<PAGE>
Filer: MORGAN STANLEY DEAN WITTER SELECT EQUITY TRUST
SELECT 5 INDUSTRIAL PORTFOLIO 2000-2
Investment Company Act No. 811-5065
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM S-6
For Registration Under the Securities Act of 1933 of Securities of Unit
Investment Trusts Registered on Form N-8B-2.
A. Exact name of Trust:
MORGAN STANLEY DEAN WITTER SELECT EQUITY TRUST
SELECT 5 INDUSTRIAL PORTFOLIO 2000-2
B. Name of Depositor:
DEAN WITTER REYNOLDS INC.
C. Complete address of Depositor's principal executive office:
DEAN WITTER REYNOLDS INC.
Two World Trade Center
New York, New York 10048
D. Name and complete address of agents for service
MR. MICHAEL D. BROWNE
DEAN WITTER REYNOLDS INC.
Unit Trust Department
Two World Trade Center - 59th Floor
New York, New York 10048
Copy to:
KENNETH W. ORCE, ESQ.
CAHILL GORDON & REINDEL
80 Pine Street
New York, New York 10005
<PAGE>
E. Total and amount of securities being registered:
An indefinite number of Units of Beneficial Interest pursuant
to Rule 24f-2 promulgated under the Investment Company Act of
1940, as amended
F. Proposed maximum offering price to the public of the
securities being registered:
Indefinite
G. Amount of filing fee:
N/A
H. Approximate date of proposed sale to public:
AS SOON AS PRACTICABLE AFTER THE EFFECTIVE DATE OF THE
REGISTRATION STATEMENT.
The registrant hereby amends this Registration Statement on
such date or dates as may be necessary to delay its effective
date until the registrant shall file a further amendment which
specifically states that this Registration Statement shall
thereafter become effective in accordance with Section 8(a) of
the Securities Act of 1933 or until the Registration Statement
shall become effective on such date as the Commission, acting
pursuant to said Section 8(a), may determine.
<PAGE>
MORGAN STANLEY DEAN WITTER SELECT EQUITY TRUST
SELECT 5 INDUSTRIAL PORTFOLIO 2000-2
Cross Reference Sheet
Pursuant to Rule 404(c) of Regulation C
under the Securities Act of 1933
(Form N-8B-2 Items required by Instruction 1
as to Prospectus on Form S-6)
<TABLE>
<CAPTION>
Form N-8B-2 Form S-6
Item Number Heading in Prospectus
- ----------- ---------------------
<S> <C>
I. ORGANIZATION AND GENERAL INFORMATION
1. (a) Name of Trust ) Front Cover
(b) Title of securities issued )
2. Name and address of Depositor ) Table of Contents
3. Name and address of Trustee ) Table of Contents
4. Name and address of principal Underwriter ) Table of Contents
5. Organization of Trust ) Introduction
6. Execution and termination of Indenture ) Introduction; Amendment and
) Termination of the Indenture
7. Changes of name ) Included in Form
N-8B-2
8. Fiscal Year ) Included in Form
N-8B-2
9. Litigation ) *
II. GENERAL DESCRIPTION OF THE TRUST
AND SECURITIES OF THE TRUST
- -------------------------------
* Not applicable, answer negative or not required.
<PAGE>
<CAPTION>
Form N-8B-2 Form S-6
Item Number Heading in Prospectus
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<S> <C>
10. General Information regarding Trust's )
Securities and Rights of Holders
(a) Type of Securities (Registered or ) Rights of Unit Holders
Bearer)
(b) Type of Securities (Cumulative or ) Administration of the Trust -
Distributive) ) Distribution
(c) Rights of Holders as to withdrawal or ) Redemption; Public Offering of
redemption ) Units -Secondary Market
(d) Rights of Holders as to conversion, ) Public Offering of Units -
transfer, partial redemption and ) Secondary Market; Exchange Option;
similar matters ) Redemption; Rights of Unit Holders
) -Certificates
(e) Lapses or defaults with respect to ) *
periodic payment plan certificates
(f) Voting rights as to Securities under ) Rights of Unit Holders - Certain
the Indenture ) Limitations; Amendment and
) Termination of the Indenture
(g) Notice to Holders as to change in: )
(1) Composition of assets of Trust ) Administration of the Trust -
) Reports to Unit Holders; The Trust -
) Summary Description of the Portfolios
(2) Terms and Conditions of Trust's ) Amendment and Termination of the
Securities ) Indenture
(3) Provisions of Indenture ) Amendment and Termination of the
Indenture
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* Not applicable, answer negative or not required.
<PAGE>
<CAPTION>
Form N-8B-2 Form S-6
Item Number Heading in Prospectus
- ----------- ---------------------
<S> <C>
(4) Identity of Depositor and ) Sponsor; Trustee
Trustee )
(h) Security Holders Consent required to )
change: )
(1) Composition of assets of Trust ) Amendment and Termination of the
) Indenture
(2) Terms and conditions of Trust's ) Amendment and Termination of the
Securities ) Indenture
(3) Provisions of Indenture ) Amendment and Termination of the
) Indenture
(4) Identity of Depositor and ) *
Trustee
(i) Other principal features of the ) Cover of Prospectus; Tax Status
Trust's Securities
11. Type of securities comprising units ) The Trust - Summary Description of
) the Portfolios; Objectives and
) Securities Selection; The Trust -
) Special Considerations
12. Type of securities comprising periodic ) *
payment certificates
13. (a) Load, fees, expenses, etc. ) Summary of Essential Information;
) Public Offering of Units - Public
) Offering Price; - Profit of
) Sponsor;- Volume Discount;
) Expenses and Charges
(b) Certain information regarding periodic ) *
payment certificates )
- -------------------------------
* Not applicable, answer negative or not required.
<PAGE>
<CAPTION>
Form N-8B-2 Form S-6
Item Number Heading in Prospectus
- ----------- ---------------------
<S> <C>
(c) Certain percentages ) Summary of Essential Information;
) Public Offering of Units
) - Public Offering Price; - Profit
) of Sponsor; - Volume Discount
(d) Price differentials ) Public Offering of Units - Public
) Offering Price
(e) Certain other loads, fees, expenses, ) Rights of Unit Holders -
etc. payable by holders ) Certificates
(f) Certain profits receivable by ) Redemption - Purchase by the
depositor, principal underwriters, ) Sponsors of Units Tendered for
trustee or affiliated persons ) Redemption
(g) Ratio of annual charges to income ) *
14. Issuance of trust's securities ) Introduction; Rights of Unit
) Holders - Certificates
15. Receipt and handling of payments from ) Public Offering of Units - Profit
purchasers ) of Sponsor
16. Acquisition and disposition of underlying ) Introduction; Amendment and
securities ) Termination of the Indenture;
) Objectives and Securities
) Selection; The Trust - Summary
) Description of the Portfolio;
) Sponsor - Responsibility
- -------------------------------
* Not applicable, answer negative or not required.
<PAGE>
<CAPTION>
Form N-8B-2 Form S-6
Item Number Heading in Prospectus
- ----------- ---------------------
<S> <C>
17. Withdrawal or redemption ) Redemption; Public Offering of
) Units - Secondary Market
18. (a) Receipt and disposition of income ) Administration of the Trust;
) Reinvestment Programs
(b) Reinvestment of distributions ) Reinvestment Programs
(c) Reserves or special fund ) Administration of the Trust -
) Distribution
(d) Schedule of distribution ) *
19. Records, accounts and report ) Administration of the Trust -
) Records and Accounts; - Reports to
) Unit Holders
20. Certain miscellaneous provisions of the trust ) Amendment and Termination of the
agreement ) Indenture; Sponsor - Limitation on
) Liability - Resignation; Trustee -
) Limitation on Liability -
) Resignation
21. Loans to security holders ) *
22. Limitations on liability of depositor, ) Sponsor, Trustee; Evaluator -
trustee, custodian, etc. ) Limitation on Liability
23. Bonding arrangements ) Included on Form
) N-8B-2
24. Other material provisions of the trust ) *
agreement
III. ORGANIZATION PERSONNEL AND
AFFILIATED PERSONS OF DEPOSITOR
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* Not applicable, answer negative or not required.
<PAGE>
<CAPTION>
Form N-8B-2 Form S-6
Item Number Heading in Prospectus
- ----------- ---------------------
<S> <C>
25. Organization of Depositor ) Sponsor
26. Fees received by Depositor ) Expenses and Charges - fees;
) Public Offering of Units - Profit
) of Sponsor
27. Business of Depositor ) Sponsor and Included in Form N-8B-2
28. Certain information as to officials and ) Included in Form
affiliated persons of Depositor ) N-8B-2
29. Voting securities of Depositor ) Included in Form
) N-8B-2
30. Persons controlling Depositor ) *
31. Compensation of Officers and Directors of ) *
Depositor
32. Compensation of Directors of Depositor ) *
33. Compensation of employees of Depositor ) *
34. Remuneration of other persons for certain ) *
services rendered to trust
IV. DISTRIBUTION AND REDEMPTION OF SECURITIES
35. Distribution of trust's securities by states ) Public Offering of Units - Public
Distribution
36. Suspension of sales of trust's securities ) *
37. Revocation of authority to distribute ) *
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* Not applicable, answer negative or not required.
<PAGE>
<CAPTION>
Form N-8B-2 Form S-6
Item Number Heading in Prospectus
- ----------- ---------------------
<S> <C>
38. (a) Method of distribution ) Public Offering of Units
(b) Underwriting agreements
(c) Selling agreements
39. (a) Organization of principal underwriter ) Sponsor
(b) N.A.S.D. membership of principal
underwriter
40. Certain fees received by principal underwriter ) Public Offering of Units - Profit
) of Sponsor
41. (a) Business of principal underwriter ) Sponsor
(b) Branch offices of principal underwriter ) *
(c) Salesman of principal underwriter ) *
42. Ownership of trust's securities by certain ) *
persons
43. Certain brokerage commissions received by ) *
principal underwriter
44. (a) Method of valuation ) Public Offering of Units
(b) Schedule as to offering price ) *
(c) Variation in offering price to certain ) Public Offering of Units - Volume
persons ) Discount; Exchange Option
45. Suspension of redemption rights ) *
46. (a) Redemption valuation ) Public Offering of Units-
) Secondary Market; Redemption
(b) Schedule as to redemption price ) *
- -------------------------------
* Not applicable, answer negative or not required.
<PAGE>
<CAPTION>
Form N-8B-2 Form S-6
Item Number Heading in Prospectus
- ----------- ---------------------
<S> <C>
47. Maintenance of position in underlying ) See items 10(d), 44 and 46
securities
V. INFORMATION CONCERNING THE TRUSTEE OR CUSTODIAN
48. Organization and regulation of Trustee ) Trustee
49. Fees and expenses of Trustee ) Expenses and Charges
50. Trustee's lien ) Expenses and Charges
VI. INFORMATION CONCERNING INSURANCE
OF HOLDERS OF SECURITIES
51. (a) Name and address of Insurance Company ) *
(b) Type of policies ) *
(c) Type of risks insured and excluded ) *
(d) Coverage of policies ) *
(e) Beneficiaries of policies ) *
(f) Terms and manner of cancellation ) *
(g) Method of determining premiums ) *
(h) Amount of aggregate premiums paid ) *
(i) Persons receiving any part of premiums ) *
(j) Other material provisions of the Trust ) *
relating to insurance
VII. POLICY OF REGISTRANT
52. (a) Method of selecting and eliminating ) Introduction; Objectives and
securities from the Trust ) Securities Selection; The Trust -
) Summary Description of the
) Portfolio; Sponsor - Responsibility
- -------------------------------
* Not applicable, answer negative or not required.
<PAGE>
<CAPTION>
Form N-8B-2 Form S-6
Item Number Heading in Prospectus
- ----------- ---------------------
<S> <C>
(b) Elimination of securities from the ) *
Trust
(c) Substitution and elimination of ) Introduction; Objectives and
securities from the Trust ) Securities Selection; Sponsor -
) Responsibility
(d) Description of any fundamental policy ) *
of the Trust
53. Taxable status of the Trust ) Cover of Prospectus; Tax Status
VIII. FINANCIAL AND STATISTICAL INFORMATION
54. Information regarding the Trust's past ten ) *
fiscal years
55. Certain information regarding periodic ) *
payment plan certificates
56. Certain information regarding periodic ) *
payment plan certificates
57. Certain information regarding periodic ) *
payment plan certificates
58. Certain information regarding periodic ) *
payment plan certificates
59. Financial statements (Instruction 1(c) to ) Statement of Financial Condition
Form S-6)
</TABLE>
- -------------------------------
* Not applicable, answer negative or not required.
<PAGE>
SUBJECT TO COMPLETION FEBRUARY 4, 2000
- --------------------------------------------------------------------------------
MORGAN STANLEY DEAN WITTER SELECT EQUITY TRUST
SELECT 5 INDUSTRIAL PORTFOLIO 2000-2
A "UNIT INVESTMENT TRUST"
- -------------------------------------------------------------------------------
The attached final prospectus for a prior Series of Morgan Stanley
Dean Witter Select Equity Trust Select 5 Industrial Portfolio is hereby used as
a preliminary prospectus for Morgan Stanley Dean Witter Select Equity Trust
Select 5 Industrial Portfolio 2000-2. The narrative information relating to the
operation of this Series and the structure of the final prospectus for this
Series will be substantially the same as that set forth in the attached
prospectus. Information with respect to pricing, the number of units, dates and
summary information regarding the characteristics of securities to be deposited
in this Series is not now available and will be different from that included in
the attached final prospectus since each Series has a unique Portfolio.
Accordingly, the information contained herein with regard to the previous Series
should be considered as being included for informational purposes only.
Investors should contact account executives of the Sponsor who will be
informed of the expected effective date of this Series and who will be supplied
with complete information with respect to such Series on the date of the
effectiveness of the registration statement relating to Units of this Series.
OFFERS TO SELL OR THE SOLICITATION OF ORDERS TO BUY MAY ONLY BE MADE
IN THOSE JURISDICTIONS IN WHICH THE SECURITIES OF A TRUST HAVE BEEN REGISTERED.
INVESTORS SHOULD CONTACT ACCOUNT EXECUTIVES OF THE SPONSOR TO DETERMINE WHETHER
THE SECURITIES OF A PARTICULAR TRUST HAVE BEEN REGISTERED FOR SALE IN THE STATE
IN WHICH THEY RESIDE.
THE INFORMATION IN THIS PROSPECTUS IS NOT COMPLETE AND MAY BE CHANGED.
WE MAY NOT SELL THESE SECURITIES UNTIL THE REGISTRATION STATEMENT FILED WITH THE
SECURITIES AND EXCHANGE COMMISSION IS EFFECTIVE. THIS PROSPECTUS IS NOT AN OFFER
TO SELL THESE SECURITIES AND IS NOT SOLICITING AN OFFER TO BUY THESE SECURITIES
IN ANY STATE WHERE THE OFFER OR SALE IS NOT PERMITTED.
<PAGE>
MORGAN STANLEY DEAN WITTER SELECT EQUITY TRUST
SELECT 5 INDUSTRIAL PORTFOLIO 2000-1
This prospectus dated January 5, 2000, File No. 333-91017, is hereby
incorporated by reference herein.
MORGAN STANLEY DEAN WITTER SELECT EQUITY TRUST
SELECT 5 INDUSTRIAL PORTFOLIO 99-6
This prospectus dated November 2, 1999, File No. 333-88445, is hereby
incorporated by reference herein.
MORGAN STANLEY DEAN WITTER SELECT EQUITY TRUST
SELECT 5 INDUSTRIAL PORTFOLIO 99-5
This prospectus dated September 1, 1999, File No. 333-84651, is hereby
incorporated by reference herein.
MORGAN STANLEY DEAN WITTER SELECT EQUITY TRUST
SELECT 5 INDUSTRIAL PORTFOLIO 99-4
This prospectus dated July 1, 1999, File No. 333-79927, is hereby
incorporated by reference herein.
MORGAN STANLEY DEAN WITTER SELECT EQUITY TRUST
SELECT 5 INDUSTRIAL PORTFOLIO 99-3
This prospectus dated May 3, 1999, File No. 333-76087, is hereby
incorporated by reference herein.
MORGAN STANLEY DEAN WITTER SELECT EQUITY TRUST
SELECT 5 INDUSTRIAL PORTFOLIO 99-2
This prospectus dated February 26, 1999, File No. 333-72177, is hereby
incorporated by reference herein.
MORGAN STANLEY DEAN WITTER SELECT EQUITY TRUST
SELECT 5 INDUSTRIAL PORTFOLIO 99-1
This prospectus dated January 4, 1999, File No. 333-64625, is hereby
incorporated by reference herein.
<PAGE>
PART II. ADDITIONAL INFORMATION NOT REQUIRED IN PROSPECTUS
CONTENTS OF REGISTRATION STATEMENT
This registration statement on Form S-6 comprises the following
documents:
The facing sheet.
The Cross Reference Sheet.
The Prospectus.
The signatures.
Listed below are the names and registration numbers of each previous
Series of Morgan Stanley Dean Witter Select Equity Trust, the final prospectus
for any of which is used as a preliminary prospectus for Morgan Stanley Dean
Witter Select Equity Trust Select 5 Industrial Portfolio 2000-2. These prior
final prospectuses are incorporated herein by reference.
Morgan Stanley Dean Witter Select Equity Trust
Select 5 Industrial Portfolio 2000-1
(Registration No. 333-91017)
Morgan Stanley Dean Witter Select Equity Trust
Select 5 Industrial Portfolio 99-6
(Registration No. 333-88445)
Morgan Stanley Dean Witter Select Equity Trust
Select 5 Industrial Portfolio 99-5
(Registration No. 333-84651)
Morgan Stanley Dean Witter Select Equity Trust
Select 5 Industrial Portfolio 99-4
(Registration No. 333-79927)
Morgan Stanley Dean Witter Select Equity Trust
Select 5 Industrial Portfolio 99-3
(Registration No. 333-76087)
Morgan Stanley Dean Witter Select Equity Trust,
Select 5 Industrial Portfolio 99-2
(Registration No. 333-72177)
Morgan Stanley Dean Witter Select Equity Trust,
Select 5 Industrial Portfolio 99-1
(Registration No. 333-64625)
Written consents of the following persons:
- Cahill Gordon & Reindel (included in Exhibit 5)
- Deloitte & Touche LLP
<PAGE>
The following Exhibits:
**EX-3(i) Certificate of Incorporation of Dean Witter Reynolds Inc.
**EX-3(ii) By-Laws of Dean Witter Reynolds Inc.
**EX-4.1 Trust Indenture and Agreement, dated January 22, 1991.
*EX-4.15 Amendment to Exhibit 4.1 dated December 30, 1997.
**EX-4.2 Draft of Reference Trust Agreement.
**EX-4.3 Amendment dated July 18, 1995 to Trust Indenture and Agreement
dated January 22, 1991.
***EX-5 Opinion of counsel as to the legality of the securities being
registered.
***EX-23.1 Consent of Independent Auditors.
***EX-23.2 Consent of Cahill Gordon & Reindel (included in Exhibit 5).
****EX-24 Powers of Attorney executed by a majority of the Board of
Directors of Dean Witter Reynolds Inc.
**EX-99 Information as to Officers and Directors of Dean Witter Reynolds
Inc. is incorporated by reference to Schedules A and D of Form BD
filed by Dean Witter Reynolds Inc. pursuant to Rules 15b1-1 and
15b3-1 under the Securities Exchanges Act of 1934 (1934 Act File
No. 8-14172).
- ---------------------------
* The Amendment dated December 30, 1997 to the Trust Indenture and
Agreement is incorporated by reference to exhibit of same
designation filed with the Securities and Exchange Commission as
an exhibit to Dean Witter Select Equity Trust, Select 5 Industrial
Portfolio 98-1, Registration No.
333-41783.
** Filed herewith.
*** To be filed by amendment.
**** Previously Filed.
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the
registrant, Morgan Stanley Dean Witter Select Equity Trust Select 5 Industrial
Portfolio 2000-2, has duly caused this Registration Statement to be signed on
its behalf by the undersigned, thereunto duly authorized, all in the City of New
York and State of New York on the 4th day of February, 2000.
MORGAN STANLEY DEAN WITTER
SELECT EQUITY TRUST
SELECT 5 INDUSTRIAL PORTFOLIO
2000-2
(Registrant)
By: Dean Witter Reynolds Inc.
(Depositor)
/s/Thomas Hines
------------------------------
Thomas Hines
Authorized Signatory
<PAGE>
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed on behalf of Dean Witter Reynolds Inc.,
the Depositor, by the following person in the following capacities and by the
following persons who constitute a majority of the Depositor's Board of
Directors in the City of New York, and State of New York, on this 4th day of
February, 2000.
DEAN WITTER REYNOLDS INC.
Name Office
- ---- ------
Philip J. Purcell Chairman & Chief )
Executive Officer )
and Director*** )
Bruce F. Alonso Director****
Richard M. DeMartini Director***
Raymond J. Drop Director****
James F. Higgins Director***
John J. Mack Director*****
Mitchell M. Merin Director*
Stephen R. Miller Director***
John H. Schaefer Director*****
Thomas C. Schneider Director**
Alan A. Schroder Director*****
Robert G. Scott Director*****
By: /s/thomas Hines
----------------------------
Thomas Hines
Attorney-in-fact*, **,
***, ****, *****
- ---------------------
* Executed copies of the Powers of Attorney have been filed
with the Securities and Exchange Commission in connection
with Amendment No. 1 to the Registration Statement on Form
S-6 for Dean Witter Select Equity Trust, Select 10 Indus
trial Portfolio 97-1, File No. 333-16839.
** Executed copies of Powers of Attorney have been filed with
the Securities and Exchange Commission in connection with
Amendment No. 1 to the Registration Statement on Form S-6
for Dean Witter Select Equity Trust, Select 10 Industrial
Portfolio 96-4, File No. 333-10499.
*** Executed copies of Powers of Attorney have been filed with the
Securities and Exchange Commission in connection with the
Registration Statement on Form S-6 for Dean Witter Se-
<PAGE>
lect Equity Trust, Select 10 International Series 95-1, File No.
33-56389.
**** Executed copies of Powers of Attorney have been filed with
the Securities and Exchange Commission in connection with
Post-Effective Amendment No. 1 to Form S-6 for Morgan Stan
ley Dean Witter Select Equity Trust, Select 10 Industrial
Portfolio 99-4, File No. 333-79905.
***** Executed copies of Powers of Attorney have been filed with the
Securities and Exchange Commission in connection with Amendment No. 1
to the Registration Statement on Form S-6 for Morgan Stanley Dean
Witter Select Equity Trust Morgan Stanley High-Technology 35 Index
Portfolio 2000-1, File No. 333-91713.
<PAGE>
Exhibit Index
To
Form S-6
Registration Statement
Under the Securities Act of 1933
Exhibit No. Document
- ---------- --------
**EX-3(i) Certificate of Incorporation of Dean Witter
Reynolds Inc.
**EX-3(ii) By-Laws of Dean Witter Reynolds Inc.
**EX-4.1 Trust Indenture and Agreement, dated January 22,
1991
*EX-4.15 Amendment to Exhibit 4.1 dated December 30, 1997.
**EX-4.2 Draft of Reference Trust Agreement.
**EX-4.3 Amendment dated July 18, 1995 to Trust Indenture
and Agreement dated January 22, 1991.
***EX-5 Opinion of counsel as to the legality of the
securities being registered.
***EX-23.1 Consent of Independent Auditors.
***EX-23.2 Consent of Cahill Gordon & Reindel (included in
Exhibit 5).
****EX-24 Powers of Attorney executed by a majority of the
Board of Directors of Dean Witter Reynolds Inc.
<PAGE>
**EX-99 Information as to Officers and Directors of Dean
Witter Reynolds Inc. is incorporated by reference
to Schedule A and D of Form BD filed by Dean
Witter Reynolds Inc. pursuant to Rules 15b1-1 and
15b3-1 under the Securities Exchange Act of 1934
(1934 Act File No. 8-14172).
- ---------------------------
* The Amendment dated December 30, 1997 to the Trust Indenture and
Agreement is incorporated by reference to exhibit of same
designation filed with the Securities and Exchange Commission as
an exhibit to Dean Witter Select Equity Trust, Select 5 Industrial
Portfolio 98-1, Registration No.
333-41783.
** Filed herewith.
*** To be filed by amendment.
**** Previously Filed.
<PAGE>
CERTIFICATE OF INCORPORATION
OF
DEAN WITTER REYNOLDS INC.
Comprised of
Certificate of Incorporation of Dean Witter & Co. Incorporated, as set forth in
Appendix A to Plan and Agreement of Merger dated as of December 5, 1973, by and
between Temporary Corporation and Dean Witter & Co. Incorporated, and joined in
by Dean Witter Organization Inc., effective February 28, 1974;
as amended by
Certificate of Amendment of Certificate of Incorporation of Dean Witter & Co.
Incorporated, effective April 8, 1974;
and as further amended by
Section 1.2 of Plan and Agreement of Merger dated as of December 27, 1977, by
and between Dean Witter & Co. Incorporated and Reynolds Securities Inc.,
effective January 3, 1978.
(Original Certificate of Incorporation of Dean Witter & Co. Incorporated was
filed with the Secretary of State of Delaware on April 15, 1968.)
<PAGE>
STATE
OF
DELAWARE
OFFICE OF SECRETARY OF STATE
I, Michael Harkins, Secretary of State of the State of
Delaware, do hereby certify that the attached is a true and
correct copy of Certificate of Agreement of Merger
------------------------------
filed in this office on February 28, 1974
------------------------------------
/s/ Michael Harkins
---------------------------------------
MICHAEL HARKINS, SECRETARY OF STATE
BY: /s/ C. Coleman
---------------------------------------
DATE: March 9, 1987
---------------------------------------
<PAGE>
[Conformed Copy]
================================================================================
PLAN AND AGREEMENT OF MERGER
DATED AS OF DECEMBER 5, 1973
BY AND BETWEEN
TEMPORARY CORPORATION
AND
DEAN WITTER & CO. INCORPORATED
JOINED IN BY
DEAN WITTER ORGANIZATION INC.
-----------
CERTIFICATE OF INCORPORATION
OF
DEAN WITTER & CO. INCORPORATED
(APPENDIX A)
================================================================================
Proof of Thursday, February 21, 1974--SORG/S.F.--982-9663 RACK H
<PAGE>
APPENDIX A
================================================================================
CERTIFICATE OF INCORPORATION
of
DEAN WITTER & CO. INCORPORATED
-------------
================================================================================
<PAGE>
CERTIFICATE OF INCORPORATION
of
DEAN WITTER & CO. INCORPORATED
ARTICLE I
Name
The name of the Corporation is:
DEAN WITTER & CO. INCORPORATED
ARTICLE II
REGISTERED OFFICE AND REGISTERED AGENT
The registered office of the Corporation in the State of Delaware is
to be located at No. 100 West Tenth Street, in the City of Wilmington, County of
New Castle. The name and address of the Corporation's registered agent is The
Corporation Trust Company, No. 100 West Tenth Street, in the City of Wilmington,
County of New Castle, State of Delaware.
ARTICLE III
CORPORATE PURPOSES AND POWERS
The nature of the Corporation's business, or the objects or purposes to
be transacted, promoted or carried on by the Corporation, is to engage in any
lawful act or activity for which a corporation may be organized under the
General Corporation Law of the State of Delaware, including, without limitation:
(a) To engage in and carry on a securities business, including
each and every aspect thereof, in any and all capacities to the full
extent permitted by law, including a general brokerage, underwriting
and investment business; to act as brokers, dealers,
<PAGE>
-2-
traders, investment bankers and investors in securities; to deal in
puts and calls and with dealers who handle puts and calls; to engage in
arbitrage transactions of all kinds; to underwrite and distribute, on
behalf of itself and of others, securities and to participate with
others in any such underwriting or distribution; to negotiate, or to
assist or participate in the negotiation of, private placements of
securities; and to do any and all things which may be useful in
connection with the foregoing activities or incidental to the conduct
of all such activities and, whether or not in connection therewith, to
purchase, subscribe for, borrow, acquire, hold, exchange, sell,
distribute, assign, transfer, lend, mortgage, pledge, hypothecate,
guarantee, deal in or otherwise effect any and all transactions of any
kind, character or description whatsoever in or with respect to
securities, and with respect to foreign exchange, acceptances and
commercial paper of every kind, character or description. As used in
this Article III, the term "securities" shall include shares of stock,
bonds, debentures, notes, bills, other evidences of indebtedness,
certificates, receipts, certificates of interest in any profit-sharing
agreement, collateral trust certificates, reorganization certificates,
subscriptions, investment contracts, voting trust certificates,
interests in oil, gas or other mineral rights, certificates of deposit
or interim certificates for, receipts for, guarantees of, or warrants,
options or rights to subscribe to or purchase any of the foregoing, or
any other instruments or interests in the nature of securities of any
kind whatsoever, issued or created by any person, corporation, trust,
fiduciary, firm, public authority, or organization of any kind.
(b) To engage in and carry on the business of brokers and
dealers in commodities (which term as used in this Certificate of
Incorporation includes contracts for the future delivery thereof), and
to do any and all things which may be useful in connection therewith or
incidental to the conduct thereof and, whether or not in connection
therewith, to purchase, borrow, acquire, hold, exchange, sell,
distribute, assign, transfer, lend, mortgage, pledge, hypothecate,
guarantee or otherwise dispose of, or import or export or turn to
account in any manner and generally to deal in or otherwise effect any
and all transactions of every kind, character or description whatsoever
in or with respect to, commodities and products, merchandise, articles
of commerce, materials, personal and real property, of every kind,
character or description whatsoever and any interest therein, and
instruments evidencing rights to acquire any present or future
interests therein.
(c) To maintain accounts with and for customers, of every
kind, character or description whatsoever, including margin accounts,
with respect to securities and/or commodities and to do any and all
things which may be useful in connection with or incidental to the
maintenance of such accounts, and to buy, sell and otherwise deal in
notes, open accounts and other similar evidences of indebtedness and to
loan money and to take notes, open accounts and other similar evidences
of indebtedness as collateral security therefor.
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(d) To render advisory, investigatory, supervisory,
investment, managerial or other services to any person, corporation,
trust, fiduciary, firm, public authority, or organization of any kind.
(e) To act in any capacity whatsoever as financial, commercial
or business agent or representative, general or special, or as factor,
broker or in any other capacity whatsoever for, and to effect any and
all transactions of any kind, character or description whatsoever for
the account of, any person, corporation, trust, fiduciary, firm, public
authority, or organization of any kind.
(f) To acquire and hold one or more memberships in various
securities exchanges, boards of trade, commodities exchanges, clearing
corporations or associations and/or other similar institutions located
within or without the United States of America, or otherwise to secure
membership privileges or other privileges with such institutions, and
to acquire and hold membership in any association of brokers, security
dealers, investment bankers or commodity dealers, or any other
association, membership in which will in any way facilitate the conduct
of the Corporation's business.
(g) To hold as nominee, custodian or otherwise, any securities
or commodities belonging to others, to issue appropriate receipts or
certificates therefor, and to exercise while holding them any and all
of the rights, powers and privileges of ownership thereof, including
the right to loan them to others.
(h) To guarantee the signatures of customers or others
whenever such guarantees are convenient in the conduct of the
Corporation's business.
(i) To cause or allow the legal title to, or any legal or
equitable interest in any property of any sort of the Corporation to
remain or be vested or registered in the name of any other person,
corporation, trust, fiduciary, firm, public authority, or organization
of any kind, whether in trust for or as agent or nominee of the
Corporation, or otherwise for its account or benefit.
(j) To transact a general real estate dealer, agency and
brokerage business, including acting as agent, broker or attorney in
fact for any person, corporation, trust, fiduciary, firm, public
authority or organization of any kind in buying, selling, leasing and
dealing in real property and any interests and estates therein
(including sale and lease-back transactions), on commission or
otherwise, renting and managing of estates, making, arranging for, or
obtaining loans upon such property, and supervising, managing and
protecting such property and all loans, interests in, and claims
affecting the same.
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(k) To borrow money for any business, object or purpose of the
Corporation from time to time, without limit as to amount; to issue any
kind of evidence of indebtedness, whether or not in connection with
borrowing money, including evidences of indebtedness convertible into
shares of capital stock of the Corporation; to secure the payment of
any evidence of indebtedness by the creation of any interest in any of
the property or rights of the Corporation, or in any property owned by
others when the Corporation has the right so to do, whether owned by or
subject to such right of the Corporation at the time such indebtedness
is incurred or thereafter.
(l) To lend to any person, corporation, trust, fiduciary,
firm, public authority, or organization of any kind any of the
Corporation's funds or property, with or without security, and to
guarantee the loans of any of the foregoing.
(m) To purchase, subscribe for, borrow, acquire, hold for
investment or otherwise own, exchange, sell, distribute, assign,
transfer, lend, mortgage, pledge, hypothecate, guarantee, deal in or
otherwise acquire or dispose of securities of any corporation or
business organization whatsoever organized under the laws of the United
States of America or of any State, territory, dependency or possession
thereof or of any foreign country, or of any subdivision, territory,
dependency, possession or municipality thereof, without regard to the
business carried on by such corporation or business organization or to
the part of the world in which it is carried on or the corporation is
organized, and to purchase, subscribe for, borrow, acquire, hold for
investment or otherwise, own, exchange, sell, distribute, assign,
transfer, lend, mortgage, pledge, hypothecate, guarantee, deal in or
otherwise acquire or dispose of bonds, notes, bills, or any other
evidences of indebtedness issued by the United States of America, any
State thereof or any foreign country, or by any agency, subdivision,
territory, dependency, possession or municipality, including any agency
of a municipality, thereof.
(n) To engage in any transaction relating to petroleum, gas
and other minerals, and the products thereof, and to acquire, hold for
investment or otherwise, own, lease, sell or otherwise dispose of,
exercise, exchange, mortgage, pledge, exploit, and otherwise deal in
any and all lands and interest in land in, on or under which petroleum,
gas and other minerals are or may be located and any and all interests
in petroleum, gas and other minerals, and the products thereof.
(o) To purchase, borrow, acquire, hold, exchange, sell,
distribute, assign, transfer, lend, mortgage, pledge, hypothecate,
convert, redeem, escrow, reissue or cancel shares of its own capital
stock or instruments evidencing its indebtedness or any other
securities issued by it.
(p) To engage in any financial, commercial, mercantile,
manufacturing, industrial, trading, mining, petroleum or petroleum
products business or venture of any kind,
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character or description whatsoever, either by itself or jointly with
others, and to do any and all things which may be useful in connection
with or incidental to the conduct of such business or venture.
(q) To engage in a commercial finance business, including the
factoring of commercial paper, either by itself or jointly with others,
and to do any and all things which may be useful in connection with or
incidental to the conduct of such business.
(r) To acquire all or any part of the property and business,
including good will, of any person, corporation, trust, firm,
fiduciary, public authority, or organization of any kind, to pay as
consideration therefor cash or property including securities issued by
the Corporation, to assume in connection therewith any liabilities or
obligations of any such person, corporation, trust, firm, fiduciary,
public authority, or organization of any kind, and to hold, conduct,
use or dispose of the whole or any part of the property and business,
including any good will, so acquired.
(s) To acquire and hold real, personal and mixed property of
any and all kinds.
(t) To exercise and enjoy all powers, rights and privileges,
in any part of the world, which may be exercised and enjoyed by any
corporation organized under the General Corporation Law of the State of
Delaware.
The enumeration of certain powers is not intended as exclusive of, or
as a waiver of, any of the powers, rights, or privileges conferred by the
General Corporation Law of the State of Delaware as now in force or as it may be
hereafter amended, and the Corporation shall be authorized to exercise and enjoy
all powers conferred upon corporations by the laws of the State of Delaware as
in force from time to time, provided that the Corporation shall not in any
jurisdiction carry on the business of commercial banking or any other business,
or exercise any powers, which under the laws thereof it could not lawfully carry
on or exercise.
The foregoing clauses shall be construed as powers, as well as objects
and purposes, of the Corporation, and the matters expressed in each clause
shall, except as otherwise expressly provided, be in no wise limited by
reference to or inference from the terms of any other clause, but shall be
regarded as independent objects, purposes and powers, and the use of the term
"including" in any of the foregoing clauses shall not be construed to limit the
generality of the words preceding such term.
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ARTICLE IV
CAPiTAL STOCK
SECTION 1. SHARES, CLASSES AND SERIES AUTHORIZED. The total number of
shares of capital stock which the Corporation shall have authority to issue is
eleven thousand (11,000) shares, of which ten thousand (10,000) shares shall be
Common Stock of the par value of one hundred dollars ($100) each (hereinafter
called "Common Stock") and one thousand (1,000) shares shall be Series Preferred
Stock of the par value of one dollar ($1.00) each. Such Series Preferred Stock
and Common Stock are sometimes hereinafter collectively called "capital stock".
SECTION 2. DESIGNATIONS, POWERS, PREFERENCES, RIGHTS, QUALIFICATIONS,
LIMITATIONS AND RESTRICTIONS OF CAPITAL STOCK. The following is a statement of
the designations and the powers, preferences and rights, and the qualifications,
limitations or restrictions thereof, in respect of the classes of the capital
stock, and of the authority with respect thereto expressly vested in the Board
of Directors of the Corporation:
PART I--SERIES PREFERRED STOCK
(a) The Series Preferred Stock may be issued from time to time
in one or more series, the shares of each series to have such voting
powers, full or limited, or no voting powers, and such other powers,
designations, preferences and relative, participating, optional or
other special rights, and qualifications, limitations or restrictions
thereof, as are stated and expressed herein and as shall be stated and
expressed in a resolution or resolutions providing for the issue of
such series adopted by the Board of Directors, subject to the
limitations prescribed by law and in accordance with the provisions
hereof.
(b) Authority is hereby expressly granted to and vested in the
Board of Directors, subject to the provisions of this Section 2, to
authorize the issue of one or more series of Series Preferred Stock,
and with respect to each such series to fix by resolution or
resolutions providing for the issue of such series:
(i) The maximum number of shares to constitute such
series and the distinctive designation thereof;
(ii) Whether the shares of such series shall have voting
rights, in addition to any voting rights provided by law, and, if
so, the terms of such voting rights;
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(iii) The dividend rate, if any, on the shares of such
series, the conditions and dates upon which such dividends shall
be payable, the preference or relation which such dividends shall
bear to the dividends payable on any other class or classes or on
any other series of capital stock, and whether such dividends
shall be cumulative or non-cumulative;
(iv) Whether the shares of such series shall be subject to
redemption by the Corporation at the option of the Corporation or
the holder or both or upon the happening of a specified event,
and, if made subject to redemption, the times or events, prices
and other terms and conditions of such redemption;
(v) The rights of the holders of shares of such series
upon the voluntary or involuntary liquidation, dissolution or
winding up of the Corporation, and the preference or relation
which such rights shall bear to the rights of any other class or
classes or any other series of capital stock upon the happening of
any such event;
(vi) Whether or not the shares of such series shall be
subject to the operation of a retirement or sinking fund, and, if
so, the extent to and manner in which any such retirement or
sinking fund shall be applied to the purchase or redemption of the
shares of such series for retirement or to other corporate
purposes and the terms and provisions relative to the operation
thereof;
(vii) Whether or not the shares of such series shall be
convertible into, or exchangeable for, at the option of the
Corporation or the holder or both or upon the happening of a
specified event, shares of stock of any other class or classes, or
of any other series of the same class, and if so convertible or
exchangeable, the times or events, price or prices or the rate or
rates of conversion or exchange and the method, if any, of
adjusting the same, and other terms and conditions of such
conversions or exchanges;
(viii) The limitations and restrictions, if any, to be
effective while any shares of such series are outstanding upon the
payment of dividends or making of other distributions on, and upon
the purchase, redemption or other acquisition by the Corporation
of, the Common Stock or any other class or classes of stock of the
Corporation ranking junior to the shares of such series either as
to dividends or upon liquidation;
(ix) The conditions or restrictions, if any, upon the
creation of indebtedness of the Corporation or upon the issue of
any additional stock (including additional shares of such series
or of any other series or of any other class) ranking on a parity
with or prior to the shares of such series as to dividends or
distribution of assets on liquidation, dissolution or winding up;
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(x) The restrictions, if any, on the issue or reissue of
any shares of such series; and
(xi) Any other preferences and relative, participating,
optional, or other special rights, and qualifications, limitations
or restrictions thereof as shall not be inconsistent with this
Section 2.
(c) All shares of any one series of the Series Preferred Stock
shall be identical with each other in all respects, except that shares
of any one series issued at different times may differ as to the dates
from which dividends, if any, thereon shall be cumulative; and all
series shall rank equally and be identical in all respects except as
permitted by the foregoing provisions of Paragraph (b) hereof.
(d) The Board of Directors may, subject to the provisions of
the resolution or resolutions creating any series of Series Preferred
Stock with respect to the payment of dividends on any series of Series
Preferred Stock, declare and pay dividends payable in Common Stock on
the Common Stock, and the Board of Directors may, subject as aforesaid,
declare and pay dividends on the Common Stock payable in cash or
property other than Common Stock but only whenever dividends on the
then outstanding Series Preferred Stock as may be required with respect
to any and all series outstanding shall have been paid or declared and
set apart for payment and after complying with any requirements as may
then be in effect with respect to any retirement or sinking fund or
funds for any and all series of Series Preferred Stock, and the Series
Preferred Stock shall not be entitled to share therein.
(e) In the event of any voluntary or involuntary liquidation,
dissolution or winding up of the Corporation, before any payment or
distribution of the assets of the Corporation (whether Capital or
surplus) shall be made to or set apart for the holders of any class or
classes of stock of the Corporation ranking junior to the Series
Preferred Stock upon liquidation, if any, the holders of the shares of
the Series Preferred Stock shall be entitled to receive payment at the
rate fixed in the resolution or resolutions adopted by the Board of
Directors providing for the issue of such series, plus (if dividends on
shares of such series of Series Preferred Stock shall be cumulative) an
amount equal to all dividends (whether or not earned or declared)
accumulated to the date of final distribution to such holders; but they
shall be entitled to no further payment. If, upon any liquidation,
dissolution or winding up of the Corporation, the assets of the
Corporation, or proceeds thereof, distributable among the holders of
the shares of the Series Preferred Stock shall be insufficient to pay
in full the preferential amount aforesaid, then such assets, or the
proceeds thereof, shall be distributed among such holders first, if
more than one series of Series Preferred Stock is outstanding, in
accordance with the relative rights and preference, if any, of such
series upon liquidation,
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dissolution or winding up and then, with respect to each series,
ratably to the holders of shares of such series. For the purposes of
this Paragraph (e), the voluntary sale, conveyance, exchange or
transfer (for cash, shares of stock, securities, or other
consideration) of all or substantially all the property or assets of
the Corporation shall be deemed a voluntary liquidation, dissolution or
winding up of the Corporation, but a consolidation or merger of the
Corporation with one or more other corporations shall not be deemed to
be a liquidation, dissolution or winding up, voluntary or involuntary.
(f) Nothing in this Section 2 shall limit any right of the
Corporation conferred in this Certificate of Incorporation or by law to
purchase or redeem or otherwise acquire any shares of its capital
stock.
(g) Except as shall be otherwise stated and expressed in the
resolution or resolutions of the Board of Directors providing for the
issue of any series and except as otherwise required by the laws of the
State of Delaware, the holders of shares of Series Preferred Stock
shall have, with respect to such shares, no right or power to vote on
any question or in any proceeding or to be represented at, or to
receive notice of, any meeting of stockholders.
PART II--COMMON STOCk
(h) All shares of Common Stock shall be identical with each
other in every respect. The shares of Common Stock shall entitle the
holders thereof to one vote for each share upon all matters upon which
stockholders have the right to vote.
(i) The Common Stock is subject to all the powers, rights,
privileges, preferences and priorities of the Series Preferred Stock as
are stated and expressed herein and as shall be stated and expressed in
any resolution or resolutions adopted by the Board of Directors
pursuant to authority expressly granted to and vested in it by the
provisions of this Section 2.
SECTION 3. CERTAIN DEFINITIONS. For the purposes of this Certificate of
Incorporation, or of any certificate filed by this Corporation with the
Secretary of State of Delaware (unless otherwise expressly provided in any such
certificate):
(a) The term "outstanding", when used in reference to shares
of stock, shall mean issued shares, excluding shares held by the
Corporation or a subsidiary of the Corporation;
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(b) The amount of any dividends "accumulated" on any share of
Series Preferred Stock as at any dividend payment date shall be deemed
to be the amount of any unpaid dividends accumulated thereon to and
including such dividend payment date, whether or not declared, and the
amount of any dividends "accumulated" on any such share of Series
Preferred Stock as at any date other than such a dividend payment date
shall be calculated as the amount of any unpaid dividends accumulated
thereon to and including the last preceding dividend payment date,
whether or not declared, plus an amount equal to the pro rata portion
of the dividends on such shares at the annual dividend rate fixed for
such series for the period after such last preceding dividend payment
date to and including the date as of which the calculation is made; and
(c) Any class or classes of capital stock of the Corporation
shall be deemed to rank junior to the Series Preferred Stock, either as
to dividends or upon liquidation, if the rights of the holders of such
class or classes shall be subject or subordinate to the rights of the
holders of the Series Preferred Stock in respect of the receipt of
dividends or of distribution of amounts upon liquidation, dissolution
or winding up, as the case may be.
ARTICLE V
RESTRICTION ON DIVIDENDS
No dividend shall be declared or paid which shall impair the capital of
the Corporation nor shall any distribution of assets be made to any stockholder
unless the value of the assets of the Corporation remaining after such payment
or distribution is at least equal to the aggregate of its debts, liabilities and
capital. A director shall be fully protected in relying in good faith upon the
books of account of the Corporation or statements prepared by any of its
officers or by independent public accountants as to the value and amount of the
assets, liabilities, net profits, capital stock and surplus of the Corporation,
or any other facts pertinent to the existence and amount of surplus or other
funds from which dividends might properly be declared and paid.
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ARTICLE VI
RIGHTS AND OPTIONS OF CORPORATION TO EXCHANGE
SHARES OF CAPITAL STOCK WITH HOLDERS THEREOF
SECTION 1. WHEN RIGHTS AND OPTIONS ARISE. In order to enable the
Corporation to qualify for membership, membership privileges or other privileges
on any of the various securities exchanges, boards of trade, commodities
exchanges, clearing corporations or associations and/or other similar
institutions located within or without the United States and to continue so
qualified in good standing, and in order to insure that the business of the
Corporation will be carried on in a manner consistent with the Corporation's
responsibilities to the public as an organization so qualified, all shares of
capital stock of the Corporation shall at all times be held subject to all of
the agreements, conditions and restrictions set forth in this Certificate of
Incorporation, as amended from time to time, the provisions of which shall at
all times apply equally both to an original holder of shares and to each and
every subsequent holder thereof, and each holder of capital stock, by the
acceptance of a stock certificate representing shares of the Corporation's
capital stock, agrees with the Corporation and with each other holder of capital
stock, in consideration of such agreement of each such other holder of capital
stock, to such agreements, conditions and restrictions, and as follows with
respect to the matters set forth in the following Paragraphs (a) and (b) of this
Section 1:
(a) Whenever a holder of shares of capital stock of the
Corporation is required to be approved by the constitution or rules of
the New York Stock Exchange or any other securities exchange, board of
trade, commodities exchange, clearing corporation or association, or
similar institution on which the Corporation has membership privileges
(herein individually referred to as an "Exchange") and such holder
fails or ceases to be so approved, the Corporation shall have the sole
right and option and is hereby authorized to issue in exchange for such
shares of capital stock such number of shares of its Series Preferred
Stock as shall in the aggregate have a liquidation preference over
shares of Common Stock equal to the net book value, as determined by
the Board of Directors, of the capital stock to be acquired in exchange
therefor; PROVIDED, HOWEVER, that the number of shares of capital stock
so acquired by the Corporation shall not exceed that number of shares
required to reduce such person's ownership of capital stock below that
level at which a holder of capital stock is required to be approved.
The Series Preferred Stock so exchanged for such capital stock shall
not have general voting powers and shall not be convertible into Common
Stock or other capital stock or securities of the Corporation having
general voting powers.
(b) Whenever any parent of the Corporation within the meaning
of the constitution or rules of an Exchange fails or ceases to satisfy
the requirements of the consti-
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tution or rules of such Exchange with respect to a parent, the
Corporation shall have the sole right and option and is hereby
authorized to issue in exchange for such shares of capital stock such
number of shares of its Series Preferred Stock as shall in the
aggregate have a liquidation preference over shares of Common Stock
equal to the net book value, as determined by the Board of Directors,
of the capital stock to be acquired in exchange therefor; PROVIDED,
HOWEVER, that the number of shares of capital stock so acquired by the
Corporation shall not exceed that number of shares required to reduce
such parent's direct or indirect ownership of such capital stock below
that level which is deemed for the purposes of the constitution or rule
of such Exchange to enable such parent to exercise a controlling
influence over the management or policies of the Corporation. The
Series Preferred Stock so exchanged for such capital stock shall not
have general voting powers and shall not be convertible into Common
Stock or other capital stock or securities of the Corporation having
general voting powers.
SECTION 2. METHOD OF EXERCISING CORPORATION'S RIGHT AND OPTION TO
EXCHANGE SHARES. The method of exercising any right and option arising pursuant
to the provisions of Section 1 of this Article VI to exchange any shares of
capital stock of the Corporation shall be effected by the Corporation as
follows:
(a) The Corporation shall mail by first class mail to the
address of the holder of the shares subject to such right and option as
the same shall appear on the books of the Corporation as of the date
such notice is mailed, at least 10 days in advance of the date and time
designated for the exchange of capital stock, a written notice advising
of the election to exercise such right and option, stating the total
number of shares to be exchanged with such holder, and the date as of
which the net book value of the shares is to be determined, which date
shall be not more than 120 days before the exchange date. After the net
book value of such shares is determined, the Corporation shall mail as
aforesaid a second notice to such holder, which notice shall state, as
the case may be, the number of shares of the Series Preferred Stock to
be exchanged and the designations, preferences and relative,
participating, optional or other special rights and qualifications,
limitations or restrictions of such shares, and the date upon which the
exchange of shares of the Series Preferred Stock therefor will be made
at the principal place of business of the Corporation (herein called
the "exchange date"). Such second notice shall be mailed not less than
5 days in advance of such exchange date. If the net book value of the
shares has been determined prior to the time the aforementioned first
notice is mailed, the Corporation at its option, may include in the
first notice the information required to be provided in the second
notice and in that case no second notice need be sent. The holder of
the shares to be so exchanged shall deliver the certificate or
certificates representing such shares, properly endorsed for transfer,
to the Corporation on the exchange date specified in such second notice
in exchange for shares of the Series Preferred Stock therefor.
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(b) Any documentary stamp tax or transfer tax payable in
connection with the exchange of shares pursuant to this Article VI
shall be paid by the Corporation. If, on the exchange date, a holder
shall fail to deliver the certificate or certificates for the shares to
be exchanged by him properly endorsed for transfer, the certificates
for the shares to be delivered by the Corporation shall be set aside by
the Corporation, separate and apart for the benefit of such holder, to
be delivered to such holder upon surrender of the certificate or
certificates for the shares to be delivered by him properly endorsed
for transfer.
SECTION 3. TERMINATION OF RIGHTS OF HOLDER OF CAPITAL STOCK. After
notices of exchange have been given in accordance with Section 2 of this Article
VI and notwithstanding that any certificate for shares of capital stock has not
been surrendered to the Corporation, the person who is required to be approved
by an Exchange or the parent within the meaning of the constitution or rules of
an Exchange, as the case may be, holding such shares of capital stock shall
cease to possess after the exchange date specified in the second notice required
under Section 2 of this Article VI, any of the rights of holders of such capital
stock with respect to such shares called for exchange and, with respect to such
shares, shall have only the right to receive shares of the Series Preferred
Stock in exchange therefor. Nothing herein shall be deemed to affect the right
of any such holder to sell or otherwise dispose of any or all of his shares of
capital stock prior to such exchange date, and in the event such holder, before
the close of business on the business day next preceding such exchange date,
sells or otherwise disposes of any of the shares of capital stock subject to
exchange pursuant to this Article VI and does not reacquire any thereof prior to
such exchange date, the transactions otherwise contemplated pursuant to this
Article VI shall not take place as to the number of shares so sold or disposed
of and the right and option of the Corporation hereunder to acquire such number
of shares shall cease.
SECTION 4. OTHER ARRANGEMENTS. Nothing in this Article VI shall be
deemed to prohibit or affect any contractual arrangements which the Corporation
may make from time to time with any of its shareholders to purchase all or any
part of the shares held by such holders.
ARTICLE VII
BOARD OF DIRECTORS
SECTION 1. POWERS OF THE BOARD OF DIRECTORS. In furtherance and not in
limitation of the powers conferred by statute, the Board of Directors of the
Corporation is expressly authorized:
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(a) To make, alter, amend or repeal from time to time the
By-Laws of the Corporation, except as expressly prohibited in any
By-Law made from time to time by the holders of shares of stock
entitled to vote thereon; PROVIDED, HOWEVER, that any By-Law made by
the Board of Directors may be altered, amended or repealed by the
holders of a majority of the shares of capital stock of the Corporation
entitled to vote thereon at any annual meeting or at any special
meeting called for that purpose.
(b) To designate, by resolution passed by a majority of the
whole Board, one or more committees, each committee to consist of two
or more directors of the Corporation, which, to the extent provided in
the resolution designating the committee or in the By-Laws of the
Corporation, shall have and may exercise the powers of the Board of
Directors in the management of the business and affairs of the
Corporation, including, without limitation, the powers of the Board of
Directors to authorize the issuance and to sell and issue shares of the
Corporation's capital stock and the powers of the Board of Directors
referred to in Article VI hereof to effect, or which are related or
incidental to, the purchase or exchange of shares of the Corporation's
capital stock, and may authorize the seal of the Corporation to be
affixed to all papers which may require it. Such committee or
committees shall have such name or names as may be provided in the
By-Laws of the Corporation or as may be determined from time to time by
resolution adopted by the Board of Directors.
(c) To adopt or assume and carry out such plans as may from
time to time be approved by it for the distribution among the officers
or employees of the Corporation or its subsidiaries, or any of them, in
addition to their regular salaries or wages, of part of the earnings of
the Corporation in consideration for or in recognition of the services
rendered by such officers or employees or as an inducement to future
efforts. No such plan which is not at the time of adoption or
assumption unreasonable or unfair shall be invalidated or in any way
affected because any director shall be a beneficiary thereunder or
shall vote for any plan under which he may benefit or for any
distribution thereunder in which he may participate.
(d) To adopt or assume and carry out such pension, deferred
compensation, profit-sharing or retirement plans as may from time to
time be approved by it, providing for pensions, profit-sharing plan
benefits or retirement income for officers or employees of the
Corporation or its subsidiaries, in consideration for or in recognition
of the services rendered by such officers or employees or as an
inducement to future efforts. No such plan which is not at the time of
adoption or assumption unreasonable or unfair shall be invalidated or
in any way affected because any director shall be a beneficiary
thereunder or shall vote for any plan under which he may benefit or for
any distribution thereunder in which he may participate.
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(e) To exercise, in addition to the powers and authorities
hereinbefore or by law conferred upon it, any such powers and
authorities and do all such acts and things as may be exercised or done
by the Corporation, subject, nevertheless, to the provisions of the
laws of the State of Delaware and of this Certificate of Incorporation
and to the By-Laws of the Corporation.
SECTION 2. RELIANCE ON BOOKS. A director shall be fully protected in
relying in good faith upon the books of account of the Corporation or statements
prepared by any of its officers or by independent public accountants as to the
value and amount of the assets, liabilities and/or net profits of the
Corporation or any other facts pertinent to the existence and amount of surplus
or other funds with which the Corporation's stock might properly be purchased or
redeemed.
ARTICLE VIII
MEETINGS OF STOCKHOLDERS AND DIRECTORS;
CORPORATE BOOKS; ELECTION OF DIRECTORS; NOTICES
Meetings of holders of the capital stock of the Corporation and of the
Board of Directors and of any committee thereof may be held outside the State of
Delaware if the By-Laws shall so provide. Whenever the vote of stockholders at a
meeting thereof is required or permitted to be taken for or in connection with
any corporate action by any provision of the General Corporation Law of
Delaware, the meeting and vote of stockholders may be dispensed with and such
action may be taken with the written consent of the holders of stock having not
less than the minimum percentage of the total vote required by statute for the
proposed corporate action unless this Certificate of Incorporation or the
By-Laws require a greater percentage for such action, in which case the consent
shall be that of the holders of such greater percentage; PROVIDED that prompt
notice is given to other stockholders of the taking of such corporate action
without a meeting and by less than unanimous written consent. Except as
otherwise provided by law, the books of the Corporation may be kept outside the
State of Delaware at such place or places as may be designated from time to time
by the Board of Directors or in the By-Laws of the Corporation. The elections of
directors need not be by ballot unless the By-Laws of the Corporation shall so
provide. Any notice required by this Certificate of Incorporation to be given by
first class mail may instead be delivered to the addressee in person.
<PAGE>
-16-
ARTICLE IX
TRANSACTIONS WITH DIRECTORS OR OFFICERS
No contract or transaction between the Corporation and one or more of
its directors or officers, or between the Corporation and any other corporation,
partnership, association, or other organization in which one or more of its
directors or officers are directors or officers, or have a financial interest,
shall be void or voidable solely for this reason, or solely because the director
or officer is present at or participates in the meeting of the Board of
Directors or committee thereof which authorizes the contract or transaction, or
solely because his or their votes are counted for such purpose, if:
(1) The material facts as to his interest and as to the
contract or transaction are disclosed or are known to the Board of
Directors or the committee, and the Board or committee in good faith
authorizes the contract or transaction by a vote sufficient for such
purpose without counting the vote of the interested director or
directors; or
(2) The material facts as to his interest and as to the
contract or transaction are disclosed or are known to the stockholders
entitled to vote thereon, and the contract or transaction is
specifically approved in good faith by vote of the stockholders; or
(3) The contract or transaction is fair as to the
Corporation as of the time it is authorized, approved or ratified, by
the Board of Directors, a committee thereof or the stockholders.
Common or interested directors may be counted in determining the
presence of a quorum at a meeting of the Board of Directors or of a committee
which authorizes the contract or transaction.
ARTICLE X
INDEMNIFICATION
The Corporation shall indemnify any person who was or is a party or is
threatened to be made a party to any threatened, pending or completed action,
suit or proceeding, whether civil, criminal, administrative or investigative
(other than an action by or in the right of the Corporation) by reason of the
fact that he is or was a director or officer of the Corporation, or is or was
serving at the request of the Corporation as a director, officer or member of
another corporation, partnership, joint venture, trust or other enterprise,
against expenses (including
<PAGE>
-17-
attorneys' fees), judgments, fines and amounts paid in settlement actually and
reasonably incurred by him in connection with such action, suit or proceeding if
he acted in good faith and in a manner he reasonably believed to be in or not
opposed to the best interests of the Corporation, and, with respect to any
criminal action or proceeding, had no reasonable cause to believe his conduct
was unlawful. The termination of any action, suit or proceeding by judgment,
order, settlement, conviction, or upon a plea of NOLO CONTENDERE or its
equivalent, shall not, of itself, create a presumption that the person did not
act in good faith and in a manner which he reasonably believed to be in or not
opposed to the best interests of the Corporation, or, with respect to any
criminal action or proceeding, that he had reasonable cause to believe that his
conduct was unlawful.
The Corporation shall indemnify any person who was or is a party or is
threatened to be made a party to any threatened, pending or completed action or
suit by or in the right of the Corporation to procure a judgment in its favor by
reason of the fact that he is or was a director or officer of the Corporation,
or is or was serving at the request of the Corporation as a director, officer or
member of another corporation, partnership, joint venture, trust or other
enterprise, against expenses (including attorneys' fees) actually and reasonably
incurred by him in connection with the defense or settlement of such action or
suit if he acted in good faith and in a manner he reasonably believed to be in
or not opposed to the best interests of the Corporation, except that no
indemnification shall be made in respect of any claim, issue or matter as to
which such person shall have been adjudged to be liable for negligence or
misconduct in the performance of his duty to the Corporation unless and only to
the extent that the Court of Chancery of the State of Delaware or the court in
which such action or suit was brought shall determine upon application that,
despite the adjudication of liability but in view of all the circumstances of
the case, such person is fairly and reasonably entitled to indemnity for such
expenses which the Court of Chancery of the State of Delaware or such other
court shall deem proper.
To the extent that any person referred to in the preceding two
paragraphs has been successful on the merits or otherwise in defense of any
action, suit or proceeding referred to therein, or in defense of any claim,
issue or matter therein, he shall be indemnified against expenses (including
attorneys' fees) actually and reasonably incurred by him in connection
therewith.
The Corporation may, to the extent deemed advisable by the Board of
Directors, indemnify any person who is or was an employee or agent (other than a
director or officer) of the Corporation, or is or was serving at the request of
the Corporation as an employee or agent (other than a director, officer or
member) of another corporation, partnership, joint venture, trust or other
enterprise if such person would be entitled to such indemnity under the
provisions of the preceding three paragraphs if such person had been a director
or officer of the
<PAGE>
-18-
Corporation or a director, officer or member of such other corporation,
partnership, joint venture, trust or other enterprise.
Any indemnification under the first two paragraphs or under the fourth
paragraph of this Article X (unless ordered by a court) shall be made by the
Corporation only as authorized in the specific case upon a determination that
indemnification of the director, officer, member, employee or agent is proper in
the circumstances because he has met the applicable standard of conduct set
forth therein. Such determination shall be made (1) by the Board of Directors of
the Corporation by a majority vote of a quorum (as defined in the By-Laws of the
Corporation) consisting of directors who were not parties to such action, suit
or proceeding, or (2) if such a quorum is not obtainable, or, even if obtainable
a quorum of disinterested directors so directs, by independent legal counsel in
a written opinion, or (3) by the stock. holders.
Expenses incurred in defending a civil or criminal action, suit or
proceeding may be paid by the Corporation in advance of the final disposition of
such action, suit or proceeding as authorized by the Board of Directors of the
Corporation in the manner provided in the next preceding paragraph upon receipt
of an undertaking by or on behalf of the director, officer, member, employee or
agent to repay such amount unless it shall ultimately be determined that he is
entitled to be indemnified by the Corporation as authorized in this Article X.
The indemnification provided by this Article X shall not be deemed
exclusive of any other rights to which those indemnified may be entitled under
any statute, by-law, agreement, vote of stockholders or disinterested directors
or otherwise, both as to action in his official capacity and as to action in
another capacity while holding such office, and shall continue as to a person
who has ceased to be a director, officer, member, employee or agent and shall
inure to the benefit of the heirs, executors and administrators of such a
person.
The Corporation shall have power to purchase and maintain insurance on
behalf of any person who is or was a director, officer, employee or agent of the
Corporation, or is or was serving at the request of the Corporation as a
director, officer, member, employee or agent of another corporation,
partnership, joint venture, trust or other enterprise, against any liability
asserted against him and incurred by him in any such capacity or arising out of
his status as such, whether or not the Corporation would have the power to
indemnify him against such liability under the provisions of this Article X or
of the General Corporation Law of the State of Delaware.
The Corporation may, if it is deemed advisable by the Board of
Directors, indemnify any person who was a director, officer, employee or agent
of any corporation which has been consolidated with or merged with the
Corporation or who was serving at the request of such a corporation as a
director, officer, employee or agent of another corporation, partnership, joint
venture, trust or other enterprise and give such person the same rights under
the provisions of
<PAGE>
-19-
this Article X with respect to the Corporation as he would have if he had served
the Corporation in the same capacity.
ARTICLE XI
COMPROMISE OR ARRANGEMENT BETWEEN CORPORATION
AND ITS CREDITORS OR STOCKHOLDERS
Whenever a compromise or arrangement is proposed between this
Corporation and its creditors or any class of them and/or between this
Corporation and its stockholders or any class of them, any court of equitable
jurisdiction within the State of Delaware may, on the application in a summary
way of this Corporation or of any creditor or stockholder thereof, or on the
application of any receiver or receivers appointed for this Corporation under
the provisions of Section 291 of Title 8 of the Delaware Code, or on the
application of trustees in dissolution, or of any receiver or receivers
appointed for this Corporation under the provisions of Section 279 of Title 8 of
the Delaware Code, order a meeting of the creditors or class of creditors,
and/or of the stockholders or class of stockholders, of this Corporation, as the
case may be, to be summoned in such manner as said court directs. If a majority
in number representing three-fourths in value of the creditors or class of
creditors, and/or of the stockholders or class of stockholders, of this
Corporation, as the case may be, agrees to any compromise or arrangement and to
any reorganization of this Corporation as a consequence of such compromise or
arrangement, the said compromise or arrangement and the said reorganization
shall, if sanctioned by the court to which the said application has been made,
be binding on all the creditors or class of creditors, and/or on all the
stockholders or class of stockholders, of this Corporation, as the case may be,
and also on this Corporation.
ARTICLE XII
RESERVATION OF RIGHT TO AMEND CERTIFICATE
OF INCORPORATION
The Corporation reserves the right to amend, alter, change or repeal
any provisions contained in this Certificate of Incorporation in the manner now
or hereafter prescribed by law, and all the provisions of this Certificate of
Incorporation and all rights and powers conferred in this Certificate of
Incorporation on stockholders, directors and officers are subject to this
reserved power.
<PAGE>
STATE
OF
DELAWARE
OFFICE OF SECRETARY OF STATE
I, Michael Harkins, Secretary of State of the State of
Delaware, do hereby certify that the attached is a true and
correct copy of Certificate of Amendment
------------------------------
filed in this office on April 8, 1974
------------------------------------
/s/ Michael Harkins
---------------------------------------
MICHAEL HARKINS, SECRETARY OF STATE
BY: /s/ C. Coleman
---------------------------------------
DATE: March 9, 1987
---------------------------------------
<PAGE>
CERTIFICATE OF AMENDMENT
OF
CERTIFICATE OF INCORPORATION
DEAN WITTER & CO. INCORPORATED
------------
Adopted in accordance with the provisions of Sections 228 and 242 of
the General Corporation Law of the State of Delaware
------------
I, HOWARD G. HAWKINS, JR., a Vice President of DEAN WITTER &
CO. INCORPORATED, a corporation organized and existing under the laws of the
State of Delaware (the "Corporation"), do hereby certify under the seal of the
Corporation as follows:
FIRST: That the amendments to the Certificate of Incorporation
of the Corporation are as follows:
Clause (t) of Article III of the Certificate of
Incorporation of Dean Witter & Co. Incorporated be renumbered
as clause (u) of Article III and a new clause (t) of Article
III be added to read in its entirety as follows:
"(t) To conduct a general insurance agency
and brokerage business, acting in its own name as
agent or broker or through employees or others as
agents or sub-agents or brokers, including without
limitation life, annuity, accident and health,
disability, casualty and liability insurance."
SECOND: That such amendments were proposed and declared
advisable by the Board of Directors of the Corporation at a meeting of
said Board duly held on March 29, 1974; that such amendments have been
consented to in writing by the holders of a majority of the outstanding
shares of stock of the Corporation; and that prompt notice of the
taking of the above corporate action without a meeting by less than
unanimous written consent of the holders of the outstanding shares of
stock of the
<PAGE>
-2-
Corporation has been given to those stockholders who have not so
consented in writing, all in accordance with the provisions of Sections
228 and 242 of the General Corporation Law of the State of Delaware.
IN WITNESS WHEREOF, I have signed this Certificate and caused
the corporate seal of the Corporation to be hereunto affixed this 3rd day of
April, 1974.
/s/ H.G. Hawkins, Jr.
-------------------------------------
Vice President
Dean Witter & Co. Incorporated
Attest:
/s/
- -------------------------------------
Assistant Secretary
Dean Witter & Co. Incorporated
[ Corporate Seal ]
<PAGE>
STATE OF CALIFORNIA )
) SS.
City and County of San Francisco )
HOWARD G. HAWKINS, JR., being duly sworn, deposes and says that he is a
Vice President of DEAN WITTER & CO. INCORPORATED, the corporation mentioned and
described in the foregoing instrument; that he has read and signed the same and
that the statements contained therein are true.
/s/ H.G. Hawkins, Jr.
-------------------------------------
Sworn or before me this 3rd day of April, 1974.
/s/
- --------------------------------
Notary Public
NOTARIAL SEAL
STATE OF CALIFORNIA )
) SS.
City and County of San Francisco )
BE IT REMEMBERED that on this 3rd day of April, 1974 before me, a
Notary Public in and for the County and State aforesaid, personally came HOWARD
G. HAWKINS, JR., a Vice President of DEAN WITTER & CO. INCORPORATED, known to me
personally to be such, and he duly acknowledged the said certificate to be his
act and deed, and that the facts therein stated are true.
GIVEN under my hand and seal of office the day and year aforesaid.
/s/
--------------------------------------
Notary Public
NOTARIAL SEAL
<PAGE>
STATE
OF
DELAWARE
OFFICE OF SECRETARY OF STATE
I, Michael Harkins, Secretary of State of the State of
Delaware, do hereby certify that the attached is a true and
correct copy of Certificate of Agreement of Merger
------------------------------
filed in this office on January 3, 1974
------------------------------------
/s/ Michael Harkins
---------------------------------------
MICHAEL HARKINS, SECRETARY OF STATE
BY: /s/ C. Coleman
---------------------------------------
DATE: March 9, 1987
---------------------------------------
<PAGE>
PLAN AND AGREEMENT OF MERGER
PLAN AND AGREEMENT OF MERGER, dated as of December 27, 1977
("Agreement"), by and between DEAN WITTER & CO. INCORPORATED, a Delaware
corporation ("DW"), and REYNOLDS SECURITIES INC., a Delaware corporation
("RSI"), each such corporation being sometimes referred to as a "Constituent
Corporation", and the corporation surviving the merger hereinafter provided for
being sometimes referred to as the "Surviving Corporation".
I.
MERGER OF CONSTITUENT CORPORATIONS
1.1. MERGER; SURVIVING CORPORATION; NAME. Subject to the provisions
hereof and to the requirements of law, RSI shall be merged into DW pursuant to
the General Corporation Law of the State of Delaware ("DGCL"), with the effect
stated in Section 259 thereof. The merger shall become effective on the date
this Agreement or an appropriate Certificate of Merger is filed in the Office of
the Secretary of State of the State of Delaware in accordance with DGCL, and
such data is hereinafter referred to as the "Effective Date." DW shall be the
Surviving Corporation and on the Effective Date its name shall be changed to
Dean Witter Reynolds Inc. ("DWR").
1.2. CERTIFICATE OF INCORPORATION AND BY-LAWS. On the Effective Date
the Certificate of Incorporation of the Surviving Corporation shall be amended
as follows:
<PAGE>
-2-
A. Article I of the Certificate of Incorporation of the Surviving
Corporation shall be amended in its entirety to read as follows:
"Article I
Name
The name of the Corporation is:
DEAN WITTER REYNOLDS INC."
B. Section 1 of Article IV of the Certificate of Incorporation of
the Surviving Corporation shall be amended in its entirety to read as follows:
"SECTION 1. SHARES, CLASSES AND SERIES AUTHORIZED. The total
number of shares of capital stock which the Corporation shall have
authority to issue is twelve thousand (12,000) shares, of which eleven
thousand (11,000) shares shall be Common Stock of the par value of one
hundred dollars ($100) each (hereinafter called "Common Stock") and
one thousand (1,000) shares shall be Series Preferred Stock of the par
value of one dollar ($1.00) each. Such Series Preferred Stock and
Common Stock are sometimes hereinafter collectively called 'capital
stock'."
Such amended Certificate of Incorporation shall be the Certificate of
Incorporation of the Surviving Corporation until further amended in accordance
with law. The By-Laws of DW as in effect on the date hereof, except as amended
prior to the Effective Date with the consent of RSI, shall be the By-Laws of the
Surviving Corporation until further amended as provided therein and in
accordance with law.
1.3. DIRECTORS. From the Effective Date until their successors are
elected pursuant to law and the By-Laws of the Surviving Corporation, the
initial members of the
<PAGE>
-3-
Board of Directors of the Surviving Corporation shall be the persons named as
such in Annex 1 hereto. In the event of the unavailability of any such person to
serve as a director, the Board of Directors of the Surviving Corporation may
elect a replacement for such person, in accordance with the provisions of the
By-Laws of the Surviving Corporation governing the filling of vacancies.
II.
CONVERSION OF SECURITIES
2.1. CONVERSION OF SECURITIES. The manner and basis of converting and
exchanging the shares of stock of each Constituent Corporation into or for
shares of stock of the Surviving Corporation shall be as follows:
(a) RSI COMMON STOCK. On the Effective Date, each share of RSI Common
Stock which shall be outstanding shall, pursuant to the merger and without
any action by the holder thereof, be converted into and exchanged for one
share of Common Stock of the Surviving Corporation and each certificate of
RSI evidencing ownership of any such shares shall continue to evidence
ownership of the same number of shares of the Surviving Corporation.
(b) DW COMMON STOCK. On the Effective Date, the shares of DW issued
and outstanding shall remain unchanged, and each certificate of DW
evidencing ownership of any such shares shall continue to evidence
ownership of the same number of shares the Surviving Corporation.
<PAGE>
-4-
III.
RIGHT TO ABANDON
3.1. RIGHTS OF PARTIES TO ABANDON MERGER. The merger may be abandoned
for any reason by mutual agreement of the Constituent Corporations pursuant to
action by their Boards of Directors, at any time prior to the Effective Date,
notwithstanding any approval by the stockholders. IV.
IV.
GENERAL
4.1. EXECUTION IN COUNTERPARTS. For the convenience of the undersigned
and to facilitate filing with appropriate authorities, this Agreement may be
executed in one or more counterparts, each of which shall be deemed an original,
but all of which together shall constitute one and the same document.
4.2. NOTICES. All notices which are required or may be given pursuant
to the terms of this Agreement shall be in writing and shall be sufficient in
all respects if given in writing and delivered or mailed by first class mail
postage prepaid, as follows:
If to DW, to:
Howard G. Hawkins, Jr.,
Vice President and Secretary
Dean Witter & Co. Incorporated
45 Montgomery Street
San Francisco, CA 94106
<PAGE>
-5-
Copy to:
William J. Ivey
Sullivan & Cromwell
125 Broad Street
New York, N.Y. 10004
If to RSI, to:
Robert M. Gardiner, Chairman
Reynolds Securities Inc.
120 Broadway
New York, N.Y. 10005
Copy to:
Arne Hovdesven
Shearman & Sterling
53 Wall Street
New York, N.Y. 10005
4.3. APPLICABLE LAW. This Agreement shall be governed by and construed
in accordance with the laws of the State of Delaware.
4.4. ENTIRE AGREEMENT. This Agreement constitutes the entire agreement
among the undersigned and supersedes all prior agreements and understandings,
oral and written, among the undersigned with respect to the subject matter
hereof.
4.5. BINDING EFFECT, BENEFITS. This Agreement shall inure to the
benefit of and be binding upon RSI and DW and their respective successors and
assigns; provided, however, that nothing in this Agreement, express or implied,
is intended to confer on any person other than RSI and DW or their respective
successors and assigns, any rights, remedies, obligations or liabilities under
or by reason of this Agreement.
<PAGE>
-6-
Form of Signature Page
IN WITNESS WHEREOF, this Agreement has been approved by
resolutions duly adopted by the Board of Directors of DW and RSI and has been
executed by duly authorized officers of each corporation, and each corporation
has caused its corporate seal to be hereunto affixed and attested by the
signature of its Secretary or an Assistant Secretary, all as of the date first
above written.
[SEAL] DEAN WITTER & CO. INCORPORATED
ATTEST:
By:
---------------------------
By:
---------------------------
[SEAL] REYNOLDS SECURITIES INC.
ATTEST:
By:
---------------------------
By:
---------------------------
<PAGE>
Annex I
DWR Board of Directors
Lincoln Ames Andrew J. Melton, Jr.
Henry Arbeeny Irwin H. Menchel
Letitia Baldridge G. Willard Miller, Jr.
Alfred J. Bianchetti Charles H. Mott
William P. Bradford Kenneth F. Mountcastle, Jr.
Donald J. Bruckman Thomas J. Murtagh
Gerald F. Brush H. McKee Nunnally
Howard B. Dean Edmund C. Puckhaber
Ben H. Eaton Thomas C. Schneider
G. Leslie Fabian Robert E. Sinton
James A. Felchlin William T. Smales, Jr.
Robert M. Flanagan J. E. Wallace Sterling
Robert M. Gardiner Robert W. Swinarton
Harold E. Guenther Robert F. Tighe
Roger A. Hansen Yves P. Truffert
Richard R. Hayes Keith S. Wellin
Robert G. Howard Thomas W. Witter
Hugh Knowlton, Jr. Wiliam M. Witter
Arthur R. Marcus Samuel H. Wolcott III
Joseph H. McConnell Robert L. Woodberry
F. Gerard McGrath Melvin O. Wright
<PAGE>
-2-
FORM OF SECRETARY'S CERTIFICATE
The undersigned, ____________________, Secretary of Dean Witter &
Co. Incorporated, one of the merging Corporations mentioned within the Plan and
Agreement of Merger, on behalf of said Corporation certifies as follows:
The within Plan and Agreement of Merger has been submitted to the
stockholders of the Corporation and unanimous written consent to the
adoption of said Plan and Agreement of Merger has been given in accordance
with the provisions of Section 228 of the General Corporation Law of the
State of Delaware by stockholders of said Corporation representing 10,000
shares of its capital stock, being all of said capital stock issued and
outstanding and entitled to vote thereon.
IN WITNESS WHEREOF, I have signed this Certificate this __th day
of ________________.
-------------------------------------
Secretary
<PAGE>
-3-
The foregoing Plan and Agreement of Merger, having been duly
entered into and signed by Dean Witter & Co. Incorporated and Reynolds
Securities Inc., Delaware corporations, and having been duly adopted by the
stockholders of each of such Corporations, all in accordance with the provisions
of the General Corporation Law of the State of Delaware, the Chairman or Vice
Chairman of the Board of Directors of Dean Witter & Co. Incorporated and the
Chairman of the Board of Directors of Reynolds Securities Inc., do now hereby
execute the said Plan and Agreement of Merger and the Secretary or Assistant
Secretary of each of such Corporations now does hereby attest the said Plan and
Agreement of Merger, as the act, deed, plan and agreement of said Corporations,
on this 28th day of December, 1977.
DEAN WITTER & CO. INCORPORATED
[SEAL] By:
---------------------------
ATTEST:
---------------------
REYNOLDS SECURITIES INC.
[SEAL] By:
---------------------------
ATTEST:
---------------------
<PAGE>
-------------------------------
BY-LAWS
OF
DEAN WITTER REYNOLDS INC.
-------------------------------
ARTICLE I: OFFICES
1.1 REGISTERED OFFICE
The registered office of DEAN WITTER REYNOLDS INC. (the
"Corporation") shall be in the City of Wilmington, County of New Castle, State
of Delaware.
1.2 PRINCIPAL PLACE OF BUSINESS
The Corporation's principal place of business shall be in the
City of New York, County of New York, State of New York.
1.3 OTHER OFFICES
The Corporation may have offices at such other places both
within and without the State of Delaware as the Board of Directors may from time
to time determine or the business of the Corporation may require.
ARTICLE II: MEETINGS OF STOCKHOLDERS
2.1 MEETINGS OF STOCKHOLDERS
Meetings of stockholders of the Corporation shall be held on
such date, at such time, and at such place, either within or without the State
of Delaware, as shall be designated by the Board of Directors.
ARTICLE III: DIRECTORS
3.1 ELECTION AND TERM
Except as otherwise provided by law or this Article III,
directors shall be elected at an annual meeting of stockholders and shall hold
office until their successors shall have been elected, or until their earlier
death, resignation or removal. Acceptance of the office of director may be
expressed orally or in writing, and attendance at the organization meet-
<PAGE>
-2-
ing or any other meeting of the directors shall constitute such acceptance.
Directors need not be stockholders of the Corporation.
3.2 NUMBER
The number of directors which shall constitute the whole Board
of Directors may be fixed from time to time by resolution of the Board of
Directors but shall not be less than three (3).
3.3 GENERAL POWERS
The property and business of the Corporation shall be managed
by or under the direction of its Board of Directors. In addition to the powers
and authorities by these By-Laws expressly conferred upon them, the Board of
Directors may exercise all such powers of the Corporation and do all such lawful
acts and things as are not by statute or by the Certificate of Incorporation or
by these Dean Witter Reynolds Inc. directed or required to be exercised or done
by the stockholders.
3.4 PLACE OF MEETINGS
Meetings of the Board of Directors may be held at the
principal place of business of the Corporation in New York or at any other
place, within or without the State of Delaware, from time to time designated by
the Board of Directors.
3.5 ORGANIZATION MEETING
A newly elected Board of Directors shall meet and organize as
soon as practicable after each annual meeting of stockholders, at the place at
which such meeting of stockholders took place, without notice of such meeting.
If a quorum is not present, such organizational meeting may be held at any other
time or place which may be specified in a notice given in the manner provided in
Section 3.7 of this Article III for special meetings of the Board of Directors
or in a waiver of notice thereof.
3.6 REGULAR MEETINGS
Regular meetings of the Board of Directors shall be held at
such times as may be determined by resolution of the Board of Directors and no
notice shall be required for any regular meeting. Except as otherwise provided
by law, any
<PAGE>
-3-
business may be transacted at any regular meeting of the Board of
Directors.
3.7 SPECIAL MEETINGS; NOTICE AND WAIVER OF NOTICE
Special meetings of the Board of Directors shall be called by
the Secretary or an Assistant Secretary on the request of the Chairman of the
Board and Chief Executive officer, or the President of a Division, or a Vice
Chairman of the Board, or on the request in writing of one-third of the whole
Board of Directors, stating the purpose or purposes of such meeting. Notices of
special meetings shall be mailed to each director, addressed to him at his
residence or usual place of business, not later than three (3) days before the
day on which the meeting is to be held, or shall be sent to him at either of
such places by telegraph, or be communicated to him personally or by telephone,
not later than the day before such day of meeting. Notice of any meeting of the
Board of Directors need not be given to any director if he shall sign a written
waiver thereof either before or after the time stated therein for such meeting,
or if he shall be present at the meeting and participate in the business
transacted thereat; and any and all business transacted at any meeting of the
Board of Directors shall be fully effective without any notice thereof having
been given, if all the members shall be present thereat. Unless limited by law,
the Certificate of Incorporation, the By-Laws, or by the terms of the notice
thereof, any and all business may be transacted at any special meeting without
the notice thereof having so specifically enumerated the matters to be acted
upon.
3.8 ORGANIZATION
The Chairman of the Board and Chief Executive Officer shall
preside at all meetings of the Board of Directors at which he is present. If the
Chairman of the Board and Chief Executive Officer shall be absent from any
meeting of the Board of Directors, the duties otherwise provided in this Section
3.8 to be performed by him at such meeting shall be performed at such meeting by
one of the directors chosen by the members of the Board of Directors present at
such meeting. The Secretary of the Corporation shall act as the secretary at all
meetings of the Board of Directors and in his absence a temporary secretary
shall be appointed by the chairman of the meeting.
3.9 QUORUM AND ADJOURNMENT
Except as otherwise provided by Section 3.15 of this Article
III, at every meeting of the Board of Directors a ma-
<PAGE>
-4-
jority of the total number of directors shall constitute a quorum. Except as
otherwise provided by law or by these By-Laws, the vote of a majority of the
directors present at any such meeting at which a quorum is present shall be the
act of the Board of Directors. In the absence of a quorum, any meeting may be
adjourned, from time to time, until a quorum is present. No notice of any
adjourned meeting need be given other than by announcement at the meeting that
is being adjourned.
3.10 VOTING
On any question on which the Board of Directors shall vote,
the names of those voting and their votes shall be entered in the minutes of the
meeting when any member of the Board of Directors so requests.
3.11 ACTING WITHOUT A MEETING
Any action required or permitted to be taken at any meeting of
the Board of Directors or of any committee thereof may be taken without a
meeting, if all members of the Board of Directors or such committee, as the case
may be, consent thereto in writing and such writing or writings are filed with
the minutes of proceedings of the Board of Directors or the committee.
3.12 TELEPHONIC MEETINGS
Members of the Board of Directors or of a committee thereof,
may participate in meetings of the Board of Directors or committee thereof by
means of conference telephone or similar communications equipment by means of
which all persons participating in the meeting can hear each other, and such
participation in a meeting, pursuant to this provision, shall constitute
presence in person at such meeting.
3.13 RESIGNATIONS
Any director may resign at any time either by oral tender of
resignation at any meeting of the Board of Directors or by oral tender to the
Chairman of the Board and Chief Executive Officer, or by written notice thereof
to the Corporation. Any resignation shall be effective immediately unless some
other time is specified for it to take effect. Acceptance of any resignation
shall not be necessary to make it effective unless such resignation is tendered
subject to such acceptance.
3.14 REMOVAL OF DIRECTORS
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Any director may be removed, either for or without cause, at
any time, by action of the holders of record of a majority of the shares of
common stock of the Corporation present in person or by proxy at a meeting of
holders of such shares and entitled to vote thereon, and the vacancy in the
Board of Directors caused by any such removal may be filled by action of such
stockholders at such meeting or at any subsequent meeting, or, except as
otherwise provided by law, by the Board of Directors then in office, although
less than a quorum, or by a single remaining director.
3.15 FILLING OF VACANCIES NOT CAUSED BY REMOVAL
Except as otherwise provided by law, in case of any increase
in the number of directors, or of any vacancy created by death, resignation,
disqualification or increase in the number of authorized directors, the
additional director or directors may be elected or the vacancy or vacancies may
be filled, as the case may be, by the Board of Directors then in office,
although less than a quorum, or by a single remaining director, or by the
stockholders. The directors so chosen shall hold office until their successors
are elected and qualify or until such directors sooner die, resign, are removed
or cease to be qualified as directors.
ARTICLE IV: COMMITTEES OF THE BOARD OF DIRECTORS
4.1 ESTABLISHMENT OF COMMITTEES
The Board of Directors may, by resolution passed by a majority
of the whole Board, appoint one or more committees of the Board of Directors,
which shall have such powers and duties as the Board of Directors may properly
determine. Any such committee, to the extent provided in the resolutions adopted
by the Board of Directors, shall have and may exercise all the power and
authority of the Board of Directors in the management of the property and
business of the Corporation, and may authorize the seal of the Corporation to be
impressed upon all papers which may require it; provided, however, that such
powers and authority shall be subject to applicable provisions of law, and that
no such committee shall have the power or authority in reference to amending the
Certificate of Incorporation, adopting an agreement of merger or consolidation,
recommending to the stockholders the sale, lease or exchange of all or
substantially all of the Corporation's property and assets, recommending to the
stockholders a dissolution of the Corporation or a revocation of a dissolution,
or amending the By-Laws of the Corporation; and, unless the resolution or the
Certificate of
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Incorporation expressly so provide, no such committee shall have the power or
authority to declare a dividend or to authorize the issuance of stock. All acts
done by any such committee within the scope of its powers and duties pursuant to
these By-Laws and the resolutions adopted by the Board of Directors shall be
deemed to be, and may be certified as being, done or conferred under authority
of the Board of Directors. The Secretary or any Assistant Secretary is empowered
to certify that any resolution duly adopted by any such committee is binding
upon the Corporation and to execute and deliver such certifications from time to
time as may be necessary or proper to the conduct of the business of the
Corporation.
4.2 COMMITTEE MEMBERS
Each member of any such committee shall hold office until his
successor is elected and has qualified, unless he sooner dies, resigns, or is
removed. The number of directors which shall constitute any committee shall be
determined by the whole Board of Directors from time to time. The Board of
Directors may designate one or more directors as alternate members of any
committee, who may replace any absent or disqualified member at any meeting of
the committee.
4.3 COMMITTEE SECRETARY
The Board of Directors may elect a secretary of any such
committee. If the Board of Directors does not elect such a secretary, the
committee shall do so. The secretary of any committee need not be a member of
the committee, but shall be selected from a member of the staff of the office of
the Secretary of the Corporation, unless otherwise provided by the Board of
Directors.
4.4 MINUTES OF COMMITTEE MEETINGS
The secretary of each committee shall keep regular minutes of
the meetings of the committee, and shall provide copies of the minutes to the
Secretary of the Corporation, unless otherwise provided by the Board of
Directors.
4.5 MEETINGS
Meetings of committees of the Board of Directors may be held
at any place, within or without the State of Delaware, as shall from time to
time be designated by the Board of Directors or the committee in question.
Regular meetings of any committee shall be held at such times as may be
determined by
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resolution of the Board of Directors or the committee in question and no notice
shall be required for any regular meeting. A special meeting of any committee
shall be called by resolution of the Board of Directors, or by the Secretary or
an Assistant Secretary upon the request of any member of the committee. Notices
of special meetings shall be mailed to each member of the committee in question
no later than two (2) days before the day on which the meeting is to be held, or
shall be sent to him by telegraph, or be delivered to him personally or by
telephone, no later than the day before such meeting. Notices of any such
meeting need not be given to any such member, however, if he shall sign a
written waiver thereof, whether before or after the meeting, or if he shall be
present at the meeting and participate in the business transacted thereat; and
any and all business transacted at any meeting of any committee shall be fully
effective without any notice thereof having been given, if all the members of
the committee shall be present thereat. Unless limited by law, the Certificate
of Incorporation, these By-Laws, or by the terms of the notice thereof, any and
all business may be transacted at any such special meeting without the notice
thereof having so specifically enumerated the matters to be acted upon.
4.6 ACTION WITHOUT A MEETING
Any action required or permitted to be taken at any meeting of
a committee of the Board of Directors may be taken without a meeting, if all
members of such committee consent thereto in writing and such writing or
writings are filed with the minutes of proceedings of the committee.
4.7 TELEPHONIC MEETINGS
Members of a committee of the Board of Directors may
participate in meetings of the committee by means of conference telephone or
similar communications equipment by means of which all persons participating in
the meeting can hear each other, and such participation in a meeting, pursuant
to this provision, shall constitute presence in person at such meeting.
ARTICLE V: INDEMNIFICATION
5.1 The Corporation shall indemnify any person who was or is a party
or is threatened to be made a party to any threatened, pending or completed
action, suit or proceeding, whether civil, criminal, administrative or
investigative (other than an action by or in the right of the Corporation) by
reason of the fact that he is or was a director or officer of the Corpora-
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tion, or is or was serving at the request of the Corporation as a director,
officer, or member of another corporation, partnership, joint venture, trust or
other enterprise, against expenses (including attorneys' fees), judgments, fines
and amounts paid in settlement actually and reasonably incurred by him in
connection with such action, suit or proceeding if he acted in good faith and in
a manner he reasonably believed to be in or not opposed to the best interests of
the Corporation, and, with respect to any criminal action or proceeding, had no
reasonable cause to believe his conduct was unlawful. The termination of any
action, suit or proceeding by judgment, order, settlement, conviction, or upon a
plea of nolo contendere or its equivalent, shall not, of itself, create a
presumption that the person did not act in good faith and in a manner which he
reasonably believed to be in or not opposed to the best interests of the
Corporation, and, with respect to any criminal action or proceeding, had
reasonable cause to believe that his conduct was unlawful.
5.2 The Corporation shall indemnify any person who was or is a party
or is threatened to be made a party to any threatened, pending or completed
action or suit by or in the right of the Corporation to procure a judgment in
its favor by reason of the fact that he is or was a director or officer of the
Corporation, or is or was serving at the request of the corporation as a
director, officer or member of another Corporation, partnership, joint venture,
trust or other enterprise against expenses (including attorneys' fees) actually
and reasonably incurred by him in connection with the defense or settlement of
such action or suit if he acted in good faith and in a manner he reasonably
believed to be in or not opposed to the best interests of the Corporation,
except that no such indemnification shall be made in respect of any claim, issue
or matter as to which such person shall have been adjudged to be liable for
negligence or misconduct in the performance of his duty to the Corporation
unless and only to the extent that the Court of Chancery of Delaware or the
court in which such action or suit was brought shall determine upon application
that, despite the adjudication of liability but in consideration of all the
circumstances of the case, such person is fairly and reasonably entitled to
indemnity for such expenses which such court shall deem proper.
5.3 To the extent that any person referred to in Sections 5.1 or 5.2
shall be successful on the merits or otherwise in defense of any action, suit or
proceeding referred to in Sections 5.1 or 5.2 or in defense of any claim, issue
or matter therein, he shall be indemnified against expenses (including
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attorneys' fees) actually and reasonably incurred by him in connection
therewith.
5.4 The Corporation may, to the extent deemed advisable by the Board
of Directors, indemnify any person who is or was an employee or agent (other
than a director or officer) of the Corporation, or is or was serving at the
request of the Corporation as an employee or agent (other than a director,
officer or member) of another corporation, partnership, joint venture, trust or
other enterprise if such person would be entitled to such indemnity under the
provisions of Sections 5.1, 5.2 or 5.3 if such person had been a director or
officer of the Corporation or a director, officer or member of such other
corporation, partnership, joint venture, trust or other enterprise.
5.5 Any indemnification under paragraphs 5.1, 5.2 or 5.4 (unless
ordered by a court) shall be made by the Corporation only as authorized in the
specific case upon a determination that indemnification of the director,
officer, member, employee or agent is proper in the circumstances because he has
met the applicable standard of conduct set forth in Sections 5.1 and 5.2. Such
determination shall be made (a) by the Board of Directors by a majority vote of
a quorum consisting of directors who were not parties to such action, suit or
proceeding, or (b) if such a quorum is not obtainable, or, even if obtainable a
quorum of disinterested directors so directs, by independent legal counsel in a
written opinion, or (c) by the stockholders.
5.6 Expenses incurred in defending a civil or criminal action, suit or
proceeding may be paid by the Corporation in advance of the final disposition of
such action, suit or proceeding as authorized by the Board of Directors in the
manner provided in paragraph 5.5 upon receipt of an undertaking by or on behalf
of the director, officer, member, employee or agent to repay such amount unless
it shall ultimately be determined that he is entitled to be indemnified by the
Corporation as authorized in this Article V.
5.7 The indemnification provided by this Article V shall not be deemed
exclusive of any other rights to which those indemnified may be entitled under
any statute, By-Law, agreement, vote of stockholders or disinterested directors
or otherwise, both as to action in his official capacity and as to action in
another capacity while holding such office, and shall continue as to a person
who has ceased to be a director, officer, member, employee or agent and shall
inure to the benefit of the heirs, executors and administrators of such a
person.
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5.8 The Board of Directors may authorize, by a vote of a majority of a
quorum of the Board of Directors, the Corporation to purchase and maintain
insurance on behalf of any person who is or was a director, officer, employee or
agent of the Corporation, or is or was serving at the request of the Corporation
as a director, officer, member, employee or agent of another corporation,
partnership, joint venture, trust or other enterprise against any liability
asserted against him and incurred by him in any such capacity, or arising out of
his status as such, whether or not the Corporation would have the power to
indemnify him against such liability under the provisions of this Article V or
of the General Corporation Law of the State of Delaware.
5.9 For the purposes of this Article V, references to "the
Corporation" shall include, in addition to the resulting corporation, any
constituent corporation (including any constituent of a constituent) absorbed in
a consolidation or merger which, if its separate existence had continued, would
have had power and authority to indemnify its directors, officers and employees
or agents, so that any person who is or was a director, officer, employee or
agent of such constituent corporation, or is or was serving at the request of
such constituent corporation as a director, officer, member, employee or agent
of another corporation, partnership, joint venture, trust or other enterprise,
shall stand in the same position under the provisions of this Article with
respect to the resulting or surviving corporation as he would have with respect
to such constituent corporation if its separate existence had continued.
5.10 For purposes of this Article V, references to "other enterprises"
shall include employee benefit plans; references to "fines" shall include any
excise taxes assessed on a person with respect to any employee benefit plan; and
references to "serving at the request of the Corporation" shall include any
service as a director, officer, employee or agent of the Corporation which
imposes duties on, or involves services by, such director, officer, employee, or
agent with respect to an employee benefit plan, its participants or
beneficiaries; and a person who acted in good faith and in a manner he
reasonably believed to be in the interest of the participants and beneficiaries
of an employee benefit plan shall be deemed to have acted in a manner "not
opposed to the best interests of the Corporation" as referred to in this Article
V.
5.11 No director of the Corporation shall be personally liable to the
Corporation or its stockholders for monetary damages for breach of fiduciary
duty as a director; PROVIDED, HOW-
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EVER, that this limitation shall not eliminate or limit the liabilities of the
directors (a) for any breach of the director's duty of loyalty to the
Corporation or its stockholders, (b) for acts or omissions not in good faith or
which involve intentional misconduct or a knowing violation of law, (c) under
Section 174 of the General Corporation Law of the State of Delaware, or (d) for
any transaction from which the director derived an improper personal benefit;
PROVIDED further, that this limitation shall not eliminate or limit the
liability of a director for any act or omission occurring prior to the adoption
of these By-Laws.
ARTICLE VI: OFFICERS
6.1 OFFICERS
The officers of the Corporation shall be: a Chairman of the
Board and Chief Executive Officer; a President and Chief Operating Officer of
the Dean Witter Capital Division; a President and Chief operating Officer of the
Dean Witter Financial Division; one or more Senior Executive Vice Presidents;
one or more Executive Vice Presidents; one or more Senior Vice Presidents; one
or more First Vice Presidents; one or more Vice Presidents; a Secretary; a
Treasurer; and a Controller. The Board of Directors may also elect and
specifically identify as officers of the Corporation: one or more Vice Chairmen
of the Board; a Chief Financial Officer; one or more Assistant Vice Presidents;
one or more Assistant Secretaries; one or more Assistant Treasurers and one and
one or more Assistant Controllers as in its judgment may be necessary or
desirable. The officers of the Corporation shall be elected by the Board of
Directors and the Board of Directors shall not delegate this authority to any
committee thereof. Any number of offices may be held by the same person, unless
the Certificate of Incorporation or these By-Laws otherwise provide.
6.2 OTHER OFFICERS; AGENTS
The Board of Directors may elect such other officers and
appoint such agents as it shall deem necessary or desirable, who shall exercise
such powers and perform such duties as shall be determined from time to time by
the Board of Directors.
6.3 TERMS OF OFFICE
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The Board of Directors, at its first meeting after each annual
meeting of stockholders, shall elect the officers of the Corporation.
6.4 VACANCIES
If any vacancy shall occur in any corporate office, the Board
of Directors may elect a successor to fill such vacancy.
6.5 REMOVAL OF OFFICERS
Any officer may be removed at any time, either for or without
cause, by the affirmative vote of a majority of the Board of Directors.
6.6 RESIGNATIONS
Any officer may resign at any time by giving written notice
thereof to the Board of Directors. A resignation shall take effect immediately
unless some other date is specified in the notice. Acceptance of any resignation
shall not be necessary to make it effective, unless such resignation is tendered
subject to such acceptance.
6.7 CHAIRMAN OF THE BOARD AND CHIEF EXECUTIVE OFFICER
The Chairman of the Board and Chief Executive Officer shall be
a member of the Board of Directors and shall be an officer of the Corporation.
He shall be the chief executive officer of the Corporation and shall direct,
coordinate and control the corporation's business and activities and its
operating expenses and capital expenditures, shall have general authority to
exercise all the powers necessary for the chief executive officer of the
Corporation and shall perform such other duties and have such other powers as
may be prescribed by the Board of Directors or these By-Laws, all in accordance
with basic policies as established by and subject to the control of the Board of
Directors. He shall preside at all meetings of the Board of Directors at which
he is present. In the absence or disability of the Chairman of the Board and
Chief Executive Officer, his duties shall be performed and his authority may be
exercised by a director designated for this purpose by the Board of Directors.
6.8 VICE CHAIRMEN OF THE BOARD
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The Vice Chairmen of the Board shall be members of the Board
of Directors and Officers of the Corporation and shall perform such duties and
have such powers as may be prescribed by the Board of Directors by the Chairman
of the Board and Chief Executive Officer or these By-Laws.
6.9 PRESIDENTS OF THE DEAN WITTER CAPITAL
AND DEAN WITTER FINANCIAL DIVISIONS
The Presidents of the Dean Witter Capital and the Dean Witter
Financial Divisions shall be officers of the Corporation, shall serve as the
chief operating officers of their respective Divisions, and shall perform such
duties and have such powers as may be prescribed by the Board of Directors, by
the Chairman of the Board and Chief Executive Officer, or by these By-Laws.
6.10 SENIOR EXECUTIVE VICE PRESIDENTS
The Senior Executive Vice Presidents of the Corporation shall
perform such duties and have such powers as may, from time to time, be assigned
to them by the Board of Directors, by the Chairman of the Board and Chief
Executive Officer, or by the President of a Division.
6.11 EXECUTIVE VICE PRESIDENTS
The Executive Vice Presidents of the Corporation shall perform
such duties and have such powers as may, from time to time, be assigned to them
by the Board of Directors, by the Chairman of the Board and Chief Executive
Officer, or by the President of a Division.
6.12 SENIOR VICE PRESIDENTS
The Senior Vice Presidents of the Corporation shall perform
such duties and have such powers as may, from time to time, be assigned to them
by the Board of Directors, by the Chairman of the Board and Chief Executive
Officer, by the President of a Division, or by an Executive Vice President.
6.13 FIRST VICE PRESIDENTS
The First Vice Presidents of the Corporation shall perform
such duties and have such powers as may, from time to time, be assigned to them
by the Board of Directors, by the Chairman of the Board and Chief Executive
Officer, by the President of a Division, or by an Executive Vice President.
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6.14 VICE PRESIDENTS
The Vice Presidents of the Corporation shall perform such
duties and have such powers as may, from time to time, be assigned to them by
the Board of Directors, by the Chairman of the Board and Chief Executive
Officer, by the President of a Division, or by an Executive Vice President.
6.15 SECRETARY
The Secretary shall attend to the giving of notice of all
meetings of stockholders and of the Board of Directors and committees thereof
and shall keep minutes of all proceedings at meetings of the stockholders and of
the Board of Directors at which he is present, as well as of all proceedings at
all meetings of such other committees of the Board of Directors at which he has
served as secretary and, where some other person has served as secretary
thereto, the Secretary shall maintain custody of the minutes of such
proceedings. He shall have charge of the corporate seal and he or any Assistant
Secretary shall have authority to attest any and all instruments or writings to
which the same may be affixed. He shall keep and account for all books,
documents, papers and records of the Corporation, except those for which some
other officer or agent is properly accountable. He shall generally perform all
the duties usually appertaining to the office of Secretary of a corporation and
shall perform such other duties and have such other powers as may be prescribed
by the Board of Directors or these By-Laws. The Board of Directors may give
general authority to any other officer to affix the seal of the Corporation and
to attest the affixing by his signature.
6.16 ASSISTANT SECRETARY
The Assistant Secretary, or if there be more than one, the
Assistant Secretaries in the order determined by the Board of Directors, or if
there be no such determination, the Assistant Secretary designated by the Board
of Directors, shall, in the absence or disability of the Secretary, perform the
duties and exercise the powers of the Secretary and shall perform such other
duties and have such other powers as may be prescribed by the Board of Directors
or these By-Laws.
6.17 CHIEF FINANCIAL OFFICER
The Chief Financial Officer shall have responsibility for the
administration of the financial affairs of the Corporation and shall exercise
supervisory responsibility for the per-
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formance of the duties of the Treasurer and the Controller. The Chief Financial
Officer shall render to the Board of Directors, at its regular meetings, or when
the Board of Directors so requires, an account of all of the transactions
effected by the Treasurer and Controller and of the financial condition of the
Corporation. He shall generally perform all the duties usually appertaining to
the affairs of a Chief Financial Officer of a corporation and shall perform such
other duties and have such other powers as may be prescribed by the Board of
Directors or these By-Laws.
6.18 TREASURER
The Treasurer shall have the custody of the corporate funds
and securities and shall deposit all moneys, and other valuable effects in the
name and to the credit of the Corporation in such depositories as may be
designated by the Board of Directors or other person duly authorized by the
Board to so designate. He shall disburse the funds of the Corporation as may be
ordered by the Board of Directors, taking proper vouchers for such
disbursements. If required by the Board of Directors, he shall give the
Corporation a bond, in such sums and with such surety or sureties as shall be
satisfactory to the Board of Directors, for the faithful performance of the
duties of his office and for the restoration to the Corporation, in case of his
death, resignation, retirement or removal from office, of all books, papers,
vouchers, money and other property of whatever kind in his possession or under
his control belonging to the Corporation. Except as otherwise provided by the
Board of Directors or directed by the Chairman of the Board and Chief Executive
Officer, the Treasurer shall perform all other necessary acts and duties in
connection with administration of the financial affairs of the Corporation,
shall generally perform all duties appertaining to the office of treasurer of a
corporation and shall perform such other duties and have such other powers as
may be prescribed by the Board of Directors or these By-Laws.
6.19 ASSISTANT TREASURER
The Assistant Treasurer, or if there shall be more than one,
the Assistant Treasurers in the order determined by the Board of Directors, or
if there be no such determination, the Assistant Treasurer designated by the
Board of Directors, shall, in the absence or disability of the Treasurer,
perform the duties and exercise the powers of the Treasurer and shall perform
such other duties and have such other powers as may be prescribed by the Board
of Directors or these By-Laws.
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6.20 CONTROLLER
The Controller shall prepare and have the care and custody of
the books of account of the Corporation. He shall keep a full and accurate
account of all moneys, received and paid on account of the Corporation, and
shall render a statement of his accounts whenever the Board of Directors shall
require. He shall generally perform all the duties usually appertaining to the
affairs of the Controller of a corporation and shall perform such other duties
and have such other powers as may be prescribed by the Board of Directors or
these By-Laws. When required by the Board of Directors, he shall give bonds for
the faithful discharge of his duties in such sum and with such surety or
sureties as shall be satisfactory to the Board of Directors for the faithful
performance of the duties of his office and for the restoration to the
Corporation, in the case of his death, resignation, retirement or removal from
office, of all books, papers, vouchers, money and other property of whatever
kind in his possession or under his control and belonging to the Corporation.
6.21 ASSISTANT CONTROLLER
The Assistant Controller, or if there shall be more than one,
the Assistant Controllers in the order determined by the Board of Directors, or
if there be no such determination, the Assistant Controller designated by the
Board of Directors, shall, in the absence or disability of the Controller,
perform the duties and exercise the powers of the Controller and shall perform
such other duties and have such other powers as may be prescribed by the Board
of Directors of these By-Laws.
6.22 ADDITIONAL POWERS AND DUTIES
In addition to the foregoing especially enumerated duties and
powers, the several officers of the Corporation shall perform such other duties
and exercise such further powers as the Board of Directors may, from time to
time, determine, or as may be assigned to them by any superior officer.
ARTICLE VII: STOCK AND TRANSFERS OF STOCK
7.1 STOCK CERTIFICATES
The stock of the Corporation shall be represented by
certificates signed by the Chairman of the Board and Chief Executive Officer or
a Vice President, and by the Secretary or an
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Assistant Secretary or the Treasurer or an Assistant Treasurer, and sealed with
a seal of the Corporation.
7.2 TRANSFER OF STOCK
Registration of a transfer of stock shall be made on the books
of the Corporation only upon presentation by the person named in the certificate
evidencing such stock, or by an attorney lawfully constituted in writing, and
upon surrender and cancellation of such certificate, with duly executed
assignment and power of transfer endorsed thereon or attached thereto, and with
such proof of the authenticity of the signature as the Corporation or its agents
may reasonably require.
7.3 LOST, STOLEN OR DESTROYED CERTIFICATES
In case any certificate of stock shall be lost, stolen or
destroyed, the Board of Directors, in its discretion, or any officer or officers
thereunto duly authorized by the Board of Directors, may authorize the issuance
of a substitute certificate in the place of the certificate so lost, stolen or
destroyed; provided, however, that, in each such case, the Corporation may
require the owner of the lost, stolen or destroyed certificate or his legal
representative, to give the Corporation evidence which the Corporation
determines in its discretion is satisfactory of the loss, theft or destruction
of such certificate and of the ownership thereof, and may also require a bond
sufficient to indemnify it against any claim that may be made against it on
account of the alleged loss, theft or destruction of any such certificate or the
issuance of such new certificate.
7.4 FIXING OF RECORD DATE
In order that the Corporation may determine the stockholders
entitled to notice of or to vote at any meeting of the stockholders, or any
adjournment thereof, or to express consent to corporate action in writing
without a meeting, or entitled to receive payment of any dividend or other
distribution or allotment of any rights, or entitled to exercise any rights in
respect of any change, conversion or exchange of stock or for the purpose of any
other lawful action, the Board of Directors may fix a record date which shall
not be more than sixty (60) nor less than ten (10) days before the date of such
meeting, nor more than sixty (60) days prior to any other action.
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7.5 REGISTERED STOCKHOLDERS
The Corporation shall be entitled to treat the holder of
record of any share or shares of stock as the holder in fact thereof and
accordingly shall not be bound to recognize any equitable or other claim or
interest in such share on the part of any other person, whether or not it shall
have express or other notice thereof, save as expressly provided by the laws of
the State of Delaware.
ARTICLE VIII: GENERAL PROVISIONS
8.1 SEAL
The seal of the Corporation shall have inscribed thereon the
name of the Corporation, the year of its organization and the state of its
incorporation.
8.2 FISCAL YEAR
The fiscal year of the Corporation shall be determined by the
Board of Directors.
ARTICLE IX: AMENDMENTS
The By-Laws may be altered, amended or repealed, from time to
time, by the Board of Directors, except as expressly prohibited in any By-Laws
made from time to time by holders of shares of stock entitled to vote thereon.
The By-Laws may be altered, amended or repealed at any annual or special meeting
of stockholders; provided notice of such proposed alteration, amendment or
repeal be included in the notice of such annual or special meeting.
<PAGE>
================================================================================
THE SEARS EQUITY INVESTMENT TRUST
TRUST INDENTURE AND AGREEMENT
for all series formed on or subsequent to the
effective date specified below
Between
DEAN WITTER REYNOLDS INC.
As Depositor
and
UNITED STATES TRUST COMPANY
OF NEW YORK
As Trustee
-----------------------
Dated: January 22, 1991
================================================================================
<PAGE>
TRUST INDENTURE AND AGREEMENT
The Sears Equity Investment Trust
TABLE OF CONTENTS
PAGE
PREAMBLES.....................................................................1
ARTICLE I
DEFINITIONS
Section 1.01. Definitions...........................................9
ARTICLE II
DEPOSIT OF SECURITIES; ACCEPTANCE OF TRUST
Section 2.01. Deposit of Securities.....................................12
Section 2.02. Acceptance of Trust.......................................13
Section 2.03. Issue of Units............................................13
Section 2.04. Form of Certificates......................................14
Section 2.05. Uncertificated Units......................................14
Section 2.06. Deposit of Additional Securities..........................15
Section 2.07. Register of Units.........................................17
Section 2.08. Printing and Custodianship of Certificates................17
Section 2.09. Voting Rights.............................................17
ARTICLE III
ADMINISTRATION OF TRUST
Section 3.01. Initial Cost..............................................17
Section 3.02. Income Account............................................17
Section 3.03. Principal Account.........................................17
Section 3.04. Reserve Account...........................................18
Section 3.05. Distribution..............................................18
Section 3.06. Distribution Statements...................................20
Section 3.07. Replacement Securities....................................22
Section 3.08. Sale of Securities........................................23
Section 3.09. Notice and Sale by Trustee................................24
Section 3.10. Refunding of Securities...................................24
Section 3.11. Notice of Actions.........................................25
Section 3.12. Extraordinary Distributions...............................25
Section 3.13. Investment Restrictions...................................26
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ARTICLE IV
EVALUATION OF SECURITIES
Section 4.01. Evaluation of Securities..................................26
Section 4.02. Tax Reports...............................................27
Section 4.03. Liability of the Trustee..................................27
ARTICLE V
TRUST EVALUATION, REDEMPTION,
TRANSFER, INTERCHANGE OR REPLACEMENT
OF CERTIFICATES
Section 5.01. Trust Evaluation..........................................28
Section 5.02. Redemptions by Trustee; Purchases by Depositor............29
Section 5.03. Transfer or Interchange of Certificates...................32
Section 5.04. Certificates Mutilated, Destroyed, Stolen or Lost.........33
ARTICLE VI
TRUSTEE
Section 6.01. General Definition of Trustee's Liabilities, Rights
and Duties...............................................34
Section 6.02. Books, Records and Reports................................38
Section 6.03. Indenture and List of Securities on File..................38
Section 6.04. Compensation of Trustee...................................38
Section 6.05. Removal and Resignation of Trustee; Successor.............39
Section 6.06. Qualifications of Trustee.................................41
ARTICLE VII
RIGHTS OF UNIT HOLDERS
Section 7.01. Beneficiaries of Trust....................................42
Section 7.02. Rights, Terms and Conditions..............................42
ARTICLE VIII
DEPOSITOR
Section 8.01. Liabilities; Power of Attorney............................43
Section 8.02. Discharge.................................................43
Section 8.03. Successors................................................44
Section 8.04. Resignation...............................................45
Section 8.05. Additional Depositors.....................................45
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PAGE
Section 8.06. Exclusions from Liability.................................45
Section 8.07. Compensation..............................................46
ARTICLE IX
ADDITIONAL COVENANTS; MISCELLANEOUS PROVISIONS
Section 9.01. Amendments................................................47
Section 9.02. Notice of Amendment.......................................48
Section 9.03. Termination...............................................48
Section 9.04. Construction..............................................51
Section 9.05. Use of the Name "Sears\...................................51
Section 9.05. Written Notice............................................51
Section 9.06. Severability..............................................52
Section 9.07. Dissolution of Depositor Not to Terminate.................52
EXECUTION....................................................................
ACKNOWLEDGMENTS..............................................................
--------------------
This Table of Contents does not constitute part of the Indenture.
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<PAGE>
TRUST INDENTURE AND AGREEMENT dated January 22, 1991 between
DEAN WITTER REYNOLDS INC., as Depositor, and UNITED STATES TRUST COMPANY OF NEW
YORK, as Trustee.
WITNESSETH that:
WHEREAS, the Depositor and the Trustee are entering into this
Trust Indenture and Agreement for the purpose of establishing certain of the
terms, covenants and conditions of the Dean Witter Select Equity Trust and each
subsequent Series which may be established from time to time hereafter
incorporating by reference the terms hereof; and
WHEREAS, for the Sears Equity Investment Trust and each
subsequent Series thereof to which this Trust Indenture and Agreement is
applicable, the Depositor and the Trustee shall execute a separate Reference
Trust Agreement incorporating by reference this Trust Indenture and Agreement
and effecting any amendment, supplement or variation from or to such
incorporation by reference with respect to the related series, and specifying
for that series: (i) the Securities deposited in trust and the number of Units
delivered by the Trustee in exchange for the Securities pursuant to Section
2.03; (ii) the initial fractional undivided interest represented by each Unit in
each Trust; (iii) the First Settlement Date; (iv) the first and subsequent
Computation Dates; (v) the first and subsequent quarterly or other Distribution
Dates; (vi) the first and subsequent Record Dates; (vii) the name of the
Depositor; (viii) the Mandatory Termination Date; (ix) the Discretionary
Liquidation Amount; (x) the Depositor's fee; (xi) the Trustee's fee; (xii) the
Date of Deposit and the Series name of the Trust; and (xiii) any other change or
addition contemplated or permitted by this Trust Indenture and Agreement; and
WHEREAS, the Depositor will acquire and, concurrently with the
execution and delivery of the appropriate Reference Trust Agreement, will
deposit in trust with the Trustee the Securities to be listed in the Schedule
thereto, all to be held by the Trustee in trust upon the terms and conditions
hereinafter set forth as amended, supplemented or varied by such Reference Trust
Agreement, for the use and benefit of all registered holders of units of
fractional undivided interest in the Trust to which such Reference Trust
Agreement relates; and
WHEREAS, concurrently with the receipt of the aforesaid
deposit, the Trustee will record on its books the ownership by the Depositor
thereof of units of fractional undivided interest in such Securities and in the
Income Account and the Principal Account maintained under this Indenture in the
manner
<PAGE>
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hereinafter provided (which units of fractional undivided interest so recorded
respectively will represent in the aggregate 100% of the beneficial interest
established at such time in such Securities, Income Account and Principal
Account) and if the Depositor so directs, will execute in the name of the
Depositor thereof a certificate or certificates representing the aggregate
number of Units specified in such Reference Trust Agreement and deliver same to
such Depositor.
WHEREAS, the form of the Certificates shall be substantially
as follows:
Number _____ _______ Units
CERTIFICATE OF OWNERSHIP
-Evidencing-
An Undivided Interest
-in-
THE SEARS EQUITY INVESTMENT TRUST, ____ SERIES ___
This is to certify that __________ is the owner and registered
holder of this Certificate evidencing the ownership of _______ Unit(s) of
fractional undivided interest in the particular series of the Sears Equity
Investment Trust noted on the face hereof (herein called the "Trust"), created
under the laws of the State of New York by the Trust Indenture and Agreement
(hereinafter called the "Indenture") dated as of the date of deposit (the "Date
of Deposit") between Dean Witter Reynolds Inc. (hereinafter called the
"Depositor") and United States Trust Company of New York (hereinafter called the
"Trustee").
The Trust consists of (1) Securities, as defined in the
Indenture, as may from time to time be held in the Trust (including (i)
contracts, if any, for the purchase of certain of the Securities together with
moneys and/or letters of credit in an amount sufficient to pay for such
Securities and (ii) reinvestment securities, if any) and (2) such amounts as
from time to time may be held in the Income Account and the Principal Account
maintained under the Indenture in the manner described below.
At any given time this Certificate shall represent a
fractional undivided interest in the Trust, the numerator of which fraction
shall be the number of Units set forth on the face hereof and the denominator of
which shall be the total number of Units of undivided interest which are
outstanding at such time. The Indenture permits the Depositor to deposit
additional Securities from time to time with the Trustee, at
<PAGE>
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which times the Trustee will deliver to the Depositor Certificates for Units
representing the additional Securities deposited with the Trust.
The provisions of this Certificate are continued on the
reverse side hereof and such continued provisions shall for all purposes have
the same effect as though fully set forth in this place.
This Certificate shall not become valid or binding for any
purpose until properly executed by the Trustee under the Indenture.
IN WITNESS WHEREOF, United States Trust Company of New York,
as Trustee, has caused this Certificate to be manually executed in its corporate
name by an authorized officer and Dean Witter Reynolds Inc., as Depositor, has
caused this Certificate to be executed in its name by the facsimile signature of
one of its Authorized Officers.
UNITED STATES TRUST COMPANY OF DEAN WITTER REYNOLDS INC.,
NEW YORK, Trustee Depositor
By By
---------------------------------- --------------------------------
Authorized Officer Authorized Officer
Date: ____________, ____
<PAGE>
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[REVERSE SIDE OF CERTIFICATE]
SEARS EQUITY INVESTMENT TRUST
The Depositor hereby grants and conveys all of its right,
title and interest in and to the Trust to the extent of the fractional undivided
interest represented hereby to the registered holder of this Certificate subject
to and in pursuance of the Indenture, all the terms, conditions and covenants of
which are incorporated herein as if fully set forth at length.
The registered holder of this Certificate is entitled at any
time upon tender of this Certificate to the Trustee, endorsed in blank or
accompanied by all necessary instruments of assignment and transfer in proper
form, at its office at New York, New York and, upon payment of any tax or other
governmental charges, to receive on or before the seventh calendar day following
the day on which such tender is made or, if such calendar day is not a Business
Day (as defined in the Indenture), on the first Business Day prior to such
calendar day, an amount in cash or cash equivalents, or Securities in kind if
such option is offered by the Depositor, equal to the evaluation of the
fractional undivided interest in the Trust evidenced by this Certificate, upon
the basis provided for in the Indenture. The right of redemption may be
suspended and the date of payment may be postponed for any period during which
the New York Stock Exchange is closed, other than customary weekend or holiday
closings; for any period during which the Securities and Exchange Commission has
determined that trading on that Exchange is restricted or an emergency exists as
a result of which disposal or evaluation of any of the Securities held in the
Trust is not reasonably practicable; or for such other periods as the Securities
and Exchange Commission may by order permit.
The Depositor has the right under certain circumstances set
forth in the Indenture to purchase any Certificate tendered to the Trustee for
redemption no later than the next business day following tender at a price not
less than the Redemption Price.
Income received by the Trustee as part of the Trust shall be
credited by the Trustee to the Income Account. With certain exceptions specified
in the Indenture, all other moneys received by the Trustee as a part of the
Trust shall be credited to a separate Principal Account.
<PAGE>
-5-
The Record Dates and Distribution Dates are as set forth in
the Indenture.
The fractional undivided interest represented by this
Certificate with respect to the Income and Principal Accounts (after the
deductions referred to below) shall be distributed on, or shortly after, each
Distribution Date in the manner and subject to the limitations specified in the
Indenture. All distributions from the Income and Principal Accounts shall be
made to the holder of record of this Certificate at the close of business on the
Record Date prior to the Distribution Date on which such distributions are made.
No distributions need be made from the Principal Account if
the balance therein is less than an amount specified in the Indenture.
Distributions from the Income and Principal Accounts shall be
made either by mail to the post office address of the holder hereof appearing on
the registration books of the Trustee or by such other means as shall be
mutually agreed upon between the holder and the Trustee. A Unit Holder shall
notify the Trustee in writing of any change of address.
From time to time deductions shall be made from the Income and
Principal Accounts, as more fully set forth in the Indenture, for redemption of
Units, compensation of the Depositor, compensation of the Trustee, reimbursement
of certain expenses and advances incurred by or on behalf of the Trustee (other
than such expenses borne by the Trustee), certain legal and auditing expenses
and payment of, or the establishment of a reserve for, applicable taxes or
governmental charges, if any.
Shortly after the end of each calendar year the Trustee shall
furnish to the registered holder of this Certificate a statement setting forth,
among other things, the amounts received by the Trust and deductions therefrom
and the amounts distributed during the preceding year in respect of income on,
and redemptions and sales of, Securities held in the Trust.
This Certificate shall be transferable by the registered
holder hereof by presentation and surrender hereof at the unit investment trust
office of the Trustee properly endorsed hereon or accompanied by a written
instrument or instruments of transfer in form satisfactory to the Trustee and
executed by the registered holder or his authorized attorney. Certificates of
this Series are interchangeable for one or more Certificates of such Series in
an equal aggregate number of Units of fractional undivided interest at the unit
investment trust office
<PAGE>
-6-
of the Trustee in denominations of one Unit of fractional undivided interest or
any multiple thereof that may be deemed appropriate by the Trustee.
The holder hereof may be required to pay a charge of $2.00 (or
such other amount as may be determined by the Trustee) in connection with the
transfer or interchange of this Certificate and any tax or other governmental
charge that may be imposed in connection with the transfer, interchange or other
surrender of this Certificate.
The holder of this Certificate, by virtue of the purchase and
acceptance hereof, assents to and shall be bound by the terms of the Indenture,
copies of which are on file and available for inspection at reasonable times
during business hours at the unit investment trust office of the Trustee, to
which Indenture reference is made for all the terms, conditions and covenants
thereof.
The Trustee may deem and treat the person in whose name this
Certificate is registered upon the books of the Trustee as the owner hereof for
all purposes and the Trustee shall not be affected by any notice to the
contrary.
Units may also be held in uncertificated form if such option
is offered by the Trustee. Holders of Units evidenced by Certificates may at any
time elect to have their Units held in uncertificated form by surrendering their
Certificates to the Trustee for cancellation. At such time, an appropriate
notation will be made in the registration books of the Trustee to indicate that
the Units formerly evidenced by such cancelled Certificates are held in
uncertificated form. The Trustee shall, at the request of the holder of any
Units held in uncertificated form, issue a new Certificate or certificate in
quantities and denominations as requested by the holder and deemed appropriate
by the Trustee, subject to a $2.00 per certificate charge, to evidence such
Units and at such time make an appropriate notation in the registration books of
the Trustee. Uncertificated Units are transferable and interchangeable by the
holder or his duly authorized attorney at the unit investment trust office of
the Trustee upon delivery of an instrument of transfer and related documents in
form satisfactory to the Trustee and payment of any tax or other governmental
charges, fees and expenses applicable thereto. The rights of any holder of Units
held in uncertificated form set forth in the Indenture are the same as the
rights of any holder of Units evidenced by Certificates under such Indenture.
<PAGE>
-7-
The Indenture and the Trust created thereby shall terminate on
the Mandatory Termination Date as defined in the Indenture. The Indenture
provides that the Trust may be terminated prior to such date under certain
circumstances which include the sale or other disposition of the last Security
held thereunder, a decrease in the value of the Trust to less than the amount
specified in the Indenture or upon the vote of the holders of 51% of all Units
outstanding. Upon any termination the Trustee shall sell, or distribute in-kind,
all of the Securities then held, if any, and distribute pro rata the funds then
held in the Trust upon the surrender of the Certificates, all in the manner
provided in the Indenture. Upon the termination, the Trustee shall be under no
further obligation with respect to the Trust, except to hold such funds in
trust, without interest, until distribution as aforesaid and shall have no duty
upon any termination to communicate with the holder hereof other than by mail at
the address of such holder appearing on the registration books of the Trustee.
The Indenture permits, with certain exceptions as therein
provided, the amendment thereof, the modification of the rights and the
obligations of the Depositor, the Trustee and the registered holders of Units
thereunder and the waiver of the performance of any of the provisions thereof at
any time with the consent of the holders of Units evidencing 51% of the Units at
any time outstanding under the Indenture. Any such consent or waiver by the
holder of a Unit shall be conclusive and binding upon such holder of a Unit and
upon all future holders of Units and shall be binding upon any Unit whether
evidenced by a Certificate or held in uncertificated form, issued upon the
registration or transfer hereof whether or not notation of such consent or
waiver is made upon this Certificate and whether or not the Unit(s) evidenced
hereby are at such time in uncertificated form. The Indenture also permits the
amendment thereof, in certain limited circumstances, without the consent of any
holders of Units.
This Certificate shall not become valid or binding for any
purpose until properly executed by the Trustee under the Indenture.
ABBREVIATIONS
The following abbreviations, when used in the inscription on
the face of this instrument, shall be construed as though they were written out
in full according to applicable laws or regulations:
TEN COM - as tenants in common
<PAGE>
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TEN ENT - as tenants by the entirety
JT TEN - as joint tenants with right of
survivorship and not as tenants in common
UNIF GIFT MIN ACT............Custodian............
(Cust) (Minor)
under Uniform Gifts to Minor Act
................................
(State)
Additional abbreviations may also be used though not in the above list.
FORM OF ASSIGNMENT
FOR VALUE RECEIVED, __________hereby sell(s), assign(s) and
transfer(s) _______ Units unto________________
- ---------------------------------------------------------------------------
Please insert Social Security or Other
Identifying Number of Assignee
--------------------------------------
--------------------------------------
the within Certificate and does hereby irrevocably constitute and appoint
______________________, attorney, to transfer said Certificate on the books of
the Trustee, 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 or as recorded on the
books of the Trustee, as the case
may be, in every particular, without
alteration or enlargement or any
change whatever.
<PAGE>
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ARTICLE I
DEFINITIONS
Section 1.01. DEFINITIONS: Whenever used in this Indenture,
the following words and phrases, unless the context clearly indicates otherwise,
shall have the following meanings:
(1) "Additional Securities" shall mean such Securities (as
defined herein) as are listed in Supplemental Schedules to a
Supplemental Indenture and which have been deposited to effect an
increase over the number of Units initially specified in Part II of the
Reference Trust Agreement.
(2) "Additional Deposited Units" shall mean such Deposited
Units (as defined herein) as are listed in schedules to a Supplemental
Indenture and which are deposited in connection with an increase in the
number of Units initially specified in an Indenture.
(3) "Additional Units" shall mean such Units (as defined
herein) as are issued in respect of Additional Securities and
Additional Deposited Units, if any.
(4) "Basic Agreement" shall mean this Trust Indenture and
Agreement dated as indicated on the cover page hereof as originally
executed, or if amended as hereinafter provided, as so amended,
exclusive of the terms contained in any related Reference Trust
Agreement.
(5) "Business Day" shall mean any day other than a Saturday
or Sunday or other day on which the New York Stock Exchange is closed
for trading, a legal holiday in the City of New York, or a day on which
banking institutions are authorized by law to close.
(6) "Certificate" shall mean any one of the certificates
executed by the Trustee and the Depositor evidencing ownership of an
individual fractional interest in the Trust.
(7) "Computation Day" shall have the meaning assigned to it
in Part II of the Reference Trust Agreement.
(8) "Contract Securities" shall mean Securities which are to
be acquired by the Trust pursuant to con-
<PAGE>
-10-
tracts, including (i) Securities listed in the Schedule to the
Reference Trust Agreement and (ii) Securities which the Depositor has
contracted to purchase for the Trust pursuant to Sections 2.06 and
3.07.
(9) "Deposited Units" shall mean such units of a previous
series of Sears Equity Investment Trust as are listed on a Schedule to
the Reference Trust Agreement.
(10) "Depositor" of the Trust shall have the meaning assigned
to it in Part II of the Reference Trust Agreement.
(11) "Distribution Date" shall have the meaning assigned to
it in Part II of the Reference Trust Agreement relating to such Trust.
(12) "Evaluation Time" shall mean the close of trading on the
New York Stock Exchange, presently 4:00 p.m. or such other time as is
designated as the Evaluation Time in the prospectus for a Trust.
(13) "First Settlement Date" of the Trust shall have the
meaning assigned to it in Part II of the Reference Trust Agreement
relating to such Trust.
(14) "Indenture" shall mean the Basic Agreement, as further
amended, supplemented or varied by the Reference Trust Agreement.
(15) "In-Kind Date" shall have the meaning assigned to it in
Part II of the Reference Trust Agreement.
(16) "Record Date" shall have the meaning assigned to it in
Part II of the Reference Trust Agreement.
(17) "Reference Trust Agreement" shall mean a supplement to
the Basic Agreement, the purpose of which shall be to amend, supplement
and/or vary certain of the terms contained in the Basic Agreement. The
Reference Trust Agreement, together with the Basic Agreement to the
extent that such Reference Trust Agreement incorporates it by
reference, defines all the terms, rights and duties relevant to the
series of the Sears Equity Investment Trust to which such Reference
Trust Agreement relates.
(18) "Replacement Security" shall mean a Security purchased
by the Trustee pursuant to Section 3.07 hereof.
<PAGE>
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(19) "Restricted Securities" shall mean Securities which were
acquired in private placements and which at the time could not, in the
opinion of counsel designated by the Depositor and satisfactory to the
Trustee, be sold publicly by the Trustee without registration (or
perfection of an exemption) under the Securities Act of 1933, as
amended (or similar provisions of law subsequently enacted).
(20) "Securities" shall mean such stock, common or preferred
(including for all purposes hereof "when-issued" and/or "regular way"
contracts, if any, for the purchase thereof evidenced by the purchasing
broker's confirmation of, or list of its confirmations of, such
contracts and a certified check or checks and/or an irrevocable letter
or letters of credit in the amount required for such purchase) and such
Deposited Units, as are (i) deposited in irrevocable trust and listed
in the Schedule or Supplemental Schedules to the Reference Trust
Agreement and (ii) received in exchange or substitution for any
Securities pursuant to Section 3.07 and Section 3.10 hereof, as may
from time to time be acquired and continue to be held as a part of the
Trust to which such Reference Trust Agreement relates.
(21) "Special Security" shall have the meaning assigned to it
in Section 3.07 hereof.
(22) "Supplemental Indenture" shall mean an amendment or
supplement to the Reference Trust Agreement executed pursuant to
Section 2.06 hereof for the purpose of making additional deposits of
Securities in the Trust and issuing a corresponding amount of
Additional Units.
(23) "Supplemental Schedule" shall mean a schedule to the
Supplemental Indenture listing the Additional Securities deposited.
(24) "Termination Date" shall mean the date set forth in Part
II of the Reference Trust Agreement.
(25) "Trust" shall mean the trust created by this Indenture,
which shall be denominated as indicated in Part II of the Reference
Trust Agreement relating to such Trust, and which shall consist of the
Securities held pursuant and subject to this Indenture together with
all dividends thereon, received but undistributed, any undistributed
cash realized from the sale, redemption or liquidation thereof, such
amounts as may be on deposit in the
<PAGE>
-12-
Reserve Account hereinafter established and all other property and
rights to which Unit Holders may be entitled under the provisions of
this Indenture.
(26) "Trustee" shall mean United States Trust Company of New
York, or any successor trustee as hereinafter provided for.
(27) "Unit" shall mean the fractional undivided interest in
and ownership of the Trust which shall be initially equal to the
fraction specified for the Trust in Part II of the Reference Trust
Agreement, the denominator of which fraction shall be decreased by the
number of any such Units redeemed as provided in Section 5.02 and
increased by the number of any Additional Units as provided in Section
2.05.
(28) "Unit Holder" shall mean the registered holder of any
Unit as recorded on the registration books of the Trustee, his legal
representatives and heirs and the successors of any corporation,
partnership or other legal entity which is a registered holder of any
Unit and as such shall be deemed a beneficiary of the Trust created by
this Indenture to the extent of his pro rata share thereof.
(29) The words "herein," "hereby," "herewith," "hereof,"
"hereinafter," "hereunder," "hereinabove," "hereafter," "heretofore"
and similar words or phrases of reference and association shall refer
to this Indenture in its entirety.
(30) Words importing the singular number shall include the
plural number in each case and vice versa and words importing persons
shall include corporations and associations, as well as natural
persons.
ARTICLE II
DEPOSIT OF SECURITIES; ACCEPTANCE OF TRUST
Section 2.01. DEPOSIT OF SECURITIES: The Depositor, currently
with the execution and delivery hereof, has deposited with the Trustee in trust
the Securities listed in the Schedule or Schedules attached to such Reference
Trust Agreement in bearer form or duly endorsed in blank or accompanied by all
necessary instruments of assignment and transfer in proper form to be held,
administered and applied by the Trustee as herein
<PAGE>
-13-
provided. In the event that the purchase of Securities represented by
"when-issued" and/or "regular way" contracts shall not be consummated in
accordance with said contracts, the Trustee shall credit to the Principal
Account pursuant to Section 3.03 hereof the cash or cash equivalents (including
such portion of any letter of credit applicable to such contracts) deposited by
the Depositor for the purpose of such purchase. Such monies, unless invested in
Replacement Securities in accordance with Section 3.07 hereof, shall be
distributed to Unit Holders pursuant to Section 3.05 hereof on the Distribution
Date next following the failure of consummation of such purchase or such earlier
date as the Depositor and the Trustee determine. The Depositor shall deliver the
Securities listed on said Schedule or Schedules to the Trustee which were not
actually delivered concurrently with the execution and delivery of the Reference
Trust Agreement within 90 days after said execution and delivery or, if Section
3.07 applies, within such shorter period as is specified in Section 3.07.
The Trustee is irrevocably authorized hereby to effect
registration of transfer of the Securities in fully registered form in the name
of the Trustee or its nominee.
Section 2.02. ACCEPTANCE OF TRUST: The Trustee hereby accepts
the Trust created by this Indenture for the use and benefit of the Unit Holders
in the Trust, subject to the terms and conditions of this Indenture.
Section 2.03. ISSUE OF UNITS: By executing the Reference Trust
Agreement the Trustee will thereby acknowledge receipt of the deposit relating
to the Trust to which such Reference Trust Agreement relates, referred to in
Section 2.01, and simultaneously with the receipt of said deposit, will record
on its books for the account of the Depositor the aggregate number of Units of
the Trust in exchange therefor as specified in Part II of the Reference Trust
Agreement and shall, if so requested, issue Certificates evidencing such Units.
The Trustee hereby agrees that, on the date of any
Supplemental Schedule to the Reference Trust Agreement, it shall acknowledge
that the Additional Securities identified therein have been deposited with it by
recording on its books the ownership by the Depositor, or such other person or
persons as may be indicated by the Depositor, of the aggregate number of
Additional Units to be issued in respect of such Additional Securities so
deposited, and shall, if so requested, execute Certificates substantially in the
form above recited representing the ownership of an aggregate number of such
Additional Units.
<PAGE>
-14-
Under the terms and conditions and at such times as are
permitted by the Trustee, Units may also be held in uncertificated form. Unit
Holders may elect to have their Units held in uncertificated form by
surrendering their Certificates to the Trustee for cancellation. At such time,
an appropriate notation will be made on the registration books of the Trustee to
indicate that the Units formerly evidenced by such cancelled Certificates are
Units held in uncertificated form. The Trustee shall, at the request of the
holder of any Units held in uncertificated form, subject to a $2.00 per
certificate charge, issue a new Certificate to evidence such Units and at such
time make an appropriate notation in the registration books of the Trustee. The
rights set forth in this Indenture of any holder of Units held in uncertificated
form shall be the same as those of any other Unit Holder.
The Trusts created by this Indenture are separate and distinct
trusts for all purposes and the assets of one such trust may not be commingled
with the assets of any other, nor shall the expenses of any such trust be
charged against the other. The Units representing the ownership of a fractional
undivided interest in one Trust shall not be exchangeable for Units representing
the ownership of an undivided fractional interest in any other except as set
forth in the Prospectus.
Section 2.04. FORM OF CERTIFICATES: Each Certificate referred
to in Section 2.03 shall be in substantially the form hereinabove recited,
numbered serially for identification, in fully registered form, transferable
only on the books of the Trustee as herein provided, executed manually or in
facsimile by an authorized officer of the Trustee and in facsimile by an
authorized officer of the Depositor of the Trust to which the Certificate
relates, and dated the date of execution and delivery by the Trustee.
Section 2.05. UNCERTIFICATED UNITS: All Units may be held in
uncertificated form, unless and as the Trustee may deem it appropriate to issue
certificates provided that the Trustee shall issue Certificates if so directed
by the Depositor. The Trustee may deem and treat the person in whose name any
Unit is registered upon the books of the Trustee as the owner thereof for all
purposes and the Trustee shall not be affected by any notice to the contrary.
Section 2.06. DEPOSIT OF ADDITIONAL SECURITIES: From time to
time and in the discretion of the Depositor, the Depositor may make deposits of
Additional Securities duly endorsed in blank or accompanied by all necessary
instruments of assignment and transfer in proper form (or contracts to pur-
<PAGE>
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chase Additional Securities and cash or an irrevocable letter of credit in an
amount necessary to consummate the purchase of any Additional Securities
pursuant to such contracts ("Additional Contract Securities")) and Cash (as
defined below), if Cash is an asset of the Trust immediately prior to the
supplemental deposit, provided that each deposit during the 90-day period
following the first deposit of Securities in the Trust shall replicate, to the
extent practicable as hereinafter provided, the Securities (including Contract
Securities) and shall exactly replicate Cash (other than Cash to be distributed
solely to persons other than persons receiving the distribution as holders of
Additional Units created by the deposit) held in the Trust immediately prior to
each such deposit; and, provided further that each deposit of Additional
Securities and Cash, if any, subsequent to such 90-day period shall exactly
replicate the Securities (including Contract Securities) and Cash (other than
Cash to be distributed solely to persons other than persons receiving the
distribution as holders of Additional Units created by the deposit) held in the
Trust immediately prior to each such deposit. For purposes of this paragraph,
Cash means cash on hand in the Trust and/or cash receivable by the Trust as of
the date of the supplemental deposit reduced by payables and accrued expenses.
Accordingly, for a deposit subsequent to the 90-day period
following the first deposit of Securities:
1. Any Additional Securities included in a deposit shall
be identical to Securities held in the Trust immediately prior to the deposit
and in amounts such that (i) the number of shares of Additional Securities of a
particular issue included in a deposit divided by (ii) the aggregate of the
number of shares of all Additional Securities included in the deposit results in
a fraction which is the same as the fraction resulting from division of (iii)
the aggregate number of shares of the Securities of the same issue held in the
Trust immediately prior to the deposit divided by (iv) the aggregate number of
shares of all Securities held in the Trust immediately prior to the deposit;
2. Any deposit of Additional Securities shall be
accompanied by Cash in an amount bearing the same ratio to the aggregate number
of shares of all Additional Securities in the deposit as the Cash held in the
Trust immediately prior to the deposit bears to the aggregate number of shares
of all Securities held in the Trust immediately prior to the deposit, exclusive
of Cash held in the Trust and designated for distribution solely to persons
other than persons receiving the distribution as holders of Additional Units
created by the deposit; and for
<PAGE>
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deposit during the 90-day period following the first deposit of Securities in
the Trust, the rules stated in subparagraphs (1) and (2) of this paragraph shall
apply except that any Additional Securities (including Additional Contract
Securities) need be only substantially similar (rather than identical to)
Securities held in the Trust immediately prior to the deposit and need meet the
proportionality requirements only to the extent practicable. Without limiting
the generality of the phrase "to the extent practicable", if the Depositor
specifies a minimum number of shares of a Security with respect to a particular
trust to be included in a deposit and such minimum requirement cannot be met or
if a Security identical to a Security held in the Trust is not readily
obtainable, substitution of other substantially similar Securities (including
Securities of an issue originally deposited) in order to meet the foregoing
proportionality requirements shall be considered as a meeting of such
requirements "to the extent practicable".
Each deposit of Additional Securities shall be listed in a
Supplemental Schedule to the Reference Trust Agreement stating the date of such
deposit and the number of Additional Units being issued therefor. The Trustee
shall acknowledge in such Supplemental Schedule receipt of the deposit, and
simultaneously with the receipt of said deposit, reflect the aggregate number of
Additional Units specified in such Supplemental Schedule by recording such Units
on its books. Such Additional Securities shall be held, administered and applied
by the Trustee in the same manner as herein provided for the Securities. The
execution by the Depositor in connection with the deposit of Additional
Securities of a Supplemental Schedule to the Reference Trust Agreement shall
constitute the approval by the Depositor as satisfactory in form and substance
of the contracts to be entered into or assumed by the Trustee with regard to any
Additional Securities listed on such Supplemental Schedule and authorization to
the Trustee on behalf of the Trust to enter into or assume such contracts and
otherwise to carry out the terms and provisions thereof or to take other
appropriate action in order to complete the deposit of the Additional Securities
covered thereby into the Trust.
Section 2.07. REGISTER OF UNITS: A register shall be kept by
the Trustee containing the names and addresses of the Unit Holders and the
number of Units owned by each Unit Holder, and in which all issues, exchanges,
transfers and cancellations of Units shall be recorded.
Section 2.08. PRINTING AND CUSTODIANSHIP OF CERTIFICATES: The
Depositor hereby agrees to arrange for the printing of blank Certificates. Such
blank Certificates are to be held
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by the Trustee. The Trustee is authorized to use the services of Depositary
Trust Company, 55 Water Street, New York, New York, or any other similar
organization or company which the Depositor may specify for the custody of
Securities and Units.
Section 2.09. VOTING RIGHTS: Voting rights with respect to the
Securities held by the Trust shall be exercised by the Trustee as directed by
the Depositor in accordance with Section 3.11.
ARTICLE III
ADMINISTRATION OF TRUST
Section 3.01. INITIAL COST: With respect to the Trust, the
cost of the initial preparation, printing and execution of this Indenture, the
initial fee of the Trustee and other reasonable expenses in connection
therewith, shall be paid by the Depositor, provided, however, that the liability
on the part of the Depositor for such initial costs, fees and expenses shall not
include any fees, costs or other expenses incurred in connection herewith after
the execution of this Indenture, and the deposit relating to the Trust, referred
to in Section 2.01.
Section 3.02. INCOME ACCOUNT: The Trustee shall collect the
dividends or other like cash distributions on the Securities in the Trust as
such are paid and credit such amounts, as collected, to a separate account to be
known as the "Income Account."
Section 3.03. PRINCIPAL ACCOUNT: The Securities in the Trust
and all cash, other than amounts credited to the Income Account, received by the
Trustee in respect of the Securities in the Trust shall be credited to a
separate account for the Trust to be known as the "Principal Account."
Section 3.04. RESERVE ACCOUNT: From time to time the Trustee
shall withdraw from the cash on deposit in the Principal Account or Income
Account such amounts as it, in its sole discretion, shall deem requisite to
establish a reserve for any applicable taxes or other governmental charges that
may be payable out of the Trust. Such amounts so withdrawn shall be credited to
a separate account which shall be known as the "Reserve Account." The Trustee
shall not be required to distribute to the Unit Holders any of the amounts in
the Reserve Account; provided, however, that if the Trustee shall, in its
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sole discretion, determine that such amounts are no longer necessary for payment
of any applicable taxes or other governmental charges, then it shall promptly
deposit such amounts in the account from which previously withdrawn, or, if such
Trust has been terminated or is in the process of termination, the Trustee shall
distribute to each Unit Holder such holder's interest in the Reserve Account in
accordance with Section 9.03 hereof.
Section 3.05. DISTRIBUTION: As of each Record Date for the
Trust, the Trustee shall:
(a) deduct from the Income Account, or, to the extent funds
are not available in such Account, from the Principal Account, and pay
to itself individually the amounts that it is at the time entitled to
receive pursuant to Section 6.04 or this Section 3.05;
(b) deduct from the Income Account, or, to the extent funds
are not available in such Account, from the Principal Account, an
amount equal to the unpaid fees and expenses, if any, including
registration charges, Blue Sky fees, printing costs, attorneys' fees,
auditing costs and other miscellaneous out-of-pocket expenses, as
certified by the Depositor, incurred in keeping the registration of the
Units and the Trust on a current basis pursuant to Section 9.07,
provided, however, that no portion of such amount shall be deducted or
paid unless the payment thereof from the Trust is at that time lawful;
and
(c) deduct from the Income Account or, to the extent funds are
not available in such account, from the Principal Account the estimated
amount that the Depositor is entitled to receive pursuant to Section
8.07 and hold such amount without interest until such time as it is
payable to the Depositor as set forth below. The Trustee shall
distribute to the Depositor from the amount so held pursuant to the
immediately preceding sentence the amounts that the Depositor is
entitled to receive pursuant to Section 8.07 on account of its services
theretofore performed and expenses theretofore incurred. With respect
to Trusts having monthly, quarterly or semiannual Distribution Dates,
the Trustee shall deduct from the Income Account one-twelfth,
one-quarter or one-half, as the case may be, of the estimated annual
amount that the Depositor is entitled to receive and shall distribute
such amounts to the Depositor on the monthly, quarterly or semiannual
Distribution Date, as the case may be. In the event of the appointment
of a successor depositor pursuant to Section 6.01(f)(1), the Trustee
shall deduct from the Income Ac-
<PAGE>
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count, or, to the extent funds are not available in such account, from
the Principal Account, and pay to such successor depositor the amounts,
if any, that it is at the time lawful for it to receive under said
Section 6.01(f)(1).
The Principal Account shall be reimbursed for any amounts
withdrawn from the Principal Account under this Indenture in order to satisfy
obligations which, pursuant to the terms hereof, are first to be paid out of the
Income Account to the extent funds are available when sufficient funds are next
available in the Income Account after giving effect to the payment from the
Income Account of all amounts otherwise required to be deducted therefrom at
that time.
On each Distribution Date or within a reasonable period of
time thereafter, the Trustee shall distribute by mail to each Unit Holder of
record at the close of business on the preceding Record Date at his address
appearing on the registration books of the Trustee such holder's pro rata share
of the balance of the Income Account, plus such holder's pro rata share of the
distributable cash balance of the Principal Account, each computed as of the
preceding Record Date; provided, however, that funds credited to the Principal
Account in the event of the failure of consummation of a contract to purchase
Securities pursuant to Section 2.01 hereof, funds representing the proceeds of
the sale of Securities pursuant to Section 3.08 hereof, and funds representing
the proceeds of the sale of Securities under Section 5.02 or 6.04 in excess of
the amounts needed for the purposes of said Sections shall not be distributed
until the next Distribution Date or at such earlier date as shall be determined
by the Trustee. The Trustee shall not be required to make a distribution from
the Principal Account unless the cash balance on deposit therein available for
distribution shall be sufficient to distribute at least $1.00 per Unit in the
case of Units initially offered at approximately $1,000 or a proportionately
lower amount in the case of Units initially offered at less than $1,000 (E.G.,
$.001 per Unit in the case of Units initially offered at approximately $1.00).
The amounts to be so distributed to each Unit Holder of the
Trust of record as of each Record Date shall be that pro rata share of the cash
balance as of such Record Date of the Income and Principal Accounts of the
Trust, as shall be represented by a notation on the registration or other record
books of the Trustee.
In the computation of each such share, fractions of less than
one cent shall be omitted. After any such distribu-
<PAGE>
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tion provided for above, any cash balance remaining in the Income Account or the
Principal Account shall be held in the same manner as other amounts subsequently
deposited in each of such Accounts, respectively.
For the purpose of distribution as herein provided, the
holders of record on the registration books of the Trustee at the close of
business on each Record Date shall be conclusively entitled to such
distribution, and no liability shall attach to the Trustee by reason of payment
to any such registered Unit Holder of record. Nothing herein shall be construed
to prevent the payment of amounts from the Income Account and the Principal
Account to individual Unit Holders by means of one check, draft or other proper
instrument, provided that the appropriate statement of such distribution shall
be furnished therein as provided in Section 3.06 hereof.
Section 3.06. DISTRIBUTION STATEMENTS: With each distribution
from the Income or Principal Accounts of the Trust, the Trustee shall furnish
Unit Holders a statement of the amount being distributed from each such account,
expressed in each case as a dollar amount per Unit.
Within a reasonable period of time after the last Business Day
of each calendar year, but not later than February 15, the Trustee shall furnish
to each person who at any time during such calendar year was a Unit Holder a
statement setting forth, with respect to such calendar year:
(A) as to the Income Account of the Trust:
(1) the amount of dividends received on the
Securities,
(2) the amounts paid from the Income Account for
redemptions of Units pursuant to Section 5.02,
(3) the deductions from the Income Account for
payment of applicable taxes or other governmental charges, if
any, compensation of the Depositor, fees and expenses of the
Trustee, transfers to the Reserve Account, and any expenses
paid by the Trust pursuant to Section 3.05 hereof,
(4) the amount distributed from the Income Account,
identifying separately amounts distributed as dividends and as
other income,
<PAGE>
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(5) any other amount credited to or deducted from the
Income Account, and
(6) the balance remaining after such distributions
and deductions, expressed both as a total dollar amount and as
a dollar amount per Unit outstanding on the last Business Day
of such calendar year;
(B) as to the Principal Account of the Trust:
(1) the dates of the sale, liquidation or redemption
of any of the Securities, the identity of such Securities and
the net proceeds received therefrom, excluding any portion
thereof credited to the Income Account,
(2) the amount paid from the Principal Account for
redemption pursuant to Section 5.02,
(3) the deductions for payment of applicable taxes
and other governmental charges, if any, compensation of the
Depositor, fees and expenses of the Trustee, transfers to the
Reserve Account, and any expenses paid by the Trust under
Section 3.05 hereof,
(4) the amount distributed from the Principal Account
for such period, pursuant to Section 3.05 hereof,
(5) any other amount credited to or deducted from the
Principal Account, and
(6) the balance remaining after such distributions
and deductions, expressed both as a total dollar amount and as
a dollar amount per Unit outstanding on the last Business Day
of such calendar year; and
(C) the following information:
(1) a list of the Securities held in the Trust as of
the last Business Day of such calendar year,
(2) the number of Units outstanding on the last
Business Day of such calendar year,
(3) the Unit Value (as defined in Section 5.01) based
on the last evaluation of such Trust made during such calendar
year, and
<PAGE>
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(4) the amounts actually distributed during such
calendar year from the Income and Principal Accounts of the
Trust, separately stated, expressed both as total dollar
amounts and as dollar amounts per Unit outstanding on the
Record Dates for such distributions.
Section 3.07. REPLACEMENT SECURITIES: In the event that any
Contract Security is not delivered due to any occurrence, act or event beyond
the control of the Depositor and of the Trustee (such a Contract Security being
herein called a "Special Security"), the Depositor may instruct the Trustee to
purchase Replacement Securities which have been selected by the Depositor having
a cost not in excess of the cost of the Special Securities not so delivered. To
be eligible for inclusion in the Trust, the Replacement Securities which the
Depositor selects must: (i) be of the same type as that replaced (E.G., both
will be common stock or preferred stock); (ii) in the Depositor's judgment,
closely resemble the Special Security as respects the investment characteristics
which led the Depositor to select the Special Security for inclusion in the
Trust; and (iii) be purchased within twenty days after delivery of notice of the
failed contract to the Trustee or to the Depositor, whichever occurs first. Any
Replacement Securities received by the Trustee shall be deposited hereunder and
shall be subject to the terms and conditions of this Indenture to the same
extent as other Securities deposited hereunder. No such deposit of Replacement
Securities shall be made after the earlier of (i) 90 days after the date of
execution and delivery of the applicable Reference Trust Agreement or (ii) the
first Distribution Date to occur after the date of execution and delivery of the
applicable Reference Trust Agreement.
Whenever a Replacement Security is acquired by the Depositor
pursuant to the provisions of this Section 3.07, the Trustee shall, within five
days thereafter, mail to all Unit Holders notices of such acquisition, including
an identification of the Special Security and the Replacement Security acquired.
The purchase price of a Replacement Security shall be paid out of the funds in
the principal account attributable to the Special Security which it replaces.
The Trustee shall not be liable or responsible in any way for depreciation or
loss incurred by reason of any purchase made pursuant to any such instructions
from the Depositor and in the absence of such instructions the Trustee shall
have no duty to purchase any Replacement Securities under this Indenture. The
Depositor shall not be liable for any failure to instruct the Trustee to
purchase any Replacement Security or for errors of judgment in selecting any
Replacement Security.
<PAGE>
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Section 3.08. SALE OF SECURITIES: In order to maintain the
sound investment character of the Trust, the Depositor may direct the Trustee to
sell or liquidate Securities at such price and time and in such manner as shall
be determined by the Depositor, provided that the Depositor has determined that
any one or more of the following conditions exist:
(a) that there has been a failure by the issuer of such
Securities to declare or pay an anticipated dividend thereon;
(b) that any action or proceeding has been instituted in law
or equity seeking to restrain or enjoin the payment of dividends on any
such Securities, or that there exists any other legal question or
impediment affecting such Securities or the payment of dividends on the
same;
(c) that there has occurred any breach of covenant or warranty
in any resolution, ordinance, trust, indenture or other agreement or
document, which would adversely affect either immediately or
contingently the payment of dividends on such Securities;
(d) that the price of any such Securities has declined to such
an extent, or such other market or credit factor exists, that in the
opinion of the Depositor the retention of such Securities would be
detrimental to the Trust and to the interest of the Unit Holders;
(e) that there has been a default in the payment of principal
or par or stated value of, premium, if any, or income on any other
outstanding securities of the issuer or the guarantor of such
securities which might materially and adversely, either immediately or
contingently, affect the declaration or payment of dividends on the
Securities; and
(f) that the tax treatment of the Trust as a grantor trust
would otherwise be jeopardized.
Upon receipt of such direction from the Depositor, upon which
the Trustee shall rely, the Trustee shall proceed to sell the specified
Securities in accordance with such direction. The Trustee shall not be liable or
responsible in any way for depreciation or loss incurred by reason of any sale
made pursuant to any such direction or by reason of the failure of the Depositor
to give any such direction, and in the absence of such direction the Trustee
shall have no duty to sell any Securities under this Section 3.08. The Depositor
shall not be
<PAGE>
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liable for errors of judgment in directing or failing to direct the Trustee
pursuant to this Section 3.08.
The Trustee shall sell any options, warrants or other rights
to purchase securities distributed to the Trust in respect of Securities, as
soon as is practicable after receipt of such options, warrants or other rights,
unless otherwise directed by the Depositor.
Section 3.09. NOTICE AND SALE BY TRUSTEE: If at any time there
has been a failure by the issuer to pay a dividend that is due and payable, the
Trustee shall notify the Depositor thereof. If within thirty days after such
notification the Trustee has not received any instruction from the Depositor to
sell or to hold or to take any other action in connection with such Securities,
the Trustee shall sell such Securities forthwith, and the Trustee shall not be
liable or responsible in any way for depreciation or loss incurred by reason of
such sale or by reason of any action or inaction in accordance with such written
instructions of the Depositor. The Trustee shall promptly notify the Depositor
of such action in writing and shall set forth therein the Securities sold and
the proceeds received therefrom.
Section 3.10. REFUNDING OF SECURITIES: In the event that an
offer by the issuer of any of the Securities or any other party shall be made to
issue new Securities, the Trustee shall reject such offer. However, should any
exchange or substitution be effected notwithstanding such rejection or without
an initial offer, any Securities, cash and/or property received in exchange
shall be deposited hereunder and shall be promptly sold, if securities or
property, by the Trustee. The cash then remaining shall be distributed to Unit
Holders on the next Distribution Date in the manner set forth in Section 3.05
regarding distributions from the Principal Account.
Within five days after such deposit, notice of such exchange
and deposit shall be given by the Trustee to each Unit Holder, including an
identification of the Securities eliminated and the Securities substituted
therefor.
Section 3.11. NOTICE OF ACTIONS: In the event that the Trustee
shall have been notified at any time of any action to be taken or proposed to be
taken by holders of any Securities held by the Trust (including, but not limited
to, the making of any demand, direction, request, giving of any notice, consent
or waiver or the voting with respect to election of directors or any amendment
or supplement to any corporate resolution, agreement or other instrument under
or pursuant to which
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such Securities have been issued) the Trustee shall promptly notify the
Depositor and shall thereupon take such action or refrain from taking any action
as the Depositor shall in writing direct; PROVIDED, HOWEVER, that if the
Depositor shall not within five Business Days of the giving of such notice to
the Depositor direct the Trustee to take or refrain from taking any action, the
Trustee shall take such action as it, in its sole discretion, shall deem
advisable. Neither the Depositor nor the Trustee shall be liable to any person
for any action or failure to take action with respect to this section.
Section 3.12. EXTRAORDINARY DISTRIBUTIONS: Any property
received by the Trustee after the initial date of Deposit in a form other than
cash or additional shares of the Securities listed on Schedule A or of a
Replacement Security or otherwise deposited pursuant to 2.06 hereof, shall
either be sold and the proceeds of sale credited to the Principal Account of the
Trust, or distributed as the Depositor may direct. In no event shall the Trustee
hold as part of the Trust, except temporarily pending sale or distribution as
described in the preceding sentence, any property other than cash (including a
letter of credit), Securities described on Schedule A or a Replacement Security
or a Security otherwise deposited pursuant to Section 2.06 hereof.
The Securities and cash represented by a Unit shall be uniform
so that each Unit shall at all times represent property identical to that
represented by every other Unit. Securities identical to those represented by a
Unit and received as the result of a stock dividend or stock split may be
retained in the Trust and the number of shares of such a Security represented by
a Unit adjusted accordingly. All other non-cash distributions in respect of any
Securities held in the Trust shall be sold or distributed to Unit Holders.
Section 3.13. INVESTMENT RESTRICTIONS: With respect to series
designated "Utility Stock Series," the Depositor hereby agrees that it will not
deposit Securities in any series of the Trust, if such deposit would cause the
Trust (including all prior series of the utility stock series) to be the holder
of 5% or more of the outstanding voting securities of any one issuer of
Securities of, or otherwise cause the Trust to be deemed an "affiliate" of, a
public utility company, as defined in the Public Utility Holding Company Act of
1935 (the "1935 Act") or in any way cause the Trust to be in violation of the
1935 Act.
<PAGE>
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ARTICLE IV
EVALUATION OF SECURITIES
Section 4.01. EVALUATION OF SECURITIES: The Trustee shall
determine separately and promptly furnish to the Depositor upon request the
value of each issue of the Securities in the Trust (determined as set forth
below) as of the Evaluation Time on each of the days on which the Trustee shall
make the Trust Evaluation required by Section 5.01. In making the evaluations
the Trustee may determine the value of each issue of the Securities in the Trust
by the following methods, or any combination thereof, which it deems
appropriate. If the Securities are listed on one or more national securities
exchanges, such valuation shall be based on the closing price on such Exchange
which is the principal market thereof and which shall be deemed to be the New
York Stock Exchange if the Securities are listed thereon (unless the Trustee
deems such price inappropriate as a basis for valuation). If the Securities are
not so listed, or, if so listed and the principal market therefor is other than
such exchange or there is no closing price on such exchange, such valuation
shall be based on the closing price in the over-the-counter market (unless the
Trustee deems such price inappropriate as a basis for valuation) or if there is
no such closing price, by any of the following methods which the Trustee deems
appropriate: (i) on the basis of current bid prices of such Securities as
obtained from investment dealers or brokers (including the Depositor) who
customarily deal in securities comparable to those held by the Trust, or (ii) if
bid prices are not available for any of such Securities, on the basis of bid
prices for comparable securities, or (iii) by appraisal of the value of the
Securities on the bid side of the market or by such other appraisal as is deemed
appropriate, or (iv) by any combination of the above. The Trustee shall also
make an evaluation of the Securities deposited in the Trust as of the time said
Securities are deposited under this Indenture. Such evaluation shall be made on
the same basis as set forth above. The Trustee's determination of the bid prices
of the Securities on the date of deposit shall be included in the Schedules
attached to the Reference Trust Agreement.
If the Securities to be evaluated are Restricted Securities,
among the factors the Trustee will consider in determining the value of such
Securities are (a) an estimate of the existence and extent of any market
therefor, (b) the estimated period of time during which such Securities will not
be freely marketable, (c) the estimated expenses, if any, to the Trust of
registering or otherwise qualifying such Securities for public
<PAGE>
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sale, (d) estimated underwriting commissions if underwriting would be required
to effect a sale, (e) the current dividends on comparable securities, and (f)
changes in the financial conditions and prospects of, and other factors
affecting, the issuer.
Section 4.02. TAX REPORTS: For the purpose of permitting Unit
Holders to satisfy any reporting requirements of applicable Federal or State tax
law, the Trustee shall transmit to any Unit Holder upon written request any
determinations made by the Trustee pursuant to Section 4.01.
Section 4.03. LIABILITY OF THE TRUSTEE: The Depositor and Unit
Holders may rely on any evaluation furnished by the Trustee and shall have no
responsibility for the accuracy thereof. The determinations made by the Trustee
hereunder shall be made in good faith upon the basis of the best information
available to it. The Trustee shall be under no liability to the Depositor or
Unit Holders for errors in judgment, provided, however, that this provision
shall not protect the Trustee against any liability to which it would otherwise
be subject by reason of willful misfeasance, bad faith or gross negligence in
the performance of its duties or by reason of its reckless disregard of its
obligations and duties hereunder. The Trustee shall not be liable or responsible
for depreciation or losses incurred by reason of the purchase, sale or retention
of any Securities.
ARTICLE V
TRUST EVALUATION, REDEMPTION,
TRANSFER, INTERCHANGE OR REPLACEMENT
OF CERTIFICATES
Section 5.01. TRUST EVALUATION: The Trustee shall make an
evaluation of the Trust as of the Evaluation Time (i) on the last Business Day
of each of the months of June and December, (ii) on the day on which any Unit of
the Trust is tendered for redemption (unless tender is made after the Evaluation
Time on such day, in which case tender shall be deemed to have been made on the
next day subsequent thereto on which the New York Stock Exchange is open for
trading), and (iii) on any other day desired by the Trustee or requested by the
Depositor. Such evaluations shall take into account and itemize separately
(a)(1) the cash on hand in the Trust (other than monies on deposit in the
Reserve Account, funds deposited on the date hereof by the Depositor for the
purchase of Securities and not
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theretofore credited to the Principal Account pursuant to Section 3.03 and funds
in the Principal Account with respect to which contracts for the purchase of the
Replacement Securities have been entered into pursuant to Section 3.07 hereof),
including dividends receivable on stocks trading ex dividend, (a)(2) the value
of each issue of the Securities in the Trust as determined by the Trustee
pursuant to Section 4.01, and (a)(3) all other assets of the Trust. For each
such evaluation there shall be deducted from the sum of the above (b)(1) amounts
representing any applicable taxes or other governmental charges payable out of
the Trust and for which no deductions shall have previously been made for the
purpose of addition to the Reserve Account, (b)(2) amounts representing accrued
fees of the Trustee and expenses of the Trust including but not limited to
unpaid fees of the Trustee and expenses of the Trust (including legal and
auditing expenses), accrued fees and expenses of the Depositor and its
respective successors, if any, and (b)(3) cash held for distribution to Unit
Holders of record as of a date on or prior to the evaluation then being made.
The value of the pro rata share of each Unit of the Trust determined on the
basis of any such evaluation shall be referred to herein as the "Unit Value."
The Trustee shall promptly advise the Depositor of each
determination of Unit Value made by it as above provided, and, in addition, upon
each evaluation by the Trustee under Section 4.01 other than those involved in
such calculations of Unit Value, the Trustee shall promptly furnish to the
Depositor, for purposes of assisting it in maintaining a market in the Units,
with such information regarding the Principal, Income and Reserve Accounts as
the Depositor may reasonably request.
Section 5.02. REDEMPTIONS BY TRUSTEE; PURCHASES BY DEPOSITOR:
Any Unit or Units tendered for redemption by a Unit Holder or his duly
authorized attorney to the Trustee at its unit investment trust office in the
City of New York shall be redeemed by the Trustee on the seventh calendar day
following the day on which tender for redemption is made, provided that if such
day of redemption is not a Business Day, then such Unit shall be redeemed on the
first Business Day prior thereto (being herein called the "Redemption Date").
Units in uncertificated form shall be tendered by means of an appropriate
request for redemption in form approved by the Trustee. Unit Holders must sign
exactly as their name appears on the register with the signature guaranteed by
an officer of a national bank or trust company, or by a member firm of either
the New York, Midwest, or Pacific Coast Stock Exchanges, or in such other manner
as may be acceptable to the Trustee. The Trustee may
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also require additional documents such as, but not limited to, trust
instruments, certificates of death, appointments as executor or administrator or
certificates of corporate authority. Subject to payment by such Unit Holder of
any tax or other governmental charges which may be imposed thereon, such
redemption is to be made by payment on the Redemption Date of cash equivalent to
the Unit Value, determined by the Trustee as of the close of trading on the New
York Stock Exchange, on the date of tender (the "Tender Date") (such Unit Value,
the "Redemption Price"). Units received for redemption by the Trustee on any
date after the Evaluation Time will be held by the Trustee until the next
Business Day on which the New York Stock Exchange is open for trading and will
be deemed to have been tendered on such day for redemption at the Redemption
Price computed on that day.
The Depositor shall maintain with the Trustee a current list
of Securities held in the Trust designated to be sold for the purpose of
redemption of Units of the Trust, and for payment of expenses hereunder;
PROVIDED that if the Depositor shall for any reason fail to maintain such a
list, the Trustee, in its sole discretion, may designate a current list of
Securities for such purposes. Unless otherwise directed by the Depositor, the
Trustee shall select Securities from the current list to be sold so as to
maintain, as closely as practicable, the original proportionate relationship
between the number of shares of each Security in the Trust. The net proceeds of
any sales of Securities from such list shall be credited to the Principal
Account of the Trust and paid therefrom, to the extent necessary in accordance
with this Section and otherwise distributed pursuant to this Indenture. In the
case of a Trust which is holding Restricted Securities, the Trustee shall sell
such Securities as shall not result in Restricted Securities constituting more
than 50% in value of the Securities remaining in the Trust upon the completion
of such sale or result in the Trust holding less than $250,000 in value of any
Restricted Security; PROVIDED, HOWEVER, that the Depositor shall use its best
efforts to ensure that such sale shall not result in Restricted Securities
constituting more than 40% in value of the Securities remaining in the Trust
upon completion of such sale, it being understood that sales of unrestricted
Securities may be made if the Depositor's best efforts with regard to the timely
sale of Restricted Securities at prices it deems reasonable are unsuccessful if
as a result of such sales more than 50% in value of the Trust does not consist
of Restricted Securities.
Notwithstanding the foregoing, any Unit Holder tendering for
redemption at least the number of Units specified in
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the Reference Trust Agreement for "in-kind" distribution either during the life
of the Trust or in connection with the termination of the Trust, may elect, by
notifying the Trustee of such election, if permitted, or may be required by the
Depositor, to receive Securities in kind. A Unit Holder choosing in-kind
distribution will receive such distribution no later than the Redemption Date
subject to payment by such Unit Holder of any tax or governmental charges which
may be imposed thereon. This distribution shall consist of such Unit Holder's
pro rata portion of each of the Securities in whole shares based on the number
of Units owned as of the Tender Date plus the Unit Holder's pro rata share of
the balances in the Income and Principal Accounts. In addition, the Trustee
shall distribute no later than the Redemption Date (or if such date is not a
Business Day, then the first Business Day prior thereto), cash equal to the
value of any fractional shares included in such Unit Holder's pro rata portion
of the Securities as of the Tender Date.
The Depositor shall provide the Trustee with a list of
Securities held in the Trust designated to be sold for the purpose of satisfying
amounts for the payment of cash equal to the value of fractional shares;
provided that if the Depositor shall for any reason fail to provide such a list,
the Trustee, in its sole discretion, may designate a list of Securities for such
purposes. The excess proceeds of any sales of Securities from such list shall be
credited to the Principal Account. The Trustee shall not be liable or
responsible in any way for depreciation or loss incurred by reason of any sale
or sales made in accordance with this Section 5.02. The portion of the
Redemption Price which represents the Unit Holder's interest in the Income
Account shall be withdrawn from the Income Account to the extent available. The
balance paid on any redemption, including dividends receivable on stocks trading
ex dividend, if any, shall be withdrawn from the Principal Account to the extent
that funds are available for such purpose. If such available balance shall be
insufficient, the Trustee shall advance funds sufficient to pay such amount to
the Unit Holder and shall be entitled to reimbursement of such advance upon the
deposit of additional monies in the Income Account or Principal Account,
whichever happens first. Should any amounts so advanced with respect to declared
but unreceived dividends become uncollectable because of default in payment of
such dividends, the Trustee shall have the right immediately to liquidate
Securities in an amount sufficient to reimburse itself for such advances,
without interest. In the event that funds are withdrawn from the Principal
Account for payment of any portion of the Redemption Price representing
dividends receivable on stocks trading ex dividend, the Principal Account shall
be re-
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imbursed when sufficient funds are next available in the Income Account for such
funds so applied. If the proceeds from such sales from the current list of
Securities exceed the amount necessary for payment of Units redeemed, such
excess proceeds will be credited to the Principal Account.
The Trustee may in its discretion, and shall when so directed
by the Depositor, suspend the right of redemption or postpone the date of
payment of the Redemption Price for more than seven calendar days following the
day on which tender for redemption is made (1) for any period during which the
New York Stock Exchange is closed other than customary weekend and holiday
closings or during which trading on the New York Stock Exchange is restricted;
(2) for any period during which an emergency exists as a result of which
disposal by the Trust of the Securities is not reasonably practicable or it is
not reasonably practicable fairly to determine in accordance herewith the value
of the Securities; or (3) for such other period as the Securities and Exchange
Commission may by order permit. The Trustee shall not be liable to any person or
in any way for any loss or damage which may result from any such suspension or
postponement.
Not later than the close of business on the day any Unit is
tendered for redemption by a Unit Holder other than the Depositor, the Trustee
shall notify the Depositor of such tender. The Depositor shall have the right to
purchase such Unit by notifying the Trustee of its election to make such
purchase no later than the close of business on the next Business Day following
such tender. Such purchase shall be made by payment for such Unit by the
Depositor to the Unit Holder not later than the close of business on the
Redemption Date of an amount not less than the Redemption Price which would
otherwise be payable by the Trustee to such Unit Holder.
Any Unit so purchased by the Depositor may at the option of
the Depositor be tendered to the Trustee for redemption at the unit investment
trust office of the Trustee in the manner provided in the first paragraph of
this Section 5.02.
The Trustee shall not be liable or responsible in any way for
depreciation or loss incurred by reason of any sale or redemption of Securities
made pursuant to Sections 5.02.
The Trustee will transfer the Securities to be delivered
in-kind to the account of, and for disposition in accordance with the
instructions of, the Unit Holder.
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Section 5.03. TRANSFER OR INTERCHANGE OF CERTIFICATES: A
Certificate (and the Units it represents) may be transferred by the registered
holder thereof by presentation and surrender of such Certificate at the unit
investment trust office of the Trustee properly endorsed or accompanied by a
written instrument or instruments of transfer in form satisfactory to the
Trustee and executed by the Unit Holder or his authorized attorney, whereupon a
new registered Certificate or Certificates for the same number of Units of the
Trust executed by the Trustee and the Depositor will be issued in exchange and
substitution therefor. Certificates issued pursuant to this Indenture are
interchangeable for one or more other Certificates in an equal aggregate number
of Units of the Trust and all Certificates issued shall be issued in
denominations of one Unit or any multiple thereof as may be requested by the
Unit Holder.
The Trustee may deem and treat the person in whose name any
Certificate shall be registered upon the books of the Trustee as the owner of
such Certificate for all purposes hereunder, and the Trustee shall not be
affected by any notice to the contrary, nor be liable to any person or in any
way for so deeming and treating the person in whose name any Certificate shall
be so registered.
A sum sufficient to pay any tax or other governmental charge
that may be imposed in connection with any such transfer or interchange shall be
paid by the Unit Holder to the Trustee. The Trustee may require a Unit Holder to
pay $2.00 for each new Certificate issued on any such transfer or interchange.
All Certificates cancelled pursuant to this Indenture shall be
disposed of by the Trustee without liability on its part.
Section 5.04. CERTIFICATES MUTILATED, DESTROYED, STOLEN OR
LOST: In case any Certificate shall become mutilated or be destroyed, stolen or
lost, the Trustee shall execute and deliver a new Certificate in exchange and
substitution therefor upon the holder's furnishing the Trustee with proper
identification and indemnity satisfactory to the Trustee, complying with such
other reasonable regulations and conditions as the Trustee may prescribe and
paying such expenses as the Trustee may incur. Any mutilated Certificate shall
be duly surrendered and cancelled before any new Certificate shall be issued in
exchange and substitution therefor. Upon the issuance of any new Certificate a
sum sufficient to pay any tax or other governmental charge will be imposed and
payment of the fees and expenses of the Trustee may be required. Any such new
Certificate is-
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sued pursuant to this Section shall constitute complete and indefeasible
evidence of ownership in the Trust, as if originally is sued, whether or not the
lost, stolen or destroyed Certificate shall be found at any time.
In the event the Trust has terminated or is in the process of
termination, the Trustee may, instead of issuing a new Certificate in exchange
and substitution for any Certificate which shall have become mutilated or shall
have been destroyed, stolen or lost, make the distributions in respect of such
mutilated, destroyed, stolen or lost Certificate (without surrender thereof
except in the case of a mutilated Certificate) as provided in Section 9.03
hereof if the Trustee is furnished with such security or indemnity as it may
require to save it harmless, and in the case of destruction, loss or theft of a
Certificate, evidence to the satisfaction of the Trustee of the destruction,
loss or theft of such Certificate and of the ownership thereof.
ARTICLE VI
TRUSTEE
Section 6.01. GENERAL DEFINITION OF TRUSTEE'S LIABILITIES,
RIGHTS AND DUTIES: In addition to and notwithstanding the other duties, rights,
privileges and liabilities of the Trustee as otherwise set forth, the
liabilities of the Trustee are further defined as follows:
(a) all monies deposited with or received by the Trustee
hereunder shall be held by it without interest in trust as part of the
Trust until required to be disbursed in accordance with the provisions
of this Indenture and such monies will be segregated by separate
recordation on the trust ledger of the Trustee so long as such practice
preserves a valid preference under applicable law, or if such
preference is not so preserved the Trustee shall handle such monies in
such other manner as shall constitute the segregation and holding
thereof in trust within the meaning of the Investment Company Act of
1940;
(b) the Trustee shall be under no liability for any action
taken in good faith on any appraisal, paper, order, list, demand,
request, consent, affidavit, notice, opinion, direction, evaluation,
endorsement, assignment, resolution, draft or other document whether or
not of the same kind prima facie properly executed; or for the
disposition
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of monies, Securities or Units pursuant to this Indenture; or in
respect of any evaluation which it is required to make or is required
or permitted to have made by others under this Indenture; or otherwise,
except by reason of its own willful misfeasance, bad faith or gross
negligence in the performance of its duties or by reason of its
reckless disregard of its obligations and duties hereunder. The parties
hereto may construe any of the provisions of this Indenture, insofar as
the same may appear to be ambiguous or inconsistent with any other
provisions hereof which construction shall be binding upon the Unit
Holders and the parties hereto. The Trustee shall be under no liability
for any construction of any such provisions hereof;
(c) the Trustee shall not be responsible for or in respect of
the recitals herein, the validity or sufficiency of this Indenture or
for the due execution hereof by the Depositor, or for the form,
character, genuineness, sufficiency, value or validity of any
Securities, or for or in respect of the validity or sufficiency of the
Certificates or the due execution thereof by the Depositor, and the
Trustee shall in no event assume or incur any liability, duty or
obligation to any Unit Holder or the Depositor other than as expressly
provided for herein. The Trustee shall not be responsible for or in
respect of the validity of any signatures by or on behalf of the
Depositor;
(d) the Trustee shall be under no obligation to appear in,
prosecute or defend any action which in its opinion may involve it in
expense or liability, unless as often as required by the Trustee, it
shall be furnished with reasonable security and indemnity against such
expense or liability, and any pecuniary cost to the Trustee from such
actions shall be deductible from and a charge against the Income and
Principal Accounts of the Trust. Subject to the foregoing, the Trustee
shall in its discretion undertake such action as it may deem necessary
at any and all times to protect the Trust and the rights and interests
of the Unit Holders pursuant to the terms of this Indenture, PROVIDED,
HOWEVER, that the expenses and costs of such actions, undertakings or
proceedings shall be reimbursable to the Trustee from the Income and
Principal Accounts, and the payment of such costs and expenses shall be
secured by a lien on the Trust prior to the interests of the Unit
Holders;
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(e) the Trustee may employ agents, attorneys, accountants and
auditors and shall not be answerable for the default or misconduct of
any such agents, attorneys, accountants or auditors if such agents,
attorneys, accountants or auditors shall have been selected with
reasonable care; PROVIDED, HOWEVER, that if the Trustee chooses to
employ the Depository Trust Company in connection with the storage and
handling of, and the furnishing of administrative services in
connection with the Securities, the Trustee will be answerable for any
default or misconduct of the Depository Trust Company and its employees
and agents as fully and to the same extent as if such default or
misconduct had been committed or occasioned by the Trustee. The Trustee
shall be fully protected in respect of any action under this Agreement
taken, or suffered, in good faith by the Trustee, in accordance with
the opinion of its counsel. The accounts of the Trust shall be audited
not less frequently than annually by independent certified public
Accountants designated from time to time by the Depositor, and the
reports of such accountants shall be furnished by the Trustee to Unit
Holders upon request. The fees and expenses charged by such agents,
attorneys, accountants or auditors shall constitute an expense of the
Trust reimbursable from the Interest and Principal Accounts as set
forth in Section 6.04 hereof;
(f) if the Depositor shall resign pursuant to Section 8.04
hereof or shall fail to undertake or perform any of the duties which by
the terms of this Indenture are required by it to be undertaken or
performed or if the Depositor shall be dissolved or become incapable of
acting or shall be adjudged a bankrupt or insolvent, or a receiver of
the property of the Depositor shall be appointed or any public officer
shall take charge or control of the Depositor or its property or
affairs for the purpose of rehabilitation, conservation or liquidation,
then in any such case, the Trustee may: (1) appoint a successor
depositor meeting the qualifications set forth in Section 8.03 who
shall act hereunder in all respects in place of the Depositor which
successor shall be satisfactory to the Trustee, and which may be
compensated at the times specified in Section 3.05 at rates deemed by
the Trustee to be reasonable under the circumstances, by deduction from
the Income Account of the Trust or, to the extent funds are not
available in such Account, from the Principal Account of the Trust but
no such deduction shall be made exceeding such reasonable amount as the
Securities and Exchange Commission may prescribe in accordance with
Section 26(a)(2)(C) of the Investment Company Act of 1940, or
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(2) terminate this Indenture and the trust created hereby and liquidate
the Trust in the manner provided in Section 9.03;
(g) (1) if at any time the value of the Trust including
supplemental deposits, if any, of Securities theretofore in the Trust
as shown by any Trust Evaluation shall be less than the liquidation
amount specified in clause (2) of this subsection (g), the Trustee may
in its discretion, and shall if so directed by the Depositor, terminate
this Indenture and the trust created hereby and liquidate the Trust all
in the manner provided in Section 9.03. If at any time the value of the
Trust shall be less than 20% of the value of the Securities in the
Trust determined as of the date on which the most recent deposit of
Securities occurred, the Trustee shall liquidate the Trust in the
manner provided in Section 9.03;
(2) the liquidation amount referred to in clause (1) of this
subsection (g) shall be 40% of the value of the Securities in the Trust
determined as of the date on which the most recent deposit of
Securities occurred;
(h) the Trustee is authorized and empowered, at the request
and direction of the Depositor, to execute and file on behalf of the
Trust any and all documents, in connection with the consents to service
of process, required to be filed under the securities laws of the
various States in order to permit the sale of Units of the Trust in
such States by the Depositor;
(i) in no event shall the Trustee be liable for any taxes or
other governmental charges imposed upon or in respect of the Securities
or upon the dividends thereon or upon it as Trustee hereunder or upon
or in respect of the Trust which it may be required to pay under any
present or future law of the United States of America or of any other
taxing authority having jurisdiction in the premises. For all such
taxes and charges and for any expenses, including counsel fees, which
the Trustee may sustain or incur with respect to such taxes or charges,
the Trustee shall be reimbursed and indemnified out of the Reserve
Account and/or the Income and Principal Accounts of the Trust, and the
payment of such amounts so paid by the Trustee shall be secured by a
lien on the Trust prior to the interests of the Unit Holders;
(j) the Trustee except by reason of its own gross negligence,
bad faith or willful misconduct shall not be
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liable for any action taken, omitted or suffered to be taken by it in
good faith and believed by it to be authorized or within the discretion
or rights or powers conferred upon it by this Indenture; and
(k) so long as shall be required by Section 26(a)(2)(C) of the
Investment Company Act of 1940, no payment to the Depositor or to any
principal underwriter (as defined in such Act) for the Trust or to any
affiliated person (as so defined) or agent of the Depositor or such
underwriter shall be allowed the Trustee as an expense except for
payment not in excess of reasonable amounts as compensation for
performing bookkeeping and other administrative services of a character
normally performed by the Trustee itself.
Section 6.02. BOOKS, RECORDS AND REPORTS: The Trustee shall
keep proper books of record and account of all the transactions under this
Indenture and keep a register described in Section 2.07 at its unit investment
trust office, and such books, records and register shall be open to inspection
by any Unit Holder at all reasonable times during the usual business hours of
the Trustee.
The Trustee shall make such annual or other reports as may
from time to time be required under any applicable state or federal statute or
rule or regulation thereunder.
Section 6.03. INDENTURE AND LIST OF SECURITIES ON FILE: The
Trustee shall keep a certified copy or duplicate original of this Indenture
(including the Reference Trust Agreement) on file at its unit investment trust
office available for inspection at all reasonable times during the usual
business hours by any Unit Holder, together with a current list of the
Securities.
Section 6.04. COMPENSATION OF TRUSTEE: For services performed
under this Indenture the Trustee shall be paid an annual fee in an amount set
forth in the Reference Trust Agreement. Such compensation shall accrue daily and
be payable on each Record Date in an amount equal to one-twelfth, one-fourth or
one-half (based on the number of Trust distributions) of the estimated annual
compensation of the Trustee and shall be computed on the basis of the greatest
amount of Units in the Trust at any time during the period with respect to which
such compensation is being computed. The Trustee may from time to time adjust
its compensation as set forth above; PROVIDED, HOWEVER, that total adjustment
upward does not, at the time of such adjustment, exceed the percentage of the
total increase, after
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the date hereof, in consumer prices for services as measured by the United
States Department of Labor Consumer Price Index entitled "All Services Less
Rent" or, if such Index is no longer published, in a similar index as determined
by the Trustee and Depositor. FURTHER PROVIDED, HOWEVER, that the right of the
Trustee to increase its fees shall not be cumulative and, if not exercised by
the Trustee for any calendar year, shall be deemed waived for such calendar
year. No exercise of its right to such increase shall be effective unless made
by the Trustee by means of notification to the Depositor within 60 days
following the publication of the annual consumer price information referred to
above. The consent or concurrence of any Unit Holder shall not be required for
any such adjustment or increase. Such compensation shall be deemed to provide
only for the usual normal and proper functions undertaken as Trustee pursuant to
this Indenture and, in addition, the Trustee may charge, to the extent then
lawful, the Income and Principal Accounts of the Trust for any and all expenses
(including, but not limited to legal, auditing and printing expenses of
maintaining registration or qualification of the Units and/or the Trust under
Federal or state securities laws subsequent to initial registration so long as
the Depositor is maintaining a market for the Units, and including the fees of
counsel which may be retained by the Trustee in connection with its activities
hereunder, and disbursements incurred hereunder including all expenses in
connection with the transfer and registration in the name of the distributee of
Securities distributed in-kind and additional compensation for any extraordinary
services performed by the Trustee hereunder). The Trustee shall be indemnified
and held harmless against any loss or liability accruing to it without gross
negligence, bad faith or willful misconduct on its part, arising out of or in
connection with the acceptance or administration of this Trust, including the
costs and expenses (including counsel fees) of defending itself against any
claim of liability in the premises. If the cash balances in the Income and
Principal Accounts shall be insufficient to provide for amounts payable pursuant
to this Section 6.04 the Trustee shall have the power to sell (i) Securities
from the current list of Securities designated to be sold pursuant to Section
5.02 hereof, or (ii) if no such Securities have been so designated, such
Securities as the Trustee may see fit to sell in its own discretion, and to
apply the proceeds of any such sale in payment of the amounts payable pursuant
to this Section 6.04. The Trustee shall promptly notify the Depositor of such
action in writing and shall set forth therein the Securities sold and the
proceeds received therefrom. The Trustee shall not be liable or responsible in
any way for depreciation or loss incurred by reason of any sale of Securities
made pursuant to this Section 6.04. Any monies payable to the
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Trustee pursuant to this Section shall be secured by a lien on the Trust prior
to the interests of the Unit Holders.
Section 6.05. REMOVAL AND RESIGNATION OF TRUSTEE; SUCCESSOR:
The following provisions shall provide for the removal and resignation of the
Trustee and the appointment of any successor trustee:
(a) the Trustee or any trustee or trustees hereafter appointed
may resign and be discharged of the trusts created by this Indenture,
by executing an instrument in writing resigning as Trustee of the Trust
and filing the same with the Depositor and mailing a copy of a notice
of resignation to all Unit Holders then of record, not less than sixty
days before the date specified in such instrument when, subject to
Section 6.05(e), such resignation is to take effect. Upon receiving
such notice of resignation, the Depositor shall promptly appoint a
successor trustee as hereinafter provided, by written instrument, in
duplicate, one copy of which shall be delivered to the resigning
Trustee and one copy to the successor trustee. If at any time the
Trustee shall become incapable of acting, or shall have an order of
relief entered with respect to it, or a receiver of the Trustee or of
its property shall be appointed, or any public officer shall take
charge or control of the Trustee or of its property or affairs for the
purposes of rehabilitation, conservation or liquidation, or, in the
event the Depositor determines that the Trustee has materially failed
to perform its duties under this Indenture and the interest of Unit
Holders has been substantially impaired as a result, and such failure
has continued for a period of sixty days following the Trustee's
receipt of notice of such determination by the Depositor, then in any
such case the Depositor may remove the Trustee and appoint a successor
trustee by written instrument, in duplicate, one copy of which shall be
delivered to the Trustee so removed and one copy to the successor
trustee; PROVIDED that a notice of such removal and appointment of a
successor trustee shall be mailed by the Depositor to each Unit Holder
then of record;
(b) any successor trustee appointed hereunder shall execute,
acknowledge and deliver to the Depositor and to the retiring Trustee an
instrument accepting such appointment hereunder, and such successor
trustee without any further act, deed or conveyance shall become vested
with all the rights, powers, duties and obligations of its predecessor
hereunder with the like effect as if originally named Trustee herein
and shall be bound by all the
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terms and conditions of this Indenture. Upon the request of such
successor trustee, the retiring Trustee shall, upon payment of any
amounts due the retiring Trustee, or provision therefor to the
satisfaction of such retiring Trustee, execute and deliver an
instrument acknowledged by it transferring to such successor trustee
all the rights and powers of the retiring Trustee; and the retiring
Trustee shall transfer, deliver and pay over to the successor trustee
all Securities and monies at the time held by it hereunder, together
with all necessary instruments of transfer and assignment or other
documents properly executed necessary to effect such transfer and such
of the records or copies thereof maintained by the retiring Trustee in
the administration hereof as may be requested by the successor trustee,
and shall thereupon be discharged from all duties and responsibilities
under this Indenture. The retiring Trustee shall, nevertheless, retain
a lien upon all Securities and monies at the time held by it hereunder
to secure any amounts then due the retiring Trustee;
(c) in case at any time the Trustee shall resign and no
successor trustee shall have been appointed or, if appointed, shall not
have accepted appointment within thirty days after notice of
resignation has been received by the Depositor, the retiring Trustee
may forthwith apply to a court of competent jurisdiction for the
appointment of a successor trustee. Such court may thereupon, after
such notice, if any, as it may deem proper and prescribe, appoint a
successor trustee;
(d) any corporation into which any Trustee hereunder may be
merged or with which it may be consolidated, or any corporation
resulting from any merger or consolidation to which any Trustee
hereunder shall be a party, or any corporation succeeding to all or
substantially all of the business of the Trustee shall be the successor
trustee under this Indenture without the execution or filing of any
paper, instrument or further act to be done on the part of the parties
hereto; anything herein or in any agreement relating to such merger or
consolidation, by which any such trustee may seek to retain certain
powers, rights and privileges theretofore obtaining for any period of
time following such merger or consolidation, to the contrary
notwithstanding; and
(e) any resignation or removal of the Trustee and appointment
of a successor trustee pursuant to this Section shall become effective
only upon acceptance of ap-
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pointment by the successor trustee as provided in subsection (b)
hereof.
Section 6.06. QUALIFICATIONS OF TRUSTEE: The Trustee shall be
a corporation organized and doing business under the laws of the United States
or any state thereof which is authorized under such laws to exercise corporate
trust powers and having at all times an aggregate capital, surplus, and
undivided profits of not less than $5,000,000.
ARTICLE VII
RIGHTS OF UNIT HOLDERS
Section 7.01. BENEFICIARIES OF TRUST: By the purchase and
acceptance or other lawful delivery and acceptance of a Unit of the Trust the
Unit Holder shall be deemed to be a beneficiary of such Trust and vested with
all rights, title and interest in the Trust to the extent of the Unit or Units
owned, subject to the terms and conditions of this Indenture.
Section 7.02. RIGHTS, TERMS AND CONDITIONS: In addition to the
other rights and powers set forth in the other provisions and conditions of this
Indenture the Unit Holders shall have the following rights and powers and shall
be subject to the following terms and conditions:
(a) a Unit Holder may at any time prior to the Trustee's close
of business on the date on which the Trust is terminated redeem his
Units in accordance with Section 5.02;
(b) the death or incapacity of any Unit Holder shall not
operate to terminate this Indenture or the Trust, 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,
nor otherwise affect the rights, obligations and liabilities of the
parties hereto or any of them. Each Unit Holder expressly waives any
right he may have under any rule of law, or the provisions of any
statute, or otherwise, to require the Trustee at any time to account,
in any manner other than as expressly provided in this Indenture, in
respect of the Securities or monies from time to time received, held
and applied by the Trustee hereunder; and
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(c) no Unit Holder shall have any right to vote or in any
manner otherwise control the operation and management of the Trust, or
the obligations of the parties hereto, nor shall anything herein set
forth be construed so as to constitute the Unit Holders from time to
time as partners or members of any association; nor shall any Unit
Holder ever be under any liability to any third persons by reason of
any action taken by the parties to this Indenture, or any other cause
whatsoever.
ARTICLE VIII
DEPOSITOR
Section 8.01. LIABILITIES; POWER OF ATTORNEY: The Depositor,
or the Depositors if there be more than one, shall be severally liable in
accordance herewith for the obligations imposed upon and undertaken by the
Depositor hereunder, PROVIDED, HOWEVER, that, without in any way affecting or
diminishing such several liability, each Depositor of the Trust shall indemnify
the other Depositors thereof and hold such other Depositors harmless from and
against any and all costs, expenses and liabilities (including attorneys' fees)
which such other Depositors may suffer or incur as a result of or by reason of
any act or failure to act hereunder on the part of the indemnifying Depositor.
At all times prior to the termination of the Trust and while the Depositors
thereof shall continue to act jointly hereunder, there shall be maintained on
file with the Trustee a power of attorney executed in favor of one Depositor by
the other Depositors constituting and appointing the non-executing Depositor the
true and lawful agent and attorney-in-fact of the executing Depositors to
execute and deliver for and on behalf of the executing Depositors any and all
notices, opinions, certificates, lists, demands, directions, instruments, or
other documents provided or permitted to be executed or delivered by the
Depositors hereunder in connection with the Trust or to take any other action in
respect hereof. Such power of attorney shall continue in effect as to the
executing Depositors until written notice of revocation thereof has been given
by such executing Depositors to the Trustee. Prior to receipt of such notice of
revocation the Trustee shall be entitled to rely conclusively upon such power of
attorney as authorizing the non-executing Depositor to give any notice, opinion,
certificate, list, demand, direction, instrument or other document provided for
or permitted hereunder or to take any other action in respect hereof on behalf
of the executing Depositors as to which such power of attorney is in effect.
<PAGE>
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Section 8.02. DISCHARGE: If there be more than one Depositor,
the following provisions shall provide for the discharge of a Depositor and the
liability of the Depositors in the event of the discharge of a Depositor:
(a) in the event that any Depositor shall fail to undertake or
perform any of the duties which by the terms of this Agreement are
required by it to be undertaken or performed and such failure shall
continue for 30 days after notice to the Depositors from the Trustee or
if any Depositor shall become incapable of acting or shall have an
order of relief entered with respect to it, or a receiver of the
property of any Depositor shall be appointed or any public officer
shall take charge or control of any Depositor or its property or
affairs for the purpose of rehabilitation, conservation or liquidation,
then such Depositor shall forthwith be and shall be deemed to be
discharged forever as a Depositor hereunder and thereupon the remaining
Depositors shall act hereunder without the necessity of any other or
further action on its part or on the part of the Trustee;
(b) in the event that the power of attorney referred to in
Section 8.01 shall be revoked by written notice given by an executing
Depositor and it shall not be replaced within one Business Day by
another power of attorney conforming with the requirements of said
Section 8.01, the Depositors of the Trust shall be deemed to have been
unable to reach agreement with respect to action to be taken jointly by
them hereunder in connection with the Trust and thereupon the Depositor
which has revoked the power of attorney executed by it shall be
discharged hereunder upon the expiration of such one-day period and
thereupon the other Depositors shall act hereunder without the
necessity of any other or further action on their part or on the part
of the Trustee; and
(c) notwithstanding the discharge of a Depositor of the Trust
in accordance with this Section 8.02, such Depositor shall continue to
be fully liable in accordance with the provisions hereof in respect of
action taken or refrained from under this Agreement by the Depositors
before the date of such discharge or by the undischarged Depositors
before or after the date of such discharge, as fully and to the same
extent as if no discharge has occurred.
Section 8.03. SUCCESSORS: The covenants, provisions and
agreements herein contained shall in every case be binding
<PAGE>
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upon any successor or successors to any Depositor and shall be binding upon the
General Partners of any Depositor which may be a partnership and upon the
capital interest of the limited partners of any Depositor which may be a
partnership. In the event of the death, resignation or withdrawal of any partner
of any Depositor which may be a partnership, the partner so dying, resigning or
withdrawing shall be relieved of all further liability hereunder if at the time
of such death, resignation or withdrawal such Depositor maintains a net worth
(determined in accordance with generally accepted accounting principles) of at
least $1,000,000. In the event of an assignment by any Depositor to a successor
corporation or partnership as permitted by the next following sentence, such
Depositor and, if such Depositor is a partnership, its partners shall be
relieved of all further liability under this Agreement. Any Depositor may
transfer all or substantially all of its assets to a corporation or partnership
which carries on the business of such Depositor, if at the time of such transfer
such successor duly assumes all the obligations of such Depositor under this
Agreement.
Section 8.04. RESIGNATION: If at any time a Depositor of the
Trust shall desire to resign its position as such a Depositor hereunder, the
Depositor desiring to resign may resign by delivering to the Trustee an
instrument executed by such resigning Depositor and upon such delivery, the
resigning Depositor shall be discharged and shall no longer be liable in any
manner hereunder except as to acts or omissions occurring prior to such
delivery; PROVIDED, HOWEVER, that if upon such resignation there would be no
Depositor then acting, concurrently with or subsequent to such resignation the
Trustee shall proceed as provided in Section 6.01(f).
Section 8.05. ADDITIONAL DEPOSITORS: The Depositor of the
Trust and the Trustee may at any time appoint one or more corporations or
partnerships to act as new Depositor of such Trust, in addition to those
currently serving, by an instrument executed by such Depositor, the Trustee, and
such corporations or partnerships; PROVIDED, HOWEVER, that at the time of such
execution each new Depositor maintains a net worth (determined in accordance
with generally accepted accounting principles) of at least $1,000,000. Upon such
execution, a new Depositor shall be deemed to be a depositor for all purposes
under this Indenture, and the covenants, provisions and agreements herein
contained shall in every case be binding upon such new Depositor and shall be
binding upon the General Partner of any such new Depositor which may be a
partnership and upon the capital interest of the limited partners of any such
new Depositor which may be a partnership, but such new Depositor
<PAGE>
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shall not be liable hereunder for occurrences or omissions prior to the
effective time of execution of such instrument.
Section 8.06. EXCLUSIONS FROM LIABILITY: The following
provisions provide for certain exclusions from the liability of the Depositor:
(a) no Depositor of the Trust shall be under any liability to
any other Depositor of the Trust, such Trust or the Unit Holders
thereof, for any action taken or for refraining from the taking of any
action in good faith pursuant to this Agreement, or for errors in
judgment or liable or responsible in any way for depreciation or loss
incurred by reason of the acquisition or sale of any Securities;
PROVIDED, HOWEVER, that this provision shall not protect the Depositor
against any liability to which it would otherwise be subject by reason
of willful misfeasance, bad faith or gross negligence in the
performance of its duties or by reason of its reckless disregard of its
obligations and duties hereunder. The Depositor of the Trust may rely
in good faith on any paper, order, notice, list, affidavit, receipt,
evaluation, opinion, endorsement, assignment, draft or any other
document of any kind prima facie properly executed and submitted to
them, or any of them, by any other Depositor of the Trust, the Trustee,
counsel to an issuer of a Security, or any other person. The Depositor
shall in no event be deemed to have assumed or incurred any liability,
duty, or obligation to any Unit Holder or the Trustee other than as
expressly provided for herein;
(b) the Depositor shall not be under any obligation to appear
in, prosecute or defend any legal action which in its opinion may
involve it in any expense or liability; PROVIDED, HOWEVER, that the
Depositor may in its discretion undertake any such action which it may
deem necessary or desirable in respect of this Agreement and the rights
and duties of the parties hereto and the interests of the Unit Holders
hereunder; and
(c) none of the provisions of this Agreement shall be deemed
to protect or purport to protect the Depositor of the Trust against any
liability to the Trust or to the Unit Holders thereof or to each other
(if there is more than one Depositor) to which the Depositor would
otherwise be subject by reason of willful misfeasance, bad faith or
gross negligence in the performance of the duties of the Depositor, or
by reason of the Depositor's reckless disre-
<PAGE>
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gard of the obligations and duties of the Depositor under this
Agreement.
Section 8.07. COMPENSATION: The Depositor shall receive at the
times set forth in Section 3.05 as compensation for performing portfolio
supervisory services, such amount, and for such periods, as are specified in the
Reference Trust Agreement. The computation of such compensation shall be made on
the basis of the greatest number of Units in the Trust at any time during which
such compensation is being computed. At no time, however, will the total amount
received by the Depositor for services rendered to all series of the Sears
Equity Investment Trust in any calendar year exceed the aggregate cost to it of
supplying such services in such year except to the extent permitted by law. Such
rate may be increased from time to time, without the consent or approval of any
Unit Holder or the Depositor, by amounts not exceeding the proportionate
increase during the period from the date of such Reference Trust Agreement to
the date of any such increase, in consumer prices as published either under the
classification "All Services Less Rent" in the Consumer Price Index published by
the United States Department of Labor or, if such Index is no longer published,
a similar index.
In the event that any amount of the compensation paid to the
Depositor pursuant to Section 3.05 is found to be an improper charge against the
Trust, the Depositor shall reimburse the Trust in such amount. A charge shall be
considered improper only if a final judgment or order for reimbursement of the
Trust shall be rendered against the Depositor and such judgment or order shall
not be effectively stayed or a final settlement is established in which the
Depositor agrees to reimburse the Trust for amounts paid to the Depositor
pursuant to this Section 8.07.
ARTICLE IX
ADDITIONAL COVENANTS; MISCELLANEOUS PROVISIONS
Section 9.01. AMENDMENTS: This Indenture may be amended from
time to time by the parties hereto or their respective successors, without the
consent of any of the Unit Holders (a) to cure any ambiguity or to correct or
supplement any provision contained herein which may be defective or inconsistent
with any other provision contained herein; (b) to change any provision hereof as
may be required by the Securities and Exchange Commission or any successor
governmental
<PAGE>
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agency exercising similar authority; or (c) to make such other provision in
regard to matters or questions arising hereunder as shall not adversely affect
the interest of the Unit Holders; PROVIDED, that the Indenture may also be
amended from time to time by the parties hereto (or the performance of any of
the provisions of this Indenture may be waived) with the consent of Unit Holders
evidencing 51% of the Units at the time outstanding under the Indenture for the
purpose of adding any provisions to or changing in any manner or eliminating any
of the provisions of this Indenture or of modifying in any manner the rights of
the Unit Holders; PROVIDED FURTHER, HOWEVER, that this Indenture (including any
Reference Trust Agreement) may not be amended (nor may any provision thereof be
waived) so as to (1) increase the number of Units issuable in respect of the
Trust above the aggregate number specified in Part II of the Reference Trust
Agreement or such lesser amount as may be outstanding at any time during the
term of this Indenture, except as the result of the deposit of Additional
Securities, as herein provided, or reduce the relative interest in the Trust of
any Unit Holder without his consent, (2) permit the deposit or acquisition
hereunder of securities or other property either in addition to or in
substitution for any of the Securities except in the manner permitted by the
Trust Indenture as in effect on the date of the first deposit of Securities
under a particular Indenture or permit the Trustee to engage in business or
investment activities not specifically authorized in this Indenture as
originally executed or (3) adversely affect the characterization of the Trust as
a grantor trust for federal income tax purposes.
Section 9.02. NOTICE OF AMENDMENT: Promptly after the
execution of any amendment the Trustee shall furnish written notification of the
substance of such amendment to all Unit Holders then of record at their
addresses appearing on the registration books of the Trustee.
Section 9.03. TERMINATION: This Indenture and the Trust
created hereby shall terminate upon the redemption, sale or other disposition as
the case may be of the last Security held in the Trust hereunder unless sooner
terminated as hereinbefore specified and may be terminated at any time by the
written consent of the Holders of fifty-one per cent of the Units of the Trust
then outstanding; PROVIDED, that in no event shall this Trust continue beyond
the Termination Date as set forth in Part II of the Reference Trust Agreement.
Written notice of any termination, shall be given by the Trustee to each Unit
Holder of record at his address appearing on the registration books of the
Trustee.
<PAGE>
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(a) Within a reasonable period of time after termination of
the Trust the Trustee shall liquidate such Securities as it shall deem necessary
for payment of Trust expenses and shall:
(i) deduct from the Income Account of the Trust or, to the
extent that funds are not available in such account, from the Principal
Account of the Trust and pay to itself individually an amount equal to
the sum of (1) its accrued compensation for its ordinary recurring
services in connection with the Trust, (2) any compensation due it for
its extraordinary services and (3) any costs, expenses or indemnities
in connection with the Trust as provided herein;
(ii) deduct from the Income Account or, to the extent that
funds are not available in such Account, from the Principal Account and
pay accrued and unpaid fees to the Depositor pursuant to Section 3.05;
(iii) deduct from the Income Account of the Trust or, to the
extent that funds are not available in such Account, from the Principal
Account of the Trust, any amounts which may be required to be deposited
in the Reserve Account of the Trust to provide for payment of any
applicable taxes or other governmental charges and any other amounts
which may be required to meet expenses incurred under this Indenture in
connection with the Trust;
(b) (i) In connection with any termination of the Trust prior
to the In-Kind Date, Unit Holders may elect by written notice to the Trustee
within the time period specified in the notice of termination to receive their
interest in the Trust in-kind in accordance with the procedures set forth in
Section 5.02 hereof (PROVIDED HOWEVER, that brokerage commissions on sales of
fractional shares shall be deducted from the cash proceeds to be paid to Unit
Holders electing distribution in-kind). Unit Holders who do not effectively
elect in-kind distribution shall receive cash. Subsequent to the completion of
the procedures for in-kind distribution described in Section 5.02, the Trustee
shall fully liquidate the remaining Securities in the Principal Account and
shall distribute to each Unit Holder such Unit Holder's pro rata interest in the
balance of the Income Account and Principal Account of the Trust.
The amounts to be so distributed to each Unit Holder shall be
that pro rata share of the balance of the total income and Principal Accounts of
the Trust as shall be represented by the Units therein held by such Unit Holder.
<PAGE>
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(ii) If the Trust is not terminated prior to the In-Kind Date,
the Trustee shall proceed as follows: At least twenty days prior to the In-Kind
Date, each Unit Holder of record as of such date owning the number of Units set
forth in the Reference Trust Agreement necessary to qualify to elect in-kind
redemptions set forth in Section 5.02 hereof shall be supplied a form of
election (the "Election Notice"). The Election Notice will permit such Unit
Holder to elect to receive his interest in the Trust (i) in kind or (ii) in
cash. The Trustee will duly honor instructions given in such properly completed
Election Notices received by the In-Kind Date. A Unit Holder who does not
effectively elect distribution in kind will receive a cash distribution.
On the In-Kind Date, the Trustee shall (a) determine the Unit
Value pursuant to Section 5.01 and (b) segregate the number of whole shares of
Securities necessary to satisfy distributions to Unit Holders electing
distribution in kind. Subject to payment of any tax or governmental charges
which may be imposed thereon, the Unit Holder choosing in-kind distribution
shall receive, against surrender of his Certificate(s), within seven (7)
calendar days following the In-Kind Date, such Unit Holder's pro rata portion of
each of the Securities in whole shares and the Unit Holder's pro rata share of
the distributable cash balance of the Income and Principal Accounts as of the
In-Kind Date reduced by accrued expenses and obligations of the Trust on the
In-Kind Date plus the proceeds of any fractional shares included in the Unit
Holder's pro rata share of the Securities. Commencing with the Business Day next
following the In-Kind Date, the Trustee shall fully liquidate the remaining
Securities in the portfolio over a period not to exceed 10 Business Days. The
Trustee will sell on each Business Day during such 10-day period, unless
directed otherwise by the Depositor, at least a number of shares of each
Security which then remains in the portfolio equal to the number of such shares
in the portfolio at the beginning of such day multiplied by a fraction the
numerator of which is one and the denominator of which is the number of days
remaining in the 10 Business Day sales period. The proceeds of such sales, net
of any tax or governmental charges and any brokerage commissions due thereon,
shall be credited to the Principal Account. Upon the settlement of the last
trade of Securities, the Trustee shall follow the procedures set forth in
(a)(i), (a)(ii) and (a)(iii) of this Section 9.03. The Trustee shall distribute
to Unit Holders, within seven days of the settlement of the last trade, against
surrender of their Certificates, their pro rata shares of the balance of the
Income and Principal Accounts and on the conditions set forth in Section 3.04
hereof, their pro rata share of the cash balance of the Reserve Account.
<PAGE>
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(c) Together with such distribution to each Unit Holder as
provided for in (b) of this Section, the Trustee shall furnish to each such Unit
Holder a final distribution statement as of the date of computation of the
amount distributable to Unit Holders, setting forth the information in
substantially the form and manner provided for in Section 3.06 hereof.
(d) The Trustee shall distribute to each Unit Holder any
dividends, which on the Termination Date were declared, but not received, net of
any and all expenses not previously deducted, within a reasonable time of their
receipt.
The Trustee shall be under no liability with respect to monies
held by it in the Income, Reserve and Principal Accounts upon termination except
to hold the same in trust without interest until disposed of in accordance with
the terms of this Indenture.
Section 9.04. CONSTRUCTION: This Indenture is executed and
delivered in the State of New York and all laws or rules of construction of such
State shall govern the rights of the parties hereto and the Unit Holders and the
interpretation of the provisions hereof. Headings and titles herein are for
convenience only and should not influence such interpretation.
Section 9.05. USE OF THE NAME "SEARS": The Depositor and the
Trustee herein acknowledge that the name "Sears" is a property right of Sears,
Roebuck & Co. The parties hereto agree that Sears, or the Depositor, acting on
behalf of Sears, may require any or all of the Trusts created under this
Agreement to cease using the name "Sears" or any similar term if the Depositor
ceases to be the Depositor or under any other circumstances. The Depositor and
the Trustee also hereby acknowledge that Sears, Roebuck and Co. may use or
permit others to use the name "Sears".
Section 9.06. WRITTEN NOTICE: Any notice, demand, direction or
instruction to be given to the Depositor hereunder shall be in writing and shall
be duly given if mailed or delivered to the Depositor c/o Dean Witter Reynolds
Inc., Two World Trade Center, New York, New York 10048; Attn: Unit Investment
Trust Division or at such other address as shall be specified by the Depositor
to the other parties hereto in writing. Any notice, demand, direction or
instruction to be given to the Trustee hereunder shall be in writing and shall
be given if mailed or delivered to the Trustee at its office at 104 West 47th
Street, New York, New York 10036, or such other address as shall reasonably be
specified by the Trustee to the other par-
<PAGE>
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ties hereto in writing. Any notice to be given to the Unit Holders shall be duly
given if mailed or delivered to each Unit Holder at the address of such holder
appearing on the registration books of the Trustee.
Section 9.07. SEVERABILITY: If any one or more of the
covenants, agreements, provisions or terms of this Indenture shall be held
contrary to any express provision of law or contrary to policy of express law,
though not expressly prohibited, or against public policy, or shall for any
reason whatsoever be held invalid, then such covenants, agreements, provisions
or terms shall be deemed severable from the remaining covenants, agreements,
provisions or terms of this Indenture and shall in no way affect the validity or
enforceability of the other provisions of this Indenture or of the Certificates
or the rights of the holders thereof.
Section 9.08. DISSOLUTION OF DEPOSITOR NOT TO TERMINATE: The
dissolution of one or all of the Depositors (if more than one) from or for any
cause whatsoever shall not operate to terminate this Indenture insofar as the
duties and obligations of the Trustee and Evaluator are concerned.
IN WITNESS WHEREOF, Dean Witter Reynolds Inc. has caused this
Trust Indenture and Agreement to be executed by one of its Vice Presidents and
its corporate seal to be hereto affixed and attested by its Secretary or
Assistant Secretary and United States Trust Company of New York has caused this
Trust Indenture and Agreement to be executed by one of its Vice Presidents or
Assistant Vice Presidents and its corporate seal to be hereto affixed and
attested by one of its Assistant Secretaries all as of the day, month and year
first above written.
<PAGE>
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FORM OF SIGNATURE PAGE
DEAN WITTER REYNOLDS INC.,
Depositor
By:
-------------------------------
Title: Vice President
[SEAL]
ATTEST :
By:
-------------------------------
Assistant Secretary
STATE OF NEW YORK )
) ss.:
COUNTY OF NEW YORK )
I, , a Notary Public in and for the said
County in the State aforesaid, do hereby certify that and
personally known to me to be the same persons whose names are
subscribed to the foregoing instrument and personally known to me to be the Vice
President and Assistant Secretary, respectively, of Dean Witter Reynolds Inc., a
corporation, appeared before me this day in person, and acknowledged that they
signed, sealed with a corporate seal of Dean Witter Reynolds Inc., and delivered
the said instrument as their free and voluntary act as such Vice President and
Assistant Secretary, respectively, as the free and voluntary act of said Dean
Witter Reynolds Inc. for the uses and purposes therein set forth.
GIVEN, under my hand and notarial seal this day of
.
---------------------------
Notary Public
[SEAL]
<PAGE>
MORGAN STANLEY DEAN WITTER SELECT EQUITY TRUST
SELECT 5 INDUSTRIAL PORTFOLIO 2000-2
REFERENCE TRUST AGREEMENT
This Reference Trust Agreement dated , 2000
between DEAN WITTER REYNOLDS INC., as Depositor, and The Chase Manhattan Bank,
as Trustee, sets forth certain provisions in full and incorporates other
provisions by reference to the document entitled "Sears Equity Investment Trust,
Trust Indenture and Agreement" dated January 22, 1991, as amended on March 16,
1993 and July 18, 1995 (the "Basic Agreement"). Such provisions as are
incorporated by reference constitute a single instrument (the "Indenture").
WITNESSETH THAT:
In consideration of the premises and of the mutual agreements
herein contained, the Depositor and the Trustee agree as follows:
I.
STANDARD TERMS AND CONDITIONS OF TRUST
Subject to the provisions of Part II hereof, all the
provisions contained in the Basic Agreement are herein incorporated by reference
in their entirety and shall be deemed to be a part of this instrument as fully
and to the same extent as though said provisions had been set forth in full in
this instrument except that the Basic Agreement is hereby amended in the
following manner:
A. Article I, Section 1.01, paragraph (29) defining "Trustee"
shall be amended as follows:
"'Trustee' shall mean The Chase Manhattan Bank, or any
successor trustee appointed as hereinafter provided."
B. Reference to United States Trust Company of New York in its
capacity as Trustee is replaced by The Chase Manhattan Bank throughout
the Basic Agreement.
C. Reference to "Dean Witter Select Equity Trust" is replaced
by "Morgan Stanley Dean Witter Select Equity Trust".
D. Section 3.01 is amended to substitute the following:
<PAGE>
SECTION 3.01. INITIAL COST The costs of organizing the Trust
and sale of the Trust Units shall, to the extent of the expenses
reimbursable to the Depositor provided below, be borne by the Unit
Holders, PROVIDED, HOWEVER, that, to the extent all of such costs are
not borne by Unit Holders, the amount of such costs not borne by Unit
Holders shall be borne by the Depositor and, PROVIDED FURTHER, HOWEVER,
that the liability on the part of the Depositor under this section
shall not include any fees or other expenses incurred in connection
with the administration of the Trust subsequent to the deposit referred
to in Section 2.01. Upon notification from the Depositor that the
primary offering period is concluded, the Trustee shall withdraw from
the Account or Accounts specified in the Prospectus or, if no Account
is therein specified, from the Principal Account, and pay to the
Depositor the Depositor's reimbursable expenses of organizing the Trust
and sale of the Trust Units in an amount certified to the Trustee by
the Depositor. If the balance of the Principal Account is insufficient
to make such withdrawal, the Trustee shall, as directed by the
Depositor, sell Securities identified by the Depositor, or distribute
to the Depositor Securities having a value, as determined under Section
4.01 as of the date of distribution, sufficient for such reimbursement.
The reimbursement provided for in this section shall be for the account
of the Unitholders of record at the conclusion of the primary offering
period and shall not be reflected in the computation of the Unit Value
prior thereto. As used herein, the Depositor's reimbursable expenses of
organizing the Trust and sale of the Trust Units shall include the cost
of the initial preparation and typesetting of the registration
statement, prospectuses (including preliminary prospectuses), the
indenture, and other documents relating to the Trust, SEC and state
blue sky registration fees, the cost of the initial valuation of the
portfolio and audit of the Trust, the initial fees and expenses of the
Trustee, and legal and other out-of-pocket expenses related thereto,
but not including the expenses incurred in the printing of preliminary
prospectuses and prospectuses, expenses incurred in the preparation and
printing of brochures and other advertising materials and any other
selling expenses. Any cash which the Depositor has identified as to be
used for reimbursement of expenses pursuant to this Section shall be
reserved by the Trustee for such purpose and shall not be subject to
distribution or, unless the Depositor otherwise directs, used for
payment of redemptions in excess of the per-Unit amount allocable to
Units tendered for redemption.
<PAGE>
II.
SPECIAL TERMS AND CONDITIONS OF TRUST
The following special terms and conditions are hereby agreed
to:
A. The Trust is denominated Morgan Stanley Dean Witter Select
Equity Trust Select 5 Industrial Portfolio 2000-2 (the "Select 5 Trust").
B. The publicly traded stocks listed in Schedule A hereto are
those which, subject to the terms of this Indenture, have been or are to be
deposited in trust under this Indenture.
C. The term, "Depositor" shall mean Dean Witter Reynolds Inc.
D. The aggregate number of Units referred to in Sections 2.03
and 9.01 of the Basic Agreement is for the Select 5 Trust.
E. A Unit is hereby declared initially equal to 1/ th for the
Select 5 Trust.
F. The term "In-Kind Distribution Date" shall mean
, 2001.
G. The term "Record Dates" shall mean
, 2000, , 2000, , 2000 and
, 2001 and such other date as the Depositor may direct.
H. The term "Distribution Dates shall mean
, 2000, , 2000, ,2000 and
, 2001 and such other date as the Depositor may direct.
I. The term "Termination Date" shall mean , 2001.
J. The Depositor's Annual Portfolio Supervision Fee shall be a
maximum of $0.25 per 100 Units.
K. The Trustee's annual fee as defined in Section 6.04 of the
Indenture shall be $ per 100 Units if the greatest number of Units
outstanding during the period is 10,000,000 or more; $ per 100 Units if the
greatest number of Units outstanding during the period is between 5,000,000 and
9,999,999;
<PAGE>
and $ per 100 Units if the greatest number of Units outstanding during the
period is 4,999,999 or less.
L. For a Unit Holder to receive "in-kind" distribution during
the life of the Trust other than in connection with a rollover, such Unit Holder
must tender at least 25,000 Units for redemption. On the In-Kind Date there is
no minimum amount of Units that a Unit Holder must tender in order to receive an
"in-kind" distribution.
M. Paragraph (b)(ii) of Section 9.03 is amended to provide
that the period during which the Trustee shall liquidate the Trust Securities
shall not exceed 14 business days commencing on the first business day following
the In-Kind Date.
(Signatures and acknowledgments on separate pages)
<PAGE>
Dean Witter Select Equity Trust
Amendment to
TRUST INDENTURE AND AGREEMENT
AMENDMENT, dated July 18, 1995, to the Trust Indenture and
Agreement for the Dean Witter Select Equity Trust, between Dean Witter Reynolds
Inc., as Depositor, and United States Trust Company of New York, as Trustee,
dated January 22, 1991, as amended (the "Agreement"),
WITNESSETH that
WHEREAS, all conditions and requirements necessary to make
this Amendment a valid instrument that is legally binding on the parties hereto
and the Certificate holders have been satisfied;
NOW, THEREFORE, the parties hereto agree as follows:
A. Section 1.01 is amended to add the following
definition: (9) "Deferred Sales Charge" shall mean any deferred sales
charge payable in accordance with the provisions of Section 3.15
hereof, as set forth in the prospectus for a Trust. Definitions
following this definition (9) shall be renumbered.
B. The first sentence of Section 2.01 is amended to add
the following language at the end of such sentence: "and/or cash (or a
letter of credit in lieu of cash) with written instructions to the
Trustee to purchase one or more of such Securities which cash (or cash
in an amount equal to the face amount of the letter of credit), to the
extent not used by the Trustee to purchase such Securities within the
90-day period following the first deposit of Securities in the Trust,
shall be distributed to Unit Holders on the Distribution Date next
following such 90-day period or such earlier date as the Depositor and
the Trustee determine".
C. The first sentence of Section 2.06 is amended to add
the following language after "Securities"))": "and/or cash (or a letter
of credit in lieu of cash) with instructions to the Trustee to purchase
one or more Additional Securities which cash (or cash in an amount
equal to the face amount of the letter of credit), to the extent not
used by the Trustee to purchase such Additional Securities
<PAGE>
-2-
within the 90-day period following the first deposit of Securities in
the Trust, shall be distributed to Unit Holders on the Distribution
Date next following such 90-day period or such earlier date as the
Depositor and the Trustee determine".
D. Article III, entitled "Administration of Trust",
Section 3.01 Initial Cost shall be amended as follows:
(i) the first part of the first sentence of
Section 3.01 Initial Cost shall be amended to substitute the
following language before the phrase "PROVIDED, HOWEVER":
"With respect to the Trust, the cost of the
preparation, printing and execution of the
Certificates, Indenture, Registration Statement and
other documents relating to the Trust, Federal and
State registration fees and costs, the initial fees
and expenses of the Trustee, legal and auditing
expenses and other out-of-pocket organizational
expenses, to the extent not borne by the Depositor,
shall be paid by the Trust;"
(ii) Section 3.01 shall be further amended to add
the following language:
"To the extent the funds in the Income and
Principal Accounts of the Trust shall be insufficient
to pay the expenses borne by the Trust specified in
this Section 3.01, the Trustee shall advance out of
its own funds and cause to be deposited and credited
to the Income Account such amount as may be required
to permit payment of such expenses. The Trustee shall
be reimbursed for such advance on each Record Date
from funds on hand in the Income Account or, to the
extent funds are not available in such Account, from
the Principal Account in the amount deemed to have
accrued as of such Record Date as provided in the
following sentence (less prior payments on account of
such advances, if any), and the provisions of Section
6.04 with respect to the reimbursement of
disbursements for Trust expenses, including, without
limitation, the lien in favor of the Trustee therefor
and the authority to sell Securities as needed to
fund such reimbursement, shall apply to the payment
of ex-
<PAGE>
-3-
penses and the amounts advanced pursuant to this
Section. For the purposes of the preceding sentence
and the addition provided to clause (a)(3) of Section
5.01, the expenses borne by the Trust pursuant to
this Section shall be deemed to have been paid on the
date of the Reference Trust Agreement and to accrue
at a daily rate over the time period specified for
their amortization provided in the Prospectus;
PROVIDED, however, that nothing herein shall be
deemed to prevent, and the Trustee shall be entitled
to, full reimbursement for any advances made pursuant
to this Section no later than the termination of the
Trust. For purposes of calculating the accrual of
organizational expenses under this Section 3.01, the
Trustee shall rely on the written estimates of such
expenses provided by the Depositor pursuant to
Section 5.01.11.
E. The third paragraph of Section 3.05 is hereby amended
to add the following sentence after the first sentence thereof:
"Depositor may direct the Trustee to invest the proceeds of any sale of
Securities not required for the redemption of Units in eligible money
market instruments selected by the Depositor which will include only
negotiable certificates of deposit or time deposits of domestic banks
which are members of the Federal Deposit Insurance Corporation and
which have, together with their branches or subsidiaries, more than $2
billion in total assets, except that certificates of deposit or time
deposits of smaller domestic banks may be held provided the deposit
does not exceed the insurance coverage on the instrument (which
currently is $100,000), and provided further that the Trust's aggregate
holding of certificates of deposit or time deposits issued by the
Trustee may not, unless the Trustee is protecting the deposited funds
in accordance with 12 C.F.R. 9.10 (or successor regulations), exceed
the insurance coverage of such obligations and U.S. Treasury notes or
bills (which shall be held until the maturity thereof) each of which
matures prior to the earlier of the next following Distribution Date or
90 days after receipt, the principal thereof and interest thereon (to
the extent such interest is not used to pay Trust expenses) to be
distributed on the earlier of the 90th day after receipt or the next
following Distribution Date."
F. Section 3.05 is hereby amended to add the following
paragraph after the end thereof: on each Deferred
<PAGE>
-4-
Sales Charge payment date set forth in the prospectus for a Trust, the
Trustee shall pay the account created pursuant to Section 3.15 the
amount of the Deferred Sales Charge payable on each such date as stated
in the prospectus for a Trust. Such amount shall be withdrawn from the
Principal Account from the amounts therein designated for such purpose.
G. Section 3.06B(3) shall be amended by adding the
following: "and any Deferred Sales Charge paid".
H. Section 3.08 shall be amended by adding the following
at the end thereof: "In order to pay the Deferred Sales Charge, the
Trustee shall sell or liquidate an amount of Securities at such time
and from time to time and in such manner as the Depositor shall direct
such that the proceeds of such sale or liquidation shall equal the
amount required to be paid to the Depositor pursuant to the Deferred
Sales Charge program as set forth in the prospectus for a Trust.
I. The first sentence of each of Sections 3.10, 3.11 and
3.12 is amended to insert the following language at the beginning of
such sentence, "Except as otherwise provided in Section 3.14,".
J. The following new Section 3.14 is added
Section 3.14. EXTRAORDINARY EVENT - SECURITY RETENTION AND
VOTING. In the event the Trustee is notified of any action to be taken
or proposed to be taken by holders of the securities held by the Trust
in connection with any proposed merger, reorganization, spin-off,
split-off or split-up by the issuer of stock or securities held in the
Trust, the Trustee shall take such action or refrain from taking any
action, as appropriate, so as to insure that the securities are voted
as closely as possible in the same manner and in the same general
proportion as are the securities held by owners other than the Trust.
If stock or securities are received by the Trustee, with or without
cash, as a result of any merger, reorganization, spin-off, split-off or
split-up by the issuer of stock or securities held in the Trust, the
Trustee at the direction of the Depositor may retain such stock or
securities in the Trust. Neither the Depositor nor the Trustee shall be
liable to any person for any action or failure to take action with
respect to this section.
<PAGE>
-5-
K. Section 3.15 shall be added as follows:
Section 3.15. DEFERRED SALES CHARGE. If the prospectus for a
Trust specifies a Deferred Sales Charge, the Trustee shall, on the
dates specified in and as permitted by the prospectus, withdraw from
the Income Account if such account is designated in the prospectus as
the source of the payments of the Deferred Sales Charge, or to the
extent funds are not available in that account or if such account is
not so designated, from the Principal Account, an amount per Unit
specified in the prospectus and credit such amount to a special,
non-Trust account maintained at the Trustee out of which the Deferred
Sales Charge will be distributed to the Depositor. If the Income
Account is not designated as the source of the Deferred Sales Charge
payment or if the balances in the Income and Principal Accounts are
insufficient to make any such withdrawal, the Trustee shall, as
directed by the Depositor, either advance funds, if so agreed to by the
Trustee, in an amount equal to the proposed withdrawal and be entitled
to reimbursement of such advance upon the deposit of additional monies
in the Income Account or the Principal Account, sell Securities and
credit the proceeds thereof to such special Depositor's account or
credit Securities in kind to such special Depositor's Account. Such
directions shall identify the Securities, if any, to be sold or
distributed in kind and shall contain, if the Trustee is directed by
the Depositor to sell a Security, instructions as to execution of such
sales. If a Unit Holder redeems Units prior to full payment of the
Deferred Sales Charge, the Trustee shall, if so provided in the
prospectus, on the Redemption Date, withhold from the Redemption Price
payment to such Unit Holder an amount equal to the unpaid portion of
the Deferred Sales Charge and distribute such amount to such special
Depositor's account or, if the Depositor shall purchase such Unit
pursuant to the terms of Section 5.02 hereof, the Depositor shall pay
the Redemption Price for such Unit less the unpaid portion of the
Deferred Sales Charge. The Depositor may at any time instruct the
Trustee to distribute to the Depositor cash or Securities previously
credited to the special Depositor's account.
L. Article V, entitled "Trust Evaluation, Redemption,
Transfer of Units," section 5.01 Trust Evaluation shall be amended as
follows:
<PAGE>
-6-
(i) The second sentence of the first paragraph
of Section 5.01 shall be amended by deleting the word "and"
appearing at the end of subsection (a)(2) of such sentence and
inserting the following after "(a)(3)": "amounts representing
organizational expenses paid from the Trust less amounts
representing accrued organizational expenses of the Trust, and
(a)(4)".
(ii) The following shall be added at the end of
the first paragraph of Section 5.01:
Until the Depositor has informed the Trustee
that there will be no further deposits of Additional
Securities pursuant to section 3.06, the Depositor
shall provide the Trustee with written estimates of
(i) the total organizational expenses to be borne by
the Trust pursuant to Section 3.01 and (ii) the total
number of Units to be issued in connection with the
initial deposit and all anticipated deposits of
Additional Securities. For purposes of calculating
the value of the Trust and Unit Value, the Trustee
shall treat all such anticipated expenses as having
been paid and all liabilities therefor as haying been
incurred, and all Units as having been issued, in
each case on the date of the Reference Trust
Agreement, and, in connection with each such
calculation, shall take into account a PRO RATA
portion of such expense and liability based on the
actual number of Units issued as of the date of such
calculation. In the event the Trustee is informed by
the Depositor of a revision in its estimate of total
expenses or total Units and upon the conclusion of
the deposit of Additional Securities, the Trustee
shall base calculations made thereafter on such
revised estimates or actual expenses, respectively,
but such adjustment shall not affect calculations
made prior thereto and no adjustment shall be made in
respect thereof.
M. Section 6.05(a) is amended to delete the clause
beginning "in the event" and ending with "determination by the
Depositor" and insert in place thereof "if the Depositor shall
determine in good faith that there has occurred either (1) a material
deterioration in the creditworthiness of the Trustee or (2) one or more
negligent acts on
<PAGE>
-7-
the part of the Trustee having a materially adverse effect, either
singly or in the aggregate, on the Trust or on one or more Trusts, such
that the replacement of the Trustee is in the best interests of the
Unit Holders,".
N. Sections 6.01 (b) , 601(j) and 6.04 are amended to
delete the word "gross" immediately prior to the word negligence.
This Amendment shall apply to any Reference Trust Agreement
incorporating the Agreement by reference dated on or after the date hereof.
<PAGE>
-8-
FORM OF SIGNATURE PAGE
IN WITNESS WHEREOF, Dean Witter Reynolds Inc. and United
States Trust Company of New York have caused this amendment to be executed by
one of their authorized officers as of the day and year first above written.
DEAN WITTER REYNOLDS INC.,
as Depositor
By:
-----------------------------
Title: Vice President
[SEAL]
Attest:
By:
-----------------------------------
Title: First Vice President
<PAGE>
-9-
UNITED STATES TRUST COMPANY OF
NEW YORK, as Trustee
By:
--------------------------------
Title: Assistant Vice
President
[SEAL]
Attest:
- ------------------------------
Title: Assistant Secretary
<PAGE>
PRIMARY BUSINESS NAME: DEAN WITTER REYNOLDS INC.BD NUMBER: 7556
BD Schedule A - Direct Owners and Executive Officers
Are there any indirect owners of the APPLICANT to be reported on Schedule B?
|_| YES |X| NO
<TABLE>
<S><C>
OWNERSHIP CODES: NA - LESS THAN 5% B - 10% BUT LESS THAN 25% D - 50% BUT LESS THAN 75%
A - 5% BUT LESS THAN 10% C - 25% BUT LESS THAN 50% E - 75% OR MORE
</TABLE>
<TABLE>
<CAPTION>
- -------------------------------------------------------------------------------------------------------------------
DATE OWN. CONTROL CRD # (OR SSN, IRS
FULL LEGAL NAME DE/FE/I TITLE OR STATUS ACQUIRED CODE PERSON PR TAX #, EMP. ID)
- -------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C> <C> <C>
ALONSO, BRUCE I DIRECTOR, EXECUTIVE 05/1999 NA Y N 712622
FREDERICK VICE PRESIDENT
- -------------------------------------------------------------------------------------------------------------------
DEMARTINI, RICHARD I DIRECTOR 01/1989 NA Y N 809586
MICHAEL
- -------------------------------------------------------------------------------------------------------------------
DROP, RAYMOND JOSEPH I DIRECTOR, EXECUTIVE 05/1999 NA Y N 1510331
JR VICE PRESIDENT
- -------------------------------------------------------------------------------------------------------------------
HIGGINS, JAMES FRANCIS I PRESIDENT, CHIEF 09/1985 NA Y N 245358
OPERATING OFFICER,
DIRECTOR
- -------------------------------------------------------------------------------------------------------------------
KERN, LORENA JANETTE I DEP, COMPLIANCE 08/1999 NA N N 1815897
DIRECTOR, DIRECTOR
SENIOR VP
- -------------------------------------------------------------------------------------------------------------------
MACK, JOHN JOSEPH I DIRECTOR 05/1999 NA Y N 316052
- -------------------------------------------------------------------------------------------------------------------
MERIN, MITCHELL MOSES I EXECUTIVE VICE 09/1995 NA Y N 1605328
PRESIDENT, DIRECTOR
- -------------------------------------------------------------------------------------------------------------------
MILIOTE, ANTHONY I SENIOR VICE 12/1987 NA N N 334303
PRESIDENT, SROP
- -------------------------------------------------------------------------------------------------------------------
<PAGE>
<CAPTION>
- -------------------------------------------------------------------------------------------------------------------
DATE OWN. CONTROL CRD # (OR SSN, IRS
FULL LEGAL NAME DE/FE/I TITLE OR STATUS ACQUIRED CODE PERSON PR TAX #, EMP. ID)
- -------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C> <C> <C>
- -------------------------------------------------------------------------------------------------------------------
MILLER, STEPHEN ROY I EXECUTIVE VICE 05/1999 NA Y N 335648
PRESIDENT, DIRECTOR
- -------------------------------------------------------------------------------------------------------------------
MORGAN STANLEY DEAN DE PARENT 03/1998 E Y Y 22-2771226
WITTER & CO
- -------------------------------------------------------------------------------------------------------------------
PURCELL, PHILIP JAMES I CHAIRMAN, Chief 01/1984 NA Y N 1367876
EXECUTIVE OFFICER,
DIRECTOR
- -------------------------------------------------------------------------------------------------------------------
SCHAEFER, JOHN HENRY I DIRECTOR 05/1999 NA Y N 860814
- -------------------------------------------------------------------------------------------------------------------
SCHRODER, ALAN ARTHUR I DIRECTOR, EXECUTIVE 05/1999 NA Y N 801763
VICE PRESIDENT
- -------------------------------------------------------------------------------------------------------------------
SCOTT, ROBERT GARLAND I DIRECTOR 05/1999 NA Y N 417200
- -------------------------------------------------------------------------------------------------------------------
STONE, MICHAEL I EXECUTIVE VICE 07/1999 NA Y N 3258790
HEMILTON PRESIDENT, SECRETARY
- -------------------------------------------------------------------------------------------------------------------
VADALA, CHARLES I SENIOR VICE 05/1999 NA N N 1313842
FRANCIS JR PRESIDENT, CHIEF
FINANCIAL OFFICER
- -------------------------------------------------------------------------------------------------------------------
WARMIN, DAVID MICHAEL I CROP, FIRST VICE 08/1993 NA N N 876892
PRESIDENT
- -------------------------------------------------------------------------------------------------------------------
</TABLE>
