shall be entitled to
the same benefits hereunder as definitive Certificates.
SECTION 5.2 TRANSFER OF STRYPES; ISSUANCE, TRANSFER AND INTERCHANGE OF
----------------------------------------------------------
CERTIFICATES. STRYPES may be transferred by the Holder thereof by presentation
------------
and surrender of properly endorsed Certificates at the office of the Paying
Agent, accompanied by such documents executed by the Holder or his authorized
attorney as the Paying Agent deems necessary to evidence the authority of the
person making the transfer. Certificates issued pursuant to this Trust
Agreement are interchangeable for one or more other Certificates evidencing an
equal aggregate number of STRYPES and all Certificates issued as may be
requested by the Holder and deemed appropriate by the Paying Agent shall be
issued in denominations of one STRYPES or any multiple thereof. The Paying
Agent may deem and treat the person in whose name any STRYPES shall be
registered upon the books of the Paying Agent as the owner of such STRYPES for
all purposes hereunder and the Paying Agent shall not be affected by any notice
to the contrary. The transfer books maintained by the Paying Agent for the
purposes of this Section 5.2 shall include the name and address of the record
owners of the STRYPES and shall be closed in connection with the dissolution of
the Trust pursuant to Section 8.3 hereof. A sum sufficient to cover any tax or
other governmental charge that may be imposed in connection with any such
transfer shall be paid to the Paying Agent by the Holder. A Holder may be
required to pay a fee for each new Certificate to be issued pursuant to the
preceding paragraph in such amount as may be specified by the Paying Agent and
approved by the Trustees. All Certificates cancelled pursuant to this Trust
Agreement may be voided by the Paying Agent in accordance with the usual
practice of the Paying Agent or in accordance with the instructions of the
Trustees; provided, however, that the Paying Agent shall not be required to
destroy cancelled Certificates. The Paying Agent may adopt other reasonable
rules and regulations for the registration, transfer and tender of STRYPES as it
may, in its discretion, deem necessary.
SECTION 5.3 REPLACEMENT OF CERTIFICATES. In case any Certificate shall
---------------------------
become mutilated or be destroyed, stolen or lost, the Paying Agent shall execute
and deliver a new Certificate in exchange and substitution therefor upon the
Holder's furnishing the Paying Agent with proper identification and satisfactory
indemnity, complying with such other reasonable regulations and conditions as
the Paying Agent may prescribe and paying such expenses and charges, including
any bonding fee, as the Paying Agent may incur or reasonably impose; provided
that if the Trust has dissolved or is in the process of dissolving,
15
the Paying Agent, in lieu of issuing such new Certificate, may, upon the terms
and conditions set forth herein, make the distributions set forth in Section
8.3(c) hereof. Any mutilated Certificate shall be duly surrendered and
cancelled before any duplicate Certificate shall be issued in exchange and
substitution therefor. Upon issuance of any duplicate Certificate pursuant to
this Section 5.3, the original Certificate claimed to have been lost, stolen or
destroyed shall become null and void and of no effect, and any bona fide
purchaser thereof shall have only such rights as are afforded under Article 8 of
the Uniform Commercial Code to a Holder presenting a Certificate for transfer in
the case of an overissue.
SECTION 5.4 LIMITATION ON LIABILITY. Pursuant to (S)3803(a) of the
-----------------------
Delaware Business Trust Act, 12 Del. C. (S)3801, et seq., the Holders of the
------- -- ---
STRYPES shall be entitled to the same limitation of personal liability extended
to stockholders of private corporations for profit organized under the General
Corporation Law of the State of Delaware.
SECTION 5.5 GENERAL PROVISIONS REGARDING THE STRYPES.
----------------------------------------
(A) The consideration received by the Trust for the issuance of the
STRYPES shall constitute a contribution to the capital of the Trust and shall
not constitute a loan to the Trust.
(B) Upon issuance of the STRYPES as provided in this Trust Agreement,
the STRYPES so issued shall be deemed to be validly issued, fully paid and non-
assessable.
(C) Every person, by virtue of having become a Holder in accordance
with the terms of this Trust Agreement, shall be deemed to have expressly
assented and agreed to the terms of, and shall be bound by, this Trust
Agreement.
ARTICLE VI
EXECUTION OF THE CONTRACT
SECTION 6.1 EXECUTION OF THE CONTRACT. The Contract shall be
-------------------------
countersigned manually or in facsimile by the Managing Trustee and executed
manually by the Contracting Stockholders and the Collateral Agent and shall be
dated the date of execution and delivery by the Contracting Stockholders.
ARTICLE VII
TRUSTEES
SECTION 7.1 TRUSTEES. The Trust shall have three Trustees. One Trustee
--------
shall be the Managing Trustee and, as such, is authorized to execute documents
and instruments on behalf of the Trust. The Managing Trustee will be appointed
by resolution of the Trustees. Each Trustee shall serve until the next regular
annual or special meeting of Holders called for the purpose of electing Trustees
and, then, until such Trustee's successor
16
is duly elected and qualified. Holders may not cumulate their votes in the
election of Trustees. Each Trustee shall not be considered to have qualified
for the office unless such Trustee shall agree to be bound by the terms of this
Trust Agreement and shall evidence his consent by executing this Trust Agreement
or a supplement hereto.
SECTION 7.2 VACANCIES. Any vacancy in the office of a Trustee may be
---------
filled in compliance with Sections 10 and 16 of the Investment Company Act by
the vote, within 30 days, of the remaining Trustees; provided that if required
by Section 16 of the Investment Company Act, the Trustees shall forthwith cause
to be held as promptly as possible and in any event within 60 days (unless the
Commission by order shall extend such period) a meeting of Holders for the
purpose of electing Trustees in compliance with Sections 10 and 16 of the
Investment Company Act. Until a vacancy in the office of any Trustee is filled
as provided above, the remaining Trustees in office, regardless of their number,
shall have the powers granted to the Trustees and shall discharge all the duties
imposed upon the Trustees by this Trust Agreement. Election shall be by the
affirmative vote of Holders of a majority of the STRYPES entitled to vote
present in person or by proxy at a special meeting of Holders called for the
purpose of electing any Trustee. Each individual Trustee shall be at least 21
years of age and shall not be under any legal disability. No Trustee who is an
"interested person", as defined in the Investment Company Act, may assume office
if it would cause the composition of the Trustees of the Trust not to be in
compliance with the percentage limitations on interested persons in Section 10
of the Investment Company Act. Trustees need not be Holders. Notice of the
appointment or election of a successor Trustee shall be mailed promptly after
acceptance of such appointment by the successor Trustee to each Holder.
SECTION 7.3 POWERS. The Trust will be managed solely by the Trustees,
------
who will, subject to the provisions of Article II hereof, have complete and
exclusive control over the management, conduct and operation of the Trust's
business, and shall have the rights, powers and authority of a board of
directors of a corporation organized under Delaware law. The Trustees shall
have fiduciary responsibility for the safekeeping and use of all funds and
assets of the Trust and shall not employ, or permit another to employ, such
funds or assets in any manner except for the exclusive benefit of the Trust and
except in accordance with the terms of this Trust Agreement. Subject to the
continuing supervision of the Trustees and as permitted by applicable law, the
functions of the Trust shall be performed by the Custodian, the Paying Agent,
the Administrator and such other entities engaged to perform such functions as
the Trustees may determine, including, without limitation, any or all
administrative functions.
SECTION 7.4 MEETINGS. Meetings of the Trustees shall be held from time
--------
to time upon the call of any Trustee on not less than 48 hours notice (which may
be waived by any or all of the Trustees in writing either before or after such
meeting or by attendance at the meeting unless the Trustee attends the meeting
for the express purpose of objecting to the transaction of any business on the
ground that the meeting has not been lawfully called or convened). The Trustees
shall act either by majority vote of the Trustees present at a meeting at which
at least a majority of the Trustees then in office are present or by a unanimous
written consent of the Trustees without a meeting. Except as otherwise required
17
under the Investment Company Act, all or any of the Trustees may participate in
a meeting of the Trustees by means of a conference telephone call or similar
communications equipment by means of which all persons participating in the
meeting can hear each other, and participation in a meeting pursuant to such
communications equipment shall constitute presence in person at such meeting.
SECTION 7.5 RESIGNATION AND REMOVAL. Any Trustee may resign and be
-----------------------
discharged of the trust created by the Trust Agreement by executing an
instrument in writing resigning as Trustee, filing the same with the
Administrator and sending notice thereof to the remaining Trustees, and such
resignation shall become effective immediately unless otherwise specified
therein. Any Trustee may be removed in the event of incapacity by vote of the
remaining Trustees and for any reason by written declaration or vote of the
Holders of more than 66 2/3% of the outstanding STRYPES, notice of which vote
shall be given to the remaining Trustees and the Administrator. The
resignation, removal or failure to reelect any Trustee shall not cause the
termination of the Trust.
SECTION 7.6 LIABILITY. The Trustees shall not be liable to the Trust or
---------
any Holder for any action taken or for refraining from taking any action except
in the case of willful misfeasance, bad faith, gross negligence or reckless
disregard of the duties of their office. Specifically, without limitation, the
Trustees shall not be responsible for or in respect of the recitals herein or
the validity or sufficiency of this Trust Agreement or for the due execution
hereof by any other Person, or for or in respect of the validity or sufficiency
of STRYPES or Certificates representing STRYPES and shall in no event assume or
incur any liability, duty or obligation to any Holder or to any other Person,
other than as expressly provided for herein. The Trustees may employ agents,
attorneys, administrators, accountants and auditors, and shall not be answerable
for the default or misconduct of any such Persons if such Persons shall have
been selected with reasonable care. Action in good faith may include action
taken in good faith in accordance with an opinion of counsel. In no event shall
any Trustee be personally liable for any expenses with respect to the Trust.
Each Trustee shall be indemnified by the Trust with respect to any claim,
liability or loss arising out of or in connection with such Trustee's acting as
Trustee of the Trust and with respect to all reasonable costs and expenses
(including the reasonable costs of investigation, preparation for and defense of
legal and/or administrative proceedings relating to a claim against such Trustee
and reasonable attorneys' fees and disbursements) incurred in connection with
any such claim, liability or loss, except in the case of willful misfeasance,
bad faith, gross negligence or reckless disregard of the duties of his office.
Notwithstanding the foregoing, it is understood that the Trust shall not, in
respect of the legal expenses of any Trustee in connection with any proceeding
or related proceedings in the same jurisdiction, be liable for the fees and
expenses of more than one separate firm (in addition to any local counsel).
SECTION 7.7 COMPENSATION. Each Trustee, other than a Trustee who is a
------------
director, officer or employee of the Sponsor, any Underwriter, or the
Administrator or any affiliate thereof, shall receive a one-time, up-front fee
of $10,800, in respect of its annual fee and anticipated out-of-pocket expenses.
In addition, the Managing Trustee shall receive an additional one-time, up-front
fee of $3,600 for serving in such capacity. The Trustees will not receive any
pension or retirement benefits. In the event of the resignation or removal of
18
a Trustee, such Trustee shall remit to the Trust the portion of its fee ratable
for the period from the day of such resignation or removal through the Exchange
Date.
ARTICLE VIII
MISCELLANEOUS
SECTION 8.1 MEETINGS OF HOLDERS. The Trustees shall not hold annual or
-------------------
regular meetings of Holders except as set forth herein. A special meeting may be
called at any time by the Trustees or upon petition of Holders of more than 50%
of the STRYPES outstanding (unless substantially the same matter was voted on
during the preceding 12 months), and shall be called as required by the
Investment Company Act and the rules and regulations thereunder, including,
without limitation, when requested by the Holders of not less than 10% of the
STRYPES outstanding for the purposes of voting upon the question of the removal
of any Trustee or Trustees. The Trustees shall establish, and notify the Holders
in writing of, the record date for each such meeting which shall be not less
than 10 nor more than 50 days before the meeting date. Holders at the close of
business on the record date will be entitled to vote at the meeting. The
Administrator shall, as soon as possible after any such record date (or prior to
such record date if appropriate), mail by first class mail to each Holder a
notice of meeting and a proxy statement and form of proxy in the form approved
by the Trustees and complying with the Investment Company Act and the rules and
regulations thereunder. Except as otherwise specified herein, in the Prospectus
(including, without limitation, changes to the Trust's fundamental policies set
forth in the prospectus) or in any provision of the Investment Company Act and
the rules and regulations thereunder, any action may be taken by vote of Holders
of a majority of the STRYPES outstanding present in person or by proxy if
Holders of a majority of STRYPES outstanding on the record date are so
represented. Each STRYPES shall have one vote and may be voted in person or by
duly executed proxy. Any proxy may be revoked by notice in writing, by a
subsequently dated proxy or by voting in person at the meeting, and no proxy
shall be valid after eleven months following the date of its execution.
SECTION 8.2 BOOKS AND RECORDS; REPORTS. (a) The Trustees shall keep a
--------------------------
certified copy or duplicate original of this Trust Agreement on file at the
office of the Trust and the office of the Administrator available for inspection
at all reasonable times during its usual business hours by any Holder. The
Trustees shall keep proper books of record and account for all the transactions
under this Trust Agreement at the office of the Trust and the office of the
Administrator, and such books and records shall be open to inspection by any
Holder at all reasonable times during usual business hours. The Trustees shall
retain all books and records in compliance with Section 31 of the Investment
Company Act and the rules and regulations thereunder.
(b) With each payment to Holders the Paying Agent shall set forth, either
in the instruments by means of which payment is made or in a separate statement,
the amount being paid from the Trust Account expressed as a dollar amount per
STRYPES and the other information required under Section 19 of the Investment
Company Act and the rules and regulations thereunder. The Trustees shall
prepare and file or distribute reports as required
19
by Section 30 of the Investment Company Act and the rules and regulations
thereunder. The Trustees shall prepare and file such reports as may from time
to time be required to be filed or distributed to Holders under any applicable
state or Federal statute or rule or regulation thereunder, and shall file such
tax returns as may from time to time be required under any applicable state or
Federal statute or rule or regulation thereunder. One of the Trustees shall be
designated by resolution of the Trustees to make the filings and give the
notices required by Rule 17g-1 under the Investment Company Act.
(c) In calculating the net asset value of the Trust as required by the
Investment Company Act, (i) the U.S. Treasury Securities will be valued at the
mean between the last current bid and asked prices or, if quotations are not
available, as determined in good faith by the Trustees, (ii) short-term
investments having a maturity of 60 days or less will be valued at cost with
accrued interest or discount earned included in interest receivable and (iii)
the Contract will be valued at the mean of the bid prices received by the
Administrator from at least three independent broker-dealer firms unaffiliated
with the Trust to be named by the Trustees who are in the business of making
bids on financial instruments similar to the Contract and with terms comparable
thereto.
SECTION 8.3 DISSOLUTION. (a) The Trust created hereby shall dissolve,
-----------
and its affairs be wound up, upon the earliest of (i) the date 90 days after the
execution of this Trust Agreement if (x) the STRYPES have not theretofore been
issued or (y) the net worth of the Trust is not at least $100 at such time, (ii)
the date five Business Days after the Closing Date, and (iii) the date which is
21 years less 91 days after the death of the last survivor of all of the
descendants of ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ living on the date hereof. The Trust is
irrevocable, the Sponsor has no right to withdraw any assets constituting a
portion of the Trust Estate, and the dissolution of the Sponsor shall not
operate to dissolve the Trust. The death or incapacity of any Holder shall not
operate to terminate this Trust Agreement, nor entitle his legal representatives
or heirs to claim an accounting or to take any action or proceeding in any court
for a partition or winding up of the Trust, and shall not otherwise affect the
rights, obligations and liabilities of the parties hereto.
(b) Written notice of any dissolution shall be sent to Holders specifying
the record date for any distribution to Holders, the amount distributable
(including, if applicable, the number of shares of ▇▇▇▇▇▇ Common Stock or, if a
Reorganization Event shall have occurred, the number of units of any Marketable
Security) with respect to each STRYPES and the time of dissolution as determined
by the Trustees, upon which the books maintained by the Paying Agent pursuant to
Section 5.2 hereof shall be closed. Any such notice shall be provided by mail,
sent to each Holder at such Holder's address as it appears on the books of the
Paying Agent, first class, postage prepaid not less than 9 days prior to the
date on which such distribution is to be made. At or prior to the mailing of
such notice, the Administrator shall publish a public announcement in The Wall
Street Journal or another daily newspaper of national circulation.
(c) Subject to any applicable provisions of law, for purposes of
dissolution under Sections 8.3(a)(ii) and (iii) hereof, within five Business
Days after such dissolution, the Trustees shall effect the sale of any remaining
property of the Trust (other than any ▇▇▇▇▇▇
20
Common Stock or Marketable Securities received pursuant to the Contract and
cash), and the Paying Agent shall distribute pro rata as soon as practicable
thereafter to each Holder, upon surrender for cancellation of its Certificates,
its interest in the Trust Estate. Together with the distribution to the
Holders, the Trustees shall furnish the Holders with a final statement as of the
date of the distribution of the amount distributable with respect to each
STRYPES.
(d) Notwithstanding anything to the contrary contained herein, no
fractional units of any security (including ▇▇▇▇▇▇ Common Stock) will be
distributed to Holders pursuant to Section 8.3(c) hereof upon dissolution of the
Trust. All fractional units to which Holders would otherwise be entitled upon
dissolution of the Trust will be aggregated and liquidated by the Trustees and,
in lieu of the fractional unit to which a Holder would otherwise have been
entitled in respect of the total number of STRYPES held by such Holder, such
Holder will receive its pro rata portion of the proceeds from such liquidation
(net of any brokerage or related expenses).
SECTION 8.4 AMENDMENT AND WAIVER. (a) This Trust Agreement may be
--------------------
amended from time to time by the Trustees for any purpose prior to the issuance
and sale to the Underwriters of the STRYPES and thereafter without the consent
of any of the Holders (i) to cure any ambiguity or to correct or supplement any
provision contained herein or therein which may be defective or inconsistent
with any other provision contained herein or therein; (ii) to change any
provision hereof or thereof as may be required by applicable law or the
Commission or any successor governmental agency exercising similar authority; or
(iii) to make such other provisions in regard to matters or questions arising
hereunder or thereunder as shall not materially adversely affect the interests
of the Holders (as determined in good faith by the Trustees, who may rely on an
opinion of counsel).
(b) This Trust Agreement may also be amended from time to time by the
Trustees (or the performance of any of the provisions of the Trust Agreement may
be waived) with the consent by the required vote of the Holders in accordance
with Section 8.1 hereof; provided that this Trust Agreement may not be amended
(i) without the consent by vote of the Holders of all STRYPES then outstanding,
so as to increase the number of STRYPES issuable hereunder above the number of
STRYPES specified in Section 2.5(c) hereof or such lesser number as may be
outstanding at any time during the term of this Trust Agreement, (ii) to reduce
the interest in the Trust represented by STRYPES without the consent of the
Holders of such STRYPES, (iii) if such amendment is prohibited by the Investment
Company Act or other applicable law or (iv) without the consent by vote of the
Holders of all STRYPES then outstanding, if such amendment would effect a change
in Section 2.4 or 2.9 hereof or in the voting requirements set forth in Section
8.1 hereof or this Section 8.4.
(c) Any of the agreements referred to in Section 2.5(a) hereof may be
amended from time to time by the Trustees and the other parties thereto for any
purpose without the consent of any of the Holders.
(d) Promptly after the execution of any amendment, the Trustees shall
furnish written notification of the substance of such amendment to each Holder.
21
(e) Notwithstanding subsections (a) and (b) of this Section 8.4, no
amendment hereof shall permit the Trust, the Trustees, the Administrator, the
Paying Agent or the Custodian to take any action or direct or permit any Person
to take any action that (i) would vary the investment of Holders within the
meaning of Treasury Regulation Section 301.7701-4(c), or (ii) would or could
cause the Trust, or direct or permit any action to be taken that would or could
cause the Trust, not to be a "grantor trust" under the Code.
SECTION 8.5 ACCOUNTANTS. (a) The Trustees shall, in accordance with
-----------
Section 30 of the Investment Company Act, file annually with the Commission such
information, documents and reports as investment companies having securities
registered on a national securities exchange are required to file annually
pursuant to Section 13(a) of the Exchange Act and the rules and regulations
issued thereunder. The Trustees shall transmit to the Holders, at least semi-
annually, the reports required by Section 30(d) of the Investment Company Act
and the rules and regulations thereunder, including, without limitation, a
balance sheet accompanied by a statement of the aggregate value of investments
on the date of such balance sheet, a list showing the amounts and values of such
investments owned on the date of such balance sheet, and a statement of income
for the period covered by the report. Financial statements contained in such
annual reports shall be accompanied by a certificate of independent public
accounts based upon an audit not less in scope or procedures than that which
independent public accountants would ordinarily make for the purpose of
complying with generally accepted auditing standards and shall contain such
information as the Commission may prescribe. Each such report shall state that
such independent public accountants have verified investments owned, either by
actual examination or by receipt of a certificate from the Custodian.
(b) The independent public accountants referred to in subsection (a) above
shall be selected at a meeting held within 30 days before or after the beginning
of the fiscal year by the vote, cast in person, of a majority of the Trustees
who are not "interested persons" as defined in the Investment Company Act and
such selection shall be submitted for ratification at the first meeting of
Holders to be held as set forth in Section 8.1 hereof, and thereafter as
required by the Investment Company Act and the rules and regulations thereunder.
The employment of any independent public accountant for the Trust shall be
conditioned upon the right of the Holders by a vote of the lesser of (i) 67% or
more of the STRYPES present at a special meeting of Holders, if Holders of more
than 50% of STRYPES outstanding are present or represented by proxy at such
meeting or (ii) more than 50% of the STRYPES outstanding to terminate such
employment at any time without penalty.
(c) The foregoing provisions of this Section 8.5 are in addition to any
applicable requirements of the Investment Company Act and the rules and
regulations thereunder.
SECTION 8.6 NATURE OF HOLDER'S INTEREST. Each Holder holds at any given
---------------------------
time a beneficial interest in the Trust Estate, but does not have any right to
take title or possession of any portion of the Trust Estate. Each Holder
expressly waives any right he may have under any rule of law, or the provisions
of any statute, or otherwise, to require the Trustees at any time to account, in
any manner other than as expressly provided in this Trust Agreement, for the
shares of ▇▇▇▇▇▇ Common Stock, the Contract, the U.S.
22
Treasury Securities or other assets or moneys from time to time received, held
and applied by the Trustees hereunder. No Holder shall have any right except as
provided herein to control or determine the operation and management of the
Trust or the obligations of the parties hereto. Nothing set forth herein or in
the Certificates representing STRYPES shall be construed to constitute the
Holders from time to time as partners or members of an association.
SECTION 8.7 DELAWARE LAW TO GOVERN. This Trust Agreement is executed and
----------------------
delivered in the State of Delaware, and all laws or rules of construction of the
State of Delaware, without regard to principles of conflict of laws, shall
govern the rights of the parties hereto and the Holders and the construction,
validity and effect of the provisions hereof.
SECTION 8.8 NOTICES. Any notice, demand, direction or instruction to be
-------
given to the Sponsor hereunder shall be in writing and shall be duly given if
mailed or delivered to ML IBK Positions, Inc. at World Financial Center, ▇▇▇▇▇
▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, or at such other address as shall be specified
by the Sponsor to the other parties hereto in writing. Any notice, demand,
direction or instruction to be given to the Trust and the Trustees hereunder
shall be in writing and shall be duly given if mailed or delivered to the Trust
▇/▇ ▇▇▇ ▇▇▇▇ ▇▇ ▇▇▇ ▇▇▇▇ at ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, and to
each Trustee at such Trustee's address set forth beneath its signature below, or
such other address as shall be specified to the other parties hereto by such
party in writing. Any notice to be given to a Holder shall be duly given if
mailed, first class postage prepaid, or by such other substantially equivalent
means as the Trustees may deem appropriate, or delivered to such Holder at the
address of such Holder appearing on the registry of the Paying Agent.
SECTION 8.9 SEVERABILITY. If any one or more of the covenants,
------------
agreements, provisions or terms of this Trust Agreement shall be for any reason
whatsoever held invalid, then such covenants, agreements, provisions or terms
shall be deemed severable from the remaining covenants, agreements, provisions
and terms of this Trust Agreement and shall in no way affect the validity or
enforceability of the other provisions of this Trust Agreement or of the
Certificates, or the rights of the Holders thereof.
SECTION 8.10 COUNTERPARTS. This Trust Agreement may be executed in
------------
several counterparts, each of which shall be an original and all of which shall
constitute but one and the same instrument.
SECTION 8.11 SUCCESSORS AND ASSIGNS. Whenever in this Trust Agreement
----------------------
any of the parties hereto is named or referred to, the successors and assigns of
such party shall be deemed to be included, and all covenants and agreements in
this Trust Agreement by the Sponsor and Trustees shall bind and inure to the
benefit of their respective successors and assigns, whether or not so expressed.
23
IN WITNESS WHEREOF, the parties hereto have caused this Trust Agreement to
be duly executed.
ML IBK POSITIONS, INC.
By:___________________________
Name:
Title:
TRUSTEES:
_______________________________________
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Address: ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
_______________________________________
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ III
Address: ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
_______________________________________
Name: ▇▇▇▇▇ ▇. ▇'▇▇▇▇▇
Address: ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
24
Schedule I
U.S. TREASURY SECURITIES
All terms specified are for stripped principal or interest components of
U.S. Treasury debt obligations.
Maturity Par Amount CUSIP No.
------------------ -------------------- -----------------------------------
25
Exhibit A
▇▇▇▇▇▇ STRYPES TRUST
NO. ____________________ STRYPES(SM) CUSIP NO. _______
THIS CERTIFIES THAT ________ IS THE RECORD OWNER OF _______ FULLY PAID AND NON-
ASSESSABLE STRYPES, PAR VALUE $.10 PER STRYPES, OF ▇▇▇▇▇▇ STRYPES TRUST
CONSTITUTING FRACTIONAL UNDIVIDED BENEFICIAL INTERESTS IN ▇▇▇▇▇▇ STRYPES TRUST,
A TRUST CREATED UNDER THE LAWS OF THE STATE OF DELAWARE PURSUANT TO AN AMENDED
AND RESTATED TRUST AGREEMENT (THE "TRUST AGREEMENT") AMONG ML IBK POSITIONS,
INC., THE TRUSTEES NAMED THEREIN AND THE HOLDERS (AS DEFINED THEREIN). THIS
CERTIFICATE IS ISSUED UNDER AND IS SUBJECT TO THE TERMS, PROVISIONS AND
CONDITIONS OF THE TRUST AGREEMENT, AS THE SAME MAY BE AMENDED FROM TIME TO TIME,
TO WHICH THE HOLDER OF THIS CERTIFICATE BY VIRTUE OF THE ACCEPTANCE HEREOF
ASSENTS AND IS BOUND, A COPY OF WHICH TRUST AGREEMENT IS AVAILABLE AT THE OFFICE
OF THE TRUST'S PAYING AGENT, THE BANK OF NEW YORK, ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇,
▇▇▇ ▇▇▇▇ ▇▇▇▇▇. THIS CERTIFICATE IS TRANSFERABLE AND INTERCHANGEABLE BY THE
REGISTERED OWNER IN PERSON OR BY HIS DULY AUTHORIZED ATTORNEY AT THE OFFICE OF
THE PAYING AGENT UPON SURRENDER OF THIS CERTIFICATE PROPERLY ENDORSED OR
ACCOMPANIED BY A WRITTEN INSTRUMENT OF TRANSFER AND ANY OTHER DOCUMENTS THAT THE
PAYING AGENT MAY REQUIRE FOR TRANSFER, IN FORM SATISFACTORY TO THE PAYING AGENT
AND PAYMENT OF THE FEES AND EXPENSES PROVIDED IN THE TRUST AGREEMENT.
THIS CERTIFICATE IS NOT VALID UNLESS MANUALLY COUNTERSIGNED BY THE PAYING
AGENT.
WITNESS THE FACSIMILE SIGNATURE OF THE MANAGING TRUSTEE.
DATED:
▇▇▇▇▇▇ STRYPES TRUST
By:_______________________________
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Managing Trustee
COUNTERSIGNED:
THE BANK OF NEW YORK
as Paying Agent
By: ______________________________
Authorized Signature
______________________
(SM) Service ▇▇▇▇ of ▇▇▇▇▇▇▇ ▇▇▇▇▇ & Co., Inc.
A-1
THIS CERTIFICATE IS ISSUED UNDER AND IS SUBJECT TO THE TERMS, PROVISIONS AND
CONDITIONS OF THE AMENDED AND RESTATED TRUST AGREEMENT AMONG ML IBK POSITIONS,
INC., THE TRUSTEES NAMED THEREIN AND THE HOLDERS (AS DEFINED THEREIN) TO WHICH
THE HOLDER OF THIS CERTIFICATE BY VIRTUE OF THE ACCEPTANCE HEREOF ASSENTS AND IS
BOUND.
The following abbreviations, when used in the inscription on the face of
this Certificate, shall be construed as though they were written out in full
according to applicable laws or regulations:
TEN COM--as tenants in common UNIF GIFT MIN ACT--___Custodian___
TEN ENT--as tenants by the entireties (Cust) (Minor)
JT TEN-- as joint tenants with right under Uniform Gifts to
of survivorship and not as Minors Act _________
tenants in common (State)
Additional abbreviations also may be used though not in the above list.
For value received, _______________________ hereby sell, assign and transfer
unto
Please insert social securities or
other identifying number of assignee
____________________________________
____________________________________
_______________________________________________________________________________
(Please Print or Typewrite Name and Address, Including Zip Code, of Assignee)
______________ STRYPES of fractional undivided beneficial interest represented
by the within Certificate, and do hereby irrevocably constitute and appoint
_________ Attorney to transfer the said STRYPES on the books of the within-named
Trust with full power of substitution in the premises.
Dated: ______________________
_____________________________________
NOTICE: The Signature to this assignment must correspond with the name as
written upon the face of the Certificate in every particular,
without alteration or enlargement or any change whatever.
Signature Guaranteed:__________________________________
The Signature(s) should be guaranteed by an eligible guarantor
institution (banks, stockbrokers, savings and loan associations
and credit unions with membership in an approved signature
guarantee medallion program), pursuant to S.E.C. Rule 17Ad-15.
A-2