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UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
SCHEDULE 13D
UNDER THE SECURITIES EXCHANGE ACT OF 1934
Datapoint Corporation
- -------------------------------------------------------------------------------
(Name of Issuer)
$1 Exchangeable Preferred Stock
- -------------------------------------------------------------------------------
(Title of Class of Securities)
238100408000
------------------------------------------------------
(CUSIP Number)
Lloyd I. Miller, III, 4550 Gordon Drive, Naples, Florida 33940 941-262-8577
- -------------------------------------------------------------------------------
(Name, Address and Telephone Number of Person Authorized to Receive Notices and
Communications)
December 22, 1997
------------------------------------------------------
(Date of Event which Requires Filing of this
Statement)
If the filing person has previously filed a statement on Schedule 13G to report
the acquisition which is the subject of this Schedule 13D, and is filing this
schedule because of Rule 13d-1(b)(3) or (4), check the following box [ ].
Check the following box if a fee is being paid with the statement [ ]. (A fee is
not required only if the reporting person: (1) has a previous statement on file
reporting beneficial ownership of more than five percent of the class of
securities described in Item 1; and (2) has filed no amendment subsequent
thereto reporting beneficial ownership of five percent or less of such class.)
(See Rule 13d-7.)
NOTE: Six copies of this statement, including all exhibits, should be filed with
the Commission. See Rule 13d-1(a) for other parties to whom copies are to be
sent.
The information required on the remainder of this cover page shall not be deemed
to be "filed" for the purpose of Section 18 of the Securities Exchange Act of
1934 ("Act") or otherwise subject to the liabilities of that section of the Act
but shall be subject to all other provisions of the Act (however, see the
Notes).
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SCHEDULE 13D
CUSIP NO. 238100408000 -1-
1 NAME OF REPORTING PERSON
S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON
Lloyd I. Miller, III ###-##-####
2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP* (a) / /
(b) / /
3 SEC USE ONLY
4 SOURCE OF FUNDS*
PF-00**
5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO
ITEMS 2(d) OR 2(e) / /
6 CITIZENSHIP OR PLACE OF ORGANIZATION
United States
NUMBER OF 7 SOLE VOTING POWER
SHARES 28,600***
BENEFICIALLY 8 SHARED VOTING POWER
OWNED BY 19,300***
EACH 9 SOLE DISPOSITIVE POWER
REPORTING 28,600***
PERSON 10 SHARED DISPOSITIVE POWER
WITH 19,300***
11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
47,900
12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES*
/ /
13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
7.53%
14 TYPE OF REPORTING PERSON
IN-IA
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*SEE INSTRUCTIONS BEFORE FILLING OUT!
** See response to Item 3, herein.
*** See response to Item 4, herein.
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1
ORIGINAL REPORT ON SCHEDULE 13D
Item 1. Security and Issuer
This statement relates to the $1 Exchangeable Preferred Stock (the
"Shares") of Datapoint Corporation, a Delaware corporation (the "Company"),
which has its principal executive offices at 8400 Datapoint Drive, San Antonio,
Texas 78229-8500.
Item 2. Identity and Background
This statement is filed by Lloyd I. Miller, III ("Miller"). Miller is the
sole shareholder and President/Vice President of LIM, Inc. ("LIM"), which was
incorporated in the State of Florida on February 26, 1995. Miller's principal
business address is 4550 Gordon Drive, Naples, Florida 33940. Miller's principal
occupation is providing investment advisory services. During the past five
years, Miller has not been convicted in a criminal proceeding (excluding traffic
violations or similar misdemeanors) and has not been a party to civil
proceedings of a judicial or administrative body of competent jurisdiction as a
result of which Miller was or is subject to a judgment, decree or final order
enjoining future violations of, or prohibiting or mandating activities subject
to, federal or state securities laws or finding any violation with respect to
such laws. Miller is a United States citizen.
Item 3. Source and Amount of Funds or Other Considerations.
All of the Shares owned by LIM were purchased with money generated by LIM
from the buying and selling of securities or with personal funds of Miller. The
dollar amount of such purchases is $84,362.50
All of the Shares purchased by Miller as Investment Advisor to Trust C
(the "Trust") were purchased by funds generated and held by the Trust. The
dollar amount of such purchases is $60,310.50.
Item 4. Purpose of the Transaction.
Miller considers his ownership reported herein of the 47,900 Shares as an
investment in the ordinary course of business. From time to time, Miller may
acquire additional Shares or dispose of all of some of the Shares which he owns.
Of such Shares, 28,600 Shares are owned of record by LIM; and 19,300 Shares are
owned by the Trust.
Pursuant to an Amended and Restated Trust Agreement, dated September 20,
1983 (the "Trust Agreement"), Miller was named as advisor to PNC Bank, Ohio,
N.A. (formerly The Central Trust Company, N.A., Cincinnati, Ohio), the Trustee
named in the Trust Agreement. Such appointment became effective on April 22,
1990, the date of death of Lloyd I. Miller, the Grantor of the Trust. Currently
19,300 shares are held in the Trust. Miller has shared voting power and shared
dispositive power for all such Shares held in the Trust.
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2
Item 5. Interest in Securities of the Issuer.
Miller beneficially owns 28,600 Shares. With respect to the shares of $1
Exchangeable Preferred Stock subject to the Trust Agreement, see the response to
Item 4.
The following tables detail the purchases by LIM and the Trust effected
during the sixty days prior to this filing. All of the transactions were open
market transactions.
<TABLE>
<CAPTION>
LIM
-----------------------------------------------------------------------------
DATE OF TRANSACTION NUMBER OF SHARES PRICE PER SHARE
------------------- ---------------- ---------------
<S> <C> <C>
02/04/97 4,300 2.375
</TABLE>
<TABLE>
<CAPTION>
TRUST C
-----------------------------------------------------------------------------
DATE OF TRANSACTION NUMBER OF SHARES PRICE PER SHARE
------------------- ---------------- ---------------
<S> <C> <C>
12/12/96 1,000 3.155
12/13/96 300 3.155
12/16/96 1,000 3.155
12/18/96 400 3.155
12/19/96 2,700 3.155
12/30/96 800 3.030
12/31/96 2,200 3.000
01/23/97 2,100 2.905
01/24/97 400 2.905
01/31/97 800 2.905
</TABLE>
Item 6. Contracts, Arrangements, Understandings or Relationships With
Respect to Securities of the Issuer.
The Amended and Restated Trust Agreement between Lloyd I. Miller and
PNC Bank, N.A. (formerly the Central Trust Company, N.A.), dated September 20,
1983 provides:
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3
The Trustee shall not make any investments, reinvestments or
changes in investments of the assets of Trust A, Trust B, Trust C
or Trust D without first consulting with and obtaining the advice
of the advisor. The Trustee need not act in accordance with the
advice and counsel of the advisor, but if it does so, the Trustee
shall not be liable to any person for or as a result of any action
or failure to act if in accordance with such advice and counsel ...
The Trustee need not obtain the advice and counsel of the advisor
if the Trustee requests such advice and counsel in writing and if
the advisor fails to reply to the Trustee within five days from the
date of such request by telephone, telegram, mail or in person.
The Trusts referred to above hold the following Shares: Trust C -
19,300 Shares. Miller is the advisor to all such Trusts.
Item 7. Materials to be Filed as Exhibits:
Amended and Restated Trust Agreement, dated September 20, 1983, between
Lloyd I. Miller and PNC Bank, N.A. (formerly the Central Trust Company, N.A.,
Cincinnati, Ohio)
After reasonable inquiry and to the best knowledge and belief of the
undersigned, it is hereby certified that the information set forth in this
statement is true, complete and correct.
Dated: February 7, 1997
By: /s/ Lloyd I. Miller, III
-----------------------------
Lloyd I. Miller, III
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EXHIBIT INDEX
Item No. Description
- -------- -----------
99 Amended and Restated Trust Agreement, dated September 20, 1983,
between Lloyd I. Miller and PNC Bank, N.A. (formerly the Central Trust
Company, N.A., Cincinnati, Ohio)
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AMENDED AND RESTATED TRUST AGREEMENT
This instrument contains all of the terms of an Amended and Restated
Trust Agreement made on September 20, 1983, by Lloyd I. Miller (the "Grantor"),
and The Central Trust Company, N.A., Cincinnati, Ohio (the "Trustee"). The
Grantor originally entered into a Trust Agreement with the Trustee on September
19, 1980. The Grantor reserved the right to amend the Agreement and now desires
to exercise such right by restating its provisions. Therefore, the Agreement is
hereby amended and restated in its entirety to read as follows:
SECTION 1
TRUST PROPERTY
1.1 The Trustee acknowledges that at the time of execution of this
Agreement, the Trustee is holding property which has previously been delivered
to the Trustee. The Trustee agrees to continue to hold such property in
accordance with the terms set forth in this Agreement.
1.2 The Trustee agrees that the Grantor, the Grantor's attorney-in-fact
or any other person, firm or corporation may from time to time add other
property to the trust estate. The Trustee agrees to accept and hold any such
additional property, provided that the Trustee may lawfully do so and provided
that it is of the character normally acceptable by trustees generally, whether
such property is conveyed or delivered to the Trustee or whether it is devised
or bequeathed to the Trustee by will.
SECTION 2
RIGHTS RETAINED BY GRANTOR
2.1 The Grantor may revoke this Agreement or, from time to time, amend
its terms. Any revocation or amendment shall be effective upon receipt by the
Trustee of a writing executed by the Grantor.
2.2 The Grantor may withdraw from time to time, upon prior written
notice to the Trustee, any or all of the property which constitutes the trust
estate.
2.3 The Grantor may sell, assign or hypothecate any policies of
insurance which may from time to time be part of the trust estate, exercise any
option or privilege granted by any of such policies, borrow any sum in
accordance with the provisions of any of such policies and receive all payments,
dividends, surrender values, benefits or privileges of any kind which may be
available under any of such policies.
2.4 The Grantor reserves the right, so long as the Grantor is not
incompetent or incapacitated, to approve any investments, reinvestments or
changes in investments which the
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Trustee may from time to time recommend. If, however, the Trustee notifies the
Grantor in writing of the Trustee's recommendation for investments,
reinvestments or changes in investments and the Grantor fails to reply to the
Trustee within five days from the date of such notice, either by telephone,
telegram, mail or in person, the Trustee may proceed to make any investments,
reinvestments or changes in investments about which the Trustee has notified the
Grantor.
SECTION 3
DISTRIBUTIONS DURING LIFE OF GRANTOR
3.1 If, at any time during the life of the Grantor, the trust estate
includes any income producing assets, the Trustee shall pay the net income to
the Grantor at least quarter-annually, or in such other manner as directed by
the Grantor in writing.
3.2 During any time when the Grantor is incapacitated or incompetent,
the Trustee shall have full power, in the Trustee's sole discretion, to use the
net income and principal of the trust for the support, maintenance and medical
care of the Grantor and the Grantor's wife, Catherine C. Miller. Any net income
not currently used for such purposes shall be accumulated and added to
principal.
SECTION 4
DISTRIBUTIONS UPON DEATH OF GRANTOR
4.1 Upon the death of the Grantor, the trust estate, including all
amounts of undistributed income (even though accrued or accumulated by the
Trustee prior to the Grantor's death), any part of the Grantor's estate as may
be distributed to the Trustee and all other property which is or becomes part of
the trust estate, shall be held and distributed as herein provided.
4.2 Upon demand in writing by the Executor or Administrator of the
Grantor's estate, the Trustee shall pay to such Executor or Administrator an
amount equal to all, or such part as is demanded, of the following: the
Grantor's debts; expenses of the Grantor's last illness; funeral and burial
expenses; expenses of administering the Grantor's estate; and bequests under the
Grantors' will. If no Executor or Administrator is acting, the Trustee may pay
directly any of the above-described amounts. Such amounts shall not be paid from
assets which are excluded from the Grantor's gross estate for Federal estate tax
purposes.
4.3 If the Grantor's wife, Catherine C. Miller, survives him, the
Trustee shall divide the trust assets which remain after deducting amounts
otherwise paid or set apart to be paid as provided in Section 4.2 ("the residue
of the trust estate") into four parts designated Trust A, Trust B, Trust C and
Trust D as follows:
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4.3.1 Trust A shall be a separate trust held under Section 5.
It shall consist of assets selected by the Trustee having a value equal to the
largest amount, if any, that can pass free of Federal estate tax, taking into
account the unified credit and the state death tax credit but no other credit,
reduced by the value (as finally determined for Federal estate tax purposes) of
all property included in the Grantor's gross estate passing other than under
this Section 4.3 (whether by Grantor's Will, other provisions of this Agreement
or otherwise) which does not qualify for the Federal estate tax marital
deduction or charitable deduction, and reduced further by any charges to
principal that are not deducted in computing the Grantor's Federal estate tax
(other than any estate, inheritance or similar taxes due by reason of the
Grantor's death which are imposed by any governmental authority). In addition,
if the residue of the trust estate includes any property which is excluded from
the Grantor's gross estate for Federal estate tax purposes, such property (less
the expenses' including taxes, if any, incurred in connection with the receipt
of such property) shall be added to Trust A as principal.
4.3.2 Trust B shall be a separate trust held under Section 6
and shall consist of one-third of the assets which remain available for
distribution under this Section 4.3 after deducting any amounts required to be
set aside under Section 4.3.1.
4.3.3 Trust C shall be a separate trust held under Section 7
and shall consist of one-third of the assets which remain available for
distribution under this Section 4.3 after deducting any amounts required to be
set aside under Section 4.3.1.
4.3.4 Trust D shall be a separate trust held under Section 8
and shall consist of one-third of the assets which remain available for
distribution under this Section 4.3 after deducting any amounts required to be
set aside under Section 4.3.1.
4.3.5 Notwithstanding Sections 4.3.2, 4.3.3 and 4.3.4, if the
Grantor's wife, Catherine C. Miller, (or, in the event of her death, her
Executor) shall disclaim all or any portion of Trusts B, C or D, such disclaimed
property shall be added to Trust A held under Section 5. In that event, with
respect to the disclaimed property, Catherine C. Miller shall have all rights
provided in Trust A except the special power of appointment under Section 5.3.
4.4 If the Grantor's wife, Catherine C. Miller, does not survive him,
the residue of the trust estate shall be distributed as provided in Section 9.
4.5 Upon demand in writing by the Executor or Administrator of the
Grantor's estate, the Trustee shall pay to such Executor or Administrator an
amount equal to all, or such part as is demanded, of the estate, inheritance or
similar taxes due by reason of the Grantor's death which are imposed by any
governmental authority. If no Executor or Administrator is acting, the Trustee
may pay directly any of such taxes. Such taxes shall not be paid from assets
which are excluded from the Grantor's gross estate for Federal estate tax
purposes. If the Grantor's wife does not survive him, such taxes shall be paid
from the residue of the trust estate, prior to division and distribution as
provided under Section 9. If the Grantor's wife survives him, such taxes shall
be paid from Trust A,
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except that (a) If the Grantor's Executor or Administrator fails to make the
election so that any portion of Trust B fails to qualify for the Federal estate
tax marital deduction, then the Federal estate tax due by reason of the
Grantor's death shall be paid from the assets of that portion of Trust B for
which the marital deduction was not elected to the extent that those assets are
sufficient and otherwise from Trust A; or (b) If the taxes required hereunder to
be paid from Trust A should exhaust Trust A, the amount thereof which cannot be
paid from Trust A shall first be charged to Trust B, and if the assets allocated
to Trust B are insufficient to pay any portion thereof, the balance shall be
divided equally between Trust C and Trust D.
4.6 For the purposes of this Agreement, the Grantor's wife, Catherine
C. Miller, shall be deemed to have survived the Grantor, any presumption of law
notwithstanding, if she survives him for any period, or if there is no evidence
as to the order of their deaths.
SECTION 5
TRUST A
5.1 The Trustee shall, in its sole discretion, pay to Catherine C.
Miller, at such times as the Trustee determines, all or such part of the net
income of Trust A as the Trustee determines to be necessary to support and
maintain her in the manner to which she has become accustomed. In making any
such decisions, the Trustee shall consider her other income and means of support
known to the Trustee, and resolve any doubts in favor of generous and liberal
support for her. If all of the net income is not paid to Catherine C. Miller,
the Trustee may, in its sole discretion, distribute all or any part of such
undistributed income to any one or more of the Grantor's issue in such shares as
the Trustee determines, or the Trustee may accumulate and add to principal all
or any part of such undistributed income.
5.2 If, in the sole opinion of the Trustee, the net income of Trust A
is insufficient to support and maintain Catherine C. Miller in the manner to
which she has become accustomed, considering her other income and means of
support known to the Trustee, the Trustee may, in its sole discretion,
distribute to her as much of the principal of Trust A as the Trustee determines
is necessary for such purposes, provided that the Trustee shall not distribute
principal of Trust A to her at any time when principal is available for
distribution to her from Trust B under Section 6.2 or Trust C under Sections 7.2
or 7.3 or Trust D under Section 8.1.
5.3 Catherine C. Miller shall nave full power to appoint, effective at
the date of her death, the entire principal and any undistributed income of
Trust A, or any portion thereof, to any person or persons or to any corporation
or corporations, in such proportions or shares as she may designate, provided,
however, that no such appointment shall be made to herself, her estate, her
creditors or the creditors of her estate.
5.4 Trust A shall terminate upon the death of Catherine C. Miller. Upon
termination the Trustee shall distribute the principal and any undistributed
income of Trust A in such manner as
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Catherine C. Miller may have appointed in exercise of the power given her under
Section 5.3. Any part remaining unappointed shall be distributed as provided in
Section 9.
SECTION 6
TRUST B
6.1 The Trustee shall pay the net income of Trust B to Catherine C.
Miller at least quarter-annually during her life.
6.2 If, in the sole opinion of the Trustee, the net income of Trust B
is insufficient to support and maintain Catherine C. Miller in the manner to
which she has become accustomed, considering her other income and means of
support known to the Trustee, the Trustee may, in its sole discretion,
distribute to her as much of the principal of Trust B as the Trustee determines
is necessary for such purposes. In such event, if any portion of Trust B falls
to qualify for the Federal estate tax marital deduction, the Trustee shall
distribute for such purposes principal of Trust B with respect to which the
election was made, or if none, other principal of Trust B, provided, however,
that in no event shall other principal of Trust B be distributed when there is
available for distribution principal of Trust C or Trust D.
6.3 Trust B shall terminate upon the death of Catherine C. Miller. Upon
termination any undistributed income accrued or accumulated by the Trustee prior
to termination of Trust B shall be distributed to the estate of Catherine C.
Miller, and the remaining assets of Trust B shall be distributed as provided in
Section 9.
SECTION 7
TRUST C
7.1 The Trustee shall pay the net income of Trust C to Catherine C.
Miller at least quarter-annually during her life.
7.2. Catherine C. Miller shall have the power to withdraw, at any one
time or from time to time, any part or all of the principal of Trust C upon
first giving written notice to the Trustee of her intention to withdraw.
7.3 If, in the sole opinion of the Trustee, the net income of Trust C
is insufficient to support and maintain Catherine C. Miller in the manner to
which she has become accustomed, considering her other income and means of
support known to the Trustee, the Trustee may, in its sole discretion,
distribute to her as much of the principal of Trust C as the Trustee determines
is necessary for such purposes.
5
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7.4 Catherine C. Miller shall have full power to appoint, effective at
the date of her death, the entire principal and any undistributed income of
Trust C, or any portion thereof, to her estate, or to any person or persons or
any corporation or corporations.
7.5 Trust C shall terminate upon the death of Catherine C. Miller. Upon
termination the principal and any undistributed income (even though accrued or
accumulated by the Trustee prior to her death) of Trust C shall be distributed
in such manner as Catherine C. Miller may have appointed in exercise of the
power given her under Section 7.4. Any part remaining unappointed shall be paid
as follows: The Trustee shall pay to the Executor or Administrator of her estate
such sum as may be required for the payment of any estate, inheritance or
similar taxes imposed by any governmental authority by reason of her death and
by reason of her possession of the general power of appointment with respect to
the assets of Trust C, over and above the amount of such taxes which would have
been payable upon her death from her estate had the assets of Trust C not been
included in the determination of such taxes. The balance of the unappointed
principal and undistributed income of Trust C shall be distributed as provided
in Section 9.
SECTION 8
TRUST D
8.1 The Trustee shall, in its sole discretion, pay to Catherine C.
Miller or apply for her use or benefit all or any part of the net income and
principal of Trust D as the Trustee deems appropriate at such times as the
Trustee deems appropriate. Any net income not paid to Catherine C. Miller shall
be accumulated and added to principal.
8.2 Trust D shall terminate upon the death of Catherine C. Miller. Upon
termination the Trustee shall distribute the principal and any undistributed
income of Trust D to the estate of Catherine C. Miller.
SECTION 9
DISTRIBUTION UPON DEATH OF GRANTOR AND GRANTOR'S
WIFE
9.1 Upon the death of the last to die of the Grantor and the Grantor's
wife, Catherine C. Miller, any trust assets which are required to be distributed
as provided in this Section 9 shall be divided into as many equal shares as
there are children of the Grantor then living and deceased children of the
Grantor with issue then living. One such equal share shall be held under Section
9.2 as a separate trust for the benefit of each then living child of the
Grantor. One such equal share shall be distributed, per stirpes, to the then
living issue of each deceased child of the Grantor, subject to Section 9.3.
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9.2 If any of the Grantor's children who becomes entitled to all or any
share of the residue of the trust estate at the time of the Grantor's death or
all or any share of the principal and undistributed income of any trust or held
hereunder upon its termination is under age 35 at the time set for distribution
to him, his share shall not be distributed to him directly, but shall be held by
the Trustee as a separate trust for his benefit as follows:
9.2.1 The Trustee shall pay the net income of the trust to the
child for whom the trust is held at least as often as quarter-annually during
his life.
9.2.2 If, in the sole opinion of the Trustee, the net income
of the trust is insufficient to provide for the support, comfort, maintenance,
education and medical care of the child for whom the trust is held, considering
his other income and means of support known to the Trustee, the Trustee may, in
its sole discretion, distribute principal of the trust for such purposes. The
word "education" when used in this Agreement may include private schooling,
college or university education and, in an appropriate case, post-graduate
education, and also, without limitation, all tuition, board, lodging, fees,
travel expenses and other expenses incidental thereto.
9.2.3 The trust shall terminate as to one-fourth of the
principal thereof on the date when the child for whom the trust is held attains
age 25; as to one-half of the balance of the principal thereof on the date when
such child attains age 30; and as to the remaining principal and any
undistributed income thereof on the date when such child attains age 35; and
distribution shall be made to such person of the shares indicated on such dates.
If, in the sole opinion of the Trustee, the trust estate has at any time been so
reduced as to make it uneconomical or otherwise impractical to continue to hold
it in trust, the trust shall terminate and the Trustee shall distribute the
principal, and any undistributed income thereof to the child for whom the trust
is held, outright and free of trust. If at the time the trust is established the
child for whom the trust is held has attained age 25 but has not yet attained
age 35, the Trustee shall distribute directly to such child the share of the
trust estate as to which the trust would have terminated if it had been
established when such child was under age 25 and continued to the date it is in
fact established, and the Trustee shall hold the balance of the trust estate for
such child under the terms and conditions hereof. If the child for whom the
trust is held dies before receiving distribution of all of the principal and any
undistributed income of the trust, the trust shall terminate on the date of his
death, and the Trustee shall distribute the principal and any undistributed
income thereof to his then living issue, per stirpes, subject to Section 9.3, or
if none, to the Grantor's then living issue, per stirpes, provided that any
share of the trust estate required to be distributed to a child of the Grantor
shall be subject to this Section 9.2, and any share of the trust estate required
to be distributed to a more remote issue of the Grantor shall be subject to
Section 9.3.
9.3 If any issue of the Grantor more remote than a child who becomes
entitled to all or any share of the residue of the trust estate at the time of
the Grantor's death or all or any share of the principal and undistributed
income of any trust held hereunder upon its termination is under age 21 at the
time set for distribution to him or her, his or her share shall not be
distributed to him or her directly, but shall continue to be held by the Trustee
as a separate trust for his or her benefit as
7
<PAGE> 8
follows: The Trustee shall pay as much of the net income and, if necessary,
principal of the trust as it deems appropriate at such times as it deems
appropriate to provide for the support, comfort, maintenance, education and
medical care of the person for whom the trust is held. Any net income not
currently required for such purposes shall be accumulated and added to the
principal of the trust. The trust shall terminate on the first to occur of the
following: the date when the person for whom the trust is held attains age 21;
the date of death of such person; and the date when, in the sole opinion of the
Trustee, the trust estate has been so reduced as to make it uneconomical or
otherwise impractical to hold it in trust. Upon termination of the trust, the
Trustee shall distribute the principal and any undistributed income thereof to
the person for whom the trust is held, if living, or if not, to his or her
estate.
9.4 Solely for purposes of investment convenience, the Trustee may hold
and invest the assets of the separate trusts held under this Section 9 as a
unit, without physically dividing them, until actual division becomes necessary
in order to make distribution, and in such case the Trustee shall allocate to
each separate trust its proportionate part of receipts and expenditures. If at
any time there shall be held under Section 9.2 or Section 9.3 more than one
trust for the same person, the trusts for such person under such section shall
be combined and treated as on trust estate.
SECTION 10
GENERAL PROVISIONS
10.1 The Trustee shall have the following powers, in addition to
authority the Trustee may have under the laws of any state, which the Trustee
may exercise without order of court:
10.1.1 To collect, pay and compromise debts and claims.
10.1.2 To borrow money, including authority for a corporate
Trustee to borrow from itself in its nonfiduciary capacity.
10.1.3 To sell real and personal property, publicly and
privately; to give options to buy real and personal property for any length of
time; to lease real and personal property for any term; to mortgage real
property; to pledge personal property; and to execute and deliver instruments to
effectuate such powers.
10.1.4 To retain property received by the Trustee (including
securities issued by a corporate Trustee or its affiliate), regardless of
whether such property is authorized by law for investment by fiduciaries; and to
invest and reinvest the proceeds of the sale of such property, and cash, in
whatever property the Trustee deems reasonable (including participation in any
common trust fund established and maintained by a corporate Trustee for
collective investment of fiduciary funds), whether or not the investment is
authorized by law for investment by fiduciaries. A corporate Trustee may invest
in securities issued by it or its affiliate only at the written direction of the
Grantor during his lifetime or, after his death, at the written direction of the
primary income
8
<PAGE> 9
beneficiary of the trust for which such securities are purchased, the parent,
guardian or custodian to act for any beneficiary who is not competent to act.
The provisions of this Section 10.1.4 shall be subject to Section 2.4.
10.1.5 To exercise and not exercise, as the Trustee deems
reasonable, rights of ownership incident to securities that the Trustee may
hold, including rights to vote, give proxies and execute consents, provided that
securities issued by a corporate Trustee or its affiliate shall be voted by the
Grantor during his lifetime or, after his death, by the primary income
beneficiary of the trust to which such securities are allocated, the parent,
guardian or custodian to act for any beneficiary who is not competent to act.
10.1.6 To sell or issue call options against any security or
asset now or hereafter held in the trust estate, including without limitation
the sale or issuance of any option which is traded on the Chicago Board Options
Exchange, the American Exchange or any other Exchange; to take any and all
action as may be, in the Trustee's opinion, necessary or advisable in connection
with the sale or issuance of such options, including the execution and delivery
of escrow receipts; and to purchase any call option, including the re-purchase
of any call option which the Trustee may have sold, even if at a loss.
10.1.7 To hold property in the name of a nominee.
10.1.8 To sell property to and to borrow funds from one trust
in favor of another trust established by this Agreement as if dealing with
outside interests.
10.1.9 To permit any beneficiary of any trust to enjoy the use
of any residential real estate and tangible personal property from the date of
the Grantor's death which the Trustee may receive in kind. The Trustee shall not
be liable for any consumption, damage, injury to or loss of property so used,
nor shall the beneficiaries of any such trust be liable for any non-negligent
consumption, damage, injury to or loss of property so used.
10.1.10 To hold, retain and continue to operate any business
interest received, whether organized as a sole proprietorship, partnership
(general or limited) or corporation, for such time and in such manner as the
Trustee may deem advisable, without liability on the part of the Trustee for any
losses resulting therefrom; to dissolve, liquidate or sell at such time and upon
such terms as the Trustee may deem advisable; to use the assets of the trust
estate for the purposes of the business; to use the income from such business
for business purposes, including but not limited to the establishing of
additional reserve and depreciation accounts, establishing funds for future
expansion and growth and such other business purposes as the Trustee may deem
advisable; to borrow money for business purposes and to pledge or encumber the
assets of the business or other assets of the trust estate to secure a loan; to
employ such officers, managers, employees or agents as the Trustee may deem
advisable in the management of such business, including electing representatives
of the Trustee to take part in the management of such business as directors,
officers or employees, and any such representatives of the Trustee may receive
compensation for their
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services in addition to the fee to which the Trustee may be entitled for the
Trustee's services in the administration of the trusts held hereunder; and to
have such additional powers as may be necessary to enable the Trustee to
continue or to dispose of any such business interest.
10.2. No person leasing or purchasing property from or lending money to
or otherwise dealing with any trust and no transfer agent requested to transfer
corporate securities to or from any trust need inquire as to the purpose of the
lease, sale, loan, transfer or assignment or see to the application of the
proceeds, and the receipt of the Trustee shall be a complete acquittance and
discharge of such person for the amount paid.
10.3 The Trustee is authorized to distribute trust assets in cash or in
kind, or partly in each. When the Trustee is required to make a division of
trust assets and to distribute such assets either to separate trusts created
hereunder (such as Trust A, Trust B, Trust C and Trust D) to beneficiaries
outright, or to any combination of trusts and beneficiaries, the Trustee is
authorized to make any such division and distribution in such manner as the
Trustee shall determine. If the Trustee determines not to divide real property,
the Trustee may convey undivided interests therein. The Trustee need not divide
each trust asset proportionately among the trusts and beneficiaries entitled to
distribution. The Trustee may select specific assets for allocation to one trust
or beneficiary to the exclusion of the others so long as each trust and
beneficiary receives the share to which he, she or it is entitled of the fair
market value of the trust assets which are the subject of such division and
distribution. If it is necessary for the Trustee to value trust assets for the
purposes of division and distribution, each such asset shall be valued at what
the Trustee determines to be its fair market value on the date of distribution.
Notwithstanding the foregoing, if Trust A, Trust B, Trust C and Trust D are to
be established hereunder, assets which do not qualify for the marital deduction
shall be allocated to Trust A.
10.4 The Grantor recognizes that under the Federal tax law applicable
at the date of execution of this Agreement there are substantially different tax
consequences associated with the numerous tax elections which are required to be
made by the Executor or Administrator of the Grantor's estate and by the Trustee
which may affect the various beneficiaries in different ways. The Trustee shall
not be required to make any compensatory adjustments to any beneficiary by
reason of the manner in which any such election was exercised.
10.5 The administrative and discretionary powers granted the Trustee
herein shall be exercised in such a manner as not to diminish in any way the
full beneficial enjoyment of the Grantor's wife, Catherine C. Miller, in Trust C
nor to restrict her general power of appointment with respect to Trust C, and in
the exercise of such administrative and discretionary powers the Trustee shall
use the same degree of judgment and care a prudent man would use if he were the
owner of the trust assets. If at any time any of the assets allocated to Trust B
consist of unproductive property, the Trustee shall convert such unproductive
property to income producing property upon written notice from the Grantor's
wife.
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10.6 If the Trustee has a reasonable doubt about the manner of
allocating any credit or charge to principal or income under applicable law, the
Trustee shall have the power, exercisable as a fiduciary in good faith: to
determine whether assets received shall be treated as principal or income,
provided that distributions of capital gains by regulated investment companies,
capital gains on the sale of assets and stock dividends in stock of the
declaring corporation shall be allocated to principal; to charge or apportion
expenses or losses to principal or income; to establish and maintain reasonable
reserves for depreciation, depletion, amortization and obsolescence, and if any
portion of the trust estate consists of a wasting asset, to establish and
maintain reasonable reserves for such asset; and to amortize or not to amortize
both premiums and discounts on investments.
10.7 The Trustee is authorized to employ legal counsel, investment
counsel and other agents in any matter in connection with the administration of
any of the trusts, such as agents for the collection of rentals or the
management or sale of any of the trust estate. The Trustee may pay such
compensation and expenses in connection therewith as the Trustee deems
reasonable under the circumstances.
10.8 The Trustee assumes no responsibility with respect to the validity
or enforceability of any policy of insurance delivered or made payable to the
Trustee hereunder, nor with respect to the payment of any premiums or other
amounts that may be due or may become due on any such policy, nor does the
Trustee assume responsibility for doing anything else that may be required in
order to keep any such policy in force. Any insurance company which has issued a
policy of insurance payable to the Trustee hereunder need not inquire into or
take notice of this Agreement, nor see to the application of the proceeds of any
such policy or any other amounts paid to the Trustee, and the receipt of the
Trustee shall be a complete release and discharge of the insurance company for
the amount so paid and shall be binding upon every beneficiary of any trust
created hereunder. If a dispute arises with respect to the collection by the
Trustee of the proceeds of any such policy, the Trustee shall have authority to
compromise such dispute in any manner the Trustee deems to be in the best
interests of the trust, and the Trustee may enter into any agreement with
respect to such compromise which the Trustee deems appropriate and may release
any insurance company from any liability under any such policy. The Trustee need
not engage in litigation to collect the proceeds due under any such policy
unless and until the Trustee is fully indemnified to the Trustee's satisfaction
by beneficiaries of the trust from any liability which may result from such
litigation, including obligations incurred by the Trustee for attorney fees,
court costs and other expenses incident to such litigation.
10.9 If the Trustee receives a benefit by reason of the Grantor's death
under any plan for employees or for self-employed persons or under an individual
retirement account, and if the Trustee may elect to take such benefit either as
a lump sum payment or installments over a period of years, the Trustee shall
have the sole right to make such election in the manner the Trustee deems best.
However, to assist the Trustee in making such election, the following shall
serve as general guidelines:
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(a) The Grantor recognizes that under the Federal tax law
applicable at the date of execution of this Agreement there are substantially
different estate and income tax consequences from the receipt of such benefit,
depending upon whether the benefit is paid in a lump sum or in installments.
Also, the Grantor recognizes that the decision may involve significant
investment considerations and that distribution in a lump sum or in installments
may affect various beneficiaries in different ways, totally apart from tax or
investment considerations. It is the Grantor's intention that the Trustee
exercise such right of election so as to produce what in the Trustee's judgment
is the best overall tax and investment result, and not be influenced by the
particular wishes or desires of any trust beneficiary.
(b) The Trustee may utilize any means available to it for
calculating the estimated tax consequences of the Trustee's election to receive
the benefit in a lump sum or in installments. The Trustee may pay any fees or
expenses which may be required to obtain such information. The Trustee shall,
however, consider any such information as advisory in nature, it being the
Grantor's intention that the Trustee exercise its own judgment based on all
facts and circumstances and all information available to the Trustee.
(c) The Grantor recognizes that it may be difficult for the
Trustee to exercise the discretion granted to it, and that the decision is
dependent upon subjective as well as objective factors. Therefore, the Grantor
expressly exonerates the Trustee from any liability as a result of such decision
to any person whomsoever, provided only that the Trustee acts in good faith.
10.10 If a beneficiary ("Donee") exercises a power of appointment given
her under any section of this Agreement, the Donee may appoint the property
outright or in trust. If the Donee appoints in trust, she may select a trustee
or trustees, establish such administrative powers as she deems appropriate,
create different types of interests, including the creation of new powers of
appointment, and impose any lawful conditions upon any appointment. A Donee may
exercise her power of appointment only by an instrument or instruments in
writing (other than a Will) signed in the presence of two witnesses and
delivered to the Trustee prior to such Donee's death. If a Donee executes more
than one instrument purporting to appoint the same trust property, the
instrument last executed in conformity with the foregoing provisions shall be
effective with respect to such property.
10.11 Income or principal of any trust created under this Agreement
which becomes payable or is, in the discretion of the Trustee, distributable to
any beneficiary who is incapacitated or incompetent may be paid to such
beneficiary, despite his or her incapacity or incompetency, to his or her parent
or parents, to the guardian or guardians of his or her person or estate, to a
custodian for such beneficiary designated by the Trustee, or to any person,
corporation or institution for the benefit of such beneficiary, as the Trustee
deems reasonable. The receipt of any such payee shall be a complete discharge
and release of the Trustee.
10.12 For all purposes of this Agreement, a person, including the
Grantor, shall be considered incapacitated or incompetent if under age 18, or if
so declared by a court having jurisdiction, or if such person's personal
physician or any two physicians selected by the Trustee
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shall advise the Trustee of such incapacity or incompetency in writing. Any such
incapacity or incompetency established in the first instance by declaration of
court may be removed only by such court, or if established in the first instance
by such person's personal physician or any two physicians selected as above
provided, may be removed by either the personal physician then serving such
person or any two physicians selected by the Trustee (who need not be the same
two physicians who may have advised the Trustee of such person's incapacity or
incompetency).
10.13 The words "child" or "children," when used in this Agreement,
shall mean lineal descendants of the first degree only, including an adopted
person or persons. The word "issue" shall mean lineal descendants of any degree,
including an adopted person or persons.
10.14 Notwithstanding any other provisions of this Agreement, unless
terminated at an earlier date under other provisions hereof, all trusts herein
created shall terminate 21 years after the death of the last to die of the
Grantor, the Grantor's wife and the Grantor's issue who are living on the date
of the termination of the Grantor's power to revoke the trusts established by
this Agreement, whether such power terminates by death of the Grantor or
otherwise, and thereupon the Trustee shall distribute to the persons then
entitled to receive income from any trust the share of the trust from which any
such person is then entitled to receive income.
10.15 Notwithstanding any other provisions of this Agreement, if the
Grantor survives his wife and if the Trustee should receive any property under
her Last Will and Testament, or any proceeds of insurance policies owned by her
on her life, or any other property owned by her and passing to the Trustee by
reason of her death, to be added to any trust under this Agreement, the Grantor
shall have none of the powers reserved to him under Section 2 with respect to
such property, nor shall any such property be used for the purposes set forth in
Sections 4.2 and 4.5.
10.16 Throughout this Agreement words used in the singular or plural
shall be read in the plural or singular, and pronouns shall be read in the
feminine, masculine or neuter gender, as the facts or context may require to
accomplish the purpose intended.
10.17 This trust has been accepted by the Trustee in the State of Ohio,
and all questions pertaining to the trust and its validity and the
administration thereof, and to the construction of this Agreement, shall be
determined in accordance with the laws of the State of Ohio.
SECTION 11
THE TRUSTEE
11.1 References in this Agreement to the "Trustee" shall include not
only The Central Trust Company, N.A., but also any corporation, which may
succeed to its trust business.
11.2 Upon the written request of the Grantor during his life, The
Central Trust Company, N.A., or any Trustee then acting hereunder, shall resign
as Trustee as of the date fixed in the request,
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which shall not be earlier than 30 days after the date of the request, and any
Trustee acting hereunder shall have the right to resign upon 30 days' notice to
the Grantor, if living, and if not, to all of the beneficiaries then entitled to
receive income who are legally competent and to the guardians or custodians of
those who are not legally competent. Upon the resignation of any Trustee,
voluntarily or involuntarily, the Trustee shall turn over the assets and
administration of the trusts then held hereunder to such bank or trust company
authorized to do business under the laws of any state or under the National Bank
Act of the United States as may be selected by the Grantor, if living and
competent, or if not, by such beneficiaries or their guardians or custodians.
After the death of the Grantor, if his wife, Catherine C. Miller, survives him,
she shall have the same right which the Grantor had during his lifetime to
require a Trustee to resign and to designate another bank or trust company as
Trustee.
11.3 For its services in connection with the administration of each
trust held hereunder, the Trustee shall be entitled to receive such compensation
as is provided for in its current schedule of fees effective from time to time.
Unless the Grantor otherwise directs, such compensation shall be charged against
income except for compensation on principal distributions which shall be charged
entirely against principal.
11.4 If there shall be included among the assets of any trust held
hereunder assets which are located in another state, and if under the laws of
such other state the Trustee acting hereunder cannot or will not serve as
Trustee of such assets, then the Trustee is authorized, in its sole discretion,
to select some individual or corporation authorized to do business in such other
state to serve as its agent for purposes of holding title to and/or managing
such assets, with all the powers, authorities and duties granted the Trustee
under this Agreement. The individual or corporation who serves as agent for such
purposes shall be entitled to such compensation as the Trustee and such agent
may agree. Such agent shall exercise all powers and authorities with regard to
such out-of-state assets after consultation with and at the direction of the
Trustee, it being the Grantor's intention to vest in the Trustee the power to
supervise and control such agent in the conduct of such office. Such agent shall
not participate in decisions relative to other assets of the trust and shall not
be required to give bond. If the out-of-state assets are sold, the sale proceeds
shall be paid to the Trustee.
11.5 Any successor Trustee shall have each and every right, privilege,
power, discretion, authority and duty of the original Trustee and shall be
subject to the same responsibilities. Any successor Trustee shall qualify by
executing a written instrument of acceptance of the trusteeship which shall be
attached to any counterpart or copy of this Agreement. No bond shall be required
of any Trustee for serving as such.
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SECTION 12
DESIGNATION OF ADVISOR
12.1 Notwithstanding Sections 10.1.3, 10.1.4 and 10.1.6, after the
Grantor's death, the Grantor's son, Lloyd I. Miller, III, if living and
competent, shall serve as advisor to the Trustee during any time Trust A, Trust
B, Trust C or Trust D is being held hereunder under the following conditions:
The Trustee shall not make any investments, reinvestments or changes in
investments of the assets of Trust A, Trust B, Trust C or Trust D without first
consulting with and obtaining the advice of the advisor. The Trustee need not
act in accordance with the advice and counsel of the advisor, but if it does so,
the Trustee shall not be liable to any person for or as a result of any action
or failure to act if in accordance with such advice and counsel. No person, firm
or corporation dealing with the Trustee shall be bound to see that the
provisions of this Section 12 are complied with, and all such persons, firms and
corporations may proceed as if this Section 12 did not appear in this Agreement.
The Trustee need not obtain the advice and counsel of the advisor if the Trustee
requests such advice and counsel in writing and if the advisor fails to reply to
the Trustee within five days from the date of such request by telephone,
telegram, mail or in person.
IN WITNESS WHEREOF, the Grantor and the Trustee have signed duplicates
hereof, each of which shall be deemed an original, on the date first above
written.
/s/ Lloyd I. Miller
--------------------------------
/s/ Lloyd I. Miller
- -------------------------------
/s/
- -------------------------------
As to Lloyd I. Miller
THE CENTRAL TRUST COMPANY, N.A.
By: /s/ Joseph D. Landen
----------------------------
Joseph D. Landen, Executive Vice
/s/ President
- -------------------------------
/s/
- -------------------------------
As to The Central Trust Company, N.A.
STATE OF OHIO, COUNTY OF HAMILTON: SS:
Before me, the undersigned, a Notary Public in and for said county and
state, personally appeared Lloyd I. Miller, who executed the foregoing Agreement
as the Grantor and acknowledged the signing thereof to be his voluntary act for
the uses and purposes therein contained.
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IN TESTIMONY WHEREOF, I have signed and affixed my seal to this
Agreement on September 20, 1983.
/s/
--------------------------------
Notary Public
16
