Exhibit 4.1
STANDARD TERMS FOR DEPOSITARY TRUST AGREEMENTS
between
EPOCH SECURITIES, INC.
and
INVESTORS BANK & TRUST COMPANY
as Trustee
Dated as of November [o], 2000
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Table of Contents
Page
ARTICLE 1
DEFINITIONS AND ASSUMPTIONS
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Section 1.1. Definitions...................................................................1
Section 1.2. Rules of Construction.........................................................4
ARTICLE 2
FORM OF RECEIPTS, DEPOSIT OF SECURITIES, DELIVERY, REGISTRATION OF TRANSFER AND SURRENDER OF RECEIPTS
Section 2.1. Depositary Trust Agreements...................................................4
Section 2.2. Creation and Declaration of Trusts; Deposit of Securities.....................4
Section 2.3. Acceptance by Trustee.........................................................5
Section 2.4. Form and Transferability of Receipts..........................................5
Section 2.5. Delivery of Receipts..........................................................7
Section 2.6. Registration; Registration of Transfer; Combination and Split-up of
Certificates..................................................................7
Section 2.7. Surrender of Receipts and Withdrawal of Underlying Securities.................7
Section 2.8. Limitations on De1ivery, Registration of Transfer and Surrender of
Receipts......................................................................8
Section 2.9. Lost Certificates, Etc........................................................9
Section 2.10. Cancellation and Destruction of Surrendered Certificates......................9
Section 2.11. Reconstitution Events.........................................................9
ARTICLE 3
CERTAIN OBLIGATIONS OF OWNERS OF RECEIPTS
Section 3.1. Filing Proofs, Certificates and Other Information............................10
Section 3.2. Liability of Owner for Taxes and Other Charges...............................10
Section 3.3. Warranties on Deposit of Shares..............................................10
ARTICLE 4
THE UNDERLYING SECURITIES
Section 4.1. Cash Distributions...........................................................11
Section 4.2. Distributions Other Than Cash or Securities..................................11
Section 4.3. Distributions in Securities..................................................12
Section 4.4. Rights Offerings.............................................................12
Section 4.5. Fixing of Record Date........................................................12
Section 4.6. Reports......................................................................13
Section 4.7. Voting Instructions for Underlying Securities................................13
Section 4.8. Changes Affecting Underlying Securities......................................13
Section 4.9. Withholding..................................................................13
Section 4.10. Limitation on Distributions..................................................14
ARTICLE 5
THE TRUSTEE AND THE INITIAL DEPOSITOR
Section 5.1. Maintenance of Office and Transfer Books by the Trustee......................14
Section 5.2. Prevention or Delay in Performance by the Initial Depositor or the
Trustee......................................................................14
Section 5.3. Obligations of the Initial Depositor and the Trustee.........................15
Section 5.4. Resignation or Removal of the Trustee; Appointment of Successor
Trustee......................................................................17
Section 5.5. Indemnification..............................................................17
Section 5.6. Charges of Trustee...........................................................19
Section 5.7. Retention of Trust Documents.................................................19
Section 5.8. Federal Securities Law and Other Regulatory Filings..........................19
Section 5.9. Prospectus Delivery..........................................................20
ARTICLE 6
AMENDMENT AND TERMINATION
Section 6.1. Amendment....................................................................20
Section 6.2. Early Termination............................................................20
ARTICLE 7
MISCELLANEOUS
Section 7.1. Counterparts.................................................................22
Section 7.2. Third-Party Beneficiaries....................................................22
Section 7.3. Severability.................................................................22
Section 7.4. Owners and Beneficial Owners as Parties; Binding Effect......................22
Section 7.5. Notices......................................................................22
Section 7.6. Governing Law................................................................23
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EXHIBIT A
FORM OF DEPOSITARY TRUST AGREEMENT...........................................A-1
EXHIBIT B
FORM OF CERTIFICATE EVIDENCING RECEIPTS......................................B-1
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STANDARD TERM FOR DEPOSITARY TRUST AGREEMENTS agreed to as of
November [o], 2000 (these "Standard Terms"), between EPOCH SECURITIES, INC., a
Delaware corporation (the "Initial Depositor") and INVESTORS BANK & TRUST
COMPANY, a Massachusetts trust company, as trustee (the "Trustee").
W I T N E S S E T H:
WHEREAS, from time to time, the Initial Depositor and the Trustee
may enter into one or more depositary trust agreements providing for the
deposit with the Trustee of specified Securities (as hereinafter defined), the
creation of Depositary Trust Receipts representing the Securities so deposited
and the execution and delivery of certificates evidencing the Depositary Trust
Receipts; and
WHEREAS, the Initial Depositor and the Trustee wish to establish the
general terms and/or conditions of such depositary trust agreements and the
form of the certificates evidencing Depositary Trust Receipts;
NOW, THEREFORE, in consideration of the premises and the mutual
covenants contained in these Standard Terms, the parties hereby agree as
follows:
ARTICLE 1
DEFINITIONS AND ASSUMPTIONS
Section 1.1 Definitions. Except as otherwise specified in these
Standard Terms or in the applicable Depositary Trust Agreement or as the
context may otherwise require, the following terms have the respective
meanings set forth below for all purposes of these Standard Terms and the
applicable Depositary Trust Agreement.
"Beneficial Owner" means any Person owning a beneficial interest in
any Receipt.
"Closing Date" means the day on which the initial deposit of
Securities is to be made, which date may be specified in the applicable
Depositary Trust Agreement.
"Commission" means the Securities and Exchange Commission of the
United States or any successor governmental agency in the United States.
"Deliver" means (a) when used with respect to Securities, either (i)
one or more book-entry transfers of such Securities to an account at DTC
designated by the Person entitled to such delivery for further credit as
specified by such Person or (ii) in the case of Securities for which DTC
book-entry settlement is not available, the delivery of certificates
evidencing such Securities to the Person entitled to such delivery, duly
endorsed for transfer or accompanied by proper instruments of transfer and (b)
when used with respect to Receipts, either (i) one or more book-entry
transfers of Receipts to an account at DTC designated by the Person entitled
to such delivery for further credit as specified by such Person or (ii) in the
event DTC ceases to make its book-entry settlement system available for the
Receipts, execution and delivery at the office of the Trustee of one or more
certificates evidencing such Receipts.
"Depositary Trust Agreement" means, as provided in Section 2.1, a
depositary trust agreement entered into by the Initial Depositor and the
Trustee pursuant to these Standard Terms which incorporates by reference these
Standard Terms.
"Depositor" means any Person who is an accountholder at DTC and who
deposits Securities into the Trust, either for its own account or on behalf of
another Person who is the owner or beneficial owner of such Securities, or any
person who is not an accountholder at DTC but who has arranged for the deposit
of Securities with the Trust through DTC in a manner satisfactory to the
Trustee.
"Depositor Order" means a written order or request signed in the
name of the Initial Depositor or any other Depositor, as applicable.
"DTC" means The Depository Trust Company, its nominees and their
respective successors.
"Exchange Act" means the Securities Exchange Act of 1934, as
amended.
"Extraordinary Trust Expenses" means third party fees and other
direct out of pocket expenses reasonably incurred by the Trustee on behalf of
the Trust including, without limitation, (i) such expenses incurred in
connection with legal, tax, or accounting advice relating to matters arising
hereunder, the preparation and filing of any governmental or regulatory
reports or tax documents on behalf of the Trust, and any expenses incurred in
protecting or defending any action against the Trust, but (ii) excluding Trust
Expenses.
"Initial Depositor" means Epoch Securities, Inc., a Delaware
corporation, or its successor.
"Investment Company Act" means the Investment Company Act of 1940,
as amended.
"Issuance Denomination" is defined in Section 2.4(a), subject to
increase as provided in Sections 4.3 and 4.8.
"NASDAQ" means the National Association of Securities Dealers
Automated Quotations system.
"Owner" means the Person in whose name a Receipt is registered in
the books of the Trustee maintained for that purpose.
"Person" means any individual, limited liability company,
corporation, partnership, joint venture, association, joint stock company,
trust (including any trust beneficiary), unincorporated organization or
government or any agency or political subdivision thereof.
"Receipt" means a depositary trust receipt which is issued under the
Depositary Trust Agreement and which represents the owner's right to receive
the Underlying Securities which must be deposited into the Trust for issuance
of a Receipt plus any other Underlying Securities received by the Trustee with
respect to such Underlying Securities and held by the Trustee under the
Depositary Trust Agreement at such time. The Trustee shall only accept for
deposit whole Securities and shall not issue Receipts except to the extent
such Receipts represent, in the aggregate, whole Underlying Securities.
"Registrar" means any bank or trust company, which shall be
appointed to register Receipts and transfers of Receipts as herein provided.
"Restricted Securities" means Securities, or Receipts representing
such Securities, which are acquired directly or indirectly from the issuer or
its affiliates (as defined in Rule 144 under the Securities Act) in a
transaction or chain of transactions not involving any public offering, or
which are held by an officer or director (or person performing similar
functions) or other affiliate of the issuer, or which would require
registration under the Securities Act in connection with the public offer and
sale thereof in the United States, or which are subject to other restrictions
on sale or deposit under the federal securities laws of the United States, a
shareholder agreement or the corporate documents of the issuer.
"Round Lot" means 100 Receipts.
"Securities" means any shares of a class of securities which must be
deposited for issuance of Receipts.
"Securities Act" means the Securities Act of 1933, as amended.
"Securities Issuer" means, as of any time, the issuer of a class of
Securities.
"Securities Registrar" means the entity that presently carries out
the duties of registrar for any Securities or any successor as registrar for
any Securities and any other appointed agent of a Securities Issuer for the
transfer and registration of Securities.
"Surrender" means, when used with respect to Receipts, (a) one or
more book-entry transfers of Receipts to the DTC account of the Trustee or (b)
surrender to the Trustee at its office of one or more certificates evidencing
such Receipts, in each case in a Round Lot or an integral multiple thereof.
"Trust" means the trust entity created by the Depositary Trust
Agreement.
"Trust Expenses" means the customary and ordinary expenses incurred
by the Trustee on behalf of the Trust, including direct out of pocket expenses
incurred in connection therewith.
"Trustee" means Investors Bank & Trust Company, a Massachusetts
trust company, in its capacity as Trustee under the Depositary Trust
Agreement, or any successor as Trustee thereunder.
"Underlying Securities" means, as of any time, Securities of each of
the classes and in the quantities required by the Depositary Trust Agreement
to be deposited in the Trust for the issuance of Receipts and which are at
such time deposited under the applicable Depositary Trust Agreement and any
other securities, property or cash received by the Trustee in respect thereof
and at such time held hereunder.
"Underwriters" means the entities identified in the prospectus
relating to the Receipts.
Section 1.2 Rules of Construction. Unless the context otherwise
requires:
(i) an accounting term not otherwise defined has the meaning
assigned to it in accordance with generally accepted accounting principles as
in effect in the United States from time to time;
(ii) "or" is not exclusive;
(iii) the words "herein", "hereof", "hereunder" and other words of
similar import refer to these Standard Terms or the Depositary Trust Agreement
as a whole and not to any particular Article, Section or other subdivision;
(iv) "including" means including without limitation; and
(v) words in the singular include the plural and words in the plural
include the singular.
ARTICLE 2
FORM OF RECEIPTS, DEPOSIT OF SECURITIES, DELIVERY,
REGISTRATION OF TRANSFER AND SURRENDER OF RECEIPTS
Section 2.1 Depositary Trust Agreements. Each Depositary Trust
Agreement entered into between the Initial Depositor and the Trustee for the
purposes set forth herein shall be in substantially the form of Exhibit A to
these Standard Terms and shall provide that these Standard Terms shall be
incorporated by reference into, and form a part of, such Depositary Trust
Agreement.
Section 2.2 Creation and Declaration of Trusts; Deposit of
Securities. (a) The Initial Depositor, concurrently with the execution and
delivery of the Depositary Trust Agreement, does hereby agree to deposit or
cause to be deposited with the Trustee under the Depositary Trust Agreement
all the right, title and interest of the Initial Depositor in, to and under
Securities, of each of the classes and in the quantities necessary to create
Receipts in accordance with Section 2 of the Depositary Trust Agreement in
effect at the time of deposit. Unless otherwise specified in the Depositary
Trust Agreement, such deposit shall include all cash dividends and
distributions in respect of such Securities payable to the Trustee, as holder,
on a record date occurring on or after the date of the related deposit.
(b) From time to time after the date of the Depositary Trust
Agreement and subject to the provisions of Section 2.8(b)(iv), a Depositor may
deposit with the Trustee, during the Trustee's regular business hours, in the
manner specified in Section 2.2(a), Securities, of each of the classes and in
the quantities necessary to create Receipts in accordance with Section 2 of
the Depositary Trust Agreement in effect at the time of deposit by Delivery of
such Securities to the Trustee.
(c) The Trustee shall only accept for deposit whole Securities and
shall not issue Receipts except to the extent such Receipts represent, in the
aggregate, whole Underlying Securities.
(d) The Trust shall not engage in any business or activities other
than those required or authorized by these Standard Terms or incidental and
necessary to carry out the duties and responsibilities set forth in the
Depositary Trust Agreement. Other than issuance of the Receipts, the Trust
shall not issue or sell any certificates or other obligations or otherwise
incur, assume or guarantee any indebtedness for money borrowed.
(e) Anything herein to the contrary notwithstanding, the Trustee
does not assume any of the duties, responsibilities, obligations or
liabilities of the Initial Depositor or any other Depositor in respect of the
Underlying Securities.
(f) Underlying Securities shall be held by the Trustee at such place
and in such manner as the Trustee shall determine.
Section 2.3. Acceptance by Trustee. The Trustee will hold the
Underlying Securities for the benefit of the Owners for the purposes, and
subject to and limited by the terms and conditions, set forth in these
Standard Terms and the applicable Depositary Trust Agreement.
Section 2.4. Form and Transferability of Receipts. (a) The
certificates evidencing Receipts shall be substantially in the form set forth
in Exhibit B annexed to these Standard Terms, with appropriate insertions,
modifications and omissions, as hereinafter provided or as may be provided in
the Depositary Trust Agreement. The Issuance Denominations of a certificate
shall be any integral multiple of a Round Lot of Receipts, subject to increase
or decrease as provided in Sections 4.3 and 4.8. No Receipt shall be entitled
to any benefits under the Depositary Trust Agreement or be valid or obligatory
for any purpose unless a certificate evidencing such Receipt shall have been
executed by the Trustee by the manual or facsimile signature of a duly
authorized signatory of the Trustee and, if a Registrar (other than the
Trustee) for the Receipts shall have been appointed, countersigned by the
manual or facsimile signature of a duly authorized officer of the Registrar.
The Trustee shall maintain books on which the registered ownership of each
Receipt and transfers, if any, of such registered ownership shall be recorded.
Certificates evidencing Receipts bearing the manual or facsimile signature of
a duly authorized signatory of the Trustee and Registrar, if applicable, who
was at the time such certificates were executed a proper signatory of the
Trustee or Registrar, if applicable, shall bind the Trustee, notwithstanding
that such signatory has ceased to hold such office prior to the delivery of
such certificates.
(b) The certificates evidencing Receipts may be endorsed with or
have incorporated in the text thereof such legends or recitals or
modifications not inconsistent with the provisions of the Depositary Trust
Agreement as may be required by the Trustee or required to comply with any
applicable law or regulations thereunder or with the rules and regulations of
any securities exchange upon which Receipts may be listed or to conform with
any usage with respect thereto, or to indicate any special limitations or
restrictions to which any particular Receipts are subject by reason of the
date of issuance of the Underlying Securities or otherwise.
(c) The Initial Depositor and the Trustee will apply to DTC for
acceptance of the Receipts in its book-entry settlement system. Receipts
deposited with DTC shall be represented by one or more global certificates
which shall be registered in the name of Cede & Co., as nominee for DTC, and
shall bear the following legend:
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED
REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY, A NEW YORK
CORPORATION ("DTC"), TO THE AGENT AUTHORIZED BY THE ISSUER
FOR REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY
CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO.
OR IN SUCH OTHER NAME AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO CEDE &
CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN
AUTHORIZED REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE,
OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY
PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER
HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.
(d) So long as the Receipts are eligible for book-entry settlement
with DTC and such settlement is available, unless otherwise required by law,
notwithstanding anything to the contrary in the Depositary Trust Agreement,
all Receipts shall be evidenced by one or more global certificates registered
in the name of a nominee of DTC and no person acquiring beneficial ownership
of such Receipts shall receive or be entitled to receive physical delivery of
Receipts. Ownership of beneficial interests in Receipts evidenced by such
global certificate or certificates shall be shown on, and the transfer of such
ownership shall be effected only through, records maintained by (i) DTC or
(ii) institutions that have accounts with DTC.
(e) If, at any time when Receipts are evidenced by a global
certificate, DTC ceases to make its book-entry settlement system available for
such Receipts, the Trustee shall issue separate certificates evidencing
Receipts to the DTC book-entry settlement system participants entitled
thereto, with such additions, deletions and modifications to the Depositary
Trust Agreement and to the form of certificate evidencing Receipts as the
Initial Depositor and the Trustee may, from time to time, agree, and such
participants shall be charged the costs of printing, preparation, Delivery and
shipping of any such certificates.
(f) Title to a certificate evidencing Receipts (and to the Receipts
evidenced thereby), when properly endorsed or accompanied by proper
instruments of transfer, shall be transferable by delivery with the same
effect as in the case of a negotiable instrument under the laws of New York;
provided, however, that the Trustee, notwithstanding any notice to the
contrary, may treat the Owner of Receipts as the absolute owner thereof for
the purpose of determining the person entitled to distribution of dividends or
other distributions or to any notice provided for in the Depositary Trust
Agreement and for all other purposes.
Section 2.5. Delivery of Receipts. Upon receipt by the Trustee of
any deposit pursuant to Section 2.2, together with a Depositor Order and the
other documents required as above specified, if any, the Trustee, subject to
the terms and conditions of the applicable Depositary Trust Agreement, shall
use its best efforts to Deliver, on or before the immediately succeeding
business day to or upon the written order of the Depositor, the number of
Receipts issuable in respect of such deposit, provided such number is an
integral multiple of an Issuance Denomination, but only upon payment to the
Trustee of the fees and expenses of the Trustee as provided in Section 5.6 and
of all taxes and governmental charges and fees payable in connection with such
deposit and the transfer of the Underlying Securities.
Section 2.6. Registration; Registration of Transfer; Combination and
Split-up of Certificates. (a) The Trustee shall keep or cause to be kept a
register of Owners of Receipts and shall provide for the registration of
Receipts and the registration of transfers and exchanges of Receipts.
(b) The Trustee, subject to the terms and conditions of these
Standard Terms and the applicable Depositary Trust Agreement, shall register
transfers of ownership of Receipts on its transfer books from time to time,
upon any Surrender of a certificate evidencing such Receipts in any integral
multiple of a Round Lot, by the Owner in person or by a duly authorized
attorney, properly endorsed or accompanied by proper instruments of transfer,
and duly stamped as may be required by the laws of the State of New York and
of the United States of America, and the payment of any sums payable for taxes
and governmental charges. Thereupon the Trustee shall execute a new
certificate or certificates evidencing such Receipts in any integral multiple
of a Round Lot requested, and deliver the same to or upon the order of the
Person entitled thereto in accordance with Section 2.4(e).
(c) The Trustee, subject to the terms and conditions of these
Standard Terms and the applicable Depositary Trust Agreement, shall, upon
Surrender of a certificate evidencing Receipts for the purposes of effecting a
split-up or combination of such certificate or certificates, and payment of
reasonable charges for registering and shipping certificates, execute and
deliver one or more new certificate or certificates evidencing such Receipts
in any integral multiple of a Round Lot requested.
(d) The Trustee may appoint one or more co-transfer agents for the
purpose of effecting transfers, combinations and split-ups of Receipts at
designated transfer offices on behalf of the Trustee. In carrying out its
functions, a co-transfer agent may require evidence of authority and
compliance with applicable laws and other requirements by Owners or Persons
entitled to Receipts and will be entitled to protection and indemnity to the
same extent as the Trustee.
Section 2.7. Surrender of Receipts and Withdrawal of Underlying
Securities. (a) Upon Surrender at the office of the Trustee during the
Trustee's regular business hours of a Round Lot of Receipts or integral
multiple thereof for the purpose of withdrawal of the Underlying Securities
represented thereby, and upon payment of the fee of the Trustee in connection
with the Surrender of Receipts as provided in Section 5.6 and payment of all
taxes and charges payable in connection with such Surrender and withdrawal of
the Underlying Securities, and subject to the terms and conditions of the
applicable Depositary Trust Agreement, including, without limitation, Section
4.10, the Owner of such Receipts shall be entitled to Delivery of the amount
of Underlying Securities at the time represented by such Receipts. Delivery of
such Underlying Securities may be made by (i) Delivery of Securities to such
Owner or as ordered by such Owner and (ii) any available form of delivery of
any other securities, property and cash to which such Owner is then entitled
to such Owner or as ordered by such Owner. The Trustee shall make such
delivery as promptly as practicable.
(b) A certificate evidencing Receipts Surrendered for such purposes
may be required by the Trustee to be properly endorsed in blank or accompanied
by proper instruments of transfer in blank, and if the Trustee so requires,
the Owner thereof shall execute and deliver to the Trustee a written order
directing the Trustee to cause the Underlying Securities being withdrawn to be
delivered to or upon the written order of a Person or Persons designated in
such order. Thereupon the Trustee shall Deliver through the facilities of DTC
or, if applicable, at its office, subject to Sections 2.8, 3.1, 3.2 and 4.10
and to the other terms and conditions of the Depositary Trust Agreement, to or
upon the written order of the Person or Persons designated in the order
delivered to the Trustee as above provided, the amount of Underlying
Securities represented by such Receipts.
Section 2.8. Limitations on De1ivery, Registration of Transfer and
Surrender of Receipts. (a) As a condition precedent to the Delivery,
registration of transfer, split-up, combination or Surrender (including, for
the avoidance of doubt, any Surrender in connection with an exchange) of any
Receipt or withdrawal of any Underlying Securities, the Trustee or Registrar
may require payment from the Depositor of Securities or the presentor of the
Receipts of a sum sufficient to reimburse it for any tax or other charge and
any stock transfer or registration fee with respect thereto (including any
such tax or charge and fee with respect to Securities being deposited or
withdrawn) and payment of any applicable fees as herein provided, may require
the production of proof satisfactory to it as to the identity and genuineness
of any signature and may also require compliance with any regulations the
Trustee may establish consistent with the provisions of the Depositary Trust
Agreement, including, without limitation, this Section 2.8.
(b) The Delivery of Receipts against deposits of Securities, the
registration of transfer of Receipts or the Surrender of Receipts for the
purpose of withdrawal of Underlying Securities may be suspended, generally or
in particular instances, during any period when (i) the transfer books of the
Trustee are closed, (ii) the transfer books of a Securities Issuer are closed,
(iii) transfers through DTC are unavailable, or (iv) if any such action is
deemed necessary or advisable by the Trustee at any time or from time to time,
subject to the provisions of the following sentence and Delivery of Receipts
against deposits of Securities shall be suspended for the twenty-five (25) day
period immediately subsequent to the Closing Date, however, such suspension
shall not apply to the Underwriters who request to so deposit Securities to
cover short positions created during the initial offering period.
Notwithstanding any other provision of any applicable Depositary Trust
Agreement or the Receipts, the Surrender of Receipts and withdrawal of
Underlying Securities may not be suspended except as set forth in the previous
sentence and for (i) temporary delays caused by closing the transfer books of
the Trustee or a Securities Issuer, (ii) the payment of fees, taxes and
applicable charges, and (iii) compliance with any U.S. laws or governmental
regulations relating to the Receipts or to the withdrawal of the Underlying
Securities. Without limitation of the foregoing, the Trustee shall not
knowingly accept for deposit under the Depositary Trust Agreement any
Securities required to be registered under the provisions of the Securities
Act, for the public offer and sale thereof in the United States unless a
registration statement is in effect as to such Securities for such offer and
sale.
Section 2.9. Lost Certificates, Etc. In case any certificate
evidencing Receipts shall be mutilated, destroyed, lost or stolen, the Trustee
shall execute and deliver a new certificate of like tenor in exchange and
substitution for such mutilated certificate upon cancellation thereof, or in
lieu of and in substitution for such destroyed, lost or stolen certificate.
Before the Trustee shall execute and deliver a new certificate in substitution
for a destroyed, lost or stolen certificate, the Owner thereof shall have (a)
filed with the Trustee (i) a request for such execution and delivery before
the Trustee has noticed that the Receipts have been acquired by a bona fide
purchaser and (ii) a sufficient indemnity bond, and (b) satisfied any other
reasonable requirements imposed by the Trustee.
Section 2.10. Cancellation and Destruction of Surrendered
Certificates. All certificates evidencing Receipts Surrendered to the Trustee
shall be canceled by the Trustee. The Trustee is authorized to destroy
certificates so canceled.
Section 2.11. Reconstitution Events. (a) If any class of Securities
ceases to be outstanding as a result of a merger, consolidation or other
corporate combination of the Securities Issuer and Section 4.8 does not apply,
the Trustee shall, if it has actual knowledge of such event, to the extent
lawful and feasible and subject to Section 4.10, distribute any securities
which shall be received by the Trustee in exchange for, in conversion of or in
respect of Underlying Securities which are not Securities issued by a
Securities Issuer to the Owners in proportion to their ownership of Receipts.
Effective on the date that such Securities cease to be outstanding, such class
of Securities shall cease to be part of the securities which must be deposited
for issuance of Receipts.
(b) If any class of Securities is delisted from trading on its
primary exchange or market and is not listed for trading on another national
securities exchange or through NASDAQ within five business days from the date
of such delisting, the Trustee shall, if it has actual knowledge of such
event, to the extent lawful and feasible and subject to Section 4.10,
distribute the Underlying Securities of such class to the Owners in proportion
to their ownership of Receipts. Effective on the date of such distribution,
such class of Securities shall cease to be a part of the securities which must
be deposited for issuance of Receipts.
(c) In the event that any Securities Issuer no longer has a class of
common stock registered under section 12 of the Exchange Act, the Trustee
shall, if it has actual knowledge of such event, to the extent lawful and
feasible and subject to Section 4.10, distribute the Underlying Securities of
such Securities Issuer to the Owners in proportion to their ownership of
Receipts. Effective on the date of such distribution, such class of Securities
shall cease to be part of the securities which must be deposited for issuance
of Receipts.
(d) If the Commission determines that a Securities Issuer is an
investment company under the Investment Company Act, and the Trustee has
actual knowledge of such Commission determination, then the Trustee shall, to
the extent lawful and feasible and subject to Section 4.10, distribute the
Underlying Securities of such Securities Issuer to the Owners in proportion to
their ownership of Receipts. Effective on the date of such distribution, such
class of Securities shall cease to be part of the securities which must be
deposited for issuance of Receipts.
ARTICLE 3
CERTAIN OBLIGATIONS OF OWNERS OF RECEIPTS
Section 3.1. Filing Proofs, Certificates and Other Information. Any
Person presenting Securities for deposit or any Owner of Receipts may be
required from time to time to file with the Trustee such proof of citizenship
or residence, exchange control approval, or such information relating to the
registration on the books of any Securities Issuer or Securities Registrar, if
applicable, to execute such certificates and to make such representations and
warranties, as the Trustee may require. The Trustee may withhold the Delivery
or registration of transfer of any Receipts or the delivery of any Underlying
Securities until such proof or other information is filed or such certificates
are executed or such representations and warranties made.
Section 3.2. Liability of Owner for Taxes and Other Charges. If any
tax or other charge shall become payable with respect to any Receipts or any
Underlying Securities represented thereby, such tax or other charge shall be
payable by the Owner of such Receipts to the Trustee. The Trustee shall refuse
to effect any registration of transfer of such Receipts or any withdrawal of
Underlying Securities represented by such Receipt until such payment is made,
and may withhold any dividends or other distributions, or may sell for the
account of the Owner thereof Underlying Securities constituting any multiples
of the securities which must be deposited for issuance of Receipts, and may
apply such dividends or other distributions or the proceeds of any such sale
in payment of such tax or other charge (including any charge or fee payable
hereunder to the Trustee) and the Owner of such Receipt shall remain liable
for any deficiency.
Section 3.3. Warranties on Deposit of Shares. Every Person
depositing Securities under the Depositary Trust Agreement shall be deemed
thereby to represent and warrant that such Securities and each certificate
therefor are validly issued and fully paid, that the person making such
deposit is duly authorized to do so and that at the time of delivery, such
Securities are free and clear of any lien, pledge, encumbrance, right, charge
or claim (other than the rights created by the Depositary Trust Agreement).
Every such person shall also be deemed to represent that such Securities are
not, and Receipts representing such Securities would not be, Restricted
Securities. Such representations and warranties shall survive the deposit of
Securities, issuance of Receipts or termination of the Depositary Trust
Agreement. In the event that the Trustee, in its sole discretion, determines
that any of such representations and warranties were materially inaccurate at
the time deemed to be given and that such inaccuracy has or may adversely
affect other Beneficial Owners in any material respect, the related deposit of
Securities shall be null and void and, to the extent lawful and feasible, the
Trustee shall cause the related Securities (and any securities or financial
instruments resulting therefrom subsequent to the date of deposit and not
previously distributed) to be redelivered, if lawful and feasible, to such
person or related successors in interest. Notwithstanding anything herein to
the contrary, if for any reason any liens, pledges, encumbrances, rights,
charges or claims shall be made on such Securities by a party claiming through
such Depositor, or if such Securities are Restricted Securities, the Trustee
may take such action or refrain from taking any action as it shall determine
in its sole discretion is in the best interests of the holders of the Receipts
and related expenses may be treated as Extraordinary Expenses.
ARTICLE 4
THE UNDERLYING SECURITIES
Section 4.1. Cash Distributions. Whenever the Trustee shall receive
any cash dividend or other cash distribution on any Underlying Securities, the
Trustee shall distribute the amount thus received (net of the fees of the
Trustee as provided in Section 5.6, if applicable) to the Owners entitled
thereto, in proportion to the number of Receipts held by them respectively;
provided, however, that in the event that the respective Securities Issuer or
the Trustee shall be required to withhold and does withhold from such cash
dividend or such other cash distribution an amount on account of taxes, the
amount distributed to the Owners shall be reduced accordingly. The Trustee
shall distribute only such amount, however, as can be distributed without
attributing to any Owner a fraction of one cent. Any such fractional amounts
shall be rounded down to the nearest whole cent and so distributed to Owners
entitled thereto. Any amounts earned by the Trustee in connection with any
undistributed cash resulting from such down-rounding shall be treated as a
cash distribution in connection with payment of custodial fees and handling
fees payable to the Trustee pursuant to Section 5.6(a).
Section 4.2. Distributions Other Than Cash or Securities. Subject to
the provisions of Sections 4.8, 5.2 and 5.6, whenever the Trustee shall
receive any distribution other than (i) a distribution described in Sections
4.1, 4.3 or 4.4 or (ii) any distribution which would otherwise be distributed
hereunder except that the Trustee deems such distribution not to be lawful and
feasible, the Trustee shall, subject to Section 4.10, cause the securities or
property received by it to be distributed to the Owners entitled thereto, in
proportion to the number of Receipts held by them respectively, in any manner
that the Trustee may deem equitable and practicable for accomplishing such
distribution; provided, however, that if in the opinion of the Trustee such
distribution cannot be made proportionately among the Owners entitled thereto,
or if for any other reason (including, but not limited to, any requirement
that a Securities Issuer or the Trustee withhold an amount on account of taxes
or other governmental charges or that such securities must be registered under
the Securities Act in order to be distributed to Owners) the Trustee deems
such distribution not to be feasible, the Trustee shall adopt such method as
it deems equitable and practicable for the purpose of effecting such
distribution, including, but not limited to, the public or private sale of the
securities or property thus received, or any part thereof, and the net
proceeds of any such sale (net of the fees of the Trustee as provided in
Section 5.6) shall be distributed by the Trustee to the Owners entitled
thereto as in the case of a distribution received in cash.
Section 4.3. Distributions in Securities. If any distribution upon
any Underlying Securities consists of a dividend in, or free distribution of,
Securities, the Trustee shall, to the extent lawful and feasible, retain such
Securities under the Depositary Trust Agreement, and, in such case, (i) the
amount of such Securities so retained in respect of each Receipt shall be
added to the classes and quantities of securities which must be deposited for
issuance of Receipts and (ii) the number of Receipts in an Issuance
Denomination may be increased or decreased by the Trustee to the lowest
multiple of [100] Receipts such that no fractional shares are thereby
represented in such Issuance Denomination.
Section 4.4. Rights Offerings. (a) Subject to the provisions of
Section 5.2, if a Securities Issuer offers or causes to be offered to the
holders of any Underlying Securities any rights to subscribe for additional
Securities or other securities, the Trustee shall have discretion in
accordance with this Section 4.4 as to the procedure to be followed in making
such rights available to any Owners or in disposing of such rights on behalf
of Owners and making the net proceeds available to Owners or, if by the terms
of such rights offering or for any other reason (including the absence of an
effective registration statement covering the distribution of securities
underlying the rights), the Trustee may not make such rights available to any
Owners or dispose of such rights and make the net proceeds available to
Owners, then the Trustee shall allow the rights to lapse in accordance with
Section 5.2.
(b) The Trustee will not offer rights to Owners unless both the
rights and the securities to which such rights relate are either exempt from
registration under the Securities Act with respect to a distribution to all
Owners or are registered under the provisions of such Act.
(c) The Trustee shall not be responsible for any failure to
determine that it may be lawful or feasible to make such rights available to
Owners in general or any Owner in particular.
Section 4.5. Fixing of Record Date. Whenever any cash dividend or
other cash distribution shall become payable or any distribution other than
cash shall be made, or whenever the Trustee receives notice of any meeting of
or solicitation of proxies from holders of any Underlying Securities, or
whenever a fee shall be charged by the Trustee under Section 5.6(a)(3), or
whenever for any reason there is a reconstitution or other event under the
Depositary Trust Agreement that causes a change in the composition of the
Securities which must be deposited for issuance of Receipts, or whenever the
Trustee shall find it necessary or convenient in respect of any matter, the
Trustee shall fix a record date (a) for the determination of the Owners who
shall be (i) entitled to receive such dividend or distribution or the net
proceeds of the sale thereof, (ii) entitled to give instructions to the
Trustee for the exercise of voting rights at any such meeting or solicitation
or (iii) required to pay such fee, or (b) on or after which each Receipt will
represent such changed group of Securities. In the case of subsections (a)(i)
and (a)(ii) of this Section 4.5, the Trustee shall use its reasonable efforts
to ensure that, to the extent practicable, the record date set hereunder will
be the same as the record date set by the Securities Issuer. Subject to the
terms and conditions of the Depositary Trust Agreement and Section 5.6(a)
hereof, the Owners on such record date shall be entitled, as the case may be,
to receive the amount distributable by the Trustee with respect to such
dividend or other distribution or the net proceeds of sale thereof, or to give
voting instructions, or to act in respect of any other such matter, or shall
be obligated to pay such fee.
Section 4.6. Reports. The Trustee or its appointed agent shall to
the extent lawful, forward to Owners any reports and communications, including
any proxy statement or other soliciting material, received from a Securities
Issuer which are received by the Trustee as the holder of the Underlying
Securities or its appointed agent, unless such reports and communications have
been forwarded directly to Owners by such Securities Issuer or its appointed
agent.
Section 4.7. Voting Instructions for Underlying Securities. Upon
receipt by the Trustee or its appointed agent of notice of any meeting of, or
solicitation of proxies from, holders of Underlying Securities, the Trustee or
its appointed agent shall, to the extent lawful, mail to the Owners a notice,
the form of which notice shall be in the sole discretion of the Trustee, which
shall contain (a) such information as is contained in such notice of meeting
or solicitation, (b) a statement that the Owners as of the close of business
on a specified record date will be entitled, subject to applicable law and the
provisions of the corporate documents of the Securities Issuer, to instruct
the Trustee as to the exercise of the voting rights, if any, or giving of
proxies, as applicable, in respect of the amount of Underlying Securities
represented by their respective Receipts, and (c) a statement as to the manner
in which such instructions may be given. Upon the written request of an Owner
of a Receipt on such record date, received on or before the date established
by the Trustee for such purpose, the Trustee shall endeavor, insofar as
practicable, to vote or cause to be voted, or to give a proxy, as applicable,
in respect of the amount of Underlying Securities represented by such Receipt
in accordance with the instructions set forth in such request. The Trustee
shall not vote or attempt to exercise the right to vote that attaches to, or
give a proxy with respect to, Underlying Securities other than in accordance
with such instructions.
Section 4.8. Changes Affecting Underlying Securities. (a) In
circumstances where the provisions of Sections 2.11, 4.2 and 4.3 do not apply,
upon any change in nominal value, change in par value, split-up, consolidation
or any other reclassification of any Underlying Securities, or upon any
recapitalization, reorganization, merger or consolidation or sale of assets
affecting the issuer of any Underlying Security, if the relevant Securities
Issuer survives such event, the Trustee shall, to the extent lawful and
feasible, retain such Securities under the Depositary Trust Agreement, and, in
such case, (A) the amount of such Securities so retained in respect of each
Receipt shall be added to the classes and quantities of securities which must
be deposited for issuance of Receipts and (B) the number of Receipts in an
Issuance Denomination may be increased or decreased by the Trustee to the
lowest multiple of 100 Receipts such that no fractional shares are thereby
represented in such Issuance Denomination.
(b) Securities of any class which are surrendered by the Trustee in
connection with any such conversion or exchange shall, effective on the date
of such surrender, no longer be part of the securities which must be deposited
for issuance of Receipts. In any such case, or in the case of an event to
which Section 2.11 applies, the Trustee may call for the Surrender of
outstanding certificates evidencing Receipts to be exchanged for new
certificates specifically describing any applicable change in the classes and
quantities of securities which must be deposited for issuance of Receipts.
Section 4.9. Withholding. In the event that the Trustee determines
that any distribution in property (including Securities and rights to
subscribe therefor) is subject to any tax or other charge which the Trustee is
obligated to withhold, notwithstanding anything to the contrary in these
Standard Terms or the Applicable Depositary Trust Agreement, the Trustee may
by public or private sale dispose of all or a portion of such property
(including Securities and rights to subscribe therefor) in such amounts and in
such manner as the Trustee deems necessary and practicable to pay any such
taxes or charges and the Trustee shall distribute the net proceeds of any such
sale after deduction of such taxes or charges to the Owners entitled thereto
in proportion to the number of Receipts held by them respectively.
Section 4.10. Limitation on Distributions. Notwithstanding any
provision of the Depositary Trust Agreement which requires or permits the
Trustee to distribute or Deliver any securities to Owners, the Trustee shall
not distribute to any Owner any fraction of a share. Instead, the Trustee
shall, to the extent lawful, sell the aggregate of such fractions and
distribute the net proceeds to the Owners entitled thereto as in the case of a
distribution received in cash. In connection with any such sale, the Trustee
shall take reasonable steps to obtain best execution and, in connection
therewith, in its sole discretion, shall select brokers to effect such sale
(which may include affiliates of the Trustee, the Initial Depositor or any
other Depositor) in a manner intended to effect the best execution in
connection therewith. Any such distribution of cash related to the sale of
such fraction shall be treated as a cash distribution hereunder in connection
with the determination of custodial fees and handling fees payable to the
Trustee pursuant to Section 5.6(a).
ARTICLE 5
THE TRUSTEE AND THE INITIAL DEPOSITOR
Section 5.1. Maintenance of Office and Transfer Books by the
Trustee. (a) Until termination of this Depositary Trust Agreement in
accordance with its terms, and if required by the listing requirements of any
exchange in the United States on which the Receipts are traded, the Trustee
shall maintain facilities for the execution and Delivery, registration,
registration of transfers and Surrender of Receipts in accordance with the
provisions of these Standard Terms and the applicable Depositary Trust
Agreement.
(b) The Trustee shall keep books for the registration of Receipts
and transfers of Receipts which at all reasonable times shall be open for
inspection by the Owners.
(c) The Trustee may close the transfer books at any time or from
time to time.
(d) If any Receipts evidenced thereby are listed on one or more
stock exchanges in the United States, the Trustee shall act as Registrar or
appoint a registrar or one or more co-registrars for registry of such receipts
in accordance with any requirements of such exchange or exchanges.
Section 5.2. Prevention or Delay in Performance by the Initial
Depositor or the Trustee. Neither the Initial Depositor nor the Trustee nor
any of their respective directors, employees, agents or affiliates shall incur
any liability to any Owner or Beneficial Owner of any Receipt, if by reason of
any provision of any present or future law or regulation of the United States
or any other country, or of any governmental or regulatory authority or stock
exchange, or by reason of any provision, present or future, of the corporate
documents of any Securities Issuer, or by reason of any provisions of any
securities issued or distributed by any Securities Issuer, or any offering or
distribution thereof, or by reason of any act of God or war or other
circumstances beyond its control, the Initial Depositor or the Trustee shall
be prevented or forbidden from, or be subject to any civil or criminal penalty
on account of, doing or performing any act or thing which by the terms of
these Standard Terms or the applicable Depositary Trust Agreement it is
provided shall be done or performed; nor shall the Initial Depositor or the
Trustee nor any of their respective directors, employees, agents or affiliates
incur any liability to any Owner or Beneficial Owner of any Receipt by reason
of any non-performance or delay, caused as aforesaid, in the performance of
any act or thing which by the terms of these Standard Terms or the applicable
Depositary Trust Agreement it is provided shall or may be done or performed,
or by reason of any exercise of, or failure to exercise, any discretion
provided for in these Standard Terms or the applicable Depositary Trust
Agreement or for any action or inaction taken or omitted in good faith and
without negligence hereunder. Where, by the terms of an offering or
distribution to which Section 2.11, 4.2 or 4.4 applies, or for any other
reason, it is not lawful and feasible to make such distribution or offering
available to Owners, and the Trustee may not dispose of such distribution or
offering on behalf of such Owners and make the net proceeds available to such
Owners, then the Trustee shall not make such distribution or offering
available to Owners and shall allow any rights, if applicable, to lapse.
Section 5.3. Obligations of the Initial Depositor and the Trustee.
(a) Neither the Initial Depositor nor the Trustee assumes any obligation nor
shall they be subject to any liability under these Standard Terms or the
applicable Depositary Trust Agreement to any Owner or Beneficial Owner of any
Receipt (including, without limitation, liability with respect to the validity
or worth of the Underlying Securities), except that each agrees to perform its
respective obligations specifically set forth in these Standard Terms and the
applicable Depositary Trust Agreement without negligence or bad faith. In
performing its obligations set forth in these Standard Terms and the
applicable Depositary Trust Agreement, the Trustee may consult with the
Initial Depositor, in its sole discretion, from time to time in its
determination of various matters hereunder and thereunder.
(b) Neither the Initial Depositor nor the Trustee shall be under any
obligation to prosecute or defend any action, suit or other proceeding in
respect of any Underlying Securities or in respect of the Receipts or the
rights of the beneficial owners of the Receipts. Notwithstanding the
foregoing, the Trustee may, in its discretion, undertake such action as it may
deem necessary at any time to protect the Trust and the rights of the
beneficial owners of the Receipts, provided however that any expense or
liability and any pecuniary cost of the Trustee reasonably incurred in
connection therewith shall be an Extraordinary Trust Expense hereunder.
(c) The Trustee and the Initial Depositor 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 parties have been selected with reasonable care and neither the
Initial Depositor nor the Trustee shall be liable for any action or non-action
by it in reliance upon the advice of or information from legal counsel,
accountants, any person presenting Securities for deposit, any Owner or any
other person believed by it in good faith to be competent to give such advice
or information, including, without limitation, whether any taxes or other
charges are due on, or whether there are any legal restrictions on the
delivery or transfer of any Securities or Receipts, or whether any Securities
are Restricted Securities.
(d) The Trustee shall not be liable for any acts or omissions made
by a successor Trustee whether in connection with a previous act or omission
of the Trustee or in connection with any matter arising wholly after the
resignation of the Trustee, provided that in connection with the issue out of
which such potential liability arises the Trustee performed its obligations
without negligence or bad faith while it acted as Trustee.
(e) 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, endorsement, assignment, resolution,
draft or other document whether or not of the same kind, prima facie properly
executed, or for the disposition of moneys or Securities pursuant to these
Standard Terms, provided that the Trustee has acted without negligence or bad
faith. The Trustee may construe any of the provisions of these Standard Terms
or any Depositary Trust Agreement insofar as the same may appear to be
ambiguous or inconsistent with any other provisions hereof or thereof, and any
construction of any such provision by the Trustee in good faith shall be
binding upon the parties hereto and thereto.
(f) The Trustee shall not be responsible for or in respect of the
recitals herein, the validity or sufficiency of the trust created by any
Depositary Trust Agreement, the validity or sufficiency of these Standard
Terms or any Depositary Trust Agreement or for the due execution hereof and
thereof by the Initial 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 (except for the due execution
thereof by the Trustee).
(g) The Trustee shall not be responsible for any failure to carry
out any instructions to vote any of the Underlying Securities, or for the
manner in which any such vote is cast or the effect of any such vote, provided
that any such action or non-action is without negligence or bad faith.
(h) Except as specifically provided in Section 4.6, the Trustee
shall have no obligation to monitor or to obtain any information concerning
the business or affairs of any Securities Issuer or to advise Owners or
Beneficial Owners of any event or condition affecting any Securities Issuer.
(i) The Trustee shall have no obligation to comply with any
direction or instruction from any Owner or Beneficial Owner regarding Receipts
except to the extent specifically provided in these Standard Terms or any
applicable Depositary Trust Agreement.
(j) The Trustee shall be a fiduciary under these Standard Terms and
the applicable Depositary Trust Agreement; provided, however, that the
fiduciary duties and responsibilities and liabilities of the Trustee shall be
limited by, and shall be only those specifically set forth in, these Standard
Terms and the applicable Depositary Trust Agreement.
(k) For the purposes of these Standard Terms, actual knowledge or
knowledge of the Trustee shall mean actual knowledge of an officer in the
corporate action department of the Trustee, and actual knowledge or knowledge
of the Initial Depositor shall mean actual knowledge of an officer of the
Initial Depositor responsible for matters regarding the Trust.
Section 5.4. Resignation or Removal of the Trustee; Appointment of
Successor Trustee. (a) The Trustee may at any time resign as Trustee hereunder
by written notice of its election so to do, delivered to the Initial
Depositor, and such resignation shall take effect upon the appointment of a
successor Trustee and its acceptance of such appointment as hereinafter
provided.
(b) If at any time the Trustee is in material breach of its
obligations under the Depositary Trust Agreement and the Trustee fails to cure
such breach within 30 days after receipt by the Trustee of written notice from
the Initial Depositor or Owners of 25% or more of the outstanding Receipts
specifying such default and requiring the Trustee to cure such default, the
Initial Depositor, acting on behalf of the Owners, may remove the Trustee by
written notice delivered to the Trustee in the manner provided in Section 7.5,
and such removal shall take effect upon the appointment of the successor
Trustee and its acceptance of such appointment as hereinafter provided.
(c) In case at any time the Trustee acting hereunder shall resign or
be removed, the Initial Depositor, acting on behalf of the Owners, shall use
its reasonable efforts to appoint a successor Trustee. Every successor Trustee
shall execute and deliver to its predecessor and to the Initial Depositor,
acting on behalf of the Owners, an instrument in writing accepting its
appointment hereunder, and thereupon such successor Trustee, without any
further act or deed, shall become fully vested with all the rights, powers,
duties and obligations of its predecessor; but such predecessor, nevertheless,
upon payment of all sums due it and on the written request of the Initial
Depositor, acting on behalf of the Owners, shall execute and deliver an
instrument transferring to such successor all rights and powers of such
predecessor hereunder, shall duly assign, transfer and deliver all right,
title and interest in the Underlying Securities to such successor, and shall
deliver to such successor a list of the Owners of all outstanding Receipts.
The Initial Depositor or any such successor Trustee shall promptly mail notice
of the appointment of such successor Trustee to the Owners.
(d) If the Trustee merges, consolidates or converts into, or
transfers all or substantially all of its trust servicing business to another
corporation, such corporation shall be the successor of such Trustee without
the execution or filing of any document or any further act.
Section 5.5. Indemnification. (a) The Initial Depositor shall
indemnify the Trustee, its directors, employees, agents and affiliates
against, and hold each of them harmless from, any loss, liability, cost,
expense or judgment (including, but not limited to, the fees and expenses of
counsel) (collectively "Indemnified Amounts") which is suffered or incurred by
any of them and which arises out of acceptance of this Trust or acting as
Trustee hereunder or any acts performed or omitted pursuant to the provisions
of these Standard Terms or any Depositary Trust Agreement, as the same may be
amended, modified or supplemented from time to time, or any filings with or
submissions to the Commission in connection with or with respect to such
Receipts (which by way of illustration and not by way of limitation, include
any registration statement and any amendments or supplements thereto filed
with the Commission or any periodic reports or updates that may be filed under
the Exchange Act, or any failure to make any filings or submissions to the
Commission which are required to be made in connection with or with respect to
such Receipts), except that the Initial Depositor shall not have any
obligations under this Section 5.5(a) to pay Indemnified Amounts incurred as a
result of and attributable to (i) the negligence or bad faith of the Trustee
in carrying out its duties hereunder, or material breach of the terms of this
Agreement by, the Trustee, except that any action or omission of the Trustee
under these Standard Terms or any Depository Trust Agreement which infringes,
violates or breaches or damages or injures any rights or interests of a third
party, shall not be deemed to be negligent or in bad faith unless such action
or omission is a material breach of these Standard Terms or any Depository
Trust Agreement, (ii) written information regarding the name and address of
the Trustee furnished in writing to the Initial Depositor (and not materially
changed or altered) expressly for use in the registration statement filed with
the Commission relating to the Receipts and other written information provided
by the Trustee specifically for inclusion in reports filed on behalf of the
Trust under the Exchange Act or (iii) any misrepresentations or omissions made
by a Depositor (other than Initial Depositor) in connection with such
Depositor's offer and sale of Receipts.
(b) The Trustee shall indemnify the Initial Depositor, its
directors, employees, agents and affiliates against, and hold each of them
harmless from, any Indemnified Amounts (i) caused by the negligence or bad
faith of the Trustee in the performance of its duties hereunder or (ii)
arising out of any written information regarding the name and address of the
Trustee furnished in writing to the Initial Depositor (and not materially
changed or altered) expressly for use in the registration statement filed with
the Commission relating to the Receipts.
(c) If the indemnification provided for in this Section 5.5 is
unavailable or insufficient to hold harmless the indemnified party under
subsection (a) or (b) above, then the indemnifying party shall contribute to
the Indemnified Amounts referred to in subsection (a) or (b) above (i) in such
proportion as is appropriate to reflect the relative benefits received by the
Initial Depositor on the one hand and the Trustee on the other hand from the
offering of the Receipts which are the subject of the action or (ii) if the
allocation provided by clause (i) above is not permitted by applicable law, in
such proportion as is appropriate to reflect not only the relative benefits
referred to in clause (i) above but also the relative fault of the Initial
Depositor on the one hand and the Trustee on the other hand in connection with
the action, statement or omission which resulted in such Indemnified Amount as
well as any other relevant equitable considerations. The relative benefits
received by the Initial Depositor on the one hand and the Trustee on the other
shall be deemed to be in the same proportions as the total commissions from
the offering of the Receipts which are the subject of the action (before
deducting expenses) received by the Initial Depositor bear to the total fees
received by the Trustee in connection with such Receipts. The relative fault
shall be determined by reference to, among other things, whether any untrue or
alleged untrue statement of a material fact or the omission or alleged
omission to state a material fact from which the action arises relates to
information supplied by the Initial Depositor or the Trustee and the parties,
relative intent, knowledge, access to information and opportunity to correct
or prevent such untrue statement or omission or the act or omission from which
the action arises. The amount of Indemnified Amounts referred to in the first
sentence of this subsection (c) shall be deemed to include any legal or other
expenses reasonably incurred by such indemnified party in connection with
investigating or defending any action or claim which is the subject of this
subsection (c).
Section 5.6. Charges of Trustee. (a) The following charges shall be
incurred by any party depositing or withdrawing Securities or by any party
Surrendering Receipts or to whom Receipts are Delivered or any Owner, as
applicable: (1) taxes and charges and other fees payable in respect of the
Underlying Securities assessed by third-party custodians, depositories,
depositary banks or transfer agents in the ordinary course of their respective
businesses, (2) a fee of $5 or less (as determined in the sole discretion of
the Trustee) per 100 Receipts for the execution and Delivery of Receipts
pursuant to Section 2.5, and, in addition, for the Surrender of Receipts
pursuant to Section 2.7, (3) a custodial fee which shall accrue on the first
day of each calendar quarter at a rate of $.01 or less (as determined in the
sole discretion of the Trustee) per Receipt per quarter for the custodial
services under the Depositary Trust Agreement (which fee shall be assessed
against Owners of record as of the date or dates set by the Trustee in
accordance with Section 4.5 and shall be collected at the Trustee's discretion
by deducting such fee from one or more cash dividends or other cash
distributions), and (4) a $.25 per 100 Receipts handling fee which shall be
incurred for each cash dividend or other cash distribution in respect of the
Underlying Securities at such time that such distributions are made (which fee
shall be assessed against Owners of record as of the date or dates set by the
Trustee in accordance with Section 4.5 and shall be collected by deducting
such fee from the related cash dividends or other cash distributions when
made); provided, however, that with respect to the aggregate fee accrued in
any calendar year under clause (3) and clause (4) with respect to each
Receipt, no such fee shall accrue which exceeds the total cash dividends and
other cash distributions the record date for which falls in such calendar year
and payable with respect to such Receipt. The fees payable pursuant to this
Section 5.6(a) shall be deemed to be full reimbursement to the Trustee for all
Trust Expenses.
(b) Extraordinary Trust Expenses shall be payable by the Initial
Depositor upon receipt of a detailed written invoice therefor from the Trustee
provided that the Trustee shall use its best efforts to provide the Initial
Depositor with written notice prior to any Extraordinary Trust Expense to be
incurred in excess of $1,000 and, provided further, that in no event shall
Extraordinary Trust Expenses be incurred in an amount in excess of $50,000 in
the aggregate without the express written consent of the Initial Depositor.
Section 5.7. Retention of Trust Documents. The Trustee is authorized
to destroy those documents, records, bills and other data compiled during the
term of the Depositary Trust Agreement at the times permitted by the laws or
regulations governing the Trustee.
Section 5.8. Federal Securities Law and Other Regulatory Filings.
The Initial Depositor shall (i) prepare and file a registration statement with
the Commission and take such action as is necessary from time to time to
qualify the Receipts for offering and sale under the federal securities laws
of the United States and any other state or other jurisdiction in which the
Receipts are offered for sale, including the preparation and filing of
amendments and supplements to such registration statement, (ii) promptly
prepare and file any amendment and supplement to the registration statement or
prospectus, as required by applicable law or regulation, and promptly deliver
the same to the Trustee, (iii) promptly notify the Trustee of any order
preventing or suspending the use of any prospectus, of any request for the
amending or supplementing of the registration statement or prospectus or if
any event or circumstance occurs to the knowledge of the Initial Depositor as
a result of which the registration statement or prospectus, as then amended or
supplemented, would include an untrue statement of a material fact or omit to
state any material fact necessary to make the statements therein, in the light
of the circumstances under which they were made, not misleading, (iv) provide
the Trustee from time to time with copies, including copies in electronic form
or otherwise, of the prospectus, as amended and supplemented, in such
quantities as the Trustee may reasonably request, (v) prepare and file any
periodic reports or updates that may be required under the Exchange Act and
provide copies to the Trustee of same, and (vi) prepare and file any listing
application necessary to list the Receipts on a U.S. stock exchange, and
prepare and file any additional forms or applications in connection with the
continued listing of such Receipts, and (vii) if such Receipts are delisted
from such stock exchange and the Trust is not terminated in accordance with
Section 6.2 hereof, to promptly take all reasonable steps to list the Receipts
on another U.S. stock exchange.
Section 5.9. Prospectus Delivery. The Trustee shall, if required by
the federal securities laws of the United States, in any manner permitted by
such laws, deliver at the time of issuance of Receipts, a copy of the relevant
prospectus, as amended and supplemented at such time, and delivered to the
Trustee by the Initial Depositor, to each Person depositing Underlying
Securities into the Trust for issuance of Receipts, provided, however, that
the Initial Depositor shall use its best efforts to provide a means for
delivery of the relevant prospectus through the Internet, including, but not
limited to providing and maintaining a website on which is available for
downloading the relevant prospectus and any supplements thereto as may be in
effect from time to time, and provided further that the Initial Depositor
shall use its best efforts to get the consent of each Depositor to such form
of delivery as the same may be required, and for as long as such consent is
required, under the federal securities laws of the United States as the same
may be interpreted from time to time by the Commission.
ARTICLE 6
AMENDMENT AND TERMINATION
Section 6.1. Amendment. The Trustee and the Initial Depositor may
amend any provisions of the Depositary Trust Agreement without the consent of
any Owner. Promptly after the execution of any amendment, the Trustee shall
furnish written notification of any such amendment to any Owner. Any amendment
that imposes or increases any fees or charges (other than taxes and other
charges, registration fees or other such expenses), or that otherwise
prejudices any substantial existing right of the Owners will not become
effective until 30 days after notice of such amendment is given to the Owners.
Every Owner and Beneficial Owner, at the time any amendment so becomes
effective, shall be deemed, by continuing to hold any Receipt or an interest
therein, to consent and agree to such amendment and to be bound by the
Depositary Trust Agreement as amended thereby. In no event shall any amendment
impair the right of the Owner of any Receipt to Surrender such Receipt and
receive therefor the Underlying Securities represented thereby, except in
order to comply with mandatory provisions of applicable law.
Section 6.2. Early Termination. (a) The Trust shall terminate by the
Trustee mailing notice of such termination to the Owners of all Receipts then
outstanding at least 30 days prior to the date set for termination (or upon
such lesser notice as may be practicable in the event of an occurrence set
forth in (i) or (iv) below) if any of the following occurs:
(i) The Trustee is notified that the Receipts are delisted from a
national securities exchange and are not approved for listing on another
national securities exchange within 5 business days of their delisting;
(ii) Owners of more than 50% of the outstanding Receipts notify the
Trustee that they elect to terminate the Trust;
(iii) 60 days shall have expired after the Trustee shall have
delivered to the Initial Depositor and the Owners a written notice of its
election to resign and a successor trustee shall not have been appointed and
accepted its appointment as provided in Section 5.4;
(iv) The Initial Depositor or the Trustee determines, in its sole
discretion, that legal or regulatory issues (including litigation, Commission
action or interpretive developments of applicable law or regulation) make such
early termination in the best interest of the Owners, the Initial Depositor or
the Trustee;
(v) In excess of $50,000 of Extraordinary Trust Expenses have been
incurred by or on behalf of the Trust since the Closing Date, or are
reasonably believed by the Trustee to be incurred within the succeeding 30 day
period, and either the Trustee or the Initial Depositor so elects; or
(vi) Less than nine Securities Issuers are represented by the
Receipts.
(b) On and after the date of termination, the Trustee shall deliver
to each Owner of a Receipt, to him or upon his order, the amount of Underlying
Securities evidenced by such Receipt and thereupon cancel such Receipt,
provided, however, at the sole discretion of the Trustee, the Trustee may
condition such delivery upon prior (i) Surrender of such Receipt at the office
of the Trustee, (ii) payment of the fee of the Trustee for the Surrender of
Receipts referred to in Section 2.7 and (iii) payment of any applicable taxes
or charges, or the Trustee may deduct any fees, taxes or charges from any cash
distribution with respect to the Receipts, or the Trustee may, in its sole
discretion, collect any such fees, taxes or charges from the Owner at any time
thereafter. If any Receipts shall remain outstanding after the date of
termination, the Trustee thereafter shall discontinue the registration of
transfers of Receipts, shall suspend the distribution of dividends or other
distribution to the Owners thereof, and shall not give any further notices or
perform any further acts under these Standard Terms or the applicable
Depositary Trust Agreement, except that the Trustee shall continue to collect
dividends and other distributions pertaining to Underlying Securities and hold
the same uninvested and without liability for interest, shall sell rights as
provided in these Standard Terms or the applicable Depositary Trust Agreement,
and shall continue to deliver Underlying Securities, together with any
dividends or other distributions received with respect thereto and the net
proceeds of the sale of any rights or other property, in exchange for Receipts
Surrendered to the Trustee (after deducting or upon payment of, in each case,
the fee of the Trustee set forth in 5.6 for the Surrender of Receipts, any
expenses for the account of the Owner of such Receipts in accordance with the
terms and conditions of the Depositary Trust Agreement, and any applicable
taxes or charges). At any time after the expiration of one year following the
date of termination, the Trustee may sell the Underlying Securities then held
hereunder and may thereafter hold uninvested the net proceeds of any such
sale, together with any other cash then held by it hereunder, unsegregated and
without liability for interest, for the pro rata benefit of the Owners of
Receipts which have not theretofore been Surrendered, such Owners thereupon
becoming general creditors of the Trustee with respect to such net proceeds.
After making such sale, the Trustee shall be discharged from all obligations
under these Standard Terms with respect to the Receipts and the applicable
Depositary Trust Agreement, except to account for such net proceeds and other
cash (after deducting, in each case, the fee of the Trustee for the Surrender
of Receipts, any fees of the Trustee due and owing from the Owner of such
Receipts pursuant to Section 5.6, including any custody fees and handling fees
which may accrue during the termination period, any expenses for the account
of the Owner of such Receipts in accordance with the terms and conditions of
the Depositary Trust Agreement, and any applicable taxes or governmental
charges). Upon the termination of the applicable Depositary Trust Agreement,
the Initial Depositor shall be discharged from all obligations under such
Depositary Trust Agreement except for its obligations to the Trustee under
Sections 5.5 and 5.6(b).
ARTICLE 7
MISCELLANEOUS
Section 7.1. Counterparts. These Standard Terms and each Depositary
Trust Agreement may be executed in any number of counterparts, each of which
shall be deemed an original and all of such counterparts shall constitute one
and the same instrument. Copies of these Standard Terms and the applicable
Depositary Trust Agreement shall be filed with the Trustee and shall be open
to inspection by any Owner of a Receipt during business hours.
Section 7.2. Third-Party Beneficiaries. These Standard Terms and
each Depositary Trust Agreement are for the exclusive benefit of the
respective parties hereto and thereto, and shall not be deemed to give any
legal or equitable right, remedy or claim whatsoever to any other person.
Section 7.3. Severability. In case any one or more of the provisions
contained in these Standard Terms or the applicable Depositary Trust Agreement
or in the Receipts should be or become invalid, illegal or unenforceable in
any respect, the validity, legality and enforceability of the remaining
provisions contained herein or therein shall in no way be affected, prejudiced
or disturbed thereby.
Section 7.4. Owners and Beneficial Owners as Parties; Binding
Effect. The Owners, Beneficial Owners and Depositors from time to time shall
be parties to the applicable Depositary Trust Agreement and shall be bound by
all of the terms and conditions hereof and thereof and of the Receipts by
their acceptance of Receipts or any interest therein or by their depositing
Securities, as the case may be.
Section 7.5. Notices. (a) Any and all notices to be given to the
Initial Depositor shall be deemed to have been duly given if personally
delivered or sent by mail or cable, telex or facsimile transmission confirmed
by letter, addressed to Epoch Securities, Inc., 151 Union Street, IceHouse
Two, San Francisco, CA 94111, Attention: Stanton Green, or any other place to
which the Initial Depositor may have transferred its principal office with
notice to the Trustee.
(b) Any and all notices to be given to the Trustee shall be deemed to
have been duly given if personally delivered or sent by mail or cable; telex
or facsimile transmission confirmed by letter, addressed to Steven Gallant,
Director of Client Management, Investors Bank and Trust Company, Hancock
Tower, 200 Clarendon Street, Boston, Massachusetts 02116, or any other place
to which the Trustee may have transferred its office with notices to the
Initial Depositor.
(c) Any and all notices to be given to any Owner shall be deemed to
have been duly given if personally delivered or sent by mail or cable, telex
or facsimile transmission confirmed by letter, addressed to such Owner at the
address of such Owner as it appears on the transfer books of the Trustee, or,
if such Owner shall have filed with the Trustee a written request that notices
intended for such Owner be mailed to some other address, at the address
designated in such request.
(d) Delivery of a notice sent by mail or cable, telex or facsimile
transmission shall be deemed to be effected at the time when a duly addressed
letter containing the same (or a confirmation thereof in the case of a cable,
telex or facsimile transmission) is deposited, postage prepaid, in a
post-office letter box. The Trustee may, however, act upon any cable, telex or
facsimile transmission received by them, notwithstanding that such cable,
telex or facsimile transmission shall not subsequently be confirmed by letter
as aforesaid.
Section 7.6. Governing Law. This Depositary Trust Agreement and the
Receipts shall be interpreted and all rights hereunder and thereunder and
provisions hereof and thereof shall be governed by the substantive laws (but
not the choice of law rules) of the State of New York.
<PAGE>
IN WITNESS WHEREOF, EPOCH SECURITIES, INC. and INVESTORS BANK &
TRUST COMPANY have duly executed these Standard Terms as of the day and year
first set forth above.
EPOCH SECURITIES, INC.
By: ____________________________________
Name:
Title:
INVESTORS BANK & TRUST COMPANY,
as Trustee
By: ____________________________________
Name:
Title:
<PAGE>
EXHIBIT A
[NAME OF TRUST]
[FORM OF] DEPOSITARY TRUST AGREEMENT
DEPOSITARY TRUST AGREEMENT dated as of ___________________ (this
"Depositary Trust Agreement", between EPOCH SECURITIES, INC., a Delaware
corporation (the "Initial Depositor"), INVESTORS BANK & TRUST COMPANY, a
Massachusetts trust company, as trustee (the "Trustee"), and all Holders and
Beneficial Owners (each as hereinafter defined) from time to time of
Depositary Trust Receipts issued hereunder and all Depositors (as hereinafter
defined) from time to time.
Section 1. Incorporation of Standard Terms. The Standard Terms for
Depositary Trust Agreements agreed to as of ___________, 2000 (the "Standard
Terms"), between the Initial Depositor and the Trustee are hereby incorporated
by reference into and made a part of this Depositary Trust Agreement. If there
is any conflict between the provisions of this Depositary Trust Agreement and
the Standard Terms, the provisions of this Depositary Trust Agreement shall
control.
Section 2. Securities to be Deposited. Initially, the securities
which must be deposited for issuance of one Round Lot of Receipts and which
shall be represented thereby shall be as follows:
Quantity which
must be deposited
Issuer and Title of Security per Round Lot of Receipts
---------------------------- -------------------------
[Issuer and title of security] [Quantity]
[Issuer and title of security] [Quantity]
provided, however, that if an event to which Section 2.11 of the Standard
Terms applies or an event described in Section 4.3 or 4.8 of the Standard
Terms occurs, the definition of the securities that must be deposited for
issuance of one Round Lot of Receipts shall be changed as provided in such
Sections, if applicable.
Section 3. Creation and Declaration of Trust; Termination Date. The
trust created hereby shall be known as [Name of Trust], for which the Trustee,
or the Initial Depositor to the extent provided herein, may conduct the
business of the Trust, make and execute contracts, and sue and be sued. The
termination date of the Trust will be December 31, 2005, unless terminated
earlier pursuant to the Standard Terms.
<PAGE>
IN WITNESS WHEREOF, EPOCH SECURITIES, INC. and INVESTORS BANK &
TRUST COMPANY have duly executed this agreement as of the day and year first
set forth above. All Owners and Beneficial Owners shall become parties hereto
upon acceptance by them of Receipts issued in accordance with the terms hereof
or any interest therein, and all Depositors shall become parties hereto upon
depositing any Securities hereunder.
EPOCH SECURITIES, INC.
By: ____________________________________
Name:
Title:
INVESTORS BANK & TRUST COMPANY,
as Trustee
By: ____________________________________
Name:
Title:
<PAGE>
EXHIBIT B
[Form of Receipt]
THE RECEIPTS EVIDENCED HEREBY REPRESENT RIGHTS WITH RESPECT TO UNDERLYING
SECURITIES (AS DEFINED IN THE DEPOSITARY TRUST AGREEMENT REFERRED TO HEREIN)
HELD BY THE TRUST AND DO NOT EVIDENCE AN OBLIGATION OF, OR AN INTEREST IN, AND
ARE NOT GUARANTEED BY THE INITIAL DEPOSITOR OR THE TRUSTEE OR ANY OF THEIR
RESPECTIVE AFFILIATES. NEITHER THE RECEIPTS NOR THE UNDERLYING SECURITIES ARE
INSURED OR GUARANTEED BY ANY GOVERNMENTAL AGENCY OR ANY OTHER PERSON.
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), TO THE AGENT
AUTHORIZED BY THE ISSUER FOR REGISTRATION OF TRANSFER EXCHANGE OR PAYMENT, AND
ANY CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH
OTHER NAME AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY
PAYMENT IS MADE TO CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN
AUTHORIZED REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE, OR OTHER USE HEREOF
FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE
REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.
<PAGE>
DEPOSITARY TRUST RECEIPTS
ISSUED BY
XYZ NETS(SM) TRUST
REPRESENTING COMMON STOCK OF
[LIST COMPANIES HERE]
INVESTORS BANK & TRUST COMPANY, as Trustee
No. CUSIP NO.
INVESTORS BANK & TRUST COMPANY, as Trustee (hereinafter called the
"Trustee"), hereby certifies that CEDE & CO., as nominee of the Depository
Trust Company, or registered assigns, IS THE OWNER OF * Depository Trust
Receipts issued by XYZ NETS(SM) Trust, each representing the securities
described in the within-mentioned Depositary Trust Agreement. At the date
hereof, each Round Lot of Receipts represents the right to receive the
following securities:
Quantity
Initially
Represented by
Issuer and Title Each Round Lot
of Security of Receipts
________________ ______________
________________ ______________
________________ ______________
which are deposited under the Depositary Trust Agreement referred to herein at
the office of the Trustee. The specification of the securities represented by
each Round Lot of Receipts is subject to change as provided in the Depositary
Trust Agreement. The Trustee's office is located at Hancock Tower, 200
Clarendon Street, Boston, MA. 02116.
THE TRUSTEE'S OFFICE ADDRESS IS
Hancock Tower, 200 Clarendon Street, Boston, MA. 02116
-------------
* That number of Receipts held at The Depository Trust Company at any given
point in time.
<PAGE>
(1) THE DEPOSITARY TRUST AGREEMENT.
------------------------------
This Receipt is issued upon the terms and conditions set forth in the
Depositary Trust Agreement, dated as of _______, 2000 (the "Depositary Trust
Agreement"), agreed to by and among the Initial Depositor, the Trustee, all
Owners and Beneficial Owners from time to time of Receipts issued thereunder
and all Depositors. By becoming an Owner or Beneficial Owner, or by depositing
Securities, such Person agrees to become a party to the Depositary Trust
Agreement and become bound by all the terms and conditions thereof. The
Depositary Trust Agreement sets forth the rights of Owners and the rights and
duties of the Trustee in respect of the Securities deposited thereunder and
any and all other securities, property and cash from time to time received in
respect of such Securities and held thereunder (such Securities, other
securities, property, and cash are herein called "Underlying Securities").
Copies of the Depositary Trust Agreement are on file at the Trustee's office
in Boston, MA.
The statements made on the face and reverse of this Receipt are summaries
of certain provisions of the Depositary Trust Agreement and are qualified by
and subject to the detailed provisions of the Depositary Trust Agreement, to
which reference is hereby made. Capitalized terms not defined herein shall
have the meanings set forth in the Depositary Trust Agreement.
(2) SURRENDER OF RECEIPTS AND WITHDRAWAL OF SECURITIES.
--------------------------------------------------
Upon Surrender at the office of the Trustee during the Trustee's regular
business hours of a Round Lot of Receipts or integral multiples thereof for
the purpose of withdrawal of the Underlying Securities represented thereby,
and upon payment of the fee of the Trustee in connection with the Surrender of
Receipts as provided in Section 5.6 of the Standard Terms and payment of all
taxes and charges payable in connection with such Surrender and withdrawal of
the Underlying Securities, and subject to the terms and conditions of the
applicable Depositary Trust Agreement, including, without limitation, Section
4.10 thereof, the Owner of such Receipts shall be entitled to Delivery of the
amount of Underlying Securities at the time represented by such Receipts.
Delivery of such Underlying Securities may be made by (i) Delivery of
Securities to such Owner or as ordered by such Owner and (ii) any available
form of delivery of any other securities, property and cash to which such
Owner is then entitled to such Owner or as ordered by such Owner. The Trustee
shall only deliver whole Underlying Securities upon Surrender of Receipts
representing such Underlying Securities.
(3) REGISTRATION OF TRANSFERS, SPLIT-UPS AND COMBINATIONS OF CERTIFICATES;
LIMITATIONS.
----------------------------------------------------------------------
The transfer of ownership of Receipts evidenced by this certificate is
registrable on the books of the Trustee at its office by the Owner hereof in
person or by a duly authorized attorney, upon Surrender of this certificate
evidencing Receipts, properly endorsed or accompanied by proper instruments of
transfer, and duly stamped as may be required by applicable laws. This
certificate evidencing Receipts may be split up into other such certificates,
each evidencing any integral multiple of a Round Lot of Receipts, or may be
combined with other certificates evidencing Receipts into one such
Certificate, in each case evidencing the same aggregate number of Receipts as
the certificate or certificates Surrendered.
As a condition precedent to the Delivery, registration of transfer,
split-up, combination or Surrender (including, for the avoidance of doubt, any
Surrender in connection with an exchange) of any Receipt or withdrawal of any
Underlying Securities, the Trustee or Registrar may require payment from the
Depositor of Securities or the presentor of the Receipts of a sum sufficient
to reimburse it for any tax or other charge and any stock transfer or
registration fee with respect thereto (including any such tax or charge and
fee with respect to Securities being deposited or withdrawn) and payment of
any applicable fees as herein provided, may require the production of proof
satisfactory to it as to the identity and genuineness of any signature and may
also require compliance with any regulations the Trustee may establish
consistent with the provisions of the Depositary Trust Agreement, including,
without limitation, Section 2.8 of the Standard Terms.
The Delivery of Receipts against deposits of Securities, the registration
of transfer of Receipts or the Surrender of Receipts for the purpose of
withdrawal of Underlying Securities may be suspended, generally or in
particular instances, during any period when (i) the transfer books of the
Trustee are closed, (ii) the transfer books of a Securities Issuer are closed,
(iii) transfers through DTC are unavailable, or (iv) if any such action is
deemed necessary or advisable by the Trustee at any time or from time to time,
subject to the provisions of the following sentence, and Delivery of Receipts
against deposit of Securities shall be suspended for the twenty-five (25) day
period immediately subsequent to the Closing Date, however, such suspension
shall not apply to the Underwriters who request to so deposit the Securities
to cover short positions created during the initial offering period.
Notwithstanding any other provision of any applicable Depositary Trust
Agreement or the Receipts, the Surrender of Receipts and withdrawal of
Underlying Securities may not be suspended except as set forth in the previous
sentence and for (i) temporary delays caused by closing the transfer books of
the Trustee or a Securities Issuer, (ii) the payment of fees, taxes and
applicable charges, and (iii) compliance with any U.S. laws or governmental
regulations relating to the Receipts or to the withdrawal of the Underlying
Securities. Without limitation of the foregoing, the Trustee shall not
knowingly accept for deposit under the Depositary Trust Agreement any
Securities required to be registered under the provisions of the Securities
Act, for the public offer and sale thereof in the United States unless a
registration statement is in effect as to such Securities for such offer and
sale.
(4) RECONSTITUTION EVENTS.
---------------------
(a) If any class of Securities ceases to be outstanding as a result of a
merger, consolidation or other corporate combination of the Securities Issuer
and Section 4.8 of the Standard Terms does not apply, the Trustee shall, if it
has actual knowledge of such event, to the extent lawful and feasible and
subject to Section 4.10 of the Standard Terms, distribute any securities which
shall be received by the Trustee in exchange for, in conversion of or in
respect of Underlying Securities which are not Securities issued by a
Securities Issuer to the Owners in proportion to their ownership of Receipts.
Effective on the date that such Securities cease to be outstanding, such class
of Securities shall cease to be part of the securities which must be deposited
for issuance of Receipts.
(b) If any class of Securities is delisted from trading on its primary
exchange or market and is not listed for trading on another national
securities exchange or through NASDAQ within five business days from the date
of such delisting, the Trustee shall, if it has actual knowledge of such
event, to the extent lawful and feasible and subject to Section 4.10 of the
Standard Terms, distribute the Underlying Securities of such class to the
Owners in proportion to their ownership of Receipts. Effective on the date of
such distribution, such class of Securities shall cease to be a part of the
securities which must be deposited for issuance of Receipts .
(c) In the event that any Securities Issuer no longer has a class of
common stock registered under section 12 of the Exchange Act, the Trustee
shall, if it has actual knowledge of such event, to the extent lawful and
feasible and subject to Section 4.10 of the Standard Terms, distribute the
Underlying Securities of such Securities Issuer to the Owners in proportion to
their ownership of Receipts. Effective on the date of such distribution, such
class of Securities shall cease to be part of the securities which must be
deposited for issuance of Receipts.
(d) If the Commission determines that a Securities Issuer is an
investment company under the Investment Company Act, and the Trustee has
actual knowledge of such Commission determination, then the Trustee shall, to
the extent lawful and feasible and subject to Section 4.10 of the Standard
Terms, distribute the Underlying Securities of such Securities Issuer to the
Owners in proportion to their ownership of Receipts. Effective on the date of
such distribution, such class of Securities shall cease to be part of the
securities which must be deposited for issuance of Receipts.
(5) LIABILITY OF OWNER FOR TAXES AND OTHER CHARGES.
-------------------------------------------------------
If any tax or other charge shall become payable with respect to any
Receipts or any Underlying Securities represented thereby, such tax or other
charge shall be payable by the Owner hereof to the Trustee. The Trustee shall
refuse to effect any registration of transfer of such Receipts or any
withdrawal of Underlying Securities represented by such Receipt until such
payment is made, and may withhold any dividends or other distributions, or may
sell for the account of the Owner hereof Underlying Securities constituting
any multiples of the securities which must be deposited for issuance of
Receipts, and may apply such dividends or other distributions of the proceeds
of any such sale in payment of such tax or other charge (including any charge
or fee payable hereunder to the Trustee) and the Owner hereof shall remain
liable for any deficiency.
(6) WARRANTIES ON DEPOSIT OF SECURITIES.
--------------------------------------------
Every Person depositing Securities under the Depositary Trust Agreement
shall be deemed thereby to represent and warrant that such Securities and each
certificate therefor are validly issued and fully paid, that the person making
such deposit is duly authorized to do so and that at the time of delivery,
such Securities are free and clear of any lien, pledge, encumbrance, right,
charge or claim (other than the rights created by the Depositary Trust
Agreement). Every such person shall also be deemed to represent that such
Securities are not, and Receipts representing such Securities would not be,
Restricted Securities. Such representations and warranties shall survive the
deposit of Securities, issuance of Receipts or termination of the Depositary
Trust Agreement. In the event that the Trustee, in its sole discretion,
determines that any of such representations and warranties were materially
inaccurate at the time deemed to be given and that such inaccuracy has or may
adversely affect other Beneficial Owners in any material respect, the related
deposit of Securities shall be null and void and the Trustee shall cause the
related Securities (and any securities or financial instruments resulting
therefrom subsequent to the date of deposit and not previously distributed) to
be redelivered, if lawful and feasible, to such person or its successors in
interest. Notwithstanding anything herein to the contrary, if for any reason
any liens, pledges, encumbrances, rights, charges or claims shall be made on
such Securities by a party claiming through such Depositor, or if such
Securities are Restricted Securities, the Trustee may take such action or
refrain from taking any action as it shall determine in its sole discretion is
in the best interests of the holders of the Receipts and related expenses may
be treated as Extraordinary Expenses.
(7) FILING PROOFS, CERTIFICATES AND OTHER INFORMATION.
----------------------------------------------------------
Any person presenting Securities for deposit or any Owner of a Receipt
may be required from time to time to file with the Trustee such proof of
citizenship or residence, exchange control approval, or such information
relating to the registration on the books of any Securities Issuer or
Securities Registrar, if applicable, to execute such certificates and to make
such representations and warranties, as the Trustee may require. The Trustee
may withhold the Delivery or registration of transfer of any Receipts or the
delivery of any Underlying Securities until such proof or other information is
filed or such certificates are executed or such representations and warranties
made.
(8) CHARGES OF TRUSTEE.
------------------
(a) The following charges shall be incurred by any party depositing or
withdrawing Securities or by any party Surrendering Receipts or to whom
Receipts are Delivered or any Owner, as applicable: (1) taxes and charges and
other fees payable in respect of the Underlying Securities assessed by
third-party custodians, depositories, depositary banks or transfer agents in
the ordinary course of their respective businesses, (2) a fee of $5 or less
(as determined in the sole discretion of the Trustee) per 100 Receipts for the
execution and Delivery of Receipts pursuant to Section 2.5, and, in addition,
for the Surrender of Receipts pursuant to Section 2.7, (3) a custodial fee
which shall accrue on the first day of each calendar quarter at a rate of $.01
or less (as determined in the sole discretion of the Trustee) per Receipt per
quarter for the custodial services under the Depositary Trust Agreement (which
fee shall be assessed against Owners of record as of the date or dates set by
the Trustee in accordance with Section 4.5 and shall be collected at the
Trustee's discretion by deducting such fee from one or more cash dividends or
other cash distributions), and (4) a $.25 per 100 Receipts handling fee which
shall be incurred for each cash dividend or other cash distribution in respect
of the Underlying Securities at such time that such distributions are made
(which fee shall be assessed against Owners of record as of the date or dates
set the Trustee in accordance with Section 4.5 and shall be collected by
deducting such fee from the related cash dividends or other cash distributions
when made) ; provided, however, that with respect to the aggregate fee accrued
in any calendar year under clause (3) and clause (4) with respect to each
Receipt, no such fee will accrue which exceeds the total cash dividends and
other cash distributions the record date for which falls in such calendar year
and payable with respect to such Receipt. The fees payable pursuant to this
Section 5.6(a) shall be deemed to be full reimbursement to the Trustee for all
Trust Expenses.
(b) Extraordinary Trust Expenses shall be payable by the Initial
Depositor upon receipt of a detailed written invoice therefor from the Trustee
provided that the Trustee shall use its best efforts to provide the Initial
Depositor with written notice prior to any Extraordinary Trust Expense to be
incurred in excess of $1,000 and, provided further, that in no event shall
Extraordinary Trust Expenses be incurred in an amount in excess of $50,000 in
the aggregate without the express written consent of the Initial Depositor.
(9) TITLE TO RECEIPTS.
--------------------------
It is a condition of the Receipts and every successive Owner of the
Receipts by accepting or holding a certificate for Receipts consents and
agrees, that title to such certificate (and the Receipts evidenced thereby),
when properly endorsed or accompanied by proper instruments of transfer, is
transferable by delivery with the same effect as in the case of a negotiable
instrument under the laws of New York; provided, however, that the Trustee,
notwithstanding any notice to the contrary, may treat the person in whose name
Receipts are registered on the books of the Trustee as the absolute owner
thereof for the purpose of determining the person entitled to distribution or
dividends or other distributions or to any notice provided for in the
Depositary Trust Agreement and for all other purposes.
(10) VALIDITY OF RECEIPTS.
-----------------------------
Receipts shall not be entitled to any benefits under the Depositary Trust
Agreement or be valid or obligatory for any purpose, unless a certificate
evidencing such Receipts shall have been executed by the Trustee by the manual
or facsimile signature of a duly authorized signatory of the Trustee and, if a
Registrar (other than the Trustee) for the Receipts shall have been appointed,
countersigned by the manual or facsimile signature of a duly authorized
officer of the Registrar.
(11) REPORTS; INSPECTION OF TRANSFER BOOKS.
----------------------------------------------
The issuer of each class of Securities is subject to the periodic
reporting requirements of the Exchange Act and, accordingly, files certain
reports with the Securities and Exchange Commission (herein called the
"Commission"). Such reports will be available for inspection and copying at
the public reference facilities maintained by the Commission located at 450
Fifth Street, NW, Washington, DC 20549.
The Trustee or its appointed agent shall, to the extent lawful, forward
to Owners, any reports and communications, including any proxy statement or
other soliciting material, received from a Securities Issuer which are
received by the Trustee as the holder of the Underlying Securities or its
appointed agent, unless such reports and communications have been forwarded
directly to Owners by such Securities Issuer.
The Trustee shall keep books for the registration of Receipts and
transfers of Receipts which at all reasonable times shall be open for
inspection by the Owners.
(12) DIVIDENDS AND DISTRIBUTIONS.
------------------------------------
Whenever the Trustee shall receive any cash dividend or other cash
distribution on any Underlying Securities, the Trustee shall, subject to the
Depositary Trust Agreement, distribute the amount thus received (net of the
fees of the Trustee as provided in the Depositary Trust Agreement, if
applicable) to the Owners of Receipts entitled thereto in proportion to the
number of Receipts held by them respectively; provided, however, that in the
event that the respective Securities Issuer or the Trustee shall be required
to withhold and does withhold from such cash dividend or such other cash
distribution in respect of any Underlying Securities an amount on account of
taxes, the amount distributed to the Owners of the Receipts representing such
Underlying Securities shall be reduced accordingly.
Subject to the provisions of Sections 4.8, 5.2 and 5.6 of the Standard
Terms, whenever the Trustee shall receive any distribution other than (i) a
distribution described in Section 4.1, 4.3 or 4.4 of the Standard Terms or
(ii) a distribution which would otherwise be distributed under the Depositary
Trust Agreement except that the Trustee deems such distribution not to be
lawful and feasible, the Trustee shall, subject to Section 4.10 of the
Standard Terms, cause the securities or property received by it to be
distributed to the Owners of Receipts entitled thereto, in proportion to the
number of Receipts held by them respectively, in any manner that the Trustee
may deem equitable and practicable for accomplishing such distribution;
provided, however, that if in the opinion of the Trustee such distribution
cannot be made proportionately among the Owners of Receipts entitled thereto,
or if for any other reason (including, but not limited to, any requirement
that a Securities Issuer or the Trustee withhold an amount on account of taxes
or other governmental charges or that such securities must be registered under
the Securities Act in order to be distributed to Owners) the Trustee deems
such distribution not to be feasible, the Trustee shall adopt such method as
it deems equitable and practicable for the purpose of effecting such
distribution, including, but not limited to, the public or private sale of the
securities or property thus received, or any part thereof, and the net
proceeds of such sale (net of the fees of the Trustee as provided in Section
5.6 of the Standard Terms) shall be distributed by the Trustee to the Owners
entitled thereto as in the case of a distribution received in cash.
If any distribution upon any Underlying Securities consists of a dividend
in, or free distribution of, Securities, the Trustee shall, to the extent
lawful and feasible, retain such Securities under the Depositary Trust
Agreement, and, in such case, the (i) the amount of such Securities so
retained in respect of each Receipt shall be added to the classes and
quantities of securities which must be deposited for issuance of Receipts and
(ii) the number of Receipts in an Issuance Denomination may be increased or
decreased by the Trustee to the lowest multiple of 100 Receipts such that no
fractional shares are thereby represented in such Issuance Denomination.
In the event that the Trustee determines that any distribution in
property (including Securities and rights to subscribe therefor) is subject to
any tax or other charge which the Trustee is obligated to withhold,
notwithstanding anything to the contrary in the Standard Terms or the
applicable Depositary Trust Agreement, the Trustee may by public or private
sale dispose of all or a portion of such property (including Securities and
rights to subscribe therefor) in such amounts and in such manner as the
Trustee deems necessary and practicable to pay any such taxes or charges and
the Trustee shall distribute the net proceeds or any such sale after deduction
of such taxes or charges to the Owners entitled thereto in proportion to the
number of Receipts held by them respectively.
(13) RIGHTS OFFERINGS.
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(a) Subject to the provisions of Section 5.2, if a Securities Issuer
offers or cause to be offered to the holders of any Underlying Securities any
rights to subscribe for additional Securities or other securities, the Trustee
shall have discretion in accordance with Section 4.4 of the Standard Terms as
to the procedure to be followed in making such rights available to any Owners
or in disposing of such rights on behalf of Owners and making the net proceeds
available to Owners or, if by the terms of such rights offering or for any
other reason (including the absence of an effective registration statement
covering the distribution of securities underlying the rights), the Depositary
may not make such rights available to any Owners or dispose of such rights and
make the net proceeds available to Owners, then the Trustee shall allow the
rights to lapse in accordance with Section 5.2.
(b) The Trustee will not offer rights to Owners unless both the rights
and the securities to which such rights relate are either exempt from
registration under the Securities Act with respect to a distribution to all
Owners or are registered under the provisions of such Act.
(c) The Trustee shall not be responsible for any failure to determine
that it may be lawful or feasible to make such rights available to Owners in
general or any Owner in particular.
(14) RECORD DATES.
------------
Whenever any cash dividend or other cash distribution shall become
payable or any distribution other than cash shall be made, or whenever the
Trustee receives notice of a meeting of or solicitation of proxies from
holders of any Underlying Securities, or whenever a fee shall be charged by
the Trustee under Section 5.6(a)(3) of the Standard Terms, or whenever for any
reason there is a reconstitution or other event under the Depositary Trust
Agreement that causes a change in the composition of the Securities which must
be deposited for issuance of Receipts, or whenever the Trustee shall find it
necessary or convenient in respect of any matter, the Trustee shall fix a
record date (a) for the determination of the Owners who shall be (i) entitled
to receive such dividend, distribution or rights or the net proceeds of the
sale thereof, (ii) entitled to give instructions for the exercise of voting
rights at any such meeting or solicitation, or (iii) required to pay such fee,
or (b) on or after which each Receipt will represent such changed group of
Securities, subject to the provisions of the Depositary Trust Agreement. In
the case of subsections (a)(i) and (a)(ii) of this Article (14), the Trustee
shall use its reasonable efforts to ensure that, to the extent practicable,
the record date set under the Depositary Trust Agreement will be the same as
the record date set by the Securities Issuer.
(15) VOTING OF UNDERLYING SECURITIES.
-------------------------------
Upon receipt by the Trustee or its appointed agent of notice of any
meeting of, or solicitation of proxies from, holders of Underlying Securities,
the Trustee or its appointed agent shall, to the extent lawful, mail to the
Owners a notice, the form of which notice shall be in the sole discretion of
the Trustee, which shall contain (a) such information as is contained in such
notice of meeting or solicitation, (b) a statement that the Owners of Receipts
as of the close of business on a specified record date will be entitled,
subject to applicable law and the provisions of the corporate documents of the
Securities Issuer, to instruct the Trustee as to the exercise of the voting
rights, if any, or giving of proxies, as applicable, in respect of the amount
of Underlying Securities represented by their respective Receipts and (c) a
statement as to the manner in which such instructions may be given. Upon the
written request of an Owner of a Receipt on such record date, received on or
before the date established by the Trustee, the Trustee shall endeavor,
insofar as practicable, to vote or cause to be voted, or to give a proxy, as
applicable, in respect of the amount of Underlying Securities represented by
such Receipt in accordance with the instructions set forth in such request.
The Trustee shall not vote or attempt to exercise the right to vote that
attaches to, or give a proxy with respect to, Underlying Securities other than
in accordance with such instructions.
(16) CHANGES AFFECTING UNDERLYING SECURITIES.
---------------------------------------
(a) In circumstances where the provisions of Sections 2.11, 4.2 and 4.3
of the Standard Terms do not apply, upon any change in nominal value, change
in par value, split-up, consolidation or any other reclassification of any
Underlying Securities, or upon any recapitalization, reorganization, merger or
consolidation or sale of assets affecting the issuer of any Underlying
Security, if the relevant Securities Issuer survives such event, the Trustee
shall, to the extent lawful and feasible, retain such Securities under the
Depositary Trust Agreement, and, in such case, the (A) the amount of such
Securities so retained in respect of each Receipt shall be added to the
classes and quantities of Securities which must be deposited for issuance of
Receipts and (B) the number of Receipts in an Issuance Denomination may be
increased or decreased by the Trustee to the lowest multiple of 100 Receipts
such that no fractional shares are thereby represented in such Issuance
Denomination.
(b) Securities of any class which are surrendered by the Trustee in
connection with any such conversion or exchange shall, effective on the date
of such surrender, no longer be part of the securities which must be deposited
for issuance of Receipts. In any such case, or in the case of an event to
which Section 2.11 of the Standard Terms applies, the Trustee may call for the
Surrender of outstanding certificates evidencing Receipts to be exchanged for
new certificates specifically describing any applicable change in the classes
and quantities of securities which must be deposited for issuance of Receipts.
(17) LIABILITY OF THE INITIAL DEPOSITOR AND THE TRUSTEE.
--------------------------------------------------
Neither the Initial Depositor nor the Trustee nor any of their respective
directors, employees, agents or affiliates shall incur any liability to any
Owner or Beneficial Owner of any Receipt, if by reason of any provision of any
present or future law or regulation of the United States or any other country,
or of any governmental or regulatory authority or stock exchange, or by reason
of any provisions of any securities issued or distributed by any Securities
Issuer, or any offering or distribution thereof, or by reason of any act of
God or war or other circumstances beyond its control, the Initial Depositor or
the Trustee shall be prevented or forbidden from, or be subject to any civil
or criminal penalty on account of, doing or performing any act or thing which
by the terms of the Standard Terms or the applicable Depositary Trust
Agreement it is provided shall be done or performed; nor shall the Initial
Depositor or the Trustee nor any of their respective directors, employees,
agents or affiliates incur any liability to any Owner or Beneficial Owner of
any Receipt by reason of any non-performance or delay, caused as aforesaid, in
the performance of any act or thing which by the terms of the Standard Terms
or the applicable Depositary Trust Agreement it is provided shall or may be
done or performed, or by reason of any exercise of, or failure to exercise,
any discretion provided for in the Standard Terms or the applicable Depositary
Trust Agreement or for any action or inaction taken or omitted in good faith
and without negligence hereunder. Where, by the terms of an offering or
distribution to which Sections 2.11, 4.2 or 4.4 of the Standard Terms applies,
or for any other reason, it is not lawful and feasible to make such
distribution or offering available to Owners, and the Trustee may not dispose
of such distribution or offering on behalf of such Owners and make the net
proceeds available to such Owners, then the Trustee shall not make such
distribution or offering available to Owners and shall allow any rights, if
applicable, to lapse. Neither the Initial Depositor nor the Trustee shall be
under any obligation to prosecute or defend any action, suit or other
proceeding in respect of any Underlying Securities or in respect of the
Receipts or the rights of the beneficial owners of the Receipts.
Notwithstanding the foregoing, the Trustee may, in its discretion, undertake
such action as it may deem necessary at any time to protect the Trust and the
rights of the beneficial owners of the Receipts, provided however that any
expense or liability and any pecuniary cost of the Trustee reasonably incurred
in connection therewith shall be an Extraordinary Trust Expense hereunder. The
Trustee and the Initial Depositor 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 parties have been
selected with reasonable care. Neither the Initial Depositor nor the Trustee
shall be liable for any action or non-action by it in reliance upon the advice
of or information from legal counsel, accountants, any person presenting
Securities for deposit, any Owner or Beneficial Owner, or any other person
believed by it in good faith to be competent to give such advice or
information, including, without limitation, whether any taxes or other charges
are due on, or whether there are any legal restrictions on the delivery or
transfer of any Securities or Receipts, or whether any Securities are
Restricted Securities. The Trustee shall not be liable for any acts or
omissions made by a successor Trustee whether in connection with a previous
act or omission of the Trustee or in connection with any matter arising wholly
after the resignation of the Trustee, provided that in connection with the
issue out of which such potential liability arises the Trustee performed its
obligations without negligence or bad faith while it acted as Trustee. The
Trustee shall be under no liability for any action taken in good faith on any
appraisal, paper, order, list, demand, request, consent, affidavit, notice,
opinion, direction, endorsement, assignment, resolution, draft or other
document whether or not of the same kind, prima facie properly executed, or
for the disposition of moneys or Securities pursuant the Standard Terms,
provided that the Trustee has acted without negligence or bad faith. The
Trustee may construe any of the provisions under the Standard Terms or any
applicable Depositary Trust Agreement insofar as the same may appear to be
ambiguous or inconsistent with any other provisions hereof or thereof, and any
construction of any such provision by the Trustee in good faith shall be
binding upon the parties hereto and thereto. The Trustee shall not be
responsible for or in respect of the recitals herein, the validity or
sufficiency of the trust created by any Depositary Trust Agreement, the
validity or sufficiency of the Standard Terms or any applicable Depositary
Trust Agreement or for the due execution hereof and thereof by the Initial
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 (except for the due execution thereof by the Trustee). The
Trustee shall not be responsible for any failure to carry out any instructions
to vote any of the Underlying Securities, or for the manner in which any such
vote is cast or the effect of any such vote, provided that any such action or
non-action is without negligence or bad faith. Except as specifically provided
in Section 4.6 of the Standard Terms, the Trustee shall have no obligation to
monitor or to obtain any information concerning the business or affairs of any
Securities Issuer or to advise Owners or Beneficial Owners of any event or
condition affecting any Securities Issuer. The Trustee shall have no
obligation to comply with any direction or instruction from any Owner or
Beneficial Owner regarding Receipts except to the extent specifically provided
in the Standard Terms or any applicable Depositary Trust Agreement. The
Trustee shall be a fiduciary under the Standard Terms and the applicable
Depositary Trust Agreement; provided, however, that the fiduciary duties and
responsibilities and liabilities of the Trustee shall be limited by, and shall
be only those specifically set forth in, the Standard Terms and the applicable
Depositary Trust Agreement. No disclaimer of liability under the Securities
Act is intended by any provision of the Depositary Trust Agreement. For the
purposes of the Standard Terms, actual knowledge or knowledge of the Trustee
shall mean actual knowledge of an officer in the corporate action department
of the Trustee, and the actual knowledge or knowledge of the Initial Depositor
shall mean actual knowledge of an officer of the Initial Depositor responsible
for matters regarding the Trust.
(18) RESIGNATION OR REMOVAL OF THE TRUSTEE.
-------------------------------------
(a) The Trustee may at any time resign as Trustee under the Depositary
Trust Agreement by written notice of its election so to do, delivered to the
Initial Depositor, and such resignation shall take effect upon the appointment
of a successor Trustee and its acceptance of such appointment.
(b) If at any time the Trustee is in material breach of its obligations
under the Depositary Trust Agreement and the Trustee fails to cure such breach
within 30 days after receipt by the Trustee of written notice from the Initial
Depositor or the Owners of 25% or more of the outstanding Receipts specifying
such default and requiring the Trustee to cure such default, the Initial
Depositor, acting on behalf of the Owners, may remove the Trustee by written
notice delivered to the Trustee, and such removal shall take effect upon the
appointment of the successor Trustee and its acceptance of such appointment.
(c) In case at any time the Trustee acting hereunder shall resign or be
removed, the Initial Depositor, acting on behalf of the Owners, shall use its
reasonable efforts to appoint a successor Trustee.
(19) AMENDMENT.
---------
The Trustee and the Initial Depositor may amend any provisions of the
Depositary Trust Agreement without the consent of any Owner. Promptly after
the execution of any amendment, the Trustee shall furnish written notification
of any such amendment to any Owner. Any amendment that imposes or increases
any fees or charges (other than taxes and other charges, registration fees or
other such expenses), or that otherwise prejudices any substantial existing
right of the Owners will not become effective until 30 days after notice of
such amendment is given to the Owners. Every Owner and Beneficial Owner, at
the time any amendment so becomes effective, shall be deemed, by continuing to
hold any Receipt or an interest therein, to consent and agree to such
amendment and to be bound by the Depositary Trust Agreement as amended
thereby. In no event shall any amendment impair the right of the Owner of any
Receipt to Surrender such Receipt and receive therefor the Underlying
Securities represented thereby, except in order to comply with mandatory
provisions of applicable law.
(20) EARLY TERMINATION OF DEPOSITARY TRUST AGREEMENT.
-----------------------------------------------
(a) The Trust shall terminate by the Trustee mailing notice of such
termination to the Owners of all Receipts then outstanding at least 30 days
prior to the date set for termination (or upon such lesser notice as may be
practicable in the event of an occurrence set forth in (i) or (iv) below) if
any of the following occurs:
(i) The Trustee is notified that the Receipts are delisted from a
national securities exchange and are not approved for listing on another
national securities exchange within 5 business days of their delisting;
(ii) Owners of more than 50% of the outstanding Receipts notify the
Trustee that they elect to terminate the Trust;
(iii) 60 days shall have expired after the Trustee shall have delivered
to the Initial Depositor and the Owners a written notice of its election to
resign and a successor trustee shall not have been appointed and accepted its
appointment, as provided in Section 5.4 of the Standard Terms;
(iv) The Initial Depositor or the Trustee determines, in its sole
discretion, that legal or regulatory issues (including litigation, Commission
action or interpretive developments of applicable law or regulation) make such
early termination in the best interest of the Owners, the Initial Depositor or
the Trustee;
(v) In excess of $50,000 of Extraordinary Trust Expenses have been
incurred by or on behalf of the Trust since the Closing Date, or are
reasonably believed by the Trustee to be incurred within the succeeding 30 day
period and either the Trustee or the Initial Depositor so elects; or
(vi) Less than nine Securities Issuers are represented by the Receipts.
(b) On and after the date of termination, the Trustee shall deliver to
each Owner of a Receipt to him or upon his order, the amount of Underlying
Securities evidenced by such Receipt and thereupon cancel such Receipt,
provided, however, at the sole discretion of the Trustee, the Trustee may
condition such delivery upon prior (a) Surrender of such Receipt at the office
of the Trustee, (b) payment of the fee of the Trustee for the Surrender of
Receipts referred to in Section 2.7 of the Standard Terms and (c) payment of
any applicable taxes or charges, or the Trustee may deduct any fees, taxes or
charges from any cash distribution with respect to the Receipts, or the
Trustee may, in its sole discretion, collect any such fees, taxes or charges
from the Owner at any time thereafter. If any Receipts shall remain
outstanding after the date of termination, the Trustee thereafter shall
discontinue the registration of transfers of Receipts, shall suspend the
distribution of dividends or other distribution to the Owners thereof, and
shall not give any further notices or perform any further acts under these
Standard Terms or the applicable Depositary Trust Agreement, except that the
Trustee shall continue to collect dividends and other distributions pertaining
to Underlying Securities and hold the same uninvested and without liability
for interest, shall sell rights as provided in these Standard Terms or the
applicable Depositary Trust Agreement, and shall continue to deliver
Underlying Securities, together with any dividends or other distributions
received with respect thereto and the net proceeds of the sale of any rights
or other property, in exchange for Receipts Surrendered to the Trustee (after
deducting or upon payment of, in each case, the fee of the Trustee set forth
in 5.6 of the Standard Terms for the Surrender of Receipts, any expenses for
the account of the Owner of such Receipts in accordance with the terms and
conditions of the Depositary Trust Agreement, and any applicable taxes or
charges). At any time after the expiration of one year following the date of
termination, the Trustee may sell the Underlying Securities then held
hereunder and may thereafter hold uninvested the net proceeds of any such
sale, together with any other cash then held by it hereunder, unsegregated and
without liability for interest, for the pro rata benefit of the Owners of
Receipts which have not theretofore been Surrendered, such Owners thereupon
becoming general creditors of the Trustee with respect to such net proceeds.
After making such sale, the Trustee shall be discharged from all obligations
under these Standard Terms with respect to the Receipts and the applicable
Depositary Trust Agreement, except to account for such net proceeds and other
cash (after deducting, in each case, the fee of the Trustee for the Surrender
of Receipts, any fees of the Trustee due and owing from the Owner of such
Receipts pursuant to Section 5.6, including any custody fees and handling fees
which may accrue during the termination period, of the Standard Terms, any
expenses for the account of the Owner of such Receipts in accordance with the
terms and conditions of the Depositary Trust Agreement, and any applicable
taxes or charges). Upon the termination of the applicable Depositary Trust
Agreement, the Initial Depositor shall be discharged from all obligations
under such Depositary Trust Agreement except for its obligations to the
Trustee under Sections 5.5 and 5.6(b) of the Standard Terms.
