1
Draft of November 7, 1995
AMENDED AND RESTATED
TRUST AGREEMENT
CONSTITUTING
AJL PEPS TRUST
Dated as of November __, 1995
2
TABLE OF CONTENTS
PAGE
----
ARTICLE I DEFINITIONS . . . . . . . . . . . . . . . . . . . . . . . . 2
ARTICLE II TRUST DECLARATION; PURPOSES,
POWERS AND DUTIES OF THE TRUSTEES;
ADMINISTRATION . . . . . . . . . . . . . . . . . . . . . . 8
SECTION 2.1 Declaration of Trust; Purposes of the Trust . . . . . . 8
SECTION 2.2 General Powers and Duties of the Trustees . . . . . . . 8
SECTION 2.3 Portfolio Acquisition . . . . . . . . . . . . . . . . . 9
SECTION 2.4 Portfolio Administration . . . . . . . . . . . . . . . 10
SECTION 2.5 Extraordinary Sale . . . . . . . . . . . . . . . . . . 13
SECTION 2.6 Manner of Sales . . . . . . . . . . . . . . . . . . . . 13
SECTION 2.7 Limitations on Trustees' Powers . . . . . . . . . . . . 13
ARTICLE III ACCOUNTS AND PAYMENTS . . . . . . . . . . . . . . . . . . . 14
SECTION 3.1 The Trust Account . . . . . . . . . . . . . . . . . . . 14
SECTION 3.2 Payment of Fees and Expenses . . . . . . . . . . . . . 14
SECTION 3.3 Distributions to Holders . . . . . . . . . . . . . . . 14
SECTION 3.4 Segregation . . . . . . . . . . . . . . . . . . . . . . 14
SECTION 3.5 Investments . . . . . . . . . . . . . . . . . . . . . . 15
ARTICLE IV REDEMPTION . . . . . . . . . . . . . . . . . . . . . . . . . 15
SECTION 4.1 Redemption . . . . . . . . . . . . . . . . . . . . . . 15
ARTICLE V ISSUANCE OF CERTIFICATES;
REGISTRY; TRANSFER OF PEPS . . . . . . . . . . . . . . . . 15
SECTION 5.1 Form of Certificate . . . . . . . . . . . . . . . . . . 15
SECTION 5.2 Transfer of PEPS; Issuance, Transfer and
Interchange of Certificates . . . . . . . . . . . . . . 16
SECTION 5.3 Replacement of Certificates . . . . . . . . . . . . . . 17
ARTICLE VI ISSUANCE OF CONTRACTS . . . . . . . . . . . . . . . . . . . 17
SECTION 6.1 Execution of Contracts . . . . . . . . . . . . . . . . 17
ARTICLE VII TRUSTEES . . . . . . . . . . . . . . . . . . . . . . . . . . 17
SECTION 7.1 Trustees . . . . . . . . . . . . . . . . . . . . . . . 17
SECTION 7.2 Vacancies . . . . . . . . . . . . . . . . . . . . . . . 18
SECTION 7.3 Powers . . . . . . . . . . . . . . . . . . . . . . . . 18
SECTION 7.4 Meetings . . . . . . . . . . . . . . . . . . . . . . . 18
SECTION 7.5 Resignation and Removal . . . . . . . . . . . . . . . . 19
SECTION 7.6 Liability . . . . . . . . . . . . . . . . . . . . . . . 19
SECTION 7.7 Compensation . . . . . . . . . . . . . . . . . . . . . 19
ARTICLE VIII MISCELLANEOUS . . . . . . . . . . . . . . . . . . . . . . . 20
SECTION 8.1 Meetings of Holders . . . . . . . . . . . . . . . . . . 20
SECTION 8.2 Books and Records; Reports . . . . . . . . . . . . . . 20
SECTION 8.3 Termination . . . . . . . . . . . . . . . . . . . . . . 21
SECTION 8.4 Amendment and Waiver . . . . . . . . . . . . . . . . . 22
-i-
3
TABLE OF CONTENTS
PAGE
----
SECTION 8.5 Accountants . . . . . . . . . . . . . . . . . . . . . . 23
SECTION 8.6 Nature of Holder's Interest . . . . . . . . . . . . . . 24
SECTION 8.7 New York Law to Govern . . . . . . . . . . . . . . . . 24
SECTION 8.8 Notices . . . . . . . . . . . . . . . . . . . . . . . . 24
SECTION 8.9 Severability . . . . . . . . . . . . . . . . . . . . . 25
SECTION 8.10 Counterparts . . . . . . . . . . . . . . . . . . . . . 25
Schedule I Treasury Securities
Exhibit A Form of PEPS Certificate
Exhibit B Form of Collateral Agreements
Exhibit C Form of Contracts
Exhibit D Form of Expense Agreement
-ii-
4
AMENDED AND RESTATED
TRUST AGREEMENT
This Amended and Restated Trust Agreement, dated as of November
__, 1995 (the "Trust Agreement"), by and between ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & Co.
Incorporated, as sponsor (the "Sponsor"), and ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, III, ▇▇▇▇▇ ▇.
▇'▇▇▇▇▇ and ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, as trustees (the "Trustees"), constituting AJL
PEPS Trust (the "Trust").
W I T N E S S E T H:
WHEREAS, the Sponsor and ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, as trustee, have
previously entered into a Trust Agreement dated as of August 17, 1995, as
amended as of October 13, 1995 (the "Original Agreement"), creating AJL PEPS
Trust;
WHEREAS, the parties hereto desire to amend and restate the
Original Agreement in certain respects; and
WHEREAS, the Trust has previously issued to the Sponsor one
PEPS in consideration of the aggregate purchase price therefor of $100,000 in
satisfaction of the requirements of Section 14(a)(1) under the Investment
Company Act (as defined hereinafter);
NOW, THEREFORE, the parties hereto agree to amend and restate
the Original Agreement as provided herein. Upon the execution and delivery of
copies hereof by the parties hereto, the Original Agreement will be
automatically amended and restated in its entirety to read as provided herein.
5
ARTICLE I
DEFINITIONS
Whenever used in this Trust Agreement, the following words and
phrases shall have the meanings listed below. Any reference to any agreement
shall be a reference to such agreement as supplemented or amended from time to
time.
Acceleration Amount Notice
An Acceleration Amount Notice as defined in the Contracts.
Acceleration Value
The Acceleration Value as defined in the Contracts.
Additional Purchase Price
With respect to each Contract, the amount indicated as the
Additional Purchase Price therefor in Section 1.2 thereof.
Aggregate Acceleration Value
The Aggregate Acceleration Value as defined in the Contracts.
Administration Agreement
The Administration Agreement, dated as of the date hereof,
between the Administrator and the Trustees, and any substitute agreement
therefor entered into pursuant to Section 2.2(a) hereof.
Administrator
The Bank of New York or its successor as permitted under
Section 6.1 of the Administration Agreement or appointed pursuant to Section
2.2(a) hereof.
ADR Depositary
▇▇▇▇▇▇ Guaranty Trust Company of New York, or any successor
thereto as ADR Depositary under the Deposit Agreement.
ADRs
American Depositary Receipts representing the ADSs.
-2-
6
ADSs
American Depositary Shares of Amway Japan Limited, each
representing one-half of one share of the Common Stock.
Business Day
A day on which the New York Stock Exchange, Inc. is open for
trading that is not a day on which banks in The City of New York are authorized
or obligated by law to close.
Certificate
Any certificate evidencing the ownership of PEPS substantially
in the form of Exhibit A hereto.
Closing Date
The Closing Date as defined in the Underwriting Agreement.
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
Collateral Agreements.
Collateral Agreements
The Collateral Agreements between the Collateral Agent, each
Seller and the other parties thereto, securing such Seller's obligations under
its Contract, each substantially in the form of Exhibit B hereto.
Commencement Date
The day on which the Underwriting Agreement is executed.
Commission
The United States Securities and Exchange Commission.
Common Stock
Common Stock, no par value, of Amway Japan Limited.
-3-
7
Company
Amway Japan Limited, a Japanese corporation.
Contracts
The forward purchase contracts entered into by the Trustees,
each Seller and the other parties thereto, each substantially in the form of
Exhibit C hereto.
Custodian
The Bank of New York or its successor as permitted under
paragraph 11 of the Custodian Agreement or appointed pursuant to Section 2.2(a)
hereof.
Custodian Agreement
The Custodian Agreement, dated as of the date hereof, between
the Custodian and the Trustees, and any substitute agreement therefor entered
into pursuant to Section 2.2(a) hereof.
Deposit Agreement
Deposit Agreement dated as of February 18, 1993, as amended and
restated as of May 12, 1994 among the ADR Depositary, the Company and holders of
ADRs issued thereunder.
Depositary
The Depository Trust Company, or any successor thereto.
Distribution Date
Each February 15, May 15, August 15 and November 15 of each
year commencing February 15, 1996, to and including February 15, 1999, or if any
such date is not a Business Day, then the first Business Day thereafter.
Excess Purchase Payment
Excess Purchase Payment as defined under the Contracts.
Event of Default
An Event of Default as defined in the Contracts.
Exchange
The delivery by the Trustees to the Holders of Shares in
mandatory exchange for the PEPS on the Exchange Date.
-4-
8
Exchange Date
February 15, 1999.
Exchange Price
The Exchange Price as defined in the Contracts.
Firm Purchase Price
With respect to each Contract, the amount indicated as the Firm
Purchase Price therefor in Section 1.2 thereof.
Holder
The registered owner of any PEPS as recorded on the books of
the Paying Agent.
Indemnity Agreement
The Fund Indemnity Agreement dated as of the date hereof
between the Trustees and the Sponsor substantially in the form of Exhibit D
hereto.
Investment Company Act
The Investment Company Act of 1940, as amended from time to
time; each reference herein to any section of such Act or any rule or regulation
thereunder shall constitute a reference to any successor provision thereto.
Managing Trustee
The Trustee designated the Managing Trustee by resolution of
the Trustees.
Marketable Common Stock
Marketable Common Stock as defined in the Contracts.
Option Closing Date
The Option Closing Date as defined in the Underwriting
Agreement.
Original Agreement
The meaning specified in the recitals hereof.
Participant
A Person having a book entry only system account with the
Depositary.
-5-
9
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
2.2(a) hereof.
Paying Agent Agreement
The Paying Agent Agreement, dated as of the date hereof,
between the Paying Agent and the Trustees, and any substitute agreement therefor
entered into pursuant to Section 2.2(a) hereof.
PEPS
Premium Exchangeable Participating Shares of the Trust
evidencing a Holder's undivided interest in the Trust and right to receive a pro
rata distribution upon liquidation of the Trust Estate.
Person
An individual, a partnership, a corporation, a trust, an
unincorporated association, a joint venture or other entity or a government or
any agency or political subdivision thereof.
Prospectus
The prospectus relating to the Trust constituting a part of the
Registration Statement, as first filed with the Commission pursuant to Rule
497(b) or (h) under the Securities Act, and as subsequently amended or
supplemented by the Trust.
Quarterly Distribution
$_____ per PEPS paid to each Holder on each Distribution Date.
Record Date
Each February 1, May 1, August 1 and November 1 of each year
commencing February 1, 1996.
Registration Statement
Registration Statement on Form N-2 (Registration No. 33-61915)
of the Trust, as amended.
-6-
10
Reorganization Event
A Reorganization Event as defined in the Contracts.
Securities Act
The Securities Act of 1933, as amended from time to time.
Shares
ADSs or, at the election of Holders, shares of Common Stock, to
be exchanged by the Trustees for the PEPS on the Exchange Date.
Temporary Investments
Direct short-term U.S. government obligations, as specified
from time to time by the Trustees or through standing instructions from the
Trustees to the Administrator or the Paying Agent.
Treasury Securities
The meaning specified in Section 2.3(b) hereof.
Trust Account
The account created pursuant to Section 3.1 hereof.
Trust Estate
The Contracts and the Treasury Securities held at any time by
the Trust, together with any Temporary Investments held at any time pursuant to
Section 3.5 hereof, and any proceeds thereof or therefrom and any other moneys
held at any time in the Trust Account.
Underwriters
The Underwriters named in the Underwriting Agreement.
Underwriting Agreement
The Underwriting Agreement as described in the Prospectus.
-7-
11
ARTICLE II
TRUST DECLARATION; PURPOSES,
POWERS AND DUTIES OF THE TRUSTEES; ADMINISTRATION
SECTION 2.1 Declaration of Trust; Purposes of the Trust. The
Sponsor hereby creates the Trust in order that it may acquire the Treasury
Securities, enter into the Contracts, issue and sell to the Sponsor and the
Underwriters the PEPS, hold the Trust Estate in trust for the use and benefit of
all present and future Holders and otherwise carry out the terms and conditions
of this Trust Agreement, all for the purpose of achieving the investment
objectives set forth in the Prospectus. The Trustees hereby declare that they
will accept and hold the Trust Estate in trust for the use and benefit of all
present and future Holders. The Sponsor has heretofore deposited with the
Trustees the sum of $10 to accept and hold in trust hereunder until the issuance
and sale of the PEPS to the Underwriters, whereupon such sum shall be donated to
an organization satisfying the requirements of Section 170(c)(2) of the Code
selected by unanimous consent of the Trustees.
SECTION 2.2 General Powers and Duties of the Trustees. In
furtherance of the provisions of Section 2.1 hereof, the Sponsor authorizes and
directs the Trustees:
(a) to enter into and perform (and, in accordance with Section
8.4(a) hereof, amend), the Contracts, the Collateral Agreements, the
Underwriting Agreement, the Indemnity Agreement, the Custodian
Agreement, the Administration Agreement and the Paying Agent Agreement
and to perform all obligations of the Trustees (including the
obligation to provide indemnity hereunder and thereunder) and enforce
all rights and remedies of the Trust under each of such agreements; and
if any of the Custodian Agreement, the Administration Agreement, the
Collateral Agreements and the Paying Agent Agreement terminates, or the
agent of the Trust thereunder resigns or is discharged, to appoint a
substitute agent and enter into a new agreement with such substitute
agent containing provisions substantially similar to those contained in
the agreement being terminated; provided that in any such new agreement
(i) the Custodian and the Paying Agent shall each be a commercial bank
or trust company organized and existing under the laws of the United
States of America or any state therein, shall have full trust powers
and shall have minimum capital, surplus and retained earnings of not
less than $100,000,000; and (ii) the Administrator and the Collateral
Agent shall each be a reputable financial institution qualified in all
respects to carry out its obligations under the Administration
Agreement or the Collateral Agreements, as the case may be;
-8-
12
(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
__________ PEPS (including those PEPS subject to the over-allotment
option of the Underwriters provided for in the Underwriting Agreement)
pursuant to the Underwriting Agreement and as contemplated by the
Prospectus; provided, however, that subsequent to the determination of
the public offering price per PEPS and related underwriting discount
for the PEPS to be sold to the Underwriters but prior to the sale of
the PEPS to the Underwriters, the PEPS originally issued to the Sponsor
shall be split into a greater number of PEPS so that immediately
following such split the value of each PEPS held by the Sponsor will
equal the aforesaid public offering price less the related underwriting
discount;
(d) to select independent public accountants and, subject to
the provisions of Section 8.5 hereof, to engage such independent public
accountants;
(e) to engage legal counsel and, to the extent required by
Section 2.4 hereof, to engage professional advisors and pay reasonable
compensation thereto;
(f) to defend any action commenced against the Trustees or the
Trust and to prosecute any action which the Trustees deem necessary to
protect the Trust and the rights and interests of Holders, and to pay
the costs thereof;
(g) to arrange for the bonding of officers and employees of the
Trust as required by Section 17(g) of the Investment Company Act and
the rules and regulations thereunder;
(h) to delegate any and all of its powers and duties hereunder
as contemplated by the Custodian Agreement, the Paying Agent Agreement
and the Administration Agreement, to the extent permitted by applicable
law; and
(i) to adopt and amend bylaws, and take any and all such other
actions as necessary or advisable to carry out the purposes of the
Trust, subject to the provisions hereof and applicable law, including,
without limitation, the Investment Company Act.
SECTION 2.3 Portfolio Acquisition. In furtherance of the
provisions of Section 2.1 hereof, the Sponsor further specifically authorizes
and directs the Trustees:
-9-
13
(a) to enter into the Contracts with respect to the Shares
subject thereto with the Sellers on the Commencement Date for
settlement on the date or dates provided thereunder and, subject to
satisfaction of the conditions set forth in the Contracts, to pay the
Firm Purchase Price and, if any, Additional Price, thereunder with the
proceeds of the sale of the PEPS, net of underwriting commissions and
other expenses payable in connection with the public offering of the
PEPS as described in Section 3.2 hereof and net of the purchase price
paid for the Treasury Securities as provided in paragraph (b) below;
and, subject to the adjustments and exceptions set forth in the
Contracts, each Contract shall entitle the Trust to receive from the
respective Seller on the Exchange Date the Shares subject thereto so
that the Trust may execute the Exchange with the Holders; and
(b) to purchase for settlement on the Closing Date, and on the
Option Closing Date, as appropriate, with the proceeds of the sale of
the PEPS, net of underwriting commissions and other expenses payable in
connection with the public offering of the PEPS, U.S. Treasury
securities from such brokers or dealers as the Trustees shall designate
in writing to the Administrator having the terms set forth on Schedule
I hereto ("Treasury Securities").
SECTION 2.4 Portfolio Administration. In furtherance of the
provisions of Section 2.1 hereof, the Sponsor further specifically authorizes
and directs the Trustees:
(a) Determination of Dilution or Merger Adjustments.
Upon receipt of any notice pursuant to Section 5.4(b) of either
Contract of an event requiring an adjustment to the Exchange Ratio, or
upon otherwise acquiring knowledge of such an event, to calculate the
required adjustment and furnish notice thereof to the Collateral Agent
and each Seller, or to request from the Sellers such further
information as may be necessary to calculate or effect the required
adjustment;
(b) Selection of Independent Investment Bank. Upon
receipt of notice of (i) the occurrence of a Reorganization Event in
which property other than cash or Marketable Common Stock is to be
received in respect of the Common Stock as described in Section 6.2 of
each Contract or (ii) an Excess Purchase Payment in which the Company
has paid or will pay consideration other than cash as described in
Section 6.1(d) of each Contract, to select and retain a nationally
recognized investment banking firm to determine the market value of
such property as provided in each Contract, and to deliver to each
Seller notice pursuant to Section 8.1 of each Contract identifying the
firm proposed to be selected and retained, to consult with each Seller
on
-10-
14
such selection and retention as provided in such Section 8.1;
(c) Acceleration. Upon receipt of any notice pursuant
to Section 5.4(a) of either Contract or pursuant to Section 6(a) of
either Collateral Agreement that a Collateral Event of Default has
occurred, or upon otherwise acquiring notice that an Event of Default
has occurred, to request quotations from Independent Dealers, compute
Acceleration Value and Aggregate Acceleration Value and deliver an
Acceleration Amount Notice, in each case with respect to each Contract,
all as described in Article VII of each Contract;
(d) Determination of Exchange Date Amounts. To
calculate, on the Exchange Date, the number of ADSs required to be
delivered by each Seller under Section 1.1 of each Contract or, if a
Reorganization Event shall have occurred, the amount of cash required
to be delivered by each Seller, and the number of shares of Marketable
Common Stock permitted to be delivered by each Seller in lieu of all or
a portion of such cash, all as provided in Section 6.2 of each
Contract; and to furnish notice of the amounts so determined to the
Collateral Agent and each Seller;
(e) Distribution of Exchange Consideration. Unless a
Reorganization Event shall have occurred (in which event distribution
of proceeds shall be governed by Section 8.3 below):
(i) Determination of Fractional ADSs. To determine, on
the Exchange Date: (A) for each Holder of PEPS, such Holder's pro rata
share of the total number of ADSs delivered to the Trustees under the
Contracts on the Exchange Date; and (B) the number of fractional ADSs
allocable to each Holder (including, in the case of the Depositary,
fractional shares allocable to beneficial owners of PEPS who own
through Participants) and in the aggregate;
(ii) Cash for Fractional ADSs. To sell, in the
principal market therefor, on the Exchange Date, a number of ADSs equal
to the aggregate number of fractional ADSs determined pursuant to
clause (i) (B) above, rounded down to the nearest integral number; and
to determine the difference between (A) the aggregate proceeds of such
sale (net of any brokerage or related expenses) and (B) the product of
the number of ADSs so sold and the Exchange Price; and, in accordance
with the Indemnity Agreement, to pay such difference, if positive, to
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & Co. Incorporated, or to request payment of such
difference, if negative, from ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & Co. Incorporated;
(iii) Common Stock Election. To determine, on the
Exchange Date, for each Holder or beneficial owner owning
-11-
15
through a Participant who shall have requested, in the manner provided
in the Prospectus, to receive shares of Common Stock in lieu of ADSs,
the number of PEPS held by each such Holder or beneficial owner as of
the close of business on the Business Day preceding the Exchange Date,
and the maximum number of shares of Common Stock for which each such
Holder's or beneficial owner's pro rata share of ADSs may be exchanged,
consistent with the Deposit Agreement and any applicable restrictions
on the holding of shares of Common Stock;
(iv) Conversion of ADSs. To deliver to the ADR
Depositary on the Exchange Date a number of ADSs representing the
aggregate number of shares of Common Stock to be delivered to Holders
or beneficial owners of PEPS as determined pursuant to clause (iii)
above, with instructions that shares of Common Stock in respect of such
ADSs be delivered as provided under the Deposit Agreement in the names
and amounts corresponding to the electing Holders or beneficial owners;
(v) Delivery of ADSs. To deliver the remaining ADSs to
the ADR Depositary on the Exchange Date, with instructions that such
ADSs be re-registered and re-issued as follows: (A) for and in the name
of each Holder (other than the Depositary) who holds PEPS in definitive
form, the ADR Depositary shall be instructed to issue definitive ADRs
representing a number of ADSs equal to such Holder's pro rata share of
the total ADSs delivered to the Trustees under the Contracts, rounded
down to the nearest integral number, and reduced by the number of ADSs
that shall have been delivered to the ADR Depositary for conversion
into shares of Common Stock for delivery to such Holder as described in
(iv) above; (B) the ADR Depositary shall be instructed to transfer all
remaining ADSs to the account of the Custodian held through the
Depositary, who shall then be instructed to transfer and credit such
ADSs to each Participant who holds PEPS, with each Participant
receiving its pro rata share of the total ADSs delivered to the Trust
on the Exchange Date, reduced by (x) the aggregate fractional shares
allocable to such Participant and (y) the number of ADSs allocable to
such Participant that shall have been delivered to the ADR Depositary
for conversion into shares of Common Stock for delivery to such Holder
as described in (iv) above;
(vi) Distribution of Cash in Respect of Fractional
ADSs. To distribute to each Holder of PEPS cash in the amount of: (A)
the fraction of an ADS, if any, allocable to such Holder as determined
pursuant to clause (i) (B) above; times (B) the Exchange Price; and
(vii) Record Date. The distributions described in this
paragraph (e) shall be made to Holders of record as
-12-
16
of the close of business on the Business Day preceding the Exchange
Date.
SECTION 2.5 Extraordinary Sale. In the event of (a) a decline
in the market price of the Common Stock (on an as- adjusted basis as determined
by the Trustees applying the adjustments called for by each Contract) to 50% or
less of the closing sale price for the Common Stock on the Commencement Date or
(b) the bankruptcy or insolvency of the Company, the Trustees may (but shall be
under no obligation to) direct the Administrator to sell the Contracts. The
proceeds of any such sale of the Contracts shall be distributed pro rata to the
Holders within three Business Days after such sale. In the event of any such
sale of the Contracts, the Trustees shall immediately liquidate the Treasury
Securities and any Temporary Investments and distribute the proceeds thereof pro
rata to the Holders within three Business Days after such liquidation.
SECTION 2.6 Manner of Sales. Any sale of the Contracts or other
property permitted under this Article II or 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 2.7 Limitations on Trustees' Powers. The Trustees are
not permitted:
(a) to purchase or hold any securities or instruments except
for the Shares, the Contracts, the Treasury Securities, the Temporary
Investments contemplated by Section 3.5 hereof and, in the event of a
Reorganization Event, Marketable Common Stock;
(b) to dispose of any Contract prior to the Exchange Date,
except as provided in Section 2.5 hereof;
(c) to issue any securities or instruments except for the PEPS,
or to issue any PEPS other than the PEPS sold to the Sponsor and the
PEPS to be sold pursuant to the Underwriting Agreement and until such
PEPS 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;
-13-
17
(h) to purchase or sell real estate, commodities or commodities
contracts;
(i) to make loans; or
(j) 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 PEPS, establish with the Paying Agent an account to be called
the "Trust Account". All moneys received by the Trustees in respect of the
Contracts, the Treasury Securities and any Temporary Investments held pursuant
to Section 3.5 hereof, all moneys received from the sale of the PEPS to the
Sponsor, and any proceeds from the sale to the Underwriters of the PEPS
remaining after the purchase of the Contracts and the Treasury Securities and
the payment of the Trust's expenses described in Section 3.2 hereof shall be
credited to the Trust Account.
SECTION 3.2 Payment of Fees and Expenses. The Administrator is
authorized to pay from the Trust Account out of the net proceeds of the sale of
the PEPS, the fees and expenses of the Trust incurred in connection with the
offering of the PEPS and the costs and expenses incurred in the organization of
the Trust.
SECTION 3.3 Distributions to Holders. On or shortly after each
Distribution Date the Trustees shall distribute to each Holder of record at the
close of business on the preceding Record Date, at the post office address of
the Holder appearing on the books of the Trust or Paying Agent or by any other
means mutually agreed upon by the Holder and the Trustees, an amount equal to
such Holder's pro rata share of the Quarterly Distribution computed as of the
close of business on such Distribution Date.
SECTION 3.4 Segregation. All moneys and other assets deposited
with or received by the Trustees hereunder shall be held by them in trust as
part of the Trust Estate until required to be disbursed or otherwise disposed of
in accordance with the provisions of this Trust Agreement, and the Trustees
shall handle such moneys and other assets in such manner as shall constitute
-14-
18
the segregation and holding in trust within the meaning of the Investment
Company Act.
SECTION 3.5 Investments. To the extent necessary to enable the
Paying Agent to make the next succeeding Quarterly Distribution, any moneys
deposited with or received by the Trustees in the Trust Account shall be
invested as soon as possible by the Paying Agent in Temporary Investments
maturing no later than the Business Day preceding the next following
Distribution Date. Except as otherwise specifically provided herein or in the
Paying Agent Agreement, the Paying Agent shall not have the power to sell,
transfer or otherwise dispose of any Temporary Investment prior to the maturity
thereof, or to acquire additional Temporary Investments. The Paying Agent shall
hold any Temporary Investments to its maturity and shall apply the proceeds
thereof paid 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.
ARTICLE IV
REDEMPTION
SECTION 4.1 Redemption. The Trustees shall have no right or
obligation to redeem PEPS.
ARTICLE V
ISSUANCE OF CERTIFICATES;
REGISTRY; TRANSFER OF PEPS
SECTION 5.1 Form of Certificate. Each Certificate evidencing
PEPS 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 PEPS set forth on the face of such Certificate and the denominator of
which shall be the total number of PEPS outstanding at that time. All PEPS 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
-15-
19
deliver temporary Certificates (printed, lithographed, typewritten or otherwise
reproduced, in each case in form satisfactory to the Paying Agent). Temporary
Certificates shall be issuable as registered Certificates substantially in the
form of the definitive Certificates but with such omissions, insertions and
variations as may be appropriate for temporary Certificates, all as may be
determined by the Trustees with the concurrence of the Paying Agent. Every
temporary Certificate shall be executed by the Managing Trustee and be
authenticated by the Paying Agent upon the same conditions 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
PEPS. Until so exchanged, the temporary Certificates shall be entitled to the
same benefits hereunder as definitive Certificates.
SECTION 5.2 Transfer of PEPS; Issuance, Transfer and
Interchange of Certificates. PEPS may be transferred by the Holder thereof by
presentation and surrender of properly endorsed Certificates at the office of
the Paying Agent, accompanied by such documents executed by the Holder or his
authorized attorney as the Paying Agent deems necessary to evidence the
authority of the person making the transfer. Certificates issued pursuant to
this Trust Agreement are interchangeable for one or more other Certificates in
an equal aggregate number of PEPS 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 PEPS or any multiple thereof. The Paying Agent
may deem and treat the person in whose name any PEPS shall be registered upon
the books of the Paying Agent as the owner of such PEPS for all purposes
hereunder and the Paying Agent shall not be affected by any notice to the
contrary. The transfer books maintained by the Paying Agent for the purposes of
this Section 5.2 hereof shall include the name and address of the record owners
of the PEPS and shall be closed in connection with the termination of the Trust
pursuant to Section 8.3 hereof.
A sum sufficient to cover any tax or other governmental charge
that may be imposed in connection with any such transfer shall be paid to the
Paying Agent by the Holder. A Holder may be required to pay a fee for each new
Certificate to be issued pursuant to the preceding paragraph in such amount as
may be specified by the Paying Agent and approved by the Trustees.
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.
-16-
20
The Paying Agent may adopt other reasonable rules and
regulations for the registration, transfer and tender of PEPS 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 terminated or is in the
process of terminating, the Paying Agent, in lieu of issuing such new
Certificate, may, upon the terms and conditions set forth herein, make the
distributions set forth in Section 8.3(c) hereof. Any mutilated Certificate
shall be duly surrendered and cancelled before any duplicate Certificate shall
be issued in exchange and substitution therefor. Upon issuance of any duplicate
Certificate pursuant to this Section 5.3 hereof, the original Certificate
claimed to have been lost, stolen or destroyed shall become null and void and of
no effect, and any bona fide purchaser thereof shall have only such rights as
are afforded under Article 8 of the Uniform Commercial Code to a Holder
presenting a Certificate for transfer in the case of an overissue.
ARTICLE VI
ISSUANCE OF CONTRACTS
SECTION 6.1 Execution of Contracts. Each Contract shall be
countersigned manually or in facsimile by the Managing Trustee and executed
manually by the Sellers and shall be dated the date of execution and delivery by
the Sellers.
ARTICLE VII
TRUSTEES
SECTION 7.1 Trustees. The Trust shall have three Trustees who
shall initially be elected by the Sponsor. One Trustee shall be the Managing
Trustee and, as such, is authorized to execute documents and instruments on
behalf of the Trust. The Managing Trustee will be appointed by resolution of the
Trustees. Each Trustee shall serve until the next regular annual or special
meeting of Holders called for the purpose of electing Trustees and, then, until
such Trustee's successor is duly elected and qualified. Holders may not
cummulate 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.
-17-
21
SECTION 7.2 Vacancies. Any vacancy in the office of a Trustee
may be filled in compliance with Sections 10 and 16 of the Investment Company
Act by the vote, within thirty days, of the remaining Trustees; provided that if
required by Section 16 of the Investment Company Act, the Trustees shall
forthwith cause to be held as promptly as possible and in any event within sixty
days (unless the Commission by order shall extend such period) a meeting of
Holders for the purpose of electing Trustees in compliance with Sections 10 and
16 of the Investment Company Act. Until a vacancy in the office of any Trustee
is filled as 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 PEPS entitled to vote
present in person or by proxy at a special meeting of Holders called for the
purpose of electing any Trustee. Each individual Trustee shall be at least 21
years of age and shall not be under any legal disability. No Trustee who is an
"interested person", as defined in the Investment Company Act, may assume office
if it would cause the composition of the Trustees of the Trust not to be in
compliance with the percentage limitations on interested persons in Section 10
of the Investment Company Act. Trustees need not be Holders. Notice of the
appointment or election of a successor Trustee shall be mailed promptly after
acceptance of such appointment by the successor Trustee to each Holder.
SECTION 7.3 Powers. The Trust will be managed solely by the
Trustees, who will, subject to the provisions of Article II hereof, have
complete and exclusive control over the management, conduct and operation of the
Trust's business, and shall have the rights, powers and authority of a board of
directors of a corporation organized under New York law. The Trustees shall have
fiduciary responsibility for the safekeeping and use of all funds and assets of
the Trust and shall not employ, or permit another to employ, such funds or
assets in any manner except for the exclusive benefit of the Trust and except in
accordance with the terms of this Trust Agreement. Subject to the continuing
supervision of the Trustees and as permitted by applicable law, the functions of
the Trust shall be performed by the Custodian, the Paying Agent, the
Administrator and such other entities engaged to perform such functions as the
Trustees may determine, including, without limitation, any or all administrative
functions.
SECTION 7.4 Meetings. Meetings of the Trustees shall be held
from time to time upon the call of any Trustee on not less than 48 hours' notice
(which may be waived by any or all of the Trustees in writing either before or
after 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
-18-
22
majority of the Trustees then in office are present or by a unanimous written
consent of the Trustees without a meeting. Except as otherwise required under
the Investment Company Act, all or any of the Trustees may participate in a
meeting of the Trustees by means of a conference telephone call or similar
communications equipment by means of which all persons participating in the
meeting can hear each other, and participation in a meeting pursuant to such
communications equipment shall constitute presence in person at such meeting.
SECTION 7.5 Resignation and Removal. Any Trustee may resign and
be discharged of the trust created by the Trust Agreement by executing an
instrument in writing resigning as Trustee, filing the same with the
Administrator and sending notice thereof to the remaining Trustees, and such
resignation shall become effective immediately unless otherwise specified
therein. Any Trustee may be removed in the event of incapacity by vote of the
remaining Trustees and for any reason by written declaration or vote of the
Holders of more than 66 2/3% of the outstanding PEPS, 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 PEPS or certificates representing PEPS and shall in
no event assume or incur any liability, duty or obligation to any Holder or to
any other Person, other than as expressly provided for herein. The Trustees may
employ agents, attorneys, administrators, accountants and auditors, and shall
not be answerable for the default or misconduct of any such Persons if such
Persons shall have been selected with reasonable care. Action in good faith may
include action taken in good faith in accordance with an opinion of counsel. In
no event shall any Trustee be personally liable for any expenses with respect to
the Trust. Each Trustee shall be indemnified from the Trust Account with respect
to any claim, liability, loss or expense incurred in acting as Trustee of the
Trust, including the costs and expenses of the defense against any such claim or
liability, except in the case of willful misfeasance, bad faith, gross
negligence or reckless disregard of the duties of his office.
SECTION 7.7 Compensation. Each Trustee, other than a Trustee
who is a director, officer or employee of the Sponsor, any Underwriter, or the
Administrator or any affiliate thereof, shall receive a one-time, up-front fee
of $10,800 in respect of
-19-
23
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 a Trustee,
such Trustee shall remit to the Trust the portion of its fee ratable for the
period from the day of such resignation or removal through the Exchange Date.
ARTICLE VIII
MISCELLANEOUS
SECTION 8.1 Meetings of Holders. The Trustees shall not hold
annual or regular meetings of Holders except as set forth herein. A special
meeting may be called at any time by the Trustees or upon petition of Holders of
not less than 51% of the PEPS outstanding (unless substantially the same matter
was voted on during the preceding 12 months), and shall be called as provided in
Section 7.2 hereof (or as otherwise required by the Investment Company Act and
the rules and regulations thereunder, including, without limitation, when
requested by the Holders of not less than 10% of the PEPS outstanding for the
purpose of voting upon the question of the removal of any Trustee or Trustees).
The Trustees shall establish, and notify the Holders in writing of, the record
date for each such meeting which shall be not less than 10 nor more than 50 days
before the meeting date. Holders at the close of business on the record date
will be entitled to vote at the meeting. The Administrator shall, as soon as
possible after any such record date (or prior to such record date if
appropriate), mail by first class mail to each Holder a notice of meeting and a
proxy statement and form of proxy in the form approved by the Trustees and
complying with the Investment Company Act and the rules and regulations
thereunder. Except as otherwise specified herein or in any provision of the
Investment Company Act and the rules and regulations thereunder, any action may
be taken by vote of Holders of a majority of the PEPS outstanding present in
person or by proxy if Holders of a majority of PEPS outstanding on the record
date are so represented. Each PEPS 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
-20-
24
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 PEPS 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 by Section 30
of the Investment Company Act and the rules and regulations thereunder. The
Trustees shall prepare and file such reports as may from time to time be
required to be filed or distributed to Holders under any applicable state or
Federal statute or rule or regulation thereunder, and shall file such tax
returns as may from time to time be required under any applicable state or
Federal statute or rule or regulation thereunder. One of the Trustees shall be
designated by resolution of the Trustees to make the filings and give the
notices required by Rule 17g-1 under the Investment Company Act.
(c) In calculating the net asset value of the Trust as required
by the Investment Company Act, (i) the Treasury Securities will be valued at the
mean between the last current bid and asked prices or, if quotations are not
available, as determined in good faith by the Trustees, (ii) short-term
investments having a maturity of 60 days or less will be valued at cost with
accrued interest or discount earned included in interest receivable and (iii)
the Contracts 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 Contracts and with terms comparable
thereto.
SECTION 8.3 Termination. (a) This Trust Agreement and the Trust
created hereby shall terminate upon the earliest of (i) the date 90 days after
the execution of this Trust Agreement if (x) the PEPS have not theretofore been
issued or (y) the net worth of the Trust is not at least $100,000 at such time,
(ii) the date of the repayment, sale or other disposition, as the case may be,
of all of the Contracts, Treasury Securities and any other securities held
hereunder, (iii) the date 10 Business Days after the Exchange Date (or, if the
Contracts shall be accelerated pursuant to Article VIII thereof, 10 Business
Days after the date on which the Trust shall receive the ADSs then required to
be delivered by the Sellers, or the proceeds of any sale of collateral pursuant
to Section 8(c) of the Collateral Agreements), and (iv) the date which is 21
years less 91 days after the death of the last survivor of all of the
descendants of ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ living on the date hereof. The Trust is
irrevocable, the Sponsor has no right to withdraw any assets
-21-
25
constituting a portion of the Trust Estate, and the dissolution of the Sponsor
shall not operate to terminate the Trust. The death or incapacity of any Holder
shall not operate to terminate this Trust Agreement, nor entitle his legal
representatives or heirs to claim an accounting or to take any action or
proceeding in any court for a partition or winding up of the Trust, and shall
not otherwise affect the rights, obligations and liabilities of the parties
hereto.
(b) Written notice of any termination shall be sent to Holders
specifying the record date for any distribution to Holders and the time of
termination as determined by the Trustees, upon which the books maintained by
the Paying Agent pursuant to Section 5.2 hereof shall be closed.
(c) For purposes of termination under Sections 8.3(a)(ii),
(iii) and (iv) hereof, within five Business Days after such termination, the
Trustees shall, subject to any applicable provisions of law, effect the sale of
any remaining property of the Trust, and the Paying Agent shall distribute pro
rata as soon as practicable thereafter to each Holder, upon surrender for
cancellation of its 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 PEPS.
SECTION 8.4 Amendment and Waiver. (a) This Trust Agreement, and
any of the agreements referred to in Section 2.2(a) hereof, may be amended from
time to time by the Trustees for any purpose prior to the issuance and sale to
the Underwriters of the PEPS 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 PEPS then
outstanding, so as to increase the number of PEPS issuable hereunder above the
number of PEPS specified in Section 2.2(c) hereof or such lesser number as may
be outstanding at any time during the term of this Trust Agreement, (ii) to
-22-
26
reduce the interest in the Trust represented by PEPS without the consent of the
Holders of such PEPS, (iii) if such amendment is prohibited by the Investment
Company Act or other applicable law, (iv) without the consent by vote of the
Holders of all PEPS then outstanding, if such amendment would effect a change in
the voting requirements set forth in Section 8.1 hereof or this Section 8.4, or
(v) with the consent by vote of the Holders of the lesser of (x) 67% or more of
the PEPS represented at a special meeting of Holders, if more than 50% of the
PEPS outstanding are represented at such meeting, and (y) more than 50% of the
PEPS outstanding, if such amendment would effect a change in Section 2.1 or 2.7
hereof.
(c) Promptly after the execution of any amendment, the Trustees
shall furnish written notification of the substance of such amendment to each
Holder.
(d) Notwithstanding subsections (a) and (b) of this Section
8.4, no amendment hereof shall permit the Trust, the Trustees, the
Administrator, the Paying Agent or the Custodian to take any action or direct or
permit any Person to take any action that (i) would vary the investment of
Holders within the meaning of Treasury Regulation Section 301.7701-4(c), or (ii)
would or could cause the Trust, or direct or permit any action to be taken that
would or could cause the Trust, not to be a "grantor trust" under the Code.
SECTION 8.5 Accountants.
(a) The Trustees shall, in accordance with Section 30 of the
Investment Company Act, file annually with the Commission such information,
documents and reports as investment companies having securities registered on a
national securities exchange are required to file annually pursuant to Section
13(a) of the Securities Exchange Act of 1934, as amended, and the rules and
regulations issued thereunder. The Trustees shall transmit to the Holders, at
least semi-annually, the reports required by Section 30(d) of the Investment
Company Act and the rules and regulations thereunder, including, without
limitation, a balance sheet accompanied by a statement of the aggregate value of
investments on the date of such balance sheet, a list showing the amounts and
values of such investments owned on the date of such balance sheet, and a
statement of income for the period covered by the report. Financial statements
contained in such annual reports shall be accompanied by a certificate of
independent public accountants based upon an audit not less in scope or
procedures than that which independent public accountants would ordinarily make
for the purpose of presenting comprehensive and dependable financial statements
and shall contain such information as the Commission may prescribe. Each such
report shall state that such independent public accountants have verified
investments owned, either by actual examination or by receipt of a certificate
from the Custodian.
-23-
27
(b) The independent public accountants referred to in
subsection (a) above shall be selected at a meeting held within thirty days
before or after the beginning of the fiscal year by the vote, cast in person, of
a majority of the Trustees who are not "interested persons" as defined in the
Investment Company Act and such selection shall be submitted for ratification at
the first meeting of Holders to be held as set forth in Section 8.1 hereof, and
thereafter as required by the Investment Company Act and the rules and
regulations thereunder. The employment of any independent public accountant for
the Trust shall be conditioned upon the right of the Holders by a vote of the
lesser of (i) 67% or more of the PEPS present at a special meeting of Holders,
if Holders of more than 50% of PEPS outstanding are present or represented by
proxy at such meeting or (ii) more than 50% of the PEPS 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, the Contracts, the 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 PEPS shall
be construed to constitute the Holders from time to time as partners or members
of an association.
SECTION 8.7 New York Law to Govern. This Trust Agreement is
executed and delivered in the State of New York, and all laws or rules of
construction of the State of New York shall govern the rights of the parties
hereto and the Holders and the construction, validity and effect of the
provisions hereof.
SECTION 8.8 Notices. Any notice, demand, direction or
instruction to be given to the Sponsor hereunder shall be in writing and shall
be duly given if mailed or delivered to ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & Co. Incorporated, ▇▇▇▇
▇▇▇▇▇▇ ▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, Attention: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇,
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
-24-
28
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 counterparts, and as so executed will constitute one agreement, binding on
all of the parties hereto.
-25-
29
IN WITNESS WHEREOF, the parties hereto have caused this Trust
Agreement to be duly executed.
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & CO. INCORPORATED
By
-------------------------------------
Name:
Title:
TRUSTEES:
---------------------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ III
Address: Department of Economics
University of Delaware
▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
---------------------------------------
Name: ▇▇▇▇▇ ▇. ▇'▇▇▇▇▇
Address: Center for Economic Education
and Entrepreneurship
University of Delaware
▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
---------------------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Address: Department of Finance
University of Delaware
▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
-26-
30
Schedule I
TREASURY SECURITIES
All terms specified are for stripped principal or interest
components of U.S. Treasury debt obligations.
================================================================================
Aggregate Face Amount, per
STRIPS Payment Date PEPS, Payable at Payment Date
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
February 15, 1996
--------------------------------------------------------------------------------
May 15, 1996
--------------------------------------------------------------------------------
August 15, 1996
--------------------------------------------------------------------------------
November 15, 1996
--------------------------------------------------------------------------------
February 15, 1997
--------------------------------------------------------------------------------
May 15, 1997
--------------------------------------------------------------------------------
August 15, 1997
--------------------------------------------------------------------------------
November 15, 1997
--------------------------------------------------------------------------------
February 15, 1998
--------------------------------------------------------------------------------
May 15, 1998
--------------------------------------------------------------------------------
February 15, 1999
--------------------------------------------------------------------------------
================================================================================
31
Exhibit A
THIS CERTIFICATE IS ISSUED UNDER AND IS SUBJECT TO THE TERMS, PROVISIONS AND
CONDITIONS OF THE TRUST AGREEMENT REFERRED TO BELOW TO WHICH THE HOLDER OF THIS
CERTIFICATE BY VIRTUE OF THE ACCEPTANCE HEREOF ASSENTS AND IS BOUND.
PEPS SHARES
AJL PEPS TRUST
CUSIP NO. __________
NO. _______ ____________________ SHARES
THIS CERTIFIES THAT ____________________________________________________IS THE
RECORD OWNER OF ______________________PREMIUM EXCHANGEABLE PARTICIPATING SHARES
(PEPS) OF AJL PEPS TRUST CONSTITUTING FRACTIONAL UNDIVIDED INTERESTS OF AJL
PEPS TRUST, A TRUST CREATED UNDER THE LAWS OF THE STATE OF NEW YORK PURSUANT
TO A TRUST AGREEMENT BETWEEN ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & CO. INCORPORATED AND THE TRUSTEES
NAMED THEREIN. THIS CERTIFICATE IS ISSUED UNDER AND IS SUBJECT TO THE TERMS,
PROVISIONS AND CONDITIONS OF THE TRUST AGREEMENT TO WHICH THE HOLDER OF THIS
CERTIFICATE BY VIRTUE OF THE ACCEPTANCE HEREOF ASSENTS AND IS BOUND, A COPY OF
WHICH TRUST AGREEMENT IS AVAILABLE AT THE OFFICE OF THE TRUST'S ADMINISTRATOR
AND PAYING AGENT, 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.
32
THIS CERTIFICATE IS NOT VALID UNLESS MANUALLY COUNTERSIGNED BY THE
PAYING AGENT.
WITNESS THE FACSIMILE SIGNATURE OF THE MANAGING TRUSTEE.
DATED:
AJL PEPS Trust
By
----------------------------
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Managing Trustee
COUNTERSIGNED:
The Bank of New York,
as Paying Agent
By
----------------------------
Authorized Signature
-2-